Perez v. Sisto et al

Filing 78

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 07/20/10 ORDERING plaintiff's motion for sanctions filed on 12/29/09 69 is denied. Plaintiff's motion for clarification, filed on 12/30/09 70 prima rily construed as a motion for his belatedly received objections to the 08/25/09 findings and recommendations to be considered following adoption of those findings and recommendations by order filed on 11/06/09 is denied. Plaintiff's motion to treat defendants' failure to file an opposition to plaintiff's motion for sanctions as non-opposition filed on 04/05/10 72 is denied. Also, RECOMMENDING that defendants' motion for summary judgment, filed on 10/07/09 61 be denied in part and granted in part: 1. As to defendant Williams, Denied as to plaintff's claim that Williams violated the 8th Amendment when she arguably helped precipitate an inmate attack upon plaintiff by allegedly yelling in full hearing of other i nmates that plaintiff was trying to interfere with their housing but granted as to any other claim against defendant Williams. 2. Granted as to defendant Lozano. 3 Denied as to plaintiff's claim of excessive force during his escort against defen dants Cantu and Cortez. 4. Granted as to any other claims against defendant Cortez. 5. This matter proceed to trial only, as identified specifically above, on the failure to protect claim against defendant Williams and the excessive force claim against defendants Cantu and Cortez. MOTION for SUMMARY JUDGMENT 61 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

(PC) Perez v. Lozano, et al

Doc. 78

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Introduction/Background Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment, filed on October 7, 2009 (docket # 61), by defendants Lozano, Cantu, Cortez and Williams, to which plaintiff filed his opposition on November 3, 2009 (docket # 65), along with a copy of defendants' interrogatory responses (docket # 66), after which defendants filed their reply on November 10, 2009 (docket # 68). Also pending are three motions by plaintiff: (1) a motion for sanctions, filed on December 29, 2009 (docket # 69); (2) a motion for clarification, filed on December 30, 2009 (docket # 70); and (3) a motion to treat defendants' failure to oppose the motion for sanctions as non-opposition to that motion, filed on April 5, 2010 (docket # 72). Court records indicate that this action originated on September 14, 2006, in the 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JOSE MANUEL PEREZ, Plaintiff, vs. D.K. SISTO, et al., Defendants. / ORDER & FINDINGS AND RECOMMENDATIONS No. CIV S-06-2090 MCE GGH P

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Northern District, from which it was transferred by order filed in this court on September 20, 2006 (docket # 1). Following this court's order, filed on April 6, 2007 (docket # 5), dismissing the vast majority of the defendants named in the original complaint, but granting plaintiff leave to amend, plaintiff filed an amended complaint on May 4, 2007 (docket # 7). The court found that plaintiff had made cognizable claims in the amended complaint as to defendants Lieutenant (Lt.) Lozano; Lt. B.C. Roszko; Lt. Sandy; Sergeant (Sgt.) Orrick; Sgt. Flete; Sgt. Durfey; Sgt. C.L. Williams; Correctional Officer (C/O) Cantu; and C/O Cortez. See order, filed on October 23, 2007 (docket # 9). Subsequently, by order filed on February 19, 2009 (docket # 38),1 the motion to dismiss filed by defendants Durfey, Flete, Orrick, Roszko, and Sandy was granted; these defendants were dismissed, and the matter was to proceed only as to the previously answering defendants. Thus, the matter proceeded at that point only as to defendants Cantu, Cortez and Williams. Thereafter, however, following the court's show cause order why defendant Lozano should not be found in default (see order, filed on January 8, 2009 (docket # 30)), the court in a January 26, 2009, order (docket # 32), found Lozano's response discharged the show cause order and determined that defendant not to be in default; the court also deemed defendant Lozano's answer filed as of January 26, 2009. Therefore, there are four defendants who remain and who bring the instant summary judgment motion: Lozano, Cantu, Cortez and Williams and only allegations related to those defendants remain at issue. Summary of Amended Complaint In the remaining allegations, plaintiff alleges violations of his rights under the Eighth Amendment for defendants' failure to protect him, for inadequate medical care, and for the use of excessive force. Plaintiff, an inmate from Puerto Rico, alleges that defendant Williams repeatedly ignored his safety concerns about being housed with a self-identified Northern inmate

1

Adopting findings and recommendations, filed on January 8, 2009 (docket # 30). 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

from mid-October 2005, until February 2, 2006. In addition, defendant Williams, according to plaintiff, exacerbated the situation by yelling about his complaint at plaintiff in a manner that could be overheard by other inmates more than once. On February 2, 2006, defendant Williams yelled to the effect that plaintiff wanted to have black inmates moved from their cells, after which an inmate named Socorro approached him about what he had overheard and plaintiff was later attacked by this individual. Plaintiff was treated and reportedly had an elbow scrape. When plaintiff was in the holding cage with restraints, plaintiff complained of his pain and discomfort to defendant Cortez, who ignored plaintiff's requests to loosen the cuffs. After plaintiff began to kick his cage, the too-tight cuffs were removed. Defendant Cortez then ignored plaintiff's request to be taken to the clinic for a wrist injury from the handcuffs. When plaintiff began to kick the holding cage again for attention, defendant Lozano ran in and threatened plaintiff with a can of O.C. [pepper] spray, but refused plaintiff's request to be seen by medical. Fifteen minutes later, defendants Cortez and Cantu came and told plaintiff to "cuff up" for an escort to medical, but instead they led plaintiff to Ad Seg.2 When plaintiff stopped to ask why, defendants Cantu and Cortez took him down using excessive force from which plaintiff suffered injuries in addition to the previous wrist injury from the cuffs. Plaintiff seeks primarily money damages. Because his allegations against defendants Orrick and Flete have been dismissed, his limited reference to a form of injunctive relief having to do with constraining the future actions of these parties has been rendered moot. See Amended Complaint (AC), pp. 5, 8-17. Plaintiff's Motions Motion for Sanctions Plaintiff asks that defendants' motion for summary judgment be denied because plaintiff failed to be served timely with defendants' motion for a five-day extension of time to

