(PC) Anderson v. Meier, et al, No. 2:2015cv01148 - Document 96 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/11/18 RECOMMENDING that 80 Motion for Summary Judgment be denied. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Coll, A)
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(PC) Anderson v. Meier, et al Doc. 96 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC ZACHARY ANDERSON, 12 Plaintiff, 13 14 No. 2:15-cv-1148-KJM-EFB P v. FINDINGS AND RECOMMENDATIONS TIM VIRGA, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 17 18 42 U.S.C. § 1983. Defendants Meier, Riley, and Boe move for summary judgment.1 ECF No. 19 80. Because the parties’ filings reveal many disputed material facts, the motion must be denied. 20 I. Plaintiff’s Claims This case currently proceeds on plaintiff’s second amended complaint, filed on May 2, 21 22 2017. ECF No. 46. Plaintiff alleges that defendants Meier, Riley, and Boe – correctional staff at 23 California State Prison, Sacramento (“CSP-Sac”) –were deliberately indifferent to his safety by 24 placing him on an integrated gang yard at his Institutional Classification Committee (“ICC”) 25 hearing on October 16, 2013. Id. at 3. According to plaintiff, defendants knew: (1) that plaintiff 26 had been charged with attempting to cooperate with a correctional officer to smuggle contraband 27 28 1 Plaintiff also has live claims against defendant Villasenor, who has not joined in the motion nor separately moved for summary judgment. 1 Dockets.Justia.com 1 into the institution, (2) that CSP-Sac staff had given this information to Rene Arias, an inmate and 2 prison gang member on the integrated yard, and (3) that plaintiff would consequently be attacked 3 if placed on the yard. Id. at 3-12. They nevertheless elected to place plaintiff on the yard, where 4 Arias and another inmate stabbed and beat him a short time later. Id. at 11. 5 II. 6 The Motion for Summary Judgment A. Summary Judgment Standards 7 Summary judgment is appropriate when there is “no genuine dispute as to any material 8 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 9 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 10 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 11 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 12 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. 13 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment 14 motion asks whether the evidence presents a sufficient disagreement to require submission to a 15 jury. 16 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 17 or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 18 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 19 trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. 20 Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary 21 judgment practice, the moving party bears the initial responsibility of presenting the basis for its 22 motion and identifying those portions of the record, together with affidavits, if any, that it 23 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; 24 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets 25 its burden with a properly supported motion, the burden then shifts to the opposing party to 26 present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 27 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 28 ///// 2 1 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 2 to summary judgment procedures. Depending on which party bears that burden, the party seeking 3 summary judgment does not necessarily need to submit any evidence of its own. When the 4 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 5 need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National 6 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 7 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 8 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 9 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 10 depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment 11 should be entered, after adequate time for discovery and upon motion, against a party who fails to 12 make a showing sufficient to establish the existence of an element essential to that party’s case, 13 and on which that party will bear the burden of proof at trial. See id. at 322. In such a 14 circumstance, summary judgment must be granted, “so long as whatever is before the district 15 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 16 satisfied.” Id. at 323. 17 To defeat summary judgment the opposing party must establish a genuine dispute as to a 18 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 19 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 20 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 21 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 22 determined by the substantive law applicable for the claim in question. Id. If the opposing party 23 is unable to produce evidence sufficient to establish a required element of its claim that party fails 24 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 25 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 26 at 322. 27 28 Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in 3 1 question. Where the party opposing summary judgment would bear the burden of proof at trial on 2 the factual issue in dispute, that party must produce evidence sufficient to support its factual 3 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. 