Wells v. Mendocino County Sheriff's Office et al, No. 5:2019cv01345 - Document 42 (N.D. Cal. 2021)

Court Description: ORDER Granting 29 Motion for Summary Judgment. The Clerk shall close the file. Signed by Judge Edward J. Davila on 3/18/2021. (amkS, COURT STAFF) (Filed on 3/18/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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Wells v. Mendocino County Sheriff's Office et al Doc. 42 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JESSE C. WELLS, United States District Court Northern District of California 11 Plaintiff, 12 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT v. 13 Case No. 19-01345 EJD (PR) MENDOCINO COUNTY SHERIFF’S OFFICE, et al., 14 15 Defendants. 16 (Docket No. 29) 17 18 Plaintiff, a pretrial detainee at the time of the events underlying this action, filed a 19 pro se civil rights complaint under 42 U.S.C. § 1983, against the Mendocino County 20 Sheriff’s Office and its employees. Dkt. Nos. 1, 20.1 The Court found the complaint 21 stated cognizable claims and ordered the matter served on Defendants Sgt. Siderakis, Sgt. 22 Johnston,2 Deputy Grant, Capt. Timothy Pearce,3 Sgt. Saye, Deputy Leon, and Deputy 23 24 25 26 27 1 Plaintiff later filed an amendment to the complaint, to provide additional facts in support of his claim. Dkt. No. 20. Accordingly, the operative complaint in this matter is comprised of the documents filed under Docket Nos. 1 and 20. See Dkt. No. 27 at 2. 2 Plaintiff originally identified this defendant as “Johnson,” but Defendants’ summary judgment motion indicates that the proper spelling is “Johnston.” Dkt. No. 29 at 5. 3 Plaintiff originally identified this defendant as “Pierce,” but Defendants’ summary 28 Dockets.Justia.com 1 Case. Dkts. No. 13, 27. Defendants have filed a motion for summary judgement on the 2 grounds that Plaintiff failed to exhaust administrative remedies and also on the grounds 3 that Plaintiff’s rights were not violated.4 Dkt. No. 29. Plaintiff filed opposition, Dkt. No. 4 39, and Defendants filed a reply, Dkt. No. 40.5 For the reasons discussed below, Defendants’ motion for summary judgment is 5 6 GRANTED. DISCUSSION 7 8 I. Plaintiff was in the custody of the Mendocino County Jail (“MCJ”) from March 2, 9 United States District Court Northern District of California Statement of Facts6 10 2017, after his arrest based on a warrant, until December 13, 2018. Bednar Decl. ¶ 3. 11 Plaintiff was one of seven individuals arrested and charged in connection with a homicide 12 that occurred in Laytonville, California. Id. Plaintiff eventually pled guilty to charges and 13 was sentenced to three years in state prison on November 16, 2018. Id., Dkt. No. 29-1 at 14 59. This action is based on Plaintiff’s claim that “against [his] protests and pleas and 15 16 citations of evidence,” Defendants at MCJ ordered several cell moves during July and 17 18 19 20 21 22 23 24 25 26 27 28 judgment motion indicates that the proper spelling is “Pearce.” Dkt. No. 29 at 5. 4 In support of their motion, Defendants submit the following: declaration of Defendant Sgt. Sotiris Siderakis, Dkt. No. 29-1 at 1-2, along with copies of classification reviews he prepared involving Plaintiff, (Ex. A-SS), id. at 3-24; declaration of Defendant Deputy Michael Grant, id. at 25-26, along with copies of classification reviews he prepared involving Plaintiff, (Ex. A-MG), id. at 27-45, and an inmate request form he responded to, (Ex. B-MG), id. at 46-47; declaration of non-party Lt. John Bednar, id. at 48-52, along with exhibits, id. at 53-107; declaration of Defendant Sgt. Eldon Johnston, id. at 108-109; declaration of Defendant Timothy Pearce, id. at 110-111; declaration of Defendant Filipe Leon, id. at 112-113, along with exhibits, id. at 114-116; declaration of Defendant Deputy Aohoovaan Case, id. at 117-118; and declaration of Defendant Sgt. Phil Saye, id. at 119120. 5 In reply, Defendants first object to Plaintiff’s opposition as being untimely because the Plaintiff’s opposition was filed one day after the deadline of February 1, 2021. Dkt. No. 40 at 2. However, in the interest of justice, the Court will not count the delay of one day against Plaintiff as he is pro se and currently in a residential treatment program. 6 The following facts are undisputed unless otherwise indicated. 2 United States District Court Northern District of California 1 August 2017, attempting to house Plaintiff with two hostile co-defendants who had “turned 2 state evidence against” him. Dkt. No. 1 at 3; Dkt. No. 1-1 at 1; Dkt. No. 20 at 1. Plaintiff 3 identifies the two co-defendants as “A.Said Mohammed and Gary ‘Cricket’ Blank.” Dkt. 4 No. 1-1 at 1. Plaintiff claims that these co-defendants had threatened his life because he 5 could “possibly put them at the murder scene.” Id. Plaintiff claims these cell moves 6 caused him harm “through an onslaught of harassment, assault and battery and 7 psychological warfare that potentially jeopardized [his] life and the lives of others.” Dkt. 8 No. 1 at 3. Plaintiff also states that he told Defendants that he did not want to be housed 9 “with violent people” like Caleb Silver who was a convicted murderer and had 6 previous 10 fights. Dkt. No. 1-1 at 2. Plaintiff states that during the year he was housed with Silver, he 11 “defended [himself] skillfully from being battered 9 times.” Id.; Dkt. No. 20 at 6-7. 12 Based on Plaintiff’s allegations, the Court found the complaint stated a cognizable 13 claim based on Defendants’ failure to protect Plaintiff from violence at the hand of other 14 prisoners. Dkt. No. 11 at 3, citing Farmer v. Brennan, 511 U.S. 85, 833 (1994). The briefs 15 in this matter indicate that Plaintiff was a pretrial detainee for the majority of time that he 16 was housed at MCJ. Accordingly, Plaintiff’s failure to protect claim is cognizable under 17 the Fourteenth Amendment due process clause rather than the Eighth Amendment. See 18 infra at 13. 