United States District Court, E.D. California
ORDER GRANTING, NUNC PRO TUNC TO OCTOBER 7, 2016,
DEFENDANTS' MOTION FOR AN EXTENSION (ECF NO. 59) FINDINGS
AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (ECF NO. 61) FOURTEEN DAY OBJECTION
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
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 case proceeds on Plaintiff's complaint
against Defendant G. Arellano for subjecting Plaintiff to
inhumane conditions of confinement and against Defendant R.
Montanez for failure to protect, in violation of the Eighth
Amendment, and against Defendant Montanez for retaliation in
violation of the First Amendment. (ECF No. 1.) Before the
Court is Defendants' October 7, 2016 motion for summary
judgment. (ECF No. 61.) Also before the Court is
Defendants' August 30, 2016 motion for an extension of
time to file a dispositive motion. (ECF No. 59.)
Motion for Extension of Time
to the Court's Discovery and Scheduling Order, the
original deadline for filing dispositive motions was August
10, 2016. (ECF No. 27.) That deadline was then extended to
September 9, 2016. (ECF No. 56.)
August 30, 2016, Supervising Deputy Attorney General Gretchen
Buechsenschuetz filed a motion requesting an extension of the
dispositive motion deadline up to and until October 7, 2016,
due to unforeseen medical issues affecting assigned Deputy
Attorney General, Danielle Hemple. (ECF No. 59.)
cause appearing, Defendants' motion will be granted and
the deadline for filing dispositive motions will be extended
nunc pro tunc to October 7, 2016.
Legal Standard for Summary Judgment
party may move for summary judgment, and “[t]he [C]ourt
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). 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 absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
party seeking summary judgment “always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal quotation marks omitted).
If the movant will have the burden of proof at trial, it must
demonstrate, with affirmative evidence, that “no
reasonable trier of fact could find other than for the moving
party.” Id. at 984. In contrast, if the
nonmoving party will have the burden of proof at trial,
“the movant can prevail merely by pointing out that
there is an absence of evidence to support the nonmoving
party's case.” Id. (citing
Celotex, 477 U.S. at 323). Once the moving party has
met its burden, the nonmoving party must point to
"specific facts showing that there is a genuine issue
for trial." Id. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
ruling on a motion for summary judgment, a court does not
make credibility determinations or weigh evidence. See
Liberty Lobby, 477 U.S. at 255. Rather, “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.”
Id. Only admissible evidence may be considered in
deciding a motion for summary judgment. Fed.R.Civ.P.
56(c)(2). “Conclusory, speculative testimony in
affidavits and moving papers is insufficient to raise genuine
issues of fact and defeat summary judgment.”
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007).
Rule 260(b) requires that “any party opposing a motion
for summary judgment . . . reproduce the itemized facts in
the Statement of Undisputed Facts and admit those facts that
are undisputed and deny those that are disputed, including
with each denial a citation to the particular portions of any
pleading, affidavit, deposition, interrogatory answer,
admission, or other document relied on in support of that
denial.” Here, Plaintiff presents his own
“Statement of Facts” but does not reference
Defendants' Statement of Undisputed facts, and he fails
to cite to any portion of the record supporting any of his
own stated facts. For these reasons, Defendants' facts
will be deemed undisputed, except where a fact is brought
into dispute by facts presented in Plaintiff's verified
complaint and sworn opposition. See Jones v. Blanas,
393 F.3d 918, 923 (9th Cir. 2004); Johnson v.
Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998).
Facts Related to Conditions of Confinement
times relevant to this suit, Plaintiff was in the custody of
the California Department of Corrections and Rehabilitation
(“CDCR”) and incarcerated at the California
Correctional Institution (“CCI”) in Tehachapi,
California. (Decl. of M. Dailo in Supp. of Mot. for Summ. J.
(“MSJ”) (ECF No. 61-5) ¶ 7.)
August 18, 2014 to September 26, 2014, Plaintiff was assigned
to Facility A, Building 8, Section B, management cell 103
(“Cell 8B-103”) at CCI. (Dailo Decl. ¶ 8;
Decl. of G. Arellano in Supp. of MSJ (ECF No. 61-2) ¶
5.) According to Plaintiff, Defendant Arellano placed
Plaintiff in this cell as punishment after Plaintiff refused
to accept an assigned cellmate. (Pl.'s Opp'n to MSJ
(ECF No. 64) at 19.)
8B-103 was equipped with a toilet, sink, blankets, sheets,
and a mattress on the floor; there was no bed frame.
