United States District Court, E.D. California
L. Nuhley, United States District Judge.
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. The matter was referred to
a United States Magistrate Judge pursuant to Eastern District
of California local rules.
February 1, 2019, the magistrate judge filed findings and
recommendations (“F&R”) herein which were
served on the parties and which contained notice that the
parties may file objections within fourteen days. (ECF No.
64.) Timely objections to the findings and recommendations
have been filed. (ECF Nos. 65, 67, and 70.)
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 304(f), this Court has conducted
a de novo review of this case. Having carefully
reviewed the entire file, the Court finds the F&R to be
supported by the record and by proper analysis, however, the
Court will clarify a few issues raised in the parties'
objections to the F&R.
Plaintiff's Motion for Summary Judgment
motion asserts that no issue of material fact exists as to
his Eighth Amendment claim against Defendants. (ECF No. 49 at
1.) Prison officials have a duty to protect other prisoners.
Farmer v. Brennan, 511 U.S. 825, 828. To prevail on
a failure-to-protect case, a plaintiff must establish that
prison officials acted with “deliberate
indifference” - which has both subjective and objective
components. Id. At 842. The objective component
requires that an inmate prove the presence of a
“substantial risk of serious harm.” Id.
at 824 (citing Helling v. McKinney, 509 U.S. 25, 35
(1993)). An isolated incident of violence is not necessarily
sufficient to prove the inmate faced a substantial
risk of harm. Flournoy v. Merced Cty. Sherriff's
Dep't, 44 Fed.Appx. 843, 844 (9th Cir. 2002). The
subjective element factors in the “facts and
circumstances of each particular case.” Castro v.
City of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016)
(citing Kingsley v. Hendrickson, 135 S.Ct. 2466,
2473 (2015)). For an inmate to face a substantial
risk of harm, the circumstances must show the risk of
harm was more than speculative. Contreras v.
Collins, 50 Fed.Appx. 351, 352 (9th Cir. 2002).
determining Defendants met the objective element, the
magistrate judge relied solely on Plaintiff's evidence
asserting the substantial risk of serious harm he allegedly
faced. (ECF No. 64 at 11.) However, the Court will also
consider Defendants' evidence in its de novo
review of Plaintiff's motion. In the instant case,
Defendants Busig and Hendricks acknowledge they received a
request from Plaintiff for a cell reassignment. (ECF No. 45-2
¶ 19; ECF No. 39-1 ¶ 4.) However, Defendants each
assert no prior knowledge of any specific safety concerns
that would result in physical harm to Plaintiff. (ECF No.
45-2 ¶ 21, 23-24, 26; ECF No. 39-1 ¶ 3.) Further,
Plaintiff had no “documented enemy concerns” with
his cellmate prior to the altercation in question. (ECF No.
45-2 ¶ 18.) In contrast, Plaintiff proffers evidence
that he expressed “safety concerns” to each of
the named Defendants. (ECF No. 49 at 6.) Therefore, the
parties' evidence exposes a triable factual issue that
will be dispositive as to whether Plaintiff faced a
substantial risk of harm. Consequentially, the Court cannot
definitively conclude the objective element is met.
Court agrees with the F&R's determination that the
subjective element of Plaintiff's failure-to-protect
claim involves a triable issue of fact. Plaintiffs motion
(ECF No. 49.) is accordingly DENIED.
Defendant Hendricks' Motion
Hendricks' objections to the F&R allege that the
magistrate judge relied on evidence which contradicts
Plaintiffs deposition testimony. (ECF No. 67 at 2.)
Specifically, he alleges that the magistrate judge
“creates[s] an issue of fact” by citing
Plaintiffs declaration. (ECF No. 67 at 2.) While it is true
that a party cannot create an issue of fact by an affidavit
contradicting prior deposition testimony, Foster v.
Arcata Assocs., 772 F.2d 1453, 1462 (9th Cir. 1985), the
magistrate judge does not rely on such evidence. While
Plaintiffs deposition from March does not mirror the exact
language of Plaintiff s affidavit, the factual assertions do
not contradict. (ECF No. 39-4 at 5-7; ECF No. 49 at 8.) In
his deposition, Plaintiff did not specify Hendricks'
knowledge of Plaintiff s safety concerns, (ECF No. 39-4 at
5-7), however, Plaintiff described other evidence, including
declarations of other inmates, highlighting material issues
of fact relating to Hendricks' awareness of potential
physical harm to Plaintiff. (ECF No. 49 at 8, 16, 42, 45.)
Later, in his affidavit, Plaintiff mentioned that Hendricks
had knowledge of the purported safety concerns. (ECF No. 49
at 2, 8, 9-11.) While additional information was alleged, it
did not in fact, contradict. Accordingly, the Court finds
that Defendant Hendricks' objections are unavailing and
his motion for summary judgment, (ECF No. 39) is hereby
IT IS HEREBY ORDERED that:
1. The Findings and Recommendations filed February 1, 2019,
(ECF No. 64) are ADOPTED in full;
2. Plaintiff s Motion for Summary Judgment (ECF No. 49) is
3. Defendants' Cross Motions for Summary Judgment (ECF
Nos. 39 and ...