(PC) Patterson v. Warden and Housing Supervisor, No. 1:2012cv01948 - Document 109 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Defendants' 103 MOTION for SUMMARY JUDGMENT, signed by Magistrate Judge Jennifer L. Thurston on 9/8/16. Referred to Judge Drozd. Objections to F&R Due Within Twenty-One Days. (Gonzalez, R)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 JAMES PABLO PATTERSON, Plaintiff, 12 v. 13 14 Defendants. 16 FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS’ MOTION FOR SUMMMARY JUDGMENT (Doc. 103) WARDEN, et al 15 Case No. 1:12-cv-01948-DAD-JLT (PC) OBJECTIONS DUE WITHIN 21 DAYS Plaintiff claims that the defendants knowingly placed an enemy gang member in his cell 17 and thereafter failed to intervene when a violent altercation occurred. Because the Court 18 determines that there is no evidence the defendants were aware of the risk of harm, the Court 19 recommends the motion for summary judgment1 be GRANTED. 20 I. Plaintiff’s Claims 21 Plaintiff alleged that in April 2009, while in the custody of the California Department of 22 Corrections and Rehabilitation, he was transferred to Kern Valley State Prison (“KVSP”) where 23 there has been a longstanding and well-known “war” between the Northern and Southern 24 Hispanic gangs. (Doc. 92, TAC, p. 3.) Plaintiff is a Northerner and had only been celled with 25 26 27 28 1 Plaintiff was provided with timely notice of the requirements for opposing a motion for summary judgment by the court in an order filed on June 20, 2016. Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL 262 6912 (9th Cir. Jul. 6, 2012), Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 1 1 Northerners previously. (Id.) 2 On July 16, 2009, inmate Robles, a Southerner, was to be celled with Plaintiff. (Id.) On 3 that date, two officers escorted Robles to Building 3 where they left him with Officers S. Corona 4 and R. Borbon. (Id., p. 4.) Plaintiff alleges that Corona and Borbon escorted Robles to Plaintiff’s 5 cell. (Id.) Another officer, positioned as booth door control, opened the door to Plaintiff’s cell 6 and advised Plaintiff that he was getting a cellmate. (Id.) Plaintiff heard an inmate talking to 7 Robles as he approached Plaintiff’s cell door. The other inmate asked Robles his cell number and 8 advised Robles to “be on his toes” when Robles told him he was going to cell number 226. (Id.) 9 Corona and Borbon were behind Robles as he entered the cell with Plaintiff. (Id.) 10 Plaintiff turned to turn down his TV as the officers closed the cell door and helped Robles with 11 his property. (Id.) Plaintiff introduced himself to Robles who asked shakily if Plaintiff was a 12 “Norteno” to which Plaintiff replied “yes.” (Id.) Robles immediately punched Plaintiff in the 13 face and a fight ensued. (Id.) Once Plaintiff was able to knock Robles unconscious, he hit and 14 kicked on the cell door and called “mandown.” (Id.) Plaintiff thereafter laid on his bunk in pain 15 and Corona and Borbon returned, hit the alarm for a cell fight, and ordered Plaintiff to the floor. 16 (Id.) 17 II. 18 Summary Judgment Standard Summary judgment is appropriate where there is "no genuine dispute as to any material 19 fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Washington 20 Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine only if there 21 is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is 22 material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty 23 Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 24 (9th Cir. 1987). The Court determines only whether there is a genuine issue for trial and in doing 25 so, it must liberally construe Plaintiff’s filings because he is a pro se prisoner. Thomas v. Ponder, 26 611 F3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted). 27 In addition, Rule 56 allows a court to grant summary adjudication, or partial summary 28 2 1 judgment, when there is no genuine issue of material fact as to a particular claim or portion of that 2 claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 3 1981) (“Rule 56 authorizes a summary adjudication that will often fall short of a final 4 determination, even of a single claim . . .”) (internal quotation marks and citation omitted). The 5 standards that apply on a motion for summary judgment and a motion for summary adjudication 6 are the same. See Fed. R. Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F.Supp.2d 1192, 1200 7 (S.D. Cal. 1998). 