Milton v. Jacquez et al

Filing 35

ORDER DENYING MOTION FOR SUMMARY JUDGMENT; REFERRING CASE TO PRO SE PRISONER MEDIATION PROGRAM; STAYING CASE by Judge William Alsup denying 26 Motion for Summary Judgment; denying 34 Motion (Attachments: # 1 Certificate of Service) (dt, COURT STAFF) (Filed on 9/13/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 09-5785 WHA (PR)

ROBERT S. MILTON,

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For the Northern District of California

United States District Court

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Plaintiff,

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v.
F. JACQUEZ, Warden; M. CATE,
Secretary of the California Department
of Corrections and Rehabilitation;
C.M. PATTEN, Captain; J. AKIN,
Lieutenant; D. W. BRADBURY,
Associate Warden; CHAUCER,
Sergeant; J. FRISK, Sergeant; C.
PARRY, Lieutenant,

ORDER DENYING MOTION FOR
SUMMARY JUDGMENT;
REFERRING CASE TO PRO SE
PRISONER MEDIATION
PROGRAM; STAYING CASE

(Docket Nos. 26, 34)

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Defendants.
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INTRODUCTION
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Plaintiff, a California prisoner proceeding pro se, has filed a civil rights complaint under
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42 U.S.C. 1983. Defendants F. Jacquez, Matthew Cate, C.M. Patten, J. Akin, D.W. Bradbury,
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Chaucer, J Frisk, and C. Parry have filed a motion for summary judgment on plaintiff’s Eighth
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Amendment claim. The motion does not address plaintiff’s retaliation claim. Plaintiff has filed
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an opposition. Although ordered to do so, defendants did not file a reply brief. For the reasons
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discussed below, defendants’ motion for summary judgment is DENIED.
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STATEMENT
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Plaintiff began his incarceration in the California prisons in 2001 in San Quentin State
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Prison (Pl. Depo. 8). He requested placement on a “sensitive needs yard” (“SNY”) away from

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the general inmate population, not because he had dropped out of a gang or the nature of his

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conviction but because he did not want to be recruited into a gang in the prison’s general

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population (id. 9). The request was granted (ibid.).

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In March 2002, plaintiff was transferred to California State Prison, Corcoran, and placed

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in the Secured Housing Unit (“SHU”) as punishment for hitting a Sergeant at San Quentin (id.

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11). He again requested placement on an SNY in the SHU, but the request was denied because

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there was no SNY within the SHU at Corcoran at that time (id. 13). He remained in the SHU

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due to repeated assaults on prison guards until September 2005, when he was transferred to

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federal custody (id. 18). He then returned to Corcoran in December 2006, by which time the
Corcoran SHU had an SNY (id. 18-19). Plaintiff’s request to be placed in the SNY was granted

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For the Northern District of California

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(ibid.). In August 2008, he was moved out of the SNY to the general SHU area based on

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reports that he had offered to hire another inmate to kill a prison guard after being paroled (id.

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20-21). Plaintiff was not otherwise disciplined based upon such reports (Opp. 2). In November

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2008, plaintiff was transferred from Corcoran to the SHU at Pelican Bay (Pl. Depo. 22).

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At Pelican Bay, plaintiff again requested placement in an SNY, but the request was

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denied by Pelican Bay’s “Institutional Classification Committee,” chaired by defendant Warden

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Jacquez, because Pelican Bay has no SNY (id. 22-23; Opp. 2). Instead, the committee indicated

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that he could possibly share a cell with another inmate who had security concerns and in the

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interim assigned plaintiff to his own cell without a cellmate (Pl. Depo. 24-25). In the SHU,

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inmates do not eat, shower, or exercise, and as a result they are not supposed to come into

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contact with each other unless they share a cell (id. 51). For three to four months plaintiff was

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housed in a cell in sections C1 and then C2 of the SHU without incident (id. 25-27). Plaintiff

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had been requesting to move to section C12 of the SHU because he believed that inmates in

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section C12 were considered by gang members at the prison to have “sensitive needs” (id. 27).

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According to plaintiff, there are six “pods” within section C12, and pods A-D are considered to

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house sensitive needs inmates, but pods E and F do not (id. 28-29, 54).

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In March 2009, he was moved to a single cell in section C12, but to the F “pod” (id. 28-

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29). In April 2009, a prison guard who is not named as a defendant gave plaintiff’s mail to the
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wrong inmate; the mail was from a prison official responding to plaintiff’s request for a cell

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mate with “sensitive needs” (ibid.). Plaintiff’s cell door, like the doors to other cells at Pelican

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Bay, was covered in clear plastic called Lexan, but the door was not entirely covered; there was

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an opening to allow for meals to be passed in and out of the cell (id. 38). Over the next two to

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three months on approximately 10-20 occasions, active gang members “gassed” him as they

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walked by his cell in the F pod, meaning they threw urine and fecal matter into his cell; on one

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occasion, an inmate “tried to spear” him (id. 28-29, 30, 32-33, 37-39, 41, 45, 47, 49). The

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gassings themselves did not injure plaintiff, although he later contracted shingles, which he

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claims derived from the stress of the attacks (id. 41-43). Prison officials made some attempts to
find plaintiff a cellmate with sensitive needs, but these efforts were in vain (id. 33-35).

