The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' PARTIAL MOTION FOR SUMMARY JUDGMENT
Rodney Wayne Jones, ("Plaintiff"), a state prisoner currently housed at the California State Prison located in Represa, California, is proceeding pro se and in forma pauperis with a First Amended Complaint filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. Currently pending before the Court is Defendants Ryan, Valenzuela, Ochoa, Ortiz, Ritter, Flores, Jimenez, Cosio, Castaneda, Schommer, Martinez, Rangel, Bell, Mejia, Rodiles, Sandoval, Wells, Zills, Andalon, Stratton and Price's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 130]. Defendant Pegues has filed a Notice of Joinder to Defendants' Motion [Doc. No. 131].
Defendants are moving for partial summary judgment on Plaintiff's First, Eighth and Fourteenth Amendment claims. On April 12, 2010, the Court advised Plaintiff of his rights and obligations to oppose Defendants' Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).*fn1 Plaintiff filed his Opposition, along with an Amended Opposition to Defendants' Motion [Doc. Nos. 144, 160]. Plaintiff was also permitted to file a "Supplemental Declaration" [Doc. No. 172].*fn2 All the Defendants who have moved for summary judgment, other than Defendant Pegeus, have filed a Reply to Plaintiff's Opposition [Doc. Nos. 166, 173].
Having now exercised its discretion to consider the matter as submitted on the papers without oral argument pursuant to S.D. CAL. CIVLR 7.1.d.1, the Court hereby GRANTS in part and DENIES in part Defendants' Partial Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 for the reasons set forth in detail below.
PLAINTIFF'S FACTUAL ALLEGATIONS*fn3
In 2005 Plaintiff was housed at Centinela State Prison which is located in Imperial County. (See FAC at 1.) On June 10, 2005, Plaintiff was awakened by his cell door being pushed open and saw Defendants Schommer and Ortiz standing in front of his cell. (Id. at ¶¶ 1-2.) Defendant Schommer told Plaintiff it was "count time" and Plaintiff informed Defendant Schommer that he had fallen asleep because he was taking pain medication. (Id. at ¶¶ 3-4.) Defendants Schommer and Ortiz walked away from Plaintiff's cell as Defendants Torres and Mejia approached. (Id. at ¶¶ 6-7.) Defendant Wells closed Plaintiff's cell door from the control tower. (Id. at ¶ 8). Defendants Schommer, Ortiz and Torres told Defendant Wells to reopen Plaintiff's cell. (Id. at ¶ 12.) Defendants Schommer and Torres entered Plaintiff's cell and began to simultaneously use oleresin capsicum (also known as " pepper spray") on Plaintiff, who was not resisting. (Id. at ¶¶ 14-18.)
While Plaintiff was shielding his face, he was struck on the lower left leg with a baton by either Defendant Torres or Schommer and then struck on the right temple by Defendant Torres. (Id. at ¶¶ 20-21.) Defendant Castaneda then entered Plaintiff's cell and placed Plaintiff in handcuffs. (Id. at ¶ 22.) Defendant Castaneda then took Plaintiff to the shower in order to "decontaminate" Plaintiff from the pepper spray, but instead of using cold water, which is required by regulations, Defendant Castaneda used hot water which caused Plaintiff's skin to burn. (Id. at ¶¶ 23- 25.) Defendant Zills entered the shower area and began pushing Plaintiff to the exit of the housing unit by his handcuffs. (Id. at ¶¶ 27-28.) While exiting through the corridor area, Defendant Zills "ran Plaintiff face first into the corridor's brick wall." (Id. at ¶ 29.) Plaintiff was then "slammed to the ground" by Defendants Zills and Torres. (Id. at ¶ 31.) As Defendant Zills held Plaintiff, "Defendants Torres, Ortiz and Rodiles proceeded to take turns striking Plaintiff in the head and body utilizing their state-issued side handle batons." (Id. at ¶ 32.) As Defendant Zills continued to hold Plaintiff, Defendant Mejia "walked over and kicked Plaintiff." (Id. at ¶ 35.) In addition, Defendant Sandoval began "viciously [kicking] Plaintiff" in his chest "with enough force that [caused] Plaintiff to temporarily stop breathing." (Id. at ¶ 37.) Defendant Castaneda began to yell in Spanish "that's it." (Id. at ¶ 39.) Plaintiff claims that Defendants Castaneda, Jimenez, Bailey, Cosio, Bell and Andalon "observed Plaintiff being maliciously and wantonly beaten" but failed to intervene. (Id. at ¶ 40.)
