Opinion
No. C 01-4685 TEH (pr).
June 30, 2003
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Willie Thomas, an inmate currently housed at Corcoran State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. Defendants now move to dismiss or in the alternative, for summary judgment. Defendants argue in the motion to dismiss that plaintiff has not exhausted his administrative remedies and in the motion for summary judgment that they are entitled to judgment as a matter of law on plaintiff's Eighth Amendment claim and on the defense of qualified immunity. Plaintiff opposes the motion. The court now determines that defendants are entitled to judgment as a matter of law on plaintiff's complaint and on their defense of qualified immunity. Accordingly, the court will grant defendants' motion for summary judgment.
BACKGROUND
The activities that give rise to this action occurred on or about October 3, 2000, while Thomas was incarcerated at Salinas Valley State Prison ("SVSP") and defendants Kidd, Frazee and Kowalski were on the staff at SVSP. Thomas filed a pro se civil rights complaint under 42 U.S.C. § 1993 in which he alleged that correctional officers Kidd and Frazee knowingly placed him in a cell with an inmate who was affiliated with a rival gang at the prison, who promptly assaulted and injured Thomas.
The following facts are undisputed unless otherwise noted:
Double-celling of inmates was the norm at SVSP and, unless approved for single-cell housing, inmates were expected to share cells. Efforts were made to house inmates with other inmates with whom they were compatible. When evaluating compatibility, guards considered a number of factors including prison gang or disruptive group affiliation. Although it was against SVSP policy to place inmates together if they expressed their unwillingness to be celled together, an inmate's agreement was not required in a case where the inmate refused to cooperate with housing expectations absent valid reason.
On September 29, 2000, plaintiff was placed in the administrative segregation unit based on enemy concerns and institutional security concerns. He was temporarily put in a holding cell in the ad-seg unit while efforts were made to find a compatible cellmate for him. According to an inmate grievance he filed, plaintiff's enemy concerns resulted from him giving "confidential information on a Crip shotcaller which resulted in him I/M Doyle being busted with drugs." Opposition, Exh. A, p. 3. Thomas was affiliated with the Crip prison gang. Id. at 4.
As of September 29, 2000, Thomas was not approved for single-cell housing. He rejected a number of prospective cellmates proposed by staff. On the afternoon of October 3, 2000, correctional officers Frazee and Kidd placed inmate Dwayne Pollard in a holding cell next to Thomas' cell so the inmates could determine whether they could be compatible as cellmates. The parties dispute whether Pollard and Thomas verbally agreed to share a cell: Thomas states that "they both expressed constant disapproval," Opposition, p. 7, while defendants Frazee and Kidd recall that Pollard and Thomas verbally agreed to share a cell. The parties agree, however, that Pollard and Thomas refused to sign a cellmate compatibility form. Defendants Frazee and Kidd reviewed the paperwork on Thomas and Pollard and confirmed that they were compatible. Although Thomas was a documented member of a prison gang at the time, Pollard was not. The proposed move was approved by the sergeant on duty and a CDC 154 bed-move form was filled out by Kidd to effectuate the placement. Correctional officer Kowalski delivered the CDC 154 form to central control at the prison for processing. The parties dispute whether Kowalski had any supervisorial role that day. There is no evidence that Kowalski read the bed move form.
Defendant Kidd recalls that before the placement he "reviewed the papers on Thomas and inmate Dwayne Pollard and determined that Pollard was non-affiliated with any prison gang." Kidd Decl., ¶ 4. Defendant Frazee's recall was not as exact: He declared "Although I do not specifically recall investigating the inmates' appears to determine whether they were documented members of a prison gang, I know we would have done this as a matter of course. It is against CDC policy to house rival gang members together. However, it is o.k. to house a gang member or affiliate with someone who does not belong or affiliate with a rival gang. I'm certain that Thomas, himself, never alerted us to the fact that he believed Pollard was a member of a gang." Frazee Decl., ¶ 6.
Pollard and Thomas were placed together in a cell later that day. At approximately 10:50 p.m. — after defendants Kidd and Frazee had finished their shifts — Pollard and Thomas were observed in an altercation by a guard named Mirich, who saw what appeared to be inmates Pollard and Thomas wrestling and ordered them to stop. They did. Thomas concedes that Mirich may have seen what appeared to be wrestling but points out that Mirich only observed the end of the assault. Opposition, p. 14.
