The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER SUSTAINING OBJECTIONS TO REPORT AND RECOMMENDATION RE: DENIAL OF MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant has filed Objections to the Report and Recommendation entered by Magistrate Judge Gallo recommending the denial of Defendant's motion for summary judgment ("R & R"). Plaintiff did not file a response to the Objections. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the Objections are sustained, the court declines to adopt the R & R, and grants Defendant's motion for summary judgment.*fn1
Defendant objects to the admissibility and sufficiency of the evidence relied upon in the R & R to deny Defendant's motion for summary judgment. The R & R concluded that the risk of harm to Plaintiff was obvious, under the standard articulated in Farmer v. Brennan, 511 U.S. 825 (1994), because of the informal standing rule "that a general population inmate who encounters a SNY (Sensitive Needs Yard) inmate must attack that inmate on sight." (R & R at p.14:13-15; p. 17 n.5).
The R & R considered the declaration of Michael Douglas Taylor in concluding that genuine issues of material fact preclude granting Defendant's motion for summary judgment.
The critical issue raised by the parties is whether Defendant Morales acted with the requisite mental state. As set forth in the R & R, deliberate indifference may be established by showing that the official "knows of and disregards an excessive risk to inmate health or safety," Farmer, 511 U.S. at 837, or that the official was "exposed to information concerning the risk and thus 'must have known' about it." Id at 842-43 (citations omitted). The R & R concluded, based upon the Taylor declaration, that there was a genuine issue of material fact with respect to whether the informal standing rule, or "convict code," placed Defendant on notice that there was an obvious risk of harm to Plaintiff.
The only evidence supporting the existence of such an informal code is the Taylor declaration. The R & R did not reach, through apparent oversight, the evidentiary objections raised by Defendant, (Ct. Dkt. 39), and erroneously concluded that "Defendant does not dispute that this informal standing rule exists." (R & R at p.14 n.4). The evidentiary objections raised by Defendant directly challenge the admissibility of the Taylor Declaration. See Fed.R.Civ.P. 56(c)(4). This order addresses the evidentiary objections.
Defendant argues that much of the Taylor declaration is irrelevant, lacks foundation, and constitutes impermissible hearsay. (Ct. Dkt. 39, 52). The following pertinent portions of the Taylor declaration were relied upon in the R & R to deny the motion for summary judgment. Taylor asserts that (1) prison staff uniformly knew of the standing order of assaulting SNY inmates on sight because they received "Daily Post Orders from Warden Hernandez that they were to absolutely clear or lockdown Central Plaza when they move an SNY Inmate," (Taylor Decl. ¶5(r)); (2) there is a "convict-code" which consists of a "standing order" requiring all general population inmates to assault SNY inmates on sight or they themselves will be assaulted by other general population inmates, (Taylor Decl. ¶5(o)); (3) Sergeant Pittman stated at some unidentified time that SNY inmates are not to be moved until the area is cleared, "no exceptions," (id. ¶5(l)); and (4) the TTA Medical Facilities (the location where the assault occurred) is a "nightmare and just rife with physical assaults between general population inmates and SNY inmates." (id. ¶5(h)). Each evidentiary objection is discussed in turn.
Daily Post Orders and Knowledge by Prison Officials of the "Convict Code"
The critical threshold issue is whether Taylor is a competent witness to testify about what prison staff members uniformly knew of the purported standing order that general population inmates must assault SNY inmates. A prison official does not deny an inmate of humane conditions of confinement "unless the official knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). The requisite knowledge element may also be established by showing that the official was "exposed to information concerning the risk and thus 'must have known' about it." Id. 842-843 (citations omitted). In Farmer, the inmate was a male transsexual who "wore women's clothing . . . underwent estrogen therapy, received silicone breast implants and submitted to unsuccessful black-market testicle-removal surgery . . . continued hormonal treatment while incarcerated by using drugs smuggled into the prison, and apparently wears clothing in a feminine manner, as by displaying a shirt off one shoulder." Id. at 829-30. The district court concluded that respondents were not deliberately indifferent to plaintiff's safety because plaintiff "never expressed any concern for his safety to any of" defendants. Id. at 830. The Supreme Court reversed and remanded, noting that the district court "may have mistakenly thought that advance notification was a necessary element of an Eighth Amendment failure-to-protect claim." Id. at 849.
A "witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." FRE 602; Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1028 (9th Cir. 2001) ("It is not enough for a witness to tell all she knows; she must know all she tells."). Here, Taylor testifies, in conclusory fashion, that "Daily Post Orders from Warden Hernandez [required prison officials] to absolutely clear or look-down Central Plaza when they move an SNY inmate." (Taylor Decl. ¶5(r)). There is no showing that Mr. Taylor, a SNY inmate, has access to internal prison administrative documents such that he would be in a position to possess knowledge about internal administrative matters of the California Department of Corrections and Rehabilitation ("CDCR"). Moreover, Plaintiff does not submit any Daily Post Orders, identify the basis for Taylor's knowledge that all prison employees knew that general population inmates must assault all SNY inmates on sight, nor identify any regulation, formal policy or procedure, or informal policy or procedure, requiring SNY inmates to be completely segregated from the general population at all times. Further, Plaintiff himself does not declare any knowledge of the so-called convict code. The court notes that the present situation is markedly different from the factual situation in Farmer where the obviousness of plaintiff's identity as a transsexual was available for all to observe.
In the absence of admissible evidence that prison officials were aware of the convict code and the risk of harm to Plaintiff, the court concludes that there is no genuine issue of material fact with respect to deliberate indifference. The following undisputed evidence demonstrates that Defendant Morales subjectively did not know of an excessive risk of harm to Plaintiff, (Morales Decl. ¶¶15-16); R & R at pp.11:16 - 12:3), nor was he aware of an "obvious" risk such that he should have known of a serious risk of harm to Plaintiff. Plaintiff never informed prison officials of any safety concerns and, on the date of the incident, five other SNY inmates walked in front of the GP inmates who assaulted Plaintiff without being assaulted. The court notes that there is no written policy or regulation in the California Code of Regulations, title 15; the CDCR Operations Manual, or in the R.J. Donovan Operational Procedures manual requiring the separation of SNY inmates from general population inmates. (Borg Decl. ¶¶ 3-5). Furthermore, Robert Borg, an individual who worked for the CDCR for 32 years and retired as a Warden, declares that not only is there no official or unofficial policy to maintain complete separation of general and SNY inmates, and that Post Orders are generally issued for specific assigned positions in the prison, such as yard or culinary duties. "Post Orders do not generally provide general guidance on topics such as the handling of SNY inmates, particularly where there is an applicable Operational Procedure on that topic. I am not aware of any Post Orders which stated that SNY inmates are to be kept separate from GP inmates." (Borg Decl. ¶5).
In sum, the Taylor declaration fails to establish that he had personal knowledge, or was otherwise in a position to know, that all prison staff members uniformly knew that general population inmates assault SNY inmates on sight and must therefore be completely separated. Without such evidence, Plaintiff fails to create a genuine issue of material fact with respect to the ...