1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE G. AMEZQUITA, Case No.: 3:19-cv-01461-AJB-KSC
12 Plaintiff, REPORT AND RECOMMENDATION 13 v. FOR ORDER GRANTING DEFENDANTS’ MOTION FOR 14 CORRECTIONAL OFFICER SUMMARY JUDGMENT; D. HOUGH, et al., 15 ORDER DENYING MOTION TO Defendants. APPOINT COUNSEL 16
17 [Doc. Nos. 47, 49] 18 19 Plaintiff Jose Amezquita (“plaintiff”) is a prisoner proceeding pro se and in forma 20 pauperis in this civil rights action filed pursuant to Title 42, United States Code, Section 21 1983. See Doc. Nos. 1, 25. Plaintiff alleges that defendants Armenta, Hough and Downs 22 were deliberately indifferent to a serious risk of harm to him, in violation of his Eighth 23 Amendment rights. See Doc. No. 25 at 3, 6-8.1 Presently before the Court is defendants’ 24 Motion for Summary Judgment (“Motion” or “Mot.”). Doc. No. 47. Pursuant to 28 U.S.C. 25 § 636(b)(1) and Civil Local Rule 72.1, the undersigned Magistrate Judge submits this 26
27 1 Citations herein are to the Court’s ECF-generated page numbers, except for party and witness 28 1 Report and Recommendation to United States District Judge Anthony J. Battaglia. Having 2 carefully considered the evidence and arguments presented, and for the reasons set forth 3 below, the Court RECOMMENDS that the District Court GRANT defendants’ Motion. 4 The Court further RECOMMENDS that the District Court DENY plaintiff’s request under 5 Federal Rule of Civil Procedure 56(d) to defer ruling on defendants’ Motion to allow him 6 to take additional discovery. 7 Plaintiff has filed an Opposition to Defendant’s [sic] Motion for Summary Judgment 8 (the “Opposition” or “Opp.”), in which he states he “need[s] an attorney to assist [him] in 9 gathering the evidence, including witness statements, and presenting my case.” See Doc. 10 No. 51 at 18. Plaintiff reiterated his request for legal assistance in a separate letter to the 11 Court. See Doc. No. 49. The Court will construe these statements as a Motion to Appoint 12 Counsel. For the reasons below, plaintiff’s Motion to Appoint Counsel is DENIED. 13 I. BACKGROUND 14 A. Procedural History 15 Plaintiff filed the instant lawsuit on August 2, 2019, asserting that Correctional 16 Officers Hough and Downs, Warden Doe 1, Associate Warden Doe 2, and Sergeant Doe 3 17 had violated his Eighth Amendment rights. See generally Doc. No. 1. On September 25, 18 2019, after conducting the sua sponte screening required under 28 U.S.C. § 1915(e)(2) and 19 § 1915A(b), the District Court dismissed plaintiff’s claims against Warden Doe 1 and 20 Sergeant Doe 3, but allowed plaintiff to proceed on his claims against Hough, Downs, and 21 Associate Warden Doe 2. See Doc. No. 3 at 9-10. With the Court’s leave (Doc. No. 24), 22 plaintiff filed an amended complaint on February 21, 2020 (“Amended Complaint” or 23 “Am. Cpt.”), substituting Associate Warden Armenta for Doe 2. Doc. No. 25. Defendants 24 answered the Amended Complaint on July 16, 2020. Doc. No. 35. 25 On December 20, 2019, the undersigned Magistrate Judge set a pretrial schedule, 26 directing, among other things, that the parties complete fact discovery by April 17, 2020. 27 Doc. No. 9. On March 31, 2020, plaintiff moved for additional time to complete discovery, 28 stating that defendants had “failed to produce any relevant documents” in response to his 1 discovery requests. Doc. No. 21 at 1. Defendants opposed the request and submitted 2 copies of their responses to plaintiff’s discovery requests. See generally Doc. No. 23. On 3 May 8, 2020, the undersigned denied plaintiff’s request for additional time to complete 4 discovery for failure to establish good cause. Doc. No. 26 at 2. 5 On June 23, 2020, plaintiff moved to compel responses to his first and second 6 requests for documents. Doc. No. 29. Defendants opposed on July 24, 2020. Doc. No. 7 38. The undersigned denied plaintiff’s motion on August 26, 2020. Doc. No. 45. As to 8 plaintiff’s first set of document requests, the Court found that plaintiff’s motion was 9 untimely and that plaintiff had failed to meet and confer with defendants before filing it, 10 and that even absent these procedural deficiencies, the requests were overbroad and sought 11 irrelevant information. See id. at 3-5. The sole exception was plaintiff’s Request for 12 Production No. 2, which sought “[a]ll written statements and reports, original or copies, 13 identifiable as reports about the incidents of 10/18/2018 made by CDCR employees and/or 14 witnesses,” to which the Court ordered defendants to serve a supplemental response. Id. 15 at 5. As to plaintiff’s second set of document requests, the record demonstrated that they 16 had not been served until April 21, 2020, after the deadline for completing fact discovery 17 had passed, and the Court accordingly denied plaintiff’s motion to compel responses to this 18 untimely discovery. See id. at 6-7. Finally, the Court denied what it deemed to be 19 plaintiff’s request to re-open discovery, finding plaintiff had not demonstrated his 20 diligence. Id. at 7-8 (citing Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 21 2002) for the proposition that “[a] request to re-open discovery may be denied if the parties 22 already ‘had ample opportunity to conduct discovery.’”). Plaintiff neither objected to nor 23 sought reconsideration of this ruling. 24 On September 10, 2020, defendants filed the instant Motion for Summary Judgment. 