(PC) Vergara v. Datray et al, No. 1:2008cv00609 - Document 34 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendants' 29 Motion for Summary Judgment be Granted; Objections Due within Twenty-One Days signed by Magistrate Judge Dennis L. Beck on 2/18/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 3/18/2011. (Sant Agata, S)
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(PC) Vergara v. Datray et al Doc. 34 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LUIS GORDIANO VERGARA, 10 11 CASE NO. 1:08-CV-00609-LJO-DLB PC Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BE GRANTED v. 12 D. DATRAY, et al., (DOC. 29) 13 Defendants. 14 / OBJECTIONS DUE WITHIN TWENTY-ONE DAYS 15 16 Findings And Recommendation 17 I. Background 18 Plaintiff Luis Gordiano Vergara (“Plaintiff”) is a federal prisoner proceeding pro se and 19 in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of 20 Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil 21 rights by federal actors. This action is proceeding against Defendants Datray, Cobb, Cole, and 22 Orozco for violation of the Eighth Amendment. 23 On June 7, 2010, Defendants filed a motion for summary judgment. Defs.’ Mot. Summ. 24 J., Doc. 29. Plaintiff did not file a timely opposition. The matter is submitted pursuant to Local 25 Rule 230(l). 26 II. Summary Judgment Standard 27 Summary judgment is appropriate when it is demonstrated that there exists no genuine 28 issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 1 Dockets.Justia.com 1 Fed. R. Civ. P. 56(a).1 Under summary judgment practice, the moving party 2 3 4 always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 5 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the 6 burden of proof at trial on a dispositive issue, a Summary Judgment Motion may properly be 7 made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions 8 on file.’” Id. Indeed, summary judgment should be entered, after adequate time for discovery 9 and upon motion, against a party who fails to make a showing sufficient to establish the existence 10 of an element essential to that party's case, and on which that party will bear the burden of proof 11 at trial. Id. at 322. “[A] complete failure of proof concerning an essential element of the 12 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 13 circumstance, summary judgment should be granted, “so long as whatever is before the district 14 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 15 satisfied.” Id. at 323. 16 If the moving party meets its initial responsibility, the burden then shifts to the opposing 17 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 18 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 19 In attempting to establish the existence of this factual dispute, the opposing party may not 20 rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the 21 form of affidavits, and/or admissible discovery material, in support of its contention that the 22 dispute exists. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must 23 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 24 suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Thrifty 25 Oil Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2002); T.W. Elec. 26 Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the 27 28 1 The Federal Rules of Civil Procedure were updated effective December 1, 2010. 2 1 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the 2 nonmoving party, Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Wool v. 3 Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 4 In the endeavor to establish the existence of a factual dispute, the opposing party need not 5 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 6 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 7 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 8 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 9 Matsushita, 475 U.S. at 587 (quoting former Rule 56(e) advisory committee’s note on 1963 10 amendments). 11 In resolving a motion for summary judgment, the court examines the pleadings, 12 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 13 any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, Anderson, 477 14 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 15 court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United 16 States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not 17 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from 18 which an inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 124419 45 (E. D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). 20 Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 21 show that there is some metaphysical doubt as to the material facts. . . .Where the record taken as 22 a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 23 issue for trial.’” Matsushita, 475 U.S. at 586-87 (citations omitted). 24 III. Statement of Facts2 25 Plaintiff is a federal inmate. From August 29, 2006, until September 10, 2007, he was 26 housed at the United States Penitentiary in Atwater, California (“USP Atwater”). Upon his 27 2 28 All facts are taken from Defendants’ statement of undisputed facts and are considered undisputed, unless otherwise noted as a contention. 3 1 arrival at USP Atwater, Plaintiff received a formal Security Designation and Custody 2 Classification and was assigned to general housing Unit 3A. 3 Inmates periodically receive a Program Review with their Unit Staff. The purpose of 4 Program Review is to provide the inmate and staff the opportunity to review the inmates’ 5 progress and identify any problems. During the Program Review the inmate may make requests 6 for changes in program assignments and discuss release plans, custody changes, and/or transfer 7 requests. An inmate’s request for unit transfer should be addressed to his Unit Team. Threats 8 and other forms of violence are strictly prohibited at USP Atwater. 9 At any time, an inmate may raise concerns or problems to his Unit Team which is 10 composed of a Unit Officer, Unit Secretary, Correctional Counselor, Case Manager and Unit 11 Manager. If the inmate is unable to resolve an issue informally, he should submit a written 12 Inmate Request to Staff form, known as a “cop-out.” If the inmate is unable to resolve an issue 13 through a written Inmate Request to Staff, he may file an Administrative Remedy. An inmate 14 may request Protective Custody from any staff member, which will result in an immediate 15 transfer to Administrative Detention pending an investigation. 16 On April 13, 2007, at approximately 1:00 p.m., BOP staff conducted Plaintiff’s Program 17 Review. The Program Review Report indicates that Plaintiff met with his Acting Unit Manager, 18 Ryan Silva. The Program Review Report dated April 13, 2007, does not indicate that Plaintiff 19 raised any security concerns. The Program Review Report dated April 13, 2007, does not 20 indicate that Plaintiff made a request for unit transfer. Plaintiff signed the Program Review 21 Report dated April 13, 2007. 