2

Administrative Segregation. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

file their dispositive motion. Plaintiff maintains that he received a copy of the October 3, 2009, order granting defendants the additional five days to file their motion for summary judgment before he received any notice of the motion. Plaintiff states that he only received a copy of the motion after filing an ex parte letter to Judge England. The letter he references was docketed on October 13, 2009 (doc. # 64). Absent an express waiver of service, plaintiff is correct that the parties are obligated to serve documents they file upon all parties, including upon a pro se party. Local Rule 135(d) and (e); see also, Fed. R. Civ. P. 5. The copy of the motion plaintiff attaches to the instant motion, filed on December 29, 2009 (doc. # 69) as well as the original request itself, filed on September 25, 2009 (doc. # 59), contains a proof of service indicating that plaintiff was served with the request on September 25, 2009. Like most, if not all, such requests made by the Attorney General's Office, the supporting declaration states that as plaintiff is a pro se inmate, he cannot reasonably be contacted prior to making the request. Declaration of Rebecca Armstrong-Grau, Doc. # 59, ¶ 6. The request was the only extension of time sought for the filing of the summary judgment motion and was primarily based on a delay in locating a video-taped interview in support of the motion. See, id., ¶¶ 3, 5. In his motion for sanctions, plaintiff does not assert an objection predicated on the basis for the request, only contending that defendants should be sanctioned for failing to serve him with the request, an objection which is belied by the representation, under penalty of perjury, that he had, indeed, been properly and timely served. It is unknown why the document did not reach him sooner, but in any event, the court finds that plaintiff's not having received it timely, or even if it did not reach him at all at the prison until he filed a letter about it, does not constitute a basis for sanctioning the defendants by having their summary judgment motion summarily denied. This motion will be denied. Also denied is plaintiff's April 5, 2010 (doc. # 72), motion to treat defendants' failure to oppose his motion for sanctions as non-opposition to the motion. Motion for Clarification By this motion, plaintiff asserts that he did file objections to the August 25, 2009 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

(doc. # 53), findings and recommendations of the undersigned, recommending denial of plaintiff's motion, pursuant to Fed. R. Civ. P. 54(b), for the order dismissing several defendants to be certified as a final judgment for appeal, which was adopted by order, filed on Nov. 6, 2009. (doc. # 67). The November 6, 2009, order states that neither party filed objections, but plaintiff in the instant motion attaches a document which is entitled "objection to magistrate judge's findings and recommendations filed 8/25/09"; the attached filing also has a certificate of service indicating that it was filed/served on September 16, 2009. Unfortunately, there is no record in the docket of this case that those objections were ever filed, other than belatedly as attached to this motion for clarification. Within the attached objections that were not filed in this court when plaintiff insists that they were, plaintiff, inter alia, contends that defendant Lozano had failed to respond to his discovery requests. It is unclear in the filing if plaintiff is intending to say that Lozano had not filed discovery responses by September 16, 2009, or as of late December, 2009. The appropriate procedure if he was seeking discovery responses from defendant Lozano would be to bring a motion to compel discovery, not to bury his observation among the grievances he listed in his September 16, 2009, objections which the court did not receive timely, and which still do not appear as separately filed in the case docket. Nor does he ask the court therein to direct defendant Lozano to file responses to plaintiff's discovery requests, seeking rather that he be found to be in default for his failure to timely respond to the complaint as well as his failure to respond to discovery. However, plaintiff's focus in the objections was to be permitted to proceed on appeal as to the previously dismissed defendants. Moreover, at no point does plaintiff clarify when his discovery requests were served upon defendant Lozano. And, as noted above, the court had previously found defendant Lozano not to be in default. See also, discussion below regarding defendant Lozano. Construing plaintiff's motion for clarification primarily as a motion to be allowed to have his objections to the August 25, 2009 (doc. # 53), findings and recommendations which were only belatedly received almost two months after the order adopting 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

those findings and recommendations had been signed and filed, the motion is denied. Motion for Summary Judgment Defendants move for summary judgment as to all claims contending that no defendant violated plaintiff's constitutional rights, and they are entitled to qualified immunity because there was no constitutional right violated and defendants acted reasonably. Motion for Summary Judgment (MSJ), pp. 1-13. Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 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. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322, 106 S. Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S. Ct. at 2553. 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S. Ct. at 1356 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (citation omitted). On November 26, 2007 (doc.# 11), the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). Defendant Williams Plaintiff makes the following specific allegations relating to defendant Williams within his verified amended complaint. After being subjected to what he alleges was a "trump[ed] up" sexual harassment charge, plaintiff, a Viet Nam vet under psychiatric care was placed in Ad Seg in early September of 2005; on September 8, 2005, plaintiff was seen by the ICC3 committee and to be released to yard II, "the main line," pending approval; otherwise, he would go to yard I. AC, pp. 5, 8. While on yard I, plaintiff, who is from Puerto Rico and a 57-year-old with no gang affiliation, was housed with an inmate from Central America, also classified as "other." AC, p. 8. When plaintiff's cellmate was moved on October 3, 2005, plaintiff learned he was to be housed with a "Northern" inmate in Building 2, and he voiced his safety concerns but was only given the choice of moving in with the Northern inmate or going to Ad Seg, the latter of which he chose for safety reasons (alternatively, he was placed in Ad Seg for refusing to cell with the inmate). Id., at 9-10. Plaintiff alleges that inmates are housed according to their affiliation, thus,

