(PC) Billups v. Lomeli, No. 1:2006cv01014 - Document 72 (E.D. Cal. 2010)

Court Description: ORDER DENYING 50 PLAINTIFF'S Motion for Summary Judgment and 51 Motion for Summary Judgment; ORDER GRANTING 54 DEFENDANT'S Motion for Summary Judgment; Clerk's Office is DIRECTED to enter Final Judgment conforming to this order; ORDERED that this action is terminated and closed, signed by District Judge David C. Bury on 09/14/2010. CASE CLOSED (Martin, S)
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(PC) Billups v. Lomeli Doc. 72 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 Derrick Lee Billups, 8 9 ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, vs. 10 Lomeli, 11 Defendant. 12 CV-06-1014-DCB P ORDER 13 14 Plaintiff Derrick Lee Billups, while confined at Sierra 15 Conservation Center (SCC) on Tuolumne Yard at Jamestown, filed this pro 16 se civil rights action pursuant to 42 U.S.C. §1983. He alleged that 17 various 18 Amendment rights by failing to protect him from an attack by his 19 cellmate in the general living area. 20 Summary Judgment against the only remaining Defendant. (Doc. 50, 51.) 21 Defendant filed a Cross-Motion for Summary Judgment (Doc. 54.) 22 motions are ready for ruling. 23 24 25 state employee correctional officers violated his Eighth Plaintiff filed a Motion for The The Court will deny Plaintiff’s motion, grant Defendant’s motion, and terminate the case. FACTUAL BACKGROUND 26 Plaintiff Derrick Lee Billups is a California State Prisoner. 27 Plaintiff filed his First Amended Complaint on January 3, 2008 alleging 28 constitutional claims under 42 U.S.C. § 1983 for violations of his Dockets.Justia.com 1 Eighth Amendment rights. The Court screened the First Amended Complaint 2 and determined that Plaintiff had only made a cognizable claim against 3 Defendant Lomeli, a Correctional Sergeant at SCC. 4 Plaintiff was incarcerated at the Sierra Conservation Center at the 5 time 6 Correctional Officer Meade that his cellmate was threatening him. 7 Officer 8 immediate cell move, but contacted Sergeant Lomeli and sent Plaintiff 9 and his cellmate to meet with him. Defendant Lomeli met with each inmate 10 separately and then brought them together to discuss their concerns. 11 Plaintiff told Defendant Lomeli that he felt his health and safety were 12 threatened by being housed in the same cell, with inmate Brownlee. 13 Defendant Lomeli stated that he did not believe that inmate Brownlee 14 posed a threat to Plaintiff’s safety, but if Plaintiff continued to 15 request 16 segregation. Defendant Lomeli also informed Plaintiff that he could 17 refuse 18 administrative segregation. Instead of refusing to return to his cell 19 and being placed in administrative segregation, Plaintiff returned to 20 his housing unit. 21 22 23 the events Meade a to bed occurred. told the move return to On June Plaintiff that his he cell 12, that would but 2005, he be that Plaintiff could placed he not in would informed authorize an administrative be placed in Upon returning to the housing unit, but before returning to his cell, inmate Brownlee attacked Plaintiff, causing Plaintiff injury. LEGAL STANDARD OF REVIEW 24 A court must grant summary judgment if the pleadings and supporting 25 documents, viewed in the light most favorable to the non-moving party, 26 “show that there is no genuine issue as to any material fact and that 27 the movant is entitled to judgment as a matter of law.” 28 P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 2 Fed. R. Civ. 1 (1986). 2 initial responsibility of presenting the basis for its motion and 3 identifying those portions of the record, together with affidavits, 4 which it believes demonstrate the absence of a genuine issue of material 5 fact. Under summary judgment practice, the moving party bears the Celotex, 477 U.S. at 323. 6 If the moving party meets its initial responsibility, the burden 7 then shifts to the opposing party who must demonstrate the existence of 8 a factual dispute and that the fact in contention is material, i.e., a 9 fact that might affect the outcome of the suit under the governing law, 10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the 11 dispute is genuine, i.e., the evidence is such that a reasonable jury 12 could return a verdict for the non-moving party. 