Jackson v. Chappell et al

Filing 170

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTIONS FOR CROSS-SUMMARY JUDGMENT (ECF Nos. 94, 114, 125 & 168) by Judge Charles R. Breyer: Denying 94 Motion for Summary Judgment; Granting 114 Motion for Summary Judgment; Denying 125 Motion for Summary Judgment. (Attachments: # 1 Certificate/Proof of Service)(lsS, COURT STAFF) (Filed on 1/5/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CHARLIE D. JACKSON, #1127769,
Plaintiff(s),

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vs.
KEVIN R. CHAPPELL, et al.,
Defendant(s).

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No. C 14-3108 CRB (PR)
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S
MOTIONS FOR CROSSSUMMARY JUDGMENT
(ECF Nos. 94, 114, 125 & 168)

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Plaintiff, a prisoner at the Northern Nevada Correctional Center in Carson

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City, Nevada, seeks damages under 42 U.S.C. § 1983 based on allegations that,

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while he was at San Quentin State Prison (SQSP) in San Quentin, California,

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correctional officer B. Burpo intentionally poisoned his food and, when plaintiff

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reported the poisoning, correctional officers H. De Leon, H. Altunc and K.

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France retaliated against plaintiff by further poisoning him, verbally abusing him

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and otherwise harassing him. Plaintiff also alleges that then-warden Kevin R.

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Chappel and Sergeant L. Barnes were told that correctional officers were

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poisoning and harassing plaintiff, but neither took any steps to protect him.

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Per orders filed on May 7, 2015 and January 12, 2016, the court found

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that: (1) plaintiff’s allegations that Burpo, De Leon, Altunc and France

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intentionally poisoned plaintiff’s food state a cognizable § 1983 claim for

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damages for deliberate indifference to plaintiff’s health and safety against Burpo,

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De Leon, Altunc and France; (2) plaintiff’s allegations that when plaintiff

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reported that Burpo was poisoning his food, De Leon, Altunc and France

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retaliated against plaintiff by further poisoning him, verbally assaulting him and

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otherwise harassing him state a cognizable § 1983 claim for damages for

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retaliation against De Leon, Altunc and France; and (3) plaintiff’s allegations that

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Chappell and Barnes were told that correctional officers were poisoning and

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harassing plaintiff, but neither took any steps to protect him, state a cognizable

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§ 1983 claim for damages for deliberate indifference to plaintiff’s health and

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safety against Chappell and Barnes.

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Defendants now move for summary judgment on the ground that there are

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no material facts in dispute and that they are entitled to judgment as a matter of

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law on plaintiff’s three cognizable § 1983 claims against them. Defendants also

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argue that plaintiff did not exhaust available administrative remedies as to his

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claims against France and Chappell, as required by 42 U.S.C. § 1997e(a), and

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that Chappel and Barnes are entitled to qualified immunity. Plaintiff has filed an

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opposition and defendants have filed a reply. Plaintiff also has filed two cross-

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motions for summary judgment on both exhaustion and the merits of his claims.

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Defendants have filed oppositions and plaintiff has filed replies (and a surreply).

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BACKGROUND

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Plaintiff was incarcerated at SQSP “between May 2010 and December

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2012.” Second Am. Compl. (SAC) (ECF No. 78) at 7. He was initially housed

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in the Alpine section, a protective-custody unit, but in September 2010 had

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himself placed in administrative segregation (ad seg) “[t]o deal with severe

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mental illness,” including “acute social phobia, panic attacks, and depression.”

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Id. Plaintiff was told that “we don’t house people in ad seg for having social

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phobia or for being antisocial or something to that effect,” so he threatened to

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assault staff if he remained in the Alpine section in order to be moved to ad seg.

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Van Loh Decl. Ex. A (ECF No. 120-1) (Pl.’s Depo.) at 87.

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Plaintiff was housed in ad seg between “September 2010 and November

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2011.” SAC at 7. He was first placed on the second tier of Carson section,

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where defendant France worked as a tier officer. Plaintiff alleges that “[fr]om

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September 2010 to December 2010,” France “misappropriated” his mail,

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“verbally abused” him and “otherwise harassed” him. Id. at 8-9.

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In December 2010, plaintiff was transferred to Donner section, another

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section in ad seg. Plaintiff testified that he continued to experience verbal

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harassment and “a lack of respect” by other correctional officers in Donner

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section. Pl’s Depo. at 96.

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In March 2011, plaintiff returned to Carson section, this time to the fourth

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tier, where defendant Burpo worked as a tier officer. Plaintiff alleges that

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“[f]rom March 2011 to May 20, 2011,” Burpo “poisoned” his meals, “verbally

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abused” him and “otherwise harassed” him. SAC at 7.