4 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit 5 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 6 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 7 demonstrate a genuine factual dispute, the evidence relied on by the opposing party must be such 8 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 9 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 10 The court does not determine witness credibility. It believes the opposing party’s 11 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; 12 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 13 proponent must adduce evidence of a factual predicate from which to draw inferences. Am. Int'l 14 Group, Inc. v. Am. Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing 15 Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary 16 judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On 17 the other hand, the opposing party “must do more than simply show that there is some 18 metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead 19 a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” 20 Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant summary 21 judgment. 22 Concurrent with the motion for summary judgment, defendants advised plaintiff of the 23 requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. 24 ECF No. 80; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 25 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 26 F.2d 409 (9th Cir. 1988). 27 ///// 28 ///// 4 1 2 B. Analysis Prison officials are obligated by the Eighth Amendment to take reasonable measures to 3 protect prisoners from violence by other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 4 (1994). To succeed on a failure-to-protect claim against an official, an inmate must establish 5 three elements. First, the inmate must show that he was incarcerated under conditions posing a 6 substantial risk of serious harm. Id. Second, he must show that the official was deliberately 7 indifferent to his safety. Id. “Deliberate indifference” occurs when an official knows of and 8 disregards an excessive risk to an inmate’s safety. Id. at 837. “[T]he official must both be aware 9 of facts from which the inference could be drawn that a substantial risk of serious harm exists, 10 and he must also draw the inference.” Id. Third, the inmate must show that the defendants’ 11 actions were both an actual and proximate cause of his injuries. Lemire v. Cal. Dep’t of Corr. & 12 Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). This means that the inmate’s injury would not have 13 occurred but for the official’s conduct (actual causation) and no unforeseeable intervening cause 14 occurred that would supersede the official’s liability (proximate causation). Conn v. City of Reno, 15 591 F.3d 1081, 1098-1101 (9th Cir. 2010), vacated by 131 S. Ct. 1812 (2011), reinstated in 16 relevant part by 658 F.3d 897 (9th Cir. 2011). 17 Defendants put forth three arguments in favor of summary judgment: (1) that they did not 18 control plaintiff’s yard placement and thus were not the cause of the harm he suffered; (2) that 19 they were not aware that placing plaintiff on the integrated yard would subject him to a 20 substantial risk of serious harm; and (3) that they should be afforded qualified immunity because 21 their conduct was objectively reasonable. The court will address each argument in turn. 22 23 1. Causation The United States Court of Appeals for the Ninth Circuit directs the court, in considering 24 the question of causation in a failure-to-protect case, to “focus on whether the individual 25 defendant was in a position to take steps to avert the [attack], but failed to do so intentionally or 26 with deliberate indifference.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). The court 27 “must take a very individualized approach which accounts for the duties, discretion, and means of 28 each defendant.” Id. at 633-34. 5 1 a. 2 Defendant Boe Defendants argue that Boe’s participation on plaintiff’s ICC did not cause plaintiff to be 3 placed on the integrated yard because Boe had no power to make any decision regarding 4 plaintiff’s yard placement. According to defendants, individual members of an ICC lack 5 decision-making authority regarding inmate housing. Instead, housing decisions are made solely 6 by the committee chairperson. ECF No. 80-2, Defs.’ Statement of Undisputed Facts ISO Summ. 7 J. (“DUF”) No. 3. Defendants rely on the declaration of S. Martin, a Classification Staff 8 Representative for CDCR. ECF No. 80-4, ¶ 1. Martin declares that “[ICC] recommendations and 9 decisions are generally discussed by committee members, but are ultimately rendered by the 10 Chairperson of the committee.” Id., ¶ 7. According to defendants, Boe’s only function at the 11 hearing was “updating institutional forms as requested by the head of the committee.” ECF No. 12 80-1 at 12. 