25 Plaintiff filed an opposition on September 28, 2020 (“Opposition” or “Opp.”). Doc. No. 26 51. Defendants’ Reply was filed on October 30, 2020 (“Reply”). Doc. No. 53. 27 /// 28 /// 1 B. Summary of Allegations and Facts 2 Plaintiff was incarcerated at Richard J. Donovan (“RJD”) correctional facility in 3 October 2018, and was assigned to an administrative segregation unit (“ASU”). Am. Cpt. 4 at 3. The events giving rise to this lawsuit occurred on October 18, 2018, when plaintiff 5 appeared before an Institutional Classification Committee (“ICC”). Defendants represent, 6 and plaintiff does not dispute, that the purpose of the ICC hearing was to assess whether 7 plaintiff should remain in administrative segregation, and where to place him after he 8 completed his term in that unit. See Declaration of F. Armenta in Support of Defendants’ 9 Motion for Summary Judgment (“Armenta Decl.”), Doc. No. 47-4, ¶2. Armenta was 10 among the ICC committee members in attendance at the October 18, 2018 hearing. See 11 Doc. No. 35 at 3; see also Armenta Decl., ¶1. Plaintiff’s objected to the ICC’s decision to 12 release plaintiff him into Facility C, a “special needs yard” (“C-Yard”), rather than to 13 Facility A, a general population unit (“A-Yard”). See Am. Cpt. at 3, 6. Plaintiff alleges 14 that his placement in C-Yard would “endanger his life.” Id. at 6. 15 Plaintiff alleges that at the time of the October 18, 2018 ICC hearing, he was suicidal 16 and was suffering from paranoid delusions and severe claustrophobia. Id. at 3. Plaintiff 17 further alleges that during the ICC hearing, he informed Armenta “three or four times” that 18 by transferring him to C-Yard, Armenta would be “putting [plaintiff’s] life in danger.” Id. 19 at 6. Armenta allegedly responded, “I don’t care, do what you gotta do. I run this prison. 20 I tell you where you are going.” Id. Plaintiff alleges that when the ICC hearing concluded, 21 he was escorted back to his cell in the administrative segregation unit by Hough and 22 Downs, whom he told that he was feeling suicidal. Id. Plaintiff claims Hough and Downs 23 laughed at him and told him to “go ahead and kill [him]self.” Id. 24 According to plaintiff, he returned to his cell in the ASU and, while in an “agitated 25 state,” “discovered a large blade secreted in the mattress,” which he used to cut his right 26 wrist. Id. Plaintiff was discovered by unidentified correctional officers who transported 27 him via ambulance to the medical clinic where he received medical and psychological care. 28 Id.; see also Declaration of D. Hough in Support of Defendants’ Motion for Summary 1 Judgment (“Hough Decl.”), Doc. No. 47-13, ¶10; Declaration of R. Downs in Support of 2 Defendants’ Motion for Summary Judgment (“Downs Decl.”), Doc. No. 47-9, ¶10. 3 Plaintiff was also seen by psychologist A. Loebenstein when he returned to RJD on October 4 18, 2018. See Declaration of Doctor A. Loebenstein in Support of Defendants’ Motion for 5 Summary Judgment (“Loebenstein Decl.”), Doc. No. 47-15, ¶2. Dr. Loebenstein 6 interviewed plaintiff that day and determined that plaintiff had not attempted suicide. See 7 Doc. No. 47-16. 8 Plaintiff asserts that defendants violated his Eighth Amendment rights because they 9 were “deliberately indifferent” to the “unreasonable risk of serious harm” to plaintiff. Am. 10 Cpt. at 7. Specifically, plaintiff alleges that Armenta failed to “exercise his supervisory 11 responsibility to make sure appropriate actions were taken related to plaintiff’s verbalized 12 intention to commit suicide” and did not “prevent Hough and Downs from making 13 incentivizing remarks for the plaintiff to go ahead and kill himself.” Id. Plaintiff contends 14 Hough and Downs “never checked back on plaintiff and never notified the mental health 15 staff about his state of emotional distress nor his suicidal intentions.” Id. at 6. Plaintiff 16 asserts that defendants’ conduct “created an unreasonable risk of serious harm to plaintiff,” 17 which violated his Eighth Amendment right to be free of cruel and unusual punishment 18 and caused him lasting harm. Id. at 7-8. 19 On November 3, 2020, plaintiff was transferred to Salinas Valley State Prison 20 (“Salinas Valley”), where he remains incarcerated today. 21 C. Defendants’ Motion 22 Defendants advance two main arguments on summary judgment: First, they argue 23 that there is no triable issue of fact regarding plaintiff’s Eighth Amendment claims. Mot. 24 at 17-22. Defendants assert that Armenta “had no subjective knowledge” of any risk to 25 plaintiff’s health or safety, because plaintiff gave Armenta no reason to believe he would 26 “harm himself as a result of the [ICC’s] decision.” Id. at 19-20. Defendants further argue 27 there is no genuine dispute that Hough and Downs were not deliberately indifferent to 28 /// 1 plaintiff’s mental condition, because the undisputed evidence shows they were not on duty 2 when plaintiff was escorted from the ICC hearing to his cell. Id. at 20-22. 3 Second, defendants argue that even assuming all of plaintiff’s allegations are true, 4 he failed to exhaust his administrative remedies as required by the Prison Litigation Reform 5 Act (“PLRA”) before filing suit in civil court. See generally 42 U.S.C. § 1997(e). In 6 support of their Motion, defendants submit declarations from Armenta, Hough, Downs, a 7 member of the panel at the ICC hearing, two grievance coordinators, RJD’s custodian of 8 records, and Dr. Loebenstein; sign-in records for officers on duty on October 18, 2018; 9 documentation from the ICC hearing; excerpts of plaintiff’s deposition testimony; Dr. 10 Loebenstein’s report of his October 18, 2018 interview with plaintiff; and a Separate 11 Statement of Undisputed Facts (“SSUF”). 