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On May 20, 2011, plaintiff alleges he became “violently sick” after eating

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the breakfast Burpo served him and “had to go to the emergency room because of

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the poisoning.” Id. Later that same day, plaintiff alleges that he “submitted a

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grievance” regarding the incident to a correctional officer named Fry, but never

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received a response. Id. at 8.

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On May 21, 2011, plaintiff alleges that he told defendant Barnes that

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Burpo had poisoned his food on May 20, 2011 “requiring him to go to the SQSP

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emergency room.” Id. at 11. But Barnes “took no steps to protect plaintiff other

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than transferring plaintiff to a different cell,” id., in “another section” in ad seg –

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“Donner Section on the second tier,” Pl’s Depo. at 72.

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In “[l]late May or early June of 2011,” id. at 75, plaintiff allegedly sent a

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letter to “Rylan Conner,” in the Office of the Ombudsman, reporting that “Burpo

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had poisoned him,” SAC at 8. As a result, plaintiff claims Burpo “was fired or

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reassigned.” Id. But Burpo declares that he “transferred from San Quentin to

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California State Prison – Sacramento in June 2011 because I requested the

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transfer and it was approved.” Burpo Decl. (ECF No. 116) at 2.

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In June 2011, plaintiff was moved to the third tier of Carson section,

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where defendants De Leon and Altunc worked as tier officers. Plaintiff alleges

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that “[b]etween June 2011 and October 2011,” De Leon and Altunc “poisoned”

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his meals and verbally abused him by calling him names. SAC at 10. Plaintiff

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claims De Leon and Altunc poisoned his meals and verbally abused him “in

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retaliation” for his submitting a grievance and letter reporting that “Burpo

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poisoned him.” Id.
In October 2011, plaintiff returned to the second tier of Carson section,

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where defendant France worked. Plaintiff alleges that “[f]rom October 2011 to

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November 2011,” France “poisoned” his meals, “verbally abused” him and

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“otherwise harassed” him. Id. at 9. Plaintiff claims France poisoned his meals

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and verbally abused and harassed him “in retaliation” for his submitting a

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grievance and letter reporting that “Burpo poisoned him.” Id. at 8, 9.

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On November 4, 2011, plaintiff told defendant Barnes that “he was being

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subjected to various abuses and mistreatment,” including “poisoning” and “verbal

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abuse,” by defendants De Leon, Altunc and France. Id. at 11-12. But Barnes

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“took no steps to protect” him, id. at 12, other than to allow plaintiff to transfer to

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“any tier, any section” in ad seg plaintiff wanted, Pl.’s Depo. at 121. Plaintiff

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chose “the fifth tier in Donner section,” where none of the correctional officer

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defendants worked. Id.

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On November 16, 2011, plaintiff was released from ad seg back to the

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“Alpine section” protective-custody unit. Pl.’s Depo. at 128-29. He remained

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there until April 2012, when correctional staff moved him back to “Donner

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Section” in ad seg while investigating him for possible involvement in a

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protective-custody prison gang. Id. at 148-49. Plaintiff testified that an officer

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he did not know in Donner section tampered with his food and he reported that he

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was suicidal. He was hospitalized for two or three days and moved to the

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“adjustment center” (AC), where he remained until June 2012. Id. at 150-52.

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Plaintiff further testified that an unidentified officer at the AC tampered with his

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meals. He was transferred back to Alpine section in June 2012, and was released

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from SQSP on December 2012.
Plaintiff alleges that defendant Chappell was “informed” multiple times by

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plaintiff, his mother and others that plaintiff was being “subjected to continuous

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and ongoing poisoning,” “verbal abuse” and other “harassment and

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mistreatment,” but Chappell “took no steps to protect plaintiff.” SAC at 12-13.
DISCUSSION

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A.

Standard of Review

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Summary judgment is proper where the pleadings, discovery and

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affidavits show that there is “no genuine dispute as to any material fact and the

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[moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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Material facts are those which may affect the outcome of the case. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

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genuine if there is sufficient evidence for a reasonable jury to return a verdict for

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the nonmoving party. Id.

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The moving party for summary judgment bears the initial burden of

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identifying those portions of the pleadings, discovery and affidavits which

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demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

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Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden

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of proof on an issue at trial, it must affirmatively demonstrate that no reasonable

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trier of fact could find other than for the moving party. But on an issue for which

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the opposing party will have the burden of proof at trial, the moving party need

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only point out “that there is an absence of evidence to support the nonmoving

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party’s case.” Id.
Once the moving party meets its initial burden, the nonmoving party must

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go beyond the pleadings to demonstrate the existence of a genuine dispute of

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material fact by “citing to specific parts of materials in the record” or “showing

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that the materials cited do not establish the absence or presence of a genuine

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dispute.” Fed. R. Civ. P. 56(c). If the nonmoving party fails to make this

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showing, “the moving party is entitled to judgment as a matter of law.” Celotex,

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477 U.S. at 323.
There is no genuine issue for trial unless there is sufficient evidence

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favoring the nonmoving party for a jury to return a verdict for that party.

