Reamel v. Harrington et al

Filing 81

FINDINGS and RECOMMENDATIONS recommending that the Court Grant Defendants J. Gonzales and J. Bugarin's Motion for Summary Judgment 66 ; referred to Judge O'Neill, signed by Magistrate Judge Jeremy D. Peterson on 10/24/18. Objections to F&R due 14-Day Deadline(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REAMEL CURTIS,

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Case No. 1:15-cv-00553-LJO-JDP

Plaintiff,

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FINDINGS AND RECOMMENDATIONS
THAT COURT GRANT DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

v.

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J. GONZALES and J. BUGARIN,1

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OBJECTIONS DUE IN 14 DAYS
ECF No. 66

Defendants.

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Plaintiff Reamel Curtis proceeds without counsel in this civil rights action brought under

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42 U.S.C. § 1983. While plaintiff was an inmate at Corcoran State Prison (“Corcoran”), he had

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physical altercations with another inmate. Prison officials later transferred plaintiff to a new

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housing unit at Corcoran, but three weeks later the same inmate attacked plaintiff at his new

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housing unit. According to plaintiff, defendant J. Bugarin, a correctional counselor at

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Corcoran, approved plaintiff’s transfer to the new housing unit and escorted him there, putting

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plaintiff at risk. Plaintiff alleges that defendant J. Gonzales, a correctional officer who

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supervised the new housing unit, ignored plaintiff’s warnings that his safety was at risk.
Defendants move for summary judgment. Plaintiff presents no evidence that Bugarin

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approved plaintiff’s transfer to the new housing unit and, although plaintiff alleges that

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Bugarin personally escorted him to the new unit, this, without more, cannot show Bugarin’s

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Defendant J. Bugarin’s last name was captioned “Burgarin” in the case caption. The
undersigned will direct the clerk of court to amend the caption to reflect the correct spelling of
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deliberately indifference to plaintiff’s safety. As regards defendant Gonzalez, plaintiff presents `

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no evidence that he warned Gonzales of any safety risk. We therefore find that there is no

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genuine dispute of material fact and recommend summary judgment in defendants’ favor.

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I.

Facts2
In October 2011, plaintiff had two physical altercations with Butler, another inmate at

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Corcoran. ECF No. 12 at 7, 14; ECF No. 66-3 ¶ 2-3. As a result, prison officials designated

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plaintiff and Butler as documented enemies and placed plaintiff in a security housing unit at

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Corcoran. ECF No. 12 at 19. In December 2011, plaintiff was released to the general

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population in Facility 3-B at Corcoran. ECF No. 66-4 at 10. In January 2012, Bugarin and

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two other prison officials recommended that plaintiff be transferred to another prison and that

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plaintiff stay in Facility 3-B at Corcoran pending his transfer. ECF No. 66-4 at 2, 8. Until

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April 2012, plaintiff stayed in Facility 3-B, and Butler stayed in Facility 3-A. ECF No. 12 at

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19; ECF 66-4 at 10-11.
In April 2012, plaintiff was transferred to Facility 3-A. ECF No. 66-4 at 10-11. Officer

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Noland, who is not a party to this case, requested plaintiff’s transfer to Facility 3-A, and

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Sergeant Rasley, another nonparty, approved the transfer. ECF No. 66-4 at 2-3, 10-11.

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Bugarin states in his declaration that as a correctional counselor, he had no authority to move

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an inmate between facilities, ECF No. 66-4 at 3, and plaintiff presents no evidence to the

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contrary. Plaintiff also presents no evidence that Bugarin approved plaintiff’s transfer from

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Facility 3-B to Facility 3-A.
The parties dispute whether Bugarin escorted plaintiff to Facility 3-A. Plaintiff states in

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his declaration that Bugarin personally escorted him to a yard within Facility 3-A on April 5,

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2012. ECF No. 77 at 6. According to plaintiff, Bugarin told him during the escort that he

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would stay in the Facility 3-A yard pending transfer to another prison. Id. Bugarin states in

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his declaration that he did not escort plaintiff to the Facility 3-A yard on April 5, 2012, and that

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The parties raise no evidentiary objections, so the court need not decide the admissibility of
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he has never escorted an inmate during a housing transfer. ECF No. 66-4 at 3; see also

