The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Plaintiff Lazarus Ortega is a prisoner proceeding pro se. On June 6, 2008, Ortega filed the First Amended Complaint in this matter, asserting that various prison officials had violated his Eighth Amendment right to be free from cruel and unusual punishment. Ortega asserts that Defendants failed to respond to his multiple requests to be assigned to a different cell because Ortega considered his cellmate to be dangerous. Ortega seeks to hold Defendants liable under 42 U.S.C. § 1983 for the assault that he subsequently suffered at the hands of his cellmate.
On February 22, 2011, Ortega stipulated to the dismissal with prejudice of Defendants Reyes and Walker. See ECF No. 50. At a telephone hearing on July 25, 2011, Ortega dismissed with prejudice Defendants Costa and Deason. At that same hearing, the court clarified with Ortega that he is only proceeding with claims against Defendants Hutchings and Williamson.
At the July 25, 2011, telephone hearing, the court discussed the scheduling of the present motion, telling Ortega that any written opposition to the motion for summary judgment was due on August 9, 2011, but that Ortega could oppose the motion orally if he was unable to submit a timely opposition. No written opposition has been filed.
Summary judgment shall be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that 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©. One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Accordingly, "[o]nly admissible evidence may be considered in deciding a motion for summary judgment." Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006). Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See Celotex, 477 U.S. at 323. A moving party has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden initially falls on the moving party to identify for the court "those portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323); accord Miller, 454 F.3d at 987. "A fact is material if it could affect the outcome of the suit under the governing substantive law." Miller, 454 F.3d at 987.
When the moving party fails to carry its initial burden of production, "the nonmoving party has no obligation to produce anything." In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything. Nissan Fire, 210 F.3d at 1102-03. On the other hand, when the moving party meets its initial burden on a summary judgment motion, the "burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial." Miller, 454 F.3d at 987. This means that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted). The nonmoving party may not rely on the mere allegations in the pleadings and instead "must set forth specific facts showing that there is a genuine issue for trial." Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). "A genuine dispute arises if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." California v. Campbell, 319 F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) ("There must be enough doubt for a 'reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.").
On a summary judgment motion, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Miller, 454 F.3d at 988 (quotations and brackets omitted).
A. Allegations in First Amended Complaint.
In relevant part, the First Amended Complaint alleges that California Department of Corrections and Rehabilitation ("CDCR") officials Hutchings and Williamson were deliberately indifferent to Ortega's safety when they failed to respond to Ortega's multiple requests to change cells, which Ortega says flowed from his cellmate's threats to harm and/or kill him. See (Verified) First Amended Complaint, Preliminary Statement, ECF No. 7.
Ortega says that, on or about November 8, 2006, he asked CDCR correctional officer Hutchings to move him to a new cell because his cellmate had threatened him. According to Ortega, Hutchings responded that there were no vacant cells that Ortega could be moved to. Ortega alleges that he informed Hutchings that cell #232 was vacant, but that Hutchings responded that cell #232 was out of order because of a plumbing problem. Ortega says he was willing to move into the cell with the plumbing problem "just to get away from the imminent threat made by Williams." See (Verified) First Amended Complaint ¶ 15. Hutchings allegedly then told Ortega that a cell change was not going to happen and that Ortega would just have to wait for a cell to open up. See id. ¶¶ 14-16. Hutchings is named as a Defendant in his individual capacity. Id. ¶ 4.
Ortega alleges that the following day, November 9, 2006, he once again asked Hutchings for a cell change out of concern for his safety. Ortega alleges that Hutchings refused to act. See (Verified) First Amended Complaint ¶ 18.
Ortega alleges that, a little later that day, he orally complained to Deason and Hutchings's supervisor, CDCR Lieutenant Williamson, that safety concerns made a cell change imperative telling Williamson that "he was in fear for his safety and his life." See (Verified) First Amended Complaint ¶ 20. Ortega says that he told Williamson that he had tried to get Hutchings and others to move his cell, but that none of them had acted. Ortega alleges that Williamson ...