Harrison v. Linde, et. al.

Filing 95

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 02/03/15 recommending that defendants' motion for summary judgment 84 be denied. MOTION for SUMMARY JUDGMENT 84 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL F. HARRISON, 12 Plaintiff, 13 14 No. 2:12-cv-2000 KJM CKD P v. FINDINGS & RECOMMENDATIONS D. DeBOARD, et al., 15 Defendants. 16 17 18 I. Introduction 19 This pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983 proceeds on the 20 complaint filed July 31, 2013 against defendants DeBoard and Lopez.1 (ECF No. 1.) Plaintiff 21 claims that defendants were deliberately indifferent to his safety when they failed to protect him 22 from other inmates, thus violating the Eighth Amendment prohibition against cruel and unusual 23 punishment. 24 Before the court is defendants’ April 25, 2014 motion for summary judgment. (ECF No. 25 84.) Plaintiff has filed an opposition. (ECF No. 90.) Having carefully reviewed the record and 26 the applicable law, the undersigned will recommend that defendants’ motion be denied. 27 28 1 Plaintiff’s claims against two other defendants were severed and are the subject of a separate action. (ECF No. 46.) 1 1 II. Summary Judgment Standard 2 Summary judgment is appropriate when it is demonstrated that there “is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 4 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 5 “citing to particular parts of materials in the record, including depositions, documents, 6 electronically stored information, affidavits or declarations, stipulations (including those made for 7 purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R. 8 Civ. P. 56(c)(1)(A). 9 Summary judgment should be entered, after adequate time for discovery and upon motion, 10 against a party who fails to make a showing sufficient to establish the existence of an element 11 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 12 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 13 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 14 Id. 15 In the endeavor to establish the existence of a factual dispute, the opposing party need not 16 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 17 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 18 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 19 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 20 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 21 amendments). 22 In resolving the summary judgment motion, the evidence of the opposing party is to be 23 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 24 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 25 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 26 obligation to produce a factual predicate from which the inference may be drawn. See Richards 27 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 28 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 2 1 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 2 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 3 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 4 III. Plaintiff’s Allegations 5 In his complaint, plaintiff alleges as follows: 6 On the morning of March 12, 2009, three inmates returned from breakfast and came to 7 plaintiff’s cell, where they began loudly threatening and cursing at plaintiff as he stood in the cell 8 doorway. (ECF No. 1 at 8.) They had been trying to intimidate plaintiff into smuggling drugs for 9 them. (Id.) As the yelling and threats continued, plaintiff looked over at Correctional Officers 10 DeBoard and Lopez, who were at their desk about 35 feet away. (Id.) Plaintiff saw that both 11 were watching the inmates’ verbal assault, which went on for at least two minutes, but did not 12 stop it. (Id.) 13 One inmate hit plaintiff in the face, busting his lip, and hit plaintiff at least three more 14 times in the jaw, nose, and eye. (Id.) Plaintiff fell down, and the three inmates punched and 15 kicked him while he was on the ground. (Id. at 8-9.) This attack went on for approximately two 16 minutes. (Id. at 9.) Afterward, the three inmates walked past DeBoard and Lopez, back to their 17 cells. (Id.) DeBoard and Lopez laughed and gave each other a “high five” knuckle touch. (Id.) 18 Plaintiff went back to his cell, packed his property, and asked DeBoard to move him out 19 of the building, but he refused. (Id.) Plaintiff waited until the next shift, then told non-defendant 20 Correctional Officer Simpson about the attack. (Id.) Simpson moved plaintiff to a locked shower 21 and reported the incident. (Id.) Plaintiff was placed in administrative segregation pending 22 investigation of the assault. (Id. at 10.) 23 IV. Facts 24 The following facts are undisputed2: 25 Plaintiff is a state prisoner who, at all relevant times, was housed at Mule Creek State 26 27 28 Prison. On March 12, 2009, Correctional Officers D. DeBoard and R. Lopez worked at MCSP on 2 See ECF No. 84-1 (Defendants’ Statement of Undisputed Facts) and ECF No. 90 at 29-31 (Plaintiff’s Statement of Disputed Facts). 3 1 second watch (from 6:00 a.m. to 2:00 p.m.). They were assigned as floor officers responsible for 2 maintaining security in Facility A, Building 3. 3 Sometime around 8:00 a.m., DeBoard and Lopez were overseeing Building 3’s inmates 4 returning to the housing unit from breakfast. The officers were at the podium in the center of the 5 dayroom. 6 At some point during the third watch (from 2:00 to 10 p.m.), plaintiff told Facility A staff 7 that he had been assaulted by three inmates from his housing unit around 10:00 a.m. that morning. 8 Plaintiff told correctional staff that he feared for his safety and wanted to be rehoused in another 9 unit. Medical staff examined plaintiff and noted injuries to his face and mouth. Based on 10 plaintiff’s allegations and injuries, plaintiff was removed from Facility A, Building 3 and 11 rehoused in the prison’s administrative segregation unit for his safety while the allegations were 12 investigated. 13 That day, Correctional Officer Simpson worked at MCSP on third watch. He was 14 assigned to conduct a fact-finding inquiry into plaintiff’s allegations. Officer Simpson 15 interviewed plaintiff that evening in connection with the allegations and prepared a memorandum 16 that summarized the results of his interview. After describing plaintiff’s account of the attack by 17 three inmates, the memorandum continues: “Harrison stated this went on without the floor 18 officers [sic] detections.” (ECF No. 84-6 at 4.) Plaintiff’s handwritten name appears at the top of 19 the first page of the memorandum, and his handwritten initials at the second page in the lower 20 right hand corner. (Id. at 4-5.) Afterwards, Officer Simpson forwarded the memorandum to his 21 supervisor for review. 