The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding with appointed counsel, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment, filed on December 7, 2009 (Docket # 69), to which plaintiff filed an opposition, including a response to defendants' statement of undisputed material facts and a supporting declaration, on December 23, 2009 (Docket # 73, #74 and # 75), after which defendants filed their reply on December 31, 2009 (Docket # 76), along with objections and a motion to strike evidence. Plaintiff filed his response to defendants' objections and motion to strike, on January 6, 2010 (Docket # 77), along with another declaration (Docket # 78), one day before this matter came on for hearing before the undersigned, on January 7, 2010. At the hearing Brendan McShane and Laura Vartain Horn of Latham and Watkins appeared for plaintiff, while defendants were represented by John Whitefleet from Porter Scott.*fn1 With respect to objections raised by defendants to plaintiff's evidence in support of their opposition to defendants' undisputed material facts,*fn2 the court will affirm at the outset, as originally expressed at the hearing,*fn3 that a Ninth Circuit panel, going seemingly afield from prior rulings regarding the significance of authentication of exhibits for summary judgment purposes, basically disavowed that stance. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) ("[a]t the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents."*fn4 ) Thus, the court is not overly concerned with a question of the authentication of exhibits at this stage, unless as the undersigned stated, it involves "the case breakers." Docket # 80, p. 6.
Second Amended Complaint (Verified and Constitutes a Declaration By Plaintiff)*fn5
The complaint in this case was originally filed on July 12, 2007, but now proceeds on a second amended complaint, filed on May 14, 2009. The parties subsequently stipulated to the dismissal without prejudice of the Sutter County Board of Supervisors as a defendant (Docket # 65), and the court, by Order filed on July 7, 2009 (Docket # 66) directed the Clerk of the Court to note the voluntary dismissal in the case docket.
In the second amended complaint for damages and equitable relief, plaintiff now proceeds against defendants County of Sutter, Sheriff Jim Denney, Officer Willy Mitchell and Officer J. Rouna. The County of Sutter and Sheriff Denney are each sued only in an official capacity. Second Amended Complaint (SAC), ¶¶ 7, 9. Officers Mitchell and Rouna are each sued in both their official and individual capacities. SAC, ¶¶ 10-11. Plaintiff alleges that while he was a pretrial detainee at the Sutter County Jail, he was attacked, on November 26, 2005, by a group of six classified violent gang members, directly resulting from the actions and omissions of the defendants. SAC, ¶ 1.
Plaintiff alleges that he was housed in a protective custody unit reserved for pretrial or convicted sex offenders, but was taken from the unit for recreational (rec) yard time outside by defendant Sutter County Jail Correction Officer (C/O) Willy Mitchell along with the six classified gang members separately housed in a cell unit reserved for inmates "prone to assault." SAC, ¶¶1, 12. Plaintiff at the time did not know these inmates were classified gang members or whether he was supposed to have contact with them or not. Id., ¶ 12.
Specifically, plaintiff alleges that defendant Mitchell came in the late morning and asked plaintiff if he wanted to go outside for rec yard time, at which point plaintiff told that he did and stepped out of his cell unit. Id., at ¶ 13-14. Plaintiff noticed as he stepped out some seven to ten feet in front of him that there were six inmates with shaved heads, apparently of white or Hispanic ethnicity. Id., at ¶ 14. As this was plaintiff's first time at Sutter County (SC) Jail, plaintiff did not know the protocol for associating with the other inmates, but was led to believe that C/O Mitchell with sound judgment knew the procedures involved with his duties and post orders. Id. Plaintiff depended on defendant Mitchell and believed he would not jeopardize his life or subject plaintiff to a high danger risk, especially in light of plaintiff's having been segregated from other inmates purposely as a convicted sex offender. Id.
Once plaintiff was outside his protective custody cell unit, defendant Mitchell called over the radio to inform correctional officers operating the SC Jail's main control room responsible for monitoring all inmate movements in the facility which units he planned to escort to the rec area (or SCU yard). Id., ¶ 15. Plaintiff was directed by defendant Mitchell to stand in line with the six other inmates waiting in the hall outside his cell unit. Id.
