Avalos v. Carpenter et al

Filing 46

FINDINGS and RECOMMENDATION to Grant Defendant's 42 Motion for Summary Judgment, signed by Magistrate Judge Jennifer L. Thurston on 8/24/17. Referred to Judge O'Neill. Objections to F&R Due Within 21 Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANGEL F. AVALOS,
Plaintiff,

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v.

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FINDINGS AND RECOMMENDATION TO
GRANT DEFENDANT’S MOTION FOR
SUMMMARY JUDGMENT
(Doc. 42)

CARPENTER,
Defendant.

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Case No. 1:15-cv-00369-LJO-JLT (PC)

OBJECTIONS DUE WITHIN 21 DAYS

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I.

Background
Plaintiff claims that, in deliberate indifference to his safety, at a time when all inmates

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were to be escorted due to recent stabbing, Defendant knowingly opened cell doors and

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simultaneously allowed Plaintiff and other inmates out of their cells without escort, which

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resulted in Plaintiff being attacked. Defendant filed a motion for summary judgment and

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contends that he was in the control tower and opened cells only when floor officers instructed it

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was safe to do so, that he had no knowledge of an excessive risk of harm to Plaintiff by his

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actions that day, and that Plaintiff is not entitled to recover compensatory damages as he was not

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physically injured in the incident and his only remain claim is for emotional distress. Plaintiff

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was provided with timely notice of the requirements for opposing a motion for summary

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judgment in an order filed on June 7, 2017. Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL

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2626912 (9th Cir. Jul. 6, 2012), Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), Rand v.
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Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

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That notice warned Plaintiff that his failure to file an opposition or a statement of non-opposition

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to Defendant’s motion could result in dismissal for failure to prosecute and that his failure to

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contradict Defendant’s motion with declarations or other evidence would result in Defendant’s

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evidence being taken as truth upon which final judgment may be entered. (Doc. 43.) Despite

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lapse of more than a month beyond the allowed time, Plaintiff filed neither an opposition nor a

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statement of opposition to Defendant’s motion. For the reasons discussed below, the Court finds

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that Defendant’s motion reveals a lack of genuine issue of material fact and demonstrates the

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motion should be GRANTED.

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II.

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Plaintiff’s Claim
Plaintiff alleged that as of January 30, 2014, while he was housed at the Substance Abuse

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Treatment Facility, a prison memorandum/matrix was in effect that restricted inmate movement

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other than under escort and D-yard facility was on lockdown because of a stabbing. (Doc. 1, p.

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3.) Despite this, on that date, the doors to his cell and those of a few other inmates were opened

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and they were simultaneously released unrestrained to the common area. (Id.) As a result,

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Plaintiff was attacked and injured. (Id.)

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III.

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Summary Judgment Standard
Summary judgment is appropriate where there is “no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington

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Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine only if there

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is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is

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material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436

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(9th Cir. 1987). The Court determines only whether there is a genuine issue for trial and in doing

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so, it must liberally construe Plaintiff’s filings because he is a pro se prisoner. Thomas v. Ponder,

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611 F3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

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In addition, Rule 56 allows a court to grant summary adjudication, or partial summary

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judgment, when there is no genuine issue of material fact as to a particular claim or portion of that

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claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir.

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1981) (“Rule 56 authorizes a summary adjudication that will often fall short of a final

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determination, even of a single claim . . .”) (internal quotation marks and citation omitted). The

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standards that apply on a motion for summary judgment and a motion for summary adjudication

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are the same. See Fed. R. Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F.Supp.2d 1192, 1200

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(S.D. Cal. 1998).

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Each party’s position must be supported by (1) citing to particular parts of materials in the
record, including but not limited to depositions, documents, declarations, or discovery; or (2)

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showing that the materials cited do not establish the presence or absence of a genuine dispute or

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that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.

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56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not

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cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San

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Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo

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County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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A defendant does not bear the burden of proof at trial and, in moving for summary

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judgment, need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp.

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Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S.

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317, 323 (1986)). If a defendant meets this initial burden, the burden then shifts to Plaintiff “to

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designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle

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Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show

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more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 252 (1986)). An issue of fact is genuine only if there is sufficient evidence for

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a reasonable fact finder to find for the non-moving party, while a fact is material if it “might

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affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248; Wool v.

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Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987).

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In judging the evidence at the summary judgment stage, the Court may not make

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credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless Inc., 509

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F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all

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inferences in the light most favorable to the nonmoving party and determine whether a genuine

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issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v.

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City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted),

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cert. denied, 132 S.Ct. 1566 (2012). Inferences, however, are not drawn out of the air; the

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nonmoving party must produce a factual predicate from which the inference may reasonably be

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drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

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aff’d, 810 F.2d 898 (9th Cir. 1987).

