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Torres v. Arellano

United States District Court, E.D. California

March 24, 2017

GUSTAVO TORRES, Plaintiff,
v.
G. ARELLANO, et al., Defendants.

          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 DEADLINE

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.)

         I. Motion for Extension of Time

         Pursuant 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.)

         On 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.)

         Good cause appearing, Defendants' motion will be granted and the deadline for filing dispositive motions will be extended nunc pro tunc to October 7, 2016.

         II. Legal Standard for Summary Judgment

         Any 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. 56(c)(1).

         The 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)).

         In 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).

         III. Factual Allegations

         Local 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).

         A. Facts Related to Conditions of Confinement

         At all 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.)

         From 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.)

         Cell 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.)

         During 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. Torres 92:18-93:25.)

         Arellano 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.)

         B. Facts Related to Failure to Protect

         On or 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.)

         Montanez 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.)

         Prior 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.)

         Plaintiff 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.”))

         After 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.)

         C. Facts Related to Retaliation

         On 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.)

         Plaintiff 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.)

         Plaintiff 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.

         On October 26, 2014, Plaintiff filed a formal grievance complaining about Montanez's double celling Plaintiff with Diaz. (Pl.'s Opp'n at 39-41, “Inmate/Parolee Appeal.”)

         IV. Discussion

         A. ...


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