Choon v. Voong et al

Filing 136

ORDER by Judge Jeffrey S. White Granting 129 Motion for Summary Judgment. (dts, COURT STAFF) (Filed on 5/16/2022)

Case 4:16-cv-07237-JSW Document 136 Filed 05/16/22 Page 1 of 8

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHOON RHEY,
Plaintiff,

United States District Court
Northern District of California

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Case No. 16-cv-07237-JSW
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

v.
G. MURPHY, et al.,

Re: Dkt. No. 129

Defendants.

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Now before the Court is the motion for summary judgment filed by remaining defendants,

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B. Dutton and B. Haub (“Defendants”). The Court has considered the parties’ papers, relevant

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legal authority, and the record in this case, and it finds the motion suitable for disposition without

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oral argument. See N.D. Civ. L.R. 7-1(b). Accordingly, the hearing set for May 20, 2022, is

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HEREBY VACATED. The Court GRANTS Defendants’ motion for summary judgment.

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BACKGROUND

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Plaintiff is a California prisoner who filed this civil rights case pursuant to 42 U.S.C.

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section 1983. He claims that Defendants, officials at San Quentin State Prison where Plaintiff was

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formerly housed, and at the California Department of Corrections and Rehabilitation (“CDCR”),

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were deliberately indifferent to his health and safety. The only claims remaining after a series of

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motions is the Eighth Amendment claims against Officers Dutton and Haub for their role in

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attempting to assign Plaintiff a cellmate and for issuing a disciplinary citation for Plaintiff’s

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refusal to accept a cellmate.

Case 4:16-cv-07237-JSW Document 136 Filed 05/16/22 Page 2 of 8

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his confinement with the CDCR, Plaintiff developed severe sleep apnea, characterized by loud

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snoring, nighttime choking, interrupted sleep, and difficulty breathing. (Dkt. No. 131-1,

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Declaration of Choon Rhey (“Rhey Decl.”) at ¶ 2.) To treat this condition, Plaintiff underwent

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surgery, but it was not effective at remedying the issue. Plaintiff later received a continuous

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positive airway pressure (CPAP) machine. (Id. at ¶ 3.) The CPAP machine is not entirely

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ineffective and sometimes malfunctions, resulting in continued snoring and choking by Plaintiff

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when he sleeps. (Id.) Plaintiff is also physically impaired, including suffering from arthritis in his

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foot, a degenerative disc disease, a history of ankle fractures, a history of peptic ulcer disease, and

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United States District Court
Northern District of California

Plaintiff is a 63-year-old man who has served over 26 years of his life sentence. During

knee pain. (Id. at ¶ 5.)
Plaintiff contends that his sleep apnea and health problems have made him a target for

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violence from past cellmates. Cellmates have complained about his loud snoring and choking as

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well as the noise made by the CPAP machine and the presence of the machine in the cell. (Id. at ¶

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4.) Over the course of the years 2011 through 2013, more than 20 cellmates had been in and out

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of Plaintiff’s cell. (Id.) Plaintiff alleges that the victimization and violence subsided when he was

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placed in a cell by himself.

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Prison regulations require that inmates double-cell absent factors that specifically preclude

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it. Plaintiff claimed to be entitled to single-cell status, however that claim had been recently

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considered by a classification committee and the denial was affirmed by three levels of

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administrative appeals prior to the attempt to place Plaintiff in a shared cell. Members of the

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committee and appeal reviewers found that the case factors presented by Plaintiff did not qualify

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him for a single cell. The decision on the final administrative appeal was a denial of Plaintiff’s

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request for single cell status. (Dkt. No. 129-1, Declaration of J. Barba (“Barbra Decl.”) at ¶¶ 4, 5.)

