United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DENYING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NOS. 88, 99,
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.
is appearing pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983.
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.
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.
SUMMARY JUDGMENT STANDARD
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.
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.
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).
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.
Summary of Plaintiff’s Complaint
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.
Statement of Undisputed Facts
Plaintiff was incarcerated at Pleasant Valley State Prison
during the time period relevant to this lawsuit. (First Am.
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
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.)
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.)
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.)
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.)
Officer Moore immediately activated her alarm and yelled
“get down, ” but the inmates did not comply.
(Moore Decl. at ¶ 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
other correctional staff used a MEB. (Martinez Decl. at
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.)
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.)
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.)
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.)
no time did inmate Baker give Officer Moore any indication
that he was afraid of attack by the Bulldog inmates. (Moore
Decl. at ¶ 12.)
words were exchanged between inmate Baker and the Bulldog
inmates prior to the ...