FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently under consideration is defendant Powers' motion for summary judgment. For the reasons explained below, this motion must be granted.
This action proceeds on the March 31, 2005, verified complaint in which plaintiff alleged that Dizon and other guards would approach his bunk at night, awaken plaintiff and fling pocket knives in the area of his bed. In particular, he alleges that at around 12:35 a.m., on March 5, 2004, Dizon approached plaintiff's bunk, shone a light in plaintiff's eyes, held a knife over plaintiff's head, shook the bunk and poked plaintiff twice in the buttocks. Plaintiff further alleges that at around 4:30 a.m. on March 5, 2004, he complained about Dizon to Powers. All defendants but Powers moved for summary judgment on February 2, 2007. That motion was granted, but Powers was given an opportunity to file a brief that addressed the summary judgment standards on the claim that pertains to him, i.e. that he failed to protect plaintiff. Dckt. # 65. On April 29, 2008, Powers filed the motion currently before the court.
Powers did not include a statement of facts with his motion. Thus, the court relies on the relevant facts included in the motion for summary judgment filed by the other defendants.*fn1 At all times relevant to this action, plaintiff was a prisoner confined at the California Medical Facility ("CMF"), and housed in Dorm 1 in Unit H-3 with 11 other prisoners. Defs.' Mot. for Summ. J., Exs. filed in Supp. Thereof ("Defs.' Ex."), Ex. A, Incident Report of 3/14/2004; Dizon Decl., ¶ 26. Defendant Powers was a guard employed at CMF.
The defendants' actions in this case arise out of the process for counting prisoners. Relevant here is the "positive count," which consists of "the actual number of inmates that each respective staff member has counted and reported to Central Control." Defs.' Ex. B, CDCR Departmental Operations Manual ("DOM") 520204.3. Prisoners must be counted at least four times each day at times established in the DOM. DOM 52020.4. Thus, positive counts are to be conducted between 12:30 a.m. and 1:00 a.m.; 4:30 a.m. and 5:30 a.m.; 4:00 p.m. and 5:00 p.m.; and 9:00 p.m. and 10:00 p.m. DOM 52020.4.1. During what is known as a "standing count," which is done between 4:00 p.m. and 5:00 p.m., "inmates housed in cells shall stand upright at their cell door and shall remain standing until counted by the officer conducting the count." DOM 52020.4.2. Prisoners "housed in dormitories equipped with double tier bunks, shall remain seated on their assigned bunk until the count is completed by the officer." DOM 52020.4.3. No document specifies when a count is "completed." However, defendants assert that prisoners must remain on their bunks until guards finish counting and the last officer has left the dormitory. Kaplan Decl., ¶ 10; Dizon Decl., ¶ 14. Guards counting prisoners must "ensure that the individual inmate is awake, breathing and responsive." Defs.' Ex. C, California Medical Facility Operational Procedure ("OP") 4, at 4. A prisoner will not be counted if staff is "unable to confirm the inmate being counted is alive and breathing." OP 4, at 4.
The record contains evidence in the form of Dizon's declaration explaining the security precautions taken during a positive count made on first watch. To count prisoners in a dormitory, guards must enter the dormitory. One guard remains in the main hall outside the housing wing. Dizon Decl., ¶ 9. The door leading into the housing wing remains locked, and the "key" officer holds the keys for all the wings, dormitories and cells where prisoners are to be counted. Id. To count the prisoners in a dormitory, the guard stationed in the hallway unlocks the door to the dormitory, two to four guards enter, and the wing officer locks the door after them. Id., ¶ 10. One guard, the "wing officer," counts the prisoners while the other officers, "cover officers," protect him. Id. Since it was dark in the dormitory, Dizon used a flashlight to verify that each prisoner was present and alive, and while it was not his practice to shine the light in a prisoner's eyes, it could have happened on occasion. Id., ¶ 25. Dizon asserts that during counts he does not touch a sleeping prisoner with his hand or any object because startling a sleeping prisoner can lead to a dangerous incident. Dizon Decl., ¶ 24.