Defendants placed Plaintiff in the shower to remove any signs of blood and then Defendants Torres, Jimenez and Bell proceeded to take Plaintiff to the medical clinic. (Id. at ¶ 42-44.) Plaintiff claims that Defendants Jimenez and Torres "intentionally [delayed] Plaintiff from receiving medical evaluation and treatment" by keeping Plaintiff in a holding cell for two hours inside the medical clinic. (Id. at ¶¶ 46-47.) Plaintiff was later examined by medical staff and it was determined that he should be seen by the prison's physician. (Id. at ¶ 50.) Plaintiff claims that while he was waiting to be seen by the prison's physician, Defendants Harmon and Duarte made "obscene/vulgar statements directed at Plaintiff." (Id. at ¶¶ 53-54.) Plaintiff was examined by "Doctor Naz," the prison's physician, who "sutured Plaintiff's three scalp lacerations and one left leg laceration and evaluated plaintiff as having a possible liver rupture and chest wall contusion." (Id. at ¶ 56.) Defendants Stratton and Mejia videotaped Plaintiff's injuries. (Id. at ¶ 57.) Defendants Ryan, Ochoa and Pegues arrived soon after and asked Plaintiff's questions regarding the incidents that led to his injuries. (Id. at ¶ 58.)
Doctor Naz recommended that Plaintiff be immediately transferred to Pioneer Memorial Hospital ("PMH") due to his potentially "life-threatening injuries." (Id. at ¶ 60.) Defendants Ryan, Ochoa, Pegues and Stratton "refused to act or expedite Plaintiff's transfer to PMH and instead intentionally allowed Plaintiff's suffering condition to deteriorate." (Id. at ¶ 61.) At approximately 4:34 a.m. on June 11, 2005, Plaintiff was transferred to the PMH emergency room. (Id. at ¶ 63.) Plaintiff underwent medical examinations and testing where it was determined that he suffered from a "punctured and collapsed right lung, a minimum of four broken right ribs, three severe scalp lacerations, one left leg laceration, and multiple abrasions, bruising and swelling throughout Plaintiff's body." (Id. at ¶ 65.) Plaintiff claims Defendants Jimenez, Torres, Schommer, Ortiz, Zills, Rodiles, Wells, Flores and Ritter submitted "fabricated disciplinary reports against Plaintiff" to "conceal" their own misconduct. (Id. at ¶¶ 68-70.) Defendant Flores submitted a report indicating that he had discovered an inmate manufactured weapon in Plaintiff"s cell which Plaintiff claims is a false accusation. (Id. at ¶ 71.)
Plaintiff was charged with disciplinary violations including assault on staff, battery on staff, battery on a Peace Officer with a weapon and attempted murder of a Peace Officer. (Id. at ¶ 73.) Plaintiff also claims that his property was taken by Defendants in retaliation for Plaintiff's allegations against Defendants. (Id. at ¶¶ 93-95.) To date, Plaintiff has yet to receive a disciplinary hearing on the rules violation report that was issued to him charging Plaintiff with attempted murder of a Peace Officer. (Id. at ¶ 100.)
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Summary judgment is properly granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). Entry of summary judgment is appropriate "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court shall consider all admissible affidavits and supplemental documents submitted on a motion for summary judgment. See Connick v. Teachers Ins. & Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir. 1986).
The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). However, to avoid summary judgment, the non-movant cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Rather, he must present "specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The Court may not weigh evidence or make credibility determinations on a motion for summary judgment. Quite the opposite, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Id. at 255; United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The non-movant's evidence need only be such that a "fair minded jury could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 255. However, in determining whether the non-movant has met his burden, the Court must consider the evidentiary burden imposed upon him by the applicable substantive law. Id.
A verified complaint or motion may be used as an opposing affidavit under FED.R.CIV.P. 56 to the extent it is based on personal knowledge and sets forth specific facts admissible in evidence. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curiam) (complaint); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998) (motion). To "verify" a complaint, the plaintiff must swear or affirm that the facts in the complaint are true "under the pains and penalties of perjury." Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995).