Thomas was taken to the treatment center for medical evaluation. Registered nurse Keller noted that Thomas suffered only minor abrasions to the chest, shoulders and left wrist. The injuries to his wrist were self-inflicted, as Thomas acknowledged. See Opposition, Exh. A, p. 4; Exh. C, p. 2. Nurse Keller declined to admit him for further treatment and instead released him back to the yard. Thomas acknowledges that he was seen by nurse Keller and that she may have seen only minor abrasions, but states that her examination was superficial and would not have detected a condition not visible to the naked eye. Opposition, pp. 14-15.
A prison physician noted on June 5, 2001, that plaintiff had "total loss of hearing in left ear." Opposition, Exh. D, p. 1. Thomas claims that his hearing loss is due to the blows inflicted on him by inmate Pollard.
At the time of the incident and as of the time the summary judgment motion was filed, Pollard's central file did not contain information that he was a documented member or affiliate of a prison gang. McKay Decl., ¶ 3. In a hearing report of October 23, 2000, inmate Pollard reported that he was affiliated with the Blood prison gang. See Opposition, p. 10, Exh. B, p. 4. This statement was made at a hearing that occurred twenty days after the incident at issue in this case. In a 30-day review done on October 5, 2000 for inmate Pollard, the form notes "none" in the box for enemies and notes "none" in the box for gang/tip. Opposition, Exh. B, p. 3. There is no evidence that Thomas or Pollard told any of the defendants before the incident that Pollard was in the Blood prison gang or that Pollard posed any particular danger to Thomas.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because the events or omissions giving rise to the claims occurred at SVSP in Monterey County, which is located within the Northern District. This court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331.
LEGAL STANDARD FOR SUMMARY JUDGMENT
The court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.")
Generally, as is the situation with defendants' challenge to the Eighth Amendment claim, the moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted).
Where, as is the situation with a qualified immunity defense, the moving party bears the burden of proof at trial and must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on each issue material to his affirmative defense.Id. at 1537; see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. When the defendant-movant has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 nn. 10-11 (9th Cir. 1995) (treating plaintiff's verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge). Here, the court may consider Thomas' complaint but not his amended complaint because only the former was verified. The court also may consider the opposition brief because it was signed under penalty of perjury; of course, only factual statements in the opposition brief are used as evidence and the numerous argumentative statements do not become evidence merely because the document has been signed under penalty of perjury.
Defendants apparently did not receive a copy of the amended complaint filed by Thomas. The amended complaint was sent to the court, but apparently due to a clerical error at the court, was not put in the court file when it originally was sent to the court.
The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.
DISCUSSION
A. Deliberate Indifference Claim
The Eighth Amendment's prohibition of cruel and unusual punishment requires that prison officials take reasonable measures for the safety of inmates. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). In particular, officials have a duty to protect inmates from violence at the hands of other inmates. See id. at 833. A prison official violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the inmate's safety. See id. at 834.
To be liable in a failure to prevent harm situation, the official must know of and disregard an excessive risk to inmate safety. See id. at 837. The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. See id. He need not "believe to a moral certainty that one inmate intends to attack another at a given place at a time certain before [he] is obligated to take steps to prevent such an assault." Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Before being required to take action he must, however, have more than a "mere suspicion" that an attack will occur. See id.; see, e.g., id. at 460 (summary judgment appropriate as to defendants when plaintiff "failed to come forward with any facts showing that these defendants had any reason to believe he would be attacked by the assailant").
When, as here, the prisoner seeks damages against a defendant, the "inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Leer explained that "it is important to distinguish the causal connection required when a plaintiff seeks injunctive or declaratory relief as opposed to damages." Id. In the former case, a broader and more generalized approach to causation is taken. See id.
When plaintiffs, such as the inmates, seek to hold an individual defendant personally liable for damages, the causation inquiry between the deliberate indifference and the eighth amendment deprivation must be more refined. We must focus on whether the individual defendant was in a position to take steps to avert the [harm], but failed to do so intentionally or with deliberate indifference. In order to resolve this causation issue, we must take a very individualized approach which accounts for the duties, discretion, and means of each defendant. . . . Sweeping conclusory allegations will not suffice to prevent summary judgment. . . . The prisoner must set forth specific facts as to each individual defendant's deliberate indifference.Id. at 633-34 (citations omitted).
