FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner proceeding with counsel, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is a motion for summary judgment filed on behalf of defendants Gonzalez*fn1 , Cooper and Lebron. Plaintiff has filed his opposition to the motion and defendants have filed a reply. A hearing on the motion was held on March 9, 2012 before the undersigned. Attorney David Springfield appeared on behalf of plaintiff, and attorney Mitchell Wrosch of Burke, Williams & Sorenson, LLP, appeared telephonically on behalf of defendants.
On September 28, 2010, plaintiff filed this § 1983 action pro se. On April 27, 2011, the court determined that plaintiff has stated a cognizable Eighth Amendment claim as to defendants Lebron, Cooper and Gonzalez. (Doc. No. 12 at 2.) However, the court did not order service on supervisory defendants Warden Martel and Director Cate named in plaintiff's complaint. (Id.)
On July 18, 2011, defendants Cooper and Gonzalez filed a motion to dismiss plaintiff's Eighth Amendment claim brought against them in their official capacities, as well as, plaintiff's prayer for injunctive relief. On December 22, 2011, findings and recommendations were issued recommending that plaintiff's monetary damages claims against the defendants, including defendant Lebron, in their official capacities be dismissed and that plaintiff's request for injunctive relief be dismissed as well. (Doc. No. 44.) On March 20, 2012, those findings and recommendations were adopted by the assigned District Judge. (Doc. No. 66.)
On July 28, 2011, the court's discovery and scheduling order was issued. (Doc. No. 30.) Pursuant to that order, discovery closed on November 14, 2011. (Id. at 6.) The date for the filing of dispositive motions closed on February 3, 2012. (Id.)
On September 27, 2011, the court granted plaintiff's request to substitute attorney David Springfield in as his counsel. (Doc. No. 42.)
On February 3, 2012, defendants filed their motion for summary judgment supported by declarations from defendants Lebron, Cooper and Gonzalez, correctional officer Hernandez, defense counsel and correctional counselor Giovacchini. (Doc. No. 46.)
On February 24, 2012, plaintiff filed his opposition to the motion for summary judgment along with his own declaration, evidentiary objections to the declarations of Gonzalez, Hernandez, Lebron and Cooper, the declaration of plaintiff's counsel*fn2 , appendix of evidence in support of the opposition, plaintiff's response to defendants' separate statement of undisputed facts, supplemental evidentiary objections to the Hernandez declaration, and plaintiff's own supplemental declaration. (Docs. No. 47, 48, 50, 51, 52, 53, 54, 55, 56, 57 & 58.)
On March 2, 2012, defendants filed their reply along with the declaration of counselor Giovacchini, defendants' objections to plaintiff's declarations, defendants' opposition to plaintiff's evidentiary objections, defendants' opposition to plaintiff's separate statement of undisputed facts, and defendants' reply to plaintiff's response to statement of undisputed facts. (Docs. No. 59, 60, 61, 62, 63 & 64.)
In his complaint plaintiff alleges as follows. On November 8, 2009, plaintiff was housed with inmate Augustine at Mule Creek State Prison. Defendant correctional sergeant Gonzalez was aware that inmate Augustine did not want plaintiff as a cellmate, that inmate Augustine's previous cellmate, inmate Rathsack, was moved out of the cell they shared because he was being threatened by inmate Augustine, and that inmate Augustine suffers from a mental illness. (Doc. No. 1 at 7-8.) Defendant Gonzalez told plaintiff that the cell assignment with Augustine would be for one night and that he would make arrangements to rehouse plaintiff. (Id. at 8.) However, plaintiff continued to be housed with inmate Augustine from November 2009 to January 14, 2010. (Id. at 9.) At an unspecified date, plaintiff told defendant Sgt. Cooper that inmate Augustine had threatened to cut plaintiff's throat if he did not move to another cell. (Id.) Several times in December of 2009, plaintiff told defendant Sgt. Cooper that his life was in danger at the hands of inmate Augustine. (Id.) Plaintiff also attempted to inform mental health staff about inmate Augustine. (Id.) On January 13, 2010, plaintiff talked to defendant Lebron, a licensed clinical/psychiatric social worker about the threats on his life being made by inmate Augustine. (Id. at 10.)
On January 14, 2010, inmate Augustine struck plaintiff in the "facial area" and began "strangling" him. (Id. at 10-11.) Pepper spray had to be used to subdue inmate Augustine. (Id. at 11.) Plaintiff suffered injuries to his "facial area[,]" "swelling above his eyes, nose, and forehead[,]" and injury to his neck and shoulder. (Id.)
