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March 29, 2004.

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

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.


  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.


 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. ...

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