Section 1983 authorizes a "suit in equity, or other proper proceeding for redress" against any person who, under color of state law, "subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution." Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 (2004).
C. Evidentiary Objections
Defendants have filed evidentiary objections to three documents attached to Plaintiff's Amended Opposition. See Defs.' Reply at 2. However, at the summary judgment stage, the Court need not focus on whether the form of the evidence is admissible. Instead, the court must focus on the admissibility of its contents and ask whether the evidence "could be presented in an admissible form at trial." Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56."); Fed. Deposit Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) ("the nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment.") (internal quotation marks and citation omitted)).
Plaintiff's Exhibit "K" appears to a summary of the criminal charges brought against Plaintiff relating to the incidents that form the basis of this action, but it is unclear where the document came from or its intended purpose. Thus, the Court sustains Defendants' objections to this document. Exhibit "L" appears to be a news article and Appendix "A" appears to be a memorandum from the California Department of Corrections and Rehabilitation ("CDCR"). It will not be necessary for the Court to consider these documents with respect to Defendants' Motion for Summary Judgment. Accordingly, the Court overrules Defendants' objections to Exhibit "L" and Appendix "A" without prejudice to re-asserting these objections at trial should Plaintiff move to introduce these exhibits into evidence.
D. Eighth Amendment Failure to Protect Claims
Defendants Wells, Castaneda, Jimenez, Cosio, Bell and Andalon seek summary judgment on Plaintiff's claims that they violated his Eighth Amendment rights by failing to protect him from a serious risk of harm. (See Defs.' P&As in Supp. of Summ. J. at 11-12.) Under the Eighth Amendment, prison officials must "take reasonable measures to guarantee the safety of the inmates." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 199-200 (1989) ("[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being."). In fact, the Supreme Court has specifically held that this duty requires prison officials to protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations omitted). "Protecting the safety of prisoners and staff involves difficult choices and evades easy solutions." Berg v. Kincheloe, 794 F.2d at 460.
Thus, to show that a prisoner has been subject to cruel and unusual punishment by an officer's failure to protect him, he must point to evidence in the record which shows that the alleged deprivation was objectively "sufficiently serious," i.e., that the conditions he faced posed a "substantial risk of serious harm." Farmer, 511 U.S. at 834. Second, because "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment," evidence must exist to show the defendant acted with a "sufficiently culpable state of mind." Wilson, 501 U.S. at 297 (internal quotation marks, emphasis and citations omitted); see also Hudson, 503 U.S. at 5, 8.
In a failure to protect case, "that state of mind is one of 'deliberate indifference' to inmate health or safety." Farmer, 511 U.S. at 834. Prison officials display a deliberate indifference to an inmate's well-being when they know of and consciously disregard an excessive risk of harm to that inmate's health or safety. Farmer, 511 U.S. at 837. "[T]he 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. Thus, "deliberate indifference" entails something more than mere negligence, but may be satisfied with proof of something less than acts or omissions "for the very purpose of causing harm," or that a particular official "acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at 842. "Whether a prison official had the requisite knowledge of a substantial risk" may be inferred if the prisoner produces evidence sufficient to show that the risk was "obvious." Id.
a. Claims against Defendant Wells
Plaintiff alleges Defendant Wells, who was the officer in the control tower responsible for opening and closing cell doors, "appeared to have prior knowledge of the forthcoming attack" by Defendants Torres and Schommer and Ortiz because he opened the door to Plaintiff's cell to allow them to enter. (FAC at 6; Pl.'s Amd. Opp'n, Ex. "M" Transcript of Grand Jury Proceedings at 76:1-4.) Defendant Wells argues that there is no evidence of any "discussion regarding a plot to use excessive force against Plaintiff." (Defs.' P&A's in Supp. of Summ. J. at 11.) Plaintiff responds by asserting that there was a discussion among Defendants Torres, Schommer, Ortiz, Mejia and Wells prior to Wells opening Plaintiff's cell door. (See Pl.'s Amd. Opp'n at 4.) However, while Plaintiff testified that the conversation which formed ...