Compounding prison officials' concerns for security during a count was a habit of prisoners, at the time of these events in dispute here, of hanging "curtains" on clotheslines around their bunks. Dizon Decl., ¶¶ 15, 16; Rosales Decl., ¶ 13; Swan Decl., ¶ 11. This practice required the wing officer to move whatever was hanging on the line. Dizon Decl., ¶ 15. Thus, Sergeant Powers authorized guards to cut down curtains and clotheslines that hindered the ability to count prisoners. Id., at 17; Rosales Decl., ¶ 14; Swan Decl., ¶ 11. Dizon asserts that he carried what is known as a "cut down tool," which he used for cutting curtains and clotheslines to facilitate the count. Id., at 18. A "cut down tool" has the shape of "a curved version of the number six," and specifically is designed to cut a noose in order to prevent a suicide. Id. The lower part of the tool is an oval-shaped handle of about 3/4 of an inch thick. Id. The top part is curved, about 3/4 of an inch thick with "a razor-like device angled upward toward the center inside curve of the top of the 'six.'" Id. This upper, sharp portion is used for cutting. Id. Dizon denies ever having used anything other than a cut down tool to cut an prisoner's clothesline. Dizon Decl., at ¶ 22. At deposition, plaintiff explained that the instrument was like a box cutting tool. Defs.' Ex. G, Dep. of Plaintiff ("Pl.'s Dep."), at 14.
For the most part, defendant Dizon avoids the use of specific dates in his declaration. He states that about a week before the March 14, 2004, incident, when Dizon cut plaintiff's clothesline on which a sheet was hanging, plaintiff began pulling on the sheet. Dizon Decl., ¶ 23. Dizon tugged back, but ultimately let go in order to avoid a violent incident. Id. That day, plaintiff complained to Sgt. Powers about the what had happened. Id. Dizon denies knowing who plaintiff was before this incident. Id.
On March 4, 2004, during "first watch," guards conducted two positive counts. Kaplan Decl., ¶¶ 5-6. They completed the first count by approximately 1:00 a.m., and the second by approximately 5:00 a.m. Id. In the verified complaint, plaintiff alleges that at around 12:30 a.m., he was awakened by unspecified staff "and Dizon wielding and flinging knives in my bed area, and snatching on the bunk as they cut away my towel line." Compl., at 4. At deposition he retracted this allegation stating that Dizon did not thrust the knife. Pl.'s Dep., at 14. Rather, Dizon "used the cutting knife on string. He cut away a string. He cut away a towel, my towel string." Id. Plaintiff admitted that at this time he did not see the cutting tool. Id., at 17. He just felt the bunk move when the string was cut away. Id. At 4:30 a.m., the same guards returned with the sergeant, defendant Powers. Id. As they approached plaintiff's bunk, Dizon pointed at plaintiff and said, "That's him." Compl., at 5. Powers then took a knife out of his pocket and cut a clothesline from plaintiff's bunkmate's bed with such force as to shake the entire bunk bed. Id.
Defendant Dizon does not specify a date, but does not dispute that at least once during the first week of March 2004, he was working the first positive count of the first watch. Dizon Decl., ¶ 23. He used a "cut down" tool to cut a clothesline on plaintiff's bunk. Id., ¶ 23; Swan Decl., ¶¶ 14-15. Plaintiff had hung a sheet on the line, and the sheet obstructed the view of plaintiff's bunk. Dizon Decl., ¶ 23; Swan Decl., ¶¶ 14-15. While Dizon was cutting the sheet, plaintiff began to pull on it. Dixon Decl., ¶ 23; Swan Decl., ¶¶ 14-15. This continued so that they essentially were in a tug-of-war. Eventually, Dizon let plaintiff have the sheet so as to avoid having the situation escalate. Dixon Decl., ¶ 23; Swan Decl., ¶¶ 14-15. The court construes these facts as pertaining to the first incident on March 4 because this was the only time it appears that Dizon cut a clothesline attached to plaintiff's bunk.
The verified complaint also alleges that on March 5, 2004, at around 12:35 a.m., Dizon and other, unidentified guards returned. Compl., at 5. Plaintiff was awake. Id. His towel was folded and on the floor. Id. He had nothing hanging up, but "Dizon walked up to my head area and shined his high-intensity flash light directly into my eyes." Id. Plaintiff blocked the light with one hand. Dizon shook the bunk with the hand in which he was holding a knife. Id. Dizon then went to the other side of the bunk, shook the bunk with both hands, poked plaintiff in the buttocks and walked away. Id. Plaintiff asserts that the second poke "penetrated the crack and cheeks" of his buttocks. Compl., at 6. At deposition, plaintiff testified that Dizon touched him with some object, which could have been a baton or a flashlight. Pl.'s Dep., at 35.
III. Summary Judgment Standards
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 ...