The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with this civil rights action. On August 24, 2009, plaintiff moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. On September 22, 2009, defendant Stiles filed a cross-motion for summary judgment alleging plaintiff's claims are barred by collateral estoppel or, in the alternative, plaintiff has failed to demonstrate defendant Stiles was deliberately indifferent to any "enemy" concerns about plaintiff's cellmate. For the reasons set forth below, the undersigned recommends that defendant's motion be granted and this action be dismissed.
Defendant contends this action is barred by collateral estoppel because plaintiff filed suit against Stiles in state court and the state court sustained Stiles' demurrer without leave to amend, and dismissed the lawsuit with prejudice. Plaintiff failed to address this issue. (Dkt. No. 36, passim.)
Defendants have provided copies of documents from the Solano County Superior Court.*fn1 On June 5, 2007, plaintiff filed a complaint for damages against defendant Stiles, et al., in the Solano County Superior Court. (Dkt. No. 34-1 at 9.) Plaintiff's complaint was entitled "Bivens Complaints, Civil lawsuit Complaint Against General Negligence, Intentional Tort, Intentional Infliction of Emotional Distress, Professional Negligence." In the text of his complaint, however, plaintiff alleged, inter alia, a violation of the Eighth Amendment based on defendant's alleged failure to protect plaintiff from a substantial risk of serious harm. (Id.) Plaintiff then filed an amended complaint in which he alleged defendant Stiles was liable under a theory of supervisory liability. (Id. at 23.) On March 2, 2009, defendant Stiles and other defendants filed a demurrer to the complaint. (Id. at 28-44.) Defendants argued, inter alia, that plaintiff's federal civil rights claim under 42 U.S.C. § 1983 was deficient because defendant Stiles could not be held vicariously liable for plaintiff's injuries. (Dkt. No. 34-1 at 32-33.) Plaintiff did not oppose the demurrer. (Id. at 40.) On July 23, 2009, Solano County Superior Court Judge Scott L. Kays issued an order sustaining the demurrer, without leave to amend, for failure to state a cause of action. (Id. at 40-41.)
Collateral estoppel, alternatively known as issue preclusion, prevents relitigation of "all issues of fact or law that were actually litigated and necessarily decided in a prior proceeding against the party who seeks to relitigate the issues." Hawkins v. Risley, 984 F.2d 321, 325 (9th Cir. 1993) (internal citation omitted). Federal courts generally give preclusive effect to issues decided by state courts. Allen v. McCurry, 449 U.S. 91, 95-96 (1980). As explained by the Supreme Court, such preclusive effect derives from the common law, policies supporting collateral estoppel, and 28 U.S.C. § 1738 which provides that the "judicial proceedings [of any State] . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State. . . ." Id.
Although plaintiff raised his § 1983 claim in the body of his state court complaint, it is not clear that the state court considered it. Judge Kays' order only addressed state law claims, relying on state statutes and cases, and did not specifically address plaintiff's constitutional claim. (Dkt. No. 34-1 at 41.) Thus, this court is unable to find that the instant action is definitively barred by collateral estoppel, because it is not clear that the state court judge necessarily decided plaintiff's constitutional claim. The court turns now to the substantive merits of the cross-motions.
Plaintiff alleges that on November 12, 2006, plaintiff was attacked by his cellmate who threw hot boiling water from his hot-pot primarily on to plaintiff's upper torso, but also some on his face and neck. (Compl. at 3.) Plaintiff alleges he suffered second degree burns. Plaintiff also alleges that prior to the November 12 incident, he wrote letters to a law firm and to defendant Stiles, explaining "the problem he was having with [his] safety and well being, as well as numerous other problems [he] was having." (Id.) Plaintiff also alleges defendant Stiles "acknowledge[d] [his] situation with a letter of memorandum response [he] received on August 10, 2006, three months before this incident occurred." (Compl. at 4.) Plaintiff alleges defendant Stiles failed to protect plaintiff and subjected plaintiff to cruel and unusual punishment. (Id.)
Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and that the movant is entitled to 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). "[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. at 323. 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.
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 exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a 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 ...