19 A. Initial Classification 20 MCJ is a small jail with many inmates who have legitimate safety reasons for not 21 mixing with particular inmates or any other inmates at all. Bednar Decl. ¶ 11. 22 Accordingly, an inmate’s refusal to house with other inmates, without legitimate safety and 23 security concerns, places a significant burden on MCJ, so that inmates are disciplined for 24 such refusals. Pearce Decl. ¶ 2. 25 Plaintiff told MCJ staff during his initial classification review on March 6, 2017, 26 that he did not want to mix with co-defendant Zachary Wuester. Siderakis Decl., Ex. A- 27 SS, Dkt. No. 29-1 at 22. Plaintiff also indicated concerns regarding co-defendant Gary 28 3 1 Fitzgerald. Bednar Decl. ¶ 6. He did not express concerns about being housed with any 2 other co-defendant at that time. Id. Consequently, with Plaintiff having expressed 3 concerns only regarding housing with co-defendants Wuester and Fitzgerald, MCJ staff 4 attempted to place Plaintiff in a cell with other inmates. Id. at ¶ 11. According to 5 Defendants, Plaintiff was never housed with any inmate with whom he refused to be 6 housed or even placed in the same shower group. Id. at ¶ 7; Grant Decl. ¶¶ 3-4. Plaintiff 7 was also never housed with an inmate whom MCJ staff believed would harm Plaintiff. 8 Bednar Decl. ¶ 7; Pearce Decl. ¶ 3. 9 United States District Court Northern District of California 10 B. Housing with Co-Defendants During his time at MCJ, Plaintiff was housed with only one co-defendant, Mr. 11 Abdirahman Mohamed, whom Plaintiff did not identify as a danger at the initial 12 classification review. See supra at 3; Bednar Decl. ¶ 5, Ex. D-JB, Dkt. No. 29-1 at 77-78. 13 Plaintiff was housed with Mr. Mohamed from March 29, 2017 through April 16, 2017, and 14 the two had no altercations while housed together. Bednar Decl. ¶ 5, Ex. D-JB, Dkt. No. 15 29-1 at 77-78; Siderakis Decl. ¶ 2; Dkt. No. 29-1 at 21; Saye Decl. ¶ 2. The two remained 16 in the same yard group even after they were no longer cellmates, and Plaintiff reported that 17 they got along. Siderakis Decl. ¶ 2, Docket No. 29-1 at 19. According to Plaintiff, Mr. 18 Mohamed had requested the cell move “because it wasn’t working out between us ‘due to 19 [Mr. Mohamed’s] involvement with the D.A. in the case.’” Dkt. No. 20 at 4. 20 On April 29, 2017, a couple of weeks after the two were separated, Plaintiff 21 requested to be in the same shower group with Mr. Mohamed, and his request was granted. 22 Docket No. 29-1 at 20. While in the shower group with Mr. Mohamed, Plaintiff continued 23 to report that the two got along. Grant Decl., Ex. A-MG, Dkt. No. 29-1 at 43-44. On June 24 16, 2017, Plaintiff complained when his shower group, which included Mr. Mohamed, was 25 disassembled, and he requested an explanation. Bednar Decl. ¶ 9, Ex. E-JB, Dkt. No. 29-1 26 at 80. Defendant Saye’s written response on June 19, 2017, stated that Mr. Mohamed had 27 asked to be separated. Dkt. No. 29-1 at 80. 28 4 United States District Court Northern District of California 1 During July and August of 2017, when Plaintiff was housed in a cell by himself, 2 Defendant Pearce ordered Plaintiff to be placed on a “move list” with Mr. Mohamed and 3 Gary Blank, another co-defendant, due to limited space. Siderakis Decl. ¶ 4; Bednar Decl. 4 ¶ 11. Prior to placing the inmates together, Defendants Siderakis and Grant spoke with all 5 three inmates, none of whom stated that they would get into a fight with any of the others 6 or that they feared for their life if housed with each other. Siderakis Decl. ¶ 4. Mr. Blank 7 agreed to house with both of the others, Mr. Mohamed agreed only to house with Plaintiff, 8 and Plaintiff would not agree to house with either of them. Id. Plaintiff was written up 9 and disciplined for his refusal because MCJ staff believed that Plaintiff was attempting to 10 manipulate his housing to keep his own cell. Id. ¶ 5; Bednar Decl. ¶ 11; Pearce Decl. ¶ 4. 11 This belief was based on Plaintiff’s expressing concerns about housing with other inmates 12 but only once he was asked to house with the inmate. Bednar Decl. ¶ 11. Furthermore, on 13 July 31, 2017, MCJ staff intercepted a call between Plaintiff and a family member, during 14 which Plaintiff stated that he would refuse to house with any other inmate, even if he liked 15 the inmate, because he wanted his own cell. Id., Ex. F-JB, Dkt. No. 29-1 at 84-87; 16 Siderakis Decl. ¶ 3. Even so, Plaintiff was not forced to house with any inmate with whom 17 he refused to be housed. Bednar Decl. ¶ 7; Grant Decl. ¶¶ 3-4. 18 With respect to Gary Blank, Plaintiff was never placed in the same cell with Mr. 19 Blank although the two were in the same wing of the jail. Bednar Decl. ¶ 5. Plaintiff was 20 never out of his cell at a time when Mr. Blank was out of his cell, and at all times there 21 was a physical barrier between them. Id. Once on May 29, 2017, Plaintiff requested that 22 Mr. Blank be moved to a different cell because Mr. Blank made a slashing motion across 23 his throat. Grant Decl. ¶ 5, Dkt. No. 29-1 at 43. The request was denied, and Plaintiff was 24 told not to look into Mr. Blank’s cell. Id. 25 Mr. Mohamed is next mentioned in a classification review report dated November 26 5, 2018, written by Defendant Grant. Dkt. No. 29-1 at 28. The report noted that although 27 Plaintiff had been scheduled for sentencing the previous Friday, the matter was delayed 28 5 1 because his attorney had not yet received the probation report. Id. The report noted that 2 this was a possible “stall tactic” by the attorney