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On August 10, 2016, when Plaintiff was advised that he was going to be assigned a

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cellmate, he told the desk staff in his housing unit that he refused the cellmate. (Dkt. No. 129-2,

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Declaration of B. Dutton (“Dutton Decl.”) at ¶ 4; Dkt. No. 129-3, Declaration of D. Baker (“Baker

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Decl.”) at ¶ 2, Ex. A.) Plaintiff was advised that he did not at that time have single-cell status and

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that therefore he could not refuse a cellmate. (Dutton Decl., ¶ 5; Baker Decl., ¶ 3, Ex. A.) When
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Plaintiff continued to refuse to accept a cellmate, the assigned inmate was housed elsewhere, and

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Plaintiff continued in his cell alone. (Dutton Decl., ¶ 8; Baker Decl., ¶¶ 2, 3, 5, Ex. A.) The

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officers present at the time wrote up the premise of the citation for disciplinary action, and the

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correctional officer, D. Baker, issued the citation. (Dutton Decl., ¶ 7; Baker Decl., ¶ 4, Ex. A.)
On August 30, 2016, Plaintiff was afforded a hearing regarding the disciplinary citation he

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had been issued. (Dkt. No. 129-4, Declaration of B. Haub (“Haub Decl.”) at ¶¶ 2-3, 5-7, Ex. A.)

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Based upon the evidence submitted and Plaintiff’s own testimony, Plaintiff was found guilty of

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violating prison rules by refusing a cellmate without a single-cell status. (Id., ¶¶ 5-8, Ex. A.)
At that time, Plaintiff was still not required to cell with another inmate. He continued to

United States District Court
Northern District of California

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occupy his cell alone until he was moved to another housing unit on November 16, 2016. (Barba

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Decl., ¶ 6; Dutton Decl., ¶ 8.)
The Court shall address other relevant facts as necessary in the remainder of its order.

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ANALYSIS

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A.

Standard of Review.
Summary judgment is proper where the pleadings, discovery and affidavits show that there

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is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of

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the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material

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

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nonmoving party.

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The party moving 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). When the moving

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

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

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

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fact, the moving party wins. Id.

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At summary judgment, the judge must view the evidence in the light most favorable to the
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nonmoving party: if evidence produced by the moving party conflicts with evidence produced by

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the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving

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party with respect to that fact. Tolan v. Cotton, 572 U.S. 650, 656-57 (2014).

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B.

A prison official violates the Eighth Amendment when two requirements are met: (1) the

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United States District Court
Northern District of California

Eighth Amendment Claim.

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deprivation alleged must be, objectively, sufficiently serious and (2) the prison official possesses a

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

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conditions cases, the necessary state of mind is one of “deliberate indifference.” Id. Neither

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negligence nor gross negligence will constitute deliberate indifference. Id. at 835-37 & n.4.

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Deliberate indifference is the same standard as criminal recklessness, i.e., the prison official

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knows of and disregards an excessive risk to inmate health or safety. Id. at 837. The official must

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both be aware of 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. An Eighth Amendment claimant need not

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show, however, that a prison official acted or failed to act believing that harm actually would

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befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a

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substantial risk of serious harm. Id. at 842.
In this case, Plaintiff alleges that Defendants Dutton and Haub violated his Eighth

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Amendment rights by requiring him to double-cell and thus endangering his safety. Plaintiff

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alleges that he was subjected to multiple and severe attacks by cellmates in the past as a result of

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his trouble sleeping, the presence of the CPAP machine, and his physical disabilities which

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prevented him from defending himself. However, after conducting an investigation of his claims

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before the classification committee as well as three levels of administrative review, the defendant

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officers reasonably relied upon the evaluation and ultimate finding that Plaintiff was suitable to be

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double-celled. (Barba Decl., ¶¶ 3-5, Ex. B; Haub Decl., ¶¶ 5-7, Ex. A; Dkt. No. 129-5,

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Declaration of M. Bell (“Bell Decl.”) at ¶ 5, Ex. A; Dkt. No. 129-6, Declaration of J. Flores at ¶ 8,

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Ex. A.)