13 Plaintiff disputes that housing decisions are rendered solely by the ICC chair, and points 14 to the CDC Form 128G documentation generated after his October 16, 2013 hearing, which states 15 that the “committee elects” to place plaintiff on the yard. ECF No. 80-4 at 23. The court notes 16 that the regulations governing the work of ICCs nowhere indicate that the chairperson has 17 ultimate decision-making authority. Instead, they state that the housing determination “shall be 18 made by a classification committee composed of staff knowledgeable in the classification 19 process.” Cal. Code. Regs. tit. 15, § 3375(c); Cal. Dep’t of Corr. & Rehab. (“CDCR”) Operations 20 Manual § 62010.8 (available at 21 https://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/DOM%202018/2018%20DO 22 M.pdf). See also Cal. Code Regs. tit. 15, §§ 3376(c)(2), 2276(d)(3); CDCR Operations Manual 23 §§ 62010.8.1, 62010.8.2. The language of both the Form 128G and the regulations suggests 24 collective action, rather than a determination made by a sole decisionmaker. Plaintiff declares 25 that, at the hearing, defendant Meier informed plaintiff, “We are sending you to the group yard” 26 ///// 27 ///// 28 ///// 6 1 and then asked defendants Riley and Boe if they agreed.2 ECF No. 86 at 205. Riley and Boe 2 replied, “Yes.” Id. 3 In addition, plaintiff declares that he informed the ICC that he was not a gang member and 4 thus should not be placed on the yard and that, because gang members knew he had tried to work 5 with a correctional officer to smuggle contraband into the prison, he would be in danger on the 6 yard. ECF No. 86 at 24. In plaintiff’s view, if the ICC had elected to keep plaintiff off the yard 7 while investigating his claims of danger, he would not have been attacked. While defendants 8 dispute whether plaintiff made such a report to the committee, it is not for the court on summary 9 judgment to resolve the credibility dispute. If a jury credits plaintiff’s testimony it could 10 reasonably find for plaintiff on the question. 11 The evidence before the court thus presents a factual dispute as to whether the decision to 12 place plaintiff on the gang yard was made by the ICC chairperson or by the committee acting 13 together. There is also a dispute as to whether defendant Boe, having been notified that plaintiff 14 believed his safety would be at risk on the integrated yard, could have taken some action to stop 15 or delay the yard placement. The evidence does not show indisputably that defendant Boe did not 16 have any part in the decision to place plaintiff on the gang yard. See Lemire, 726 F.3d at 1081 17 (“If reasonable persons could differ on the question of causation then summary judgment is 18 inappropriate and the question should be left for a jury.”). 19 ///// 20 2 21 22 23 24 25 26 27 Defendants raise a general objection to plaintiff’s declarations as well as the declaration of his then-cellmate, inmate Jacquez, that the declarations contain speculations not based on the personal knowledge of the declarant. ECF No. 87 at 5-6. In determining what portions of the declarations to consider in assessing the propriety of summary judgment, the court must focus not on whether the evidence is presented in an admissible form but rather whether the contents of the evidence could be presented in an admissible form at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). In preparing these findings and recommendations, the court has considered only those portions of the declarations based on the personal knowledge of the declarant. As to hearsay statements (e.g., what inmate Jacquez avers about what inmate Arias told him), the court has considered those statements where plaintiff may subpoena the actual declarant at trial to testify directly. Defendants also object to medical records submitted by plaintiff. These records were not relevant to the issues raised in defendants’ motion for summary judgment and thus were not considered by the court. 28 7 1 b. Defendant Meier 2 Defendants rely on the same argument as to defendant Meier – i.e., that he was not the 3 ICC chairperson and thus did not have authority to place plaintiff on the integrated yard. Plaintiff 4 disputes that Meier was not the chair but that dispute is immaterial.3 Rather, the claim against 5 Meier turns on what participation he had in the decision and whether he could have taken some 6 action to prevent plaintiff’s placement on the yard. As discussed above, the evidence is disputed 7 as to what role non-chair ICC members have in inmate housing decisions; it is not clear from the 8 evidence before the court that the chairperson has sole decision-making authority and that Meier 9 could not have prevented the yard placement. Accordingly, summary judgment in favor of 10 defendant Meier cannot be granted on the basis that he did nothing to cause plaintiff to be placed 11 on the yard. 12 c. Defendant Riley 13 Defendants present the same argument as to defendant Riley, and it must be rejected for 14 the same reasons – the evidence does not indisputably show that non-chair ICC members have no 15 role in yard-placement decisions generally or that Riley specifically could not have taken some 16 action in his role as ICC member to prevent plaintiff’s placement on the gang yard. 17 2. 18 Defendants’ Subjective Intent Defendants argue that the undisputed facts show that they lacked the subjective intent 19 element necessary to prove deliberate indifference. To determine whether an official had the state 20 of mind necessary to show deliberate indifference, a plaintiff must show two things: (1) that the 21 official was aware of the risk of harm (or that the risk was obvious) and (2) that the official lacked 22 a reasonable justification for exposing the inmate to the risk. Lemire, 726 F.3d at 1078. 