Plaintiff claims that his rights under the Eighth Amendment were violated due to defendants' failure to protect him from a known risk of harm by his cellmate (id. at 11-13), and the defendants' subjecting him to cruel and unusual punishment by depriving plaintiff of "personal safety" (id. at 14-15). Plaintiff seeks $900,000 in compensatory damages, $900,000 in punitive damages and costs of suit. (Id. at 15.)*fn3
I. Defendants' Motion for Summary Judgment
Defendants argue that they are entitled to summary judgment because plaintiff cannot show that they were aware that plaintiff faced a substantial risk of harm and that they deliberately disregarded that risk. (Doc. No. 46 at 14-15.) First, they argue that plaintiff's allegations regarding daily threats made by Augustine and daily assaults he suffered at the hands of inmate Augustine for seventy-five straight days, "strain credulity" and lack any kind of evidentiary support. (Id. at 15.) Next, defendants argue that there were several steps plaintiff could have taken to alert prison staff that he was experiencing a problem with his cellmate: (1) submit a CDC Form 7362 to request an interview which would have resulted in the issuance of a CDC Form 128B informational chrono; (2) submit an inmate grievance or an emergency grievance; (3) refuse to re-enter his cell; (3) report his cellmate as an enemy which would generated a CDC Form 812, Notice of Critical Case Information - Safety of Persons (Non-Confidential Enemies). (Id. 16-17.)
Defendant Gonzalez states in his declaration that he has no recollection of plaintiff or if him formally or informally requesting a cell move away from inmate Augustine but that if he did make such a request it would have been investigated and noted in his central file. However, defendants contend that there is a critical piece of evidence that "debunks the myth that Fountain alerted the defendants to a threat of his safety." (Id. at 17.) According to defense counsel, on January 13, 2010, the day before the assault, both inmate Augustine and plaintiff were interviewed by correctional officer Hernandez regarding their housing. (Id.) When plaintiff was interviewed and asked about his compatibility with inmate Augustine, plaintiff did not express any safety concerns and when asked if he would like to be moved to another cell, plaintiff replied, "no, I'm trying to figure out a move so that I can stay in Building 11. I don't want to move to another building. I'll let you know." (Id. at 18.) Thus, defendants argue that the evidence establishes that plaintiff failed to put defendants Cooper and Gonzalez on notice of any threat to his safety and defendants were not deliberately indifferent to plaintiff's safety.
As to defendant Lebron specifically, defendants argue that plaintiff again has provided no evidence to support his allegations. (Id. at 19.) Defense counsel asserts that on November 30, 2009, defendant Lebron evaluated plaintiff who at that time mentioned that inmate Augustine was "disruptive" and was affecting plaintiff's sleep. (Id.) Defendant Lebron contends that she interpreted this to mean that inmate Augustine was exhibiting erratic behavior but that there was no reason to believe that such behavior posed a threat of harm to plaintiff. (Id.) Defendant Lebron contends that plaintiff did not express any safety concerns about Augustine nor did plaintiff state that prison staff had been notified about any such concerns. (Id. at 20.)
Lastly, defendants argue that they are entitled to summary judgment based upon qualified immunity because they reasonably believed that their actions were lawful. (Id. at 22.) They contend that "[n]one of the defendants would have been on notice that failing to prevent a risk to the safety of an inmate without having notice of the risk is unlawful, as no case law so holds." (Id.)
II. Plaintiff's Opposition
Plaintiff argues that all the defendants were aware of inmate Augustine's history of violence and that because of plaintiff's repeated complaints and requests for transfers, defendants were also on notice of the serious risk of harm to plaintiff's safety posed by inmate Augustine. In his declaration under penalty of perjury, plaintiff states that for approximately seventy-five days (November 1, 2009 to January 14, 2010), he "was threatened with his life daily, was daily assaulted, beaten and the incidents of violence, threats and aggression increased over time in frequency, severity and intensity." (Doc. No. 48, ¶ 8 at 2.) Plaintiff also states in his declaration that he "complained almost daily to Defendant Cooper or other officers, as well as multiple times to Defendant Lebron, a mental health professional and repeatedly requested a transfer." (Id. ¶ 9 at 2-3.)
In a supplemental declaration, plaintiff states that he did not submit a form 7362 (request for interview) because defendant Sgt. Cooper discouraged him from submitting that form. (Doc. No. 57, ¶ 2 at 1.) Plaintiff also states that he did not believe that he could refuse to enter his cell and had observed that disobeying staff orders would result in worse treatment by staff, as well as, retaliation. (Id., ¶ 3 at 2.) Plaintiff declares that he attempted to show his physical injuries to defendant Lebron and that she refused to view them and "brushed it off[.]" (Id., ¶4 at ...