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In addition, at the time of Plaintiff refusing to double-cell, the two remaining defendants
did not actually require Plaintiff to cell with another inmate. (Barba Decl., ¶ 6; Dutton Decl., ¶ 8.)
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United States District Court
Northern District of California

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Instead, they scheduled a hearing at which Plaintiff could address his safety concerns and present

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his own evidence for consideration. (Haub Decl, ¶¶ 2-3, 5-7, Ex. A.) According to the records of

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the hearing, Plaintiff expressed that he did not have specific safety concerns in the housing unit

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and he refused to be housed in another special unit out of fear for his safety. (Id.)

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After Plaintiff’s refusal to admit another inmate to his cell, Defendants properly wrote up

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the incident and presented the disciplinary citation to the committee for review. The disciplinary

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proceeding was in compliance with the California Code of Regulations which provides that if “an

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inmate refuses to be housed as determined to be appropriate to this section, the inmate shall be

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subject to the disciplinary process.” 15 C.C.R. § 3269(g). The refusal of a cellmate, even if

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premised upon legitimate concerns, is grounds for a disciplinary hearing to review and evaluation

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of the reasons for the refusal. In this case, the hearing was conducted before the classification

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committee who determined that Plaintiff was not cleared for single-cell status. This determination

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was affirmed by a panel of administrative appeals reviewers and a deputy director for correctional

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health care. (Barba Decl., ¶ 3, Ex. B; Bell Decl., ¶ 5, Ex. A.) Having properly engaged the

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classification committee for their determination and processed the decision through the

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administrative review system, the defendant officers were entitled to reasonably rely on these

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determinations. The Court finds they were not deliberately indifferent to Plaintiff’s safety while

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performing their duties.

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Defendant Dutton was on duty on August 10, 2016, when Plaintiff approached the staff

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desk and refused to accept an assigned cellmate. (Dutton Decl., ¶¶ 3-7; Baker Decl., ¶¶ 2-4, Ex.

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A.) Officer Dutton informed Plaintiff that he did not have single-cell status at which time Plaintiff

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requested to speak with the lieutenant on duty, Officer Baker. (Id.) Officer Baker confirmed that

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Plaintiff did not qualify as single-cell status and that his refusal to allow a cellmate would result in

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disciplinary proceedings. (Id.) When Plaintiff still refused a cellmate, Officer Baker issued a

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disciplinary rules violation report (“RVR”) and Officer Dutton supervised and approved that the

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form was properly filled out. (Id.; see also First Amended Complaint at ¶ 49.)

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No Section 1983 liability attaches for personnel who are merely reviewing tasks performed
by others. See Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (holding that supervisor
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United States District Court
Northern District of California

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whose role was administrative and limited to reviewing the actions of others was not subject to

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Section 1983 liability). Furthermore, to the extent Officer Dutton participated in the response to

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Plaintiff’s refusal to room with another inmate, his response – to issue the RVR and arrange a

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hearing at which Plaintiff could thoroughly present his safety concerns – does not constitute an act

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of deliberate indifference to Plaintiff’s safety needs. See Farmer, 511 U.S. at 847 (attaching

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liability to prison official where that official “knows that inmates face a substantial risk of serious

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harm and disregards that risk by failing to take reasonable measures to abate it.”). The Court finds

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that, to the extent Plaintiff believed that double-celling would cause him danger, Officer Dutton’s

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response by issuing a disciplinary citation and arranging an administrative hearing designed to

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address the safety concerns cannot reasonably amount to deliberate indifference to Plaintiff’s

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safety.

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Defendant Haub conducted the administrative hearing in which he allowed Plaintiff to

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present his position and evidence regarding his own safety. (Haub Decl., ¶¶ 2-7, Ex. A.) The

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committee found that Plaintiff’s arguments for single-cell status were not persuasive and did not

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grant his request for designation of the status. (Id. at ¶¶ 5-6, Ex. A; Barba Decl., ¶ 3, Ex. B.) The

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mere fact that, after consideration of all the evidence presented, Office Haub and the reviewing

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committee did not grant Plaintiff’s request does not indicate that the officer was deliberately

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indifferent to Plaintiff’s safety. In addition to the committee’s review of prior determinations that

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Plaintiff was not entitled to single-cell status, Officer Haub also questioned Plaintiff specifically

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about his safety concerns and offered him special housing for inmates with safety concerns.