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Anderson, 477 U.S. at 249. If the evidence is merely colorable, or is not

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significantly probative, summary judgment may be granted. Id. at 249-50.

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When the parties file cross-motions for summary judgment, the district

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court must consider all of the evidence submitted in support of both motions to

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evaluate whether a genuine issue of material fact exists precluding summary

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judgment for either party. The Fair Housing Council of Riverside County, Inc. v.

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Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001).

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B.

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Analysis
Defendants argue that they are entitled to summary judgment on plaintiff’s

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three cognizable § 1983 claims for damages against them: (1) Burpo, De Leon,

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Altunc and France were deliberately indifferent to plaintiff’s health and safety by

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intentionally poisoning plaintiff’s food; (2) De Leon, Altunc and France

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retaliated against plaintiff for reporting that Burpo was poisoning his food, by

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further poisoning, verbally assaulting and otherwise harassing plaintiff; and (3)

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Chappell and Barnes were deliberately indifferent to plaintiff’s health and safety

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by failing to protect him.

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Poisoning Plaintiff’s Food
A prison official violates the Eighth Amendment only if two

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requirements are met: (1) the deprivation alleged must be, objectively,

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sufficiently serious, and (2) the prison official possesses a sufficiently culpable

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state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994). In prison-

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conditions cases, the requisite state of mind to establish an Eighth Amendment

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violation is one of deliberate indifference to inmate health or safety. Id.
A prison official is deliberately indifferent if he knows that a prisoner

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faces a substantial risk of serious harm and disregards that risk by failing to take

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reasonable steps to abate it. Id. at 837, 844. The official must both be aware of

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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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In order to establish a claim for damages against an individual prison

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official under § 1983, a plaintiff also must set forth evidence showing that the

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specific prison official’s deliberate indifference was the “actual and proximate

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cause” of the deprivation of plaintiff’s Eighth Amendment rights. Leer v.

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Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Defendants argue that they are entitled to summary judgment on plaintiff’s

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claim that Burpo, De Leon, Altunc and France were deliberately indifferent to

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plaintiff’s health and safety by poisoning his food because plaintiff has set forth

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no objective evidence that he was poisoned (and consequently suffered a serious

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harm brought on by being poisoned), or that Burpo, De Leon, Altunc or France

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caused the alleged poisoning. Defendants also argue that plaintiff’s medical

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records contradict his claim that he was poisoned because the records instead

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show that plaintiff suffered only from indigestion and a possible ulcer, both of

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which were treated with medication. In support, defendants submit documentary

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evidence showing the following:

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On June 14, 2011, plaintiff was seen by medical staff for multiple

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complaints, including “white growth on his tonsils, nasal congestion, ringworm

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on the abdomen[, and] increased flatulence the past two months. He denies any

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blood in the stools . . . . He has no nausea or vomiting.” Van Loh Decl. Ex. B

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(ECF No. 120-2) at 3. He was diagnosed with dyspepsia (indigestion) with

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increased flatulence and prescribed “simethicone” to address it. His weight was

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187 pounds, down four pounds since his last visit.

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On July 15, 2011, plaintiff was seen by medical staff for allergies. He

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reported that the simethicone was helping improve his dyspepsia and that he had

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not experienced any nausea or vomited. Plaintiff “has been attempting to lose

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weight to help lower his blood pressure. He actually lost 11 pounds since his last

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visit.” Id. at 4. His weight was 176 pounds. The notes state, “Resolved

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dyspepsia.” Id. at 5.

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On September 7 and 13, 2011, plaintiff reported to his dentist that his

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general health was good, and that he had not experienced any diarrhea, vomiting,

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nausea or stomach problems.

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On September 19, 2011, plaintiff was seen by medical staff for follow-up

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on face lacerations and a small bone fracture on his jaw after an altercation with

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another inmate. He reported that dyspepsia was “not an issue” and that he “has

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no difficulty eating.” Id. at 8. His weight was recorded at 181 pounds, up five

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pounds since the last visit. Plaintiff expressed concern about a growth on his left

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tonsil, which he worried might be malignant. Blood and urine tests from October

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11, 2011, revealed slightly low glucose levels, but were otherwise normal.
On October 21, 2011, plaintiff was seen by medical staff for a follow-up

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visit. He again expressed concern about a cyst on his tonsil, which the doctor did

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not believe required removal, and worried that he might have a kidney infection

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and/or an ulcer. He reported that he was “able to eat and has gained weight.” Id.

