United States District Court, E.D. California
BERNARD L. SMITH, Plaintiff,
CALIFORNIA STATE PRISON SACRAMENTO, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Presently before the court are defendants' motion for summary judgment, ECF No. 34, plaintiff's motion for costs, ECF No. 35, and plaintiff's motion for a temporary restraining order, ECF No. 40. Each motion will be addressed in turn.
I. Allegations in the First Amended Complaint
Plaintiff is currently confined at Mule Creek State Prison. However, the claims in the present action arise from his incarceration at California State Prison-Sacramento ("CSP-Sac") during 2009 and 2010.
At the screening stage, the court found that the verified first amended complaint set forth a colorable Eighth Amendment claim against Defendants Harvey, Baker, Woods, Maserut, and Mini for failing to protect plaintiff from physical harm on February 24, 2009 when he was stabbed multiple times by his cell mate. See ECF Nos. 14 at 4-8, 17 at 2. Count two alleged that Defendant Bal violated plaintiff's Eighth Amendment right to adequate medical care for denying plaintiff "necessary diets, chairs, shoes, lotions, soaps, and medical marijuana." See ECF Nos. 14 at 9, 17 at 2. In count three, plaintiff alleged that Defendant Mini violated plaintiff's right to procedural due process when he interfered with an investigation ordered by the warden into plaintiff's safety concerns. ECF Nos. 14 at 12, 17 at 2.
II. Defendants' Motion to Dismiss
On September 26, 2013 defendants filed a motion for judgment on the pleadings and/or summary judgment. Included in that motion was a separate and distinct motion to dismiss pursuant to Rule 12(b) on the unenumerated ground that plaintiff had failed to exhaust his administrative remedies prior to filing his § 1983 lawsuit. ECF No. 34-3 at 7. Defendants also filed a warning pursuant to Wyatt v. Terhune , 315 F.3d 1108, 1120 n. 14 (9th Cir. 2003), informing plaintiff of how to oppose dismissal. See ECF No. 34-1.
On April 3, 2014, the Ninth Circuit overruled Wyatt and held that the defense of failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) should in most cases be presented in a motion for summary judgment rather than a motion to dismiss under unenumerated Rule 12(b). Albino v. Baca, No. 10-55702 , 2014 WL 1317141 (9th Cir. Apr. 3, 2014) (en banc). The Ninth Circuit's decision in Albino makes clear that it is only the rare case in which non-exhaustion will be obvious from the face of the complaint. Albino , 2014 WL 1317141 at *11-12. What is clear from the present record is that the exhaustion question involves disputed issues of fact that are therefore not appropriate for resolution in an unenumerated 12(b) motion. See Albino , 2014 WL 1317141 at *12.
Because defendants have moved for dismissal of the amended complaint as administratively unexhausted pursuant to Rule 12(b), and have not complied with the requirements of Rule 56, the court will recommend denying the motion without prejudice in light of the Albino decision.
III. Defendants' Request for Judicial Notice
Defendants request this court to take judicial notice of the civil docket, original complaint, the findings and recommendations, and the final order dismissing plaintiff's prior civil case raising the same allegations as those herein. ECF No. 34-4, see Smith v. California State Prison-Sacramento, 2:10-cv-00766-KJM-DAD. While these court documents do not assist the court in resolving defendants' current motion to dismiss for failing to exhaust administrative remedies, the exhibits attached to the original complaint are still relevant in determining the pending summary judgment motion. For this reason, the Court grants defendants' request. See Johnson v. City of Pleasanton , 982 F.2d 350, 352 (9th Cir. 1992) (citing Beech Aircraft Corp. v. Rainey , 488 U.S. 153, 162 (1988)).
IV. Defendants' Motion for Summary Judgment
With respect to count one of the amended complaint, Defendants Mini, Woods, Harvey, Masuret, and Baker assert that they are entitled to judgment on the pleadings and/or summary judgment because they were unaware of any information that would have led them to believe that plaintiff was in danger of an attack by his cell mate. ECF No. 34-3 at 11. Defendant Bal contends that summary judgment is appropriate on count two because he: 1) did not know of or intentionally disregard any serious risk to the plaintiff's health; 2) his actions did not cause plaintiff any harm or unnecessary pain; and, 3) he did not have a sufficiently culpable mental state to establish deliberate indifference. Id. at 14. Moreover, the evidence demonstrates that Dr. Bal had no personal involvement in plaintiff's medical treatment, medication distribution, or single cell status. Id. at 14-15. Finally, Defendant Mini asserts that plaintiff has failed to state a claim of a procedural due process violation in count three because there was no atypical and significant hardship placed on plaintiff in relation to the ordinary incidents of prison life. ECF No. 34-3 at 15 (citing Wilkinson v. Austin , 549 U.S. 209, 223 (2005)).
V. Plaintiff's Opposition to Summary Judgment.
At the outset, the court notes the deficiencies in plaintiff's opposition to summary judgment. First and foremost, plaintiff presents his opposition to summary judgment in question format. He identifies the material issues of fact as follows: "Who is responsible for the plaintiff's safety as well as the safety of the prisons? What does it mean when a Warden declares an inmate ADA? Who is responsible to insure the plaintiff receives due process on an investigation ordered by the Warden? Who has the authority to change or alter a medical program on an entire prison population?" ECF No. 38 at 3-4. Summary judgment is not the stage to discover the proper parties to sue. The discovery period has closed and the only remaining question is whether there is a triable issue of material fact.
