Opinion
3:21-cv-01306-CL
07-06-2023
DONTONIO R. KING, Plaintiff, v. BRET KING, Defendant.
FINDINGS AND RECOMMENDATION
CLARKE, MAGISTRATE JUDGE.
Pro se plaintiff Dontonio R. King is an adult in the custody of Oregon Department of Corrections and held at the Snake River Correctional Institution (SRCI). Plaintiff brings this civil rights action under 42 U.S.C. § 1983 alleging that defendant Bret King violated his rights when he was held in Multnomah County Inverness Jail (MCIJ). Plaintiff moves for summary judgment. For the reasons explained below, plaintiffs motion for summary judgment (ECF 53) should be GRANTED.
BACKGROUND
There is no dispute as to the following facts:
At all material times, plaintiff was a pretrial detainee housed in MCIJ. Am. Compl. 4, ECF 11; Def's Resp. 2 (Resp.), ECF 59. On December 4,2020, plaintiff got into a physical fight with another adult in custody (AIC) named, Dyes (AIC Dyes). Pl.'s Mot. Summ. J. (Mot.) Ex. B (Misconduct Hearings Report), ECF 54. After the fight, MCIJ imposed a keep separate order between plaintiff and AIC Dyes and moved them both to Dorm 16, the disciplinary segregation unit of MCIJ. Id. at Ex. A ¶ 2. Under MCIJ rules, “[AICs] with a ‘keep separate' status are not supposed to be allowed out of their cells for walk at the same time.” Resp. 2; see also, Mot. 3 (noting that AICs with a keep separate order are “not supposed to come into contact with one another”). On January 6, 2021, defendant was the supervising deputy for Dorm 16. Id. Although the keep separate order. was still in place on January 6, 2021, defendant “allowed [p]laintiff and [AIC] Dyes to leave their cells in Dorm 16 for walk at the same time.” Id. at Ex. A ¶ 3. Once defendant let AIC Dyes out of his room, AIC Dyes “initiated a fight with [p]laintiff.” Id. at ¶ 4. The Misconduct Hearings Report about the fight stated that “[plaintiff] was on the phone [when] . .. AIC Dyes came out of his room” and “[AIC] Dyes came up to [plaintiff] and started punching him, attacked him.” Id. Ex. B. The Misconduct Hearings Report also stated, “[t]hese two should have never been out at the same time” and noted that it is the “responsibility [of] staff to not walk KS”-i.e., keep separate AICs-at the same time. Id.
After the incident, plaintiff reported to MCIJ medical staff that “he got bitten on his left hand.” Mot. Ex. D. Medical staff noted a “[a] bite wound ... to [plaintiffj's left perlicue”, id., which is “the space between a person's extended forefinger and thumb.” Oxford English Dictionary, https://www.oed.eom/view/Entry/l 54932?redirectedFrom=perlicue#eid (accessed June 27,2023). Medical staff treated the wound and gave plaintiff a tetanus shot later that day. Id. at Ex. A ¶ 4. .
Plaintiff alleges that he “was bit on his thumb” by AIC Dyes in his amended complaint, Am. Compl. 5, and he alleges that AIC Dyes “bit his finger” in his motion for summary judgment. Despite those varied descriptions of his injury, plaintiff does not appear to allege more than a single bite wound and his medical records show that he only reported that “he got bitten on his left hand” Mot. Ex. D (emphasis added). Plaintiffs medical records also show, see id., and defendant acknowledges, that “[m]edical staff treated [p]laintiff for a bite on his hand” and no' other injury. Resp. 2.
STANDARDS
I. Summary Judgment .
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing Fed.R.Civ.P. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a' reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact, Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the . non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
II. Pro Se Pleading Standard
Federal courts hold a pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). “Although .. . pro se litigant[s]... may be entitled to great leeway when the court construes [their] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. US. Dep 't of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Moreover, on a motion for summary judgment, a pro se party involved in civil litigation “should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). “It is not the district court's job to sift through the record to find admissible evidence in support of a non-moving party's case.” Claar v. Burlington N.R.R., 29 F.3d 499, 504 (9th Cir. 1994) (quoting Celotex, 477 U.S. at 324). Simply put, in areas “where [a] plaintiff does not identify specific evidence in the record to support his assertions, the Court is not required to search for it.” Woodroffe v. Oregon, No. 2:12- CV-00124-SI, 2015 WL 2125908, at *2 (D. Or. May 6, 2015), aff'dsu b nom. Woodroffe v. Kulongoski, 745 Fed.Appx. 728 (9th Cir. 2018).
DISCUSSION
Plaintiff alleges a “failure-to-protect violation” under the Eighth Amendment based on defendant's failure to enforce the keep separate order between plaintiff and AIC Dyes. Mot. 2. However, the parties agree that plaintiff was a pretrial detainee at all material times and not a convicted AIC. See Resp. 2 (noting that, “[a]t all material times, [plaintiff was a pretrial detainee housed in ... [MCIJ]”). Therefore, the Fourteenth Amendment applies to plaintiffs failure-to-protect claim, not the Eighth Amendment. See Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (noting that “[AIC]s who sue prison officials for injuries suffered while in custody may do so under the Eighth Amendment... or, if not yet convicted, under the Fourteenth Amendment's Due Process Clause”) (citing Bell v. Wolfish, 441 U.S. 520, 535 . (1979)); see also, Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987) (explaining that “[t]he eighth amendment applies to ‘convicted prisoners'” and the more protective fourteenth amendment standard applies to conditions of confinement when detainees ... have not been convicted”) (citations omitted).