8 9 Each party’s position must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) 10 showing that the materials cited do not establish the presence or absence of a genuine dispute or 11 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 12 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not 13 cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San 14 Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo 15 County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 16 Defendants do not bear the burden of proof at trial and, in moving for summary judgment, 17 they need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. 18 Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 19 317, 323 (1986)). If Defendants meet their initial burden, the burden then shifts to Plaintiff “to 20 designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle 21 Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show 22 more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, 23 Inc., 477 U.S. 242, 252 (1986)). An issue of fact is genuine only if there is sufficient evidence for 24 a reasonable fact finder to find for the non-moving party, while a fact is material if it “might 25 affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248; Wool v. 26 Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). 27 In judging the evidence at the summary judgment stage, the Court may not make 28 3 1 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless Inc., 509 2 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all 3 inferences in the light most favorable to the nonmoving party and determine whether a genuine 4 issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. 5 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), 6 cert. denied, 132 S.Ct. 1566 (2012). Inferences, however, are not drawn out of the air; the 7 nonmoving party must produce a factual predicate from which the inference may reasonably be 8 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 9 aff’d, 810 F.2d 898 (9th Cir. 1987). 10 III. Discussion and Analysis 11 A. 12 "The treatment a prisoner receives in prison and the conditions under which he is confined Legal Standard Under the Eighth Amendment 13 are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832, 14 114 S.Ct. 1970 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison officials have 15 a duty "to take reasonable measures to guarantee the safety of inmates, which has been interpreted 16 to include a duty to protect prisoners." Labatad v. Corrections Corp. of America, 714 F.3d 1155, 17 1160 (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 18 2005)). 19 To establish a violation of this duty, the prisoner must "show that the officials acted with 20 deliberate indifference to threat of serious harm or injury to an inmate." Labatad, at 1160 (citing 21 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective 22 and subjective components. 23 First, objectively, the alleged deprivation must be "sufficiently serious" and where a 24 failure to prevent harm is alleged, "the inmate must show that he is incarcerated under conditions 25 posing a substantial risk of serious harm." Farmer, 511 U.S. at 834, quoting Rhodes v. Chapman, 26 452 U.S. 337, 349, 101 S.Ct. 2392 (1981). Second, subjectively, the prison official must "know 27 of and disregard an excessive risk to inmate health or safety." Id. at 837; Anderson v. County of 28 4 1 Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). A prison official must "be aware of facts from which 2 the inference could be drawn that a substantial risk of serious harm exists, and . . . must also draw 3 the inference." Farmer, 511 U.S. at 837. Liability may follow only if a prison official "knows 4 that inmates face a substantial risk of serious harm and disregards that risk by failing to take 5 reasonable measures to abate it." Id. at 847. Defendants’ Undisputed Statements of Fact2 6 B. 7 Defendants’ evidence shows that on July 16, 2009, Borbon and Corona were working as 8 floor officers on facility D at Kern Valley State Prison. (DUF3 2.) That day, inmates new to 9 KVSP were being brought to facility D from the receiving and release area by security and escort 10 officers. (Id.) The security and escort officers also brought a Transfer Record (CDCR 135) for 11 each new inmate. (DUF 3.) The Transfer Record specifies the inmate’s name, CDCR number, 12 and the cell assignment. (Id.) Once the security and escort officers arrived at facility D with the 13 new inmates, the floor officers received the inmates and reviewed their Transfer Records. (Id.) 14 Borbon and Corona received Robles from the security and escort officers. (DUF 4.) 