Eichler v. Sherbin, et al

Filing 283

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 08/18/11 recommending that the 1/14/11 motion fo defendants Sherburn and Lebeck for summary judgment be granted. Motion for Summary Judgment 209 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DWAYNE EICHLER,

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Plaintiff,

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vs.
CDC OFFICER SHERBURN, et al.,

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No. 2:04-cv-1108 GEB JFM (PC)

Defendants.

FINDINGS & RECOMMENDATIONS

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. §1983. This action is proceeding on claims raised in plaintiff’s third amended

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complaint, filed July 14, 2005, against defendants Mercy Hospital of Folsom (Mercy) and

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California Department of Corrections and Rehabilitation (CDCR) Correctional Officers

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Sherburn1 and Lebeck (Sherburn and Lebeck). By separate orders, summary judgment was

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entered in favor of Mercy and denied to Sherburn and Lebeck. See Orders filed October 26,

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2006 (Mercy) and November 1, 2006 (Sherburn and Lebeck).

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Defendant Sherburn is sometimes identified in the record as Correctional Officer
Sherbin. It appears that the correct spelling of said defendant’s name is Sherburn. See Ex. B to
Defendants’ Statement of Undisputed Facts, Declaration of D. Sherburn in Support of
Defendants Motion for Summary Judgment, filed January 14, 2011.
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On November 21, 2006, plaintiff filed a notice of interlocutory appeal from

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several orders in this action. On November 29, 2006, defendants Sherburn and Lebeck filed an

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interlocutory appeal from the order denying summary judgment on the ground of qualified

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immunity. By order filed December 14, 2006, this action was stayed pending resolution of those

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interlocutory appeals.2 By order filed June 23, 2008, the United States Court of Appeals for the

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Ninth Circuit resolved the interlocutory appeal filed by defendants Sherburn and Lebeck,

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affirming in part and vacating in part the denial of summary judgment, and remanding the matter

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for further consideration of the defense of qualified immunity. After intervening proceedings, on

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January 14, 2011, defendants Sherburn and Lebeck filed a motion for summary judgment, which

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is presently before the court. On March 1, 2011, plaintiff filed an opposition to the motion for

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summary judgment together with statements of disputed and undisputed facts, and on June 29,

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2011, defendants filed a reply brief and objections to plaintiff’s opposition.3

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SUMMARY JUDGMENT STANDARDS UNDER RULE 56

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Summary judgment is appropriate when it is demonstrated that there exists “no

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genuine issue as to any material fact and that the moving party is entitled to a judgment as a

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matter of law.” Fed. R. Civ. P. 56(c).

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Under summary judgment practice, the moving party

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always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,” which it believes
demonstrate the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the

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nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary

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Plaintiff’s appeal was dismissed on January 19, 2007.

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After defendants Sherburn and Lebeck filed their motion for summary judgment, the
court appointed counsel to represent plaintiff in this matter. Plaintiff subsequently moved to
relieve his counsel and counsel moved to withdraw; the latter motion was granted by order filed
June 21, 2011.
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judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers

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to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered,

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after adequate time for discovery and upon motion, against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party’s case, and on which that

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party will bear the burden of proof at trial. See id. at 322. “[A] complete failure of proof

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concerning an essential element of the nonmoving party’s case necessarily renders all other facts

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immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as

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whatever is before the district court demonstrates that the standard for entry of summary

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judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323.

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If the moving party meets its initial responsibility, the burden then shifts to the

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opposing party to establish that a genuine issue as to any material fact actually does exist. See

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

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establish the existence of this factual dispute, the opposing party may not rely upon the

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allegations or denials of its pleadings but is required to tender evidence of specific facts in the

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form of affidavits, and/or admissible discovery material, in support of its contention that the

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dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party

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must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome

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of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

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1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433,

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1436 (9th Cir. 1987).

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In the endeavor to establish the existence of a factual dispute, the opposing party

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need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

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claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

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versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary
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judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a

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genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory

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committee’s note on 1963 amendments).

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In resolving the summary judgment motion, the court examines the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

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any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson,

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477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the

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court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587.

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Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to

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produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen

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Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.

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1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply

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show that there is some metaphysical doubt as to the material facts . . . . Where the record taken

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as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

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‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

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On October 22, 2004, the court advised plaintiff of the requirements for opposing

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a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154

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F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v.

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Eikenberry, 849 F.2d 409 (9th Cir. 1988).