13 Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). 14 56(e) compels the non-moving party to “set out specific facts showing 15 a genuine issue for trial” and not to “rely merely on allegations or 16 denials in its own pleading.” 17 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). 18 The 19 conclusively in its favor; it is sufficient that “the claimed factual 20 dispute be shown to require a jury or judge to resolve the parties’ 21 differing versions of the truth at trial.” 22 v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). 23 mandates the entry of summary judgment against a party who, after 24 adequate time for discovery, fails to make a showing sufficient to 25 establish the existence of an element essential to that party’s case and 26 on which the party will bear the burden of proof at trial. 27 U.S. at 322-23. opposing party need not Id. at 250; see Triton Rule Fed. R. Civ. P. 56(e); Matsushita Elec. establish 28 3 a material issue of fact First Nat’l Bank of Arizona However, Rule 56(c) Celotex, 477 1 When considering a summary judgment motion, the court examines the 2 pleadings, depositions, answers to interrogatories, and admissions on 3 file, together with the affidavits, if any. 4 summary judgment, the judge’s function is not to weigh the evidence and 5 determine the truth but to determine whether there is a genuine issue 6 for trial. 7 is “to be believed, and all justifiable inferences are to be drawn in 8 his favor.” 9 is merely colorable or is not significantly probative, summary judgment 10 Anderson, 477 U.S. at 249. Id. at 255. may be granted. Fed. R. Civ. P. 56(c). At The evidence of the non-movant But if the evidence of the non-moving party Id. at 249-50. 11 DISCUSSION 12 I. 13 CONCERNS DEFENDANT WAS NOT DELIBERATELY INDIFFERENT TO PLAINTIFF’S SAFETY 14 A. Eighth Amendment Failure to Protect Standard. 15 A prison official may be held liable for denying a prisoner humane 16 conditions of confinement, under the rule that an official's deliberate 17 indifference to a substantial risk of serious harm to a prisoner 18 violates the cruel and unusual punishments clause 19 Constitution's Eighth Amendment, only if the official is subjectively 20 aware that prisoners face such a risk—the official not only being aware 21 of facts from which an inference of such a risk could be drawn, but also 22 drawing that inference—and disregards that risk by failing to take 23 reasonable measures to abate the risk; deliberate indifference is 24 equivalent to reckless disregard and describes a state of mind more 25 blameworthy 26 omissions for the very purpose of causing harm or with knowledge that 27 harm will result; subjective recklessness, as defined in the criminal 28 law, is the appropriate test for deliberate indifference; and the than negligence, but is 4 something of the Federal less than acts or 1 failure of prison officials to alleviate a significant risk that they 2 should 3 infliction of punishment within the meaning of the Eighth Amendment. 4 Farmer v. Brennan, 511 U.S. 825 (1994). have perceived, but did not, cannot be condemned as the 5 Farmer v. Brennan involved an action by a prisoner under the cruel 6 and unusual punishment clause of Eighth Amendment, where a prisoner was 7 a transsexual who had been beaten and raped when he was moved to a 8 different prison and placed in the general prison population rather than 9 segregated, as he had been in prior prison, prison officials could not 10 escape liability for deliberate indifference by showing that while they 11 were aware of obvious, substantial risk to prisoner's safety, they did 12 not know that the prisoner was especially likely to be assaulted by a 13 specific inmate who eventually committed an assault; the question under 14 the Eighth Amendment is whether prison officials, acting with deliberate 15 indifference, exposed a prisoner to sufficiently substantial risk of 16 serious damage to a prisoner's health, and it did not matter whether a 17 risk came from single source or multiple ones. It remained open for 18 prison officials to prove that they were unaware even of obvious risk 19 to inmate health or safety, by showing