United States District Court, E.D. California
ORDER VACATING FINDINGS AND RECOMMENDATIONS ECF No.
75 FINDINGS AND RECOMMENDATIONS THAT COURT GRANT
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISS CASE
WITH PREJUDICE OBJECTIONS DUE IN 14 DAYS ECF No. 69
Order Vacating August 26, 2019 Findings and
August 26, 2019, I recommend granting defendants' motion
for summary judgment without prejudice. ECF No. 75.
Defendants responded that the case should be dismissed
with prejudice. See ECF No. 76. For good
cause shown, I hereby vacate my August 25, 2019 Findings and
Recommendations. The corrected findings and recommendations
that follow are for dismissal with prejudice, but otherwise
Toy Terrell Smith is a state prisoner proceeding without
counsel in this civil rights action brought under 42 U.S.C.
§ 1983. Terrell alleges that defendants J. Torres and M.
Hoggard, both correctional counselors at California State
Prison Corcoran, were deliberately indifferent to his safety
and so violated the Eighth Amendment by recommending that he
be returned to Kern Valley State Prison. See ECF No.
10 at 13. On February 15, 2019, Torres and Hoggard moved for
summary judgment under Federal Rule of Civil Procedure 56, `
arguing that the move was not objectively dangerous, that the
defendants were not subjectively indifferent to any danger,
that Smith cannot establish causation, and that defendants
Torres and Hoggard are entitled to qualified immunity.
See ECF No. 69-2 at 1-2. Smith filed an opposition
on May 13, 2019, and the defendants filed a reply on May 21.
See ECF Nos. 73 and 74.
Smith's allegations are viewed in their most favorable
light, they fail to show that the decision to move him to
Kern Valley State Prison posed an objective, substantial risk
of serious harm. See Farmer v. Brennan, 511 U.S.
825, 834 (1994) (holding that an Eighth Amendment failure to
protect claim must allege that there was
“objectively” a “substantial risk of
serious harm” to which defendant was indifferent).
Because Smith's speculative and general allegations do
not satisfy the objective risk requirement, I do not reach
defendants' alternate claimed bases for summary judgment.
early 2016, Smith was an inmate at Corcoran State Prison.
Defendant Torres approached Smith about placement at a
different facility. ECF No. 73 at 2. Torres presented Smith
with a list of prisons to which he might be transferred, but
Smith “informed her that he was not interested in any
of them because none of them were mental health care
treatment facilities.” Id. Smith also gave
Torres a two-page statement intended to inform the committee
making the facility assignment. The committee, which included
both Smith and Hoggard, recommended based on a variety of
factors that Smith be sent to Kern Valley State Prison, where
he was previously housed. Smith had been involved in a
violent incident and riot at Kern Valley, see generally
id. at 21 (“Exhibit B”), and did not want to
be returned there. Smith appealed the committee's
decision and met with Hoggard concerning the appeal.
Id. at 4. Smith's appeal was unsuccessful. He
was transferred back to Kern Valley, where he was ` attacked.
judgment is appropriate when 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). A
factual dispute is genuine if a reasonable trier of fact
could find in favor of either party at trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). The disputed fact is material if it “might
affect the outcome of the suit under the governing
law.” See Id. at 248.
party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once the moving party has met its burden, the
non-moving party may not rest on the allegations or denials
in its pleading, Anderson, 477 U.S. at 248, but
“must come forward with ‘specific facts showing
that there is a genuine issue for trial.'”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P.
making a summary judgment determination, a court “may
not engage in credibility determinations or the weighing of
evidence, ” Manley v. Rowley, 847 F.3d 705,
711 (9th Cir. 2017) (citation omitted), and it must view the
inferences drawn from the underlying facts in the light most
favorable to the non-moving party. See United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam);
Orr v. Bank of America, NT & SA, 285 F.3d 764,
772 (9th Cir. 2002).
detailed below, defendants have met their burden of showing
the absence of a genuine issue of material fact, and Smith
has not shown that there is an issue for trial.
Eighth Amendment of the United States Constitution protects
prisoners against a prison official's “deliberate
indifference” to “a substantial risk of serious
harm.” Farmer, 511 U.S. at 828 (1994).
“Deliberate indifference” has both an objective
and subjective component: there must be an objective risk to
inmate safety, and the official in question must also
“draw the inference” that the risk exists and
disregard it. Id. at 837; see also Clement v.
Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (describing
subjective and objective components). For a risk to be
objectively “substantial” it must be more than
merely possible, since prisons are, “by ` definition,
” institutions “of involuntary confinement of
persons who have a demonstrated proclivity for anti-social
criminal, and often violent, conduct.” Hudson v.
Palmer, 468 U.S. 517, 526 (1984); see also Brown v.
Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (noting
that the “known risk of injury must be a strong
likelihood, rather than a mere possibility before a
guard's failure to act can ...