A. Analysis
In Castro, the Ninth Circuit described “the elements of a pretrial detainee's Fourteenth . Amendment failure-to-protect claim against an individual officer” as follows:
(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(2) Those conditions put the plaintiff at substantial risk of suffering serious harm;
(3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and
(4) By not taking such measures, the defendant caused the plaintiffs injuries.833 F.3d at 1071. Under the third element, “the defendant's conduct must be objectively unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each particular case.'” Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (citation omitted)).
Here, starting with the first element under Castro, there is no question that defendant made an “intentional decision” as to plaintiffs conditions of confinement because defendant “admits that, on January 6, 2021, he allowed [p]laintiff and [AIC] Dyes to leave their cells ... at the same time.” Mot. Ex. A ¶ 3. Defendant also “admits that, on January 6, 2021, [p]laintiff and [AIC] Dyes had a ‘keep separate' status” because they “engaged in a fight” the previous month, and he further “admits that adults in custody with a ‘Keep Separate' status are not supposed to be allowed out of their cells for walk at the same time.” Id.-, see also, Mot. Ex. B (Misconduct Hearings Report finding that plaintiff and AIC Dyes “should have never been out at the same time”). This undisputed evidence supports an inference that defendant put “plaintiff at substantial risk of suffering serious harm” and that “a reasonable officer ... would have appreciated the high degree of risk involved”-the second and third elements under Castro. See 833 F.3d at 1071.
Defendant argues that plaintiff has failed to show “that [defendant was subjectively aware of the fact that [p]laintiff was in danger of being attacked by [AIC] Dyes,” Resp. 4, but he -applies the incorrect legal standard. Under the Fourteenth Amendment, the question is whether defendant's conduct was “objectively unreasonable”-which requires “a pretrial detainee who asserts a... claim for failure to protect to prove more than negligence but less than subjective intent-something akin to reckless disregard.” Castro, 833 F.3d at 1071. Defendant says that he was “perhaps negligent in failing to adhere to the ‘keep separate' status[,]” Resp. 4, but he does not claim that he failed to remember the keep separate order or was somehow unaware of it- which might suggest negligence. See Resp., see also, King Decl. ¶ 4, ECF 38. Furthermore, plaintiff filed a declaration from an AIC named Cabrera who stated,
Myself and others verbalized that [plaintiff] and [AIC] Dyes had a keep separate from a previous fight. [Defendant] stated “well they're both closed custody and I am walking all closed custody together. If they fight so what they just fight.”Cabrera Decl. 1, ECF 10. Plaintiff filed similar declaration from an AIC named Farrukh that stated,
I heard someone tell [defendant] on the tier of the dorm that [plaintiff] and [AIC] Dyes have a keep separate. [Defendant] replied saying, “if they fight, I don't care they just fight[.] I'm walking all closed custody inmates at the same time.”
Farrukh Decl. 1, ECF 11. Although plaintiff does not cite those declarations in his motion for summary judgment, they are in the record and plaintiff cites them in his reply, see ECF 60. Defendant does not address or dispute either declaration. Thus, even viewing the evidence in the light most favorable to defendant as the nonmoving party, the record demonstrates that defendant failed to take “reasonable measures” to abate the risk of serious harm to plaintiff because he knew about the keep separate order but failed to enforce it-conduct that goes beyond mere negligence and that is more “akin to reckless disregard.” See Castro, 833 F.3d at 1071; see also, Pablo-Dejesus v. Cnty. of Multnomah, No. 3:19-CV-01574-SB, 2020 WL 8361919, at *6 (D. Or. Dec. 29, 2020), report and recommendation adopted, No. 3:19-CV-01574-SB, 2021 WL 297568 (D. Or. Jan. 28, 2021) (finding that “there are disputed material facts about whether [the defendants] took reasonable measures to abate the substantial risk that [the plaintiff] would suffer serious harm” based on evidence that the defendants knew plaintiff had been previously attacked by another AIC but left the attacking AIC's cell door open and allowed him to escape and attack the plaintiff a second time).
Last, there is no factual dispute that AIC Dyes “initiated a fight with [p]laintiff that resulted in plaintiff being “treated for a bite on his hand[.]” Mot. Ex. A at ¶ 4. That evidence demonstrates that, by failing to enforce the keep separate order, “defendant caused the plaintiffs injuries”-the final element under Castro, 833 F.3d at 1071.
In sum, plaintiff is entitled to summary judgment because there is no genuine issue of material fact as to each element of his Fourteenth Amendment failure-to-protect claim. See id.-cf, Pablo-Dejesus, 2020 WL 83619-19, at *6 (denying the defendants' summary judgment motion where there were “disputed material facts” as to the elements of the plaintiffs Fourteenth Amendment failure-to-protect claim).
Defendant also opposes summary judgment for plaintiff on grounds related to this court s denial of his motion for summary judgment. See Resp. 4-5. Defendant argues that “the [c]ourt, found that the exhaustion issue in this matter is a triable issue” but that misconstrues the court's ruling and provide no basis for the court to deny plaintiff s motion for summary judgment.
RECOMMENDATION
For the reasons stated above, plaintiffs motion for summary judgment (ECF 53) should be GRANTED.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CIV. P. 72, 6. PARTIES ARE ADVISED THAT THE FAILURE TO FILE OBJECTIONS WITHIN THE specified time may waive the right to appeal the District Court's order. Martinez v. Ylst 951 F.2d -1153 (9th Cir. 1991).