The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is Defendants' Motion for Summary Judgment (ECF No. 51). For the foregoing reasons, the court finds the Defendants entitled to summary judgment.
Plaintiff Bradley Van Dyke is an African American inmate now in his fifties who is in the custody of the California Department of Corrections and Rehabilitations. At all times relevant to this action he was housed at California State Prison-Solano (CSP-Solano). He claims he is non-gang affiliated. California prisons have endured instances of severe race-based prison violence and have been known as "a breeding ground for some of the most violent prison gangs in America-all of them organized along racial lines." See Johnson v. California, 543 U.S. 499, 542 (2005)(Thomas, J. dissenting); Beard v. Banks, 548 U.S. 521. 536-537 (2006)(Thomas, J., concurring)(noting that two were killed and hundreds were injured in a race riot); Noble v. Adams, --- F.3d ----, 2011 WL 3275871 (9th Cir. 2011)(describing 2002 armed riot and mass assault on staff at Corcoran state prison). The record demonstrates CSP-Solano is no exception. In November 2005, a riot occurred between 250 African American and Southern Hispanic inmates. ECF No. 1. In May 2006, the day when Southern Hispanic inmates were released back to normal operations ("programming"), an attack occurred on Southern Hispanic inmates by African American inmates. Two months later, on July 6, 2006, an altercation occurred on the Facility 1 yard where a group of 33 Southern Hispanic inmates assaulted and injured African-American inmates using weapons. There is no evidence Van Dyke was involved in any of these incidents.
After the July 2006 altercation, the inmates involved in the incident were placed in administrative segregation and all Southern Hispanic inmates were placed in a "lockdown" and a "modified program" for months thereafter. The declarations of the Defendants evidence that during a lockdown, the institution's routines and inmates' "regular programming" are affected, as are the institutional staffing needs and duties. According to Defendants, immediately after the incident, locked-down Southern Hispanic inmates were searched and handcuffed prior to being escorted, and there was one escort officer per inmate. During the lockdown, the affected inmates were fed in their cells and were not allowed out of their cells without an escort. All support programs, such as educational programs and prison jobs were restricted or unavailable. Prison officials investigated the event and met frequently to assess the status of the lockdown and consider whether and when a return to regular programming was feasible.
Over time, prison officials took measures to gradually loosen restrictions on the movement and activities of locked-down inmates. By September 12, 2006, Southern Hispanic inmates were fed in small groups in the dining hall, rather than cell feeding, and they were allowed to walk to meals in groups of 10-15 inmates. By September 12, 2006 they were also subject to clothed, rather than unclothed, searches before being escorted. By November 8, 2006, Southern Hispanic inmates were allowed some dayroom activity during designated hours. By December 15, 2006, Southern Hispanic inmates were allowed yard activity during designated hours.
Prior to December 21, 2006, the gradual lifting of restrictions had still prevented all contact between Southern Hispanic and African-American inmates. Defendants state that the information officials had gathered in its investigation indicated a potential for future violence, specifically retaliation by African-American inmates. SOF 60, 69. On December 21, 2006, after five-months of segregation of the Southern Hispanic and African-American inmates, the separation of these inmates ended when Officer Fuizzotti, an officer with less than 1 month's experience at CSP-Solano and having just graduated from the corrections academy, escorted four Southern Hispanic inmates without handcuffs to the medical clinic. Plaintiff alleges the four were gang members, though at the time of the escort Fuizzotti was not aware whether or not the inmates were gang affiliated. As he escorted the inmates through a breezeway located on the Facility exercise yard back to their housing units, Fuizzotti called out "Escort!" SOF 101. The African-American inmates present, including Van Dyke, stepped off the walkway and positioned themselves against the housing unit's north wall. Fuizzotti then announced on the radio, "Building 6, one inmate at your door." 103. The four Southern Hispanic inmates then left the escort and attacked the African-American inmates on the north wall, including Van Dyke. Officer Fuizzotti announced over the radio, "Code one, yard one," then told the inmates who were fighting to get down. They continued to fight, beating and kicking Van Dyke in the head. Fuizzotti used his pepper spray on the inmates. Responding officers arrived and fired two shots from a 40 mm multi-launcher baton. At that point, inmates responded to the orders to get down, and the fighting was ended. Van Dyke had been kicked in the head by the attackers causing him abrasions, a loose tooth that had to be puled, swollen eyes, and a detached retina, which eventually required four surgeries and has resulted in vision loss in his right eye. He was also hit in the back by one of the multi-launcher baton shots, which took a patch of skin off his back. Van Dyke did not know the four inmates who committed the assault and there had never been previous individual hostility between them.
The record is not clear how or when prison officials decided to alter the previously imposed segregation and prohibition on all potential contact between Southern Hispanic inmates and African American inmates. Defendant Fuizzotti claims he was following approved procedures for that day -- though he does not recall the source he consulted to find out what was approved. In his declaration he states "I do not recall whether I checked a written plan of operations for the day, or verified it orally with my sergeant, but I do remember verifying the procedures to be used." He claims that after the incident he "checked again" to verify he used the proper procedure, though he does not indicate with whom or what he checked.
Defendant Gums was Officer Fuizzotti's superior officer at CSP-Solano on December 21, 2006. His declaration states he does not recall directing the escort, though he said it "was in accordance with the plan of operations for that day." There is no documentary evidence in the record of the "plan of operations for that day."
Defendant Sequira was the Facility captain for Facility 1 at all relevant times. After the lockdown, he gathered information to determine whether and when the institution could return to regular programming. He also served on the administrative segregation classification committees that determined the appropriate housing for inmates who had been removed from the general population as a result of the July 6, 2006 incident. Sequira met regularly with staff under his authority, and with executive staff, including the Warden, Defendant Sisto, to share information of any ongoing threats of violence. In Defendant Sequira's declaration to the court he does not affirmatively represent that he recalls (or has evidence of) making any verbal or written recommendation to alter the escort procedures. Rather, his declaration states that "[t]he recommendation that Southern Hispanic inmates be escorted from their cells after clothed body searches, without handcuffs, and in a ratio of four or five inmates to one officer, would have come from me. The final decision, however, belonged to Warden Sisto."
Defendant Sisto had to approve all measures taken to modify programming. Defendant Sisto's declaration states that he made the decision that "it was safe and appropriate to allow one correctional officer to escort four Southern Hispanic inmates to the medical clinic without handcuffs..." The declaration, however, does not state when or in what context he made that decision.
Van Dyke filed this civil rights lawsuit claiming failure to protect under the Eighth Amendment. Specifically, he claims that Defendants were subjectively aware of the physical threat to Plaintiff poised by prison gangs, that they disregarded this risk and failed to take adequate measures to protect him from attack. He claims as a result of the attack he suffered trauma to his face, nose and mouth. The court directed service of the Complaint on Defendant Sisto, Sequira, Fuizzotti and Gums.
Summary judgment is properly granted when no genuine and disputed issues of material fact remain and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56( c); Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288--89 (9th Cir.1987). The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. ...