Plaintiff also failed to reproduce defendant's itemized facts and admit or deny each one, which makes the court's job more arduous. See E.D. Cal. L. R. 260(b). Local Rule 260(b) states that any party opposing a motion for summary judgment "shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial." E.D. Cal. L.R. 260(b). Rather than complying with Local Rule 260(b), plaintiff submits five exhibits and labels each with the name of the defendant to whom it applies. See ECF No, 38 at 5-25. Such non-compliance with the Local Rule forces the court to engage in a search for the proverbial "needle in the haystack" or, in this case, the disputed material fact that will save plaintiff's claims from summary judgment. Due to these deficiencies in the opposition, the court has considered plaintiff's verified first amended complaint as a supporting affidavit for purposes of summary judgment to the extent that it is "based on personal knowledge and set[s] forth specific facts admissible in evidence." Schroeder v. McDonald , 55 F.3d 454, 460 (9th Cir. 1995) (citations omitted).
On the same date that his opposition to the summary judgment motion was filed, plaintiff also submitted a "Demand for a Jury Trial." ECF No. 39. Plaintiff attached a January 3, 2008 Institutional Classification Committee report recommending his transfer to CSP-SAC despite plaintiff's statement that he does have enemies at that institution. See ECF No. 39 at 2. Although not in proper form, the court will consider this as additional evidence tendered in opposition to summary judgment.
The court also notes that in his introductory remarks, plaintiff indicates that "he never received any information from this Court since June 2013. The plaintiff filed a motion to compel for discovery on July 8, 2013 and never heard any ruling." ECF No. 38 at 1. However, a review of the court's docket since June 2013 indicates that proper service of the court's orders was made on plaintiff's address of record, and no document has been returned to sender. Furthermore, no motion to compel discovery was ever filed. Since plaintiff failed to provide a copy of the purported discovery motion or even a copy of his prison mail log from July 2013, this court will not rule on issues that are not before it.
VI. Undisputed Material Facts
Plaintiff is a California prison inmate diagnosed with HIV who was incarcerated at California State Prison-Sacramento (CSP-SAC) at all times relevant to the instant proceedings. ECF No. 14 at 4. The Classification Committee at the prison determines whether an inmate's case warrants single cell status. ECF Nos. 34-12 at ¶ 4, 34-8 at ¶ 7. Plaintiff was denied a single-cell, but he was often celled alone and refused to house with other inmates. ECF Nos. 34-8 at ¶ 3, 34-9 at ¶ 4, 34-11 at 4. Because plaintiff was not designated as a single-cell inmate, he was required to find a compatible cell mate. ECF No. 34-8 at ¶ 5.
In 2009, Defendant Baker was the Correctional Sergeant on "B" Facility at CSP-SAC. In this capacity, he was responsible for assigning inmates to cells and reviewing inmate cell moves. ECF No. 34-8 at ¶ 2. On February 17, 2009, Defendants Harvey and Baker informed plaintiff that he would have to accept a cell mate or go to administrative segregation. ECF No. 14 at 4. Plaintiff decided to accept a cell mate. Id . Eight days later, plaintiff was stabbed multiple times by cellmate Simmons. Id. at 5; see also ECF No. 34-4 at 32-37 (medical treatment records).
Before inmates are assigned to become cell mates, their central files are reviewed to ensure compatibility and lack of enemy concerns. ECF Nos. 34-12 at ¶ 7, 34-8 at ¶ 5. Inmate Simmons's central file did not contain any information to suggest inmate Simmons was a danger to inmate Smith or inmates in general, as his file was void of evidence of violence against inmates before February 25, 2009. ECF No. 34-10 at ¶ 3. Inmates always have the opportunity to voice a concern regarding fears of danger of their cell mate. ECF No. 34-8 at ¶ 5. Plaintiff did not state he was in fear for his life or safety when he was celled with inmate Simmons. ECF Nos. 34-12 at ¶ 6, 34-8 at ¶ 8. None of the Defendants had any knowledge or information that inmate Simmons was a danger to Plaintiff before February 25, 2009. ECF Nos. 34-8 at ¶ 8, 34-9 at ¶ 4, 34-12 at ¶ 7, 34-5 at 6-8 (plaintiff's deposition).
On January 11, 2010 plaintiff was once again given the option of accepting a cell mate or going to administrative segregation. ECF Nos. 14 at 12, 34-4 at 43. This time, plaintiff was placed in administrative segregation because he complained to Defendant Baker that he could not keep a cell mate due to safety concerns. ECF Nos. 34-9 at ¶ 6, 34-4 at 43. On January 13, 2010 plaintiff appeared before an initial classification committee which ordered a 60 day administrative segregation stay and an investigation to be completed into plaintiff's safety concerns. ECF No. 14 at 12.
An investigation was conducted regarding plaintiff's safety concerns by Correctional Officer Karelas. ECF No. 34-9 at ¶ 6. Officer Karelas interviewed Plaintiff, reviewed his file, and concluded that Plaintiff "was attempting to use his health issues as a tool to navigate where he feels he should be housed and that he does not have any documented enemies on B' Facility." ECF No. 34-9 at ¶ 6. Plaintiff admitted he did not have any enemies on "B" Facility and Officer Karelas recommended that he be ...