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at 11. His weight was 185 pounds, up four pounds since the last visit. Medical

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staff ordered tests for plaintiff’s complete blood count (CBC), vitamin D level

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and a serum antigen for H. pylori1 because “the patient persists that he has an

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ulcer.” Id. at 12.

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On November 7, 2011, plaintiff was informed that he needed to “start

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antibiotics” for his upset stomach because the H. pylori test had come back

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“nearly positive.” Id. at 13 (emphasis in original). A urine test on that same day

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showed trace amounts of keytones, protein and bacteria, but a subsequent urine

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test on November 23, 2011 came back normal.

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On December 1, 2011, plaintiff was seen by medical staff following

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observation for “suicidal ideation.” Id. at 19. He was started on the anti-

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depressant “sertraline” and “currently states he is feeling much more stable.

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Apparently, he felt that Custody had been putting foreign objects in his food, as

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well as spraying pepper spray in his food.” Id. “Quite happy he is out of

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segregation.” Id. He states he currently “has no suicidal ideations or the need to

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hurt others.” Plaintiff’s weight was recorded as 175 pounds, down ten pounds

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since his last visit, and H. pylori test was equivocal. But a subsequent H. pylori

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test on December 23, 2011 showed that the issue was resolved.

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On February 22, 2012, plaintiff reported “spasms in stomach.” Id. at 22.

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Helicobacter pylori (H. pylori) is a type of bacteria that lives in the digestive
tract and can cause ulcers.

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He also told medical staff that he “has continued concerns that Custody is

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poisoning his food.” Id. at 23. Medical staff noted that “[w]e have done a

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number of tests in the past, but the patient insists that he be checked for ‘organ

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damage.’ He states it is not normal that he feels Custody is watching him. He

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currently is taking sertraline . . . [and] I am not seeing that he has a diagnosis of

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paranoid schizophrenia.” Id. Plaintiff’s weight was recorded as 175 pounds and

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he denied diarrhea, vomiting or nausea. Medical staff ordered “a [comprehensive

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metabolic panel (CMP)], hepatitis A and B serologies, vitamin D level, and a UA

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so I can show patient that his laboratory studies are within normal limits.” Id.

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Medical staff also noted plaintiff’s diagnosis of major depression and that

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“[t]here is a component of paranoia here.” Id. Plaintiff’s lab results came back

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normal, except his glucose levels were slightly low.

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On March 1, 2012, medical staff took biopsies of bumps on plaintiff’s
nose and abdomen for skin cancer screening, and both returned normal results.
On March 15, 2012, medical staff saw plaintiff for a follow-up visit on the

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biopsies. Medical staff noted that plaintiff “has been requesting screening

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laboratory studies after he had daily GI discomfort after the food delivered to him

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in Administrative Segregation []. Concerned that he may have been poisoned.

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He has had no further sequelae since leaving that unit . . . .” Id. at 32. Plaintiff’s

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weight was recorded as 170 pounds.

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On June 8, 2012, plaintiff was seen by medical staff for “bloating and

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flatulence after meals.” Id. at 33. Medical staff noted that plaintiff “feels it is

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due to a ‘caustic substance in his food’ and looking at his last note he felt that he

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may be being poisoned. The patient has no nausea, vomiting or abnormal

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stools.” Id. Medical staff ordered a trial of simethicone to address plaintiff’s

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abdominal discomfort.

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On June 22, 2012, plaintiff was seen by medical staff for a buttock lesion

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and weight loss. Medical staff noted that plaintiff “states he is eating a normal

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diet. He had laboratory studies done in February that showed normal CMP,

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vitamin D normal, hepatitis B immune.” Id. at 34. Plaintiff’s weight was

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recorded as 161 pounds. Medical staff ordered a TSH (thyroid stimulating

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hormone) test, which came back normal.

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On July 26, 2012, plaintiff reported that he was poisoned at the AC. He

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expressed concern that “he was given ‘caustic material’ in his food” and

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requested a renal function panel. Id. at 36. He also expressed concern with

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weight loss and having a tape worm. Plaintiff’s weight was recorded as 168

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pounds. Medical staff noted that plaintiff “is somewhat paranoid, stating he is

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going to sue the entire State.” Id. Medical staff “will check a vitamin D level,

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blood sugar, stool for ova and parasites and culture as well as a CMP to reassure

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this patient that he has none of the above issues. He is seeing Psychiatry. He

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denied the need to hurt himself or others, but he is exhibiting some paranoid

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behavior.” Id.