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ECF No. 66-4 at 5-6 (correctional counselor’s duty descriptions).
While at Facility 3-A, plaintiff sent two interview-request forms to Gonzales, a sergeant

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who supervised Facility 3-A. ECF No. 66-6 at 9:2-10, 10:5-7. On one interview-request form,

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dated April 6, 2012, plaintiff wrote, “I would like to speak to a supieor [superior] regarding my

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housing. Thank you!” ECF No. 77 at 11. Plaintiff did not file the other interview-request

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form with this court, but he testified during his deposition that he “most likely” wrote the same

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message in an interview-request form dated April 8, 2012. ECF No. 66-6 at 9:15-22.

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Gonzales states in his declaration that he does not recall receiving an interview-request form or

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having any personal interaction with plaintiff about housing assignment. ECF No. 66-5 ¶ 3.

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Gonzales also states that between April 5, 2012, and April 26, 2012, he had no knowledge that

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plaintiff was staying in the same facility as a documented enemy. Id. ¶ 4. On April 26, 2012,

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plaintiff and Butler had another physical altercation. ECF No. 66-6 at 9:23-25.

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II.

Discussion
A district court will grant summary judgment when “there is no genuine dispute as to any

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

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A factual dispute is genuine if a reasonable trier of fact could find in favor of either party at

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trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The disputed fact is

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

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477 U.S. at 248; accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

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(1986). Entitlement to summary judgment depends on the movant’s burden at trial: a movant

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who has the burden of persuasion must present evidence supporting every element of a claim

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or defense; the movant without that burden can prevail by showing that the opponent cannot

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prove an element of a claim or defense.3 The court must view the record in the light most

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See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); compare Barnes v. Sea Hawaii
27 Rafting, LLC, 889 F.3d 517, 537 (9th Cir. 2018) (movant with burden of persuasion at trial),
with Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1188 (9th Cir. 2016) (non-moving
28 party without burden of persuasion at trial).
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favorable for the nonmoving party. See Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir.

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2017).

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Familiar standards govern burden-shifting for summary judgment. See Celotex Corp. v.

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Catrett, 477 U.S. 317, 323-27 (1986). The movant bears the initial burden to show prima facie

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entitlement to summary judgment. See id.; Friedman v. Live Nation Merch., Inc., 833 F.3d

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1180, 1188 (9th Cir. 2016). The burden then shifts to the party opposing summary judgment to

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produce evidence showing a genuine dispute of a material fact. See Friedman, 833 F.3d at

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1188. The movant bears the ultimate burden of persuasion. Id.

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a. Preliminary matters
We begin with two preliminary matters. First, plaintiff suggests that the court should not

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consider defendants’ motion for summary judgment because the court has already denied one

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motion for summary judgment. See ECF No. 77 at 1-2. Plaintiff is mistaken. A district court

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may grant a successive motion for summary judgment. See Hoffman v. Tonnemacher, 593

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F.3d 908, 911-12 (9th Cir. 2010). Plaintiff also mischaracterizes the procedural history of this

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case. Defendants moved for summary judgment earlier in the case, arguing that plaintiff failed

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to exhaust administrative remedies and that Bugarin had no personal involvement in

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transferring plaintiff to Facility 3-A. ECF No. 35-3. The court denied defendants’ motion for

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summary judgment, adopting the reasoning of United States Magistrate Judge Erica P.

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Grosjean that plaintiff had exhausted his administrative remedies and that Bugarin escorting

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plaintiff to Facility 3-A could show Bugarin’s personal involvement. ECF No. 54 at 6-10.

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However, showing personal involvement differs from showing deliberate indifference. Judge

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Grosjean recognized this and warned plaintiff at a status conference after the first summary

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judgment decision that defendants could move for summary judgment again.4 After the status

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Judge Grosjean explained that plaintiff needed to produce evidence of Bugarin’s involvement
25 beyond merely escorting plaintiff to Facility 3-A See Audio Recording, Telephonic Status
26 Conference, 1:41:30-1:42:17 (Mar. 7, 2018) (“You need to do it [produce evidence] for
yourself. What I mean is, right now, I know it’s going to happen. . . . It will actually be a
27 motion for summary judgment. They will say that you do not have enough facts to say that
defendant Bugarin failed to protect you. What they will say is all you got is Bugarin personally
28 escorted you and that that’s not enough.”). The audio recording does not appear on the docket,

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conference, she extended the deadline for dispositive motions. See ECF No. 61 at 3. Thus, the `

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first summary judgment decision does not preclude the court from considering defendants’

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successive motion for summary judgment. We now find that the court should grant summary

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judgment for the reason discussed at the status conference: plaintiff’s allegation that Bugarin

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escorted him to Facility 3-A, without more, does not establish deliberate indifference.

