The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff is a state prisoner who is currently incarcerated at the Kern Valley State Prison in Delano, California. He proceeds pro se and in forma pauperis ("IFP") in this 42 U.S.C. § 1983 civil rights action. Plaintiff alleges that the two remaining defendants in this case, correctional officers Sweeten and Barron, violated plaintiff's First Amendment rights by soliciting inmates at the High Desert State Prison ("HDSP") to harm plaintiff in retaliation for his litigation and grievance activity, and violated plaintiff's Eighth Amendment rights by housing him in the same cell as gang-affiliated inmates, as well as soliciting several of plaintiff's cellmates to physically harm him.*fn1 (See Docket 195 at 3.) Now pending before the Court are defendants' motion to dismiss on the grounds that plaintiff does not qualify for IFP status, and motion for summary judgment. (See Dkts. 230 and 232.) Plaintiff has filed opposition to defendants' motions, and defendants have filed a reply to plaintiff's opposition. (See Dkts. 234, 235, and 239.) For the reasons set forth below, the Court recommends DENYING defendants' motion to dismiss on IFP status, GRANTING defendants' motion for summary judgment on the merits, and DISMISSING this case with prejudice.
Plaintiff commenced this action in the U.S. District Court for the Northern District of California in 2002, but the case was transferred to this Court on April 2, 2004. (See Dkt. 1.) By Order dated November 19, 2004, this Court dismissed plaintiff's initial complaint because plaintiff admitted that he had, on three or more prior occasions, brought an action in a court of the United States that had been dismissed as frivolous, malicious, or failed to state a claim upon which relief could be granted. (See Dkt. 9.) In other words, plaintiff admitted that he had "struck out" within the meaning of the "three strikes" provision of the Prisoner Litigation Reform Act ("PLRA"). See 28 U.S.C. § 1915(g). The Court, however, also noted that several claims in plaintiff's complaint appeared to allege "imminent danger of serious physical injury," which could trigger an exception to the "three strikes" provision that would allow plaintiff to proceed IFP notwithstanding the fact that he had previously "struck out." See id. The Court gave plaintiff leave to amend his complaint, and deferred resolution of plaintiff's request to proceed IFP until an amended complaint was filed. (See Dkt. 9.)
Plaintiff filed his first amended complaint on December 13, 2004. (See Dkt. 14.) Because the Court found that portions of the first amended complaint satisfied the "imminent danger" exception to the PLRA's "three strikes" provision, and also stated a cognizable claim for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A, the Court granted plaintiff leave to proceed IFP in this action. (See Dkt. 21 at 1-2.) The Court then ordered service of the first amended complaint on three named defendants, members of the HDSP medical staff who plaintiff alleged violated his Eighth Amendment rights. (See id. at 2.) Although the Court subsequently granted the motions of those three defendants for summary judgment, the Court also gave plaintiff leave to file a second amended complaint because "it appears that Plaintiff may plead sufficient facts upon which relief may be granted against defendants Sweeten and Barron." (Dkt. 182 at 3; see Dkt. 152.)
Plaintiff filed his second amended complaint on April 3, 2008. (See Dkt. 187.) Due to plaintiff's persistent disregard of the Court's admonishments regarding plaintiff's excessive filings, however, the Court dismissed the complaint on September 5, 2008. (See Dkts. 192 and 194.) Plaintiff was granted leave to file a third amended complaint that complied with the twenty-five page limit, as well as other requirements set forth by the Court. (See Dkt. 194.) On September 22, 2008, plaintiff filed his third amended complaint alleging violations of his constitutional rights under the First and Eighth Amendments by defendants Sweeten and Barron. (See Dkt. 195.)
By Order dated February 3, 2009, the Court found that the complaint stated cognizable claims for relief, and ordered service on both defendants. (See Dkts. 196 and 198.) Defendants filed an answer denying plaintiff's claims on May 18, 2009. (See Dkt. 201.) As mentioned above, currently before this Court are defendants' motion to dismiss this action on the grounds that plaintiff does not qualify for IFP status, and defendants' motion for summary judgment on the merits. (See Dkts. 230 and 232.)
B. Contentions of the Parties
This case proceeds on plaintiff's Third Amended Complaint, which sets forth claims arising from incidents plaintiff alleges took place in 2003 and 2004 during his incarceration at HDSP. (See Dkt. 195 at 3.) Although plaintiff does not specifically state which constitutional rights were violated, plaintiff's claims appear to arise from the First and Eighth Amendments to the U.S. Constitution. Specifically, plaintiff claims that defendants (1) violated his First Amendment rights by soliciting other inmates to physically assault him or steal from him in retaliation for plaintiff's litigation and grievance activity against correctional and medical staff at HDSP, (2) violated his Eighth Amendment rights by housing plaintiff in a cell with gang-affiliated inmates, thereby disregarding an excessive risk to plaintiff's health and safety; and (3) violated his Eighth Amendment rights by soliciting inmates to physically harm him, because he alleges one inmate assaulted him at defendants' urging. (See id.; Dkt. 234 at 2-3.)
Defendants contend that plaintiff is a vexatious litigant whose IFP status should be revoked pursuant to 28 U.S.C. § 1915(g), and that this case should therefore be dismissed. (See Dkt. 230.) Alternatively, defendants assert that they are entitled to summary judgment on the claims set forth in plaintiff's Third Amended Complaint because plaintiff has not established a genuine issue of material fact for trial, and in any event, they are entitled to qualified immunity. (See Dkts. 232 and 239.)
The following facts, which were primarily set forth by properly signed declarations provided by defendants, remain uncontroverted by plaintiff.