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On July 30, 2012, plaintiff was given a CMP, vitamin D, hemoglobin A1C

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and TSH tests, all of which were normal. On July 31, 2012, plaintiff submitted a

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stool sample for multiple tests, which revealed no abnormalities.

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On August 17, 2012, plaintiff was seen by medical staff for laboratory

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review. Plaintiff had been concerned about having been poisoned at the AC.

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“He underwent a [CMP] which included renal functioning testing. He also had

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issues with perceived weight loss.” Id. at 44. Plaintiff’s weight was recorded as

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172 pounds. Medical staff noted that plaintiff “is much less paranoid today.” Id.

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Plaintiff had normal test results and his body mass index was “completely

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normal.” Id. Medical staff and plaintiff “discussed the patient’s good health, that

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his kidneys and liver were functioning perfectly normal, and he does not have a

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tapeworm.” Id.

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Defendants correctly argue that they are entitled to summary judgment on

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plaintiff’s claim that Burpo, De Leon, Altunc and France were deliberately

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indifferent to plaintiff’s health and safety by poisoning his food. Although

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plaintiff declares that he became ill after eating most meals starting in June 2011,

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he sets forth no significantly probative evidence that he suffered a substantial risk

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of serious harm brought on by poisoning. See Anderson, 477 U.S. at 249-50.

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Plaintiff’s medical records show that when he complained of abdominal

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discomfort, medical staff diagnosed him with dyspepsia/indigestion and then

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possible H. pylori, and successfully treated him. And when he began to complain

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that he had been poisoned, medical staff ordered a series of comprehensive tests

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to assuage his fears and all came back normal. On this record, plaintiff’s mere

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speculation that his meals must have been poisoned is not enough to survive

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summary judgment. See Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074,

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1078 (9th Cir.) (conclusory allegations unsupported by factual data cannot defeat

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summary judgment), amended, 340 F.3d 767 (9th Cir. 2003); Leer, 844 F.2d at

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634 (same). Plaintiff’s claim that he did not become ill when he received sealed

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Ramadan meals in August 2011 does not compel a different conclusion. No

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reasonable jury could conclude that because plaintiff felt ill after he ate most of

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the unsealed meals he received while at ad seg, the meals were poisoned. See

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Anderson, 477 U.S. at 248.

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Even if plaintiff had suffered a significant risk of serious harm brought on

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by poisoning, he has set forth no significantly probative evidence that Burpo, De

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Leon, Altunc or France actually and proximately caused the poisoning of which

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he complains. See Leer, 844 F.2d at 634. Again, plaintiff’s claim rests on his

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speculation that Burpo, De Leon, Altunc and France must have poisoned him

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because he became ill after eating meals served by them. But plaintiff did not see

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any of these defendants put anything in his food.2 Nor did any of the inmates

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who provided declarations in support of plaintiff’s claim. The declarations at

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most support plaintiff’s allegations that Burpo, De Leon, Altunc and France

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verbally abused and harassed plaintiff, which the court already found do not state

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a cognizable claim for damages under § 1983. Accord Freeman v. Arpaio, 125

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F.3d 732, 738 (9th Cir. 1997) (allegations of verbal abuse and harassment fail to

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state a claim cognizable under § 1983), overruled in part on other grounds by

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Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008).3 Plaintiff’s additional

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speculation that Burpo, De Leon, Altunc and/or France must have caused his H.

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pylori by poisoning him does not compel a different conclusion. See Rivera, 331

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Nor did plaintiff see any of the other unnamed SQSP officials he also claims
poisoned him (both while he was in ad seg and after he was released from ad seg) put
anything in his meals.
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Plaintiff argues that his allegations that De Leon, Altunc and France called him
a snitch in front of other inmates are corroborated by his declarants, and establish a
violation of his Eighth Amendments rights. Not so. While in some instances
deliberately spreading a rumor that a prisoner is a snitch may amount to a violation of
the right to be protected from violence, see Valandingham v. Bojorquez, 866 F.2d 1135,
1138 (9th Cir. 1989), this is not one of those instances. In Valandingham, the actions of
the correctional officer defendants were of such gravity and persistence that the prisoner
plaintiff was assaulted by other inmates on two separate occasions over a period two
years. See Valandingham v. Moen, No. 91-15714, 1992 WL 102662, at *1 (9th Cir.
May 14, 1992) (unpublished memorandum disposition). But plaintiff here was never
assaulted as a result of allegedly being called a snitch in front of other inmates in ad
seg. Nor is there any indication that he was ever in danger of being assaulted as a result
of being called a snitch, or even in fear of being assaulted as a result of being called a
snitch. Plaintiff does not establish a § 1983 claim for damages for a violation the right
to be protected from violence because “speculative and generalized fears of harm at the
hands of other prisoners do not rise to a sufficiently substantial risk of serious harm.”
Williams v. Wood, 223 Fed. Appx. 670, 671 (9th Cir. 2007). See also 42 U.S.C. §
1997e(e) (no action may be brought by prisoner for mental or emotional injury while in
custody without prior showing of physical injury).

