The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff, an inmate of the California Department of Corrections ("CDCR"), seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se with a second amended complaint (Dkt. No. 100) against fifteen named defendants. Plaintiff claims that defendants violated his rights under the Eighth Amendment at California State Prison- Sacramento ("CSP-SAC") by either (1) failing to protect him from physical assault at the hands of another inmate; or (2) being deliberately indifferent to his serious medical needs by failing to assure that he received appropriate medical care following the assault. Defendants have moved for summary judgment on some of plaintiff's claims and the matter is fully briefed. (See Dkt. Nos. 185, 199, 204.)
I. Motion for Summary Judgment
Summary judgment is appropriate when 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(c). Under summary judgment practice, the moving party always 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) (quoting Fed. R. Civ. P. 56(c)). "[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. Summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
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 exists. See Matsushita Elec. Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material, in support of its contention that the dispute exists. SeeFed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate (1) that the fact in contention is material, i.e., is a fact that might affect the outcome of the suit under the governing law (see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. V. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)), and (2) that the dispute is genuine, i.e., that the evidence is such that a reasonable jury could return a verdict for the nonmoving party (see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving a 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). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587.
However, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards
v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd., 810 F.2d 898, 902 (9th Cir. 1987). 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 (citation omitted).
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). 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).
On March 18, 2009 (Dkt. No. 21), and again on July 12, 2012 (Dkt. No. 187), pursuant to the Ninth Circuit's decision in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Plaintiff's second amended complaint is verified under penalty of perjury. It therefore has the effect of an affidavit to oppose summary judgment "to the extent it is 'based on personal knowledge' and 'sets forth specific facts admissible in evidence.'" Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996). However, unsworn declarations and letters not signed under penalty of perjury do not constitute admissible evidence properly considered in ruling on a motion for summary judgment. See 28 U.S.C. § 1746 (unsworn declarations must state that the matters asserted therein are true under penalty of perjury).
A. Applicable § 1983 and Eighth Amendment Standards
Section 1983 requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. 42 U.S.C. § 1983; see also Monell v. Dep't of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
The Eighth Amendment's prohibition on cruel and unusual punishment imposes on prison officials, among other things, a duty to "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). "'[P]rison officials have a duty...to protect prisoners from violence at the hands of other prisoners.'" Farmer, 511 U.S. at 833.
An Eighth Amendment failure to protect claim has two elements: (1) the condition complained of must be shown to present a substantial risk of serious harm, and (2) the defendant(s) must be shown to have possessed a sufficiently culpable state of mind. Id. at 834. The requisite state of mind "is one of 'deliberate indifference' to inmate health or safety." Id. The prison official will be liable only if "the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837.
2. Deliberate Indifference to Serious Medical Needs
Prisoners can establish an Eighth Amendment violation with respect to medical care if they can prove there has been deliberate indifference to their serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to be liable, an official must know of and disregard an excessive risk to inmate health or safety. Farmer, 511 U.S. at 832. Two requirements must be met: (1) the deprivation must be, objectively, sufficiently serious; and (2) the prison official must be, subjectively, deliberately indifferent to inmate health or safety. Id. at 834. As to the subjective factor, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and must also draw the inference. See Id. In addition, harm, though not substantial, must have resulted from the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights. WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1059 (9th Cir. 1997). Furthermore, when a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay caused "significant harm and that Defendants should have known this to be the case." Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002). Mere delay of medical treatment, "without more, is insufficient to state a claim of medical deliberate indifference. Shapley v. Nev. Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
B. Defendants Bartell*fn1 and Moreland 1. Undisputed Facts*fn2
On July 31, 2007, while plaintiff was performing cleaning duties as a third watch porter in the hallway of Building 4 of CSP-SAC's A-Facility, inmate Benjamin approached the door between the dayroom and the hallway; inmate Barrus was nearby. (Dkt. No. 100 at 6; DUF #3.) Benjamin demanded angrily that plaintiff seek to have the door between them opened. (Id.) Plaintiff understood Benjamin's statements to him to be a threat of physical assault. (Dkt. No. 100 at 6; DUF #4.) During these events, defendant Moreland (correctional officer working as the assigned Floor Officer) and defendant Bartell (correctional officer working as the assigned Control Officer) were stationed in the nearby control tower. (Dkt. No. 100 at 7; DUF #5.) Moreland and Bartell were responsible for providing security for inmates housed in the building and inmates engaged in various activities in the building's dayrooms by observing the activities of inmates in the dayrooms. (Dkt. No. 185-4 ("Bartell decl.") at ¶4; Dkt. No. 185-3 ("Bartell decl.") at ¶4.) The control booth has windows overlooking the building's floor and dayroom areas, as well as an intercom system linked to the dayrooms. (Id.) During inmates' program periods, the dayrooms are frequently filled with thirty or more inmates, along with a television blaring in the background. (Id.)