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(Haub Decl., ¶ 7, Ex. A.) Plaintiff rejected the offer and also indicated that he was not concerned

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for his safety with regard to anyone in his current housing unit. (Id.) The conduct of holding an

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administrative proceeding, gathering evidence, and adjudicating Plaintiff’s status does not amount

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to deliberate indifference by Officer Haub.

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Accordingly, the Court finds that neither officer acted with deliberate indifference of

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Plaintiff’s safety in violation of his constitutional rights. Defendants are entitled to summary

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judgment on this basis.

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C.

Qualified Immunity.
Defendants also move for summary judgment on the basis that they are entitled to qualified

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immunity. Qualified immunity “shields an officer from suit when she makes a decision that, even

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if constitutionally deficient, reasonably misapprehends the law governing the circumstances she
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confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). A claim for qualified immunity

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requires the court to evaluate the defense using a two-step inquiry in Saucier v. Katz, 533 U.S. 194
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(2001). The first step is to determine whether, given the undisputed facts, the official violated a
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constitutional right. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Under the second step of
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Saucier, the issue is whether the allegedly violated constitutional rights was “clearly established”
in the specific factual context confronting the officers. See Saucier, 533 U.S. at 202. “If an

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official could reasonably have believed her actions were legal in light of clearly established law

United States District Court
Northern District of California

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and the information she possessed at the time, she is protected by qualified immunity.” Franklin

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v. Fox, 312 F.3d 423, 437 (9th Cir. 2002). Courts may choose which prong of this analysis to
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address first. See Pearson, 555 U.S. at 236-39.
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As to the first element, the Court has found there was no constitutional violation as the
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defendant officers were not deliberately indifferent to Plaintiff’s safety concerns. Even assuming
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the Court had found a constitutional infraction, the court must then determine “whether it would

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be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”
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Saucier, 533 U.S. at 202 (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). Qualified
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immunity attaches where the constitutional questions of whether the defendants’ actions were
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lawful is “not beyond debate.” Mullinex v. Luna, 577 U.S. 7, 12 (2015). “The dispositive

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question is whether the violative nature of particular conduct is clearly established.” Id.
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(emphasis in original). “This inquiry must be undertaken in light of the specific context of the

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case, not as a broad general proposition.” Id. (internal citation omitted). When reasonable
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officials in the same position could have reasonably believed that their conduct complied with the
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law, qualified immunity affords them protection. Pearson, 555 U.S. at 224.
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There was no legal authority existing at the time of the incident on August 10, 2016, which
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required that the officers agree with Plaintiff’s assessment that he was entitled to single-cell status.
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The disciplinary citation and administrative hearing were designed to enable the officers to take

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reasonable steps to abate or mitigate the risk perceived by Plaintiff when required to double-cell.

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Not only did the officers perform an investigation and conduct a hearing to consider Plaintiff’s

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evidence and offer him a cell in special housing for inmates with safety concerns, but they also

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allowed Plaintiff to remain without a cellmate in the same housing unit. The law was not clearly

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established that issuing a disciplinary citation, conducting an investigation and administrative

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hearing, and then permitting Plaintiff to remain in the same housing unit without a cellmate would

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violate Plaintiff’s constitutional rights. Accordingly, Officers Dutton and Haub are entitled to

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qualified immunity and Defendants are entitled to summary judgment on this basis as well.
CONCLUSION

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United States District Court
Northern District of California

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For the reasons explained above, the Court GRANTS Officers Dutton and Haub’s motion

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for summary judgment. As the Court has previously dismissed the other Defendants in this action,

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the Court shall issue a separate judgment and the Clerk is instructed to close the matter.

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IT IS SO ORDERED.
Dated: May 16, 2022
______________________________________
JEFFREY S. WHITE
United States District Judge

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