Mitchell v. Chavez

          FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT CHAVEZ’S MOTION FOR SUMMARY JUDGMENT BE DENIED (ECF No. 37) OBJECTIONS, IF ANY, DUE WITHIN TWENTY DAYS

         Plaintiff Corey Mitchell, an inmate in the custody of the California Department of Corrections and Rehabilitation (“CDCR”) has alleged a claim under the Eighth Amendment against Defendant Correctional Officer (“C/O”) Chavez and Defendant Sergeant Sheldon for failure to protect. Plaintiff alleges in his second amended complaint that on September 5, 2011, Defendants Chavez and Sheldon ignored Plaintiff’s concerns regarding his safety and directed Plaintiff to accept a cellmate, who thereafter stabbed Plaintiff in the chest.

         Defendant Chavez has moved for summary judgment. He claims that he was not deliberately indifferent to Plaintiff’s safety and he is entitled to qualified immunity. The Court finds that Defendant Chavez has not presented undisputed evidence that he was not subjectively aware of a serious risk to Plaintiff’s safety and that he took reasonable steps to ensure Plaintiff’s safety. While the ultimate factfinder may very well find that Defendant Chavez was not deliberately indifferent to Plaintiff’s safety, the Court finds that it cannot come to that conclusion drawing all inferences in favor of Plaintiff based on the evidence presented. Summary judgment should thus be denied.

         I. BACKGROUND

         Plaintiff filed his second amended complaint in this Court on July 14, 2014. (ECF No. 11). In pertinent part, Plaintiff alleges that he was attacked by members of the 2-5 (“2-5” or “Two-Five”) gang at Kern Valley State Prison. Plaintiff was hospitalized and suffered a broken hand, a broken jaw, and deep bruising and lacerations from being kicked and dragged along a concrete surface. Plaintiff filed an administrative grievance, requesting that prison officials protect him from 2-5 gang members. Plaintiff alleges that the grievance was denied on technical grounds.

         Plaintiff alleges that four days after he received the rejection of his emergency appeal, he was approached by Defendants Chavez and Sheldon. Plaintiff was housed in the Administrative Segregation Unit (“ASU”). Plaintiff was told that he was going to get a cellmate. Plaintiff alleges that he advised Defendants Chavez and Sheldon that he had serious enemy concerns in the ASU unit. Two of the 2-5 gang members that attacked him on the yard were housed in the ASU, and they were telling the other gang members to kill Plaintiff on sight. Plaintiff alleges that Defendants Chavez and Sheldon were indifferent to his concerns, directing Plaintiff to either take a cellmate or face disciplinary charges and the loss of his property. Plaintiff alleges that inmate Baylor, the prospective cellmate who was being forced on him, was clearly a 2-5 gang member, as “he had a large tattoo on his lower face area, a large ‘2’ on the right side of his chin and a large ‘5’ on the left side of his chin-it was impossible to miss.”

         Baylor was moved into Plaintiff’s cell, and Plaintiff alleges that approximately thirty to forty-five seconds after prison officials left the cell, Baylor began stabbing Plaintiff in the chest with an “ice pick type knife.” Plaintiff alleges that as he and Baylor fought, the sound they made was loud. Plaintiff specifically alleges that there was a loud booming noise as they slammed into the cell door. Prison staff “eventually” responded, and both Plaintiff and Baylor were removed from the cell. Plaintiff was hospitalized for treatment for his stab wounds. When Plaintiff returned from the hospital, he continued to file inmate grievances. Plaintiff’s grievance was denied all the way through the third level of review.

         Plaintiff was eventually transferred to High Desert State Prison, where he is currently incarcerated. Plaintiff alleges that he suffers from post-traumatic stress disorder, and as a result, “has difficulty functioning around the inmates in the facility, suspecting all as ‘potential’ 2-5 gang members/associates, and threatening to his life.” Plaintiff alleges that he continues to file appeals, which “mysteriously” get lost.

         The Court screened Plaintiff’s second amended complaint and held that Plaintiff had stated a claim against Defendants Chavez and Sheldon for failure to protect in violation of the Eighth Amendment.^[1] (ECF No. 14). The Court found Plaintiff failed to allege cognizable claims against the remaining defendants and granted leave to amend the complaint. Plaintiff elected to proceed with only the Eighth Amendment claim against Defendants Chavez and Sheldon. (ECF No. 15).

         Defendant Chavez filed the instant motion for summary judgment on May 5, 2016. (ECF No. 37). Defendant Chavez claims undisputed evidence shows that he “did not perceive a substantial risk to Plaintiff’s safety, and that he took steps to ensure Plaintiff’s safety before Plaintiff was housed with the prospective cellmate.” (ECF No. 37-1 at 1).^[2] Plaintiff opposed the motion on May 27, 2016. (ECF No. 43). Defendant filed a reply on June 7, 2016. (ECF No. 46).

         II. LEGAL STANDARDS

         A. Summary Judgment

         Any party may move for summary judgment, and the Court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Washington Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010).

         Defendant does not bear the burden of proof at trial and in moving for summary judgment, he need only prove an absence of evidence to support Plaintiff’s case. Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If Defendant meets his initial burden, the burden then shifts to Plaintiff “to designate specific facts demonstrating the existence of genuine issues for trial.” Oracle, 627 F.3d at 387 (citing Celotex, 477 U.S. at 323). This requires Plaintiff to “show more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         “In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, ” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (citations omitted). The Court determines only whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff’s filings because he is a pro se prisoner. See Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) ...