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Second, Bugarin argues that no reasonable jury could find that he escorted plaintiff to

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Facility 3-A. ECF No. 66-2 at 6-7. If no reasonable jury could find by a preponderance of the

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evidence that Bugarin escorted plaintiff to Facility 3-A, the court should grant summary

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judgment.5 The court, however, need not assess plaintiff’s evidence because plaintiff could not

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prevail even if the court were to accept his factual assertions as true, for the reasons discussed

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below.

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b. Failure-to-protect claim against Bugarin

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Plaintiff advances two theories against Bugarin. First, he alleges that Bugarin approved

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plaintiff’s transfer to Facility 3-A. See ECF No. 13 at 6; see also ECF No. 12 at 8. Second, he

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alleges that that Bugarin personally escorted plaintiff to Facility 3-A. See ECF No. 44;

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ECF No. 77.6 Neither allegation, even accepted as true, can withstand summary judgment.

17 but any party may purchase a copy of the audio recording from the clerk of court by submitted a
18 Form CAED 436.
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Although courts rarely weigh evidence at summary judgment, a party cannot withstand
19 summary judgment if the “quantum and quality” of his evidence does not allow a reasonable
20 jury to find in his favor at trial. See Anderson, 477 U.S. at 252 (“[T]he inquiry involved in a
ruling on a motion for summary judgment or for a directed verdict necessarily implicates the
21 substantive evidentiary standard of proof that would apply at the trial on the merits.”); accord
Estate of Lopez by & through Lopez v. Gelhaus, 871 F.3d 998, 1008 (9th Cir. 2017). The
22 requisite quantum and quality of evidence depends on the party’s burden of proof at trial. See
Anderson, 477 U.S. at 252 (preponderance of the evidence for libel). The standard for showing
23 deliberate indifference at trial is a preponderance of the evidence. See Mellen v. Winn, 900 F.3d
24 1085, 1101 (9th Cir. 2018); Clem v. Lomeli, 566 F.3d 1177, 1183 (9th Cir. 2009); 9th
Cir. Model Civ. Jury Instr. 9.27 (2018).
25 6 The court has allowed plaintiff to proceed only on the first allegation, and plaintiff has not

26 amended his complaint to include his second allegation that Bugarin escorted plaintiff to
Facility 3-A. It might be too late for plaintiff to amend his complaint, as discovery has already
27 closed. ECF No. 34; ECF No. 50; see also ECF No. 63 (denial of leave to amend complaint for
undue delay and prejudice). For the sake of efficiency, the court should address the merits
28 without assessing whether plaintiff needed to amend his complaint to assert a new fact.
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As for plaintiff’s first allegation—that Bugarin approved the transfer to Facility 3-A—the `

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parties no longer dispute that Officer Noland requested plaintiff’s transfer to Facility 3-A and

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that Sergeant Rasley approved the transfer. ECF No. 66-3 ¶¶ 12-13; ECF No. 66-4 at 3, 12.

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Indeed, plaintiff does not argue that Bugarin participated in that decision in any way. See

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ECF No. 77 at 1-4. Since plaintiff adduces no evidence that Bugarin caused the transfer and

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the alleged deprivation of his rights, plaintiff cannot prevail on the basis that Bugarin approved

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his transfer to Facility 3-A. See Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018)

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(reversing denial of summary judgment when plaintiff failed to show that defendant caused

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alleged deprivation in Section 1983 action).