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ANALYSIS

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This action is proceeding on claims raised in plaintiff’s third amended complaint,

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filed July 14, 2005. The claims arise from an incident at California State Prison-Sacramento on

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June 1, 2003 when plaintiff was slashed by another inmate with an inmate-manufactured weapon.

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Plaintiff alleges that defendants Sherburn and Lebeck violated his rights under the Eighth

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Amendment by acting with deliberate indifference to plaintiff’s safety. Plaintiff also raises a

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state law negligence claim against these two defendants.
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As noted above, on November 1, 2006, a summary judgment motion filed by

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defendants Sherburn and Lebeck was denied by the district court. By order filed June 23, 2008,

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the United States Court of Appeals for the Ninth Circuit remanded the matter for further

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consideration of the defense of qualified immunity. Following a second order remanding claim

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against Mercy Hospital, the court of appeals directed the court to reconsider whether to exercise

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supplemental jurisdiction over plaintiff’s state law claims, see Eichler v. Sherbin, No. 08-16404,

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slip op. at 5 (9th Cir. 2010), and this court subsequently issued an order that provided, inter alia,

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that this action would proceed on plaintiff’s state law negligence claim. See Order filed July 21,

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2010 at 2. By the instant motion, defendants Sherburn and Lebeck seek summary judgment on

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the merits of plaintiff’s Eighth Amendment and negligence claims, contending that their acts or

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omissions were not the proximate cause of plaintiff’s injuries. Defendants also seek summary

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judgment on plaintiff’s Eighth Amendment claim on the ground of qualified immunity.

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I. Undisputed Facts

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On June 1, 2003, plaintiff was incarcerated at California State Prison-Sacramento

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(CSP-Sacramento). Defendants Sherburn and Lebeck were correctional officers both stationed at

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CSP-Sacramento. Defendants Sherburn and Lebeck were supervising plaintiff’s housing unit on

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June 1, 2003.

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Plaintiff was housed in building B-3. Building B-3 is split into three wedges,

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which are called A, B and C blocks. Each of these housing units are divided by walls. There is a

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control booth in the middle of building B-3. The control booth is located on the second floor of

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the building. This position provides the control booth operator an unobstructed view of all the

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cells in the building.

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On June 1, 2003, CSP-Sacramento was on a lockdown. Because of the lockdown,

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most of the inmates in B-3 were confined to their cells. During the lockdown, B-3 was searched

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for weapons. Approximately three days before June 1, 2003, plaintiff was allowed out of his cell

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to resume some aspects of his job as a porter. Ex. F to Defendants’ Motion for Summary
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Judgment, Deposition of Dwayne Eichler (Pl.’s Dep.) at 18:17-19:1. This release was pursuant

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to a “phased unlock” pursuant to which some inmates were preapproved to be released from the

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lockdown to return to work. Ex. C to Defendants’ Motion for Summary Judgment, Declaration

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of Steve Vance in Support of Motion for Summary Judgment (Vance Declaration), at ¶ 5.

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On May 27, 2003, Correctional Captain Steve Vance wrote a memorandum

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setting forth guidelines for the phased unlock of CSP-Sacramento. Id. at ¶ 7. The memorandum

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required escorts for all Level IV White, Black, and Southern Hispanic inmates. Ex. D to

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Defendants’ Motion for Summary Judgment. The memorandum further provided for approved

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workers to resume work on May 28, 2003. Id. The memorandum did not require porters to be

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escorted. Vance Declaration at ¶ ¶8-10. The “Escorts” section of the memorandum did not

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apply to inmate workers. Id. at ¶¶10-11.

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On June 1, 2003, defendant Lebeck was supervising the inmates in B-3 from the

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control booth. Officer Bristow and defendant Sherburn were supervising inmates on the floor of

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B-3. Plaintiff and approximately five other porters were released to collect food trays in B-3.

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At some point when plaintiff was working in A block, defendant Sherburn

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indicated that he was going to leave the floor. Plaintiff told defendant Sherburn that he didn’t

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believe porters should be left alone during the lockdown because of the ongoing problems with

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violence in the prison. Pl.’s Dep. 19:12-23:14. Plaintiff did not, however, actually expect that he

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would be slashed. Id. at 23:14-16. During the conversation, defendant Sherburn said to plaintiff,

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“Well, look, don’t pick the trays up till I get back.” Id. at 24:8-9. Plaintiff stated that they would

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wait for some period of time, and defendants Sherburn and Lebeck both agreed that if defendant

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Sherburn was not back plaintiff and the other porters should go ahead and pick up the trays. Id.

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at 25:5-24. He subsequently had a similar conversation with defendant Lebeck about picking up

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trays with only one other inmate porter. Id. at 28:7-29:8.