that they did not know underlying 20 facts indicating sufficiently substantial danger and that they were 21 therefore unaware of danger, or that they knew underlying facts but 22 believed, though unsoundly, that risk to which facts gave rise was 23 insubstantial or nonexistent. Prison officials who actually knew of 24 substantial risk to a prisoner's health or safety could be found free 25 from liability if they responded reasonably to risk, even if harm 26 ultimately was not averted; prison official's duty under the Eighth 27 Amendment was to insure reasonable safety for prisoners, a standard that 28 5 1 incorporates due regard for prison officials' difficult task of keeping 2 dangerous persons in safe custody under humane conditions. Id. 3 Prison officials have a duty to protect prisoners from violence at 4 the hands of other prisoners. Jones v. Marshall, 459 F. Supp. 2d 1002 5 (E.D. Cal. 2006), yet not every injury suffered by one prisoner at the 6 hands of another translates into constitutional liability for prison 7 officials responsible for the victim's safety. Glenn v. Berndt, 289 F. 8 Supp. 2d 1120 (N.D. Cal. 2003). 9 Plaintiff must show more than negligence (for example if a prison 10 guard should, but does not know of a risk) or even gross negligence. 11 Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); Daniels v. 12 Williams, 474 U.S. 327, 332 (1986). Mere inadvertence or error made in 13 good faith does not support an Eighth Amendment claim. Estelle v. 14 Gamble, 429 U.S. 97, 105-06 (1976). 15 B. Plaintiff’s Eighth Amendment Rights Were Not Violated 16 Defendant Lomeli appropriately responded to the Plaintiff’s safety 17 concerns. By Plaintiff’s own admission, Lomeli provided him with the 18 opportunity to move to administrative segregation.1 While Plaintiff 19 implies that Lomeli telling him that the only bed move he would get is 20 to 21 irrelevant under the circumstances. The California Code of Regulations 22 requires an immediate move to administrative segregation “when an 23 inmate's presence in an institution's general inmate population presents 24 an immediate threat to the safety of the inmate . . .” Cal. Code Regs, 25 Tit. 15, § 3335(a) (2009). Even though Defendant does not admit that he administrative segregation was a threat, this contention is 26 1 27 28 “Administrative segregation” is a catch-all phrase for any form of nonpunitive segregation. Hewitt v. Helms, 459 U.S. 460, 468 (1983). Placement in administrative segregation is not indefinite and subject to post-placement periodic review. Id. at 477; Sandin v. Conner, 515 U.S. 472, 480 (1995). It is not punishment and not indefinite. 6 1 was directly made aware of safety concerns, the fact that a refuge was 2 offered to Plaintiff and refused goes against Plaintiff’s case. 3 undisputed that Plaintiff could have refused to return to his cell, 4 which 5 segregation—again giving Plaintiff the option to be removed from his 6 cell. Defendant Lomeli is not liable for Plaintiff deciding to return 7 to his cell rather than moving to administrative segregation. would also cause him to be re-housed in It is administrative 8 Based on his own words, Plaintiff did not inform Defendant Lomeli 9 that he could not be housed on the same yard as his cellmate, only that 10 he could not be safely housed in the same cell as inmate Brownlee. Thus, 11 even if Defendant Lomeli would have moved Plaintiff to another general 12 population 13 Plaintiff 14 Plaintiff’s safety would not have been eliminated because Plaintiff was 15 injured in the dayroom (a general population area), not his cell. Based 16 on Plaintiff’s own recitation of the events, Defendant Lomeli did not 17 violate Plaintiff’s Eighth Amendment Rights.2 cell (rather contends than should to have administrative occurred, the segregation), alleged threat as to 18 Plaintiff claims that Defendant Lomeli failed to protect him from 19 his cellmate. Defendant Lomeli correctly argued, in his Motion for 20 Summary Judgment, that Plaintiff’s own statements demonstrate that 21 Defendant Lomeli appropriately responded to the Plaintiff’s safety 22 concerns. That is, by Plaintiff’s own admission, Lomeli provided him 23 with the opportunity to move to administrative