David A. Falcon v. Craig Koenig, et al.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 Case Nos. 22-cv-06978-PCP 7 DAVID A. FALCON, 23-cv-03203-PCP Plaintiff, 24-cv-02725-PCP 8 v. ORDER DENYING SUMMARY 9 JUDGMENT MOTIONS AND 10 CRAIG KOENIG, et al., R TH EF E E M R E R D IN IA G T R IO EL N A P T R E O D G C R A A S M E S TO Defendants. 11 Re: Dkt. Nos. 35, 42 in Case 22-cv-06978- PCP; Dkt. No. 50 in Case 23-cv-03203- 12 PCP; Dkt. No. 35 in Case 24-cv-02725-PCP

14 This order concerns summary judgment motions filed in three cases: Falcon v. Koenig, 15 Case No. 22-6978-PCP (N.D. Cal. filed Nov. 8, 2022) (“Falcon”); Serrato v. Allison, Case No. 16 23-cv-3203-PCP (N.D. Cal. filed June 27, 2023) (“Serrato”); and Perez v. Macias, Case No. 27- 17 cv-2725-PCP (N.D. Cal. filed May 5, 2024) (“Perez”). The Court previously concluded that these 18 three cases were related within the meaning of Civil Local Rule 3-12. See Dkt. Nos. 31, 47.1 19 A summary judgment motion was filed in each case. See Dkt. No. 35; see also Serrato 20 Dkt. No. 50, Perez Dkt. No. 35. In Falcon, new evidence was presented in defendants’ reply. See 21 Dkt. No. 40 at 3–4. Mr. Falcon filed a motion for leave to file a sur-reply, see Dkt. No. 42, which 22 is GRANTED. In Serrato and Perez, this new evidence was presented in the summary judgment 23 motions and those plaintiffs had the opportunity to address that evidence in their oppositions. 24 For the reasons stated below, the Court DENIES the pending summary judgment motions. 25 The Court refers the three related cases to the Pro Se Prisoner Mediation Program. 26 27 1 Background 2 At all relevant times, plaintiffs Falcon, Serrato, and Perez were incarcerated at the 3 Correctional Training Facility (“CTF”) in Soledad, California. 4 All three plaintiffs name as a defendant C. Koenig, the warden of CTF during the events in 5 question. Mr. Falcon additionally sues CTF correctional employees Binning, Glaze, Handley, 6 Lopez-Ortega, Macias, McDonald, and Marquez. In addition to defendant Koenig, Mr. Perez sues 7 CTF correctional employees Binning, Freeman, Handley, Lopez, Macias, and Sirwet. Mr. Serrato 8 additionally sues K. Allison, the secretary of the California Department of Corrections and 9 Rehabilitation during the events in question. 10 In March 2019, Mr. Falcon was validated as a member of the security threat group 11 (“STG”) Sureños. Compl. at 9; MSJ at 8. Mr. Serrato and Mr. Perez are not known to be affiliated 12 with any STG. Serrato MSJ at 9; Perez MSJ at 3. 13 In May 2021 at CTF, conflicting STGs were given yard access at different times to reduce 14 the risk of violence between STGs. MSJ at 2. Defendants explain that Fresno Bulldogs “were 15 placed into ‘Group II’” of inmates being given time in the prison yard, and rival STGs such as the 16 Sureños were placed in Group I. Id. at 9. “During the relevant May 2021 time period, Group I and 17 Group II inmates did not share yard time together.” Id. Inmates not affiliated with any STG were 18 not subject to this policy and could access the yard at either time. 19 On May 24, 2021, CTF staff received a tip that, on the following day, “the Bulldogs 20 intended to attack any inmate who was not Black or Asian.” Reply at 3. Defendants explain that an 21 anonymous caller provided this tip to non-defendant Sergeant Vera. See id. At 12:51 p.m. local 22 time that same day, Sergeant Vera reported this tip via email to defendants Binning and Handley. 23 See id.; see also Dkt. No. 40-1 (containing the email from Sergeant Vera to defendants Binning 24 and Handley). Specifically, Sergeant Vera stated in his email to defendants Binning and Handley 25 that “an anonymous caller” had warned the Fresno “Bulldogs [were] possibly planning an attack 26 on inmates who are not black or Asian during the release tomorrow.” Id. 27 On that same day, defendant Binning directed non-defendants Reed and De La Torre to 1 [defendant Binning] by 1600 hours.” Id. The email copied defendant Handley and is marked 2 “8:13:51 PM (UTC),” so it appears to have been sent at 1:13 p.m. local time. See id. Less than an 3 hour later, non-defendant Reed responded to state that he and defendant McDonald had “met with 4 the ZW/Bulldog IAC this morning at approximately 0730.” Id. Defendants explain that this 5 meeting was with “leaders of the Bulldog prison gang.” Reply at 3. Those gang leaders “assured 6 Reed and McDonald that they were aware of the yard release scheduled for the next day and did 7 not foresee any issues.” Id.; see also Dkt. No. 40-1. There is no indication that the Bulldog gang 8 leaders were re-interviewed after CTF staff received the anonymous tip. See generally Reply & 9 Dkt. No. 40-1; see also Serrato MSJ and Perez MSJ. 10 On May 25, 2021, the Fresno Bulldogs were given yard time in accordance with CTF’s 11 standard plan. See Compl. at 9. Sureño-affiliated Mr. Falcon and unaffiliated Mr. Serrato and Mr. 12 Perez were released into the yard even as “Bull Dog Inmates were positioned . . . in a siege 13 formation, yelling and making dog bark sounds … ready for an attack.” Id. at 11. Correctional 14 officers stood nearby in riot gear, and several gurneys were positioned nearby. See id. As the non- 15 Bulldog inmates entered the yard, “the large crowd of Fresno Bull Dog Inmates charged at [Mr. 16 Falcon] and other E-wing inmates.” Id. at 11–12. Correctional officers moved out of the yard, 17 “closed and locked the yard gate entrance behind” themselves, and a riot ensued in which all 18 plaintiffs were injured. Id. at 12. 