because all of Plaintiff’s co-defendants had 3 been sentenced. Id. Defendant Grant wrote that Defendant Sgt. Saye showed him a memo 4 written by Plaintiff’s attorney claiming Mr. Mohamed had put money on other inmates’ 5 accounts in order to put a hit on Plaintiff. Id. Defendant Grant wrote that he told 6 Defendant Saye “this was funny because there were reports written by Mohamad claiming 7 the same thing.” Id. 8 United States District Court Northern District of California 9 On November 21, 2018, Defendant Siderakis wrote a classification review report also mentioning a letter written by Plaintiff’s attorney stating that Mr. Mohamed had been 10 putting money on several inmates’ books in order to put a “hit” on Plaintiff, and that this 11 has been on ongoing issue between them. Dkt. No. 29-1 at 4. Defendant Siderakis noted 12 that Plaintiff had been sentenced five days earlier on November 16, 2018, to three years in 13 “CDC.” Id. 14 C. Housing with Inmate Caleb Silver 15 After refusing to be housed with another cellmate and being disciplined for it, 16 Plaintiff eventually agreed to house with inmate Caleb Silver on August 9, 2017; all 17 discipline he had received was suspended. Pearce Decl. ¶ 5; Siderakis Decl. ¶ 5, Dockt 18 No. 29-1 at 15; Grant Decl. ¶ 6, Dkt. No. 29-1 at 47. The two were housed together from 19 August 10, 2017 through July 19, 2018. Bednar Decl. ¶ 5, Dkt. No. 29-1 at 77-78. Both 20 inmates were being held on attempted murder charges and were not convicted for most of 21 the time they were housed together. Bednar Decl. ¶ 12. While housed with Mr. Silver, 22 Plaintiff consistently expressed that the two got along well. Grant Decl. ¶ 7, Ex. A-MG, 23 Dkt. No. 29-1 at 36, 38-39, 41; Siderakis Decl. ¶ 5, Ex. A-SS at Dkt. No. 29-1 at 6-8, 10- 24 11, 14-15, 24. The only incident between Silver and Plaintiff was a roughhousing incident 25 on June 28, 2018, for which both were disciplined. Bednar Decl. ¶ 12, Ex. G-JB, Dkt. No. 26 29-1 at 105-107. Both inmates claimed they were horse-playing and requested to remain 27 housed together. Id.; Saye Decl. ¶ 4. 28 6 1 2 had paid him via the commissary account to “stab [Plaintiff] up,” but that Mr. Silver had 3 welched on the deal and just kept the money. Dkt. No. 20 at 7. 4 D. 5 On July 12, 2017, Plaintiff got into an altercation with inmate Mark Burleigh. Dkt. Altercation with Inmate Mark Burleigh 6 No. 29-1 at 42. Plaintiff and Burleigh had no prior history of fighting prior to the time of 7 the altercation. Leon Decl. ¶ 3; Johnston Decl. ¶ 3. On July 11, 2017, just the day before 8 the incident, Plaintiff had reported getting along with Mr. Burleigh and two other inmates 9 during a classification interview. Siderakis Decl., Dkt. No. 29-1 at 17. 10 United States District Court Northern District of California According to Plaintiff, Mr. Silver told him on August 21, 2017, that Mr. Mohamed According to Plaintiff, he separately informed Defendants Leon, Case, and Johnston 11 on July 9, 2017, about a potential altercation with Mr. Burleigh if they remained in the 12 same shower group. Dkt. No. 1-1 at 1. Plaintiff claims when he told Defendant Leon that 13 he was worried about a potential altercation with Mr. Burleigh, Defendant Leon 14 responded, “I don’t know Wells, I’d kinda like to see that fight.” Dkt. No. 20 at 2. 15 Plaintiff claims that when he told Defendant Case the same thing later that day, Defendant 16 Case instructed him to “tell the sargeant [id].” Id. That evening, when Plaintiff told 17 Defendant Sgt. Johnston about his “bad feelings” over Mr. Burleigh being in his shower 18 group, Defendant Johnston “with a shrug of his shoulders said, ‘Ignore him,’ as he walked 19 away.” Id. at 3. 20 According to Defendant Johnston, Plaintiff told him that Burleigh had been talking 21 about Plaintiff’s case and he thought Burleigh was weird. Johnston Decl. ¶ 2. Plaintiff did 22 not tell Defendant Johnston anything that made him believe that Burleigh would be a threat 23 to Plaintiff. Id. When Defendant Johnston specifically asked Plaintiff whether Burleigh 24 had ever threatened him, Plaintiff said, “‘No, he’s just weird.’” Id. According to 25 Defendant Leon, he never told Plaintiff that he would like to see him and Burleigh fight, 26 and nothing Plaintiff said to him caused Defendant Leon to be concerned that Burleigh 27 might pose a safety risk to Plaintiff. Leon Decl. ¶ 2. According to Defendant Case, he 28 7 United States District Court Northern District of California 1 never told Plaintiff that he would like to see him fight. Case Decl. ¶ 2. 2 With respect to the altercation, Plaintiff alleges that while his back was turned, he 3 was attacked by Mr. Burleigh who punched him “7x” to the face until he fell down. Dkt. 4 No. 1-1 at 1; Dkt. No. 20 at 3. According to the incident report prepared by Defendant 5 Leon, he was conducting “Ad/Seg group showers” in Wing 4 for Plaintiff’s group and was 6 in the lower tier with one of the inmates refreshing the mop bucket. Dkt. No. 29-1 at 115. 7 Defendant Leon heard a commotion coming from the upper tier, looked up and saw two 8 inmates engaged in mutual combat. Id. He placed a call over the radio for a fight in Wing 9 4 and responded to the upper tier. Id. He called several times for Plaintiff and Burleigh to 10 stop fighting, but the inmates did not desist. Id. The inmates continued to fight even after 11 Defendant Leon deployed three rounds of OC spray. Id. at 116. Only after other staff 12 arrived did the inmates stop fighting and lie face down on the floor. Id. Mr. Burleigh later 13 admitted that he was the first to hit Plaintiff, because he was “fed-up with the entire name- 14 calling over the last several days.” Id. 15 E. Inmate Grievance 16 During his time at MCJ, Plaintiff submitted one accepted grievance on August 2, 17 2017, regarding his housing. Bednar Decl. ¶ 4, Ex. B-JB, Dkt. No. 29-1 at 61-70. Plaintiff 18 did not take this grievance past the first level, to the two levels of appeal after the initial 19 response. Id. Plaintiff filed other housing related grievances which were duplicative of the 20 first and were therefore rejected pursuant to Sheriff’s office policy No. 607.00 – Inmate 21 Grievance Procedure. Id., Ex. C-JB, Dkt. No. 29-1 at 72-75. 