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Plaintiff cannot withstand summary judgment on his second allegation, either. Plaintiff

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contends that Bugarin caused injury—specifically, the attack by Butler three weeks later—by

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escorting plaintiff to Facility 3-A. ECF No. 77 at 3. The court has already found that a

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reasonable jury could find causation based on Bugarin’s escort of plaintiff to Facility 3-A, see

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ECF No. 54 at 6-8, and whether Bugarin escorted plaintiff to Facility 3-A is genuinely

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disputed, see ECF No. 66-4 at 3; ECF No. 77 at 6. This dispute of fact, however, is

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immaterial: even if the court were to accept plaintiff’s allegation as true, he cannot establish

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deliberate indifference.

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Prison officials have a duty “to protect prisoners from violence at the hands of other

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prisoners,” and failure to do so can violate the Eighth Amendment’s prohibition against cruel

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and unusual punishment. See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (citation

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omitted). The deliberate-indifference standard of Farmer v. Brennan, 511 U.S. 825, governs

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failure-to-protect claims. See Hearns, 413 F.3d at 1040. Under the deliberate-indifference

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standard, a defendant violates the Eighth Amendment when two requirements are satisfied:

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(1) the alleged deprivation is objectively serious; and (2) the defendant is deliberately

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indifferent to the deprivation. See Farmer, 511 U.S. 825, 834 (1994); Hearns, 413 F.3d at

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1040. As for the first requirement, the parties do not dispute that placing an inmate in a

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housing unit with his documented enemy is an objectively serious deprivation. The second

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requirement, deliberate indifference, requires that a defendant subjectively know of and

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disregard “an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. The

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defendant must be “aware of facts from which the inference could be drawn that a substantial

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risk of serious harm exists,” and the defendant must actually draw that inference. See id.;

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Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016).

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Here, plaintiff cannot show deliberate indifference even if Bugarin escorted plaintiff to a

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yard within Facility 3-A. According to plaintiff, Bugarin escorted him there on April 5, 2012

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because there was no bus scheduled to transport him to a different prison. ECF No. 77 at 6.

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The first issue is whether Bugarin knew that he was escorting plaintiff to a location where

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plaintiff would be in contact with a documented enemy, Butler.

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Although plaintiff does not address the issue of Bugarin’s knowledge at summary

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judgment, some evidence supports the inference that Bugarin should have known that Butler

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was in Facility 3-A. On January 12, 2012, Bugarin signed a DC 812-A form, designating

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Butler as plaintiff’s documented enemy and indicating in the “Current Location” column that

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Butler was located in Facility 3-A as of January 12, 2012. See ECF No. 12 at 19. Still, the fact

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that Bugarin signed the form about four months before allegedly escorting plaintiff to Facility

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3-A—without more—does not show Bugarin’s knowledge that plaintiff faced a safety risk on

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April 5, 2012. Plaintiff provides no evidence that Bugarin monitored Butler’s location after

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January 12, 2012 or that Bugarin knew Butler’s location as of April 5, 2012. Bugarin—a

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correctional counselor responsible for about 160 inmates—was not plaintiff’s counselor when

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he allegedly escorted plaintiff to Facility 3-A. See ECF No. 66-4 ¶¶ 2, 6-7. Furthermore,

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plaintiff insists that there were “mass transfers . . . rapidly being taken place” at Corcoran and

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that the decision to move plaintiff to a different facility within Corcoran was “urgent.”

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ECF No. 77 at 6. Under these circumstances, it is doubtful at best that Bugarin, a correctional

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counselor responsible for many inmates, would have known or remembered for four months

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the location of a documented enemy of one inmate.

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Even if a reasonable jury could find that Bugarin knew Butler’s location on April 5,

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2012, plaintiff still could not withstand summary judgment because he cannot show that

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Bugarin knew of and disregarded an “excessive risk” to plaintiff’s safety. See Farmer, 511

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U.S. at 837. Plaintiff states that Bugarin told him that he would stay in the Facility 3-A yard

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until a bus arrived to transport him. ECF No. 77 at 6. Plaintiff presents no evidence that

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Bugarin knew plaintiff would have a prolonged stay in Facility 3-A or that he perceived

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plaintiff’s temporary stay in Facility 3-A to present safety issues. Bugarin’s decision to leave

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plaintiff in Facility 3-A was negligence at best, not cruel and unusual punishment. See

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Farmer, 511 U.S. at 838 (“[A]n official’s failure to alleviate a significant risk that he should

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have perceived but did not, while no cause for commendation, cannot under our cases be

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condemned as the infliction of punishment.”). In sum, there is no genuine dispute of any

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material fact, and Bugarin is entitled to summary judgment.