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Where, as here, the opposing party fails to file an opposition, a district court may not grant

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a motion for summary judgment solely on this basis. Cristobal v. Siegel, 26 F.3d 1488, 1494-95

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& n. 4 (9th Cir.1994). However, an unopposed motion for summary judgment may be granted if

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the movant’s papers are sufficient to support the motion and do not on their face reveal a genuine

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issue of material fact. See United States v. Real Property at Incline Village, 47 F.3d 1511,

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1519-20 (9th Cir.1995) (holding local rule cannot mandate automatic entry of judgment for

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moving party without consideration of whether motion and supporting papers satisfy

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Fed.R.Civ.P. 56), rev=d on other grounds sub nom. Degen v. United States, 517 U.S. 820 (1996).

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IV.

Discussion and Analysis

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A.

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“The treatment a prisoner receives in prison and the conditions under which he is confined

Eighth Amendment Standards

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are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832

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(1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison officials have a duty “to take

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reasonable measures to guarantee the safety of inmates, which has been interpreted to include a

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duty to protect prisoners.” Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (citing

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Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)).

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To establish a violation of this duty, the prisoner must “show that the officials acted with

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deliberate indifference to threat of serious harm or injury to an inmate.” Labatad, at 1160 (citing

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Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective

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and subjective components.

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First, objectively, the alleged deprivation must be “sufficiently serious” and where a

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failure to prevent harm is alleged, “the inmate must show that he is incarcerated under conditions

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posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834, quoting Rhodes v. Chapman,

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452 U.S. 337, 349 (1981). Second, subjectively, the prison official must “know of and disregard

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an excessive risk to inmate health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d

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1310, 1313 (9th Cir. 1995). A prison official must “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and . . . must also draw the

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inference.” Farmer, 511 U.S. at 837. Liability may follow only if a prison official “knows that

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inmates face a substantial risk of serious harm and disregards that risk by failing to take

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reasonable measures to abate it.” Id. at 847; Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1188

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(9th Cir. 2002) (“If a prison official should have been aware of the risk, but was not, then the

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official has not violated the Eighth Amendment, no matter how severe the risk.”).

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B.

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Defendant’s evidence shows that the events upon which Plaintiff’s claim is based,

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occurred on January 30, 2014. (UF No. 3.) Plaintiff and the other inmate involved were outside

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of their cells at the time. (UF No. 4.) The other inmate walked towards Plaintiff and Plaintiff

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backed up. (UF No. 5.) When the other inmate was about five feet away, Plaintiff claims that he

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feared he was going to be attacked, so he hugged the other inmate. (UF No. 6.) The initial

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physical contact that Plaintiff had with the inmate was when Plaintiff hugged and wrapped his

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arms around the other inmate. (UF No. 7.) No punching or fist fighting occurred in this

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altercation. (UF No. 8.) Plaintiff and the other inmate wrestled and went to the floor. (UF No.

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9.) Plaintiff continued to hug the other inmate until both were pepper sprayed. (UF No. 10.)

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During the incident Plaintiff does not recall that he was ever struck by the other inmate. (UF No.

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11.) Once pepper sprayed, Plaintiff and the other inmate stopped fighting and “proned out.” (UF

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No. 12.) Plaintiff was thereafter cuffed and escorted to the yard. (UF No. 13.)

Defendant’s Motion

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Plaintiff is not claiming that he suffered any physical injuries as a result of the incident;

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rather, he claims he suffered mental damage, underwent psychological evaluations, and suffered

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reddened areas on his face which went away after one day. (UF Nos. 2, 14, 17.) Plaintiff was

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allowed to wash off the pepper spray, but was not treated for any injuries and did not receive any

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medication. (UF No. 15.) Plaintiff did not suffer any ill effects from the pepper spray. (UF No.

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16.)

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On the date of the incident, Defendant was working as the D5 Control Officer at SATF.

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(UF No. 18.) He had worked as a Control Officer numerous times during his tenure with CDCR.

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(UF No. 19.) Part of this job entailed opening and closing the doors to inmate cells in his area via

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a remote, electronic, mechanical system. (UF No. 20.) Defendant was situated in a Control

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Tower above the prison floors. (UF No. 21.)

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Defendant recalls that this area was on lockdown on January 30, 2014, but not all inmates

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were subject to the same restrictions -- some inmate critical workers and some inmates in need of

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medical care were not locked down or required to be restrained. (UF No. 22.) The protocol

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under these circumstances required correctional officers on the floor to determine when it was

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safe to open one or more cell doors. (UF No. 23.) They made this decision based on the

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circumstances of which they were aware at the time. (UF No. 24.) Defendant relied upon them

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to make the decision as to which doors should be opened and when. (UF No. 25.) The floor

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officers would signal Defendant when a door was to be opened. (UF No. 26.)

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When cell doors were opened around 8:30 a.m. on January 30, 2014, the floor officers

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provided a signal notifying Defendant which cell doors to open and when. (UF No. 27.) In

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following those directions, Defendant was not aware of any substantial risk of serious harm to

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Plaintiff, or any other inmate. (UF No. 28.) Defendant was not aware and did not suspect that

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there was a substantial risk that inmates would start fighting with each other when he opened the

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cell doors. (UF No. 29.)