22 II. 23 Summary Judgment Summary judgment is proper where the pleadings, discovery and affidavits show 24 that there is “no genuine dispute as to any material fact and the movant is entitled to 25 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 26 “against a party who fails to make a showing sufficient to establish the existence of an 27 element essential to that party’s case, and on which that party will bear the burden of proof 28 8 United States District Court Northern District of California 1 at trial . . . since a complete failure of proof concerning an essential element of the 2 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 3 Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 4 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 5 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 7 Generally, the moving party bears the initial burden of identifying those portions of 8 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 9 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 10 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 11 than for the moving party. But on an issue for which the opposing party will have the 12 burden of proof at trial, the moving party need only point out “that there is an absence of 13 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 14 to the motion is merely colorable, or is not significantly probative, summary judgment may 15 be granted. See Liberty Lobby, 477 U.S. at 249-50. 16 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 17 his own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 18 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 19 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 20 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 21 The Court’s function on a summary judgment motion is not to make credibility 22 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 23 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 24 The evidence presented and the inferences to be drawn from the facts must be viewed in a 25 light most favorable to the nonmoving party. See id. at 631. The nonmoving party has the 26 burden of identifying with reasonable particularity the evidence that precludes summary 27 judgment. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). If the nonmoving party 28 9 United States District Court Northern District of California 1 fails to do so, the district court may properly grant summary judgment in favor of the 2 moving party. See id. 3 A. Exhaustion 4 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to 5 provide that “[n]o action shall be brought with respect to prison conditions under [42 6 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 7 other correctional facility until such administrative remedies as are available are 8 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the 9 discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. 10 Churner, 532 U.S. 731, 739 (2001)). “Prisoners must now exhaust all ‘available’ 11 remedies, not just those that meet federal standards.” Id. Even when the relief sought 12 cannot be granted by the administrative process, i.e., monetary damages, a prisoner must 13 still exhaust administrative remedies. Id. at 85-86 (citing Booth, 532 U.S. at 734). 14 The PLRA’s exhaustion requirement requires “proper exhaustion” of available 15 administrative remedies. Id. at 93. An action must be dismissed unless the prisoner 16 exhausted his available administrative remedies before he or she filed suit, even if the 17 prisoner fully exhausts while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 18 1199 (9th Cir. 2002). Compliance with prison grievance procedures is all that is required 19 by the PLRA to “properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). The 20 level of detail necessary in a grievance to comply with the grievance procedures will vary 21 from system to system and claim to claim, but it is the prison’s requirements, and not the 22 PLRA, that define the boundaries of proper exhaustion. Id. at 218. 23 Failure to exhaust under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) 24 (PLRA), is “an affirmative defense the defendant must plead and prove.” Jones v. Bock, 25 549 U.S. 199, 204, 216 (2007). Defendants have the burden of raising and proving the 26 absence of exhaustion, and inmates are not required to specifically plead or demonstrate 27 exhaustion in their complaints. Id. at 215-17. In the rare event that a failure to exhaust is 28 10 1 clear on the face of the complaint, a defendant may move for dismissal under Rule 2 12(b)(6) of the Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 3 (9th Cir. 2014) (en banc).7 The defendant’s burden is to prove that there was an available administrative United States District Court Northern District of California 4 5 remedy and that the prisoner did not exhaust that available administrative remedy. Id. at 6 1172; see id. at 1176 (reversing district court’s grant of summary judgment to defendants 7 on issue of exhaustion because defendants did not carry their initial burden of proving their 8 affirmative defense that there was an available administrative remedy that prisoner 9 plaintiff failed to exhaust); see also Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005) 