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F.3d at 1078. Put simply, the evidence in the record does not support a finding or

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reasonable inference that Burpo, De Leon, Altunc or France poisoned plaintiff’s

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food. On this record, no reasonable jury could conclude that Burpo, De Leon,

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Altunc or Frace actually and proximately caused the poisoning of which plaintiff

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complains. See Anderson, 477 U.S. at 248.

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Defendants are entitled to summary judgment on plaintiff’s claim that

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Burpo, De Leon, Altunc and France were deliberately indifferent to plaintiff’s

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health and safety by poisoning his food. See Celotex, 477 U.S. at 323.

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2.

Retaliation
To prevail on a First Amendment retaliation claim, a prisoner must

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show: (1) that a state actor took some adverse action against a prisoner (2)

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled

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the prisoner’s exercise of his First Amendment rights, and (5) the action did not

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reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d

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559, 567-68 (9th Cir. 2005).

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The prisoner must prove all the elements of a retaliation claim, including

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the absence of legitimate correctional goals for the conduct of which he

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complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). But the prisoner

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need not prove a total chilling of his First Amendment rights; that his First

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Amendment rights were chilled, though not necessarily silenced, is enough.

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Rhodes, 408 F.3d at 569.

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Retaliation claims brought by prisoners must be evaluated in light of

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concerns over “excessive judicial involvement in day-to-day prison management,

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which ‘often squander[s] judicial resources with little offsetting benefit to

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anyone.’” Pratt, 65 F.3d at 807 (quoting Sandin v. Conner, 515 U.S. 472, 482

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(1995)). In particular, courts should “‘afford appropriate deference and

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flexibility’ to prison officials in the evaluation of proffered legitimate penological

2

reasons for conduct alleged to be retaliatory.” Id.

3

Defendants argue that they are entitled to summary judgment on plaintiff’s

4

claim that De Leon, Altunc and France retaliated against plaintiff for reporting

5

that Burpo was poisoning plaintiff’s food, by further poisoning, verbally

6

assaulting and otherwise harassing plaintiff, because plaintiff has set forth no

7

evidence that De Leon, Altunc or France knew that plaintiff had reported Burpo

8

or that they decided to punish him for it. The court agrees.

9

Plaintiff admitted at his deposition that he has no direct evidence that De

10

Leon, Altunc or France acted against plaintiff because of plaintiff’s reporting of

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Burpo: “I guess I would just have to say I drew an inference based on the

12

proximity and time, the fact that [Burpo] got disciplined, fired, transferred, or

13

whatever, and then the fact that the harassment and these comments like snitch

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and rat and other terms started – I don’t know, there was never a direct statement

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like I’m calling you a rat right now because you filed a grievance against

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Correctional Officer [Burpo] . . . .” Pl’s Depo. at 174-75. But plaintiff’s

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“inference” is no more than speculation and not enough to defeat summary

18

judgment. See Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (speculation

19

that defendants acted out of retaliation is not sufficient).

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“In the First Amendment context, a plaintiff creates a genuine issue of

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material fact on the question of retaliatory motive when he or she produces, in

22

addition to evidence that the defendant knew of the protected speech, at least (1)

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evidence of proximity in time between the protected speech and the allegedly

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retaliatory decision, (2) evidence that the defendant expressed opposition to the

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speech or (3) evidence that the defendant’s proffered reason for the adverse

26

action was false or pretextual.” Corales v. Bennett, 567 F.3d 554, 568 (9th Cir.

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2009) (internal quotation marks and citation omitted) (emphasis in original). But

2

plaintiff here produces no evidence that De Leon, Altunch or France knew that

3

plaintiff reported Burpo, expressed opposition to plaintiff reporting Burpo, or

4

proffered a false or pretextual reason for their adverse actions. At most, plaintiff

5

produces evidence of proximity in time between his protected speech and the

6

allegedly retaliatory actions, which can be considered circumstantial evidence of

7

retaliatory intent but alone is insufficient to establish retaliatory motive. See

8

Pratt, 65 F.3d at 808 (finding timing between protected speech and allegedly

9

retaliatory action insufficient to support inference of retaliatory intent where there

10
11

was no evidence that defendants were aware of plaintiff’s protected speech).
Defendants are entitled to summary judgment on plaintiff’s claim that De

12

Leon, Altunc and France retaliated against plaintiff for reporting Burpo by

13

poisoning, verbally assaulting and otherwise harassing plaintiff, because plaintiff