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In January 2010, plaintiff was moved out of the SHU (id. 44), after which he did not
suffer any problems from other inmates (id. 57).
ANALYSIS

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A.

STANDARD OF REVIEW
Summary judgment is proper where the pleadings, discovery and affidavits show that

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there is "no genuine issue as to any material fact and that the moving party is entitled to

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judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect

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the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute

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as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a

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verdict for the nonmoving party. Ibid.

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The moving party for summary judgment bears the initial burden of identifying those

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portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine

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issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986); Nissan Fire &

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Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When the moving party has

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met this burden of production, the nonmoving party must go beyond the pleadings and, by its

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own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial

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Ibid. If the nonmoving party fails to produce enough evidence to show a genuine issue of

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material fact, the moving party wins. Ibid.
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B.

PLAINTIFF’S CLAIMS

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Plaintiff claims that defendants were deliberately indifferent to his safety by housing

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him among active gang members and denying his requests for housing on a “sensitive needs

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yard.” The Eighth Amendment requires that prison officials take reasonable measures to

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guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular,

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prison officials have a duty to protect prisoners from violence at the hands of other prisoners.

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Id. at 833. The failure of prison officials to protect inmates from attacks by other inmates

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violates the Eighth Amendment only when two requirements are met: (1) the deprivation

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alleged is, objectively, sufficiently serious; and (2) the prison official is, subjectively,
deliberately indifferent to inmate safety. Id. at 834. In this context, the deliberate indifference

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standard is the equivalent of criminal recklessness, i.e., the official must know of and disregards

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an excessive risk to inmate health or safety. Id. at 837. The official must both be aware of facts

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from which the inference could be drawn that a substantial risk of serious harm exists, and he

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must also draw the inference. Ibid. However, an Eighth Amendment claimant need not show

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that a prison official acted or failed to act believing that harm actually would befall an inmate; it

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is enough that the official acted or failed to act despite his knowledge of a substantial risk of

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serious harm. Id. at 842.

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In applying the deliberate indifference standard in the context of inmate attack, the court

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must take into account the "competing interests" of whether prison officials (1) were guided by

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considerations of safety to other inmates, (2) took "prophylactic or preventive measures" to

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protect the prisoner, and (3) whether less dangerous alternatives were in fact available. Berg v.

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Kincheloe, 794 F.2d 457, 461-62 (9th Cir. 1986) (citing Whitley v. Albers, 475 U.S. 312, 319

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(1986)).

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It is undisputed that inmates are housed on “sensitive needs yards” when they are

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vulnerable to attack from inmates in the general population, that defendants knew that plaintiff

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had been housed on an SNY at San Quentin and at Corcoran prior to his arrival at Pelican Bay,

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and that they nevertheless housed him in an area of the Pelican Bay SHU with active gang

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members. It is further undisputed that a prison guard divulged plaintiff’s “sensitive needs”
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status to inmates in general population in plaintiff’s housing area, and that after this disclosure

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other inmates “gassed” plaintiff on multiple occasions by throwing urine and fecal matter

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through the opening in the protective plastic covering his cell door. Reasonable inferences can

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be drawn from these facts that defendants housed him in an area of the Pelican Bay SHU

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despite knowing that the other inmates in that area posed a substantial risk of harm to him, and

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that plaintiff was thereafter attacked by the other inmates.

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Defendants argue that there is no evidence that they were deliberately indifferent

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because they did not know that plaintiff was susceptible to attack. According to defendants,

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inmates who are at risk from other inmates, and therefore need SNY placement, typically have a
commitment offense viewed unfavorably by other inmates such as sex offenses or offenses

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against minors, have been labeled as a “snitch,” or have dropped out of a gang. Plaintiff

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requested SNY placement not for these reasons but because he did not want to be recruited into

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or join one of the gangs in the general population, and defendants argue that they did not know

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that this put him at risk. There are, however, three undisputed facts from which an inference

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could be drawn that defendants did know that plaintiff was at risk. First, defendants knew that

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plaintiff had been placed on SNYs at San Quentin and Corcoran, and that this meant that prison

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officials at two institutions believed he was at risk of harm from the general population.