12 II. LEGAL STANDARDS 13 Rule 56(a) of the Federal Rules of Civil Procedure provides that a court “shall grant 14 summary judgment if the movant shows that there is no genuine dispute as to any material 15 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 16 “principal purpose[] of Rule 56 is to dispose of factually unsupported claims or defenses.” 17 Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1087 (S.D. Cal. 2006) (citation omitted). Under 18 the Rule, the moving party bears burden of informing the District Court of the basis for its 19 motion, and identifying those portions of “the pleadings, depositions, answers to 20 interrogatories, and admissions on file, together with the affidavits, if any,” which it 21 believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 22 Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party does 23 so, the burden then shifts to the non-moving party to “point to some facts in the record that 24 demonstrate a genuine issue of material fact and, with all reasonable inferences made in 25 the plaintiff[’s] favor, could convince a reasonable jury to find for the plaintiff[].” Reese 26 v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) (citations omitted). 27 The non-moving party cannot rely on the pleadings, but must “present significant, 28 probative evidence tending to support h[is] allegations.” Bias v. Moynihan, 508 F.3d 1212, 1 1218 (9th Cir. 2007) (citations omitted). While the non-moving party need not produce a 2 “smoking gun[,] … something more than speculative, conclusory allegations is required” 3 to avoid summary judgment. Towers v. Iger, 912 F.3d 523, 532 (9th Cir. 2018). The Court 4 must then determine, based on the record before it and “with the evidence viewed in the 5 light most favorable to the non-moving party,” whether the moving party is entitled to a 6 judgment as a matter of law. San Diego Police Officers Ass’n v. San Diego City Emps.’ 7 Ret. Sys., 568 F.3d 725, 733 (9th Cir. 2009). 8 III. DISCUSSION 9 A. The Court Should Not Defer Entry of Summary Judgment Under Rule 56(d) 10 Plaintiff’s declaration in support of his Opposition is replete with references to 11 “missing discovery” that he avers would, essentially, prove his allegations and contradict 12 defendants’ evidence. See Opp. at 8, 9, 11-14. It appears that the “missing” discovery 13 refers to plaintiff’s first and second sets of document requests that were the subject of his 14 unsuccessful Motion to Compel. That Motion was denied because the undersigned 15 determined that plaintiff’s document requests were overly broad and sought information 16 that was irrelevant to plaintiff’s claims, that plaintiff had not diligently pursued discovery, 17 and that both his Motion to Compel and his second set of document requests were untimely. 18 Doc. No. 45 at 4, 5, 8. Nevertheless, plaintiff requests leave to pursue this “appropriate 19 discovery thus far denied” if the Court thinks summary judgment is appropriate. Opp. at 20 1; see also id. at 21 (plaintiff’s request that “discovery be ordered”). The Court will 21 construe this as a request pursuant to Rule 56(d), which provides that upon a proper 22 showing that the facts necessary to oppose summary judgment are “unavailable” to the 23 nonmoving party, the Court may defer or deny the motion. Fed. R. Civ. P. 56(d). Under 24 the Rule, the Court may in its discretion allow the nonmoving party time to take additional 25 discovery. Id. 26 “A party seeking to delay summary judgment for further discovery must state ‘what 27 other specific evidence it hopes to discovery [and] the relevance of that evidence to its 28 claims.” Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (citation omitted) 1 (emphasis and alteration in the original). However, plaintiff’s declaration is lacking in 2 specificity as to what additional discovery is necessary, referring only to unspecified 3 “logs,” “reports,” “videos” and “statements” of unidentified witnesses that are “missing.” 4 See generally id. Plaintiff simply refers to the purportedly missing discovery “without ever 5 identifying the content of that evidence,” which does not merit a continuance under Rule 6 56(d). See Chance v. Pac-Tel Teletrac, Inc., 242 F.3d 1151, 1161 (9th Cir. 2001). 7 Even assuming plaintiff had described the “missing” discovery with the requisite 8 specificity, he has nevertheless failed to explain how that discovery relates to his claims or 9 would establish a material issue of fact for trial. As the party “requesting a continuance” 10 under Rule 56(d), plaintiff “must identify by affidavit the specific facts that further 11 discovery would reveal, and explain why those facts would preclude summary judgment.” 12 Tatum v. City and Cty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). Here, 13 however, plaintiff merely makes a series of conclusory and speculative allegations that “the 14 missing discovery” would assertedly “show” his claims to be “true.” Opp. at 8, 9, 11-14. 