The next morning, on August 1, 2007, at approximately 7:53 a.m.,
plaintiff and Barrus were involved in a physical altercation in
CSP-SAC's A-facility exercise yard. (Dkt. No. 100 at 8-9; DUF #10.)
During the altercation, plaintiff was pepper sprayed in his facial
hit in the right shoulder by a 40 mm impact round fired by
correctional officers. (Dkt. No. 100 at 8-9; DUF #11, 12.)
The parties dispute whether Bartell and Moreland heard via intercom, or through the control room's windows, Benjamin and Barrus make threatening statements to plaintiff on July 31, 2007. (DUF #7; Dkt. No. 199 at 2-3.) Bartell and Moreland contend they did not hear any such threats (DUF # 7), and argue that summary judgment is warranted because that the record contains no admissible evidence that they were aware of facts from which the inference could be drawn that a substantial risk of serious harm to plaintiff existed, or that they disregarded any such risk.
As set forth, allegations in plaintiff's verified second amended complaint have the effect of an affidavit to oppose summary judgment to the extent those allegations are based on personal knowledge and set forth specific facts admissible in evidence. Plaintiff alleges in his verified second amended complaint that Benjamin stated very loudly, through the window to plaintiff, "we[']re going to stick you tomorrow motherfucker," and that inmate Barrus stated "we[']re going to get you tomorrow." (Dkt. No. 100 at 7.) Plaintiff further alleges that Moreland then stated to plaintiff "Hey Jennings; do you want me to open the (A-section) door?" (Id.) To this, plaintiff responded "Did you hear what those guys just said?" (Id.) Moreland replied "Yes, I heard what was said, I have the intercom turned on, I always have it turned on." (Id.) Bartell stood nearby during this exchange. (Id.) Later that day, Moreland stated to plaintiff, as Bartell stood beside Moreland, "those guys are locked in their cells, maybe they will cool down by the morning." (Id. at 7-8.)
If believed, plaintiff's allegations adequately demonstrate that Moreland heard Benjamin and Barrus threaten plaintiff. However, there is no evidence in the record demonstrating that Bartell heard those threats. A prisoner may rely on circumstantial evidence to demonstrate that officials knew of a risk to his safety. See Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995) (same). Here, the extent of plaintiff's circumstantial evidence with respect to Bartell's subjective knowledge is that Bartell stood in the control booth, engaged in duties of observing inmates in the sometimes noisy dayroom, near another correctional officer who, based on plaintiff's allegations, is reasonably inferred to have heard Benjamin and Barrus threaten plaintiff. This evidence is insufficient to demonstrate that Bartell was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed to plaintiff's safety. Accordingly, summary judgment should be entered for Bartell on the failure to protect claim. See Farmer, 511 U.S. at 837.
A question remains whether there is evidence that Moreland had a sufficiently culpable state of mind in failing to take action to abate the risk. See Id. at 832, 834; Whitley v. Albers, 475 U.S. 312, 319 (1986) (holding that cruel and unusual punishment, under the Eighth Amendment, requires more than "ordinary lack of due care for the prisoner's interests or safety"). The Ninth Circuit has explained:
The deliberate indifference standard requires a finding of some degree of individual culpability, but does not require an express intent to punish. The standard does not require that the guard or official 'believe to a moral certainty that one inmate intends to attack another at a given place at a time certain before that officer is obligated to take steps to prevent such an assault. But, on the other hand, he must have more than a mere suspicion that an attack will occur.
Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (internal quotations and citations omitted). The requisite state of mind lies "somewhere between the poles of negligence at one end and purpose or knowledge at the other." Whitley, 475 U.S. at 836. Acting or, as in this case, failing to act, with deliberate indifference is "the equivalent of recklessly disregarding" a substantial risk of serious harm to the inmate." See Id. Neither negligence nor gross negligence will constitute deliberate indifference. Farmer, 511 U.S. at 835-36 & n.4. An official must both be ...