15 According to his Transfer Record, Robles was assigned to Facility D, Building 5, cell 226. (Id.) 16 There was no other information on the transfer record. (Id.) Borbon and Corona escorted Robles 17 to cell 226 in Building 5, where Patterson was already housed. (DUF 5.) After Defendants 18 opened the cell door, Robles went inside and shook hands with Patterson. (DUF 7.) Patterson 19 began helping Robles with his property box. (Id.) The cell door was closed and locked, and 20 Defendants walked away. (Id.) Defendants did not hear any noise coming from the cell before or 21 after walking away. (DUF 8.) 22 A few minutes later, the control booth operator advised Corona to go to cell 226 as there 23 was a man down. (DUF 9.) Corona called Borbon for help, and they went to cell 226 where they 24 saw Robles and Patterson face down on the floor. (Id.) Borbon activated his personal alarm and 25 the Defendants waited for responding staff to arrive and take control of the incident. (DUF 10.) 26 27 28 2 Disputes of fact shown by Plaintiff’s evidence are delineated in the discussion of his opposition. 3 “DUF” refers to Defendants’ Statement of Undisputed Facts. 5 1 Patterson and Robles were pulled from the cell by responding staff and both inmates were placed 2 in handcuffs. (DUF 11.) Robles had significant injuries including bleeding, a laceration on his 3 forehead, scratches to his face, bruising to the back of his head, and a chipped tooth. (Id.) 4 Patterson had scratches on his back and a blood blister on his left hand. (Id.) Patterson was taken 5 to administrative segregation and Robles was taken to an outside hospital for treatment of his 6 injuries. (DUF 12.) Patterson was issued a rule violation report (“RVR”) for battery on an 7 inmate with serious bodily injury. (DUF 13.) A senior hearing officer later found Patterson 8 guilty and assessed a 360-day credit loss and a determinate security housing unit term. (Id.) 9 C. Defendants’ Motion 10 Defendants argue that the above facts show Plaintiff cannot establish that either of them 11 acted with deliberate indifference to his safety by housing him with Robles. (Doc. 103-1, p. 5.) 12 In support of his claim, Plaintiff asserts that he heard another inmate advised Robles to “be on his 13 toes” as Defendants brought Robles to the cell, but neither Defendant heard such a statement. 14 (Id., citing DUF 6.) Further, at his deposition, Plaintiff indicated that this statement was made in 15 Spanish. Borbon does not speak Spanish so he could not subjectively be aware of any risk based 16 on this statement. (Id., citing DUF 14.) Plaintiff also admitted that although he heard an inmate 17 on the tier talking to Robles and he “believe[d]” he heard the inmate say “stay on your toes,” he 18 did not know to what the inmate was referring or whether it had anything to do with him. (Id., 19 citing DUF 6.) Thus, this demonstrates that even if Corona heard the statement, it was not 20 obvious that the inmate was warning Robles about being celled with Plaintiff. (Id.) Defendants 21 argue that this shows Corona did not act with deliberate indifference to Plaintiff safety. (Id.) 22 Defendants argue that neither of them heard nor saw Plaintiff’s altercation with Robles to 23 have ignored it in deliberately indifference Plaintiff safety. (Id., citing DUF 8.) According to 24 Plaintiff, when Robles arrived at his cell, Plaintiff helped with his property, the cell door was 25 closed, and Plaintiff excused himself to the other side of the cell to turn down his television. (Id., 26 citing DUF 7.) Plaintiff claims that at this point Robles walked up to him, asked if he was a 27 Northerner and, when Plaintiff said he was, Robles punched him in the face causing him to trip 28 6 1 and hit his back on a stool in the back of the cell and become wedged between a table the bunk. 2 (Id.) It was thereafter that Plaintiff claims he got up and began fending off Robles. (Id., citing 3 DUF 7.) Defendants argue that, assuming these facts are true, it is not evident that either of them 4 necessarily heard or saw the fight. (Id.) Defendants show that the cell doors in facility D, 5 building 5 are solid except for a small opening for a food tray. (Id., citing DUF 15.) Thus, once 6 the door was shut Defendants could not see into the cell, nor could Plaintiff see where Defendants 7 were. (Id.) Defendants assert that the solid doors also made it difficult for the Defendants to hear 8 any sounds coming from inside the cell. (Id.) Defendants argue that, based on Plaintiff own 9 account some period of time necessarily elapsed between the cell door closing and Robles hitting 10 Plaintiff. (Id., pp. 