United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 173)
JANIS L. SAMMARTINO, District Judge.
Presently before the Court is Defendants E.A. Contreras ("Contreras"), E. Marrero ("Marrero"), P.A. Cortez ("Cortez"), Abad ("Abad"), and D. Smith's ("Smith, " and, collectively, "Defendants") Motion for Summary Judgment or Partial Summary Judgment ("MSJ"). (ECF No. 173.) Also before the Court are the Declaration of Attorney Timothy J. Kral in Support of Defendants' MSJ (ECF No. 174); Plaintiff Mustafa Wright's ("Plaintiff") Opposition to Defendants' MSJ (ECF No. 176); Plaintiff's Opposition to Defendants' MSJ, Eight Exhibits, and Declaration in Support (ECF No. 181); Defendants' Reply to Plaintiff's Oppositions (ECF No. 182); Plaintiff's Sur-Reply (ECF No. 188); and Defendants' Objection to Plaintiff's Sur-Reply (ECF No. 191). This matter was originally set for a hearing before U.S. Magistrate Judge Mitchell D. Dembin on January 17, 2014. ( See ECF No. 173.) This Court now takes the matter under consideration without oral argument pursuant to Civil Local Rule 7.1(d)(1). Having considered the parties' arguments and the law, the Court GRANTS Defendants' MSJ.
I. Procedural History
On November 4, 2009, Plaintiff-a state prisoner proceeding pro se and in forma pauperis -initiated the instant civil-rights action under 42 U.S.C. § 1983 against N. Grannis ("Grannis"), Silva H. Garcia, Contreras, the Office of Watch Commander, Marrero, the Chief Medical Officer, the Office of Registered Nurses, Cortez, Abad, and Smith, alleging violations of his Eighth and Fourteenth Amendment rights. (ECF No. 1.)
On January 23, 2010, Plaintiff filed a First Amended Complaint ("FAC") realleging his claims as to all previously named defendants save Grannis and the Office of Registered Nurses. (ECF No. 8.) On April 1, 2010, Defendants moved to dismiss Plaintiff's FAC. (ECF No. 24.) On March 14, 2011, this Court adopted a Report and Recommendation ("R&R") from U.S. Magistrate Judge Barbara L. Major and dismissed Plaintiff's claims against Smith, Marrero, and Contreras. (ECF No. 50.)
On April 27, 2011, Plaintiff filed a Second Amended Complaint ("SAC"), restating his Eighth Amendment claims against Contreras, Marrero, Cortez, Abad, and Smith. (ECF No. 53.) On May 11, 2011, Smith, Marrero, and Contreras moved to dismiss Plaintiff's SAC. (ECF No. 58.) On March 12, 2012, this Court adopted the R&R of Magistrate Judge Dembin dismissing Plaintiff's claims against these Defendants. (ECF No. 80.) This Court declined to adopt the recommendation that Plaintiff's claims against Smith, Marrero, and Contreras be dismissed with prejudice, instead "allow[ing] Plaintiff a final attempt to amend his complaint." ( Id. at 14.)
On April 6, 2012, Plaintiff filed a Third Amended Complaint ("TAC"), again restating his Eighth Amendment claims against Defendants. (ECF No. 81.) On April 20, 2012, Smith, Marrero, and Contreras again moved to dismiss Plaintiff's TAC. (ECF No. 83.) On October 4, 2012, this Court adopted the R&R of Magistrate Judge Dembin granting in part and denying in part Smith, Marrero, and Contreras' motion to dismiss. (ECF No. 120.)
Defendants subsequently filed the present MSJ. In one of his oppositions, Plaintiff noted that two third parties on whom subpoenas had been served had failed to properly respond, and, as a result, there could be additional discovery that would affect the outcome of Defendants' MSJ. (Second Opposition 16-17, ECF No. 181.) Plaintiff moved to compel discovery responses. (ECF No. 202.)
Accordingly, Magistrate Judge Dembin issued Orders directing that new subpoenas be served on the third parties and demanding that the two third parties respond properly to the subpoenas. (ECF Nos. 217, 225.) The third parties responded and demonstrated their compliance with Magistrate Judge Dembin's Orders. (ECF No. 229.) Magistrate Judge Dembin then granted Plaintiff permission to file a supplemental brief on or before September 12, 2014 to explain how the additional discovery responses affected the disposition of Defendants' MSJ. (ECF No. 233.) Plaintiff filed a supplemental brief. (ECF No. 234.)
II. Factual Background
On June 5, 2008, Smith escorted inmate K. Hopkins ("Hopkins") to Plaintiff's cell at the Richard J. Donovan Correctional Facility ("Donovan") and presented Hopkins as Plaintiff's new cellmate. (Decl. of Att'y Timothy J. Kral in Supp. of Defs.' MSJ ("Kral Decl.") Ex. B (Deposition of Mustafa Wright), at 157:8-11, ECF No. 174.) Plaintiff had double cell status and was not entitled to the cellmate of his choice. ( Id. at 44:24-45:20.) Plaintiff immediately told Smith that he was reluctant to be housed with Hopkins because Hopkins appeared to be mentally disturbed and physically ill. ( Id. at 158:18-22; TAC 7, ECF No. 81; First Opp'n 4, ECF No. 176; Second Opp'n 44 (Decl. of James Brown), ECF No. 181.) Smith responded by laughing and telling Plaintiff, "He's a little crazy, but we've got to house him." (TAC 8, ECF No. 81.)