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Inmates Austin and Gates occupied cell 211 in A block. Id. at 30:5-11. Plaintiff
approached cell 211, and as he picked up their trays Austin started screaming. Id. at 31:2-5.
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Austin’s conduct upset plaintiff, and plaintiff “grabbed their trays and set them down in front of

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their cell.” Id. at 31:18-23, 33:20-24. Plaintiff returned to his cell to “cool off” and wash his

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face. Id. at 34:24-35:10. Subsequently, plaintiff again approached cell 211. Id. at 35:21. After

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briefly speaking with Gates, plaintiff walked back toward his cell. Id. 36:1-37:6. Subsequently,

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plaintiff returned one more time to area of cell 211. Id. at 57:11. He started to walk away again,

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but Austin persuaded plaintiff to come back to cell 211. Id. at 57:24. Plaintiff was talking with

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Austin through the food port when, without any warning, Austin slashed plaintiff with an inmate-

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manufactured weapon. Id. at 60:18-24. Plaintiff had not seen anything so fast in his life. Id.

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Defendant Lebeck did not know plaintiff was having any conflict with inmates

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Austin and Gates, and plaintiff did not tell him. Id. at 48:18-22. Sherburn did not know either.

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See id. at 49:18-50:7.

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II. Defendants’ Motion

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A. Eighth Amendment Claim
Defendants seek summary judgment on plaintiff’s Eighth Amendment claim on

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two grounds. First, defendants contend that they were not deliberately indifferent to any known

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risk of harm to plaintiff, and none of their acts or omissions were the proximate cause of

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plaintiff’s injuries. Second, defendants contend they are entitled to qualified immunity.

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The Court of Appeals’ order remanding this matter for consideration of the
defense of qualified immunity provides in relevant part:

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Legal Standard

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In Saucier v. Katz, 533 U.S. 194 (2001), the United States
Supreme Court set forth a two-part test for qualified immunity. Id.
at 201. First, a court must consider whether, based on the facts
alleged in the light most favorable to the plaintiff, the officers
violated a constitutional right. Id. If no constitutional right was
violated, then there is no further inquiry. Id. Second, if a right was
potentially violated, the court must consider whether the right at
issue was clearly established. Id.

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Discussion
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As to the first part of the Saucier analysis, we affirm the
district court’s determination that genuine issues of material fact
preclude entry of summary judgment on whether Appellants’
conduct violated the Eighth Amendment. Whether Appellants
acted with deliberate indifference by failing to escort Eichler
during the prison lockdown is a question of fact. The district court,
in adopting the findings and recommendations of the magistrate
judge, correctly pointed out that the safety concerns that were the
basis for the lockdown and the escort policy that Appellants did not
follow may support an inference that Appellants acted with
deliberate indifference to a substantial risk that Eichler would be
harmed. See Farmer v. Brennan, 511 U.S. 825, 835 (1994) (stating
that a prison official cannot be liable for failing to protect one
inmate from another unless the official acted with deliberate
indifference to a substantial risk that the inmate would be harmed).
Because this inference and the disputed facts are sufficient on this
record for a reasonable jury to conclude that Appellants violated
Eichler’s Eighth Amendment rights, we must proceed to the second
part of the Saucier analysis.

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To determine whether the right allegedly violated was
“clearly established,” the court must determine, in light of the
specific context of the case, “whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 202. “If the law did not put the
officer on notice that his conduct would be clearly unlawful,
summary judgment based on qualified immunity is appropriate.”
Id. This would be true even if Appellants actually violated
Eichler’s Eighth Amendment rights. Hope v. Pelzer, 536 U.S. 730,
739 (2002). By contrast, where “courts have agreed that certain
conduct is a constitutional violation under facts not distinguishable
in a fair way from the facts presented in the case at hand,” the
officers are not entitled to summary judgment on qualified
immunity. Saucier, 533 U.S. at 202.

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. . . . The particularized inquiry required here is whether
Appellants violated a clearly established constitutional right by
failing to escort Eichler while he was out of his cell during the
prison lockdown. The district court did not consider this issue, but
instead concluded that summary judgment on qualified immunity
was inappropriate because a reasonable jury could conclude that
Appellants had violated Eichler’s Eighth Amendment rights.

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Accordingly, we must remand for the district court to
determine whether there existed any analogous facts, circumstance
or authority for the proposition that, under the specific
circumstances of this case, Appellants should reasonably have
known they were violating Eichler’s constitutional rights. See

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Hope, 536 U.S. at 739 (holding that the unlawfulness of a clearly
established right must be apparent from existing authorities).