15 That is insufficient to warrant a continuance. Tatum, 441 F.3d at 1100. Much of the 16 allegedly “missing” discovery would have no bearing on plaintiff’s allegations as they 17 relate to defendants’ conduct on October 18, 2018. For example, plaintiff fails to explain 18 how the identity of the officer who found him after he cut himself, or the medical treatment 19 he received for his injury, would support his claims that defendants Hough and Downs 20 were deliberately indifferent to the risk that he would do so. See Opp. at 13-14. Plaintiff 21 is not entitled to a continuance to pursue discovery that is irrelevant to his claims. See 22 Twentieth Century Fox Television, a Div. of Twentieth Century Fox Film Corp. v. Empire 23 Distrib., Inc., 875 F.3d 1192, 1200 (9th Cir. 2017) (affirming denial of Rule 56(d) motion 24 where the requested additional discovery was “irrelevant to the ground on which summary 25 judgment was granted”). 26 Furthermore, while plaintiff claims that “defendants don’t want to release the logs, 27 reports and video which shows my claims to be true” (Opp. at 22), defendants represent 28 that all documentation regarding the October 18, 2018 incident that is the subject of 1 plaintiff’s lawsuit has been produced, indicating that the discovery plaintiff seeks does not 2 exist. See Doc. No. 53-1 at 16. The District Court need not delay resolution of defendants’ 3 Motion based on plaintiff’s request for discovery that is “‘the object of pure speculation.’” 4 Stevens, 899 F.3d at 678 (citation omitted); see also Sec. Exch. Comm’n v. Stein, 906 F.3d 5 823, 833 (9th Cir. 2018) (continuance under Rule 56(d) is warranted only where it is 6 “‘likely’ that [essential] facts will be discovered”) (citation omitted). 7 For the foregoing reasons, the Court finds that plaintiff has not made the necessary 8 showing under Rule 56(d). The Court therefore RECOMMENDS the District Court 9 DENY plaintiff’s request to defer ruling on defendants’ Motion so that he can conduct 10 additional discovery. 11 B. There Is No Triable Issue of Fact as to Plaintiff’s Failure to Exhaust 12 The PLRA requires inmates challenging the conditions of their confinement to 13 exhaust “such administrative remedies as are available” before filing suit in federal court. 14 42 U.S.C. §1997e(a). This requirement “afford[s] corrections officials the opportunity to 15 address complaints internally,” Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014), and 16 “promote[s] greater efficiency and economy in resolving claims.” McBride v. Lopez, 807 17 F.3d 982, 987 (9th Cir. 2015). “Exhaustion is mandatory[,]” but where an administrative 18 remedy is “effectively unavailable” to the inmate, a failure to exhaust that remedy “does 19 not bar a claim from being heard in federal court.” Soto v. Sweetman, 882 F.3d 865, 869- 20 70 (9th Cir. 2018) (internal quotation marks and citation omitted); see also Ross, 136 S.Ct. 21 at 1858 (noting that inmates “must exhaust available remedies, but need not exhaust 22 unavailable ones.”). 23 In evaluating whether there has been “proper exhaustion,” the Court looks to the 24 “California prison system’s requirements” for prisoners to pursue a grievance. Marella v. 25 Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009); see also Woodford v. Ngo, 548 U.S. 81, 90 26 (2006) (“exhaustion demands compliance with an agency’s deadlines and other … 27 procedural rules”). At all times relevant to plaintiff’s claim, the administrative process for 28 inmate grievances was set forth in the since-repealed Sections 3084 through 3085 of Title 1 15 of the California Code of Regulations. See Cal. Code Regs. tit. 15 §§ 3084-3085 (2019) 2 (repealed June 1, 2020). Pursuant to those regulations, an aggrieved inmate was required 3 to complete a CDCR Form 602 within 30 calendar days of the decision or action being 4 appealed. Id., § 3084.8(b)(1). The Form 602, including a description of “the specific issue 5 under appeal and the relief requested,” was to be submitted to the institution’s appeals 6 coordinator. Id., § 3804.2(a) and (c). 7 A prisoner’s failure to exhaust administrative remedies is an affirmative defense for 8 which defendants bear the burden of proof. 2 Albino v. Baca, 747 F.3d 1162, 1172 (9th 9 Cir. 2014) (en banc). At summary judgment, defendants’ burden is “to prove that there 10 was an available administrative remedy, and that the prisoner did not exhaust it. Id. To 11 meet that burden, defendants here have submitted the declaration of E. Frijas (“Frijas 12 Decl.,” Doc. No. 47-11), a grievance coordinator at RJD (where plaintiff was housed at the 13 time of the alleged incident), and the declaration of S. Gee (“Gee Decl.,” Doc. No. 47-12), 14 a grievance coordinator at Salinas Valley (where plaintiff was transferred within 30 days 15 of the alleged incident). The grievance coordinators describe the process in place at RJD 16 and Salinas Valley in 2018 for an inmate to pursue a non-medical grievance. See Frijas 17 Decl., ¶¶4-5; Gee Decl., ¶¶4-5. As noted, that process required plaintiff to submit a Form 18 602 within 30 days of the action or decision giving rise to the grievance – here, October 19 18, 2018. Frijas Decl., ¶4; Gee Decl., ¶4. The grievance coordinators also explain that 20 inmates could file grievances for incidents that took place at another facility. Frijas Decl., 21 ¶¶5-6; Gee Decl., ¶¶5-6. Frijas and Gee both affirm that they undertook a search of the 22 records at their respective institutions for any appeal submitted by plaintiff between 23 October 18, 2018 and the present, and found none. Frijas Decl., ¶¶7, 10; Gee Decl., ¶¶7, 24 10. The Court finds that this evidence is sufficient to meet defendants’ burden of 25 26 27 2 Plaintiff’s “Failure to Exhaust Administrative Remedies” is defendants’ Tenth Affirmative Defense. See 28 Doc. No. 35 at 8. 