Thomas has failed to raise a triable issue of fact that defendants were deliberately indifferent to his safety. Thomas needed to raise a triable issue of fact that defendants knew that housing him in the same cell with Pollard would result in a substantial risk of harm to his safety. He did not. Even assuming that one inmate's membership in the Crip prison gang made housing him with a member of the Blood prison gang inherently and unacceptably dangerous, there simply is no evidence before the court that the defendants knew that Pollard was in the Blood prison gang. There is no evidence that Pollard's prison file contained any information identifying him as a member or affiliate in the Blood prison gang as of the date of the incident. Indeed, there is a declaration from a CDC employee to the contrary: Pollard's central file did not contain information that he was a documented member or affiliate of the gang. Although Pollard identified himself as a Blood prison gang affiliate in a hearing on the incident, that hearing took place three weeks after the incident and any information provided there did not provide notice three weeks beforehand. Thus, Thomas has not raised a triable issue of fact that Pollard was a member/affiliate in the Blood prison gang as of the date of the incident. He also has not raised a triable issue of fact that such information would have been discovered if the defendants thoroughly read Pollard's central file, even if one accepted his suggestion that defendants may have turned a blind eye to the contents of the central file. In short, he has not shown that the information that made Pollard a danger to him was known to defendants. He has not even shown that the information was knowable — even if one assumed that defendants deliberately chose not to read Pollard's central file.
Thomas also has not presented any evidence that he or Pollard alerted defendants on the day of the incident to the fact that they were members of rival gangs and were a danger to each other. The parties dispute whether Thomas and Pollard orally agreed to be housed together, but even accepting Thomas' version of the facts as true and drawing all inferences in his favor will not save his claim. Thomas declares that he refused to agree — orally or in writing — to be housed with Pollard. He provides no declaration or other evidence that he told defendants why he refused to be housed with Pollard. And he provides no declaration or other evidence that Thomas told defendants why he refused to be housed with Pollard. The inmates' refusal to be housed together does not raise a triable issue of fact that defendants knew that housing these two inmates together created an excessive risk to Thomas' safety.
Thomas also has not raised a triable issue of fact that defendant Kowalski knew of and disregarded a risk to his safety. The evidence shows that Kowalski carried a bed move form, but there is no evidence that he read the contents of the form. And, although the parties dispute whether Kowalski had a supervisorial role that day, regardless of whether he was a supervisor, there is no evidence that he knew that Pollard posed a risk to Thomas' safety if the two were housed together.
Thomas' opposition brief is peppered with phrases that show his mistaken legal belief that deliberate indifference is essentially interchangeable with a negligence standard. Some of the many examples of this: he argues that deliberate indifference occurs when prison officials "knew or should have known" of danger, Opposition, p. 6, the "risk was suspicious and obvious", id. at 7, "defendants should have known and recognized the danger," id., "any reasonable person would have at least asked the question, why are you guys not compatible," id., defendants "knew or should have known that plaintiff's placement would befail [sic] him, id. at 22-23, and "defendants failed to take reasonable measures before housing plaintiff," id. at 24. And Thomas tells the court that "[d]efendants were suppose to weight the information within both inmates C-files before housing them," id. at 8, that protective custody inmates (like Thomas) were not supposed to be mixed with general population ad-seg inmates (like Pollard), id. at 9, and that defendants forced him into an unsafe position deliberately "without even considering every case factor to ensure the safety of plaintiff s welfare," id. at 11. The law is not as Thomas argues. As Farmer v. Brennan, 511 U.S. at 835-36 n. 4, made clear, negligence and gross negligence are not enough to amount to an Eighth Amendment violation. Deliberate indifference is not shown by merely stating that a defendant should have known of a risk. The case law could not be clearer that deliberate indifference requires an actual perception of a risk and does not exist merely where a reasonable person should have perceived a risk.
To survive the summary judgment motion, Thomas was required to raise a triable issue of fact as to the objective and subjective prongs of deliberate indifference. He did not raise a triable issue of fact that the defendants were, subjectively, deliberately indifferent to a risk to his safety. Even viewing the evidence and the inferences drawn therefrom in the light most favorable to Thomas, no reasonable jury could return a verdict for him and against defendants. Defendants are entitled to judgment as a matter of law on the deliberate indifference claim.