10 (as there can be no absence of exhaustion unless some relief remains available, movant 11 claiming lack of exhaustion must demonstrate that pertinent relief remained available, 12 whether at unexhausted levels or through awaiting results of relief already granted as result 13 of that process). Once the defendant has carried that burden, the prisoner has the burden of 14 production. Albino, 747 F.3d at 1172. That is, the burden shifts to the prisoner to come 15 forward with evidence showing that there is something in his particular case that made the 16 existing and generally available administrative remedies effectively unavailable to him. 17 Id. But as required by Jones, the ultimate burden of proof remains with the defendant. Id. 18 Defendants first argue that Plaintiff failed to exhaust administrative remedies with 19 respect to the claims against them because Plaintiff never took his grievance past the first 20 level, through the two levels of appeal. Dkt. No. 29 at 10. Defendants assert, therefore, 21 that Plaintiff did not exhaust all available administrative remedies. Id. Plaintiff’s 22 opposition is silent with respect to Defendants’ exhaustion argument. Dkt. No. 39. In 23 reply, Defendants assert that Plaintiff has failed to provide through declaration or other 24 25 26 27 28 7 In Albino, the Ninth Circuit, sitting en banc, overruled Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under the PLRA, should be raised by a defendant as an unenumerated Rule 12(b) motion. Albino, 747 F.3d at 1166. “[A] failure to exhaust is more appropriately handled under the framework of the existing rules than under an ‘unenumerated’ (that is, non-existent) rule.” Id. 11 United States District Court Northern District of California 1 admissible evidence that he exhausted administrative remedies. Dkt. No. 40 at 3. 2 Viewing the undisputed evidence in the light most favorable to Plaintiff, the Court 3 finds that Plaintiff failed to properly exhaust administrative remedies for the claims raised 4 in this matter. The Mendocino County Sheriff’s Office “Inmate Grievance Procedure” sets 5 forth the procedures for inmates to complain of various conditions of confinement. Bednar 6 Decl., Ex. C-JB, Dkt. No. 29-1 at 72-75. The procedures describe three levels of 7 administrative remedies if a grievance matter cannot be resolved at an informal level 8 through oral discussion. Id. at 72. Then the inmate can submit the matter in writing by 9 using an inmate grievance form to “Level I.” Id. at 73. If the inmate is dissatisfied with 10 the Level I resolution the grievance can be appealed to the next level, “Level II,” and if 11 still dissatisfied, then to the final “Level III,” which is the final administrative remedy 12 available. Id. Defendants have submitted a copy of Plaintiff’s grievance in this matter, 13 which Plaintiff does not dispute, and it clearly shows that Plaintiff did not submit the 14 grievance to the second and third levels of review. Dkt. No. 29-1 at 61-62. Accordingly, 15 Defendants have carried their burden of demonstrating that there were available 16 administrative remedies remaining to Plaintiff, and that he did not exhaust those available 17 remedies. Albino, 747 F.3d at 1172. The burden therefore shifted to Plaintiff to come 18 forward with evidence showing that there was something in his particular case that made 19 the existing and generally available administrative remedies effectively unavailable to him. 20 Id. Plaintiff has failed to do so. 21 Based on the foregoing, Defendants have shown that Plaintiff failed to properly 22 exhaust all available administrative remedies with respect to the claims raised in this 23 action. Plaintiff has failed in opposition to show that there was something in his particular 24 case that made the existing and generally available administrative remedies effectively 25 unavailable to him or that he was incapable of filing a timely appeal. Albino, 747 F.3d at 26 1172. Accordingly, Defendants are entitled to summary judgment under Rule 56 based on 27 Plaintiff’s failure to exhaust administrative remedies. Id. at 1166. 28 12 United States District Court Northern District of California 1 Nevertheless, because Defendants have also answered on the merits of the 2 Fourteenth Amendment claims against them and Plaintiff has responded, the Court will 3 proceed with an analysis of the claims. As discussed below, Defendants are also entitled 4 to judgment as a matter of law for lack of a genuine dispute as to any material fact. 5 B. Failure to Protect 6 Inmates who sue prison officials for damages for injuries suffered while in custody 7 may do so under the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not 8 yet convicted, under the Fourteenth Amendment’s Due Process Clause. See Bell v. 9 Wolfish, 441 U.S. 520, 535 (1979); Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067- 10 68 (9th Cir. 2016) (en banc). But under both clauses, the inmate must show that the prison 11 official acted with deliberate indifference. Castro, 833 F.3d at 1068. 12 In the context of claims for failure to protect, the standard under the Eighth 13 Amendment to prove deliberate indifference is different than the standard to prove 14 deliberate indifference under the Fourteenth Amendment. Whereas a convicted prisoner 15 must prove an individual defendant’s subjective awareness of a risk of harm in order to 16 prevail on a failure-to-protect claim under the Eighth Amendment, a pretrial detainee need 17 not do the same in order to prevail on a failure-to-protect claim under the Fourteenth 18 Amendment. Id. at 1068-70 (holding that objective standard of Kingsley v. Hendrickson, 19 135 S. Ct. 2466 (2015), applicable to excessive force claims brought by pretrial detainees, 20 also applies to failure-to-protect claims brought by pretrial detainees). Specifically, a 21 pretrial detainee need not “prove an individual defendant’s subjective intent to punish in 22 the context of a . . . failure-to protect claim.” Id. at 1070. A pretrial detainee who asserts a 23 due process claim for failure to protect instead must prove “more than negligence but less 24 than subjective intent – something akin to reckless disregard.” Id. at 1071. 