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Second, when plaintiff requested SNY placement, defendant Jacquez indicated that plaintiff’s

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assigned cellmate could be limited to another inmate with sensitive needs. This suggests that

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Jacquez knew that plaintiff would be at risk of harm if he shared a cell with an inmate from the

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general population. Lastly, prison officials looked in vain for an inmate that could safely share

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a cell with plaintiff, i.e. one who was also not in a gang, which they would not do unless they

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believed he risked harm at the hands of an inmate in the general population. When they could

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not find such a cellmate, they allowed him to have his own cell rather than share it with an

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inmate in the general population. A fact-finder could infer from this evidence that defendants

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knew that plaintiff faced a substantial risk of harm if he was housed with inmates from the

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general population.

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Defendants argue that they did enough to protect him because, although he was not in a
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SNY, his cell was covered with hard plastic and he, like all other SHU inmates, was escorted by

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guards every time he was out of his cell. Plaintiff was not attacked outside his cell, however.

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He was attacked while in his cell by inmates who threw the “gassing” material into the cell

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when they walked by it. This suggests, as plaintiff asserts, that the plastic covering did not

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entirely block the front of his cell or protect him from harm from other inmates when they

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passed in front of his cell. Although there was no SNY at PBSP, defendants could have

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arranged for his transfer to a prison that had an SNY for SHU inmates, as they did at Corcoran.

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Alternatively they could have housed him in pods A-D of section C12, which were known to

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have other inmates with “sensitive needs.” Defendants have presented no evidence, let alone

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uncontradicted evidence, that such alternatives were either not feasible or not practical.
Defendants also argue that plaintiff’s claims fail under 42 U.S.C. 1997e(e) because he

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has not suffered more than de minimis injury. Section 1997e(e) requires a physical injury only

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to collect damages for mental or emotional injury. See also Farmer, 511 U.S. at 845 (prisoner

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need not wait until he is actually assaulted to state a claim and obtain relief on an Eighth

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Amendment claim). Plaintiff does not seek damages for only mental or emotional injuries, but

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also for his physical injuries suffered as a result of the gassing, in particular the contraction of

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shingles. Plaintiff also seeks injunctive relief, which means that even if physical injury were

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absent, as defendants contend, Section 1997e(e) would not bar his claim.

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Defendants also argue that they are entitled to qualified immunity. A reasonable officer

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would have known at the time of the incidents in 2009 that housing an inmate who had a history

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of being placed in “sensitive needs” yards in an area of Pelican Bay’s SHU with active gang

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members, and denying his requests for more protective custody, presented a serious risk of

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harm to the inmate. See generally Berg, 794 F.2d at 459; see also Martin v. White, 742 F.2d

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469, 474 (8th Cir. 1984) (under Eighth Amendment enough to show that an identifiable group

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of prisoners suffer a pervasive risk of harm from other inmates if the plaintiff is a member of

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that group).

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Defendants are not entitled to summary judgment on plaintiff’s Eighth Amendment
claim because reasonable inferences can be drawn from the record that defendants knew that
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they housed him in an area of Pelican Bay where he faced a substantial risk of serious harm.

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Plaintiff also raises a claim of retaliation for filing habeas petitions, in violation of the First

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Amendment. Defendants are not entitled to summary judgment on this claim either as they

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have not addressed it in their motion.

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C.

REFERRAL TO PRO SE PRISONER MEDIATION PROGRAM

rights cases may be referred to a neutral magistrate judge for prisoner mediation proceedings.

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The proceedings consist of one or more conferences as determined by the mediator. The

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conferences are generally conducted at the plaintiff’s institution, with the defendants or their

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representatives attending by videoconferencing if they wish. As summary judgment is being

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For the Northern District of California

The court has established a Pro Se Prisoner Mediation Program. Certain prisoner civil

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United States District Court

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denied, this case is appropriate for mediation and will be referred to the Pro Se Prisoner

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Mediation Program.

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CONCLUSION

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For the foregoing reasons, defendants’ motion for summary judgment (document

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number 26 on the docket) is DENIED.

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This case is REFERRED to Magistrate Judge Vadas pursuant to the Pro Se Prisoner

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Mediation Program. All further proceedings in this case except those related to the mediation

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and compliance with the subpoena as ordered above are STAYED pending completion of that

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procedure.

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The mediation proceedings shall take place within 120 days of the date this order is

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entered. Magistrate Judge Vadas shall coordinate a time and date for a mediation proceeding

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with all interested parties or their representatives and, within five days after the conclusion of

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the mediation proceedings, file a report. All mediation proceedings shall be confidential and no

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statement made therein will be admissible in any proceedings in the case, unless the parties

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otherwise agree. No part of the mediation proceeding shall be reported, or otherwise recorded,

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without the consent of the parties, except for any memorialization of a settlement.

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The clerk shall send a copy of this order to Magistrate Judge Nandor Vadas.

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IT IS SO ORDERED.

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Dated: September 13 , 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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