segregation. Plaintiff’s 24 25 26 27 28 2 Defendant objects to Plaintiff’s Exhibit 15 on the grounds that it is irrelevant and contains hearsay. Fed. R. Evid. 401, 402 and 802. Inmate Smith’s statements that: (1) he witnessed correctional officers, not specifically the Defendant, harassing Plaintiff beginning in 2003; (2) Brownlee was released form administrative segregation before the Plaintiff; and, (3) Correctional Officer Douglas made statements that things were going to happen if they did not keep quiet about the inmate Jacobo situation, are irrelevant to whether or not Defendant Lomeli knew of and consciously disregarded a serious risk of harm to Plaintiff on June 12, 2005. Those objections are sustained. 7 1 attempt to create a dispute by showing that Defendant Lomeli denies 2 offering him placement in administrative segregation is misdirected, as 3 Defendant’s undisputed fact specifically stated that “Lomeli allegedly 4 responded 5 administrative segregation.” (PDepo at 19, 35.) Plaintiff cannot dispute 6 that he made this allegation in his complaint, nor can he create a 7 triable issue of fact by disputing his own deposition testimony. See 8 Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991) 9 (confirming the general rule in the Ninth Circuit that a party cannot that the only bed move Plaintiff would receive was to 10 create 11 deposition testimony); see also Radobenko v. Automated Equipment Corp., 12 520 F.2d 540, 543-44 (9th Cir. 1975) (rejecting as not "genuine" issues 13 of material fact created by plaintiff's recitals in a sworn affidavit 14 submitted in opposition to defendant's summary judgment motion which 15 contradicted plaintiff's own prior deposition testimony.) Defendant’s 16 motion is supported by Plaintiff’s own deposition testimony and his own 17 sworn statements in his Complaint. Plaintiff, additionally, failed to 18 offer any evidence to dispute that he could have refused to return to 19 his cell, which would also cause him to be re-housed in administrative 20 segregation, or to dispute the fact that he did not inform Defendant 21 Lomeli that he could not be housed on the same yard as his cellmate, 22 only that he could not be safely housed in the same cell as inmate 23 Brownlee. Plaintiff’s own factual assertions negate the elements of 24 deliberate indifference. an issue of fact by an affidavit contradicting his prior 25 The undisputed facts, based on Plaintiff’s version of these facts, 26 establish that Defendant Lomeli appropriately responded to the safety 27 concerns brought to his attention by Plaintiff. It is undisputed that 28 Lomeli offered to move Plaintiff to administrative segregation, which 8 1 would 2 situation. (Lomeli Decl., Ex. A; Plaintiff’s Undisputed Fact 4.) have permitted Plaintiff to escape his perceived dangerous 3 The Court’s conclusion is reached keeping in mind that protecting 4 the safety of prisoners and staff involves difficult choices and evades 5 easy solutions. Bell v. Wolfish, 441 U.S. 520, 547 (1979). Courts often 6 lack competence to evaluate fully prison administrative decisions. Id. 7 at 547-48. See generally Hudson v. Palmer, 468 U.S. 517 (1984). The 8 Supreme Court has stated that deference to the decisions of prison 9 officials also extends to “prophylactic or preventive measures intended 10 to reduce the incidence of these or any other breaches of prison 11 discipline.” Id. As such, the Court will not question whether or not the 12 offer of administrative segregation was the only or best solution to 13 Plaintiff’s safety concerns under the circumstances of this action. 14 Placing inmates in segregation is a common and acceptable means of 15 protecting them. See Case v. Ahitow, 301 F.3d 605, 607 (7th Cir.2002). 