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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARL F. HARRISON,

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Plaintiff,

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No. 2:12-cv-2000 KJM CKD P

v.

FINDINGS & RECOMMENDATIONS

D. DeBOARD, et al.,

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Defendants.

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I. Introduction

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This pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983 proceeds on the

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complaint filed July 31, 2013 against defendants DeBoard and Lopez.1 (ECF No. 1.) Plaintiff

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claims that defendants were deliberately indifferent to his safety when they failed to protect him

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from other inmates, thus violating the Eighth Amendment prohibition against cruel and unusual

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punishment.

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Before the court is defendants’ April 25, 2014 motion for summary judgment. (ECF No.

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84.) Plaintiff has filed an opposition. (ECF No. 90.) Having carefully reviewed the record and

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the applicable law, the undersigned will recommend that defendants’ motion be denied.

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Plaintiff’s claims against two other defendants were severed and are the subject of a separate
action. (ECF No. 46.)
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II. Summary Judgment Standard

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

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by

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“citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R.

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Civ. P. 56(c)(1)(A).

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Summary judgment should be entered, after adequate time for discovery and upon motion,

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against a party who fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at trial. See

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an

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essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

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Id.

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce

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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

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Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963

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amendments).

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In resolving the summary judgment motion, the evidence of the opposing party is to be

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believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the

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facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475

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U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn. See Richards

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

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(9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than
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simply show that there is some metaphysical doubt as to the material facts . . . . Where the record

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taken 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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III. Plaintiff’s Allegations

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In his complaint, plaintiff alleges as follows:

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On the morning of March 12, 2009, three inmates returned from breakfast and came to

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plaintiff’s cell, where they began loudly threatening and cursing at plaintiff as he stood in the cell

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doorway. (ECF No. 1 at 8.) They had been trying to intimidate plaintiff into smuggling drugs for

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them. (Id.) As the yelling and threats continued, plaintiff looked over at Correctional Officers

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DeBoard and Lopez, who were at their desk about 35 feet away. (Id.) Plaintiff saw that both

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were watching the inmates’ verbal assault, which went on for at least two minutes, but did not

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stop it. (Id.)

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One inmate hit plaintiff in the face, busting his lip, and hit plaintiff at least three more

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times in the jaw, nose, and eye. (Id.) Plaintiff fell down, and the three inmates punched and

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kicked him while he was on the ground. (Id. at 8-9.) This attack went on for approximately two

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minutes. (Id. at 9.) Afterward, the three inmates walked past DeBoard and Lopez, back to their

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cells. (Id.) DeBoard and Lopez laughed and gave each other a “high five” knuckle touch. (Id.)

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Plaintiff went back to his cell, packed his property, and asked DeBoard to move him out

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of the building, but he refused. (Id.) Plaintiff waited until the next shift, then told non-defendant

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Correctional Officer Simpson about the attack. (Id.) Simpson moved plaintiff to a locked shower

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and reported the incident. (Id.) Plaintiff was placed in administrative segregation pending

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investigation of the assault. (Id. at 10.)

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IV. Facts

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The following facts are undisputed2:

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Plaintiff is a state prisoner who, at all relevant times, was housed at Mule Creek State

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Prison. On March 12, 2009, Correctional Officers D. DeBoard and R. Lopez worked at MCSP on
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See ECF No. 84-1 (Defendants’ Statement of Undisputed Facts) and ECF No. 90 at 29-31
(Plaintiff’s Statement of Disputed Facts).
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second watch (from 6:00 a.m. to 2:00 p.m.). They were assigned as floor officers responsible for

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maintaining security in Facility A, Building 3.

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Sometime around 8:00 a.m., DeBoard and Lopez were overseeing Building 3’s inmates

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returning to the housing unit from breakfast. The officers were at the podium in the center of the

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dayroom.

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At some point during the third watch (from 2:00 to 10 p.m.), plaintiff told Facility A staff

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that he had been assaulted by three inmates from his housing unit around 10:00 a.m. that morning.

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Plaintiff told correctional staff that he feared for his safety and wanted to be rehoused in another

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unit. Medical staff examined plaintiff and noted injuries to his face and mouth. Based on

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plaintiff’s allegations and injuries, plaintiff was removed from Facility A, Building 3 and

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rehoused in the prison’s administrative segregation unit for his safety while the allegations were

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investigated.

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That day, Correctional Officer Simpson worked at MCSP on third watch. He was

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assigned to conduct a fact-finding inquiry into plaintiff’s allegations. Officer Simpson

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interviewed plaintiff that evening in connection with the allegations and prepared a memorandum

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that summarized the results of his interview. After describing plaintiff’s account of the attack by

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three inmates, the memorandum continues: “Harrison stated this went on without the floor

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officers [sic] detections.” (ECF No. 84-6 at 4.) Plaintiff’s handwritten name appears at the top of

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the first page of the memorandum, and his handwritten initials at the second page in the lower

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right hand corner. (Id. at 4-5.) Afterwards, Officer Simpson forwarded the memorandum to his

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supervisor for review.