5-6.) Defendants further assert that even more time elapsed between Robles 11 hitting Plaintiff, Plaintiff falling, and Plaintiff getting up to fight off Robles -- none of which 12 could have happened so quickly that Borbon and Corona necessarily heard the fight. (Id.) 13 Given these facts, the burden shifts to Plaintiff to establish that a genuine dispute exists as 14 to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 15 (1986). Plaintiff may not rely upon the mere allegations or denials of his pleadings, but is 16 required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery 17 material, in support of his contention that the dispute exists. Fed. R. Civ. P. 56(e); Matsushita, 18 475 U.S. at 586 n.11; First Nat=l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th 19 Cir. 1973). Plaintiff’s Opposition 20 D. 21 In his opposition, Plaintiff argues that Borbon and Corona withheld “additional 22 documentation information that was included with transfer record 135.” (Doc. 107. Plaintiff’s 23 Disputed Facts (“PDF”), p.20, ¶3E.) He asserts that Security and Escort Officers who are 24 escorting inmate arrivals to housing units, bring with them a “base file containing a transfer 25 record 135-154 among attachments of other classification information that notifys [sic] officers 26 who the inmate is and gang affiliation.” (Id., at ¶ 3A.) Plaintiff asserts that this is critical security 27 information that “follows that inmate throughout the facility where he moves” and is kept in a 28 7 1 secure office. (Id., at ¶ 3B.) Plaintiff asserts that Corona never possessed, nor reviewed Robles’ 2 file. (Id., at ¶ 3C.) However, Plaintiff’s only evidence to support these assertions is his own 3 declaration which he asserts “upon belief.” (Doc. 107, Exh. 12, pp. 99-100, P’s Dec., ¶¶ 4-6.) 4 This does not show that Plaintiff has personal knowledge of these procedures or is otherwise 5 competent to testify about them. 28 U.S.C. § 1746; Fed. R. Civ. P. 56(c)(4). Plaintiff also asserts 6 that “the CDCR 135 Transfer Record does not specify” that Robles’ housing assignment was 7 facility D, building 3, cell 226. (Doc. 107, p. 20, PDF ¶3D.) Though Plaintiff points to a 8 document attached as an exhibit to his opposition (Doc. 107, Exh. 9, p. 89), he fails to explain the 9 basis upon which he believes this document supports his conclusion and none is patently obvious. 10 Plaintiff disputes that Defendants received Robles from security and escort officers, that 11 according to his transfer record, Robles was assigned to facility D, building 5, cell 226 and that 12 there was no other information on the transfer record. (Doc. 107, PDF, p. 20, ¶4.) To this end, 13 Plaintiff asserts that the transfer record did not reflect that Robles was assigned to facility D, 14 building 5, cell 226. (Id.) Here again, Plaintiff does not explain the basis how the transfer record 15 supports for his conclusion and no such support is obvious on its face. 16 Plaintiff admits that, though he heard another inmate tell Robles to “be on his toes,” he did 17 not know to what the inmate was referring or whether the comment had anything to do with him. 18 (Doc. 107, p. 20.) Other than proximity, Plaintiff provides no basis upon which to find that 19 Borbon or Corona heard this statement, let alone understood it to be a warning that Plaintiff and 20 Robles were incompatible for housing. Further, at his deposition, Plaintiff stated that the inmate 21 told Robles to “be on his toes” in Spanish. (Doc. 107, p. 151.) However, in his declarations, 22 Plaintiff indicates that this statement was spoken in English. (Doc. 107, P’s Dec. pp. 99, ¶9.) 23 Plaintiff=s declaration statements do not override the statements he made in his deposition as A[a] 24 party cannot create a genuine issue of material fact to survive summary judgment by 25 contradicting his earlier version of the facts.@ Block v. City of Los Angeles, 253 F.3d 410, 419, n. 26 2, (9th Cir. 2001) ref. Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975). 