In addition to being responsible for monitoring inmate movements in the jail, the main control room C/O's were to maintain video surveillance of security areas inside and outside the facility. Id., ¶ 16. Plaintiff, on information and belief, alleges that defendants knew or should have known that he, as a protective custody inmate, should not have been escorted or left alone in an unsupervised, enclosed rec area with six other inmates housed in the "Max 4" unit, a housing unit "'for those inmates who are prone to assault.'" Id. Plaintiff believes that defendants were, or should have been, aware after defendant Mitchell communicated his intention to take plaintiff with the six other inmates to the SCU yard to be left alone without the presence of officers that plaintiff was at substantial risk of physical harm, but they nevertheless acted with deliberate indifference to his safety and a substantial likelihood of injury to plaintiff, permitting, acting in concert or failing to prevent defendant Mitchell from locking plaintiff in the SCU yard with the classified violent gang members "in clear violation of Sutter County Jail policy." Id.
After defendant Mitchell secured the SCU yard door, leaving plaintiff with the other six inmates, he walked off nonchalantly. Id., ¶ 17. Shortly afterward, one of the six inmates began to ask plaintiff questions, repeatedly asking why plaintiff was in jail and whether he was a gang member. Id. Plaintiff told him he was not affiliated with a gang and that he was being detained for second degree robbery; when the inmate asked if that was "all he was there for," plaintiff fabricated other burglary-related charges to dissuade him from further inquiry. Id. Plaintiff thought he was successful in doing so because the inmate walked away to rejoin the others, wishing plaintiff luck in court; plaintiff could not hear what they said but observed the inmates in animated conversation. Id.
When most of the inmates began hitting a handball around the yard, plaintiff, less worried, stopped paying attention to them; however, the inmate who originally confronted plaintiff (according to a written incident witness report by C/O Rouna) came back and punched him in the head while plaintiff was not paying attention. Id., ¶ 18. As if at a planned signal or cue, the other inmates then rushed over and joined in the attack on plaintiff. Id. Plaintiff lost consciousness at some point and when he regained consciousness, he was still on the ground being kicked and hit by the other inmates in the yard. Id.
At some point while he was being attacked, plaintiff looked up to see that defendant Rouna was watching the assault through a large observation window. Id., ¶ 19. Although plaintiff thought defendant Rouna would intervene or in some way come out and stop the attack, instead he simply appeared to watch the entire beating. Id.
In his subsequent written incident report, defendant Rouna indicates having witnessed the whole attack on plaintiff but does not mention any effort on Rouna's part to intervene or prevent the attack, resulting in the attack being prolonged and in greater bodily injury to plaintiff. Id., ¶ 20. While being beaten, plaintiff heard derogatory remarks made about African-Americans and sex offenders. When toward the end of the attack, plaintiff cried out "why are you doing this to me," he recalls one inmate saying, "that's what you get you fucking rapist." Id. When defendant Mitchell eventually returned, this time with another officer, he told the inmates "alright he's had enough," at which point the inmates began to back away from plaintiff. Id., p 21.
On information and belief, plaintiff alleges that when an inmate is being assaulted at SC Jail, the procedure for those officers made aware of the incident by radio communication is to respond immediately to the scene; plaintiff has never seen an instance when even a one-on-one fight involving two inmates did not require the presence on the scene of eight or ten officers. Id., ¶ 22. Thus, plaintiff was surprised when only two officers showed up while he was being beaten by several inmates over an extended period, particularly since main control room officers are required to observe by video security areas and to visually supervise inmate movement. Id. The other officer with defendant Mitchell was very small and elderly, weighing no more than 100 pounds. Id.
Plaintiff found it suspicious that neither of the officers placed handcuffs on the assailants, something plaintiff knows to be a strict mandatory procedure; not handcuffing the assailants unnecessarily exposed plaintiff to further risk. Id., ¶ 23. These officers, including defendants Mitchell and Rouna disregarded SC Jail policy and their obligation to protect plaintiff; defendant Mitchell even told plaintiff it was nobody's fault but his own that he was attacked. Id., ¶ 24.
Plaintiff asked SC Jail staff if they could put away the video tape of the incident for future prosecution evidence against the inmates, but was told once that the tape was mixed up and lost, and another time that there was no tape because the camera was not on at the time of the assault. Id., ¶ 25. The video camera was pointed in exactly the area of the beating and was ten feet from where it happened. Id.
A Yuba City Sheriff's Department officer came to the SC jail to investigate the crime because plaintiff had expressed his intent to press charges against the six inmates; a correctional officer alerted the sheriff's deputy that there were no written reports of the incident as though no crime had ever occurred. Id. ¶ 26. The deputy directed SC Jail personnel to prepare written incident reports and immediately deliver them to his department. Id. Although plaintiff was in custody of SC Jail when he received a subpoena to appear in superior court for preliminary testimony against the inmates, SC Jail personnel never transported him so that he could testify.
