FINDINGS & RECOMMENDATIONS
Plaintiff, a former state prisoner, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at La Palma Correctional Center in Eloy, Arizona. Before the court is the motion for summary judgment filed on behalf of defendants Correctional Capt. S. Shannon, Warden Tim Virga, and Correctional Lt. J.A. Baker. Plaintiff has filed an opposition to the motion and defendants have filed a reply. Following the decision in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), on September 19, 2012, the court issued an order again advising plaintiff with respect to the requirements for opposing a motion for summary judgment such as that now pending before the court and granted plaintiff leave to file a supplemental opposition. (Doc. No. 29.) Thereafter, and after both parties were granted extensions time to do so, plaintiff filed a supplemental opposition to the motion and defendants filed a supplemental reply.*fn1
In his complaint naming the three defendants who have now moved for summary judgment, plaintiff alleges as follows. Plaintiff was incarcerated at California State Prison -Sacramento (CSP-Sacramento) where all three defendants were employed. On September 7, 2010, plaintiff and other African-American inmates, as well as Northern Hispanic inmates, were placed on lockdown following an attack on an African-American inmate by Northern Hispanic inmates. (Doc. No. 1 at 3.) On September 30, 2010, black inmates housed in cell blocks 5 through 8 were placed on a "SHU program" with no yard, telephone calls, visits, religious services, canteen, and other program limitations. (Id.) As of July 8, 2011, when plaintiff signed his civil rights complaint, he remained on this SHU program status. (Id.) On December 6, 2010, plaintiff was interviewed concerning an inmate appeal he had filed in this regard and defendant Baker told plaintiff that only black inmates in C-facility who are Crips, Bloods and Northern Hispanics housed in blocks 5 through 8 would remain on lockdown. (Id. at 4.) Although plaintiff found a cell in block 3 where he could be moved to, defendants Shannon and Baker would not allow him to move out of block 8. (Id.) White paint covered a window in the cell where plaintiff was housed, thereby denying him lighting. (Id.) A review of plaintiff's central medical file would show that he has "serious medical needs that require outdoor exercise and fresh air[.]" (Id.)
Based upon these allegations, plaintiff seeks the following relief: I am asking this court to stop Warden Tim V. Virga, Captain S. Shannon, and Correctional Lieutenant J.A. Baker from placing me and other inmates on lockdowns that are of the same black race but different groups, and from different areas in the state or on the same yard but live in different blocks on the same yard. Also, I am a asking this court to order the removel [sic] of the white paint off the back cell windows. And, plaintiff ask this court to order defendants to pay $1.50 for each day illegally locked downed [sic]. (Id. at 3.)
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
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 a 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. Indeed, 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 actually does exist. See 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 allegations or 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. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., 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 that the dispute is genuine, i.e., 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 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). 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. Nevertheless, 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). 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 (citation omitted).
As noted above, On August 22, 2011 and again on September 19, 2012, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012): Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment in their favor on the grounds that none of them have violated plaintiff's right to equal protection under the laws and because they are entitled to qualified immunity.
In moving for summary judgment in their favor, defendants have presented evidence of the following.
A. Gang Violence in Prison Along Racial and Ethnic Lines
Defendant Virga has been employed with the California Department of Corrections and Rehabilitation (CDCR) for approximately 29 years and has been the Warden of CSP-Sacramento since May 9, 2011. (Doc. No. 21-6 (Virga Decl.) ¶ 1 at 1.) Before becoming the Warden, he was the acting and Chief Deputy Warden for approximately four years. (Id.) Defendant Virga declares as follows. Violence in prison is often race or ethnicity-based. (Id. ¶ 3 at 2.) Inmates often segregate themselves by race and form violent gangs along racial or ethnic lines. (Id.) Even inmates who are not affiliated with a gang are sometimes pressured by gang members to assist them in violent activities. (Id. ¶ 4 at 2.) Sometimes incidents that begin without racial animus evolve into a racial conflict as inmates of a racial group interpret an incident as calling for retaliation against members of a participant's racial group. (Id.)
Defendant Shannon, who was the Facility Captain for C Facility at CSP-Sacramento at the time of the events in question, has submitted a declaration in which he expresses his agreement with defendant Virga' declaration as to the composition, nature and behavior of prison gangs and disruptive groups. (Doc. No. 21-5 (Shannon Decl.) ¶ 2 at 1-2.)
B. September 7, 2010 Assault
On September 7, 2010, two Northern Hispanic inmates stabbed an African-American inmate at the C Facility of CSP-Sacramento. (Virga Decl. ¶10 at 4.) The assailants initially refused to stop the assault despite orders by correctional officers to do so and pepper spray was used to halt the assault. (Id.) The victim received stab wounds to the head, neck, chest and elsewhere. (Id.) Because of the use of weapons, repeated stab wounds inflicted and the inmates' refusal to stop when ordered to do so, executive staff and defendant Virga determined that the attackers had tried to murder the African-American inmate. (Id.) Defendant Virga suspected this incident may have been related to an earlier incident in C- facility that occurred in March 2010, during which an African-American inmate stabbed a Northern Hispanic inmate. (Id. ¶¶ 9 & 11 at 4.) It was rumored at that time that Northern Hispanic inmates would take retaliatory action because the Crips had failed to deal with the attacker who had been re-housed in administrative segregation and single-celled. (Id. ¶ 9 at 4.)
In his declaration, defendant Shannon states that he could not be certain if the September 7, 2010 incident was in retaliation for the March 2010 incident, although that was a real possibility. (Shannon Decl. ¶ 4 at 2.) Defendant Shannon also states that there was concern over whether the September 7th attack would lead to other retaliatory violence and whether such retaliation by inmates would be long racial lines. (Id.)
C. Security Measures Taken after September 7 Incident
The attackers and victim involved in the September 7, 2010 incident were immediately separated from the general population and re-housed in administrative segregation. (Virga Decl. ¶ 13 at 5.) The attackers were charged with attempted murder. (Id.)
African-American and Hispanic inmates in C Facility, cell block 5-8, were placed on modified program pending an investigation into the stabbing and due to the potential for further violence. (Id. ¶ 14 at 5.) Inmates belonging to other racial groups, as well as, African-American and Hispanic inmates in other cell blocks on Facility C and other facilities, were not placed on modified program. (Id.) Defendant Virga provides the following explanation for that decision:
By instituting a modified program only in the cell block where the incident occurred, and only for inmates who might initiate or be subjected to racially-motivated violence, I was trying to safeguard the safety and security of the inmates, staff, institution, and general public, while restricting the regular programming of the fewest number of inmates.
According to defendant Warden Virga, modified program imposed the following restrictions on the inmates subject thereto:
[N]o visiting, no yard, controlled and restrained showers (escorted in restraints), all escorts in restraints, and no simultaneous movement of African-American or Northern Hispanic inmates within the facility. This did not affect meals, because at CSP-Sacramento, all inmates are fed at their cells, even during times of regular programming.
(Id. ¶ 15 at 5.) Defendant Virga met with his executive staff frequently to evaluate the status of the modified program and to formulate a plan for the eventual return to normal programming. (Id. ¶6 at 3.)
Staff began investigating the causes of the attack on September 7, 2010. (Id. ¶ 16 at 5.) It was discovered that on the day of the incident and just before it occurred, an unidentified inmate affiliated with the Northern Hispanics told an African-American inmate not affiliated with the Crips, not to go into the ...