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c. Failure-to-protect claim against Gonzales

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Plaintiff proceeds on a failure-to-protect claim under the Eighth Amendment against

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defendant Gonzales. Plaintiff contends that Gonzales ignored his warnings that he was being

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housed in the same facility as a documented enemy. ECF No. 12 ¶¶ 11-13; ECF No. 13 at 6.

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The deliberate-indifference standard discussed above applies to plaintiff’s failure-to-protect

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claim against Gonzales.

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Again, plaintiff offers no evidence that Gonzalez knew that plaintiff was staying in

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Facility 3-A with a documented enemy. Plaintiff conceded during his deposition that he never

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had any personal interaction with Gonzales. ECF No. 66-6:11-13. He testified that he sent

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Gonzales two interview-request forms, one on April 6, 2012 and another on April 8, 2012,

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asking to discuss “housing.” Id. at 8:18-10:7; ECF No. 66-5 ¶ 4. Those two forms might have

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informed Gonzales of an unidentified problem with his housing in the general sense (“I would

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like to speak to a superior [superior] regarding my housing”), but they do not show that

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plaintiff informed Gonzales of any safety risk. ECF No. 77 at 11.

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After testifying in his deposition that he sent only two interview-request forms, plaintiff

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now states for the first time in his declaration that he “wrote several request forms regarding

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[his] housing to the supieor [superior] SGT but to no avail.” ECF No. 77 at 9 (emphasis

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added). This statement suggests that plaintiff sent interview-request forms to an unidentified

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sergeant—in addition to the forms he sent to Gonzales. Still, the statement does not support a

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finding that plaintiff informed Gonzales of any safety risk, so plaintiff’s declaration does not

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raise a genuine dispute. Thus, there is no genuine dispute of any material fact as to plaintiff’s

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claim against Gonzales, and Gonzales is entitled to summary judgment. No other claim

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remains, and granting defendants’ motion for summary judgment concludes this case.

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III. Findings and recommendations
We recommend that the court grant defendants J. Gonzales and J. Bugarin’s motion for

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summary judgment. ECF No. 66. These findings and recommendations are submitted to

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United States District Judge Lawrence J. O’Neill under 28 U.S.C. § 636(b)(1)(B) and Local

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Rule 304. Within 14 days of the service of the findings and recommendations, the parties may

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file written objections to the findings and recommendations with the court and serve a copy on

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all parties.7 That document must be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The presiding district judge will then review the findings and

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recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s failure to object within the

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specified time may waive rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th

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Cir. 2014).

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IV. Order

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The clerk of court is directed to amend the case caption to reflect the correct spelling of
defendant J. Bugarin’s last name.

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In any future filings, plaintiff should bear in mind that he has a duty to be truthful. A court
may impose sanctions if a litigant is not truthful in court submissions. See
Fed. R. Civ. P. 11(b); Truesdell v. S. California Permanente Med. Grp., 293 F.3d 1146, 1153
(9th Cir. 2002). Certain of plaintiff’s statements raise concerns about plaintiff’s candor. For
example, plaintiff stated in his declaration that he had not timely filed his opposition to
defendants’ motion for summary judgment because he did not know that defendants could
move for summary judgment again. ECF No. 77 at 7. However, when Judge Grosjean
explained to plaintiff that his evidence against Bugarin was too thin, she explained that
defendants would likely move for summary judgment again. See Audio Recording, Telephonic
Status Conference, 1:41:30-1:42:17 (Mar. 7, 2018). Plaintiff also testified during his
deposition that he took no action regarding his housing in Facility 3-A other than sending two
interview-request forms to Gonzales. ECF No. 66-6 at 9:2-10, 10:5-7. However, plaintiff later
stated in his declaration that he “wrote several request forms regarding [his] housing to the
supieor [superior] SGT . . . .” ECF No. 77 at 9. These statements are difficult to reconcile.
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IT IS SO ORDERED.

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Dated:
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October 24, 2018
UNITED STATES MAGISTRATE JUDGE

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