3

Institutional Classification Committee. 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

a Northern Mexican is not housed with a Southern Mexican; therefore, he believes the planned cell assignment amounted to an Eighth Amendment violation for failure to protect. Id. On October 4, 2005,4 it was determined that plaintiff could be released to yard II; nevertheless, he was forced either to remain on yard I or go back to Ad Seg. AC, p. 10-11. From mid-October 2005, until February 2, 2006, plaintiff repeatedly spoke with defendant Williams asking her to rehouse him with another cellmate or send him back to yard II, which requests Williams ignored. AC, p. 11. In mid-January of 2006, when defendant Williams was asked by non-defendant Associate Warden Crawford, after plaintiff had spoken to her (Crawford) about his situation, Williams yelled at plaintiff: "What are you doing going over my head to the A.W. about this bullshit?" Id., at 11-12. When in response to her question, plaintiff gave defendant Williams the name of the cellmate about whom he was concerned, Duran T-63911, Williams became more upset, yelling in a voice other inmates could overhear: "Get out of here and quit dropping peoples[']names trying to fuck up their program." Id., at 12. On February 2, 2006, he approached defendant Williams again, asking that inmates be compacted to free up a cell, where there were four cells with one inmate only in each, so that he could be housed with someone else also designated "other." AC, p. 12. Defendant Williams became upset again, yelling: "So now you want to fuck the blacks out of their cell. Just for you." Id. Plaintiff noticed a number of black inmates looking at him at that point, and, later that day, Inmate Socorro, E-99222, approached him about what he had overheard defendant Williams saying about plaintiff trying to have black inmates moved from their cells, knocked plaintiff down and ran off. Id., at 12-13. As plaintiff waited for an unlock, he was again approached by Inmate Socorro, who had two other inmates with him. Id., at 13. Plaintiff was attacked by the inmates, or at least by Inmate Socorro, and C/O5 Henderson (not a defendant) saw

4

In his opposition, plaintiff identifies the date as Oct. 5, 2005. Opp. to MSJ, p. 4. Correctional Officer. 9

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

what was happening and put the yard down. Id. Plaintiff was taken to medical in handcuffs; he was reported to have an elbow scrape. Id. Plaintiff was placed in a 4x4x6 cage and, a few minutes later, escorted to be interviewed by non-defendant Lieutenant (Lt.) Herrera. AC, p. 13. After defendant Williams came in and whispered to Herrera, Herrera told plaintiff he had intended to release him back to the yard, but because of defendant Williams' information, plaintiff would be placed in Ad Seg for his safety. Id. Plaintiff was told by Lt. Herrera on February 8, 2006, that the information provided by defendant Williams about plaintiff's safety was not credible. Id., at 15. Defendants move for summary judgment as to defendant Williams, contending that to the extent that plaintiff claims entitlement to alternate housing, as a matter of law the claim fails because inmates have no constitutional right to housing in a particular prison or facility. MSJ, Docket # 61-1, pp. 2, 5-6. In addition, defendants argue that plaintiff cannot show that Williams failed to protect him from an inmate attack because he does not offer evidence she acted with sufficient culpability, that at most, there was only a mere suspicion of such an attack, and that she attempted to rehouse plaintiff. Id., at 2, 6-8. Eighth Amendment Legal Standard-Failure to Protect "`[P]rison officials have a duty...to protect prisoners from violence at the hands of other prisoners.'" Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 1976 (1994). "[A] prison official violates the Eighth Amendment when two requirements are met. First, the deprivation alleged must be, objectively, `sufficiently serious'.... For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. at 834, 114 S.Ct. at 1977. Second, "[t]o violate the Cruel and Unusual Punishments Clause, a prison official must have a `sufficiently culpable state of mind' ... [T]hat state of mind is one of `deliberate indifference' to inmate health or safety." Id. The prison official will be liable only if "the official knows of and disregards an excessive risk to inmate health and safety; the officials must both be aware of facts from which 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837, 114 S.Ct. at 1979. It is undisputed that plaintiff alleges that defendant Williams, as well as the other defendants, violated his Eighth Amendment rights. Because plaintiff does not take issue with the following, and the evidence cited by defendants supports these facts, at least as they are framed by the undersigned, the court finds it undisputed that plaintiff admits that much of his safety concerns stem from his "case factor" as a sex offender, which puts his "life in danger every day"6; that defendant Williams does not recall that plaintiff ever provided her with the necessary documentation for a bed move or for a cellmate reassignment; that although she is not responsible for making the racial or ethnic classifications, defendant Williams believed plaintiff's cellmate assignment was safe and appropriate; and that plaintiff sustained a scrape to his elbow following the incident involving Inmate Socorro. Plaintiff does not attempt to take issue within his PDF with DUF # 9 that although it could take some time, defendant Williams told plaintiff that if he could find a compatible cellmate of his choosing, and submit the chrono for approval, she would approve the bed move if it was an appropriate cellmate assignment. MSJ DUF Williams' Dec., Doc. # 61-2, p. 3, citing ¶¶ 5, 10 and plaintiff's Dep. 45:1-15; 46:12-25-47:1-3. Although it should not be the court's burden to ferret out support for disputing defendants' undisputed facts when plaintiff does not identify such evidence clearly and appropriately,7 the undersigned finds that the record shows plaintiff testified at his deposition that when he told defendant Williams that he had found a Plaintiff admits as much when, in attempting to dispute another DUF, he states that defendant Williams knew or should have known, as a seasoned C/O, of the threat to inmates arising from case factors and that inmates classed as "Northern" are known for assaulting inmates with plaintiff's case factors. Opp., plaintiff's disputed facts (PDF), Doc. # 65-3, p. 3. It is unclear to the undersigned what rules of procedure on summary judgment are applicable to litigants appearing pro se. See Richardson v. Runnels, 594 F.3d 666 (9th Cir. 2010), a case in which the pro se plaintiff not only failed to supply documents required by the local rules, but more importantly, failed to tender any evidence on the facts he desired to controvert. However, these deficiencies were not important to the Richardson court. 11
7 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

