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Larry W. Kirk v. Heinrich

October 17, 2012

LARRY W. KIRK, PLAINTIFF,
v.
HEINRICH, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants Heinrich and Salinas move for summary judgment. Dckt. No. 37. For the reasons that follow, the undersigned recommends that the motion be granted in part.

I. Background

This action proceeds on plaintiff's Eighth Amendment failure to protect claim against defendant Heinrich, and plaintiff's injunctive relief claim against defendant Salinas, Warden of Deuel Vocational Institute (DVI). Dckt. No. 7 (Apr. 20, 2011 Screening Order). Plaintiff's verified complaint concerns events that allegedly occurred at DVI. Dckt. No. 1 ("Compl.").

Plaintiff alleges the following:

On 8-22-10 I was victimized by another inmate. I suffered several major injuries in which I have to have operations to correct . . .

On 8-16-10 and 8-20-10 I personally gave C/O Henrich notes to please move I/M Lockett out of the cell because he was making threats of bodily harm. Trying to pressure me and others . . . in this cell.

The C/O did nothing to move him out and as a result of this negligence on 8-22-10 I was battered by I/M Lockett to the point I ha[d] to be sent out of the institution via ambulance and kept [and] was admitted for my injuries from 8-22-10 until 8-31-10. *** Please note I am disabled and confined in a wheelchair.

Id. § IV. As relief, plaintiff requests compensatory damages and an injunction requiring that the prison policy be changed to require a finding of compatibility before assigning an inmate assistant to a disabled inmate. Id. § V.

The following facts are undisputed: Plaintiff is a wheelchair bound inmate who was assigned an inmate assistant. Defs.' Stmt. of Undisp. Facts ISO Mot. for Summ. J. ("DUF") 7, 14-15; Compl. § IV; Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n")*fn1 at 3.*fn2 Defendant Heinrich was a correctional officer who worked with disabled inmates. DUF 2, 11. Plaintiff shared a four-man cell with inmate assistants Lockett and Wheeler. DUF 10, 15, 18; Pl.'s Opp'n at 3. Lockett was assigned as plaintiff's inmate assistant/wheelchair attendant. Decl. of Heinrich ISO Defs.' Mot. for Summ. J. ("Heinrich Decl."), ¶ 7; Pl.'s Opp'n at 2, 4. On Sunday, August 22, 2010, Lockett battered plaintiff, using both his fists and a part of plaintiff's wheelchair, causing plaintiff severe injuries. DUF 24; Pl.'s Opp'n at 2. On March 23, 2011, plaintiff was transferred to Salinas Valley State Prison. DUF 28; Dckt. No. 5 (Pl.'s Notice of Change of Address).

There is no dispute that during the week of August 16, 2010, plaintiff informed Heinrich that he was having problems with Lockett and Wheeler, and that he wanted them moved out of his cell. DUF 17. Nor is there a dispute that in response, Heinrich removed only Wheeler from plaintiff's cell. DUF 18; Pl.'s Opp'n at 3, 7.

Heinrich maintains that plaintiff never told him he felt threatened by Lockett. DUF 22. Plaintiff, however, claims that he specifically informed Heinrich that Lockett was threatening him, stealing from him, and trying to force him to have sex. Pl.'s Opp'n at 2-3. Plaintiff also claims that he informed Heinrich that he feared for his safety and requested that Lockett be moved. Id. Plaintiff claims that for the next several days, he updated Heinrich on "what Lockett was continuing to do," and renewed his request to have Lockett removed from his cell. Id. at 3.

Heinrich admits that on Friday, August 20th, plaintiff again requested that Lockett be moved out of his cell. DUF 19. According to Heinrich, he advised plaintiff that there was no place to move Lockett at that time, and asked if plaintiff could wait to make the move later. Heinrich Decl. ¶ 11. Heinrich states that plaintiff agreed that the move could wait. Id. Heinrich, who did not work on weekends, claims he left on Friday believing that the two inmates could get along until a cell move could be completed. Id. ¶¶ 1, 10, 12, 15. According to Heinrich, plaintiff never told him that he feared for his safety if Lockett remained in the cell over the weekend. Id. ¶ 10.

Plaintiff has an entirely different account of his interaction with Heinrich on August 20th. Plaintiff claims he informed Heinrich that the situation with Lockett had worsened, that Lockett was trying to force him to have sex, and that he did not feel safe. Pl.'s Opp'n at 3, 6-7. According to plaintiff, Heinrich told him that he "would take care of it." Id.

It is undisputed that two days later, on Sunday, August 22nd, inmate Lockett battered plaintiff. DUF 24; Pl.'s Opp'n at 2. According to defendants, plaintiff "taunted" inmate Lockett prior to the attack. See DUF 23 (citing to a page in plaintiff's deposition transcript, where plaintiff recalls that before Lockett assaulted him, plaintiff might have said "Tomorrow is going to be a good day because I'm getting rid of my wheelchair pusher."). On that same page of the deposition transcript, plaintiff testifies that after Lockett continued to demand sex, and right before Lockett's attack, plaintiff told Lockett to leave him ...


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