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Ganoe v. Abreu

United States District Court, E.D. California

June 30, 2017

JOHN ROBERT GANOE, Plaintiff,
v.
T. ABREU, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. The claims which remain arise under the Eighth Amendment against defendants Abrue, Johnson, Gonzalez and Kirby who are all employees of the California Department of Corrections and Rehabilitation (CDCR) at the Deuel Vocational Institution (DVI). Defendants have filed a motion for summary judgment in which they argue that plaintiff failed to exhaust available administrative remedies prior to filing suit. For the following reasons, the court recommends that defendants' motion for summary judgment be granted.

         I. Plaintiff's Allegations

         Plaintiff alleges he arrived at DVI on April 21, 2014 and was housed in E-wing of the Special Processing Unit. At some point, plaintiff heard other inmates who were housed in the San Joaquin County Jail with plaintiff spread around the unit the details of plaintiff's convictions.[1]

         On May 14, plaintiff was assigned Jesus Vega as a cell mate. At some point, Vega demanded to see plaintiff's “paperwork” and became more angry and aggressive toward plaintiff. On June 10, plaintiff requested in writing to be placed in protective custody, but received no response.

         On June 24, after eating, plaintiff refused to enter his cell, and asked to speak to a sergeant about concerns he had for his safety with respect to his cellmate. Plaintiff was forced into his cell by a correctional officer. After plaintiff entered his cell, Vega became furious and said, “no they're moving you today.” Vega demanded that plaintiff call “man down” or Vega would beat him.

         As plaintiff attempted to get the attention of a correctional officer by pounding on his cell door and yelling “man down, ” Vega stripped to his shorts, removed his shirt and began wrapping his fists with cloth. At that point, defendant Abrue opened the door. Plaintiff told Abrue that Vega wanted to fight and that he was afraid. Vega indicated “he has to go!” Abrue said “nobody's going anywhere, ” slammed the cell door shut and left. After Abrue left, plaintiff was beaten unconscious by Vega. After the attack, Abrue returned and removed Vega from the cell and plaintiff was taken to see Officer Sandoval. At the time, he was covered in blood and inmates plaintiff identifies as gang members yelled threats. Sandoval told them to “shut up.” After receiving medical attention, plaintiff was moved to administrative segregation.

         Plaintiff remained in administrative segregation until a classification hearing was held on August 21. At the hearing, defendants Gonzalez, Johnson and Kirby informed plaintiff he would be removed from administrative segregation and sent back to the Special Processing Unit. Plaintiff “vehemently disagreed” and reminded the panel of the threats to his safety.

         While plaintiff was being transferred back to E-wing, he was identified by a gang leader and plaintiff was threatened by him and other gang members including inmates Davis and Chapman. Plaintiff informed defendant Abrue of the threats. Plaintiff requested that Abrue send plaintiff back to administrative segregation or some other form of protective custody, but Abrue refused and ordered that plaintiff go to his new cell.

         About a half hour later, plaintiff met Abrue and another correctional officer. Plaintiff detailed threats made against him and requested protective custody. Abrue told plaintiff he needed to learn how to fight, and the other officer told plaintiff his crimes were “despicable.” Plaintiff's request for protective custody was denied.

         On August 31, while returning to his cell after eating, plaintiff was “jumped” and beaten by inmates Davis and Chapman. After this incident, plaintiff requested protective custody, but was again denied.

         On September 4, plaintiff requested in writing to speak with defendant Johnson explaining the details of his being “jumped” and asking to be placed back in administrative segregation. Plaintiff did not receive a reply to his request.

         On October 1, while plaintiff was on the exercise yard, he was punched in the face by an inmate and knocked unconscious. Plaintiff was taken to UC Davis Medical Center and was diagnosed with an orbital fracture of his left eye socket, a global rupture of his left eyeball and a detached retina. Plaintiff was returned to DVI after the surgery, but continued to experience pain. On October 30, 2014, plaintiff was again taken to UC Davis Medical Center and underwent a second surgery on his left eye. After the surgery, plaintiff was returned to DVI where he was housed in the infirmary for three months while he recuperated. Plaintiff alleges that as a result of the attack he has lost the vision in his left eye.

         II. Standards ...


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