1 “demonstrating a system of available administrative remedies” which were not exhausted 2 by plaintiff. Williams, 775 F.3d at 1192. 3 Accordingly, the burden shifts to plaintiff, “who must show that there is something 4 particular in his case that made the existing and generally available administrative remedies 5 effectively unavailable to him. Id. at 1191. Plaintiff acknowledges in his Amended 6 Complaint that he did not exhaust “all forms of available relief” before filing suit.3 Am. 7 Cpt. at 4. Nevertheless, in his Opposition plaintiff asserts that he did, in fact, “attempt[] to 8 file a [Form] 602” arising out of his allegations but that his documents were “lost, 9 misplaced, discarded or otherwise ignored.” Opp. at 19. Plaintiff further asserts that he 10 “felt very intimidated by this.” Id. In the Ninth Circuit, the threat of retaliation excuses 11 failure to exhaust only where the prisoner can demonstrate that “he actually believed prison 12 officials would retaliate against him if he filed a grievance” and that “his belief was 13 objectively reasonable.” McBride, 807 F.3d at 987. The Court finds plaintiff’s “general 14 and unsubstantiated fears about possible retaliation” do not suffice. See Rodriguez v. Cty. 15 of Los Angeles, 891 F.3d 776, 794 (9th Cir. 2018) (finding that inmates’ “factual 16 statements” supported an “actual and objectively reasonable fear of retaliation,” whereas 17 generalized statements would not). 18 Furthermore, plaintiff does not explain why he did not file grievance paperwork once 19 he transferred to Salinas Valley, which was within the 30-day window and where, 20 according to his sworn deposition testimony, he did not have the same concerns about filing 21 a Form 602. See Doc. No. 47-1 at 12-13 (plaintiff’s testimony that he feared retaliation at 22 RJD, but that things were “better” at Salinas Valley). His statement that he has been 23 24 25 3 Defendants correctly note in their Reply that plaintiff’s initial Complaint “specifically states” that plaintiff “failed to file an administrative 602 appeal … based on fear of retribution” by defendants. Reply 26 at 6 (quoting Doc. No. 1 at 12). However, plaintiff’s Amended Complaint, which “’supersedes the original 27 pleading,’” contains no such language. See Koala v. Khosla, 931 F.3d 887, 895 (9th Cir. 2019) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992)). Therefore, the Court refers only to the 28 allegations in the operative pleading. See id. 1 “continually harassed” at Salinas Valley is untethered to any attempt by him to pursue 2 administrative relief. Opp. at 19. Plaintiff cites adverse actions taken against him in 2020, 3 but even assuming (as plaintiff does, without factual support) that these adverse actions 4 were related to plaintiff’s “litigation against staff at RJ Donovan,” they post-date plaintiff’s 5 arrival at Salinas Valley by over a year and could not have been the reason plaintiff did not 6 timely pursue his grievance in November 2018. See Opp. at 21 (referring to disciplinary 7 actions taken in January and February 2020). Finally, plaintiff avers that through 8 conversations with unidentified persons “whom [he] trusted,” the timing and details of 9 which are not provided, he believed it was not “safe” to file a staff complaint. Opp. at 20. 10 Even assuming plaintiff’s conclusory, self-serving statement is true, his assertions of 11 nonspecific “hostility” towards him at Salinas Valley are not a “basis” upon which the 12 Court (or the jury) can “determine” that he reasonably feared retaliation if he “chose to 13 utilize the prison’s grievance system.” McBride, 807 F.3d at 988. Thus, plaintiff has failed 14 to establish that the grievance process was not available to him. See id. 15 Because defendants have met their burden to prove non-exhaustion as an affirmative 16 defense, and plaintiff failed to rebut defendants’ evidence of non-exhaustion, the 17 undersigned Magistrate Judge RECOMMENDS the District Court GRANT defendants’ 18 Motion pursuant to 42 U.S.C. § 1997(e). 19 C. There Is No Triable Issue of Fact as to Plaintiff’s Eighth Amendment Claim 20 Exhaustion is a “threshold requirement,” and plaintiff’s failure to comply with this 21 requirement means he is not entitled to “review of his claims in federal court.” McBride, 22 807 F.3d at 988. Nevertheless, the Court finds that even if plaintiff had exhausted his 23 administrative remedies, defendants are entitled to summary judgment on plaintiff’s Eighth 24 Amendment claim. 