(Arellano Decl. ¶ 5; Torres Dep. 86:8-21; 91:12-14.)
Plaintiff states the mattress was torn, smelly, and stained
with blood and urine. (Torres Dep. 91:4-6; Pl.'s
Opp'n at 5.) Plaintiff also states he was never provided
with clean bedding. (Compl. (ECF No. 1) at 4; Pl.'s
Opp'n at 5; Torres Dep: 91:12-23.) Plaintiff stayed in
this cell for 40-50 days. (Dailo Decl. ¶ 8; Arellano
Decl. ¶ 5; Pl.'s Opp'n at 5.) He reports that he
suffered back and neck pain from sleeping on the floor,
although it was “not so severe.” (Pl.'s
Opp'n at 5; Torres Dep. 97:22-25, 98:21-24.) He never
sought or received medical attention for this pain.
(Pl.'s Opp'n at 5; Torres Dep. 98:2-8.) He did not
suffer any other ailments due to the conditions of Cell
8B-103. (Torres Dep. 98:25-99:2; Pl.'s Opp'n at 13.)
the 40-50 days Plaintiff was in Cell 8B-103, Defendant
Arellano was a correctional sergeant assigned to supervise
the unit. (Arellano Dec. ¶¶ 4-5.) In August and
September of 2014, Arellano was assigned to the second watch,
which covered the hours of 6:00 am to 2:00 pm. (Id.
¶ 7) Laundry exchange was performed during third watch,
i.e., between the hours 2:00 pm to 10:00pm. (Id.)
Plaintiff states that even though Arellano worked the second
watch, he sometimes supervised the third watch and assisted
with laundry exchange. (Pl.'s Opp'n at 6.) According
to Plaintiff, as the Sergeant, Arellano had control over
everything that took place in the building. (Decl. of D.
Hemple in Supp. of MSJ (ECF No. 61-6) Ex. A, Dep. of G.
was not personally responsible for distributing bedding or
collecting inmates' laundry. (Id.) Plaintiff
states, however, that Arellano was responsible for
supervising the employees who performed the laundry exchange.
(Pl.'s Opp'n at 6.) Arellano states he did not
believe, and did not have any reason to infer, that the
conditions of Plaintiff's cells were so deficient as to
present a substantial risk of harm to Plaintiff's health
or safety. (Arellano Decl. ¶ 9.) Plaintiff, however,
claims that Arellano was aware of the conditions in
Plaintiff's cell and refused to issue Plaintiff a clean
mattress and sheets or assign Plaintiff to a different cell.
(Pl.'s Opp'n 6.) According to Plaintiff, when he
complained to Arellano on one occasion about his mattress,
Arellano said only “that's what he had.”
(Torres Dep. 95:3-96:3.)
Facts Related to Failure to Protect
about September 26, 2014, Defendant Montanez was involved in
facilitating the double cell assignment of Plaintiff and an
inmate named Diaz. (Decl. of R. Montanez in Supp. of MSJ (ECF
No. 61-3) ¶ 5). Montanez completed parts 1 and 2 of the
Administrative Segregation Unit/Security Housing Unit Double
Cell Review (“Form 1882-B”). (Montanez Decl.
¶ 5; Montanez Decl. Ex. A.) This form was necessary
since both Plaintiff and Diaz were housed in the
administrative segregation unit. (Montanez Decl. ¶ 5.)
Both inmates were also endorsed for the Special Needs Yard
(“SNY”). (Decl. of K. Armstrong in Supp. of MSJ
(ECF No. 61-4) ¶ 6.)
did not have the authority to approve inmate cell
assignments. (Montanez Decl. ¶¶ 7-8; Pl.'s
Opp'n at 7.) Instead, Acting Correctional Lieutenant K.
Armstrong signed off on the Form 1882-B approving of the cell
assignment. (Armstrong Decl. ¶¶ 4-5; Armstrong
Decl. Ex. A; Montanez Decl. ¶ 8.)
to the cell assignment, Montanez interviewed both Plaintiff
and Diaz to ascertain whether they were willing to share a
cell together; both inmates indicated their consent and
signed the Form 1882-B. (Montanez Decl. ¶ 5; Montanez
Decl. Ex. A; Torres Dep. 113:11-114:20.) Lieutenant
Armstrong, possessing no information indicating the two
inmates were incompatible, authorized their double cell
assignment. (Armstrong Decl. ¶ 6.)