16 Even with actual knowledge of the risk, the defendants' only duty was 17 to act reasonably. See Farmer, 511 U.S. at 844; Peate v. McCann, 294 18 F.3d 879 (7th Cir.2002) (remanding for determination of whether prison 19 guard acted reasonably in returning weapon to prisoner where he was 20 aware of the risk of harm to another inmate from previous fight). The 21 fact that a correctional officer might have made a bad choice because 22 the threatened violence was ultimately not averted does not make for a 23 constitutional violation. See Farmer, 511 U.S. at 844; Babcock v. White, 24 102 F.3d 267, 274 (7th Cir.1996) (finding no deprivation of liberty 25 interest where inmate feared mafia members in the general population, 26 chose to enter administrative detention for his own protection, and 27 ultimately regretted his choice). In this instance, taking Plaintiff’s 28 9 1 version of events as true, it was Plaintiff that made a bad choice not 2 to take administrative segregation. 3 II. DEFENDANT LOMELI IS ENTITLED TO QUALIFIED IMMUNITY. 4 The doctrine of qualified immunity protects state officials from 5 personal liability “unless their conduct violates clearly established 6 statutory or constitutional rights of which a reasonable person would 7 have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations 8 omitted); Pearson v Callahan, __ U.S. ___, 129 S. Ct. 808, 813(2009) 9 (holding that the Court may exercise its discretion in deciding which 10 of the two prongs of the qualified immunity analysis should be addressed 11 first). 12 Qualified immunity applies whether the government official’s error 13 is a mistake of law, a mistake of fact, or a mistake based on mixed 14 questions of law and fact. Pearson, 129 S. Ct. at 815. This inquiry 15 assesses the objective legal reasonableness of an action in light of the 16 legal rules that were clearly established at the time it was taken. 17 Wilson v. Layne, 526 U.S. 603, 614 (1999). The standard allows “ample 18 room 19 incompetent or those who knowingly violate the law,” and applies even 20 when wrongful 21 conduct occurs. Richardson v. McKnight, 521 U.S. 399, 403 (1997); Hunter 22 v. Bryant, 502 U.S. 224, 227 (1991) (internal quotations omitted). The 23 plaintiff bears the burden of establishing that the defendant violated 24 a clearly established right. Davis v. Scherer, 468 U.S. 183, 187 (1984). 25 To be clearly established, the right must be “clearly established in a 26 particularized sense, such that the contours of the right must be 27 sufficiently clear that a reasonable official would understand that what 28 he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, for mistaken judgments by protecting 10 all but the plainly 1 640 (1987); Saucier v. Katz, 533 U.S. 194, 201-02 (2001). Constitutional 2 requirements are not always clear-cut at the time that action is 3 required 4 constitutional violation occurred, the [official] should prevail if the 5 right asserted by the plaintiff was not ‘clearly established’ or the 6 [official] could have reasonably believed that his particular conduct 7 was lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). 8 Because reasonableness is judged against the backdrop of the law 9 at the time of the conduct at issue, Brouseau v. Haugen, 543 U.S. 194, 10 198 (2004), the reasonableness inquiry must be undertaken in the light 11 of the specific context of the case and not as a general, broad 12 proposition. Saucier, 533 U.S. at 202. The official is entitled to 13 qualified 14 unconstitutional under facts not distinguishable in a fair way from the 15 facts presented in the case at hand. Devereaux v. Abbey, 263 F.3d 1070, 16 1074 17 unpublished decisions and the law of other circuits and districts courts 18 is considered when determining whether the law was clearly established. 19 Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996); Sorrels v. McKee, 20 290 F.3d 965, 971 (9th Cir. 2002) (unpublished district court decisions 21 may be considered). by (9th officials. immunity, Cir. Therefore, unless 2001). the All “regardless challenged available conduct decisional of whether has been law, the found including 22 Here, Defendant Lomeli is entitled to qualified immunity because 23 no clearly established law would have placed a reasonable correctional 24 officer on notice that offering to place an inmate in administrative 25 segregation because of the inmate’s safety concerns was unreasonable. 