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V. Analysis

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The Eighth Amendment’s prohibition on cruel and unusual punishment imposes on prison

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officials, among other things, a duty to “take reasonable measures to guarantee the safety of the

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inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468 U.S.

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517, 526-27 (1984)). “‘[P]rison officials have a duty ... to protect prisoners from violence at the

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

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two requirements are met. First, the deprivation alleged must be, objectively, ‘sufficiently
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serious[.]’ For a claim . . . based on a failure to prevent harm, the inmate must show that he is

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incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834. Second, “[t]o

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violate the Cruel and Unusual Punishments Clause, a prison official must have a ‘sufficiently

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culpable state of mind’ ... [T]hat state of mind is one of ‘deliberate indifference’ to inmate health

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or safety.” Id. The prison official will be liable only if “the official knows of and disregards an

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excessive risk to inmate health and safety; the officials must both be aware of facts from which

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the inference could be drawn that a substantial risk of serious harm exists, and he must also draw

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the inference.” Id. at 837.
Here, defendants argue that plaintiff has not created a “genuine” dispute of fact as to

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whether DeBoard and Lopez witnessed the attack on plaintiff, or had any knowledge that plaintiff

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was at risk of harm on the morning of March 12, 2009. Plaintiff and defendants give different

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accounts of these events, and defendants acknowledge that credibility issues must be resolved by

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the factfinder at trial. However, defendants contend that the instant motion is governed by an

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exception to the general rules of summary judgment, created by the Supreme Court in Scott v.

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Harris, 550 U.S. 372 (2007).

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In Scott, the Supreme Court considered whether there was a genuine dispute of material

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fact as to whether respondent, a motorist fleeing a pursuing police car, was driving in such a way

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as to endanger human life. An “added wrinkle” was that the chase had been caught on videotape

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(id. at 378), and the tape “so utterly discredited” respondent’s version of events “that no

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reasonable jury could have believed him.” Id. at 380. The Court held: “When opposing parties

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tell two different stories, one of which is blatantly contradicted by the record, so that no

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reasonable jury could believe it, a court should not adopt that version of the facts for purposes of

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ruling on a motion for summary judgment.” Id. See Rutter Group Practice Guide: Federal Civ.

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Proc. Before Trial, Calif. & 9th Cir. Eds., Chap. 14D § 14:154.5 (2014) (citing Scott for

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proposition that, where party’s claims of disputed evidence are not simply implausible, but are

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directly and irrefutably contradicted by evidence that clearly shows there is no genuine issue of

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material fact, summary judgment is proper).

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Defendants argue that there “is no evidence (aside from the complaint’s unsupported

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allegations) that either Defendant knew” that plaintiff faced a substantial risk of harm on the

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morning of March 12, 2009. (ECF No. 84-1.) On the contrary, defendants assert, when Officer

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Simpson interviewed plaintiff later that day, plaintiff stated that the assault was unseen by

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correctional staff, then signed and initialed Simpson’s memorandum stating as much. Defendants

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argue that plaintiff’s “current rendition of events” is blatantly contradicted by the record and thus,

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under Scott, does not establish a genuine dispute of fact as to whether defendants knowingly

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disregarded a substantial risk to plaintiff.

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In response, plaintiff contends that he never signed Simpson’s memorandum and suggests

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that his signature and initials were forged. (ECF No. 90 at 4-5.) He submits a sworn declaration

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stating that defendants watched the attack on him and did nothing to stop it. (Id. at 32-35.)

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According to plaintiff, the disputed facts include:

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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.

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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.

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...

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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.

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...
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.)
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Clearly, Scott would apply in the instant case if a video camera had recorded the attack on

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plaintiff and defendants’ behavior during that time. See Iko v. Shreve, 535 F.3d 225, 230 (4th

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Cir. 2008) (applying Scott where “the record contains an unchallenged videotape capturing the

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events in question”). However, the court has not found – and defendants do not cite – a case in

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which the Scott exception has been applied to a party’s prior, unsworn admission as documented

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in a report. While such an admission makes plaintiff’s later, contradictory statements

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implausible, it does not render them indisputably false.

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Moreover, the court need not credit plaintiff’s self-serving contention that Simpson forged

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his signature on the report, in order to find a genuine dispute of material fact. Even if plaintiff

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stated on that day that no correctional staff witnessed the assault, and signed a report including

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this statement, these events go to his credibility and should be weighed by the trier of fact.

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Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion for summary
judgment (ECF No. 84) be denied.

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These findings and recommendations are submitted to the United States District Judge

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

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

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

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

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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: February 3, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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