contends that during his interview with Montanez, Montanez
told Plaintiff that Diaz had the “same issues” as
Plaintiff. (Pl.'s Opp'n at 7; Compl. at 6; Torres
Dep. 108:8-11.) Plaintiff understood this statement to mean
that Diaz was a sex offender like Plaintiff. (Pl.'s
Opp'n at 7; Compl. at 6; Torres Dep. 118:15-18.) Both
parties acknowledge that during the interview, Plaintiff did
not ask Montanez if Diaz was a sex offender or had
sex-related commitment charges. (Montanez Decl. ¶ 6;
Torres Dep. 112:17-19.) Both parties acknowledge that
Montanez never explicitly told Plaintiff that Diaz was a sex
offender or had sex-related commitment charges. (Montanez
Decl. ¶ 6; Pl.'s Opp'n at 7; Torres Dep.
110:15-113:10.) However, Plaintiff states that Montanez knew
of prior incidents in which Plaintiff was assaulted by a
cellmate because of Plaintiff's sex offender status.
(Pl.'s Opp'n at 6.) Plaintiff states that Montanez
also knew that Plaintiff only wanted to be housed with
another sex offender. (Pl.'s Opp'n at 6-7; Torres
Dep. 116:14-16 (“The issue was that I was requesting
somebody that have-that have [the same] sex offenses as me.
And I was requesting that all the time.”))
Plaintiff and Diaz became cellmates, Plaintiff told Diaz that
he was a sex offender. (Torres Dep. 122:2-6.) Diaz did not
ask; Plaintiff volunteered the information. (Id.)
Plaintiff did not tell Montanez that he had disclosed his
status to Diaz. (Montanez Decl. ¶ 9.) Plaintiff did not
suggest to Montanez that he was fearful of Diaz or that Diaz
had pressured Plaintiff to disclose his commitment offense.
(Id.) On October 4, 2014, one day after Plaintiff
revealed he was a sex offender, Plaintiff and Diaz were
involved in a physical altercation inside of their cell and
Plaintiff cut Diaz's face with a razor blade. (Torres
Dep. 124:21-24; 128:23-129:1; 130:21-22; 133:13-21; Compl. at
6.) Diaz initiated the altercation after he found out that
Plaintiff was a sex offender. (Pl.'s Opp'n at 7.)
Plaintiff was left with marks and a bruise on his face.
(Torres Dep. 133:13-21; Pl.'s Opp'n at 8.)
Facts Related to Retaliation
October 16, 2014, Plaintiff appeared for an Institution
Classification Committee (“ICC”) hearing before
Chief Deputy Warden J. Gutierrez. (Dailo Decl. ¶ 9;
Compl. at 7.) During the hearing, Plaintiff verbally reported
to Gutierrez that Montanez had engaged in misconduct. (Compl.
at 7; Pl.'s Opp'n 8.) While Montanez has no
recollection of Plaintiff making this complaint (Montanez
Decl. ¶ 13), Plaintiff states that Montanez escorted
Plaintiff to the ICC hearing and was “standing next to
plaintiff” when Plaintiff made his complaint.
(Pl.'s Opp'n at 8, 16-17.)
alleges that because of this complaint, “every time
Plaintiff went out of his cell” Montanez searched and
trashed it and took Plaintiff's personal belongings
“such as books and food.” (Pl.'s Opp'n at
8-9; Torres Dep. 141:1-7.) Defendants dispute this allegation
and claim that Montanez searches of Plaintiff's cell were
routine and pursuant to policy. (Montanez Decl. ¶ 11.)
CDCR policy required Montanez to conduct a minimum of three
cell searches per shift. (Id.) It was Defendant
Montanez's practice to randomly select cells to search,
and sometimes a cell would be searched twice within a
relatively short period of time. (Id.) Conducting
random searches prevented inmates from having advance notice
of when searches would occur. (Id.) While Plaintiff
acknowledges that Montanez is allowed to search inmates'
cells “whenever he wants” (Torres Dep.
141:14-17), he claims that other officers who searched
Plaintiff's cell would do so without disturbing
Plaintiff's belongings. (Torres Dep. 141:17-21.)
states that on October 16, 2014, Montanez searched his cell
after the ICC hearing. (Compl. at 7.) Montanez has no
recollection of searching Plaintiff's cell on this date.
(Montanez Decl. ¶ 11.) Plaintiff does not specify the
dates of the other cell searches. He also does not detail the
specific items that Montanez removed from his cell.
October 26, 2014, Plaintiff filed a formal grievance
complaining about Montanez's double celling Plaintiff
with Diaz. (Pl.'s Opp'n at 39-41,