FINDINGS & RECOMMENDATIONS
Plaintiff is a former California prisoner proceeding with counsel with an action for violation of civil rights under 42 U.S.C. § 1983. Defendant Evans (defendant) is a former employee of the California Department of Corrections and Rehabilitation (CDCR), who worked as Associate Warden at High Desert State Prison. Defendant's motion for summary judgment is before the court.*fn1
I. Summary Judgment Standard
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), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F. 2d 1564, 1575 (9th Cir. 1990).
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).
II. Plaintiff's Allegations
In his first cause of action, plaintiff alleges defendant violated plaintiff's Eighth Amendment rights by failing to protect plaintiff from attack by other inmates. While defendant seeks summary judgment with respect to all claims in plaintiff's third amended complaint, plaintiff does not oppose summary judgment being entered with respect to any claim other than his first cause of action. Opp'n at 1.*fn2
Plaintiff makes the following factual allegations in his June 1, 2006 third amended complaint, which is not verified, in support of his first cause of action against defendant. At all times relevant, plaintiff was incarcerated at High Desert State Prison. On February 15, 2002, a riot occurred between African-American and white inmates on the exercise yard of the facility where plaintiff was housed at the time, B-Facility. A large number of prisoners were injured, most of them white. More than 100 inmates participated in the riot. Following the riot, the facility where the riot occurred was placed on lockdown. Plaintiff, who is white, did not participate in the riot. The fact that plaintiff did not participate in the riot made him a "marked man" by other whites, including members of the white gang known as the "Aryan Brotherhood" (AB), and defendant was aware of this. On April 10, 2002, another riot occurred on the B-Facility exercise yard. Again, plaintiff did not participate.
About six weeks later, on May 31, 2002, an inmate named McCormick, who was a member of a white supremacist gang associated with the AB, was found in possession of a "hit list" on which plaintiff's name appeared. The list also contained names of other inmates who were on the B-Facility exercise yard on April 10, 2002 when the riot occurred, but did not participate. When the threat became known to correctional staff, McCormick was placed in Administrative Segregation (Ad Seg). Plaintiff also was placed in Ad Seg for his own safety.
On June 20, 2002, plaintiff appeared before an Institution Classification Committee (ICC) consisting of defendant and Correctional Officers Briddle, Baughman*fn3 and Nolan for a determination of where plaintiff should be housed. At the hearing, plaintiff had to correct defendant's initial understanding that plaintiff had participated in the April 10 riot, when he had been cleared of that charge. The officers were aware of inmate McCormick's "hit list." Despite this, Officer Briddle said plaintiff would be assigned to exercise on Ad Seg Closed Compatible Yard Four, which was the same yard where inmates who were found to have participated in the February 15, 2002 riot exercised. Although Officer Baughman questioned the wisdom of this decision, the committee confirmed it.
On June 22, 2002, plaintiff was taken to Closed Compatible Yard Four for exercise. When he arrived, he saw twenty-five white inmates, all of whom had been participants in the April 10th riot on B-yard. Plaintiff was attacked and knocked unconscious by some of those inmates. His cellmate, Michael Holtsinger, was attacked as well. Plaintiff suffered severe acute injuries as a result of the attack, and suffers permanent injury as well.
On June 27, 2002, plaintiff reappeared before the ICC, consisting of the same four officers, including defendant. One officer apologized to plaintiff saying they had made a "big mistake," while defendant nodded in agreement.
Plaintiff alleges defendant failed to protect plaintiff from violence in violation of the Eighth Amendment specifically by participating in the decision to assign plaintiff to Closed Compatible Yard Four on June ...