United States District Court, N.D. California
March 29, 2004.
CLIFFORD BURL THOMASON, Plaintiff,
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
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
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
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.
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
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;"' 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
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
A prisoner may state a § 1983 claim under the Eighth Amendment
against prison officials only where the officials acted with "deliberate
indifference" to the threat of serious
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
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).
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.
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
The clerk shall close the file.
IT IS SO ORDERED.