Baker v. Moore

          FINDINGS AND RECOMMENDATION RECOMMENDING DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NOS. 88, 99, 105)

         Currently before the Court is Defendant S. Moore's (“Defendant”) motion for summary judgment with regard to Plaintiff Harvey Curtis Baker's (“Plaintiff or “Baker”) claim for failure to protect in violation of the Eighth Amendment. (ECF No. 88.)

         Plaintiff is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         I. PROCEDURAL HISTORY

         On December 26, 2013, Plaintiff filed a First Amended Complaint. (ECF No. 68.) On August 31, 2015, Defendant filed a motion for summary judgment. (ECF No. 88.) Pursuant to court order, Plaintiff filed an opposition on November 19, 2015. (ECF No. 99.) Defendant filed a reply on January 25, 2016. (ECF No. 105.)

         On October 23, 2015, Plaintiff filed a motion to compel discovery response. (ECF No. 95.) On November 12, 2015, Defendant filed an opposition to Plaintiffs motion to compel. (ECF No. 98.) Plaintiff filed a reply on November 24, 2015. On March 1, 2016, the Court granted in part Plaintiffs motion to compel. (ECF No. 107.) The Court ordered Defendant to provide Plaintiff with a copy of all of the Part B pages of PSRS between July 16, 2009 and March 19, 2010, which describe the program governing the Fresno Bulldogs as a result of the July 16, 2009 triggering event. The Court permitted Plaintiff to file an amended opposition to Defendant's motion for summary judgment by April 4, 2016. However, Plaintiff has not filed an amended opposition.

         II. SUMMARY JUDGMENT STANDARD

         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) (quotation marks omitted); Washington Mut. Inc. v. U.S., 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 Sch. Dist, 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         A defendant does not bear the burden of proof at trial and in moving for summary judgment; he or she needs only prove an absence of evidence to support a plaintiffs case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

         In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), 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) (quotation marks and citation omitted).

         In arriving at this recommendation, the Court has carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.

         III. DISCUSSION

         A. Summary of Plaintiff’s Complaint

         Plaintiff alleges that Defendant failed to protect him in violation of the Eighth Amendment. On March 19, 2010, Plaintiff was attacked by three Bulldog-affiliated inmates at the Correctional Treatment Center (CTC) at Pleasant Valley State Prison. When Defendant opened the sub-cell that was designated for Bulldog inmates, the three Bulldog inmates in that sub-cell rushed by her and started attacking Plaintiff, who was in an adjacent cell. Plaintiff alleges that B-Yard at PVSP was on a lockdown or modified program for 2 years prior to the incident in this case and that prison and escort staff working in the correctional treatment center knew about the Bulldog prisoners assaulting white prisoners on B-yard.

         B. Statement of Undisputed Facts

         1. Plaintiff was incarcerated at Pleasant Valley State Prison during the time period relevant to this lawsuit. (First Am. Compl., generally.)

         2. In March 2010, Defendant Officer Moore worked at PVSP in the Correctional Treatment Center (CTC) as an Entry Officer. As an Entry Officer in the CTC, Officer Moore was responsible for controlling the door to permit escorted inmates to enter the CTC for ducated medical appointments. (Moore Decl. at ¶¶ 1-2.)

         3. In March 2010, Officer Moore worked in the CTC with Officer Estrada, who was one of the Search and Escort (S&E) Officers, and Officer Martinez, who was one of the Health Care Access Complex Escort Officers. (Moore Decl. at ¶ 3; Estrada Decl. at ¶ 1; Martinez Decl. at ¶1.)

         4. On March 19, 2010, Officer Estrada and Officer Moore traded positions. Officer Estrada worked at the entry desk, while Officer Moore was responsible for handling in-CTC escorts with Officer Martinez. (Moore Decl. at ¶ 4; Estrada Decl. at ¶ 4.)

         5. On March 19, 2010, Baker was escorted to the CTC for a surgery appointment. Upon arrival at the CTC, inmate Baker was placed inside a “B-yard holding tank, ” which consisted of a main cell and three small adjacent cells (sub-cells) attached to the main cell. (Moore Decl. at ¶ 5; Estrada Decl. at ¶ 5.)

         6. Inmate Marta came out of the sub-cell and started immediately assaulting Baker. As Officer Moore tried to lock the sub-cell door, inmate Sanchez (G-64331) and inmate Thompson (G-55980) pushed the sub-cell door open and rushed out and also began to assault inmate Baker. (Moore Decl. at ¶ 7; Martinez Decl. at ¶ 5.)^[1]

         7. Officer Moore immediately activated her alarm and yelled “get down, ” but the inmates did not comply. (Moore Decl. at ¶ 8.)^[2]

         8. Officer Moore was pushed against the wall and fell. Officer Martinez was very concerned about inmate Marta attacking Officer Moore, so Officer Martinez used his Monadnock Expandable Baton (MEB) on inmate Marta. (Martinez Decl. at ¶ 5.)

         9. No other correctional staff used a MEB. (Martinez Decl. at ¶ 5.)^[3]

         10. As Officers Martinez and Moore tried to exit the sub-cell, responding staff, including Officer Estrada, arrived and used Oleoresin Capsicum (OC) Pepper Spray, at which time the inmates complied and proned-out. (Moore Decl. at ¶ 9; Estrada Decl. at ¶ 7.)

         11. Responding staff and Officer Moore were instructed by Sergeant Navarro to place mechanical restraints on all affected inmates and escort them outside for decontamination. (Moore Decl. at ¶ 10.)

         12. As of March 19, 2010, Officers Moore, Estrada, and Martinez were aware that Bulldog inmates were on lockdown, and that the sub-cell at CTC held Bulldog inmates. (Moore Decl. at ¶ 11; Estrada Decl. at ¶ 8; Martinez Decl. at ¶ 6.)

         13. Officers Moore, Estrada, and Martinez were not aware that Bulldog inmates in the sub-cell would rush out and attack inmate Baker. (Moore Decl. at ¶ 12; Estrada Decl. at ¶ 8; Martinez Decl. at ¶ 6.)

         14. At no time did inmate Baker give Officer Moore any indication that he was afraid of attack by the Bulldog inmates. (Moore Decl. at ¶ 12.)^[4]

         15. No words were exchanged between inmate Baker and the Bulldog inmates prior to the ...