Following the attack, Sutter County doctors and nurses determined that plaintiff needed to be taken to Rideout Memorial Hospital to treat his injuries. Id. p 27. Plaintiff suffered permanent physical and emotional injuries from the attack, which he continues to suffer. Id.
Plaintiff alleges violations of his rights under the Eighth and Fourteenth Amendment resulting in serious physical and emotional injury as a result of defendants' deliberate indifference to plaintiff's safety and their failure to protect him. Id., ¶¶ 29-31. Plaintiff claims that defendants Mitchell and Rouna acted in conflict with SC Jail policy and their duties and were deliberately indifferent to plaintiff's safety and knew of a significant likelihood of harm by their actions and omissions. Id. ¶ 29. Defendants County of Sutter and Sheriff Denney failed to adequately train the defendant officers and the SC Jail staff and otherwise failed to create, implement and enforce policies, measures or directives to segregate and prevent attacks against protective custody inmates and to implement or enforce such policies to immediately stop an attack on inmates once it has begun. Id. p 30.
Plaintiff seeks injunctive relief and money damages, as well as costs and attorney's fees.
Motion for Summary Judgment
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, supra, 477 U.S. at 323, 106 S.Ct. at 2553 (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, 106 S.Ct. at 2552. "[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, 106 S.Ct. at 2553.
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, 106 S.Ct. 1348, 1356 (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, 106 S.Ct. at 1356 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, 106 S.Ct. 2505, 2510 (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, 106 S.Ct. at 1356 (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, 106 S.Ct. at 1356. 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, 106 S.Ct. at 1356 (citation omitted).
On October 24, 2007 (Docket # 11), the court advised plaintiff (pro se) 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, 411-12 (9th Cir. 1988). Thereafter, pro bono counsel was appointed for plaintiff. See Order, filed on June 9, 2008 (Docket # 22). Current counsel for plaintiff, also of Latham & Watkins, LLP, were substituted in by Order, filed on August 19, 2008 (Docket # 28), with an additional attorney filing a notice of appearance on plaintiff's behalf, on September 24, 2008 (Docket # 33).
Lest the adjudication of this motion gets lost amidst a welter of allegations and counter-allegations concerning the regulations which governed inmate classification and procedures, it is important to set forth the three themes of plaintiff's case. The first theme concerns the County's alleged policy of mixing all inmates in so-called protective custody on the recreation yard regardless of whether those inmates would mix well in any setting. The second theme focuses on the individual defendants, and asserts that regardless of any policy about inmate mixing, a reasonable jail officer would know that allowing sex offenders to mix with documented gang members posed unacceptable risks of injury. The third theme, distinct from the first two themes, is that the two individual defendants purposefully set up plaintiff to be beaten, or at least, with knowledge that plaintiff would be beaten if events took their course, and they callously allowed it to happen.
The third theme is distinct somewhat from the first two on a causation basis. That is, if the officers (Mitchell and Ruona) purposefully set up plaintiff for a beating, the bona fides of the policy referenced in the first two themes become irrelevant because the policy did not cause the set-up. While the policy may have facilitated the set-up, the overriding cause of the beating stemmed from the alleged purposeful desire of the two officers to cause plaintiff harm. The alleged set-up can only be seen as the ultra vires acts of two individuals. There are no facts which suggest that the County had a policy of purposefully setting up its jail inmates for non-judicial punishment, or placing an inmate in a situation where that was likely to happen.
The fact that theme three is inconsistent in a sense with the first two themes is of no import in this summary judgment motion. Plaintiff does not have to choose at this juncture the themes he will present before the jury; indeed, plaintiff may present differing scenarios before that trier of fact.
Applicable Legal Standard
As plaintiff was a pretrial detainee, and not a convicted prisoner, at the time of the incident, the applicable standard is by way of the due process clause of the Fourteenth Amendment rather than the Eighth Amendment:
Due process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be "cruel and unusual" under the Eighth Amendment.
Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1873 n. 16 (1979); Frost v. Agnos, 152 F.3d 1124, 1128 ("[c]laims by pretrial detainees are analyzed under the Fourteenth Amendment Due Process Clause, rather than under the Eighth Amendment"). Nevertheless, as the rights of pretrial detainees under the Fourteenth Amendment "are comparable" to prisoners' Eighth Amendment rights, the same standards are applied. Frost, supra, at 1128, citing Redman v. County of San Diego, 942 F.2d 1435, 1441 (9th Cir.1991).*fn6
This is not a case involving the application of force to quell a disturbance in which case a cruel and sadistic standard would apply. Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324 (1991). Rather, the issue here is one of failure to protect (whether purposeful or otherwise) which would be governed by Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994) Deliberate indifference is the appropriate standard to be applied here.
