Quair v. Gertz

Filing 55

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 03/08/13 recommending that defendant's motion for summary judgment 44 be granted; and this case be closed. MOTION for SUMMARY JUDGMENT 44 referred to Judge John A. Mendez. 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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SAMMY R. QUAIR, SR.,

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Plaintiff,

No. 2:11-cv-2293 JAM CKD P

Defendant.

FINDINGS AND RECOMMENDATIONS

vs.
GERTZ,

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/

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Plaintiff is a state prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. Plaintiff alleges that defendant Gertz failed to protect him from

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harm in violation of the Eighth Amendment. (Dkt. No. 1.) Defendant Gertz’s September 12,

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2012 motion for summary judgment is before the court. (Dkt. No. 44.)

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II. Summary Judgment Standard

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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

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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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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 September 18, 2012, the court advised plaintiff of the requirements for

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opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Woods v.

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Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en

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banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.

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1988).

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III. Plaintiff’s Allegations

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This action proceeds on the original, verified complaint filed August 29, 2011.

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Plaintiff alleges that in 2010, while he was incarcerated at Butte County Jail, defendant Gertz

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failed to protect plaintiff from his cellmate, Darrel Doshier. Plaintiff alleges that he submitted

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several request slips to Gertz stating that his “life was in danger” but was not moved to a

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different cell before he was injured in a fight with Doshier. (Dkt. No. 1.)

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IV. Facts

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As a preliminary matter, the court notes that when a complaint is verified under

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penalty of perjury, it has the effect of an affidavit to oppose summary judgment “to the extent it

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is ‘based on personal knowledge’ and ‘sets forth specific facts admissible in evidence.’” Keenan

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v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996). Plaintiff has also filed evidence in opposition to

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summary judgment, accompanied by an assertion that this evidence is conclusive proof of his

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claims. (Dkt. No. 53 at 2.) The court has construed this filing as plaintiff’s opposition to

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summary judgment. (See Dkt. No. 54.) Insofar as plaintiff’s opposition does not cite to

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particular record materials or show how any such materials establish the presence of a genuine

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dispute of material fact, the court will deem the facts in the record undisputed for purposes of the

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motion pursuant to Rule 56(e) of the Federal Rules of Civil Procedure.

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On May 6, 2010, plaintiff was booked into the Butte County Jail (BCJ). DUF 3.

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According to classification records at the BCJ, plaintiff was documented as a dropout of the

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Norteno and/or Nuestra Familia gangs. DUF 3, 6. Plaintiff was housed in Sensitive Needs

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Housing (SNH), where assigned inmates are usually gang dropouts with prior prison history.

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DUF 5. He was housed in SNH unit S1. DUF 3.

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On June 25, 2010, inmate Darrell Doshier came into custody at BCJ. DUF 10.

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He was documented as a Norteno dropout. DUF 7. Doshier was housed in SNH unit S1, sharing

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a two-person cell with plaintiff. DUF 10.

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During this time, defendant Gertz was a correctional officer at BCJ, assigned to

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work the Classification Unit. DUF 1. On July 17, 2010, while defendant was the assigned

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Classification Officer, he received an inmate request form from plaintiff in which plaintiff

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requested a cell move. DUF 12. Both plaintiff and defendant submit this inmate request as

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evidence. Contrary to plaintiff’s assertion in the complaint, it does not state that plaintiff

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believed his “life was in danger.” Rather, plaintiff states in the request that he and Doshier were

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“not getting along.” (Dkt. No. 44-4 at 1; see Dkt. No. 53 at 3.)

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That day, defendant contacted non-defendant correctional officer Leonard and
directed him to move plaintiff to another cell in order to prevent any problems between plaintiff

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and Doshier. DUF 14. Leonard went to plaintiff’s cell to discuss it it with him, but plaintiff

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refused to move, stating that he and Doshier were “cool.” DUF 15. Ten minutes after defendant

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told Leonard to move Quair to a different cell, Leonard reported to defendant that plaintiff

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wanted to cancel the move because it was no longer necessary. DUF 16. On the “Response”

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portion of plaintiff’s July 17, 2010 inmate request form, defendant noted: “Refused to move to a

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different cell on 7-17-10 when asked to move.” (Dkt. No. 44-4 at 1.)

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Two days later, on July 19, 2010, plaintiff approached non-defendant officer

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Foster and requested a “courtesy move” to a cell with another inmate, Garcia. Foster asked

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plaintiff if he was having problems with his cellmate, and plaintiff responded that he was not, but

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that he wanted to switch cells because he knew Garcia from the streets and they were “homies.”

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DUF 17. Foster returned to the classification office and informed defendant of plaintiff’s

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requested “courtesy move” to another cell. Defendant informed Foster that on July 17, 2010,

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plaintiff had requested and later refused a cell move. DUF 18.

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Plaintiff submitted another request to move cells on July 22, 2010, stating that

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“you guys need to get [Doshier] of this drop out pod before someone gets killed or stabbed. I’ve

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got safety concerns for myself and all drop outs. Please help - ASAP.” Dkt. No. 44-10 at 1.

