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THOMASON v. LAMARQUE

United States District Court, N.D. California


March 29, 2004.

CLIFFORD BURL THOMASON, Plaintiff,
v.
Warden A.A. LAMARQUE; Doctor HOWARD PREECE; MTA JIMENEZ; Officer S. BEGUHL, Defendants

The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge

RULINGS; GRANT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This is a pro se section 1983 civil rights action filed by a state prisoner. Defendants have moved for summary judgment on the ground that there are no material facts in dispute and that they are entitled to qualified immunity. Plaintiff has filed an opposition, defendants a reply, and plaintiff a response to the reply. This matter is fully submitted.

STATEMENT

  Plaintiff alleges that defendants allowed him to be housed with a dangerous cellmate. His cellmate eventually attacked him with an electric fan, causing minor injuries.

  DISCUSSION

 A. Standard of Review

  Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id Page 2

  The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact Celotex Corp. v. Cattrett, 477 U.S. 317. 323 (1986) Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But oh an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.

  Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex Corp., 477 U.S. at 323.

 B. Analysis

  The remaining defendants in this case are Jimenez and Beguhl. Jimenez is an MTA and Beguhl was the "Floor Officer" in plaintiffs housing unit. It is undisputed that plaintiffs cellmate Kelly was in the prison hospital, and that he was released with a medical recommendation that he be single-celled. It is apparent that Kelly had been in the hospital because of mental problems. Both defendants were informed by plaintiff and by Kelly that Kelly was supposed to be single-celled. From September 20, 2000, to October 29, 2000, the cellmates asked Jimenez and Beguhl to arrange a single cell for Kelly, without success. On October 29, 2000, Kelly attacked plaintiff with an electric fan, causing minor injuries.

  Plaintiff requests only damages. Jimenez and Beguhl contend that are entitled to qualified immunity, which is a complete defense to claims for damages.

  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, Page 3 457 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;"' defendants can have a reasonable, but mistaken, belief about the facts or about what the law requires in any given situation. Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). "Therefore, regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not `clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).

  A court considering a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right, then proceed to determine if the right was "clearly established." Wilson v. Layne, 119 S.Ct. 1692, 1694 (1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999). The threshold question must be: 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? Saucier, 533 U.S. at 201; see Martin v. City of Oceanside, No. 02-56177, slip op. 3071, 3078 (9th Cir. Mar. 11, 2004) (in performing the initial inquiry, court is obligated to accept plaintiffs facts as alleged, but not necessarily his application of law to the facts; the issue is not whether a claim is stated for a violation of plaintiffs constitutional rights, but rather whether on the assumed facts the defendants actually violated a constitutional right) (emphasis in original).

  If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. Saucier, 533 U.S. at 201. On the other hand, if a violation could be made out on the allegations, the next sequential step is to ask whether the right was clearly established. Id. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Id. at 202. 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. If the law did not put the officer on notice that his conduct would Page 4 be clearly unlawful, summary judgment based on qualified immunity is appropriate. Id. The plaintiff bears the burden of proving the existence of a "clearly established" right at the time of the allegedly impermissible conduct. Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992).

  If the law is determined to be clearly established, the next question is whether, under that law, a reasonable official could have believed his conduct was lawful? Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993). The defendant bears the burden of establishing that his actions were reasonable, even if he violated the plaintiff's constitutional rights. Doe v. Petaluma City School Dist. 54 F.3d 1447, 1450 (9th Cir. 1995); Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995); Maraziti, 953 F.2d at 523.

  1. Violation of constitutional right

  The first step of the qualified immunity analysis is whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the defendant's conduct violated a constitutional right. Saucier, 533 U.S. at 201. This requires an examination of the law applicable to Eighth Amendment failure-to-protect claims, which is what plaintiff is asserting here.

  The Eighth Amendment requires that prison officials take reasonable measures to guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, prison officials have a duty to protect prisoners from violence at the hands of other prisoners. See id, at 833. However, a prison official violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate safety. Id. at 834.

  Defendants do not contend that the first of these prongs, that the deprivation be, objectively, sufficiently serious, is not met. They do contend that, on plaintiff's facts, they were not deliberately indifferent.