A prison official's deliberate indifference to a substantial risk of harm to an inmate violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. at 828, 114 S.Ct. at 1974. To succeed on a claim of deliberate indifference to the threat of serious harm or injury by another prisoner, plaintiff must demonstrate that the deprivation of his rights was "objectively, sufficiently serious." Id. at 834, 114 S.Ct. at 1977. When the claim is predicated upon the failure to protect, the deprivation is deemed to be sufficiently serious if there was a substantial risk that the prisoner would suffer serious harm. Id. The prisoner must also demonstrate that the defendant had a "sufficiently culpable state of mind." Id. The prisoner must demonstrate that the defendant knew of and disregarded an excessive risk to his safety: "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. at 837, 114 S.Ct. at 1979.
Similarly, any alleged entity policy asserted to have caused harm must rise to the level of deliberate indifference.
The following of defendants' undisputed material facts are expressly admitted by plaintiff or is a fact that the record reveals is not subject to dispute. The Sutter County Jail Manual generally provides the policies and practices employed at the jail and "addresses the functions and management of the Sutter County Jail.["] At the time of the event, defendant Sheriff Jim Denney was the primary executive and policy-maker of the Sutter County Sheriff's Office, overseeing all policies, procedures, hiring, and firing. In addition, the Sutter County Jail (SC Jail) policies and procedures in effect on November 26, 2005, were approved by the Board of Corrections. The SC Jail Manual, in electronic form or in hard copy, is distributed throughout the jail down through the chain of command, made available to correctional officers and placed in specific areas of the jail for availability. Max-4, Max-5 and Max-6 tanks are protective custody special housing units. Prior to the incident of November 26, 2005, the practice at the jail was to allow the protective custody tanks -- Max-4, Max-5, and Max-6 -- to take part in Single- Cell Unit (SCU) recreational yard time simultaneously.*fn7
Plaintiff was transported to and booked into SC Jail on November 11, 2005. Plaintiff was designated as a sex offender, classified as requiring protective custody, and placed in special housing in the Max-5 protective custody tank. Defendant Denney did not personally take part in the classification, housing assignment, inmate transportation, or direct supervision of plaintiff during the duration of his incarceration at Sutter County Jail.
Plaintiff proceeded out to the yard with six or seven other inmates from another tank. At the time, plaintiff had never previously spoken to any of the inmates and did not know they were Sureños. While in the yard, one inmate approached plaintiff. He asked plaintiff why he was in jail, and plaintiff said burglary and second-degree robbery, but mentioned nothing of his prior sexual offense. The other inmate asked if plaintiff was in a gang, to which plaintiff said no, but the inmate did not identify himself as a Sureño. After the conversation, the inmate walked away. Shortly thereafter, several of the other inmates commenced to physically assault plaintiff. At 3:37 p.m., defendant C/O Ruona transported plaintiff to Rideout Medical Center to obtain further medical care.
Defendants Denney and County of Sutter -- the Monell Policy Claim
Defendants argue that plaintiff's allegations against defendant Sheriff Denney in his official capacity are redundant to the official capacity claims against defendant County of Sutter, and defendant Denney should be granted summary judgment (or adjudication). Defendants rely on Kentucky v. Graham, 473 U.S. 159, 165-166, 105 S.Ct. 3099 (1985)("[o]fficial capacity suits [under § 1983]...'generally represent only another way of pleading an action against an entity of which an officer is an agent'"(quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55 (1978)); see also, Brandon v. Holt, 469 U.S. 464, 472, 105 S.Ct. 873, 878 (1985) (actions of department head in his official capacity equates with actions of municipality itself); Cortez v. County of Los Angeles, 294 F.3d 1186, 1189 (9th Cir. 2002)*fn8 (county subject to § 1983 liability for sheriff's actions pursuant to his role as county jail administrator); Streit v. County of Los Angeles, 236 F.3d 552, 561 (9th Cir.2001)) (sheriff acts on behalf of county in "the oversight and management of the local jail"). As defendants further contend, plaintiff does not dispute that defendant Denney is sued solely in his official capacity (Docket # 76, reply, p. 13, note 5), the court finds the motion for summary judgment should be granted as to defendant Denney.
As to defendant County of Sutter,
Section 1983 provides a method by which individuals can sue for violations of their federal rights. One of the requisite elements for stating a claim under § 1983 is that the violation was committed by a "person" acting under color of state law. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). A municipality or other local government entity is deemed such a "person" and may be sued for constitutional torts committed by its officials according to an ...