22 V. Analysis 23 The Eighth Amendment’s prohibition on cruel and unusual punishment imposes on prison 24 officials, among other things, a duty to “take reasonable measures to guarantee the safety of the 25 inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468 U.S. 26 517, 526-27 (1984)). “‘[P]rison officials have a duty ... to protect prisoners from violence at the 27 hands of other prisoners.’” Id. at 833. “[A] prison official violates the Eighth Amendment when 28 two requirements are met. First, the deprivation alleged must be, objectively, ‘sufficiently 4 1 serious[.]’ For a claim . . . based on a failure to prevent harm, the inmate must show that he is 2 incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834. Second, “[t]o 3 violate the Cruel and Unusual Punishments Clause, a prison official must have a ‘sufficiently 4 culpable state of mind’ ... [T]hat state of mind is one of ‘deliberate indifference’ to inmate health 5 or safety.” Id. The prison official will be liable only if “the official knows of and disregards an 6 excessive risk to inmate health and safety; the officials must both be aware of facts from which 7 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 8 the inference.” Id. at 837. Here, defendants argue that plaintiff has not created a “genuine” dispute of fact as to 9 10 whether DeBoard and Lopez witnessed the attack on plaintiff, or had any knowledge that plaintiff 11 was at risk of harm on the morning of March 12, 2009. Plaintiff and defendants give different 12 accounts of these events, and defendants acknowledge that credibility issues must be resolved by 13 the factfinder at trial. However, defendants contend that the instant motion is governed by an 14 exception to the general rules of summary judgment, created by the Supreme Court in Scott v. 15 Harris, 550 U.S. 372 (2007). 16 In Scott, the Supreme Court considered whether there was a genuine dispute of material 17 fact as to whether respondent, a motorist fleeing a pursuing police car, was driving in such a way 18 as to endanger human life. An “added wrinkle” was that the chase had been caught on videotape 19 (id. at 378), and the tape “so utterly discredited” respondent’s version of events “that no 20 reasonable jury could have believed him.” Id. at 380. The Court held: “When opposing parties 21 tell two different stories, one of which is blatantly contradicted by the record, so that no 22 reasonable jury could believe it, a court should not adopt that version of the facts for purposes of 23 ruling on a motion for summary judgment.” Id. See Rutter Group Practice Guide: Federal Civ. 24 Proc. Before Trial, Calif. & 9th Cir. Eds., Chap. 14D § 14:154.5 (2014) (citing Scott for 25 proposition that, where party’s claims of disputed evidence are not simply implausible, but are 26 directly and irrefutably contradicted by evidence that clearly shows there is no genuine issue of 27 material fact, summary judgment is proper). 28 ///// 5 1 Defendants argue that there “is no evidence (aside from the complaint’s unsupported 2 allegations) that either Defendant knew” that plaintiff faced a substantial risk of harm on the 3 morning of March 12, 2009. (ECF No. 84-1.) On the contrary, defendants assert, when Officer 4 Simpson interviewed plaintiff later that day, plaintiff stated that the assault was unseen by 5 correctional staff, then signed and initialed Simpson’s memorandum stating as much. Defendants 6 argue that plaintiff’s “current rendition of events” is blatantly contradicted by the record and thus, 7 under Scott, does not establish a genuine dispute of fact as to whether defendants knowingly 8 disregarded a substantial risk to plaintiff. 9 In response, plaintiff contends that he never signed Simpson’s memorandum and suggests 10 that his signature and initials were forged. (ECF No. 90 at 4-5.) He submits a sworn declaration 11 stating that defendants watched the attack on him and did nothing to stop it. (Id. at 32-35.) 12 According to plaintiff, the disputed facts include: 13 14 15 16 17 18 1. Whether Defendants [DeBoard and Lopez] witnessed plaintiff being assaulted and battered on 3-12-09 . . . 2. Whether [defendants] witnessed three inmates loudly cussing at plaintiff in front of his cell door in the day room on 3-12-09 . . . 3. Whether Plaintiff went over to [defendants] directly after the 312-09 Assault and Battery and asked them why they did not stop the assault and battery. 19 4. Whether C/O Simpson forged . . . state documents which untruthfully stated that plaintiff told him that no officers saw the assault and battery on 3-12-09. 20 ... 21 7. Whether it is possible for a assault and battery which occurred in view of the tower officer and floor officers [to] go undetected by all officers in building, considering the location of the assault and battery. 22 23 24 25 26 27 28 ... 10. Whether or not [defendants] had a motive to lie about the [incident] on 3/12/09. 11. Whether or not corroborating evidence proves that [defendants] are credible witnesses. (ECF No. 90 at 30-31.) 6 1 Clearly, Scott would apply in the instant case if a video camera had recorded the attack on 2 plaintiff and defendants’ behavior during that time. See Iko v. Shreve, 535 F.3d 225, 230 (4th 3 Cir. 2008) (applying Scott where “the record contains an unchallenged videotape capturing the 4 events in question”). However, the court has not found – and defendants do not cite – a case in 5 which the Scott exception has been applied to a party’s prior, unsworn admission as documented 6 in a report. While such an admission makes plaintiff’s later, contradictory statements 7 implausible, it does not render them indisputably false. 8 Moreover, the court need not credit plaintiff’s self-serving contention that Simpson forged 9 his signature on the report, in order to find a genuine dispute of material fact. Even if plaintiff 10 stated on that day that no correctional staff witnessed the assault, and signed a report including 11 this statement, these events go to his credibility and should be weighed by the trier of fact. 12 13 Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion for summary judgment (ECF No. 84) be denied. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are 19 advised that failure to file objections within the specified time may waive the right to appeal the 20 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 Dated: February 3, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 2 / harr2000.sj 28 7

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