25 The elements of a pretrial detainee’s due process failure-to-protect claim against an 26 individual officer are: (1) the defendant made an intentional decision with respect to the 27 conditions under which the plaintiff was confined; (2) those conditions put the plaintiff at 28 13 United States District Court Northern District of California 1 substantial risk of suffering serious harm; (3) the defendant did not take reasonable 2 available measures to abate that risk, even though a reasonable officer in the circumstances 3 would have appreciated the high degree of risk involved -- making the consequences of the 4 defendant’s conduct obvious; and (4) by not taking such measures, the defendant caused 5 the plaintiff’s injuries. Id. (footnote omitted). With respect to the third element, the 6 defendant’s conduct must be objectively unreasonable, a test that will necessarily turn on 7 the facts and circumstances of each particular case. Id. (citing Kingsley, 135 S. Ct. at 8 2473). 9 Plaintiff’s failure to protect claim is based on Defendants’ actions with respect to 10 the following: (1) housing him with co-defendants; (2) housing him with Mr. Silver; and 11 (3) the altercation with Mr. Burleigh. The Court addresses each of these claims below. 12 13 1. Housing with Co-Defendants Viewing the evidence in the light most favorable to Plaintiff, the Court finds that 14 there is no genuine dispute as to any material fact relating to Plaintiff’s claim that 15 Defendants failed to protect him when they housed him with co-defendants. It is 16 undisputed that the only co-defendant that Plaintiff was housed with during his time at 17 MCJ was Mr. Mohamed. See supra at 4-5. However, the undisputed evidence shows that 18 Plaintiff fails to satisfy all the elements for a failure to protect claim from Mr. Mohamed 19 against any named Defendant. 20 First with respect to the first element, it is undisputed that Defendants made an 21 intentional decision to house Plaintiff with Mr. Mohamed from March 29, 2017 through 22 April 16, 2017. Id. at 4. However, there is no evidence to support the second element, i.e., 23 that housing Plaintiff with Mr. Mohamed during this 2 to 3 week period put him at 24 substantial risk of suffering serious harm. For the first time in opposition, Plaintiff asserts 25 that Sgt. Bohner, a non-party, was made aware at the Ukiah Jail intake that Plaintiff did not 26 want to be housed with any co-defendants. Dkt. No. 39 at 3. Plaintiff asserts that he did 27 not know all their names “or even who they all are,” but that “Custody” knew the name of 28 14 United States District Court Northern District of California 1 all his co-defendants, including Mr. Mohamed. Id. at 4. He asserts, therefore, that 2 “Custody” put his life in danger by housing him with another co-defendant. Id. However, 3 the evidence submitted by Defendants shows that Plaintiff named only two co-defendants, 4 i.e., Zachary Wuester and Gary Fitzgerald, with whom he could not be housed. See supra 5 at 3. There is no evidence that Plaintiff stated generally to any member of the MCJ staff 6 that he did not want to be housed with other unknown co-defendants, nor does he so allege. 7 Id. Furthermore, Plaintiff states that neither he nor Mr. Mohamed knew each other when 8 they were placed together, and the fact that they were co-defendants in the same murder 9 case only came to light when Mr. Mohamed went through Plaintiff’s legal mail. Id. at 5. 10 At that point, Mr. Mohamed immediately requested a move because he believed his life 11 was in danger. Id. at 5-6. Accordingly, there is no evidence that Plaintiff was facing a 12 substantial risk of suffering serious harm at the hands of Mr. Mohamed who, according to 13 Plaintiff, was not even aware of their involvement in the same murder investigation during 14 the entire time they were housed together. Because Plaintiff has not established the 15 existence of a substantial risk under the second element, he cannot establish the third 16 element, i.e., that Defendants failed to take reasonable available measures to abate that 17 risk. Plaintiff repeatedly states in opposition that contrary to Defendants’ assertion, he 18 never asked to cell with Mr. Mohamed, Dkt. No. 39 at 4-5, but nowhere in Defendants’ 19 papers do they assert that this was the case. They only assert that Plaintiff requested to be 20 put in the same shower group with Mr. Mohamed after they were no longer cellmates. See 21 supra at 4. Lastly, Plaintiff has failed to establish that he suffered any injuries under the 22 fourth element, due to Defendants’ failure to take reasonable measures. Indeed, there were 23 no reports of any altercations or conflict between Plaintiff and Mr. Mohamed while they 24 were housed together, and Plaintiff reported that they got along. Id. at 4. Moreover, Mr. 25 Mohamed requested and was granted an in immediate cell move once he found out that he 26 and Plaintiff were co-defendants. Accordingly, it cannot be said that Defendants acted 27 with a reckless disregard to a known danger to either Plaintiff or Mr. Mohamed. See 28 15 1 2 With respect to Plaintiff’s allegation that Defendants later attempted to house him 3 with co-defendants Mr. Mohamed and Mr. Blank, such actions do not establish to a failure 4 