25 The Eighth Amendment prohibits prison officials’ “deliberate indifference to a 26 prisoner’s serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the 27 /// 28 /// 1 Ninth Circuit, a heightened risk of suicide can be considered a serious medical need. 2 Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1018 (9th Cir. 2010), overruled on other 3 grounds by Castro v. Cty. of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc). A prison 4 official is deliberately indifferent only where he “knows of and disregards an excessive 5 risk to inmate health and safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1970). Under 6 this standard, the official must both “be aware of facts from which the inference could be 7 drawn that a substantial risk of serious harm exists,” and he must actually draw that 8 inference. Id. This “subjective approach” focuses on what “defendant’s mental attitude 9 actually was,” and not “what it should have been.” Id. at 838-39. Proof of the defendant’s 10 subjective knowledge may be demonstrated by inference from circumstantial evidence. Id. 11 at 842. With these principles in mind, the Court finds plaintiff has not raised a triable issue 12 of fact that any of the defendants were deliberately indifferent to a risk that he would harm 13 himself. 14 1. Defendant Armenta 15 Plaintiff alleges that he told Armenta “three of four times” during the ICC hearing 16 that Armenta was “putting [his] life in danger” by assigning plaintiff to C-Yard. Am. Cpt. 17 at 6. A significant portion of plaintiff’s Opposition, including his declaration, is devoted 18 to an explanation of why his assignment to C-Yard was “inherently dangerous” and that he 19 told the members of the ICC about his “concerns about getting assaulted and/or killed” if 20 placed on C-Yard. See Opposition at 5, 9-10. Armenta acknowledges that during the ICC 21 hearing, plaintiff expressed unsubstantiated “safety concerns” about going to C-Yard and 22 that he “disagreed” with the ICC’s decision to place him there. Armenta Decl., ¶¶7-8. 23 Plaintiff’s stated security concerns are also noted in the report of the ICC hearing, which 24 25 4 Based on Dr. Loebenstein’s contemporaneous assessment of plaintiff, defendants dispute that plaintiff 26 was suicidal or that his act of self-harm was an attempt at suicide. See Mot. at 15. However, it is undisputed that plaintiff was discovered cutting himself in his cell and that he required medical and 27 psychological care following that incident. See SSUF at 11-12. The Court finds defendants’ Motion can be resolved without addressing whether plaintiff has “exaggerate[d] his mental health concerns,” Mot. at 28 1 reports that plaintiff “stated that he understands the committee’s actions, but disagrees … 2 and stated that he cannot go to Facility C because he believes that his life is in danger with 3 the inmate population in Facility C.” See Doc. No. 47-5 at 5. Yet, although it is undisputed 4 that plaintiff voiced “safety concerns” at the ICC hearing, the harm he claims to have 5 suffered was not an assault in C-Yard, but rather his own alleged suicide attempt. See Am. 6 Cpt. at 6-7. Thus, to the extent plaintiff’s Eighth Amendment claim arises out of his 7 assignment to C-Yard, his claim fails for want of causation. See Harper v. City of Los 8 Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (noting that plaintiff in a § 1983 action “must 9 demonstrate that the defendant’s conduct was the actionable cause of the claimed injury”). 10 The Court turns to the question of whether Armenta knew of, but disregarded, the 11 risk that plaintiff would attempt suicide once he returned to his cell. Farmer, 511 U.S. at 12 837. Armenta avers in a sworn declaration that plaintiff “never told [him] or the Committee 13 that he would harm himself if [they] released him to Facility C.” Armenta Decl., ¶ 9. 14 Plaintiff disputes this, stating in his Opposition that he “specifically” told Armenta at the 15 ICC hearing “that I didn’t feel well and wanted to kill myself rather than go to Facility C” 16 and that he told Armenta “I feel depressed and suicidal.” Opp. at 11; see also id. at 14 (“I 17 told everybody I was suicidal because of my safety concerns.”). However, this fact is not 18 alleged in plaintiff’s first Complaint, nor in the operative Amended Complaint. See Doc. 19 No. 1 at 3, 8; Am. Cpt. at 3, 6. It is also not consistent with the contemporaneously created 20 report of the ICC hearing which contains no reference to plaintiff’s purported statement of 21 suicidal intent and, to the contrary, notes that plaintiff did not have “mental health needs” 22 that required alternative placement. See Doc. No. 47-5 at 4, 5. Defendants also submit the 23 sworn declaration of A. Nevarez, a licensed clinical social worker who attended plaintiff’s 24 ICC hearing. See Declaration of A. Nevarez, LCSW, in Support of Defendants’ Motion 25 for Summary Judgment (“Nevarez Decl.”), Doc. No. 47-17. Nevarez avers that in October 26 2018, it was CDCR policy that if an inmate made a statement indicating he was a danger 27 to himself, he was to be placed on observation until evaluated by mental health staff. Id., 28 /// 1 ¶6. Plaintiff was not placed on observation at the conclusion of the ICC hearing, but was 2 instead returned to his cell. Id., ¶7. 3 The Court also notes that plaintiff testified in detail at his April 2020 deposition 4 about the exchange between him and Armenta during the hearing. See Doc. No. 47-1 at 9- 5 11. According to his testimony, plaintiff told Armenta that he was “distressed,” “going 6 through a lot of problems,” and having “mental issues.” See id.; see also Motion at 18-19. 7 He testified that he told Armenta “I know my life is in danger [in C-Yard] … I could die. 8 I had a lot of stress. I said, ‘Don’t put my life in danger.’” Doc. No. 47-1 at 11. Nowhere 9 in his testimony, however, does plaintiff state that he verbalized his suicidal ideation to 10 Armenta – or anyone else on the Committee. 