FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in a civil rights action brought under 42 U.S.C. § 1983. This action proceeds on plaintiff's Eighth Amendment failure to protect claims against defendants Orum, Butler, Shea, Clarey, Orrick, Sisto, and Guillory, and on plaintiff's due process claim against defendant Majors. Defendants move for summary judgment. For the following reasons, the court will recommend that the motion be granted.
Unless otherwise noted, the court finds that the following facts are not disputed by the
parties or following the court's review of the evidence submitted, have been determined to be undisputed.
On November 20, 2007, defendant Butler served as the chairperson for plaintiff's Unit Classification Committee meeting, where plaintiff's housing situation was reviewed. Defs.' Mot. for Summ. J. ("Defs.' MSJ"), Stmt. of Undisputed Facts in Supp. Thereof ("SUF") 1. Defendant Orum, a correctional counselor, was the recorder for this meeting. SUF 2. At the meeting, plaintiff's classification score was reduced from 29 to 27 points. SUF 3. Due to the reduction in plaintiff's points, the committee recommended that plaintiff be transferred from his current, level three housing in the dormitory in Gym H, to a level two housing unit.*fn1 SUF 4.
The committee referred its recommendation for plaintiff's level two placement to the transferring authority for endorsement. SUF 5. Transfers are made after the transferring authority approves the committee's recommendations and upon available bed space. SUF 6. Plaintiff believes that no recommendation was ever made because he would have received an "endorsement chrono" with an explanation either rejecting or approving the recommendation. Pl.'s Opp'n, Pl.'s Stmt of Disputed Facts and Undisputed Facts ("Pl.'s SUF") ¶ 4.
Where an inmate has pending disciplinary charges, those charges shall be resolved before the inmate is transferred. SUF 7. While waiting to be transferred, plaintiff received a rules violation in December 2007, stemming from a physical altercation plaintiff had with another inmate. SUF 8. Plaintiff's transfer recommendation was postponed pending review of the disciplinary proceeding. SUF 9.
Plaintiff contends he was not charged with disciplinary action, and submits evidence that he was the victim of an assault. Pl.'s SUF ¶¶ 7, 10; Pl.'s Opp'n, Pl.'s Decl. ("Pl.'s Decl."), Ex.
4. An "enemy chrono" signed by defendant Orrick states that on December 12, 2007, staff observed inmate Pearson hit plaintiff in the nose with a fist. Pl.'s Decl., Ex. 4. It notes that defendant Shea responded to the area and took Pearson into custody, and that plaintiff was escorted to the medical clinic for treatment. Id. The enemy chrono also indicates that Pearson was re-housed in an adjacent facility, and that Pearson would be listed in plaintiff's central file as an enemy. Id.
Defendants Guillory and Orrick were sergeants in the facility where plaintiff's housing unit was located during all relevant times. SUF 26. They, along with defendants Shea, Clarey, Butler, and Orum declare that at no time before December 2007, did they have any indiction or suspicion that plaintiff's safety was in jeopardy. SUF 23, 27; Defs.' MSJ, Butler Decl. ¶ 17, Orum Decl. ¶ 5. Defendant Sisto, who was the Warden at California State Prison, Solano during the relevant time period, declares that he too, was not aware of any safety risk to plaintiff associated with plaintiff's housing in December 2007. SUF 24, 25.
Plaintiff's rules violation was ultimately dismissed, but an inmate work stoppage created a state of emergency at California State Prison, Solano and further postponed plaintiff's transfer recommendation. SUF 10. According to plaintiff, the work stoppage lasted only three days in January of 2008 and should not have affected his transfer. Pl.'s SUF 10; Pl.'s P. & A. at 7-8.
On April 1, 2008, plaintiff and another inmate (inmate Rash) were involved in a physical altercation. SUF 11; Defs.' MSJ, Majors Decl., Ex. E. Defendants Clarey and Shea, correctional officers in plaintiff's housing unit, responded to the altercation and restrained plaintiff and inmate Rasg. SUF 11, 12; Pl.'s Decl., Ex. 2. Plaintiff subsequently received a rules violation (S2-08-04-0771) for mutual combat. SUF 12. Plaintiff contends he was the victim of assault and believes that because he had complained about his housing status, he was charged with mutual combat, and was not transferred out of level three housing. Pl.'s SUF 11; Pl.'s P. &
Defendants Guillory, Orrick , Shea, Clarey, Butler, and Orum declare that at no time
before April 2008, did they have any indiction or suspicion that plaintiff's safety was in jeopardy. SUF 23, 27; Defs.' MSJ, Butler Decl. ¶ 17, Orum Decl. ¶ 5. Defendant Sisto also declares he was not aware of any safety risk to plaintiff associated with plaintiff's housing in April 2008. SUF 24, 25.
Plaintiff declares he made Orrick and Shea aware that he had concerns for his safety, but does not indicate when he did so or through what means, except for stating that Shea was the reporting officer as to the December 12, 2007 assault. Pl.'s Decl. ¶ 5.
Plaintiff declares that in February, March, and April of 2008, he had conversations with defendants Orum and Butler, informing them that he "was having serious problems and incompatibility issues with the prisoner [he] was living with . . . ."*fn2 Id. ¶ 2. Plaintiff declares he similarly informed defendants Clarey and Shea, but does not indicate when those conversations too place. Id.
Plaintiff declares that in February and March of 2008, he wrote letters to defendant Sisto requesting that his housing status ...