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Willis v. McEwen

United States District Court, S.D. California

April 10, 2014

RACHEE A. WILLIS, Plaintiff,
MS. McEWEN, et al., Defendant.


LARRY ALAN BURNS, District Judge.

This case arises from a disturbance at the state prison where Plaintiff Rachee Willis was housed. While prisoners were being brought back into prison housing, a riot broke out involving black and Hispanic inmates. During the disturbance, Willis, who is black, was attacked by Hispanic inmates and injured. Defendants filed a motion for summary judgment (the "Motion"), which was referred to Magistrate Judge Ruben Brooks for report and recommendation. On February 20, 2014, Judge Brooks issued his report and recommendation (the "R&R"), which made factual findings and recommended denying the motion. Neither Plaintiff nor Defendants filed objections to the R&R.

Legal Standards

A district court has jurisdiction to review a magistrate judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id . "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This section does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). See also Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) ("If neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law.")

The R&R correctly sets forth the legal standards governing both summary judgment and Plaintiff's claims. The Court also adds that a motion for summary judgment must be resisted by showing there is evidence that would be admissible at trial, which creates a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Fed.R.Civ.P. 56(e). This can be met by presenting evidence that would be admissible at trial, see Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002), or by pointing to facts or evidence that could be presented in admissible form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (facts in verified pleadings that a party would be competent to testify to can be used to resist summary judgment). But evidence that is not admissible and could not be presented at trial in admissible form is not enough to resist summary judgment. See Orr, 285 F.3d at 773; Nelson v. Pima Community College, 83 F.3d 1075, 1081-82 (9th Cir.1996) (speculation is insufficient to create a genuine issue of material fact); Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 (9th Cir. 1995) (conclusory or speculative testimony is insufficient to defeat summary judgment)

It also bears mention that, although Willis is proceeding pro se and bringing civil rights claims, and is therefore entitled to liberal construction of his pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1998), he must still follow the same rules of procedure that govern other litigants. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). He was provided notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). ( See Docket no. 35.) He was also afforded an opportunity to take discovery, and did not object to any of Magistrate Judge Brooks' rulings on discovery issues.


The R&R's factual findings were based on the evidence presented in favor of or in opposition to the Motion and on uncontested facts. Because neither party has objected to these, the Court ADOPTS them and will treat them as correct for purposes of the motion.

Which Claims Are Brought Against Which Defendants

The amended complaint ("FAC") brings two general claims, both based on Willis' Eighth Amendment rights. The first is that all three Defendants were responsible for leaving open an equipment locker, allowing other inmates to gain access to its contents (mops, brooms, and razors), which could be used as weapons. In fact, there are no allegations suggesting in any way that Navarro was responsible for monitoring the cabinet, or that he in fact left it open. This claim is properly construed as being brought against Cerros and Landeros only. The R&R so construes it, and neither party has objected to this construction.

The second claim was brought against the California Department of Corrections and Rehabilitation (CDCR) only, for allowing the riot to happen, in which Willis was attacked and injured by other inmates. The CDCR has been dismissed as a party, but the FAC as a whole shows that Willis thinks Defendant Navarro was responsible for this. The R&R so construes the FAC, and neither party has objected to this interpretation. The FAC does mention Defendants Cerros and Landeros as playing some role in the riot or in failing to keep Willis safe during it. The R&R doesn't identify which Defendants this claim is against, but the factual findings show Cerros and Landeros played only a minor role in keeping prisoners safe in the time leading up to and during the riot. The R&R says they were at the podium, conducting "boot checks" of inmates coming in from the yard, and played no other role until a riot broke out in the yard and they ran outside to help bring it under control. (R&R, 3:6-4:2.) Although Willis might blame all three Defendants for leaving him alone in the building with forty to fifty unrestrained Hispanic inmates (R&R, 5:13-16), the facts make clear Landeros and Cerros only left the building to deal with the riot outside. They are not alleged to have been responsible for organizing the return of inmates to their cells, or (except for leaving the equipment locker unsecured), for creating any conditions that were dangerous to Willis. By contrast, Defendant Navarro was the one deciding which inmates would be returned to their cells, and in which order, and Willis claims this was done in such a fashion that an inter-ethnic riot was likely to occur. (R&R, 5:11-13.) It is therefore clear the second claim can only properly be brought against Defendant Navarro.

Analysis of Claim Against Defendants Landeros and Cerros

Willis claims Landeros and Cerros left both the equipment locker and a razor cabinet open. Accepting this as true, as the Court does at the summary judgment stage, it is important to point out that Willis says he was attacked with the base of a telephone, and with a "large stick" - not a razor. Leaving the razor cabinet open did not cause Willis' injuries, and the telephone he was hit with did not come from either cabinet. The "large stick" is more of a quandary because there was no evidence it was a broomstick or mop stick, or if it was, that it came from the open equipment locker rather than somewhere else. Causation is therefore a problem for Willis, because deliberate indifference that does not result in harm is not actionable, nor are defendants in § 1983 actions liable for harm caused by others' actions or inactions. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (emphasizing the importance of individualized inquiry into causation in § 1983 actions).

Assuming, arguendo, Willis could show one of the weapons he was attacked with was the stick of a mop or broom taken from the equipment locker, Cerros and Landeros have raised the defense of qualified immunity. The R&R discusses the legal standard for this defense but finds these Defendants are not entitled to its protection. In this situation, the defense also implicates some of the "deliberate indifference" analysis. As the R&R correctly notes, Willis must show more than mere negligence to prevail - he must show deliberate indifference to a serious risk of harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). ...

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