In 2003 and 2004, plaintiff was housed in HDSP Facility B, Building 1, where defendants worked as correctional floor officers and were responsible for supervising inmate activities, assisting with determining inmate housing assignments, and ensuring the safety and security of inmates, officers, and staff within the building. (See Dkt. 232, Sweeten Declaration; Barron Decl.) Correctional staff at HDSP completed an initial housing review form for plaintiff on June 5, 2001, which indicated that plaintiff had a "Gang/Disruptive Group Affiliation" with the Crips at that time.*fn2 (See id., Ex. B; Barron Decl.; Vervoort Decl.)
Custody staff at HDSP attempt to house compatible inmates with each other, which frequently includes housing inmates affiliated with the same gang in a cell together if possible, as well as housing non-affiliated inmates in a cell together. (See id., Sweeten Decl.; Barron Decl.) Sometimes institutional need, such as lack of available bed space, may require gang-affiliated inmates to be housed with non-affiliated inmates. (See id.) When an inmate requests a cell move due to lack of compatibility with a cellmate, custody staff completes the cell move once bed space becomes available. (See id.) Upon receipt of an inmate's request for a new cellmate, custody staff will first ask the inmates to find other compatible cellmates within the building. (See id.) If an inmate does not identify a compatible cellmate, custody staff will attempt to identify one and complete the cell move as soon as possible. (See id.)
While plaintiff lived at HDSP, plaintiff shared his cell without incident with several Crip-affiliated inmates, including Alton Allen, Anthony Goodman, and Eugene Jones, as well as several unaffiliated inmates, including Antoine Thompson and Isaiah Williams. (See Dkt. 232, Defendant's Statement of Undisputed Facts ("DSUF") at 3-4; Dkt. 233, Ellington Dep. at 71-72, 82-91.) He was also on friendly terms with several Crip-affiliated inmates living in the building, including Phillip Joseph and Charles Norwood. (See Dkt. 232, DSUF at 3; Dkt. 233, Ellington Dep. at 73-78.) Although plaintiff or his current cellmate at HDSP requested a cell move due to incompatibility on several occasions, on every occasion the cell move was completed before any kind of physical altercation or disturbance took place. (See Dkt. 232, DSUF at 4.) For example, when plaintiff requested a cell move from Crip-affiliated inmate Jones based upon incompatibility, correctional staff completed the move within two weeks, even though plaintiff and Jones failed to identify any potentially compatible cellmates for correctional staff. (See id., Ex. E; Sweeten Decl; Dkt. 233, Ellington Dep. at 87-89.)
The only inmate at HDSP with whom plaintiff had a physical altercation in 2003 or 2004 was Savon Dennis, a Crip-affiliated inmate.*fn3 (See Dkt. 232, Ex. C; Dkt. 233, Ellington Dep. at 91.) Specifically, when defendant Sweeten inspected plaintiff's cell on August 9, 2003, he found that plaintiff and Dennis had both sustained physical injuries, and concluded they had engaged in a physical altercation.*fn4 (See Dkt. 232, Sweeten Decl.; id., Ex. C.)
Plaintiff had blood on his pants and bottom lip, and Dennis had sustained small cuts on his left finger and left thumb. (See id.) Because Sweeten reported that he could not identify the aggressor, both inmates were issued a rules violation report for engaging in mutual combat. (See id., Exs. C and F.) Immediately following plaintiff's altercation with Dennis, correctional staff moved Dennis out of plaintiff's cell. (See id., Sweeten Decl.; Ellington Dep. at 100.) Plaintiff does not allege that he had requested a cell move prior to this incident.
The parties disagree regarding whether defendants asked or encouraged several Crip-affiliated inmates, including Goodman, Jones, and Dennis, to physically assault, harm, or steal from plaintiff, whether in retaliation for plaintiff's litigation and grievance history or for any other reason. (See Dkt. 195; Dkt. 232, DSUF at 1-4; Dkt. 233, Ellington Dep.) As discussed in more detail below, plaintiff's evidence to support his contention that defendants solicited inmates at HDSP to harm him consists of two unsigned and unsworn declarations purportedly dictated by inmates Goodman and Jones.*fn5 (See Dkt. 195, Ex. A and B.) Specifically, Goodman's declaration states that when he requested a cell transfer from plaintiff in 2003, Sweeten replied, "Why don't you do us a favor and go in there and beat the shit out of Ellington we've got that ass on video tape in the Central Treatment Center (CTC) dancing." (Id., Ex. A.) Similarly, Jones' declaration provides that when he asked Sweeten about a cell move in 2004, Sweeten responded, "Upon the cell move being submitted BEAT HIS ASS (Ellington). We don't give a damn about him. Then we'll move you." (Id., Ex. B.) Jones' declaration also states that Barron told him, "'You know what you've got to do to get a cell move.' Which [Jones] perceived as an invite to fight Ellington." (Id.) Although plaintiff also claims that at the time of the incident with Dennis, "[h]e told me that Sweeten had told him to slug me in the mouth... because I was a -- a pedophile," plaintiff has failed to provide any evidence (such as a declaration from Dennis, or any other inmate at HDSP) to support his assertion that Dennis assaulted plaintiff at defendants' behest. (Dkt. 233, Ellington Dep. at 91-92.)
Furthermore, in this action the parties dispute whether defendants possessed any knowledge of plaintiff's commitment offense, litigation or administrative grievance history (aside from one grievance plaintiff filed in 2004 requesting a cell move from Jones), or gang affiliation status. They also dispute whether housing plaintiff in the same cell as Crip-affiliated inmates at HDSP presented a substantial risk of harm to plaintiff of which ...