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Mikheil J. Leinweber v. Sergeant A. Day

January 30, 2012



I. Procedural Background

On August 31, 2009, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. On March 15, 2010, the Court issued a screening order, dismissing certain claims and finding cognizable claims against Defendants Day and Cao for Eighth Amendment deliberate indifference to medical need and against Defendant Day for Eighth Amendment deprivation of basic necessities and First Amendment retaliation. Doc. 7. On April 6, 2010, the Court issued a second informational order, advising Plaintiff that Defendants may file a motion for summary judgment and how Plaintiff must oppose the motion in order to avoid dismissal, pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Doc. 10. On August 15, 2011, Defendants filed a motion for summary judgment. Doc. 32. On August 29, 2011, Plaintiff filed an opposition to the motion for summary judgment. Doc. 34.

II. Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Under summary judgment practice, the moving party:

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. In resolving the summary judgment motion, the Court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587.

III. Plaintiff's Response to Motion for Summary Judgment

In Plaintiff's response to the motion for summary judgment, Plaintiff simply states that there is a difference in facts. See Pl. Resp. Doc. 34. He does not attach any exhibits or affidavits but simply relies on the complaint and the record. See id. In response to a motion for summary judgment, a plaintiff cannot simply restate his allegations from the complaint. See Beard v. Banks, 548 U.S. 521, 534 (2006) (citing Fed. R. Civ. P. 56(e)). Rule 56(e)(2) of the Federal Rules of Civil Procedure provides that "[w]hen a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." Fed. R. Civ. P. 56(e). If the moving party's statement of facts are not controverted in this manner, a court may assume that the facts as claimed by the moving party are admitted to exist without controversy. Beard, 548 U.S. at 527. The Court "is not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir.1988)). Instead, the "party opposing summary judgment must direct the Court's attention to specific triable facts." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). Therefore, the Court will deem the facts in the record as undisputed.

IV. Undisputed Facts in the Record

Plaintiff was placed in Administrative Segregation (Ad Seg) at Kern Valley State Prison on February 23, 2009 due to safety concerns. (Defs. Separate Statement of Undisputed Facts, Doc. 32, Lembach Decl. ¶ 3; Pl. Compl. at 7-8, Doc. 1; Day Decl. ¶ 2; Ex. A to Nield Decl.) Plaintiff was cleared for double-cell housing. (Ex. A to Nield Decl.; Pl. Compl. at 8, ¶ 10, Doc. 1.) When Captain Soto came and talked to Plaintiff on February 24, 2009, Plaintiff could have expressed any complaints to Defendant Sergeant Day's superior at that time. (Day Decl. ¶ 9.) Defendant Sergeant Day has the authority to transfer inmates between cells to conserve space. (Id. at ¶ 2.) There is very limited space in prison, and Defendant Sergeant Day needed to conserve space in Ad Seg while Plaintiff was housed there. (Id.) Plaintiff refused a cellmate because Plaintiff claims the potential cellmate did not have "like concerns." (Pl. Compl. at 8, ¶ 11, Doc. 1; Day Decl. ¶ 2.) Defendant Sergeant Day advised Plaintiff of the need to conserve space and encouraged Plaintiff to take a cellmate. (Day Decl. ¶ 2.)

When Plaintiff still refused a cellmate, Defendant Sergeant Day, within his authority, moved Plaintiff to a single cell on February 25, 2009. (Id. at ¶ 3.) Plaintiff threatened to "write him up," which meant file a 602 appeal form, and Defendant Sergeant Day told Plaintiff to do what he had to do regarding filing a 602 appeal form. (Id.) Defendant Sergeant Day did not move Plaintiff in retaliation for any expressed mental health needs or free speech. (Id. at ¶ 2.) In fact, Plaintiff never indicated that he was not receiving his mental health medication and Defendant Sergeant Day is not responsible for administering medication. (Id. at ¶ 7.) Furthermore, Plaintiff was receiving his psychiatric medication, mirtazapine, which was to be administered at bedtime. (Ex. B to Nield Decl.) Plaintiff would not have received his medication at bedtime on February 25, 2009 because he was transported to an outside hospital at 6:21 pm. (Ex. D to Nield Decl.; Ex. E to Nield Decl.; Ex. F. to Nield Decl. at 52:7-9.)

Plaintiff claims he had no mattress, laundry, or hygiene items. (Pl. Compl. at 9, ¶ 14, Doc. 1.) When an inmate is moved inside of Ad Seg, their mattress is not always moved with them. (Day Decl. ¶ 4.) Inmates get a "fish kit," which contains items like a toothbrush, soap, tooth powder, blanket, pillow case, deodorant, etc. (Id.) In fact, when Plaintiff was in Ad Seg prior to his suicide attempt, he received his meals, had trash pick-up, as well as showers, which would have required soap. (Ex. C to Nield Decl.; Day Decl. ¶ 6; Ex. F to Nield Decl., Pl. Dep. at 55:12-18.) On February 25, 2009, the day Plaintiff attempted suicide, he received a shower during Third Watch, which is from 2 pm to 10 pm. (Id.)