compatible cellmate, she told him more than once that no cells were available. Plaintiff's Dep.: 47:15-19, 48:8-24. He also sets forth in his declaration that "[t]he only time Sgt. Williams ask[ed] [him] to submit a cell change slip was in mid-January of 2006 and when I did submit one no cell change took place." Opp., plaintiff's Dec., Doc. # 65-2, ¶ 6. On the other hand, defendant Williams also, according to plaintiff, when he approached her about changing cells alternated between "blow[ing up" and saying "Look, you know, find yourself a cell partner, you know, and find who you are compatible with, and we'll see what we can do...." Plaintiff's Dep.: 49: 3-8. Plaintiff attempts to take issue with other of the undisputed facts defendants (DUF) set forth with regard to plaintiff's claim against her. Plaintiff does not actually dispute DUF # 2, wherein it is stated that plaintiff claims that defendant Williams violated his rights under the Eighth Amendment by failing to provide him with a bed move, and by having yelled statements at him regarding his request to displace black inmates from their assigned cell but seeks to make clear that his claim is one for failure to protect him when he sought to have himself reassigned another cellmate. Defendants DUF # 2, Doc. # 61-2, citing AC, ¶ 6, Plaintiff's Opp., plaintiff's disputed facts (PDF), Doc. # 65-3, p. 2, citing AC, p. 3f:17-20. As to DUF # 7, plaintiff does not dispute that he had three or four conversations with defendant Williams between October, 2005, and February, 2006. Nor does he dispute that his assigned cellmate stated he was a "Northerner," while he, plaintiff, was classified as an "Other." However, he takes issue with the characterization that his request for a bed move was because he was "uncomfortable" with his assigned cellmate, asserting that more than feeling simply uncomfortable that he was "fearing for [his] life." Opp. PDF, Doc. # 65-3, p. 2; see also, Doc. # 65-1, p. 8. Both defendants and plaintiff cite portions of plaintiff's deposition in support of their characterizations. Defendants cite plaintiff's Dep.: 43: 7-25, 44: 12-25; plaintiff's cites his Dep. 39:11-25, 40:12-23, 41, 44:1425. It appears that plaintiff in describing what he conveyed to defendant Williams used both terms, e.g. "I kept telling her that I didn't feel safe in there. That I was not comfortable being in there with this guy. He's a Northerner." Plaintiff's Dep.44:15-17. Plaintiff's point is that use of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

the word "uncomfortable" diminishes the sense of urgency or fear he apparently felt and tried to convey (whether the fear was justified or not). In essence, however, DUF #7 is essentially undisputed. Interestingly, at DUF # 8, defendants only cite defendant Williams' declaration in support of their assertion that during conversations with plaintiff, she assured him that his cellmate shared his same classification, which was "Other." Doc. # 61-2, p. 2, citing Declaration of C. Williams (Williams Dec.), Doc. # 61-7, ¶ 5. Plaintiff, in attempting to dispute this assertion, states that defendant Williams never told him that the inmate at issue, named Duran, was classified as an "Other," and that other than her declaration, there is no evidence to support her claim and no written documentation is provided in support of it. Doc. # 65-3, p. 2. Although not noted by defendants, however, plaintiff's contention is undermined by his own deposition testimony. Describing his conversations with defendant Williams, plaintiff states: But I continuously from October, after I was put on their Ad Seg, I asked her if I could get moved out of that cell because I was housed with Duran. Apparently, she knew Duran because she kept saying, "Oh, no he's an `Other.' He's fine." I said, "no, he isn't. We are having problems. I don't feel safe in there. I would like to get moved out of there." Plaintiff's Dep. 39:18-24.

17 18 19 20 21 22 23 24 25 26 Id., 44:21-25. The court, therefore, finds it undisputed that, whether true or not, defendant Williams did tell plaintiff that Inmate Duran was classified as an "Other." Plaintiff attempts to dispute that DUF # 10, which sets forth that beyond his general feelings of discomfort with his cellmate at the time, plaintiff never informed defendant Williams of a specific threat to his personal safety, it is at this point that plaintiff makes his argument that defendant Williams should have known he was at risk due to his case factors and being housed with a "Northerner." 13 "I told her him and I aren't clicking. I didn't think we were compatible. Even though she kept saying he's a Northerner ­ I mean, he's an "Other," the guy is not an "Other," he's a Northener. You know what I mean? And I wanted out of there.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

MSJ DUF, Doc. # 61-2, citing Williams Dec., Doc. # 61-7 ¶ 6; see also footnote 6. This statement does not really counter defendants' undisputed fact as framed. Plaintiff produces no substantive evidence in his opposition that Inmate Duran ever threatened him directly or indirectly by any action he took or even in speaking to him. Defendant Williams denies any knowledge of plaintiff's case factors as not relevant to her job duties in her response to plaintiff's interrogatories. Opp., Doc. # 66, pp. 59-60. Plaintiff finds this response inherently not credible based on her alleged relationship with defendants who have been dismissed. In DUF # 14, it is stated that on February 2, 2006, plaintiff was involved in a physical altercation with an inmate that was not his cellmate. MSJ DUF, Doc. # 61-2, p. 3, citing AC ¶ 6. Plaintiff disputes the description of his encounter with Inmate Socorro as a physical altercation between them, maintaining that all along he has claimed that he was attacked/assaulted by this inmate. Opp., PDF, Doc. # 65-3, p. 3. Reference to his verified amended complaint, cited by defendants in support of this assertion, reveals that plaintiff first alleges that Socorro argued with him about what he had overheard defendant Williams shout at plaintiff concerning inconveniencing black inmates, then hit plaintiff knocking him to the ground. AC, p. 13 (¶ 6). Thereafter, after first running off, he returned with two other inmates, challenging plaintiff to a fight. Id. at 14. When plaintiff tried to walk away, Socorro told him to follow him to the front of the building and when plaintiff did, he "was forced to defend [him]self" from an attack by the inmates, after which a C/O Henderson put the yard down. Id. Plaintiff was cuffed up and taken to medical for a CDC 7210 medical report, which indicated he had sustained a scrape to the elbow. Id. What remains wholly undisputed is that the incident did not involve the cellmate about which plaintiff was so concerned. As to whether the incident is described as a physical altercation or an attack on plaintiff, defendant does not provide any evidence that plaintiff in any way incited the incident, thus plaintiff has raised a genuine issue of material fact as to whether or not the incident took place solely as a result of whether or not yelling by defendant Williams that plaintiff was trying, solely for his own convenience, seeking 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