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Prior to January 30, 2014, Defendant had very limited interaction with Plaintiff. (UF No.

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30.) They had no prior dealings which created any animosity, conflicts, disputes, arguments, etc.

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(UF No. 31.) There was no “bad blood” between them and Defendant had no reason to want to

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harm Plaintiff or make trouble for him. (UF No. 32.) Defendant had no intent to create a

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situation where Plaintiff, or any inmates, would likely get into fights. (UF No. 33.)

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Plaintiff is claiming in his complaint that the alleged excessive risk of harm to him was

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the opening of cell doors without escorts for the inmates which allowed them to roam freely

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within the prison thereby making it likely that Plaintiff would be attacked by another inmate. (UF

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No. 34.) Plaintiff is not claiming that he had any prior relationship with the inmate attacked him

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and did not know who the other inmate was. (UF No. 35.) Plaintiff also does not allege that any

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particular group or gang had threatened to harm him. (UF No. 36.) Defendant was not aware of

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any relationship or animosity between Plaintiff and the other inmate involved in the altercation,

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nor was he aware of any threats of violence made by either to the other. (UF No. 37.) Defendant

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did not suspect that any inmates would assault other inmates if they were allowed outside their

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cells unrestrained, let alone Plaintiff and the other inmate involved. (UF No. 38.)

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Defendant correctly contends that under Farmer and Simmons v. Lamarque, 2007 WL

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2177339 (N.D. Cal. 2007), aff’d, 412 F. App’x 958 (9th Cir. 2011), there is no basis for

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Plaintiff’s deliberate indifference claim. Plaintiff alleges an excessive threat existed because

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there was a lockdown and inmates were allowed to walk outside of their cells without escorts, but

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this is insufficient to support this claim. Defendant shows that there is no evidence indicating any

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likelihood that the other inmate would attack Plaintiff on the date in question. Defendant also

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shows that even if there had been an excessive risk that Plaintiff would be attacked, the facts of

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which Defendant was actually aware justifiably did not raise any suspicion. When Defendant was

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told by the floor officers to open the doors, he relied upon the officers’ expertise that the

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circumstances were such that no risk would be created by opening them. Further, Plaintiff and

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the other inmate had no prior history and Defendant was aware of no facts which would raise a

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suspicion that one of them might attack the other. Finally, Defendant’s evidence shows that he

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never actually had such a suspicion. Gibson, 290 F.3d at 1188.

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The Court finds that Defendant has met the burden to demonstrate the absence of a

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genuine issue of material fact. The burden therefore shifts to Plaintiff to establish that a genuine

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issue as to any material fact exists. See Matsushita, 475 U.S. at 586. To this end, however,

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Plaintiff’s deposition testimony, cited by Defendants, overrides his allegations in the complaint to

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the contrary. Plaintiff’s general and conclusory allegations in the complaint were very liberally

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construed in his favor to state a cognizable claim. However, on summary judgment they do not

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suffice to create a triable issue of fact that Defendant was aware of a substantial risk of serious

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harm to Plaintiff on January 30, 2014, which he disregarded and failed to take reasonable

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measures to abate. Farmer, 511 U.S. at 847. A court may refuse to find a “genuine issue as to a

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material fact where the only evidence presented is uncorroborated and self-serving testimony.”

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Manley v. Rowley, 847 F.3d 705, 710-11 (9th Cir. 2017) (internal quotations and citations

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omitted). Plaintiff’s allegations in the complaint are akin to self-serving testimony which the

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Court is permitted to discount since the complaint largely states conclusions and provides few

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facts that would be admissible evidence. Nigro v. Sears, Roebuck and Co., 784 F.3d 495, 497-98

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(9th Cir. 2015).

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Further, “No Federal civil action may be brought by a prisoner confined in a jail, prison,

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or other correctional facility, for mental or emotional injury suffered while in custody without a

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prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of

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title 18, United States Code).” 42 U.S.C. § 1997e(e). Defendant’s evidence shows that Plaintiff

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does not seek damages in this action for any physical injury he sustained in the altercation on

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January 30, 2014. Plaintiff may not solely pursue damages for mental or emotional injury. Thus,

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the Court finds that Defendant’s motion for summary judgment should be GRANTED on the

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merits of Plaintiff’s claim.

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V.

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Conclusions and Recommendations
As set forth herein, this Court finds that Defendant’s motion for summary judgment

should be granted. Accordingly, the Court RECOMMENDS:

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(1) that Defendant Carpenter is entitled to judgment as a matter of law such that the

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Motion for Summary Judgment, filed on June 2, 2017 (Doc. 42), should be

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GRANTED; and
(2) that the Clerk of the Court be directed to enter judgment against Plaintiff and in

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favor of Defendant Carpenter, and that this action be closed.
These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 21

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

August 24, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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