11 Plaintiff’s declaration in opposition to defendants’ Motion is not consistent with the 12 record before the Court, including his own sworn deposition testimony. Armenta denies 13 subjective knowledge of plaintiff’s suicidal intent, and plaintiff’s alleged verbalization of 14 that intent is not documented in the record of the ICC hearing nor corroborated by other 15 witnesses in attendance. The circumstantial evidence – namely, that plaintiff was returned 16 to his cell rather than placed under observation – also does not support an inference that 17 Armenta was aware of plaintiff’s intent to harm himself. See Farmer, 511 U.S. at 842 18 (noting that defendant’s mental state may be inferred from circumstantial evidence). The 19 only contrary evidence is plaintiff’s “conclusory, self-serving affidavit, lacking detailed 20 facts and any supporting evidence,” which is insufficient to establish a “genuine issue of 21 material fact” for trial. F.T.C. v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 22 (9th Cir. 1997). For the foregoing reasons, the Court finds that no reasonable juror could 23 infer that defendant Armenta was aware of, and consciously disregarded, a risk that 24 plaintiff would attempt suicide when he returned to his cell. Reese, 208 F.3d at 738. 25 Accordingly, the undersigned Magistrate Judge RECOMMENDS that defendants’ 26 Motion be GRANTED as to Armenta. 27 /// 28 /// 1 2. Defendants Hough and Downs 2 Plaintiff alleges that after the ICC hearing, he was escorted back to his cell in the 3 ASU by Hough and Downs. Am. Cpt. at 6. According to plaintiff, Hough and Downs 4 laughed and made “incentivizing remarks” when he told them he was feeling “depressed 5 and suicidal.” Id. at 6-7. Hough and Downs deny that they failed to act on plaintiff’s 6 threats of self harm because, they aver, he never made such statements to them. Downs 7 Decl., ¶¶8-9; Hough Decl., ¶¶8-9. Hough and Downs further aver that they were not on 8 shift at the time plaintiff was returned to the ASU. Downs Decl., ¶¶4-6; Hough Decl., ¶¶4- 9 6. In support, defendants submit declarations, time records, and the report of the ICC 10 hearing, showing that the October 18, 2018 ICC hearing started at 9:56 a.m., did not last 11 more than an hour, and that Hough and Downs did not report for work that day until 2:00 12 p.m. See Armenta Decl., ¶3; Doc. No. 47-5 at 5; Declaration of Cecilia Carrillo, Doc. No. 13 47-6, at ¶5; Doc. No. 47-7 at 10 (officer sign-in sheets for second and third shifts on 14 October 18, 2018, showing that Hough and Downs began work at 1400 hours); Downs 15 Decl., ¶¶2-6, 9; Hough Decl., ¶¶2-6, 9; Nevarez Decl., ¶2. 16 In Opposition, plaintiff declares that his ICC hearing started at 1:15 p.m. and 17 concluded at 1:55 p.m., despite the documentary evidence to the contrary. Opp. at 8, 9, 10, 18 11. He also states, without evidentiary support, that both Hough and Downs “reported for 19 work prior to 1400 hours.” Id. at 11, 12, 13. Plaintiff submits a “Classification Committee 20 Chrono” which is similar although less complete than the ICC hearing report submitted by 21 defendants. Compare Opp. at 46-47 with Doc. No. 47-5. Plaintiff states the Chrono 22 “shows the meeting was completed at 1355” and further asserts that the “time of 23 commencement of the ICC meeting is fraudulent.” Id. at 9. Plaintiff also avers that he was 24 in “EOP group therapy” in the morning of October 18, 2018, but does not provide evidence 25 of his attendance. Id. The Chrono has not been authenticated and is therefore not properly 26 considered by the Court at summary judgment. See Clark v. Cty. of Tulare, 755 F.Supp.2d 27 1075, 1084 (E.D. Cal. 2010) (“Documentary evidence must be properly authenticated for 28 use in a motion for summary judgment.”) (citing Hal Roach Studios, Inc. v. Richard Feiner 1 & Co., Inc., 896 F.2d 1542, 1555 (9th Cir.1990)). Furthermore, as the Chrono does not 2 indicate anywhere on its face when the ICC hearing started or ended, the Court cannot 3 agree that this document – even if it were properly before the Court – “shows” the hearing 4 concluded at 1:55 p.m. Opp. at 9. 5 Aside from his speculative and unsupported assertions that the record of the ICC 6 meeting is “fraudulent” and that Hough and Downs “reported for work prior to 1400 7 hours,” plaintiff offers no specific facts to support his claim that he told Hough and Downs 8 that he was suicidal and they “urge[d] [him] to kill [him]self” in response. See Opp. at 9, 9 11-12. “A summary judgment motion cannot be defeated by relying solely on conclusory 10 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 11 1989). Plaintiff cites in his Opposition to two unrelated Eighth Amendment claims and 12 states that these cases are evidence of “contemporaneous events occurring at [RJD] that are 13 consistent with the instant case and claims….” Opp. at 4 (citing Poslof v. Martel, S.D. Cal. 14 Case No. 18-cv-761-MMA-AGS, and Bowell v. Montoya, E.D. Cal. Case No. 17-cv- 15 00605-LJO-GSA-PC). Whether or not these cases are “similar[]” to plaintiff’s allegations 16 (id.) – and, frankly, the Court does not agree that they are – they are not a substitute for the 17 facts plaintiff was required to identify to avoid summary judgment. See Reese, 208 F.3d 18 at 738 (nonmoving party must “point to some facts in the record that demonstrate a genuine 19 issue of material fact”). On the record before it, the Court finds that no reasonable juror 20 could infer that Hough and Downs were aware of, but indifferent to, a risk that plaintiff 21 would harm himself. See id. Accordingly, the undersigned Magistrate Judge 22 RECOMMENDS that defendants’ Motion be GRANTED as to Hough and Downs. 23 /// 24 /// 25