On June 6, 2008, Plaintiff heard rumors that Hopkins had been moved out of his previous cell because Hopkins' former cellmate had refused to reenter the cell with Hopkins housed there. ( Id. ) Plaintiff complained to Smith that Hopkins had been up all night mumbling profanities and threatening Plaintiff with comments such as, "I'm going to get your ass." ( Id. ) Smith looked into the cell, where he could see Hopkins holding his genitals and smiling. ( Id.; Kral Decl. Ex. B, at 167:9-11, ECF No. 174.) Smith dismissed Plaintiff's concerns, however, telling Plaintiff, "You can handle yourself." (Kral Decl. Ex. B, at 167:23-24, ECF No. 174.)
On June 7, 2008, Plaintiff took his complaint to Abad, a counselor. (TAC 8, ECF No. 81.; Kral Decl. Ex. B, at 194:21-22, 197:4-20, ECF No. 174.) Plaintiff repeated that he did not feel safe with Hopkins. (Kral Decl. Ex. B, at 176:4-11, ECF No. 174.) Abad informed Plaintiff that Plaintiff could be housed in an Administrative Segregation Unit instead. ( Id. at 175:7-11.) Plaintiff declined. ( Id. at 175:12-18.)
That same day, inmate Ramon Murillo ("Murillo"), a third party, declares that he overheard a conversation between Smith, Marrero, and Contreras. (Kral Decl. Ex. C (Decl. of Ramon Murillo) ¶ 4, ECF No. 174-1.) Murillo reports that Marrero asked Smith, "How is it going with the Booty Bandit?" ( Id. ) In response, Contreras asked, "You mean Hopkins?", which brought a laugh from all three men. ( Id. ) Smith answered Marrero's question by stating that "no one wanted to live with Mr. Hopkins so [I] was going to place him with Mr. Wright." ( Id. ) Smith further commented that "Mr. Wright might enjoy himself, he [i]s big enough." ( Id. )
On June 8, 2008, Plaintiff returned to Abad's office to ask if he or Hopkins could be moved to another cell. (Kral Decl. Ex. B, at 202:6-9, ECF No. 174.) Abad asked Plaintiff to step out of the office and telephoned Cortez. ( Id. at 204:1-15.) Abad and Cortez then spoke in private about Hopkins. ( Id. ) When Plaintiff was brought back into Abad's office, Abad told Plaintiff that he would bring Hopkins before the classification committee, but until then Hopkins would remain housed with Plaintiff. ( Id at 204:15-23.)
Throughout June 10, 2008, Plaintiff noticed pain in and around his rectum. (TAC 9, ECF No. 81; Kral Decl. Ex. B, at 113:1-6, ECF No. 174.) Plaintiff saw that his sheets and clothes had been changed, but didn't remember changing them. (TAC 9, ECF No. 81.) He also woke up later than usual and was fatigued the whole day. ( Id. at 9-10; Kral Decl. Ex. B, at 99:13-22, ECF No. 174.) Plaintiff also felt constipated, "which wasn't the norm." (TAC 9, ECF No. 81; Kral Decl. Ex. B, at 102:5-14, ECF No. 174.) When Plaintiff attempted to take a nap, he noticed Hopkins attempting to pour some medication into Plaintiff's coffee mug. (TAC 10, ECF No. 81.)
At this point, Plaintiff "vividly remember[ed]" events from the prior evening. ( Id. ) Specifically, Plaintiff recalled seeing Hopkins pour a white powder into his soup when Plaintiff was distracted by a visitor. ( Id.; Kral Decl. Ex. B, at 149:5-150:25, ECF No. 174.) "Images flashed through [Plaintiff's] mind" of being raped by Hopkins and pushed around his cell in a stupor. (TAC 10, ECF No. 81; Kral Decl. Ex. B, at 115:4-14, 117:12-24, ECF No. 174.)
James Brown ("Brown"), a neighboring inmate, declares that, in June 2008, he heard Plaintiff and Hopkins arguing in their cell, but Brown does not identify what Plaintiff and Hopkins were arguing about or the exact date of the argument(s). (Second Opp'n 44 (Decl. of James Brown), ECF No. 181.) Nor does Brown declare that any of the Defendants heard or responded to the argument(s). ( Id. )
After recalling the events of the previous night, Plaintiff went to the nurse's station and reported what he remembered. (TAC 10, ECF No. 81; Kral Decl. Ex. B, at 32:3-4, ECF No. 174.) Plaintiff was brought to Alvarado Hospital and examined. (TAC 10-11, ECF No. 81; Kral Decl. Ex. B, at 32:5-10, ECF No. 174.)
An October 2, 2008 Investigative Services Unit report discovered no evidence of rape. (Decl. of Robert G. Borg ("Borg Decl.") ¶ 65, ECF No. 173-3.) The December 23, 2008, San Diego Sheriff's Department ("SDSD") Crime Lab report was likewise negative for rape. ( Id. ¶ 66.) The Sexual Assault Response Team ("SART") investigation, which included a forensic study of Plaintiff, ...