to disturb cell arrangements for the African American inmates. Of course, defendant Williams denies this, declaring that the February 2006, conversation she had with plaintiff did not involve any yelling or intent to jeopardize his safety and that all she did was provide him with the instructions necessary to obtain a bed move and that she would do what she could to facilitate such a move. MSJ, Opp. Williams Dec., Doc. # 61-7, ¶ 10. Both parties make their assertions under oath. It is not for this court to make a credibility determination on a motion for summary judgment. Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005)("[I]t is axiomatic that disputes about material facts and credibility determinations must be resolved at trial, not on summary judgment.") [internal citation omitted]. To the extent that plaintiff alleges that defendant Williams put him at risk by failing to provide him with another cellmate assignment, or even to facilitate a re-assignment after plaintiff had, according to him, located a new and compatible cellmate, plaintiff does not raise a genuine material issue of fact. Defendants are correct that plaintiff does not have a constitutional right to demand particular housing. MSJ, Doc. # 61-1, p. 5. Generally, prison officials' housing and classification decisions do not give rise to federal constitutional claims. See Board of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701 (1972). Nor does the Constitution guarantee a prisoner placement in a particular prison or protect an inmate against being transferred from one institution to another. Meachum v. Fano, 427 U.S. 215, 223-225, 96 S. Ct. 2532, 2538 (1976); see Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.1985) (prison authorities may change a prisoner's "place of confinement even though the degree of confinement may be different and prison life may be more disagreeable in one institution than in another" without violating the prisoner's due process rights). In support of plaintiff's allegations that defendant Williams subjected him to an excessive risk of harm by failing to facilitate a cellmate reassignment, whether because Inmate Duran identified himself as a Northerner and/or because plaintiff had a case factor that put him at risk, plaintiff does not produce evidence in his opposition beyond his own expressed anxiety that 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

demonstrates that the particular inmate assigned to his cell posed a real threat to him. Plaintiff does not produce evidence that the cellmate, even assuming he was a "Northerner," rather than, like plaintiff, an "Other," confronted, threatened, or harmed him. It is also odd, if plaintiff means to emphasize that he was at risk with his then current housing, why plaintiff attempts to belie defendant Williams' credibility by alleging in his verified amended complaint that Lt. Herrera, on February 8, 2006, told him that the information provided by defendant Williams about plaintiff's safety was not credible, i.e., resulting in his subsequent Ad Seg placement. AC, p. 15. He also states in his deposition that he was speculating but assumed that the information came from defendant Williams that plaintiff's life was in danger on the yard. Plaintiff's Dep. 53:13-17. Perhaps this concern was more applicable to what happened during the Feb. 2, 2006, incident (see immediately below). Whether plaintiff's concern about this inmate was legitimate or not, he does not sufficiently substantiate it to survive summary judgment as to this claim. However, to the extent that defendant Williams is alleged to have placed plaintiff at risk by yelling to him, in front of African American inmates, that plaintiff, a Puerto Rican inmate, was asking for something that could particularly cause black inmates to be significantly inconvenienced, leading to a violent, if limited, incident does implicate the Eighth Amendment. As noted earlier, on this motion for summary judgment, all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. Defendants incorrectly contend that plaintiff must show that defendant Williams made the statement knowingly and for the very purpose of causing harm to plaintiff, assuming the accuracy of plaintiff's allegation that Williams yelled (within the hearing of African American inmates)8: "So now you want to fuck the blacks out of

In his deposition testimony, uncited by any party, it appears that plaintiff believes that Inmate Socorro, who plaintiff states is classified, like himself, as an "Other," was a member of his own ethnic group acting on behalf of those who had overheard defendant Williams yelling about plaintiff trying to disturb other inmates' housing and also as a result of Inmate Duran apparently expressing dissatisfaction about being housed with plaintiff. Plaintiff's Dep.: pp. 27-35. 16

8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

their cell. Just for you." MSJ, Doc. # 61-1, p. 7. The harm alleged in a failure to protect claim does not have to rise to such a stringent level: "deliberate indifference entails something more than mere negligence...[but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005), quoting Farmer, supra, 511 U.S. at 835, 114 S. Ct. 1970. Nor does defendant Williams meet the standard for entitlement to qualified immunity on this claim. In resolving a claim for qualified immunity the court addresses two questions: (1) whether the facts, when taken in the light most favorable to plaintiff, demonstrate that the officer's actions violated a constitutional right and (2) whether a reasonable officer could have believed that his conduct was lawful, in light of clearly established law and the information the officer possessed. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034 (1987). Although the Supreme Court at one time mandated that lower courts consider these two questions in the order just presented, more recently the Supreme Court announced that it is within the lower courts' discretion to address these questions in the order that makes the most sense given the circumstances of the case. Pearson v. Callahan, --- U.S. ---, 129 S. Ct. 808 (2009). In this instance, the court has found that as to the first qualified immunity prong, plaintiff has raised a genuine issue of fact as to whether or not defendant Williams violated his Eighth Amendment rights by her action of yelling the statement ascribed to her in the circumstances alleged to have been present. As to the second prong, the court finds that no reasonable officer could have found such inflammatory language to have been lawful in the light of clearly established law and the information she must have possessed as a Facility 1 correctional sergeant in 2005 and 2006 at CSP-Sol9 with respect to the sensitivity of inmate housing. Thus, defendant Williams does not show entitlement to summary judgment on this claim.

