Smith v. Hutchinson et al

Filing 77

FINDINGS and RECOMMENDATIONS recommending that the Court Grant In Full Defendant's Motion for Summary Judgment 69 ; this case be Dismissed with Prejudice re 69 MOTION FOR SUMMARY JUDGMENT ;referred to Judge O'Neill; ORDER VACATING 75 FINDINGS AND RECOMMENDATIONS,signed by Magistrate Judge Jeremy D. Peterson on 8/29/2019. ( 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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TOY TERRELL SMITH,
Plaintiff,

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Case No. 1:16-cv-01924-LJO-JDP
ORDER VACATING FINDINGS AND
RECOMMENDATIONS

v.
ECF No. 75

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J. TORRES, et al.,

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FINDINGS AND RECOMMENDATIONS
THAT COURT GRANT DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
AND DISMISS CASE WITH PREJUDICE

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OBJECTIONS DUE IN 14 DAYS

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ECF No. 69

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Defendants.

I. Order Vacating August 26, 2019 Findings and Recommendations
On August 26, 2019, I recommend granting defendants’ motion for summary judgment

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without prejudice. ECF No. 75. Defendants responded that the case should be dismissed with

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prejudice. See ECF No. 76. For good cause shown, I hereby vacate my August 25, 2019

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Findings and Recommendations. The corrected findings and recommendations that follow are

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for dismissal with prejudice, but otherwise remain unchanged.

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II. Procedural History

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Plaintiff Toy Terrell Smith is a state prisoner proceeding without counsel in this civil

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rights action brought under 42 U.S.C. § 1983. Terrell alleges that defendants J. Torres and

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M. Hoggard, both correctional counselors at California State Prison Corcoran, were

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deliberately indifferent to his safety and so violated the Eighth Amendment by recommending

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that he be returned to Kern Valley State Prison. See ECF No. 10 at 13. On February 15, 2019,

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Torres and Hoggard moved for summary judgment under Federal Rule of Civil Procedure 56,

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arguing that the move was not objectively dangerous, that the defendants were not subjectively

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indifferent to any danger, that Smith cannot establish causation, and that defendants Torres and

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Hoggard are entitled to qualified immunity. See ECF No. 69-2 at 1-2. Smith filed an

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opposition on May 13, 2019, and the defendants filed a reply on May 21. See ECF Nos. 73 and

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74.1
When Smith’s allegations are viewed in their most favorable light, they fail to show that

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the decision to move him to Kern Valley State Prison posed an objective, substantial risk of

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serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (holding that an Eighth

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Amendment failure to protect claim must allege that there was “objectively” a “substantial risk

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of serious harm” to which defendant was indifferent). Because Smith’s speculative and

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general allegations do not satisfy the objective risk requirement, I do not reach defendants’

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alternate claimed bases for summary judgment.

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III. Factual Background

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In early 2016, Smith was an inmate at Corcoran State Prison. Defendant Torres

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approached Smith about placement at a different facility. ECF No. 73 at 2. Torres presented

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Smith with a list of prisons to which he might be transferred, but Smith “informed her that he

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was not interested in any of them because none of them were mental health care treatment

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facilities.” Id. Smith also gave Torres a two-page statement intended to inform the committee

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making the facility assignment. The committee, which included both Smith and Hoggard,

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recommended based on a variety of factors that Smith be sent to Kern Valley State Prison,

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where he was previously housed. Smith had been involved in a violent incident and riot at

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Kern Valley, see generally id. at 21 (“Exhibit B”), and did not want to be returned there.

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Smith appealed the committee’s decision and met with Hoggard concerning the appeal. Id. at

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As required by Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998), defendants gave
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to the motion for summary judgment. See ECF No. 69-1.
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4. Smith’s appeal was unsuccessful. He was transferred back to Kern Valley, where he was

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attacked.

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IV. Legal Standard
Summary judgment is appropriate when 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). A

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

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

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it “might affect the outcome of the suit under the governing law.” See id. at 248.

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The party seeking summary judgment bears the initial burden of demonstrating the

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absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325

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(1986). Once the moving party has met its burden, the non-moving party may not rest on the

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allegations or denials in its pleading, Anderson, 477 U.S. at 248, but “must come forward with

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‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co.,

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Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)).

