ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is defendant Garcia's motion for summary judgment, summary adjudication or, in the alternative, motion to dismiss for failure to exhaust administrative remedies.
The events at issue in this action occurred at the Sacramento County Main Jail. In the operative complaint before the court plaintiff alleges as follows. On March 20, 2003, defendant Deputy Garcia placed plaintiff in a segregated housing "pod" that housed inmates who were northern Hispanic gang members and affiliates. (Second Am. Comp. (Compl.), Attach. at 1.) Shortly thereafter, plaintiff was approached by inmate gang affiliates causing him to fear for his safety. (Id.) He pressed the emergency call button and informed the control booth officers about his safety concerns. (Id.) Plaintiff was then moved to a second pod that housed southern Hispanic gang affiliates. (Id.) On August 15, 2003, without any provocation, plaintiff was attacked and seriously injured by two inmates while retrieving a basketball from an outdoor recreation area. (Id.) Plaintiff alleges that defendant Garcia was deliberately indifferent to plaintiff's safety when he housed plaintiff with gang affiliates. (Id. at 3.)
In the caption of the original form complaint filed by plaintiff, he named as defendants in this action the following: "Sacramento Sheriff Deputy et al," "Sacramento Jail Medical (Physician)," and Deputy Garcia. (Compl. at 3.)*fn1 The court informed plaintiff that service would not be ordered on defendants identified in the complaint merely as "Physicians -Medical Staff - Sacramento Main Jail 651 - 'I' Street." (Id. at 4.) The court explained to plaintiff that he had not sufficiently identified such persons for purposes of effecting service. (Id.) Plaintiff did not file objections or request reconsideration of this order, and thus only defendant Garcia was served with process.
In the court's orders filed July 22, 2004 and October 28, 2004, plaintiff was provided the applicable legal standards for stating a cognizable Eighth Amendment claim alleging inadequate medical care in light of his references to the physicians and medical staff at the jail. Plaintiff was provided two opportunities to amend his complaint in order to state cognizable claims. Finally, in an order filed August 15, 2005, plaintiff was advised that he had failed to state a cognizable Eighth Amendment medical care claim. (Order filed 8/15/05, at 1-2.)
Therefore, this action is proceeding only on plaintiff's claim that defendant Garcia failed to adequately protect him in violation of the Eighth Amendment.
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
"A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact" precluding summary judgment. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). See also Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). On summary judgment the court is not to weigh the evidence or determine the truth of the matters asserted but must only determine whether there is a genuine issue of material fact that must be resolved by trial. See Summers, 127 F.3d at 1152. Nonetheless, in order for any factual dispute to be genuine, there must be enough doubt for a reasonable trier of fact to find for the plaintiff in order to defeat a defendant's summary judgment motion. See Addisu, 198 F.3d at 1134.
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On November 16, 2006, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Defendant Garcia advances two arguments in support of his motion. First, he contends that he was not involved in any way in plaintiff's housing assignments and, in any event, the evidence before the court establishes that plaintiff did not suspect he would be attacked after he was transferred to the second pod and did not report any concern for his safety in that second pod to any jail officials. Second, defendant Garcia asserts that prior to filing suit plaintiff failed to exhaust his administrative remedies with respect to the claim he now presents.
As to the first argument, defendant Garcia argues that plaintiff was housed in two different pods. (Mot. for Summ. J. (MSJ), Mem. P. & A. (P&A), at 4.) Plaintiff was removed from the first pod and placed in a second pod after he reported his safety concerns to jail officials. (Id.) According to the defense, plaintiff did not report any further concerns about his safety to any jail official following his transfer to the second housing pod and before he was attacked by other inmates. (Id.) Defendant Garcia has submitted his own declaration in which he states that the classification unit at the Sacramento County Main Jail determines where inmates are to be housed based on various factors, such as gang affiliation, medical conditions, or known enemies. (Id., Garcia Decl. at 2.) Defendant Garcia declares that he did not work in the classification unit but rather was assigned to 8 East on the eighth floor of the jail to receive newly booked inmates and ensure that they were sent out to court on time, to their permanent housing units as assigned by the classification unit or were timely released from custody. (Id.) Defendant Garcia states that given his assignment, he had no authority "to reassign Jeffrey A. Pate, or any inmate, from one floor or pod to another." (Id.) In addition, defendant Garcia points to plaintiff's own deposition testimony where plaintiff confirmed that he did not report to jail officials any safety concerns about the second pod to which he had been transferred and stated that the attack by other inmates came as a "surprise" to him. (Id., P&A, at 6; Dep. at 28.) Defendant Garcia argues that because plaintiff cannot show that he was personally involved in the actions that resulted in the alleged constitutional violation, summary judgment should be granted in his favor on plaintiff's failure to protect claim.
Defendant Garcia next argues that plaintiff never submitted a grievance to the Jail Housing Unit Officer or a formal written grievance to the Jail Housing Unit Deputy and therefore failed to exhaust his administrative remedies. (Id. P&A at 8.) Defendant Garcia contends that his argument in this regard is supported by plaintiff's own deposition testimony at which time plaintiff conceded that he never asked to be moved after he was assigned to the second pod. (Id. P&A at 8-9; Dep. at 37-38.)
In his opposition to defendant Garcia's motion plaintiff contends that it was indicated on his jail wristband that he is Native American and that by placing him in a pod with Hispanic gang affiliates jail deputies, including defendant Garcia, demonstrated their deliberate indifference to his safety. (Opp'n at 2.)*fn2 In support of his opposition plaintiff has submitted his own affidavit, medical records and deposition transcript. Of particular note is plaintiff's deposition at which he testified about both his interaction with defendant Garcia and the subsequent attack upon him as follows:
Q [Defendant's Counsel]: So in your complaint it said that Deputy Garcia housed you in a segregation pod; is that right?
A [Plaintiff]: Now, Deputy Garcia, he ran the - - when you first come into the jail, there's a - - there's - - I don't know what it's called, but it's when you first go in the jail, it's at the top floor. And it's called - - I don't know. Some kind of - - it's where they decide where you're going to be doing your time at, what floor. And so they called about 40 of us out. And I remember everybody went to different floors but me. And he said - - he was making jokes. He said he had a place for me.
And as he's walking me across over to the other side, he says to me we are going to see how long you can last up here. And then - -Q. Is - -A. Now, I don't know what he means. And then until after I'm - -they put me in there. And I find out I'm in danger, you know, but I don't think that Mr. Garcia - - I don't know if he knew what kind of condition I was in.
Q: Now, when you said he said we'll see how long you can last in here, are you referring to ...