14

has set forth no evidence that De Leon, Altunc or France knew that plaintiff had

15

reported Burpo or that their alleged actions were in retaliation for plaintiff’s

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grievance/letter reporting Burpo. Accord Wood, 753 F.3d at 904-05 (summary

17

judgment properly granted in favor of one defendant because nothing in the

18

record showed that defendant knew about protected speech, and properly granted

19

in favor of second defendant because no evidence showed that defendant knew

20

about protected speech or that claimed harassment by defendant was in retaliation

21

for the protected speech). Plaintiff’s mere speculation that De Leon, Altunc and

22

France must have acted out of retaliation does not compel a different conclusion.

23

See Wood, 753 F.3d at 905; see also Corales, 567 F.3d at 568 (conclusory

24

allegations of retaliation insufficient to prevent summary judgment).

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3.

Failure to Protect
Defendants argue that they are entitled to summary judgment and

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qualified immunity on plaintiff’s claim that Barnes and Chappell were

2

deliberately indifferent to plaintiff’s health and safety by failing to protect

3

plaintiff after they were told that correctional officers were poisoning and

4

harassing him. Under Saucier v. Katz, 533 U.S. 194 (2001), the court must

5

undertake a two-step analysis when a defendant asserts qualified immunity in a

6

motion for summary judgment. The court first faces “this threshold question:

7

Taken in the light most favorable to the party asserting the injury, do the facts

8

alleged show the officer’s conduct violated a constitutional right?” 533 U.S. at

9

201. If the court determines that the conduct did not violate a constitutional right,

10
11

the inquiry is over and the officer is entitled to qualified immunity.
If the court determines that the conduct did violate a constitutional right, it

12

then moves to the second step and asks “whether the right was clearly

13

established” such that “it would be clear to a reasonable officer that his conduct

14

was unlawful in the situation he confronted.” Id. at 201-02. Even if the violated

15

right was clearly established, qualified immunity shields an officer from suit

16

when he makes a decision that, even if constitutionally deficient, reasonably

17

misapprehends the law governing the circumstances he confronted. Brosseau v.

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Haugen, 543 U.S. 194, 198 (2004); Saucier, 533 U.S. at 205-06. If “the officer’s

19

mistake as to what the law requires is reasonable . . . the officer is entitled to the

20

immunity defense.” Id. at 205.4

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The Eighth Amendment requires that prison officials take reasonable

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measures to guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825,

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832 (1994). In particular, prison officials have a duty to protect prisoners from

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25

4

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Although the Saucier sequence is often appropriate and beneficial, it is not
mandatory. A court may exercise its discretion in deciding which prong to address first,
in light of the particular circumstances of each case. See Pearson v. Callahan, 555 U.S.
223, 236 (2009).

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26

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violence at the hands of other prisoners and from dangerous conditions at the

2

prison. See id. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005);

3

Frost v. Agnos, 152 F.3d 1124, 1128-29 (9th Cir. 1998). But the failure of prison

4

officials to protect inmates from attacks by other inmates or from dangerous

5

conditions at the prison violates the Eighth Amendment only if two requirements

6

are met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2)

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the prison official is deliberately indifferent to inmate health or safety. Farmer,

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511 U.S. at 834.

9

A prison official is deliberately indifferent if he knows of and disregards

10

an excessive risk to inmate health or safety by failing to take reasonable steps to

11

abate it. Id. at 837, 844. The official must both be aware of facts from which the

12

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

13

must also draw the inference. Id. at 837. If the official should have been aware

14

of the risk, but was not, then the official has not violated the Eighth Amendment.

15

Id. at 838; Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir. 2001).

16

Defendants argue that they are entitled to summary judgment on plaintiff’s

17

claim that Barnes and Chappell were deliberately indifferent to plaintiff’s health

18

and safety by failing to protect him from correctional officers poisoning and

19

harassing him because plaintiff has set forth no evidence that either Barnes or

20

Chappell was aware of and disregarded a substantial risk of serious harm to

21

plaintiff. Defendants specifically argue that plaintiff has not shown either that he

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suffered a substantial risk of serious harm, or that Barnes or Chappell believed

23

plaintiff suffered a substantial risk of serious harm and consciously disregarded

24

the risk.

