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Sekona v. Custino

United States District Court, E.D. California

September 4, 2019

ETUATE SEKONA, Plaintiff,
v.
F. CUSTINO, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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).

         I. PLAINTIFF'S ALLEGATIONS

         This 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.

         Plaintiff 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.

         As to 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 his duty.”

         Plaintiff 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 hearing.

         Finally, 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.

         The 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.

         II. THE PARTIES' EVIDENCE

         A. Defendants' Evidence

         Defendants 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:

General Facts
1. At all relevant times, plaintiff was an inmate at Mule Creek State Prison (MCSP) (Custino Declaration; Snow Declaration).
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 (Plaintiff's Deposition).
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 (Plaintiff's Deposition).
6. Custino did not prevent the cell move (Plaintiff's Deposition).
7. Plaintiff moved to cell 142 on June 27, 2014 (Plaintiff's Deposition).
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 (Plaintiff's Deposition).
2. In connection with the rules violation report, defendant Snow was assigned as plaintiff's staff assistant (Snow Declaration).
3. Defendant Snow's role was to advise plaintiff, not decide any of his positions during the rules violation ...

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