9

See MSJ, Williams Dec., Doc. # 61-7, ¶ 1. 17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Defendant Cortez ­Deliberate Indifference re: Medical Needs As to any claim for unconstitutionally inadequate medical care against defendant Cortez, plaintiff makes the following allegations in his verified amended complaint. Following the interview with Lt. Herrera concerning the inmate attack on him, plaintiff was returned to the holding cage still in restraints, which had not been removed. AC, p. 13. After his hands had started to go numb, plaintiff told defendant Cortez of his pain and discomfort but Cortez ignored plaintiff's request to loosen the handcuffs. Id. When he could not get anyone to loosen the cuffs, he began to kick his cage, after which a correctional officer returned and removed the too-tight cuffs. Id., at 13-14. (Plaintiff does not clearly identify the C/O who removed his cuffs). When plaintiff asked to be taken to the clinic for a wrist injury from where the handcuffs had cut in, defendant Cortez ignored plaintiff again. Id., at 14. Defendant Cortez moves for summary judgment on the inadequate medical care claim because, he contends, plaintiff shows no evidence that this defendant acted with sufficient culpability, ensuring that plaintiff received medical assistance and his cuffs were removed to prevent further injury. MSJ, pp. 2, 4, 8-10. Legal Standard for Eighth Amendment­ Medical Deliberate Indifference Claim In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299, 111 S. Ct. 2321, 2324 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4, 112 S. Ct. 995, 998 (1992). A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Indications 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). In Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970 (1994) the Supreme Court defined a very strict standard which a plaintiff must meet in order to establish "deliberate indifference." Of course, negligence is insufficient. Farmer, 511 U.S. at 835, 114 S. Ct. at 1978. However, even civil recklessness (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at 836-37, 114 S. Ct. at 1979. Neither is it sufficient that a reasonable person would have known of the risk or that a defendant should have known of the risk. Id. at 842, 114 S. Ct. at 1981. It is nothing less than recklessness in the criminal sense ­ subjective standard ­ disregard of a risk of harm of which the actor is actually aware. Id. at 838-842, 114 S. Ct. at 1979-1981. "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837, 114 S. Ct. at 1979. Thus, a defendant is liable if he knows that plaintiff faces "a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847, 114 S. Ct. at 1984. "[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842, 114 S. Ct. at 1981. If the risk was obvious, the trier of fact may infer that a defendant knew of the risk. Id. at 840-42, 114 S. Ct. at 1981. However, obviousness per se will not impart knowledge as a matter of law. Also significant to the analysis is the well established principle that mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth 19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Amendment violation. Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Moreover, a physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id. Additionally, mere delay in medical treatment without more is insufficient to state a claim of deliberate medical indifference. Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 408 (9th Cir. 1985). Although the delay in medical treatment must be harmful, there is no requirement that the delay cause "substantial" harm. McGuckin, 974 F.2d at 1060, citing Wood v. Housewright, 900 F.2d 1332, 1339-1340 (9th Cir. 1990) and Hudson, 112 S. Ct. at 9981000. A finding that an inmate was seriously harmed by the defendant's action or inaction tends to provide additional support for a claim of deliberate indifference; however, it does not end the inquiry. McGuckin, 974 F.2d 1050, 1060 (9th Cir. 1992). In summary, "the more serious the medical needs of the prisoner, and the more unwarranted the defendant's actions in light of those needs, the more likely it is that a plaintiff has established deliberate indifference on the part of the defendant." McGuckin, 974 F.2d at 1061. Superimposed on these Eighth Amendment standards is the fact that in cases involving complex medical issues where plaintiff contests the type of treatment he received, expert opinion will almost always be necessary to establish the necessary level of deliberate indifference. Hutchinson v. United States, 838 F.2d 390 (9th Cir. 1988). Thus, although there may be subsidiary issues of fact in dispute, unless plaintiff can provide expert evidence that the treatment he received equated with deliberate indifference thereby creating a material issue of fact, summary judgment should be entered for defendants. The dispositive question on this summary judgment motion is ultimately not what was the most appropriate course of treatment for plaintiff, but whether the failure to timely give a certain type of treatment was, in essence, 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

criminally reckless. It is undisputed that plaintiff claims that defendant Cortez was deliberately indifferent to plaintiff's serious medical needs when Cortez initially ignored plaintiff's request to loosen the cuffs on his wrists. Plaintiff identifies no genuine dispute of fact as to the following of defendants' undisputed facts: that after the inmate altercation, plaintiff was taken to a holding cell, where he remained; that while in the holding cell, plaintiff yelled and kicked the cage until defendant Cortez came into the office; that plaintiff informed defendant Cortez that the handcuffs were causing him pain and discomfort. MSJ, DUF, Doc. # 61-2, p. 4; Opp., PDF, Doc. # 65-3, p. 4. Only with DUF # 23, related to this claim does plaintiff take minor issue: defendant Cortez returned and evaluated plaintiff's handcuffs by placing a finger between the cuff and Perez's wrist, and took off the handcuffs. MSJ, DUF, Doc. # 61-2, p. 4, citing plaintiff's Dep.: 63:3-9, Declaration of S. Cortez (Cortez Dec.) ¶ 3. Plaintiff contends that defendant Cortez could not actually place a finger between the cuff and plaintiff's wrist because the cuffs were on too tight. Opp., PDF, Doc. # 65-3, p. 3. It is troubling that the Cortez declaration cited in support of the contention that defendant Cortez removed the handcuffs does not reference plaintiff's complaint about the handcuffs or removing them at all. However, plaintiff himself testifies to the following, after kicking the cage for attention to his tight cuffs:10 A. After that, Cortez shows up, and he says, "What's the problem?" I said, "My cuffs are tight, you know what I mean, these things." So he checked it by trying to put his finger in between the cuff and my skin. And he noticed that they were, in fact, tight, so he took them off completely. Plaintiff's Dep. 63:4-9. Plaintiff also concedes this point in his opposition. Opp., Doc. # 65-1, p. 4. In his opposition argument (which he signs under penalty of perjury) as well as his deposition, plaintiff says that when he first asked defendant Cortez to loosen his cuffs that he did

10

See plaintiff's Dep. 57:13-63-2. 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

