United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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.
Allegations in the Complaint
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. ECF No. 11 at 8-9. Plaintiff suffered neck
injuries as a result of this assault. Id. at 9.
Motion for Summary Judgment
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.
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).
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.
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.
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
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
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.