27 Thus, the Court accepts Plaintiff’s deposition testimony and not his contradictory declaration and 28 8 1 finds the statement was uttered in Spanish. Borbon neither speaks nor understands Spanish (see 2 Doc. 103-3, Borbon Dec., ¶ 8). Moreover, the statement was ambiguous as even Plaintiff did not 3 know to what it referred. Thus, Plaintiff fails to create a dispute of fact to show that near or 4 immediately before the moment they placed Robles in Plaintiff’s cell, Borbon and Corona were 5 aware of safety concerns. Thus, the Court cannot find they were deliberately indifferent to 6 Plaintiff’s safety when they placed Robles in his cell. Plaintiff next attempts to show that after placing Robles in Plaintiff’s cell, Borbon and 7 8 Corona were aware that they began fighting but ignored it and walked away. Plaintiff states that 9 the door of his cell was three-to-four inches thick, had a thin window and food port, and had 10 about a three-inch gap between the bottom of the door and the floor. (Doc. 107, p. 21, ¶8A, citing 11 P’s Dec., pp. 99-100, ¶21, IM Matthews Dec., p. 101, IM Reyes Dec, p. 102.) The doors are not 12 sound-proof and it is approximately 60 feet from the door of the cell to the exit in the housing unit 13 and stairs are located approximately 15 feet to the right of the cell door. (Id., ¶ 1st 8B4, citing P’s 14 Dec., at ¶22, IM Matthews Dec., p. 101, IM Reyes Dec, p. 102.) Plaintiff identifies the metal 15 objects inside his cell and states that if there is a fight inside a cell, anyone outside the cell will 16 hear it because the metal rattles when hit. (Id., ¶ 2nd 8B, citing P’s Dec., pp. 99-100, ¶23, IM 17 Matthews Dec., p. 101, IM Reyes Dec, p. 102.) Based on this, Plaintiff asserts that Defendants 18 Borbon and Cordona “had to hear” both the unidentified inmate tell Robles to be on his toes and 19 their fight. Even with these facts about the location and characteristics of the cell accepted as 20 true, Plaintiff does not dispute that he and Robles did not begin fighting until after Borbon and 21 Corona walked away from cell 226. (Doc. 107, p. 21, ¶¶7, 7A.) Indeed, Plaintiff does not dispute Defendants’ Undisputed Fact #7 which states the 22 23 24 25 26 27 28 following sequence of events after Defendants’ arrived at cell 226 with Robles. After Defendants opened the cell door, Robles went inside and shook hands with Patterson. Patterson then began helping Robles with his property box. The cell door was closed and locked, and Defendants walked away. Patterson excused himself to the other side of the cell to turn down his television. Patterson claims that at this point Robles walked up to him, asked if he was a Northerner and, when Patterson said he was, Robles punched him in the face causing him to trip and hit his back on a stool in the back of the cell, becoming 4 There are two paragraphs marked “8B” on page 21 of Plaintiff’s opposition. 9 wedged between a table under a bunk. 1 2 (Doc. 103-3, DUF 7, citing Ex. 2, Decl. of S. Corona at ¶ 5; Ex. 3, Decl. of R. Borbon at ¶ 5; Ex. 3 1 Dep of Patterson at 9, 11-13.) Plaintiff fails to provide any evidence of the location of the 4 defendants when then fight began such that the Court can infer that they heard the altercation. 5 Moreover, Plaintiff does not provide any evidence as to whether there was no sound coming from 6 other cells or inmates in the area such that Defendants would definitively have heard the 7 altercation while walking away from cell 226. Thus, Plaintiff fails to show that Borbon and Corona were “aware of facts from which the 8 9 inference could be drawn that a substantial risk of serious harm exists,” drew that inference and 10 failed to take reasonable measures to abate it. Farmer, 511 U.S. at 837, 847. Given this, 11 Defendants are entitled to summary judgment as Plaintiff fails to demonstrate “the existence of 12 genuine issues for trial.” In re Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 13 323). Defendants’ request for qualified immunity need not be reached since they are entitled to 14 summary judgment on the merits of Plaintiff’s claim. 15 IV. 16 17 18 19 20 21 22 Conclusions and Recommendations As set forth herein, this Court finds that Defendants have met their burden and their motion for summary judgment should be granted. 1. Accordingly, the Court RECOMMENDS: That the Motion for Summary Judgment filed by Borbon and Corona (Doc. 103) should be GRANTED; and 2. That the Clerk of the Court be directed to enter judgment against Plaintiff and for Defendants Borbon and Corona, and that this action be closed. These Findings and Recommendations will be submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 21 24 days after being served with these Findings and Recommendations, the parties may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendations.” The parties are advised that failure to file objections within the 27 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 28 10 1 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 3 4 IT IS SO ORDERED. Dated: September 8, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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