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Order filed June 23, 2008, at 2-5.

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In Estate of Ford v. Palmer, 301 F.3d 1043 (9th Cir. 2002), the United States

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described the appropriate inquiry for determining whether a rule of law is “clearly established”

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for purposes of qualified immunity:

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[T]he Court has emphasized that determining whether the law
was clearly established “must be undertaken in light of the specific
context of the case, not as a broad general proposition.” Saucier,
533 U.S. at 201. Therefore, it is not sufficient that Farmer [v.
Brennan] clearly states the general rule that prison officials cannot
deliberately disregard a substantial risk of serious harm to an
inmate; here, in addition, it is relevant that neither Farmer nor
subsequent authorities has fleshed out “at what point a risk of
inmate assault becomes sufficiently substantial for Eighth
Amendment purposes.” Farmer, 511 U.S. at 834 n. 3; cf. Helling v.
McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22
(1993) (indicating in second-hand smoke case that a risk is
intolerable under the Eighth Amendment when it violates
contemporary standards of decency to expose anyone unwillingly
to it).

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Estate of Ford, at 1050-51. The appropriate inquiry here is whether it would have been clear to a

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reasonable correctional officer in defendants’ position that plaintiff faced a substantial risk of

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serious harm if left to collect food trays with one inmate porter but no correctional officer

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supervision. Under the undisputed facts of this case, this court finds that the answer to that

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question is no.

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At the time of the incident at bar CSP-Solano was on a phased unlock pursuant to

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which some inmate workers, including plaintiff, were preapproved to resume working on the

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tiers. The rest of the inmates, including Austin, were locked in their cells, and all the cells had

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recently been searched for weapons. While plaintiff expressed general concern about violence to

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defendants Sherburn and Lebeck, he also stated that he could and would resume picking up food

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trays if defendant Sherburn did not return after a certain period of time. Plaintiff did not inform

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either defendant Sherburn or defendant Lebeck of any concern for his safety arising from his
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encounters with inmates Austin and Gates after he picked up the food trays at cell 211. Perhaps

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most importantly, plaintiff was not assaulted while picking up the food trays at cell 211. Rather,

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he returned to the cell twice after he had retrieved the trays and was assaulted the second time he

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returned to the cell.

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For the foregoing reasons, this court finds that it would not have been clear to a

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reasonable correctional officer in defendant Sherburn or Lebeck’s position that plaintiff faced a

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substantial risk of harm from being left with one other inmate to complete his porter duties.

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Accordingly, defendants Lebeck and Sherbin are entitled to qualified immunity from liability on

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plaintiff’s Eighth Amendment claim.

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B. Negligence

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Defendants also seek summary judgment on plaintiff’s negligence claim on the

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ground that Austin’s assault on plaintiff was an independent act that was not reasonably

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foreseeable to either defendant.

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“To establish liability in negligence, it is a fundamental
principle of tort law that there must be a legal duty owed to the
person injured and a breach of that duty which is the proximate
cause of the resulting injury.” Jacoves [v. United Merchandising
Corp.], 11 Cal.Rptr.2d [468] at 484 [(Cal.App.2nd Dist. 1992)].
Proximate cause “limits the defendant’s liability to those
foreseeable consequences that the defendant’s negligence was a
substantial factor in producing.” Mendoza v. City of Los Angeles,
66 Cal.App.4th 1333, 78 Cal.Rptr.2d 525, 530 (1998). Whether an
act is the proximate cause of injury is generally a question of fact;
it “is a question of law where the facts are uncontroverted and only
one deduction or inference may reasonably be drawn from those
facts.” Garman v. Magic Chef, Inc., 117 Cal.App.3d 634, 173
Cal.Rptr. 20, 22 (1981).

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Ileto v. Glock, Inc., 349 F.3d 1191, 1206 (9th Cir. 2003). Assuming arguendo that defendants

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breached a duty of care owed to plaintiff, the undisputed facts permit only one inference: that

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plaintiff’s decision to return to cell 211 twice under the circumstances he described was not a

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foreseeable consequence of defendant Sherburn and Lebeck’s decisions to leave the area where

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plaintiff was collecting food trays, and those decisions were not the proximate cause of plaintiff’s

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injury.

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For the foregoing reasons, this court finds that defendants are entitled to summary
judgment on plaintiff’s negligence claim.

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For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the
January 14, 2011 motion of defendants Sherburn and Lebeck for summary judgment be granted.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 95 1 F.2d 1153 (9th Cir. 1991).

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DATED: August 8, 2011.

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