23 Defendants argue that Boe had no knowledge that plaintiff faced a risk of harm on the 24 integrated yard because Boe was providing relief coverage at the ICC hearing on short notice, had 25 not reviewed plaintiff’s file, had no knowledge of plaintiff’s disciplinary history, had no 26 knowledge of any of the inmates on the integrated yard, and was present only to update CDCR 27 28 3 The Form 128G states that the committee chair that day was J. Macomber. ECF No. 80- 4 at 23 8 1 forms. DUF Nos. 16, 17, 25, 28. Defendants similarly argue that Riley had a limited role at the 2 hearing and knew nothing that would indicate a risk to plaintiff on the yard. DUF Nos. 18, 23, 3 26, 29. According to defendants, Meier actually believed that plaintiff could be placed on the 4 yard without risk, because plaintiff was a validated member of the Northern Structure prison 5 gang, which consists primarily of Hispanic inmates from Northern California, and because 6 plaintiff had previously been safely housed with Hispanic inmates from Northern California. 7 DUF Nos. 19-21. Meier knew that the gang yard had only Hispanic inmates from Northern 8 California or their associates, and neither Arias nor Larios (the attackers) were on plaintiff’s 9 “enemies list.” Id.; DUF Nos. 9-14. 10 A jury may well credit those accounts of what occurred in the ICC hearing and decision 11 making as to plaintiff’s placement. But on the other hand, plaintiff declares that he informed all 12 ICC members at the hearing that “I was not a gang member and should not be placed on B3 SHU 13 integrated gang yard [and] that the inmates on that yard had knowledge that I was working with 14 C/O [Correctional Officer] Deleon and I could be killed.” ECF No. 86 at 204. (Plaintiff was 15 contesting his gang validation at the time. ECF No. 86 at 169.) According to plaintiff, 16 defendants laughed and taunted plaintiff that a guy with so many tattoos was scared. ECF No. 86 17 at 204; ECF No. 86 at 168. Plaintiff’s former cell-mate, inmate Jacquez, declares that he entered 18 the room for his ICC hearing directly after plaintiff’s hearing. ECF No. 58 at 6. Mr. Jacquez 19 avers: 20 When I entered the office, A.W. [Assistant Warden] R. Meir [sic] was laughing and talking to Cpt. Riley & Sgt. Boe. They looked at me and said, “How long do you think your celly ‘Mr. Anderson’ will last before they get him?” All three continued to chuckle, telling me that “Mr. Anderson” was working with C/O Deleon on C Yard. R. Meir then asked if we checked his paperwork. I said, “I don’t know what you are talking about,” he said you’ll see Arias has it. Referring to our neighbor in B-3. 21 22 23 24 25 26 27 28 Id.4 4 There is a dispute among the parties about whether, at some point before the ICC hearing, defendant Meier had provided a copy of the incident report that had been issued to plaintiff over the contraband-smuggling scheme to inmate Arias, one of the individuals who attacked plaintiff on the yard. See ECF No. 86 at 162. Plaintiff believes that Meier gave the report to Arias. Defendants dispute that fact but have not provided a declaration from defendant Meier. 9 1 Undoubtedly, defendants dispute that account. But if this evidence is believed, it 2 corroborates plaintiff’s claims that defendants knew he would be in danger on the yard because 3 Arias knew plaintiff had attempted to work with a correctional officer to smuggle contraband into 4 the prison. 5 Defendants argue that, if plaintiff had raised safety concerns at the hearing, some official 6 at the hearing would have documented them on the Form 128G. The fact that the document does 7 not contain any note of such concerns, in defendants’ view, means that plaintiff did not raise 8 concerns. But plaintiff unequivocally testifies – in all his declarations and during his deposition – 9 that he did raise those concerns, and no defendant has provided a declaration directly rebutting 10 plaintiff’s testimony or testifying about the hearing in any other way. Had they done so, it would 11 only underscore the point that there are disputed issues of fact as to what plaintiff had informed 12 the committee. 13 Defendants also argue that, even if plaintiff did raise his concerns at the hearing, they 14 were too speculative to provide defendants with an awareness of risk that would subject them to 15 liability under the Eighth Amendment. But a reasonable factfinder could conclude from the 16 evidence presented by plaintiff that he provided defendants with a quite specific risk – that the 17 gang members on the yard knew that he had attempted to work with a correctional officer to 18 smuggle contraband into the institution and that plaintiff believed that, because of this, his life 19 would be in danger on the yard. Plaintiff was not being placed with a large group of people from 20 whom he felt some vague risk, but rather with less than 10 gang members or affiliates who, if his 21 version of events is credited, were likely to attack him because he had broken some unwritten rule 22 among those inmates of prison behavior. 23 In addition, plaintiff argues that defendants have provided no reason why he was moved 24 from administrative segregation with walk-alone yard (meaning inmates are in separate caged 25 yards and cannot physically interact) to the B3 SHU with the integrated gang yard. ECF No. 86 26 at 3. Indeed, defendants’ papers do not speak to why the move was made. Thus, there is a triable 27 issue of material fact regarding whether defendants had a reasonable justification for placing 28 plaintiff on the yard. 10 1 As plaintiff has presented evidence that a reasonable jury could rely on to find that he told 2 defendants that his safety was at risk if he were placed on the yard but defendants laughed and 3 placed him on the yard anyway, summary judgment cannot be granted to defendants as to this 4 issue. 