Defendant Sergeant Day did not take Plaintiff to a holding cell on February 25, 2009. (Day Decl. ¶ 5.) Plaintiff never told Defendant Sergeant Day that he was suicidal on February 25, 2009 or at any time whatsoever. (Id. at ¶¶ 3,5.) Defendant Sergeant Day rarely deals with inmates unless there is a problem that requires his supervision. (Id. at ¶ 1.) Defendant Sergeant Day never provoked Plaintiff to attempt suicide or encouraged him to do so. (Id. at ¶¶ 3,5.) Defendant Sergeant Day spoke with Defendant Cao about why Plaintiff was in the holding cell. (Day Decl. ¶ 5; Cao Decl. ¶ 7.) Defendant Sergeant Day told Defendant Cao that he thought Plaintiff was agitated because of his housing situation. (Id.) Defendant Sergeant Day cannot see the holding cells from his office, and therefore could not have viewed the mental health assessment conducted by Defendant Cao. (Day Decl. ¶ 5.)

Defendant Cao conducted the mental health assessment of Plaintiff on February 25, 2009. (Cao Decl. ¶ 2; Ex. A to Cao Decl.; Ex. F to Nield Decl., Pl. Dep. 29:23-25.) Plaintiff had never met Defendant Cao prior to the assessment. (Ex. F to Nield Decl., Pl. Dep. 28:17-21.) Defendant Cao followed her custom practice of observing Plaintiff without his knowledge while he was in the holding cell before going through the Suicide Risk Assessment. (Cao Decl. ¶ 2.) While observing Plaintiff without his knowledge, Defendant Cao observed Plaintiff laughing and joking with other inmates. (Cao Decl. ¶ 2; Ex. F to Nield Decl., Pl. Dep. at 31:2-6.) Defendant Cao filled out the Chronological Interdisciplinary Progress Notes form as well as the Suicide Risk Assessment while doing her mental health assessment of Plaintiff. (Cao Decl. ¶ 4; Ex. A to Cao Decl.) Defendant Cao filled out the forms with the information that Plaintiff provided. (Id.) She also observed how Plaintiff reacted to questions and how he answered as part of her assessment. (Cao Decl. ¶ 3.)

Plaintiff demanded that his property be returned to him. (Cao Decl. ¶ 4; Ex. A to Cao Decl.) He was angry that his property had not been delivered to him and seemed to be very concerned with his property. (Id.) He threatened that he would hurt someone if his property was not returned. (Id.) Defendant Cao explained to him that there is a window of 10 to 14 days before an inmate receives his personal property in Ad Seg because inmates have to go before a committee before they can receive their property. (Id.) Plaintiff stated that he was fine with that. (Id.) Although Plaintiff claimed he was "not alright," his behavior was incongruent with his assertion. (Cao Decl. ¶ 4; Ex. A to Cao Decl.) Plaintiff never told Defendant Cao that he would kill himself or that he was "going suicidal." (Id. at ¶¶ 3, 4; Ex. A to Cao Decl.) Plaintiff also never told Defendant Cao that he had a "plethora of pills" in his cell and he denied any current intent at the time of self-harm. (Id. at ¶ 4; Ex. A to Cao. Decl.) Plaintiff did not tell Defendant Cao that he did not have a mattress in his cell. (Id. at ¶ 4.) In the professional opinion of Defendant Cao, Plaintiff was not at risk of suicide and did not require placement in a mental health crisis bed (MHCB). (Id. at ¶ 5; Ex. A to Cao. Decl.) If Defendant Cao's expert opinion was that Plaintiff was suicidal, she would have placed him in a MCHB. (Id. at ¶ 5.) Defendant Cao advised Plaintiff to tell correctional staff if he had any intent to self-harm. (Id. at ¶ 5; Ex. A to Cao. Decl.)

Defendant Cao spoke with Defendant Sergeant Day after her mental health assessment because she had to ensure Plaintiff was clear to go back to his cell. (Id. at ΒΆ 7.) Neither of the conversations between Defendant Sergeant Day and Defendant Cao influenced Defendant Cao's mental health evaluation or professional opinion in any way. (Id.) At approximately 5:30 pm on February 25, 2009, Plaintiff had a possible overdose on unknown pills that he obtained from his neighbor. (Ex. D to Nield Decl.) Neither Defendant Sergeant Day or any other correctional officer placed or left any pills in Plaintiff's cell. (Ex. E to Nield Decl.) Plaintiff complained of shortness of breath, nausea, or sleepiness. (Ex. D to Nield Decl.) However, Plaintiff appeared happy, talkative, and ...

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