22 BOP records indicate that on April 13, 2007, at 7:40 p.m., BOP staff spotted Plaintiff 23 walking in the open compound near housing Unit 2B with a bloody nose. BOP staff asked 24 Plaintiff what happened. BOP records indicate that Plaintiff stated that unidentified 25 inmates jumped him in a common area outside of Unit 2A. 26 Plaintiff was escorted to the Medical Department where he was treated with betadine and 27 a Band Aid for minor cuts, scrapes and bruises. After receiving treatment on April 13, 2007, 28 BOP officials placed Plaintiff in Protective Custody on Administrative Detention pending an 4 1 investigation. BOP records indicate that Plaintiff told prison officials he was jumped by a group 2 of inmates he could not identify while on the general compound. Plaintiff speculated that the 3 inmates were Paisas, a prison gang, who “wanted him to do something, which he would not do.” 4 On April 13, 2007, Plaintiff refused to state what he was asked to do. Plaintiff was unwilling or 5 unable to identify the inmates who jumped him on April 13, 2007. 6 A Report of Incident was issued on April 16, 2007. BOP records indicate that officials 7 re-interviewed Plaintiff on June 4, 2007, regarding the assault. Because Plaintiff again failed or 8 refused to provide details regarding the inmates who jumped him at the re-interview on June 4, 9 2007, BOP officials concluded that they could not protect Plaintiff in the general population. 10 BOP recommended that Plaintiff be transferred to another institution for his own protection. 11 Plaintiff remained in Protective Custody from April 13, 2007, until his transfer to another prison 12 on September 10, 2007. 13 Plaintiff has no record that he made any complaints regarding his safety, or that he 14 requested protection, or a unit transfer prior to April 13, 2007. BOP has no record the Plaintiff 15 made any complaint regarding his safety, or that he requested protection, or a unit transfer prior 16 to April 13, 2007. Plaintiff did not submit a written Request for Administrative Remedy 17 pursuant to 28 C.F.R. § 542.10, et. seq., until after the altercation on April 13, 2007. There is no 18 mention of any safety concern by Plaintiff in Unit 3A Log books prior to the altercation on April 19 13, 2007. Plaintiff’s Case Manager, Juan F. Herrera, and each of the Defendants, denies having 20 been told any information by Plaintiff, or about him, regarding Plaintiff’s safety prior to April 13, 21 2007. 22 A unit transfer, unlike Protective Custody, is not a protective measure and it would not 23 protect an inmate from threats in the general prison population. The altercation on April 13, 24 2007, between Plaintiff and unidentified inmates did not occur in Plaintiff’s Unit. The altercation 25 took place on the general compound. 26 Plaintiff’s personal property was not sent from USP Atwater to FCI Herlong. Plaintiff’s 27 Central File was not sent from USP Atwater to FCI Herlong. In January 2008, Plaintiff certified 28 that he received his property from USP Atwater and nothing was missing. 5 1 Defendant Darren Datray was employed as a Senior Officer Specialist at USP Atwater. 2 His duties included monitoring inmate activity and supervising correctional staff. Defendant 3 Datray is not a member of Plaintiff’s Unit Team. Defendant Glen Cobb was employed as a 4 Lieutenant in Special Investigative Services (“SIS”) at USP Atwater. Defendant Cobb is not a 5 member of Plaintiff’s Unit Team. He was on leave the five days prior to April 13, 2007. 6 Defendant C.D. Cole, Jr., was employed as the Special Investigative Agent in the Special 7 Investigative Services (“SIS”) Department at USP Atwater, where he supervised investigations of 8 inmate criminal activity and other SIS Department staff. Defendant Cole is not a member of 9 Plaintiff’s Unit Team. Defendant Maria Orozco was a Unit Manager at USP Atwater and was 10 responsible for supervising the Unit Team where Plaintiff was housed. 11 IV. Analysis 12 To state a claim under Bivens and its progeny, Plaintiff must allege that (1) a right 13 secured by the Constitution of the United States was violated and (2) the alleged violation was 14 committed by a federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (42 15 U.S.C. § 1983 and Bivens actions are identical save for the replacement of a state actor under § 16 1983 with federal actor under Bivens). 17 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 18 conditions must involve “the wanton and unnecessary infliction of pain . . . .” Rhodes v. 19 Chapman, 452 U.S. 337, 347 (1981). Although prison conditions may be restrictive and harsh, 20 prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and 21 personal safety. Id.; Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986); Hoptowit v. 22 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Prison officials have a duty to take reasonable steps to 23 protect inmates from physical abuse. Hoptowit, 682 F.2d at 1250; see Farmer v. Brennan, 511 24 U.S. 825, 833 (1994). To establish a violation of this duty, the prisoner must establish that 25 prison officials were deliberately indifferent to a substantial risk of serious harm to the inmates’s 26 safety. Farmer, 511 U.S. at 834. The deliberate indifference standard involves an objective and 27 a subjective prong. First, the alleged deprivation must be, in objective terms, “sufficiently 28 serious . . . .” Id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison 6 1 official must “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837. 2 Construing the facts in the light most favorable to Plaintiff as the non-moving party, the 3 Court cannot find a genuine dispute of material fact. Based on the undisputed facts, Defendants 4 had no knowledge that Plaintiff was in danger of being attacked by other inmates prior to the 5 alleged incident. Thus, there is no evidence to support a finding that prison officials knew of and 6 disregarded an excessive risk to Plaintiff’s safety. See Farmer, 511 U.S. at 837. The Court 7 recommends that Defendants’ motion for summary judgment be granted in full. 8 V. Conclusion And Recommendation 9 Based on the foregoing, it is HEREBY RECOMMENDED that: 10 1. 11 Defendants’ motion for summary judgment, filed June 7, 2010, should be granted in full; 12 2. Judgment should be entered in favor of Defendants and against Plaintiff; and 13 3. The Clerk of the Court be directed to close this action. 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty16 one (21) days after being served with these Findings and Recommendations, the parties may file 17 written objections with the Court. The document should be captioned “Objections to Magistrate 18 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 19 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 20 Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 21 22 IT IS SO ORDERED. Dated: 3b142a February 18, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 7
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