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In making a summary judgment determination, a court “may not engage in credibility

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determinations or the weighing of evidence,” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

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2017) (citation omitted), and it must view the inferences drawn from the underlying facts in the

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light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654,

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655 (1962) (per curiam); Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002).

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As detailed below, defendants have met their burden of showing the absence of a genuine

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issue of material fact, and Smith has not shown that there is an issue for trial.
V. Analysis
The Eighth Amendment of the United States Constitution protects prisoners against a

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prison official’s “deliberate indifference” to “a substantial risk of serious harm.” Farmer, 511

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U.S. at 828 (1994). “Deliberate indifference” has both an objective and subjective component:

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there must be an objective risk to inmate safety, and the official in question must also “draw

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the inference” that the risk exists and disregard it. Id. at 837; see also Clement v. Gomez, 298

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F.3d 898, 904 (9th Cir. 2002) (describing subjective and objective components). For a risk to

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be objectively “substantial” it must be more than merely possible, since prisons are, “by

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definition,” institutions “of involuntary confinement of persons who have a demonstrated

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proclivity for anti-social criminal, and often violent, conduct.” Hudson v. Palmer, 468 U.S.

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517, 526 (1984); see also Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (noting that

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the “known risk of injury must be a strong likelihood, rather than a mere possibility before a

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guard’s failure to act can constitute deliberate indifference” (internal quotation marks

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omitted)). For this reason, “speculative and generalized fears of harm at the hands of other

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prisoners do not rise to a sufficiently substantial risk of serious harm.” Williams v. Wood, 223

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F. App’x 670, 671 (9th Cir. 2007).

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Even when viewed in their most favorable light, Smith’s allegations do not show that

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being moved to Kern Valley created a substantial risk of serious harm. While his statement to

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the corrections committee mentioned the past riot at Kern Valley, it mentioned no specific

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threats that would attend to his being housed there in the future. See ECF No. 73 at 19-20; see

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also Cal. Code Regs., tit. 15 § 3378(b)(2) (“Any offender who claims enemies shall provide

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sufficient information to positively identify the claimed enemy.”). Smith’s statement also

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mentioned several other violent encounters at other facilities involving Smith—all of which

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were mentioned not for the purpose of showing that a move to Kern Valley would be

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substantially dangerous, but that Smith was repeatedly “set up for harm if not death” by the

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system more generally, and that all Muslims (like Smith) were mistreated by the California

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Department of Corrections and Rehabilitation. Id. An incident report on the Kern Valley riot

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likewise raised no specific and substantial risks that would attend to transferring Smith to a part

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of the Kern Valley facility where Smith had no documented enemies. See generally id. at 21

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(“Exhibit B”). Smith’s claims about the move—fears that many prisoners might unfortunately

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face—are too “speculative and generalized” to amount to a substantial risk of serious harm or

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preclude summary judgment in defendants’ favor. Williams, 223 F. App’x at 671; see also

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Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1161 (9th Cir. 2013) (“The record, viewed

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objectively and subjectively, is insufficient to preclude summary judgment on the claim that

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. . . officials were deliberately indifferent to a substantial risk that” one prisoner would assault

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another, since the two prisoners in question “had been in general population together for an

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extended period with no record of any threats or problems between them.”). While reasonable

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minds might disagree over the best place to house Smith, a mere difference of opinion does not

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create a substantial risk. Cf. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).

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VI. Findings and Recommendations

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For the foregoing reasons, I recommend that:

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1. The court grant in full defendant’s motion for summary judgment, ECF No. 69.

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2. This case be dismissed with prejudice.

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These findings and recommendations are submitted to the U.S. district judge presiding

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over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the

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service of the findings and recommendations, the parties may file written objections to the

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findings and recommendations with the court and serve a copy on all parties. That document

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must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

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presiding district judge will then review the findings and recommendations under 28 U.S.C.

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§ 636(b)(1)(C).

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IT IS SO ORDERED.

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Dated:

August 29, 2019

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UNITED STATES MAGISTRATE JUDGE

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No. 205

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