26 To 27 mandates that inmates with safety concerns be placed in administrative 28 segregation. Cal. Code Regs, Tit. 15, § 3335(a)(2009). It is thoroughly the contrary, the California Code 11 of Regulations specifically 1 inconsistent with the rationale underlying the doctrine of qualified 2 immunity 3 previously clearly identified as unlawful. Because prison officials are 4 not required to anticipate subsequent legal developments, they cannot 5 fairly be said to “know” the law unless it is sufficiently unmistakable 6 from authoritative sources. Thus, it is not sufficient to consider 7 whether the logical extension of principles and decisions in previous 8 decisions that provided notice. Rather, the contours of the right must 9 be sufficiently clear that a reasonable official would understand that 10 what he is doing violates that right. Anderson, 483 U.S. at 640. Because 11 Plaintiff cannot show that it was sufficiently clear to a reasonable 12 official that Defendant’s actions violated the constitution, Defendant 13 Lomeli is entitled to qualified immunity. to hold individuals personally liable for conduct not 14 Plaintiff argues that Defendant Lomeli is not entitled to qualified 15 immunity because Defendant could have reasonably anticipated that his 16 conduct would give rise to liability. Plaintiff again omits the fact 17 that his own statements demonstrate that Defendant Lomeli offered him 18 placement in administrative segregation. Defendant Lomeli is, thus, 19 entitled to qualified immunity because no clearly established law would 20 have placed a reasonable correctional officer on notice that offering 21 to place an inmate in administrative segregation because of the inmate’s 22 safety concerns was unreasonable. 23 By the same token, the Court does not find any evidence that 24 Defendant violated a clearly established constitutional right by not 25 immediately and preemptively removing Plaintiff from the general prison 26 population; it was not what Plaintiff requested yet it was the only 27 relief that would have prevented the assault which occurred in the 28 general population area. There are no facts nor does Plaintiff argue 12 1 analogous facts, circumstances or authority for the proposition that 2 Defendant should have reasonably known under the circumstances 3 was violating Plaintiff’s constitutional rights by not immediately 4 removing him from the general population with or without Plaintiff’s 5 consent. See Hope v. Pelzer, 536 U.S. 730, 739 (2002) (the unlawfulness 6 of 7 authorities); Saucier, 533 U.S. at 202. 8 situation was always addressed as a “cellmate” issue, not a “general 9 ongoing threat to safety by remaining in the general population” issue. 10 Just as the Defendant is not required to predict the future course 11 of applicable constitutional law, he could not have been expected to 12 predict Plaintiff’s future assault based on the facts as they were 13 presented to him by Plaintiff himself at the time. See generally Borello 14 v. Allison, 446 F.3d 742 (7th Cir. 2006); Faulkner v. Litscher, 130 15 Fed.Appx. 812 (7th Cir. 2005). In sum, based on this record, Defendant 16 is entitled to qualified immunity. 17 III. 18 a clearly established right must be apparent from that he existing All parties agree that this STANDARD FOR RESOLVING CROSS-MOTIONS FOR SUMMARY JUDGMENT Cross-motions for summary judgment are examined under the Rule 56 19 standards. 20 Irr. Trust, 410 F.3d 304, 309 (6th Cir. 2005). 21 be evaluated on its own merits, viewing all facts and reasonable 22 inferences in a light most favorable to the nonmoving party. 23 Citigroup, Inc., 535 F.3d 45,52 (1st Cir. 2008). Spectrum Health Continuing Care Group v. Anna Marie Bowling Each cross-motion must In re 24 Here, both Plaintiff and Defendant have filed Motions for Summary 25 Judgment. The Court is bound to review both motions separately and view 26 the facts in the light most favorable to the nonmoving party in each 27 motion. 28 Deposition testimony. Plaintiff’s position is represented by his Complaint and Any attempts to change or alter the facts as the 13 1 litigation progressed are rejected by this Court as attempts to raise 2 factual questions that do not exist to avoid resolution by summary 3 judgment. 