United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT
DEFENDANT CHAVEZ’S MOTION FOR SUMMARY JUDGMENT BE
DENIED (ECF No. 37) OBJECTIONS, IF ANY, DUE WITHIN TWENTY
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.
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.
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.
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.”
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.
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.
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. (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).
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
Plaintiff opposed the motion on May 27, 2016. (ECF No. 43).
Defendant filed a reply on June 7, 2016. (ECF No. 46).
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.
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)).
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) ...