The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART
Juan Radillo ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. In this action, Plaintiff contends that Defendants Lunes and Chamalbide retaliated against him in violation of the First Amendment and failed to protect him in violation of the Eighth Amendment. Specifically, Plaintiff contends that Defendants spread rumors that Plaintiff was a homosexual; Behavior that could result in serious injury or death by the Mexican Mafia. Defendants filed a motion for summary judgment and requested judgment on all claims as to all Defendants.
On March 7, 2008, the Magistrate Judge issued Findings and Recommendations that recommended the court grant Defendants' motion for summary judgment on Plaintiff's retaliation claim because Plaintiff failed to provide evidence that he, as opposed to his cell mate, had engaged in First Amendment activity that had been chilled. The Magistrate Judge also recommended the court grant Defendant Lunes summary judgment on Plaintiff's failure to protect claim because there was no evidence that Defendant Lunes informed any inmate about the alleged homosexual behavior. However, the Magistrate Judge recommended Defendant Chamalbide not be granted summary judgment on the failure to protect claim because there was a disputed issue of fact on whether Defendant Chamalbide had informed other inmates, including Mexican Mafia members, about the alleged homosexual activity.
The Findings and Recommendations were served on the parties and contained notice that any objections could be filed within twenty days. On March 26, 2008, Defendants filed objections to the Magistrate Judge's recommendation that the court deny summary judgment as to Defendant Chamalbide on the failure to protect claim. Defendants contend that as a matter of law, the fact Plaintiff was never injured or harmed by other inmates is fatal to his failure to protect claim. On April 11, 2008, Plaintiff filed an opposition to Defendants' objections. Plaintiff claims that he should not have to wait until he is actually assaulted or killed before a failure to protect claim arises.*fn1
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the Findings and Recommendations to be supported by the record and by proper analysis. The court finds that although a prison guard using a mere label is insufficient to state a claim for failure to protect, an actual injury is not necessarily required.
"The treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993)). Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Farmer, 511 U.S. at 833; Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982). To establish a violation of this duty, the prisoner must establish that prison officials were "deliberately indifferent to a serious threat to the inmates's safety." Farmer, 511 U.S. at 834. The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial 'risk of serious damage to his future health . . . .'" Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The deliberate indifference standard involves both an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Farmer, 511 U.S. at 834. Second, subjectively, the prison official must "know of and disregard an excessive risk to inmate health or safety." Id. at 837.
Here, there is evidence that Defendant Chamalbide told Mexican Mafia members that Plaintiff had been caught in a homosexual act. Defendants contend that Plaintiff's failure to protect claim fails because there is no evidence Plaintiff was actually assaulted because of. Where an inmate's claim is based on alleged failure to prevent harm, the inmate may satisfy the "sufficiently serious" requirement by showing the existence of "conditions posing a substantial risk of serious harm" to him. Farmer, 511 U.S. at 834; Helling, 509 U.S. at 33-34. The Eighth Amendment protects against future harm to inmates because inmates must be furnished with basic human needs, one of which is "reasonable safety." Helling, 509 U.S. at 33. In the case of failing to protect an inmate, a prisoner can show an Eighth Amendment violation by providing evidence that prison officials, with deliberate indifference, exposed him to a serious risk to his safety. See id. at 35.
In this action, Plaintiff has provided more than a mere allegation that he was generally labeled a homosexual. The undisputed facts reveal that Plaintiff is considered a member or associate of the Mexican Mafia, and the Mexican Mafia does not tolerate homosexual behavior. Taking the facts in the light most favorable to Plaintiff, Plaintiff has shown is that he was exposed to a serious risk of being assaulted by Mexican Mafia members based on Defendant's alleged statements to inmates that Plaintiff engaged in a homosexual act. Plaintiff has also provided evidence that Defendant Chamalbide knew that it would be "bad" for Plaintiff if Mexican Mafia members were to believe he had engaged in a homosexual act. Finally, there is evidence that Defendant Chamalbide knew Plaintiff would continued to be exposed to Mexican Mafia members after relating what she saw. Thus, the court agrees with the Magistrate Judge that Defendant Chamalbide is not entitled to summary judgment on the failure to protect claim because there is a disputed issue of fact on whether Defendant Chamalbide told inmates about Plaintiff's alleged homosexual act, whether this knowledge created an excessive risk to Plaintiff's safety, and whether Defendant Chamalbide knew her statements placed Plaintiff in an excessive risk of harm.
The court recognizes that the Ninth Circuit has dismissed claims alleging prison guards were deliberately indifferent to a prisoner's safety in violation of the Eighth Amendment because the prisoner "did not allege that he has been assaulted or threatened with an assault by other prisoners." Williams v. Wood, 223 Fed.Appx. 670, 671, 2007 WL 654223, 1 (9th Cir.2007). The Ninth Circuit has also rejected an Eighth Amendment claim where guards labeled an inmate a "snitch" but the inmate had not been retaliated against. Morgan v. MacDonald 41 F.3d 1291, 1294 (9th Cir.1994). In these cases the Ninth Circuit has reasoned that "speculative and generalized fears of harm at the hands of other prisoners do not rise to a sufficiently substantial risk of serious harm." Williams, 223 Fed.Appx. at 671. The court finds that these cases do not stand for the proposition that an injury is a necessary element of a failure to protect claim. Rather, in these cases the plaintiffs failed to allege how a certain label resulted in a serious risk of harm and how that harm was known to the prison guard. Here, Plaintiff is not relying on speculative and generalized fears of harm. Rather, there is evidence to show that if Mexican Mafia remembers believed Plaintiff was a homosexual, Plaintiff would have been seriously harmed. Thus, those cases that have screened out failure to protect claims are not dispositive in this action.
Accordingly, the court ORDERS that:
1. The Findings and Recommendations are ADOPTED;
2. Defendants' motion for summary judgment is GRANTED except as to Defendant Chamalbide on the ...