United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. COTA, UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
are the parties' cross-motions for summary judgment (ECF
Nos. 118 and 127).
action proceeds on plaintiff's verified first amended
complaint. See ECF No. 55. Plaintiff names the
following officers at Mule Creek State Prison as defendants:
(1) Custino; (2) Angle; (3) Charon; and (4) Snow. Plaintiff
alleges that defendant Custino was the floor officer on June
27, 2014. According to plaintiff, Custino ordered plaintiff
to move to cell 142, but plaintiff complained that cell 142
was unsafe. Plaintiff alleges that he told Custino that cell
142 “is so dangerous for his life and safety.”
While plaintiff adds that the “move was a setup by the
gang members, ” plaintiff does not further explain this
allegation or if Custino was involved with the
“setup.” Plaintiff further alleges that the
“porter” was responsible for having him moved to
cell 142 “with my enemy ‘skinhead, '”
apparently in retaliation for plaintiff having reported some
kind of drug deal a week earlier.
next states that Custino and another officer went to cell 142
to talk with the inmate currently housed in that cell -
inmate Loveday. According to plaintiff, inmate Loveday warned
Custino not to house plaintiff with him, that they would not
get along, and that Loveday would harm plaintiff. Plaintiff
claims that, despite this warning from inmate Loveday,
Custino ordered plaintiff to move to cell 142. Plaintiff
alleges that, later that day, he fell asleep in his new cell
while inmate Loveday was outside on the yard. According to
plaintiff, when inmate Loveday returned to their shared cell,
Loveday attacked plaintiff. Plaintiff states that this attack
resulted in severe injuries.
Angle, while plaintiff references the cell move and assault
of June 27, 2014, plaintiff does not explain how Angle was
involved other than to claim that Angle “took lightly
alleges that Snow was an investigative officer assigned
following the assault. According to plaintiff, Snow refused
to allow plaintiff to call any witnesses at a disciplinary
plaintiff alleges that Charon was the senior hearing officer
at a disciplinary hearing held on July 20, 2014, at which
plaintiff was found guilty of fighting. Plaintiff claims that
Charon is liable for the alleged conduct of defendant Snow.
Plaintiff also appears to claim that Charon denied him a
staff assistant at his hearing.
court determined service was appropriate for defendants
Custino and Snow. See ECF No. 64. After the court
recommended dismissal of defendants Charon and Angle for
failure to state a claim, see ECF No. 67, plaintiff
sought voluntary dismissal of these defendants, see
ECF No. 71. The District Judge adopted the findings and
recommendations and defendants Charon and Angle were
dismissed on plaintiff's notice of voluntary dismissal.
See ECF No. 73.
THE PARTIES' EVIDENCE
have filed a separate statement of undisputed facts in
support of their motion for summary judgment. See
ECF No. 118-2. According to defendants, the following facts
are not in dispute:
1. At all relevant times, plaintiff was an inmate at Mule
Creek State Prison (MCSP) (Custino Declaration; Snow
2. At all relevant times, defendant Custino was a
correctional officer at MCSP (Custino Declaration).
3. At all relevant times, defendant Snow was a correctional
officer at MCSP (Snow Declaration).
Facts Relating to the Cell Move
1. On June 27, 2014, inmate Perish requested plaintiff move
to cell 142 (Plaintiff's Deposition).
2. Until that time, cell 142 housed inmate Loveday, and
moving plaintiff to cell 142 required plaintiff to become
cellmates with inmate Loveday (Plaintiff's Deposition).
3. On June 27, 2014, plaintiff informed defendant Custino for
the first time that he had safety concerns with being housed
with inmate Loveday (Plaintiff's Deposition).
4. In response to plaintiff's communication of safety
concerns, defendant Custino conferred with inmate Loveday
5. After conferring with inmate Loveday, defendant Custino
did not have any information that would indicate housing
plaintiff with inmate Loveday would create a safety risk
6. Custino did not prevent the cell move (Plaintiff's
7. Plaintiff moved to cell 142 on June 27, 2014
8. After the cell move, plaintiff was assaulted by inmate
Loveday and the two fought (Plaintiff's Deposition).
9. No one witnessed the fight (Plaintiff's Deposition).
9. Defendant Custino's work shift had ended by the time
the fight between plaintiff and inmate Loveday occurred
(Custino Declaration; Plaintiff's Deposition).
Facts Relating to the Disciplinary Hearing
1. Following the altercation with inmate Loveday, plaintiff
was issued a rules violation report for fighting
2. In connection with the rules violation report, defendant
Snow was assigned as plaintiff's staff assistant (Snow
3. Defendant Snow's role was to advise plaintiff, not
decide any of his positions during the rules violation