25

The court concluded earlier in this order that plaintiff has set forth no

26

significantly probative evidence that he suffered a substantial risk of serious harm

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18

1

brought on by poisoning. And it also concluded that plaintiff’s allegations that

2

correctional officers verbally abused and harassed him, although troubling, do not

3

state a cognizable claim for damages under § 1983. Nor do they amount to a

4

showing of substantial risk of serious harm. But even if plaintiff had suffered a

5

substantial risk of serious harm, Barnes and Chappell are entitled to summary

6

judgment because plaintiff has set forth no significantly probative evidence that

7

either Barnes or Chappell knew that plaintiff suffered a substantial risk of serious

8

harm and disregarded that risk by failing to take reasonable steps to abate it. See

9

Farmer, 511 U.S. at 837-38, 844; Jeffers, 267 F.3d at 914.

10

The undisputed facts in the record show that after plaintiff told Barnes on

11

May 21, 2011 that Burpo had poisoned plaintiff’s food on May 20, 2011, Barnes

12

transferred plaintiff to another section in ad seg. And after plaintiff told Barnes

13

on November 4, 2011 that De Leon, Altunc and France had subjected him to food

14

poisoning and harassment, Barnes allowed plaintiff to transfer to any tier and

15

section in ad seg that he wanted. Plaintiff nonetheless argues that Barnes should

16

have done more. But all Barnes was required to do was take reasonable steps to

17

abate a substantial risk of serious harm. See Farmer, 511 U.S. at 844. In view of

18

plaintiff’s unsupported claims to Barnes that first Burpo, and then De Leon,

19

Altunc and France, had poisoned his food, Barnes’ response to transfer plaintiff

20

twice to another section and tier in ad seg was more than a reasonable step to

21

abate a no-more-than-merely-possible risk of serious harm. Barnes is entitled to

22

summary judgment because no reasonable jury could find that Barnes

23

disregarded a substantial risk of serious harm to plaintiff by failing to take

24

reasonable steps to abate it. See Anderson, 477 U.S. at 248.

25

At minimum, Barnes is entitled to qualified immunity from damages on

26

plaintiff’s claim that Barnes failed to protect plaintiff from correctional officers

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19

1

poisoning his food in violation of the Eighth Amendment because a reasonable

2

correctional officer could have believed that his conduct was lawful under the

3

circumstances. See Saucier, 533 U.S. at 201-02. A reasonable correctional

4

officer could have believed that transferring plaintiff to another section and tier in

5

ad seg was more than a reasonable step to abate a no-more-than-merely-possible

6

risk of serious harm, and therefore was lawful.

7

Plaintiff has submitted declarations and documentary evidence in support

8

of his claim that Chappell was “informed” by his mother and others that plaintiff

9

was being “subjected to continuous and ongoing poisoning,” “verbal abuse” and

10

other “harassment and mistreatment,” and yet “took no steps to protect plaintiff.”

11

SAC at 12-13. But plaintiff’s own evidence shows that Chappell did not

12

disregard the complaint of staff misconduct towards plaintiff; instead, Chappell

13

“referred” it to “E. Melton, San Quentin Investigative Services Unit Lieutenant

14

for appropriate action/review.” Pl.’s Req. for Judicial Notice (ECF No. 150) Ex.

15

D at 1. Plaintiff argues that Chappell should have done more, but there is no

16

indication that any of the investigations into the matter revealed any wrongdoing

17

and, like Barnes, all Chappell was required to do was take reasonable steps to

18

abate a substantial risk of serious harm. See Farmer, 511 U.S. at 844. Chappell

19

is entitled to summary judgment because no reasonable jury could find that, on

20

the evidence in the record, Chappell knew of and disregarded a substantial risk of

21

serious harm to plaintiff by failing to take reasonable steps to abate it. See

22

Anderson, 477 U.S. at 248.

23

At minimum, Chappell is entitled to qualified immunity from damages on

24

plaintiff’s claim that Chappell failed to protect plaintiff in violation of the Eighth

25

Amendment because a reasonable prison official could have believed that his

26

conduct was lawful under the circumstances. See Saucier, 533 U.S. at 201-02. A

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reasonable prison official could have believed that referring the complaint of staff

2

misconduct towards plaintiff to the prison’s investigative services unit for

3

action/review was a reasonable step to abate a no-more-than-merely-possible risk

4

of serious harm, and therefore was lawful.

5
6

CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment

7

(ECF No. 114) is GRANTED, and plaintiff’s cross-motions for summary

8

judgment (ECF Nos. 94 & 125) are DENIED.5 6

9

The clerk shall enter judgment in favor of defendants and close the file.

10

SO ORDERED.

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DATED: January 5, 2017
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.14\Jackson, C.14-3108.msj.wpd

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5

In view of the court’s conclusion that defendants are entitled to summary
judgment on the merits of plaintiff’s claims, it need not also address whether plaintiff
exhausted available administrative remedies.
6

27

Plaintiff’s last-minute miscellaneous motions and requests (see, e.g., ECF Nos.
168 & 169) are denied as moot and for lack of merit.

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