  A prisoner may state a ยง 1983 claim under the Eighth Amendment against prison officials only where the officials acted with "deliberate indifference" to the threat of serious Page 5 harm or injury to an inmate by another prisoner. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). But neither negligence nor gross negligence will constitute deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 835-36 & n.4 (1994). A prison official cannot be held liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the standard for criminal recklessness is met, i.e., the official knows of and disregards an excessive risk to inmate health or safety. 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. Id. An Eighth Amendment claimant need not show, however, that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. Id. at 842. This is a question of fact. Farmer, 511 U.S. at 842.

  While the deliberate indifference standard requires a finding of some degree of individual culpability, it does not require an express intent to punish. Haygood v. Younger, 769 F.2d 1350, 1354-55 (9th Cir. 1985) (en banc). A prison official need not "believe to a moral certainty that one inmate intends to attack another at a given place at a time certain before that officer is obligated to take steps to prevent such an assault." Berg, 794 F.2d at 459. Before being required to take action he must, however, have more than a "mere suspicion" that an attack will occur. Id

  There is nothing in the materials supplied by the parties which suggests that defendants should have known that Kelly was dangerous, as opposed to knowing that a doctor had ordered that he be single-celled. The doctor's order does not indicate that Kelly would be a danger to a cellmate. Plaintiff did not tell the defendants that he felt he was in danger, and the history of their bunking together did not give any such suggestion. This conclusion would not be changed by the assumption that in fact there was an official decision that plaintiff should be single-celled, something which is unclear from the parties' papers. At most, defendants could have had only a mere suspicion that an attack would occur. It may have Page 6 been negligent for the defendants to fail to learn that a single-celling Kelly had been approved, if it had, but negligence is not enough. To constitute deliberate indifference, the defendant 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." Farmer, 511 U.S. at 837. Under these circumstances, plaintiff stumbles at the first step of the Saucier analysis, i.e., whether the facts taken in a light most favorable to the plaintiff show that the officer's conduct violated a constitutional right.

  2. Reasonable officer

  Defendants are also entitled to summary judgment if it is assumed, for purposes of this ruling, that plaintiff's facts do show a constitutional violation. If a violation could be made out on the allegations, the next sequential step is to ask whether the right was clearly established. Saucier at 201.*fn1 This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Id at 202. 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. If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. Id. The plaintiff bears the burden of proving the existence of a "clearly established" right at the time of the allegedly impermissible conduct. Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992).

  As the Ninth Circuit has noted, this inquiry is "necessarily informed" by the fact that "neither Fanner nor subsequent authorities has fleshed out `at what point a risk of inmate assault becomes sufficiently substantial for Eighth Amendment purposes'" Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1051 (9th Cir. 2002) (quoting Farmer, 511 U.S. at 834 n. 3). Page 7 The discussion in Estate of Ford is instructive. Two of the defendants there were correctional officers, as here; the court concluded that even a correctional officer who violated prison policy by failing to review an inmate's central file before deciding to allow him to be housed with a cellmate was entitled to qualified immunity, because a reasonable officer in his position would not strongly suspect a serious risk. Id at 1052. Given the absence of any clear indication that Kelly was a danger to plaintiff, it would not have been clear to reasonable correctional officers in their position that their conduct in leaving them as cellmates was unconstitutional, even if defendants failed to realize that single-celling had been approved.

  CONCLUSION

  Defendants' motion to stay discovery (doc 54) is DENIED as moot. Plaintiff's motion for an extension of time to file his opposition (doc 58) is GRANTED. The opposition is deemed timely. Plaintiffs motion to stay decision on the motion for summary judgment (doc 59) is DENIED because the court has assumed the correctness of his facts for purposes of this ruling. His motion to "contest" the declaration of Viki Mallory (doc 64) is DENIED because it is not properly a motion, and in any event the court has assumed the correctness of plaintiffs verison of the facts for purposes of this decision. For the reasons set out in the discussion above, defendants' motion for summary judgment (doc 53) is hereby GRANTED.

  The clerk shall close the file.

  IT IS SO ORDERED.


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