not do so and that only after he began kicking the cage did Cortez come and take them off. Opp., Doc. # 65-1 p. 4, citing plaintiff's Dep: 55-64. There was at least one other staff person who did not respond to his request to see a supervisor about the cuffs and plaintiff approximates that he was in the holding cell for some 30 or 40 minutes before the cuffs which were numbing his right hand and turning it blue were removed altogether by defendant Cortez after plaintiff started kicking the cage. Plaintiff's Dep.: 55-63. Plaintiff contends that he asked to be seen in the medical unit so that his wrist injuries could be documented, but his pleas were ignored until defendant Lozano came in with a can of mace (earlier plaintiff refers to it as OC spray). Opp., p. 5. Shortly thereafter, plaintiff was told to cuff up for medical, but instead he was led to Ad Seg. Id. Plaintiff testified that when defendant Cortez put the cuffs back on for the escort from the holding cell that defendant Cortez did put the cuffs on loosely. Plaintiff's Dep.: 67:8-17. At the point at which defendants Cortez and Cantu are alleged to have led plaintiff toward Ad Seg, plaintiff's claim against these defendants transforms into an excessive force claim, set forth following the claim against defendant Lozano. Defendants argue that the evidence demonstrates that defendant Cortez acted within a reasonable amount of time to abate the pain and discomfort of the handcuffs. MSJ, Opp., Doc. # 61-1, pp. 9-10. Plaintiff says virtually nothing within his response other than to concede he is alleging deliberate indifference by Cortez when he failed to initially take off the cuffs. The court notes that more than simply loosening the cuffs which plaintiff requested, according to plaintiff's own testimony, defendant Cortez removed the handcuffs altogether. Even accepting that the handcuffs were too tight and caused him some pain, numbness or other discomfort for up to half an hour or so, plaintiff simply does not raise a genuine issue of material fact as to this specific claim against defendant Cortez that rises to the level of an Eighth Amendment violation, and the court finds that the motion for summary should be granted as to this claim. \\\\\ 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Defendant Lozano Plaintiff alleges in the verified amended complaint as to this defendant that when he began to kick the holding cage again for attention after defendant Cortez ignored him, defendant Lozano ran in with a can of O.C. spray pointed at plaintiff, threatening to spray him if he did not stop. AC, p. 14. Defendant Lozano refused plaintiff's request to be seen by medical to document plaintiff's wrist injury and instead was only concerned as to who had removed the cuffs and why. Id. Fifteen minutes later, defendants Cortez and Cantu came and told plaintiff to "cuff up" for an escort to medical. Id. Although plaintiff purports to simply and generically state that he disputes all facts alleged by defendant Lozano to be undisputed, he offers no specificity or support for that position. In his opposition, plaintiff states that he must rest on the allegations of his verified amended complaint with regard to his claims against this defendant as this defendant failed to respond to plaintiff's interrogatories because he (Lozano) filed for a protective order and has done nothing to comply with the discovery process. Opp., Doc. # 65-1, pp. 9-10. Plaintiff also believes that the reports speak for themselves with regard to the Lozano's claims that he offered plaintiff medical attention. Id. at 10. Plaintiff does not precisely identify what reports he means or specify what they contain that supports plaintiff's position. Plaintiff's bare assertion concerning defendant Lozano's alleged failure to respond to plaintiff's discovery requests does not implicate Fed. R. Civ. P. 56(f) for a continuance of this motion, as he neither seeks a continuance or makes the requisite showing in a supporting affidavit for same. Further, the court's review of the case docket demonstrates that plaintiff never filed a motion to compel discovery responses as to this (or any other defendant). While he made a brief reference to defendant Lozano's alleged failure to provide discovery responses in objections that plaintiff attached to a later motion seeking "clarification" (see above), plaintiff never let the court know by way any appropriate vehicle, nor has he even presented evidence by even the copy of a proof of service that he ever served this defendant with discovery requests or, 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

if so, when he did. The only form of a protective order was filed on November 5, 2008 (Doc. # 27), when the undersigned granted, inter alia, defendant Lozano's request not to be required to serve discovery responses until after adjudication of defendants' motion to dismiss.11 Thereafter, by order filed on May 6, 2009 (Doc. # 46), defendants' request for an extension of time to serve discovery responses upon plaintiff was denied. On August 25, 2009 (doc. # 53), defendants were directed to show proof of having served by May 11, 2009, their responses to plaintiff's discovery requests in response. When defendants thereafter only showed proof of having served responses to plaintiff's second request for production of documents, the court ordered the defendants to show proof that all the discovery responses had been served on plaintiff timely. See order, filed on September 2, 2009 (doc. # 55). On September 9, 2009 (doc. # 57), defendants filed copies of verifications and proofs of service of the second set of interrogatory responses for defendants Williams, Cantu and Cortez, respectively. Defendants maintain in their amended response that the discovery that plaintiff served on April 2, 2009, was his set two of requests for production of documents and his set two of interrogatories for defendants Williams, Cantu and Cortez. Plaintiff provides no evidence, as noted, of ever having served defendant Lozano with discovery requests. While it is evident that plaintiff did, indeed, serve a set one of interrogatories upon defendants Williams, Cantu and Cortez because he has lodged the interrogatory responses to both set one and set two as to each of these defendants in their entirety in support of his opposition, plaintiff simply has not shown that he served interrogatories upon defendant Lozano nor, if he did, has he proceeded in the appropriate way to assure that he received responses from Lozano. In addition, in the defendants' earlier response dated August 25, 2009 (doc. # 54), defendants attached a letter to plaintiff wherein they identify plaintiff's discovery requests as having been \\\\\

When it was later determined that defendant Lozano had failed to file a response to the amended complaint, he was ordered to show cause by order filed on Jan. 8, 2009 (Doc. # 30) and thereafter discharged the order as noted on Jan. 26, 2009 (Doc. # 32), and filed an answer. 24

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

served on April 2, 2009.12 As plaintiff failed to file a motion to compel or an appropriate affidavit in support of a request for a continuance (which he also does not make), or even a copy of a proof of service showing when he served defendant Lozano with discovery requests, the court will not grant any such continuance. Notwithstanding, plaintiff's blanket assertion that he is disputing all of defendant Lozano's undisputed facts is not sufficiently supported. In DUF # 16, defendants state that defendant Lozano threatened to use pepper spray on plaintiff while plaintiff was in a holding cell but did not do so. MSJ DUF, Doc. # 61-2, p. 3, citing AC, 3i:12; Declaration of J. Lozano (Lozano Dec.) ¶ 6. This fact is undisputed in the record. As to DUF # 17, that defendant Lozano told plaintiff he was going to see medical, and to just "hang tight" is supported by plaintiff's own testimony. Id., citing plaintiff's Dep. 67: 2-16. At DUF # 18, defendants assert that after being informed by plaintiff of his request for medical attention, defendant Lozano requested that defendants Cortez and Cantu escort plaintiff to the medical clinic. Id., citing Lozano Dec. ¶ 5. Plaintiff produces no specific evidence in opposition to refute this, but it can be inferred that he disputes this based on what occurred when he maintains that he thought he was being escorted to medical but was then led toward Ad Seg, resulting in the incident which he now alleges arose from a use of excessive force by defendants Cortez and Cantu. DUF # 19 states that fifteen minutes after plaintiff spoke with defendant Lozano, plaintiff was escorted by defendants Cortez and Cantu to see medical staff; this fact is amply supported, as defendants note, by plaintiff's verified amended complaint. Id., AC, pp. 3i: 12-19. While he also posits therein that defendant

