United States District Court, E.D. California
ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS
AND DISMISSING CLAIM AGAINST DEFENDANT WADDLE FOR LACK OF
STANDING (Doc. Nos. 46, 52, 77)
is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action brought
pursuant to 42 U.S.C. § 1983. The matter was referred to
a United States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302. The case is proceeding on
plaintiff's first amended complaint against defendants
Neibert, Ronquillo, and Walinga for alleged excessive use of
force in violation of the Eighth Amendment, and against
defendant Waddle for excessive use of force and failure to
protect in violation of the Eighth Amendment. (Doc. No. 7.)
January 19, 2017, the assigned magistrate judge issued
findings and recommendations recommending defendant
Waddle's motion for summary judgment with respect to
plaintiff's failure to protect claim be granted. (Doc.
Nos. 56, 57.) The findings and recommendations were served on
all parties, who were given fourteen days in which to file
written objections thereto. Plaintiff filed objections on
February 6, 2017. (Doc. No. 79.) The parties were given
fourteen days to file replies to any objections lodged. More
than fourteen days have elapsed since plaintiff filed his
objections, with no reply from defendant Waddle.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the undersigned has conducted a de
novo review of this case. Having carefully reviewed the
entire file, including the objections filed by plaintiff, the
undersigned declines to adopt the reasoning set forth in the
findings and recommendations.
correctly pointed out by the assigned magistrate judge,
parties are not typically permitted to file surreplies in
regular motion practice and plaintiff here has given no
specific reason why he should be allowed to do so in this
instance. See L.R. 230. Nevertheless, the
undersigned does not believe striking the surreply is
appropriate here, considering plaintiff's pro se
status and the fact that his surreply presents relevant
evidence on summary judgment. See Blaisdell v.
Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013)
(“Courts in this circuit have an obligation to give a
liberal construction to the filings of pro se
litigants, especially when they are civil rights claims by
inmates. This rule relieves pro se litigants from
the strict application of procedural rules . . . .”)
(citations omitted); Frost v. Symington, 197 F.3d
348, 352-53 (9th Cir. 1999) (requiring liberal treatment of
pro se plaintiff at summary judgment); Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (noting
liberal treatment of pro se plaintiff is
“particularly important in civil rights cases”).
Therefore, to the extent plaintiff's surreply was
stricken from the court's docket by the magistrate judge,
the order striking it is vacated. (Doc. Nos. 52, 77.) The
undersigned will consider all available evidence in ruling on
the pending motion for summary judgment.
only one of plaintiff's claims on which summary judgment
was sought by defendant Waddle was the failure-to-protect
claim. Defendant Waddle acknowledges that, on May 14, 2014,
shortly after his arrival at Kern Valley State Prison
(“KVSP”), plaintiff advised her he had safety
concerns related to members of the “2-5” prison
gang at KVSP. (Doc. No. 46-3 at ¶ 5.) It is also
undisputed that plaintiff was previously involved in multiple
altercations with members of that gang at the Substance Abuse
Treatment Facility in Corcoran, California, approximately 30
miles away from KVSP. According to plaintiff, these
altercations began during a prison riot which took place in
November 2012. (Doc. No. 52 at 5.) Shortly thereafter, on
January 16, 2013, plaintiff was attacked by his cellmate, a
member of the 2-5 gang, while plaintiff slept in his cell.
(Id. at 6.) As a result of this attack
plaintiff's jaw was fractured, requiring surgery. (Doc.
No. 52 at 19-41.) Approximately one week later, on January
23, 2013, plaintiff was involved in another altercation with
the same inmate. (Doc. No. 52 at 43-51.) This altercation was
apparently initiated by plaintiff, who claimed at the time
that he attacked his former cellmate because he was afraid he
was going to be attacked again if he did nothing.
(Id. at 47-48.) Plaintiff alleges in his verified
complaint that he told defendant Waddle all of this
when he met with her on May 14, 2014 and asked for a change
in his housing assignment. (Doc. No. 7 at ¶ 9.)
pending findings and recommendations the assigned magistrate
judge concluded that plaintiff failed to present sufficient
evidence that he faced an objectively serious risk of hard on
May 14, 2014 when he spoke to defendant Waddle shortly after
his arrival at KVSP and that the granting of summary judgment
in favor of defendant Waddle was therefore appropriate. (Doc.