5 3. Qualified Immunity 6 Lastly, defendants argue that the court should afford them qualified immunity. To 7 determine whether to do so at the summary judgment stage, the court must consider whether the 8 undisputed facts show that a constitutional violation occurred, and whether the constitutional right 9 at issue was clearly established at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 10 232 (2009). If the undisputed facts show no constitutional violation, or if the right was not clearly 11 established, the court should grant the official qualified immunity. Id. In determining whether 12 the right was clearly established, the court must ask (1) whether the law governing the official’s 13 conduct was clearly established and (2) whether a reasonable official, in the same position faced 14 by the defendants, would understand that his conduct violated the law. Saucier v. Katz, 533 U.S. 15 194, 202 (2001). 16 Here, the crux of defendants’ argument for qualified immunity is that they simply did not 17 do what plaintiff claims they did, rather than assert some lack of clarity in the law at the time. 18 The constitutional right of an inmate to be free from violence at the hands of other inmates has 19 been clearly established since Farmer v. Brennan, 511 U.S. 825 (1994). Castro v. Cnty. of L.A., 20 797 F.3d 654, 663(9th Cir. 2017). The contours of the right were set forth with sufficient clarity 21 in Farmer to guide a reasonable officer. Id. at 664. Defendants argue that they should be 22 afforded immunity because reasonable officials in their position would not understand that their 23 conduct violated the law. 24 In seeking qualified immunity, defendants rely heavily on Estate of Ford v. Ramirez- 25 Palmer, 301 F.3d 1043 (9th Cir. 2002). In that case, an inmate at California Medical Facility- 26 Vacaville (“CMF”) was killed by his cellmate, who had a history of exceedingly violent behavior. 27 Id. at 1045. The Ninth Circuit found that the district court should have granted summary 28 judgment to the correctional officials who had decided to house the two inmates together. Id. 11 1 The Court of Appeals concluded that, with the information each official possessed – notably, that 2 the violent inmate had successfully housed with other inmates in the past, including the victim, 3 and that both inmates wished to be housed together – a reasonable officer could have thought that 4 the violent inmate did not pose a substantial risk of serious harm to the victim. Id. at 1051-53. 5 The record does not establish that plaintiff wanted to be placed together with the gang member 6 whom he feared. 7 The Court of Appeals has since emphasized that, in Ford, the inmates consented to be 8 housed together and had previously been housed together safely. Castro v. Cnty. of L.A., 797 9 F.3d 654, 668-69 (9th Cir. 2017). It has further emphasized that the question of whether an 10 official’s conduct was reasonable in light of clearly established law is “a fact-specific inquiry.” 11 Id. at 669. 12 The question before the court is therefore: do the facts taken in the light most favorable to 13 plaintiff show that reasonable officers would have believed it lawful to assign plaintiff to the 14 integrated yard? Plaintiff has presented evidence that he informed defendants that he feared for 15 his safety on the yard because he was not a gang member and had incurred disfavor from at least 16 one gang member on the yard. This presents the opposite scenario from Ford, where the victim 17 consented to the housing decisions. Additionally, plaintiff has presented evidence that, when he 18 raised his concerns, defendants laughed at him. If his evidence is credited, which is for a jury to 19 determine, they then joked to his cellmate about how long plaintiff would “last” on the integrated 20 yard. Crediting plaintiff’s evidence at this stage, as the court must, this is not a case of officials 21 making a reasonable mistake as the law but rather exhibiting indifference, or even spite, toward 22 plaintiff’s right to be free from inmate violence. Accordingly, defendants’ request for qualified 23 immunity must be denied at this time. 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 12 1 2 III. Conclusion and Recommendation In accordance with the above, it is HEREBY RECOMMENDED that the April 16, 2018 3 motion for summary judgment (ECF No. 80), brought by defendants Meier, Riley, and Boe, be 4 DENIED. 5 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 10 within the specified time may waive the right to appeal the District Court’s order. Turner v. 11 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: October 11, 2018. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Because the undersigned recommends that the court deny the motion because plaintiff has raised triable issues of material fact on the points raised by defendants, the court need not consider plaintiff’s alternative request that the court deny the motion under Federal Rule of Civil Procedure 56(d) because defendants have withheld evidence from him. See ECF No. 86 at 15. 13
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