26 5 Despite his pro se status, plaintiff is “subject to the same rules of procedure and evidence as [litigants] 27 who are represented by counsel.” U.S. v. Merrill, 746 F.2d 458, 465 (9th Cir. 1984), overruled on other grounds by Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 28 1 D. Plaintiff’s Motion to Appoint Counsel 2 As noted, plaintiff states in his Opposition and also by separate correspondence to 3 the Court that he “need[s] an attorney to assist [him]” in litigating his case. Opp. at 18; see 4 also Doc. No 49 (“I really need an attorney …”). Although not styled as such, the Court 5 will construe these statements as a Motion to Appoint Counsel. 6 In the Ninth Circuit, “[t]here is no absolute right to counsel in civil proceedings.” 7 Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, the Court 8 may in its discretion “request” that an attorney represent indigent civil litigants upon a 9 showing of “exceptional circumstances.” See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 10 Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). “That a pro se 11 litigant may be better served with the assistance of counsel is not the test.” Okler v. MCC 12 IMU Prison, No. 3:18-cv-05458-RJB-TLF, 2019 WL 461143, at *1 (W.D. Wash. Feb. 5, 13 2019). Instead, the Court “must determine whether a) there is a likelihood of success on 14 the merits; and b) the prisoner is unable to articulate his claims in light of the complexity 15 of the legal issues involved.” Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). These 16 two factors “must be considered cumulatively.” Id. 17 Here, the Court finds that there are no “exceptional circumstances” warranting the 18 appointment of counsel in this matter. First, for the reasons discussed in this Report and 19 Recommendation, plaintiff is not likely to succeed on the merits of his claims. “A plaintiff 20 that provides no evidence of his likelihood for success at trial fails to satisfy the first factor 21 of the [exceptional circumstances] test.” Torbert v. Gore, No. 14cv2911-BEN-NLS, 2016 22 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). 23 Second, plaintiff has consistently demonstrated the ability to effectively articulate 24 his claims. He has filed numerous motions and other documents in which he has stated 25 legal arguments based on his understanding of legal precedents, accompanied by 26 supporting declarations and voluminous exhibits. Plaintiff reports that he is “unable to 27 gather evidence” due to increasing restrictive measures put in place to prevent the spread 28 of the coronavirus. However, this difficulty is common to most incarcerated litigants today 1 and does not create exceptional factors requiring the appointment of counsel at taxpayer 2 expense to assist plaintiff. See Faultry v. Saechao, No. 18cv1850-KJM-AC-P, 2020 WL 3 2561596, at *2 (E.D. Cal. May 19, 2020) (denying motion for appointment of counsel and 4 explaining that “[t]he impacts of the COVID-19 health crisis on prison operations are … 5 common to all prisoners.”). 6 For these reasons, the Court finds that plaintiff does not meet the standard for the 7 appointment of counsel. Plaintiff’s Motion to Appoint Counsel is therefore DENIED. 8 RECOMMENDATION AND ORDER 9 Having carefully considered all the evidence presented, the Court finds that there is 10 no genuine dispute of material fact that plaintiff failed to exhaust his administrative 11 remedies before filing his civil suit. The Court likewise finds that there is no genuine 12 dispute of material related to plaintiff’s claim that defendants violated his Eighth 13 Amendment rights. Finally, the Court finds plaintiff has not made an adequate showing 14 under Rule 56(d) that discovery essential to his ability to resist summary judgment is 15 unavailable to him. Accordingly, the undersigned Magistrate Judge RECOMMENDS that 16 the District Court GRANT defendants’ Motion and DENY plaintiff’s request for a 17 continuance pursuant to Rule 56(d). 18 IT IS HEREBY ORDERED that no later than March 24, 2021 any party to this 19 action may file written objections to this Report and Recommendation with the District 20 Court and serve a copy on all parties. The document should be captioned “Objections to 21 Report and Recommendation.” 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 2 District Court and served on all parties no later than March 31, 2021. The parties are 3 || advised that failure to file objections within the specified time may waive the right to raise 4 ||those objections on appeal of the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 5 || (9th Cir. 1991). 6 For the reasons stated above, IT IS FURTHER ORDERED that plaintiff's Motion 7 Appoint Counsel is DENIED. 8 IT IS SO ORDERED. 9 || Dated: February 23, 2021 Mh y i; ) 10 WU LA _———_ 1 Hori. Karen S. Crawford United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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