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Defendant was not assigned to work as a Classification Officer on July 22, 2010 and did not
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receive this request form. DUF 20.

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Plaintiff submitted another cell move request on July 25, 2010, stating in part: “If

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anything happens to either of us or if staff gets hurt during the process of breaking up a fight, I

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will hold you responsible.” (Dkt. No. 44-11 at 1.) Defendant was not assigned to work as a

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Classification Officer on July 25, 2010 and did not receive this request form. DUF 21.

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Plaintiff submitted another cell move request on July 28, 2010, stating that he and

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his “celly” were “not getting along at all.” (Dkt. No. 44-12 at 1.) This form was reviewed and

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signed by non-defendant correctional officer Gray, one of the Classification Officers assigned to

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Classification that day. Defendant did not receive this form either. DUF 22.

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In sum, defendant declares under penalty of perjury that, between his July 17,

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2010 attempt to move plaintiff to another cell and plaintiff’s August 2, 2010 fight with Doshier,

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defendant was assigned to work as a Classification Officer on the following days: July 18, 19, 28,

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29, and August 1 and 2, 2010. He declares that, during those six days, he did not receive any

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Inmate Request Forms from plaintiff requesting a cell move. He further declares that, after July

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17, 2010, he “did not receive any information from any source that there were any potential

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problems between inmates Quair and Doshier until their altercation on August 2, 2010.” (Dkt.

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No. 44-3 at 3.)

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Plaintiff’s evidence consists of the inmate request forms submitted on July 17, 22,

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25, and 28, 2010. (Dkt. No. 53 at 3-7.) In the complaint, he asserts that he submitted numerous

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cell move requests to defendant and “got the attention of” non-defendant correctional staff, who

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told him that it was “entirely up to Mr. Gertz to separate you guys.” (Dkt. No. 1 at 4.)

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On August 2, 2010, plaintiff and Doshier had an altercation, during which

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plaintiff slipped and hit his forehead on the corner of the cell table. DUF 24-25. As a result,

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plaintiff required eight stitches. (Dkt. No. 1. at 4.)

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IV. Discussion
Defendant argues that plaintiff has not created a genuine dispute of fact that
defendant knew of and disregarded an excessive risk to plaintiff’s safety.
The Eighth Amendment’s prohibition on cruel and unusual punishment imposes

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on prison officials, among other things, a duty to “take reasonable measures to guarantee the

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safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer,

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468 U.S. 517, 526-27 (1984)). “ ‘[P]rison officials have a duty ... to protect prisoners from

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violence at the hands of other prisoners.’” Id. at 833. “[A] prison official violates the Eighth

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Amendment when two requirements are met. First, the deprivation alleged must be, objectively,

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‘sufficiently serious’[.] For a claim . . . based on a failure to prevent harm, the inmate must

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show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. at

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834. Second, “[t]o violate the Cruel and Unusual Punishments Clause, a prison official must

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have a ‘sufficiently culpable state of mind’ ... [T]hat state of mind is one of ‘deliberate

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indifference’ to inmate health or safety.” Id. The prison official will be liable only if “the

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official knows of and disregards an excessive risk to inmate health and safety; the officials must

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both be aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference.” Id. at 837.

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Supervisory officials cannot be held vicariously liable for the actions of their

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subordinates in a § 1983 action. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). A

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supervisor can be held liable for a violation of constitutional rights even if he or she was not

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personally involved in the actions which led to the violation if the supervisor implemented a

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policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving

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force of the constitutional violation. Id.

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Here the evidence shows that, when defendant first learned that plaintiff wanted to

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move to a different cell on July 17, 2010, he attempted to have plaintiff moved that same day, but

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plaintiff changed his mind and declined to move. Plaintiff’s July 17 request for a cell move did
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not suggest that he was at substantial risk of harm from his cellmate, but merely stated that

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plaintiff and Doshier were “not getting along.” Two days later, in light of plaintiff’s July 17

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refusal to move, defendant did not act on plaintiff’s request for a “courtesy move” to a cell with

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one of his friends. At that time, given plaintiff’s recent assertion that he and Doshier were “cool”

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and his statement to Foster that he and Doshier were not having problems, defendant had no

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reason to believe that plaintiff was at risk if he remained celled with Doshier.

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Plaintiff subsequently filed an inmate request on July 22, 2010 that would have

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put jail staff on notice that he was at risk of harm from Doshier, as plaintiff expressed worries

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about being “killed or stabbed.” However, defendant was not working as a Classification Officer

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that day and denies ever seeing the request or hearing about it, and plaintiff has not raised a

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genuine dispute of fact as to whether defendant was aware of this request. Similarly, plaintiff has

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not pointed to any evidence that contradicts defendant’s assertion that he was unaware of

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plaintiff’s July 25 and July 28 requests. Even if defendant were the supervisor of non-defendant

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jail staff who knew of these requests, he cannot be held liable under section 1983 on a theory of

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supervisory liability. Thus, there is no genuine dispute of fact as to whether defendant “knew of”

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and disregarded an excessive risk to plaintiff’s safety.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s motion for summary judgment (Dkt. No. 44) be granted; and

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2. This case be closed.

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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)(l). 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.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 8, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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