4 asserted by Plaintiff are true, the Court may rule in Defendant’s favor 5 as a matter of law. 6 are different from Plaintiff’s facts: Plaintiff argues that he told 7 Defendant that his safety was in jeopardy and that Defendant’s response 8 was to move him to Administrative Segregation; and, Defendant argues 9 that Plaintiff never told him that his safety was in jeopardy. Defendant takes the position that even if the facts as Despite this position, Defendant asserts facts that 10 As a result of Plaintiff’s exhaustion of the prison’s internal 11 administrative grievance process, some additional relevant facts are 12 presented. 13 On May 23, 2005, a memorandum from Warden Ornoski was sent to Plaintiff 14 referring to an April 29, 2005 letter addressing Plaintiff’s complaint 15 that 16 precautionary measure to determine whether an enemy situation against 17 him existed on the level III inmate general population. This letter 18 reveals that Plaintiff’s safety had been ensured by the prison in the 19 past 20 evidence that this past incident was in any way related to the facts in 21 t he by h (Plaintiff’s Opposition to Defendant’s Statement of Facts.) had been placing i s him rehoused in in administrative administrative a c t segregation segregation.3 i o n (There . as is a no ) 22 23 24 25 26 27 28 3 Plaintiff is incorrect that his cellmate was not punished for the fight. The altercation that resulted in injuries to Plaintiff was classified initially a mutual combat and occurred later the same day of the counseling session but in the day room, a common area. On July 11, 2005, Plaintiff was determined to be not guilty of that charge but the cellmate Brownlee did plead guilty to a charge of mutual combat and was disciplined accordingly. At the time that Brownlee was disciplined, July 16, 2005, Brownlee stated that he did now consider inmate Billups as an enemy and a final determination was made that “an enemy situation does exist between both inmates and these inmates should not be housed together.” (PSOF Ex. 4.) Plaintiff has since been relocated to a different prison facility. 14 1 Taking as true the Plaintiff’s version of the facts from his 2 complaint and deposition testimony, as a matter of law Defendant has not 3 violated Plaintiff’s constitutional rights: he told Defendant that he 4 feared for his safety from his cellmate and Defendant “threatened” to 5 put him in Administrative Segregation. Even if Defendant’s offer to put 6 Plaintiff in Administrative Segregation had an “attitude” that offended 7 Plaintiff, it was an offer he should have and one would reasonably 8 expect he would have accepted had he really believed that his safety was 9 in jeopardy. Administrative Segregation exists for that purpose, it is 10 not permanent, and would have gotten Plaintiff out of harm’s way. 11 Plaintiff did not believe he was in jeopardy such that he would not take 12 the offer to move to Administrative Segregation, it is hard to blame 13 Defendant if he did not take Plaintiff’s complaint seriously. 14 resolution of an action by summary judgment cannot be defeated if the 15 claim or defense poses a factual scenario that is plainly contradicted 16 by the summary judgment record. 17 (2007). If A Scott v. Harris, 550 U.S. 372, 380 18 Under the set of facts described by both Plaintiff and Defendant, 19 even though they differ to some extent, neither set of facts taken as 20 true rises to the level of a constitutional violation. 21 resolving facts, weighing evidence or assessing credibility, the Court 22 finds 23 constitutional rights. For this matter to be set for trial, the Court 24 must find that some version of the facts could legally result in a 25 verdict in favor of the Plaintiff and against the Defendant by a 26 rational factfinder after a review of the evidence and it does not so 27 find. 28 as a matter of law there was CONCLUSION 15 no violation of So, without Plaintiff’s 1 2 After a thorough and complete review of the record, this Court rules as a matter of law in favor of Defendant. 3 Accordingly, 4 IT IS ORDERED that the Defendant’s Motion for Summary Judgment 5 (Doc. No. 54 ) is granted and the Plaintiff’s Motion of Summary Judgment 6 (Doc. No. 50, 51) is denied. 7 a Final Judgment conforming to this Order. 8 // 9 // The Clerk’s Office is directed to enter 10 IT IS FURTHER ORDERED that this action is terminated and closed. 11 DATED this 14th day of September, 2010. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16