Plaintiff also makes a broad claim, as to his allegations not limited to defendant Lozano, that he was subjected to false write-ups and has been transferred out of CSP-Solano in retaliation and therefore cannot get witness declarations from other inmates or staff "who may have been a witness." Opp., p. 6, Doc. # 65-1, p. 6. Retaliation claims are not at issue within this action, nor does plaintiff set forth any specifics with regard to his claims of false write-ups. He also does not set forth who might have been witnesses or make any offer of proof as to what any potential witness might have testified to. Finally, he does not present any evidence that he made any effort to procure any witness declarations before or since his transfer, merely positing that his transfer rendered him unable to do so. 25

12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Lozano was only concerned with who had removed plaintiff's cuffs and refused his request to go to medical, this is somewhat undermined by his subsequent testimony that Lozano told plaintiff he was going to medical as set forth above in support of DUF # 17. In any event, as defendants argue, to the extent that plaintiff's claim of an Eighth Amendment violation in the form of excessive force arises from defendant Lozano's having threatened plaintiff with a can of OC pepper spray as plaintiff kicked at his cage, the claim fails as a matter of law because it was at most a mere threat of force. Reply, Doc. # 68, p. 2. It was also undisputedly in response to plaintiff's kicking the holding cell he was in. Threats of bodily injury are insufficient to state a claim, because a mere naked threat is not the equivalent of doing the act itself. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Nor does plaintiff raise a genuine issue of material fact in his conflicting versions of how defendant Lozano reacted to his request to receive medical attention to document the injuries to his wrist from the handcuffs. There is no dispute that plaintiff testified that plaintiff was going to receive medical attention and that fifteen minutes later he was escorted out of the cage for that apparent purpose. Moreover, plaintiff provides no medical evidence that the injuries to his wrists constituted a medical need that was objectively serious, and that defendant Lozano possessed a sufficiently culpable state of mind. Wilson v. Seiter, supra, 501 U.S. at 299, 111 S. Ct. at 2324; McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). In fact, plaintiff repeatedly states that he wanted the injuries documented, rather than averring that he needed immediate treatment. The motion for summary judgment should be granted as to defendant Lozano. Defendants Cantu and Cortez-Excessive Force Plaintiff alleges that after defendants Cantu and Cortez told him to "cuff up" for medical, instead they led him to Ad Seg; when plaintiff stopped to ask why, defendants Cantu and Cortez took him down; plaintiff could not break his fall with his hands cuffed behind him. AC, p. 15. Plaintiff hit the ground with the force of the two defendants on top of him and his face hit the concrete. Id. Plaintiff suffered head and knee injuries over and above the previous 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

wrist injury from the cuffs. Id. Plaintiff's placement in Ad Seg on February 2, 2006, occurred as a result of the above incident and the alleged mutual combat incident with Inmate Socorro. Id. Defendants maintain there is no material dispute regarding the reasonableness of the force used against plaintiff. MSJ, Doc. # 61-1, p. 11. Defendants rely for support for this argument on a video-taped interview of plaintiff the day after the escort. Id. & see discussion below. Eighth Amendment Legal Standard-Excessive Force "[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is...whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7,112 S. Ct. 995, 999 (1992), citing Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078 (1986). When determining whether the force was excessive, we look to the "extent of the injury..., the need for application of force, the relationship between that need and the amount of force used, the threat `reasonably perceived by the responsible officials,' and `any efforts made to temper the severity of a forceful response.'" Hudson, supra, at 7, 112 S. Ct. at 999. While de minimis uses of physical force generally do not implicate the Eighth Amendment, significant injury need not be evident in the context of an excessive force claim, because "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated." Hudson, supra, at 9, 112 S. Ct. at 1000, citing Whitley, at 327, 106 S.Ct., at 1088. In DUF # 24, defendants state that defendants Cantu and Cortez escorted plaintiff to the medical clinic on February 2, 2006. MSJ DUF, Doc. # 61-2, p. 4, citing AC, 3i: 20-28; 3j: 1-7; Cortez Dec., ¶ 2; Declaration of D. Cantu (Cantu Dec.) ¶ 2. However, although these defendants undisputedly ultimately took plaintiff to the infirmary following the incident at issue, plaintiff has produced sufficient evidence in the form of copies of a rules violation hearing and 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

incident reports of the event13 that these defendants turned toward Building 10, the Ad Seg unit, and away from the medical unit during the initial escort. See Opp., Doc. # 66, pp. 3-15.14 In response to plaintiff's interrogatory no. 5, set one, defendant Cortez straightforwardly states that he and Cantu were escorting plaintiff to Ad Seg [i.e., not toward the medical clinic] from the Facility 1 Center Complex holding cell # 1, and that as plaintiff exited to Facility 2, he stopped walking; after he was ordered to keep walking toward Building 10, he made an immediate left turn, pulling away from defendants Cortez and Cantu. Id., pp. 28-29. Thus, it is somewhat disingenuous for defendants to say in a purportedly undisputed fact that these defendants took plaintiff to the medical clinic in a manner to imply that they were headed that way from the outset. In their declarations both defendants Cortez and Cantu state that they were informed, without indicating how or by whom, that a nurse was present in the Ad Seg unit to provide plaintiff with medical clearance before his placement in Ad Seg. MSJ, Cortez Dec., Doc. # 61-4, ¶ 5; Cantu Dec., Doc. # 61-3, ¶ 5. Plaintiff maintains that he was not informed that medical was waiting in Ad Seg to clear him because that is never done. Opp., Doc. # 65-1, p. 11. It appears safe to say that had such information been conveyed to him and assuming it was true, it may have obviated the incident during the escort. These defendants also declare that once they arrived at Facility 2, "instead of turning left for the primary medical clinic, we moved right towards Administrative Segregation where [plaintiff] was going to have his medical clearance. At this point, [plaintiff] stopped and resisted the escort, saying he was going to medical." MSJ, Cortez

Although unauthenticated, these documents could be made admissible at trial; nor do defendants challenge their authenticity. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (evidence which could be made admissible at trial may be considered on summary judgment); see also Aholelei v. Hawaii De