Martin v. Her
Filing
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ORDER signed by Chief District Judge Kimberly J. Mueller on 3/31/2021. The findings and recommendations filed August 21, 2020 are adopted in full and Defendant's summary judgment motion (ECF No. 33) is granted in part and denied in part. (Andrews, P)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SMILEY MARTIN,
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No. 2:18-cv-1658 KJM KJN P
Plaintiff,
v.
ORDER
J. HER,
Defendant.
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided
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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On August 21, 2020, the magistrate judge filed findings and recommendations, which
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were served on all parties and which contained notice to all parties that any objections to the
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findings and recommendations were to be filed within fourteen days. ECF No. 44. Defendant
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has filed objections to the findings and recommendations, ECF No. 45, which the court addresses
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in this order. Given the objections, in accordance with the provisions of 28 U.S.C. § 636(b)(1)(C)
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and Local Rule 304, this court has conducted a de novo review of the matter. As a result of that
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review, the court finds the findings and recommendations to be supported by the record and by
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the proper analysis as explained and supplemented below.
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The magistrate judge recommended that defendant’s summary judgment motion be
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denied, in part, on the grounds that whether defendant witnessed the fight is a materially disputed
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fact. In the objections defendant argues, in part, that even if he witnessed the fight, he did not act
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with deliberate indifference because there was nothing he could have reasonably done to stop the
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fight or prevent plaintiff’s injuries. ECF No. 45 at 3–7. As observed by the magistrate judge,
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defendant did not argue in the summary judgment motion that it was undisputed there was
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nothing he could have reasonably done to stop the fight or prevent plaintiff’s injuries if he
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witnessed the fight. See ECF No. 44 at 13 n.7. The undersigned exercises her discretion not to
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consider this new argument raised in defendant’s objections. See Brown v. Roe, 279 F.3d 742,
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744-46 (9th Cir. 2002).
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Additionally, this court agrees that defendant Her is not protected by qualified immunity
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in the face of the claim that defendant Her failed to intervene after the fight broke out. A prison
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official is deliberately indifferent in violation of the Eighth Amendment if the official knew of
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and disregarded a substantial risk of serious harm to the inmate. Farmer v. Brennan, 511 U.S.
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825, 834, 114 S.Ct. 1970 (1994). “[T]he law regarding prison officials’ duty to take reasonable
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measures to protect inmates from violence at the hands of other prisoners is ‘clearly established.’”
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Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001) (quoting Farmer, 511 U.S. at 833).
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While Robinson involved correctional officers who knew of the likelihood of the prison
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fight prior to its occurrence, the holding is still relevant here. In affirming the district court’s
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denial of qualified immunity to prison guards who enabled a prison fight and then failed to
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intervene in the fight, the Ninth Circuit held the “alleged fact that guards failed to intervene while
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Robinson was attacked by another inmate” demonstrated the defendant’s indifference. Id. at 867.
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In considering the evidence in the light most favorable to the plaintiff, if defendant did know of
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the fight, which is a materially disputed fact, it is reasonable to presume that defendant Her could
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have taken some action to protect the plaintiff from violence at the hands of other prisoners. See
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ECF No. 44 at 9 n.5 (citing to defendant’s list of undisputed facts, ECF No. 39 at 6, and
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defendant Her’s declaration ECF No. 33-4 at 3); see also id. at 14 n.9 (citing plaintiff’s deposition
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at 26 demonstrating that plaintiff’s use of the emergency button could have given defendant
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knowledge of the fight). And Farmer and Robinson put defendant on notice of the clearly
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established law applicable to defendant’s obligations under these circumstances.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The findings and recommendations filed August 21, 2020, are adopted in full;
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2. Defendant’s summary judgment motion (ECF No. 33) is granted as to plaintiff’s claim
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alleging that defendant Her violated his Eighth Amendment rights when he released plaintiff to
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breakfast and as to plaintiff’s claim alleging that defendant retaliated against him in violation of
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the Fourteenth Amendment; and
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3. Defendant’s summary judgment motion is denied in all other respects, including with
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respect to a First Amendment retaliation claim for the reasons set forth in the findings and
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recommendations.
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DATED: March 31, 2021.
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