to protect claim because Plaintiff was never actually housed with these co-defendants and 5 therefore not placed in substantial risk of suffering serious harm. Nor can it be said that a 6 reasonable officer in Defendants’ position would have believed that merely asking Plaintiff 7 to share a cell with a co-defendant would place Plaintiff in danger. Lastly, there is no 8 indication that Plaintiff was ever forced to house with Mr. Mohamed or put in the same 9 shower group after MCJ was put on notice that Mr. Mohamed had allegedly placed a “hit” 10 11 United States District Court Northern District of California Castro, 833 F.3d at 1071. on Plaintiff sometime in November 2018. See supra at 6. Based on the foregoing, Defendants have established the absence of a genuine issue 12 of material fact with respect to the failure to protect claim based on Plaintiff’s housing 13 with co-defendant Mr. Mohamed. See Celotex Corp., 477 U.S. at 323. In response, 14 Plaintiff has failed to identify with reasonable particularity any evidence that precludes 15 summary judgment against any named Defendant. See Keenan, 91 F.3d at 1279. 16 Accordingly, Defendants are entitled to summary judgment on this claim. Id.; see Celotex 17 Corp., 477 U.S. at 323. 18 19 2. Housing with Mr. Silver Viewing the evidence in the light most favorable to Plaintiff, the Court finds that 20 there is no genuine dispute as to any material fact relating to Plaintiff’s claim that 21 Defendants failed to protect him when they housed him with Mr. Silver. There is no 22 dispute with respect to the first element, i.e., that Defendants made an intentional decision 23 to house Plaintiff with Mr. Caleb. Although Defendants assert that Plaintiff agreed to the 24 housing assignment, the Court will view the evidence in the light most favorable to 25 Plaintiff and assume the assignment was against his wishes. With respect to the second 26 element, Plaintiff asserts that housing him with Mr. Silver placed him at substantial risk of 27 serious harm because Mr. Silver was a convicted murderer and had a reputation for 28 16 United States District Court Northern District of California 1 fighting. See supra at 3. But according to Defendants, both Mr. Silver and Plaintiff were 2 being held on murder charges, and neither inmate was convicted for most of the time they 3 were housed together. Id. at 6. Other than his conclusory allegation that Mr. Silver was 4 “violent,” Plaintiff sets forth no evidence establishing the existence of a legitimate concern 5 for his safety by which a reasonable officer would believe that housing Plaintiff with Mr. 6 Silver would place him at a substantial risk of suffering serious harm. Furthermore, 7 although Plaintiff claims that he had to defend himself from being battered “9 times” by 8 Mr. Caleb, he provides no description of these alleged assaults or any evidence of their 9 occurrence, e.g., incident reports, inmate requests, or grievances. Id. at 3. Rather, the 10 evidence submitted by Defendants shows that Plaintiff consistently expressed that the two 11 got along well. Id. Moreover, the evidence shows that there was only one reported 12 altercation between the two in June 2018, which was after they had been housed together 13 for ten months. Id. at 6. Both inmates described the incident as merely roughhousing, and 14 neither requested to be moved. Id. Accordingly, it cannot be said that a reasonable officer 15 in these circumstances would have believed that Plaintiff was facing a substantial risk of 16 serious harm which required that he be separated from Mr. Silver. 17 Lastly, Plaintiff alleges that Mr. Silver told him on August 21, 2017, that he had 18 been paid by Mr. Mohamed to “stab” Plaintiff but had welched on the deal. See supra at 6. 19 Nowhere does Plaintiff allege that he told Defendants what Mr. Silver had disclosed to him 20 or that any Defendant was otherwise made aware of this arrangement and failed to act. 21 Rather, even after Mr. Silver made this disclosure, the two inmates remained housed 22 together without incident for nearly a year thereafter. Nor is there any evidence that their 23 roughhousing in June 2018 was linked to the alleged arrangement between Mr. Silver and 24 Mr. Mohamed from 10 months prior. Accordingly, there is no evidence that any injuries 25 Plaintiff suffered during this altercation, i.e., a cut on his knuckle, were caused by 26 Defendants’ failure to take reasonable measures to abate a high risk of which a reasonable 27 officer in the circumstances would have been aware. 28 17 1 2 of material fact with respect to the failure to protect claim based on Plaintiff’s housing 3 with Mr. Silver. See Celotex Corp., 477 U.S. at 323. In response, Plaintiff has failed to 4 identify with reasonable particularity any evidence that precludes summary judgment 5 against any named Defendant. See Keenan, 91 F.3d at 1279. Accordingly, Defendants are 6 entitled to summary judgment on this claim. Id.; see Celotex Corp., 477 U.S. at 323. 7 8 9 United States District Court Northern District of California Based on the foregoing, Defendants have established the absence of a genuine issue 3. Altercation with Mr. Burleigh Plaintiff claims that Defendants failed to protect him from an assault by Mr. Burleigh when they disregarded his concerns about being in the same shower group and 10 failed to move him. Viewing the evidence in the light most favorable to Plaintiff, the 11 Court finds that there is no genuine dispute as to any material fact relating to this claim. 