FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983, alleging that defendants Dangler, Townsend, Sisto and Barnes failed to protect him from gang retaliation. Defendants Sisto and Barnes have filed a motion for summary judgment; defendants Townsend and Dangler have filed a separate motion for summary judgment. For ease of reference, these will be identified by their respective docket numbers in the body of this document.
I. 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).
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 October 15, 2007, 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).
In 2004, plaintiff was convicted of a number of sex offenses involving children and was sentenced to a term of sixteen years in prison. Barnes & Sisto Motion for Summary Judgment (Docket No. 99), Ex. 6. During the times relevant to this action, plaintiff was incarcerated at High Desert State Prison (HDSP). First Amended Complaint (FAC) ¶ 2. In addition, during the times relevant to this action, plaintiff was a member of the Oak Park Bloods. Deposition of Jeffrey Broadway (Broadway Dep.) at 15:21-16:4.
On November 30, 2005, plaintiff covered the window in his cell "because everybody else did it" and he had been told to do so during a meeting of the Bloods. Id. at 23:10-16, 26:17-24. As a result of this incident, plaintiff was given a rules violation report and put in a ninety-day program in a separate Behavior Modification Unit (BMU) in December. Townsend & Dangler Motion For Summary Judgment (Docket No. 67), Ex. 1, Declaration of M. Townsend (Townsend Decl.) ¶ 6; FAC ¶ 17. Inmates in this separate unit did not share yard time with inmates in the general population. Townsend Decl. ¶ 4.
Plaintiff's hearing on the rules violation report was held on December 17, 2005. Broadway Dep. at 23:20-24:2; Docket No. 67-6 at 10 (hearing report). At the hearing, plaintiff said he covered his window because he was told to do so and that those who did not comply would be "disciplined." Broadway Dep. at 25:20-21; Docket No. 67-6 at 10.
Sometime later, a note was pushed under plaintiff's door, saying something like "We know you snitching." Broadway Dep. 48:6-9. Then an inmate nicknamed "Bird" told plaintiff "Bow-Wow [another Blood] said you're snitching, but that ain't my business. I'm going to let them handle it when they get back to the yard." Id. at 29:23-24, 30:6-8. Bird told plaintiff "they read your 115 hearing." Id. at 30:14-15. Plaintiff destroyed the note in accordance with "gang members' protocol." Id. 49:12-18.
A day after this encounter, plaintiff talked to Townsend, who was a counselor for the BMU. Townsend Decl. ¶ 2; Broadway Dep. at 33:23-34:1. Townsend neither confirms nor denies that this conversation occurred. See Townsend Decl. Plaintiff told Townsend he did not want to go back to the yard because he was told he would be "handled." Broadway Dep. at 34:11-14. Plaintiff said he was afraid of all Bloods because he had been labeled a snitch. Opp'n (Docket No. 79) at 13:12-15*fn1 ; Broadway Dep. at 34:11-19 (he told Townsend he didn't want to go back on the yard because "they were going to try to kill me" and "they" meant "any Blood member), 36:14-15 ("I told him because people were labeling me as a snitch and I have no paperwork to prove that I am not."). When Townsend asked for names, plaintiff gave him the nicknames he had: Bird and Bow-Wow. Broadway Dep. at 35:13-14. He was aware that the inmates' names were posted outside their cells in the BMU, but he was too "scared" to verify Bird's name. Id. at 35:21-36:3. Plaintiff also said he received a note, but had destroyed it. Id. at 53:9-12. Townsend told him "that's not enough." Id. at 35:18.
According to Townsend, an inmate's report of a threat must be verified; when Townsend is told of a threat, he asks the inmate for a name in order to verify the threat. Townsend Decl. ¶¶ 11-12. If he recognizes the name or nickname, Townsend will attempt to verify the threat by talking to the named inmate; if he does not recognize the name, he asks for more information. Id. ¶ 14. Additional steps to verify a threat might include "following-up on additional information, and evaluating the credibility of the information and the source." Id. ¶ 15.
Plaintiff submitted a grievance about the alleged leak from his disciplinary hearing. FAC, Ex. D. In this grievance, assigned Log No. 06-303, plaintiff complained he would be "handled" once he returned to general population. Docket. No. 67-6 at 14. The written grievance itself does not identify a source of any threats, but does say that plaintiff's words at the hearing were repeated to "inmates on D-Lower, which is the yard I came from." Id.
Because of this grievance, plaintiff was called back to Townsend's office. Broadway Dep. at 37:21-25. Plaintiff told Townsend he filed the grievance because of his concern for his safety, but that he had nothing further to say to Townsend. Broadway Dep. at 38:16-17, 39:12-15.
While he was in Townsend's office, plaintiff talked to defendant Dangler, the Appeals Coordinator, on the phone. Id. at 39:21-22; Docket No. 67-5 at 6-7, Declaration of M. Dangler (Dangler Decl.) ¶ 1. Dangler asked him about grievance 05--3794, which plaintiff submitted after a correctional officer had called him a child molester in the hearing of other inmates. Dangler Decl. ¶ 3; Docket No. 67-6 at 2-8; Broadway Dep. at 40:11-13. Plaintiff told Dangler he wasn't "worried about that 602" and that he wanted to discuss his other grievance, because he had been labeled a snitch and would not feel comfortable on any yard. Id. at 40:13-19, 42:4-6; Dangler Decl. ¶ 7.
According to plaintiff, Dangler said "he didn't care." Broadway Dep. at 40:19. Dangler says plaintiff "refused to or was unable to provide any inmate names or identification to support his safety concerns." Dangler Decl. ¶ 8; Docket No. 79 at 14 ¶ 12. Plaintiff avers that his refusal to provide any names was because "he was scared." Docket No. 79 at 15 ¶ 12 (continued from page 14). Dangler knows of inmates who have falsified safety concerns in an attempt to get a transfer. Dangler Decl. ¶ 9. Accordingly, threats must be verified and once verified, measures will be taken to insure an inmate's safety. Id. ¶¶ 10-11.
Plaintiff pursued grievance 06-303 and received a denial at the second level, which bore the typed name and title "D.K. Sisto, Chief Deputy Warden," but the signature above this line is "R Harris AW." Docket No. 99, Exs. 1 (Declaration of D. Sisto (Sisto Decl.) ¶ 3) & 10; FAC, Ex. F. Defendant Sisto avers he was not involved in grievance 06-303 and was not aware of plaintiff's safety concerns. Sisto Decl. ¶ 4. Plaintiff concedes he never talked to Sisto about his fear ...