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Barraza v. Drake

United States District Court, E.D. California

July 11, 2019

DRAKE, Defendant.



         Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. In his first amended complaint, plaintiff asserts that defendant Drake violated plaintiff's Eighth Amendment rights by failing to protect him from inmate violence. See ECF No. 11. Currently pending before the court is defendant Drake's motion for summary judgment. ECF No. 22. The motion has been fully briefed by the parties. See ECF Nos. 31-32, 37. For the reasons that follow, the undersigned recommends granting defendant's motion for summary judgment.

         I. Allegations in the Complaint

         In his verified complaint, plaintiff alleges that defendant Drake disregarded a “keep separate order” for plaintiff and another inmate resulting in plaintiff's assault on March 19, 2015 while on an escort chain at California State Prison-Sacramento.[1] ECF No. 11 at 8-9. Plaintiff suffered neck injuries as a result of this assault. Id. at 9.

         II. Motion for Summary Judgment

         In his motion for summary judgment defendant Drake asserts that there is no evidence: 1) that he was subjectively aware of the keep separate order; 2) that he was responsible for placing plaintiff on the escort chain on March 19, 2015; or, 3) that he could have done anything to prevent plaintiff's assault on that date. ECF No. 22. Defendant also contends that he is entitled to qualified immunity. Id. at 7-8.

         In his opposition, plaintiff asserts that his declaration and the declaration submitted by defendant Drake are “squarely contradictory” thereby creating a genuine issue of material fact “as to whether the defendant was present during the assault, and… whether the defendant had an obligation to be aware of [the] ‘no escort' order[] as a part of his job duties.” ECF No. 31 at 2. Plaintiff's declaration in opposition to summary judgment indicates that the ‘no escort' order between he and inmate Roberson was “posted on a white board” after November 14, 2014 and “prior to the second incident.” ECF No. 31 at 5. Plaintiff further states in his declaration that “[e]ach officer involved in escorting inmates, whether as part of an escort team, or solo, is responsible for making sure they are aware of security risks concerning the inmate, such as the necessity in having to use leg restraints, spit masks, or keep separate from other inmate orders. These ‘special instructions' are posted on a white board.” Id. at 6. However, plaintiff provides no evidentiary support for this proposition as required by Rule 56(c)(1) of the Federal Rules of Civil Procedure. While plaintiff's declaration states that defendant Drake was present during plaintiff's assault, he indicates that this defendant was either “part of the escort team, or assisted the escort team.” Id. at ¶ 10. Plaintiff also included a Statement of Disputed Factual Issues along with his opposition for summary judgment. ECF No. 32. However, it fails to cite to any “particular parts of materials in the record” that demonstrate the assertions therein. See Fed.R.Civ.P. 56(c)(1)(A).

         By way of reply, defendants emphasize that plaintiff's opposition does not include any competent evidence or material facts to contradict defendant's undisputed material facts. ECF No. 37 at 1-2.

         III. Facts

         The following facts are undisputed unless otherwise noted. At all times relevant to this action plaintiff was a state prisoner confined at CSP-Sac. Defendant's Statement of Undisputed Facts in Support of Summary Judgment (“DSUF”), at ¶ 1. In November 2014, plaintiff was involved in an altercation with inmate Roberson during an escort. DSUF at ¶ 2. As a result of that altercation, a note was made on a white board in plaintiff's housing unit that he was not supposed to be escorted with inmate Roberson. DSUF at ¶ 3. Following this incident, plaintiff was also ordered to wear leg restraints while being transported. ECF No. 11 at 8; ECF No. 31 at 5.

         On March 19, 2015, plaintiff was placed on an escort chain with inmate Roberson. DSUF at ¶ 8. During the March 19, 2015 escort, inmate Roberson attacked plaintiff. DSUF at ¶ 9. Plaintiff's neck and back were injured as a result of the attack by inmate Roberson and the resulting use of force by correctional officers who responded to the scene. ECF No. 11 at 9.

         Plaintiff does not remember who placed him on the escort chain on March 19, 2015. DSUF at ¶ 10. The only reason plaintiff named defendant Drake in his complaint is because that is the only officer's name that he could remember. DSUF at ¶ 11. In March 2015, defendant Drake was assigned as a Health Care Access escort officer at CSP-Sac which provided two-on-one escorts to a single inmate at a time. ECF No. 22-4 at 1-2 (Declaration of C. Drake). Plaintiff does not know if defendant Drake had any input into deciding to escort plaintiff with inmate Roberson on March 19, 2015. DSUF at ¶ 12.

         Plaintiff does not know when the notation was written on the white board indicating that he should not be escorted with Roberson. DSUF at ¶ 4. Plaintiff does not know if defendant Drake ever saw the notation on the white board or if he discussed the November 2014 altercation with defendant Drake at any point prior to the March 2015 attack by inmate Roberson. DSUF at ¶ 6-7. Plaintiff saw the notation on the white board after he was assaulted by inmate Roberson in March 2015, but he does not know how long it remained on the board. DSUF at ¶ 5.

         IV. ...

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