B. Qualified Immunity
The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law.'"Burs v. Reed, 500 U.S. 478, 495 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a particular sequence of questions to be considered in determining whether qualified immunity exists. The court must consider this threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201. If no constitutional right was violated if the facts were as alleged, the inquiry ends and defendants prevail. See id. If, however, "a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. . . . `The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' . . . The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 201-02 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The first step under Saucier is to determine whether a constitutional violation was alleged. The court previously determined that the allegations of the complaint stated a claim for relief against Kidd and Frazee for an Eighth Amendment violation and that the allegations of the amended complaint stated a claim for relief against Kowalski. As a matter of pleading, plaintiff's complaint and amended complaint sufficed to allege an Eighth Amendment claim even if they would not suffice to prove such an injury.
The next step under Saucier is to consider whether the contours of the right were clearly established, an inquiry that "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. The law was clearly established that a correctional officer could not disregard a substantial risk of serious harm to an inmate of which he was aware and had a duty to protect a prisoner from violence at the hands of other prisoners. See Farmer v. Brennan, 511 U.S. at 833. But there was no clearly established right for a prisoner to choose his cellmate or to be single-celled. Before the decision to house Pollard and Thomas in the same cell, "it would have been clear to a reasonable prison official that if he knew about an excessive risk to inmate safety, and inferred from the facts of which he was aware that a substantial risk of serious harm exists, he would violate the law by disregarding it." Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002).
The Ninth Circuit clarified the qualified immunity analysis for a deliberate indifference claim in Estate of Ford. The court explained that, for an Eighth Amendment violation based on a condition of confinement (such as a safety risk), the prison official mustsubjectively have a sufficiently culpable state of mind, i.e., "`a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inferences.' . . . Thus, a reasonable prison official understanding that he cannot recklessly disregard a substantial risk of serious harm, could know all of the facts yet mistakenly, but reasonably, perceive that the exposure in any given situation was not that high. In these circumstances, he would be entitled to qualified immunity. Saucier, 533 U.S. at 205." Estate of Ford, 301 F.3d at 1050 (quoting Farmer v. Brennan, 511 U.S. at 834). In Estate of Ford, the court explained that even though the general rule of deliberate indifference had been expressed in Farmer, no authorities had "fleshed out `at what point a risk of inmate assault becomes sufficiently substantial for Eighth Amendment purposes.'" Estate of Ford, 301 F.3d at 1051 (quoting Farmer, 511 U.S. at 834 n. 3. Because it hadn't been fleshed out, "it would not be clear to a reasonable prison official when the risk of harm from double-celling psychiatric inmates with one another changes from being a risk of some harm to a substantial risk of serious harm. Farmer left that an open issue. This necessarily informs `the dispositive question' of whether it would be clear to reasonable correctional officers that their conduct was unlawful in the circumstances that [they] confronted." Estate of Ford, 301 F.3d at 1051 (emphasis in original).
Applying Estate of Ford here, it would not have been clear to a reasonable prison official when the risk of harm from housing together two inmates who said they did not want to be housed together but who were not known to the official to be from rival gangs or to pose a particular risk to each other changed from being a risk of some (or even any) harm, to a substantial risk of serious harm to one of those inmates. A reasonable prison official understanding that he could not recklessly disregard a serious risk to inmate safety could know that Thomas and Pollard said they did not want to be cellmates and had refused to sign an agreement to cell together but reasonably perceive that Thomas' exposure to any harm was not that high when there was no evidence of a specific threat from Pollard to Thomas. Because the law did not put defendants on notice that their conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. See Saucier, 533 U.S. at 202. Defendants met their burden of proof in their moving papers. Thomas did not introduce evidence to show the existence of a genuine issue of fact on the defense. Defendants are entitled to judgment as a matter of law on their qualified immunity defense.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is GRANTED. (Docket #33.) The court will not reach the alternative argument concerning exhaustion of administrative remedies. Defendants' request for clarification of the stay order is DENIED as moot. (Docket #30.) Judgment now will be entered in favor of all defendants and against plaintiff. The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
Defendants' motion for summary judgment has been granted. Judgment is now entered in favor of all defendants and against plaintiff.
IT IS SO ORDERED AND ADJUDGED.