United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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