12 According to Plaintiff, he informed Defendants Leon, Case, and Johnston on July 9, 13 2017, about a potential altercation with Mr. Burleigh if they remained in the same shower 14 group. Dkt. No. 1-1 at 1. In his opposition, Plaintiff claims he spoke to them on July 11, 15 2017, the day before the incident. Dkt. No. 39 at 6. However, the evidence submitted by 16 Defendants indicates that on that same day, Plaintiff reported that the two were getting 17 along. Siderakis Decl., Dkt. No. 29-1 at 17. Plaintiff does not contest the reliability of this 18 report prepared by Defendant Siderakis. If Plaintiff told Defendants about his concerns on 19 July 9, 2017, then his report two days later to Defendant Siderakis that he was getting 20 along with Mr. Burleigh would have negated any concerns that were raised by Plaintiff’s 21 earlier statements. But if Plaintiff informed them on July 11, 2017, then it is possible that 22 he voiced his concerns after his classification interview with Defendant Siderakis earlier 23 that day. Viewing the evidence in the light most favorable to Plaintiff, the Court will 24 consider the claim in this latter context. 25 Plaintiff claims he informed Defendants that Mr. Burleigh “would frequently make 26 hostile or ‘off the wall’ remarks regarding [his] case.” Dkt. No. 39 at 6. Plaintiff claims 27 he told Defendant Leon that he “did not want to get in an altercation with inmate 28 18 United States District Court Northern District of California 1 Burleigh,” and Defendant Leon responded, “I don’t know Wells, I’d kinda like to see that 2 fight.” Dkt. No. 20 at 2; Dkt. No. 39 at 6-7. According to Defendant Leon, he never told 3 Plaintiff that he would like to see him fight Burleigh, and that nothing Plaintiff said caused 4 Defendant Leon to be concerned for Plaintiff’s safety. Leong Decl. ¶ 2. Even assuming 5 Plaintiff’s version is true, he has not established that Defendant Leon’s failure to take his 6 concerns seriously was objectively unreasonable. Plaintiff merely expressed concern that 7 he might get into a fight with Mr. Burleigh for saying hostile and “off the wall” remarks. 8 Plaintiff does not explain how or why Mr. Burleigh’s remarks about his case were hostile 9 or why such remarks should have led Defendants to believe that Mr. Burleigh might harm 10 Plaintiff. Plaintiff did not state that Mr. Burleigh had specifically threatened to harm him 11 such that Plaintiff feared for his safety. Furthermore, the two had no history of conflict, 12 and Plaintiff had recently reported getting along with Mr. Burleigh. Under these 13 circumstances, it cannot be said that a reasonable officer in Defendant Leon’s position 14 would have believed that keeping Plaintiff and Mr. Burleigh in the same shower group 15 meant putting Plaintiff at a substantial risk of suffering serious harm. The same is true of 16 Defendant Case whom Plaintiff claims told him to “tell the sgt. when he or she comes 17 around.” Dkt. No. 20 at 2; Dkt. No. 39 at 7. Assuming this is true, it cannot be said that 18 Defendant Case’s response was objectively unreasonable when he directed Plaintiff to 19 share his concerns with a supervising officer who was expected to “come around” that very 20 night. By doing so, Defendant Case was not disregarding any risk to Plaintiff. Then in 21 accordance with Defendant Case’s instruction, Plaintiff told Defendant Sgt. Johnston later 22 that evening of his concerns about being in the same shower group with Mr. Burleigh due 23 to his “hostile remarks about my case and my fears.” Dkt. No. 20 at 3; Dkt. No. 39 at 7. 24 As Defendants point out in reply, Plaintiff does not explain what fears he told Defendant 25 Johnston about, nor does he say those fears were related to Mr. Burleigh. Dkt. No. 40 at 4. 26 According to Plaintiff, Defendant Johnston responded “with a shrug of his shoulders and 27 said, ‘Ignore him,’ as he walked away.” Dkt. No. 39 at 7. Defendant Johnston’s statement 28 19 1 that Plaintiff should ignore Mr. Burleigh implied that he believed Plaintiff should not allow 2 himself to be provoked by Mr. Burleigh’s remarks rather than a belief that Mr. Burleigh 3 presented a legitimate safety concern to Plaintiff which Defendant Johnston chose to 4 disregard. As discussed above, Plaintiff had no history of conflict with Mr. Burleigh, and 5 he had recently reported that they were getting along. See supra at 19. Accordingly, it 6 cannot be said that a reasonable officer in Defendant Johnston’s position under these 7 circumstances would have believed that Plaintiff was facing a substantial risk of serious 8 harm by being in the same shower group with Mr. Burleigh the next day. United States District Court Northern District of California 9 Based on the foregoing, Defendants have established the absence of a genuine issue 10 of material fact with respect to the failure to protect involving Mr. Burleigh. See Celotex 11 Corp., 477 U.S. at 323. In response, Plaintiff has failed to identify with reasonable 12 particularity any evidence that precludes summary judgment against any named 13 Defendant. See Keenan, 91 F.3d at 1279. Accordingly, Defendants are entitled to 14 summary judgment on this claim. Id.; see Celotex Corp., 477 U.S. at 323. 15 16 CONCLUSION 17 For the reasons stated above, Defendants Sgt. Siderakis, Sgt. Johnston, Deputy 18 Grant, Capt. Timothy Pearce, Sgt. Saye, Deputy Leon, and Deputy Case’s motion for 19 summary judgment is GRANTED. Dkt. No. 29. The failure to protect claims against 20 them are DISMISSED first for failure to exhaust administrative remedies and second 21 DISMISSED with prejudice due to the absence of a genuine issue of material fact. 22 The Clerk shall terminate any pending motions and close the case. 23 This order terminates Docket No. 29. 24 IT IS SO ORDERED. 25 3/18/2021 Dated: _____________________ ________________________ EDWARD J. DAVILA United States District Judge 26 27 28 Order Granting MSJ PRO-SE\EJD\CR.19\01345Wells_grant-msj(exh&merits) 20