No. 77 at 8-9.) The undersigned declines to adopt that
reasoning. Here, plaintiff has come forward with evidence on
summary judgment that he was personally involved in serious
altercations with members of the 2-5 prison gang
approximately a year prior, informed defendant Waddle of
those altercations and expressed his concerns based upon
them. See e.g., King v. Biter, No.
1:15-cv-00414-LJO-SAB, 2016 WL 6248263, at *5-6 (E.D. Cal.
Oct. 25, 2016) (concluding defendants not entitled to
qualified immunity when plaintiff had noted general threats
when housed with members of the Blood gang, from which he had
dissociated); Mitchell v. Chavez,
No.1:13-cv-01324-DAD-EPG, 2016 WL 3906956, at *3-5 (E.D. Cal.
July 19, 2016) (denying summary judgment when plaintiff
alleged he had told guards about prior altercations with
members of 2-5 gang); Galligar v. Franke, No.
2:12-cv-01891-PK, 2015 WL 10373492, at * (D. Ore. Dec. 28,
2015) (considering and finding relevant on summary judgment
plaintiff's “longstanding dispute with various
white supremacist prison gangs”); Chandler v.
Williams, No. cv-08-962-ST, 2010 WL 6004373, at *10-12
(D. Ore. Dec. 21, 2010) (noting that while “a prisoner
seeking a remedy for unsafe conditions need not ‘await
a tragic event such as an actual assault before obtaining
relief' . . . a ‘mere naked threat' does not
suffice to establish a constitutional wrong”) (quoting
Farmer v. Brennan, 511 U.S. 825, 845 (1994) and
Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987)).
Therefore, summary judgment in favor of defendant Waddle is
not appropriate on that ground. Nevertheless, defendant
Waddle is entitled to summary judgment on plaintiff's
failure to protect claim.
Waddle also moved for summary as to the failure to protect
claim on the ground that plaintiff was not injured by the
alleged failure to protect. (Doc. No. 46-2 at 6-7.) The court
construes this as defendant seeking summary judgment in her
favor and dismissal because plaintiff lacks standing to
pursue the failure-to-protect claim. Plaintiff does not
dispute he was never assaulted or injured by a member of the
2-5 gang while at KVSP following defendant Waddle's
alleged failure to protect him. (See Doc. No. 48
(Pl.'s Opp'n.) at 4) (“Plaintiff may not be
entitled to monetary damages due to the fact that no injuries
came to plaintiff at the hands of 2/5 gang members while he
was housed on KVSP C Facility.”). Nevertheless,
plaintiff argues he “need not prove that the gang
members on C Facility at KVSP actually harmed him to recieve
[sic] injunctive relief from Defendant C. Waddle.”
(Id.) However, injunctive relief-to the extent it
was sought by plaintiff-is not available here since plaintiff
has not been incarcerated at KVSP since prior to the filing
of this civil right action. In a separate motion currently
pending in this matter, plaintiff notes he was moved from
KVSP to the Special Housing Unit at the California
Correctional Institution - Tehachapi
(“CCI-Tehachapi”) on October 1, 2014, two months
prior to the filing of this action. (Doc. No. 49 at 3.) The
court's docket indicates plaintiff remains held at
CCI-Tehachapi. There is no suggestion before the court that
plaintiff will be returned to KVSP, and the sole basis for
plaintiffs claim against defendant Waddle is her decision not
to remove plaintiff from C Facility at KVSP in May 2014.
Therefore, having suffered no injury remediable in equity or
at law, plaintiff simply lacks standing to bring this
claim against defendant Waddle. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (“[To have
standing, ] plaintiff must have suffered an ‘injury in
fact'-an invasion of a legally protected interest which
is (a) concrete and particularized; and (b) ‘actual or
imminent, not conjectural or hypothetical.'”);
see also DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 352 (2006) (“[A] plaintiff must demonstrate
standing separately for each form of relief sought.”)
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167 (2000)). Since
plaintiff lacks standing, this claim must be dismissed.
1. The court declines to adopt the reasoning set forth in the
findings and recommendations issued January 19, 2017 (Doc.
2. The order striking plaintiffs surreply is vacated (Doc.
Nos. 52, 77);
3. Defendant Waddle's motion for summary judgment is
granted (Doc. No. 46); and
4. Plaintiffs failure-to-protect claim is dismissed due to
plaintiffs lack of standing.