19 Defendants argue in their summary judgment motion that they “did not have advance 20 notice of the riot … did not know that [Mr. Falcon] … was in the group of people who went to the 21 yard, and were not directly involved with releasing [Mr. Falcon] from his cell.” Id. Specifically, 22 defendants argue in the summary judgment motion that defendant “Koenig did not hear from [the 23 tipster] before the May 25, 2021, riot, or at any time thereafter,” and “did not receive any message 24 from prison staff indicating [the tipster] had contacted them and is not aware of any advance 25 notice to himself or prison staff, directly or indirectly, that a riot would take place on May 25, 26 2021.” Id. at 10. Other defendants make similar representations. See id. at 10–11. 27 Legal Standard for Summary Judgment 1 there is “no genuine dispute as to any material fact and [that] the moving party is entitled to 2 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment “against 3 a party who fails to make a showing sufficient to establish the existence of an element essential to 4 that party’s case, and on which that party will bear the burden of proof at trial ... since a complete 5 failure of proof concerning an essential element of the nonmoving party’s case necessarily renders 6 all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A fact is 7 material if it might affect the outcome of the lawsuit under governing law and a dispute about such 8 a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for 9 the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 10 In a typical summary judgment motion, a defendant moves for judgment against a plaintiff 11 on the merits of his claim. In such a situation, the moving party bears the initial burden of 12 identifying those portions of the record which demonstrate the absence of a genuine dispute of 13 material fact. The burden then shifts to the nonmoving party to “go beyond the pleadings, and by 14 his own affidavits, or by the ‘depositions, answers to interrogatories, or admissions on file,’ 15 designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324. 16 The court’s function on a summary judgment motion is not to make credibility 17 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. 18 Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must 19 be viewed in the light most favorable to the nonmoving party, and inferences to be drawn from the 20 facts must be viewed in the light most favorable to the nonmoving party. See id. at 631. 21 Analysis 22 Plaintiffs’ claims that defendants failed to protect them from attack by the Fresno 23 Bulldogs, and in fact knowingly placed them at risk of such an attack, are evaluated under the 24 Eighth Amendment. 25 A. Eighth Amendment Violation 26 The “‘treatment a prisoner receives in prison and the conditions under which he is confined 27 are subject to scrutiny under the Eighth Amendment.’” Farmer v. Brennan, 511 U.S. 825, 832 1 food, clothing, shelter, and medical care,” and to “‘take reasonable measures to guarantee the 2 safety of the inmates.’” Id. A prison official violates the Eighth Amendment when two 3 requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, 4 Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison 5 official possesses a sufficiently culpable state of mind, i.e., the offending conduct was wanton, id. 6 (citing Wilson, 501 U.S. at 297). 7 The failure of prison officials to protect inmates from attacks by other inmates or from 8 dangerous conditions at the prison violates the Eighth Amendment when two requirements are 9 met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, 10 subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison 11 official is deliberately indifferent if he knows of and disregards an excessive risk to inmate health 12 or safety by failing to take reasonable steps to abate it. Id. at 837.

13 For example, if an Eighth Amendment plaintiff presents evidence showing that a 14 substantial risk of inmate attacks was “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that 15 the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be sufficient to 16 permit a trier of fact to find that the defendant-official had actual knowledge of the risk. 17 18 Id. at 842–43 (quoting a litigant’s argument). 19 It is well-settled that a “generalized” fear or risk of violence will not support a failure-to- 20 protect claim. See Williams v. Wood, 223 F. App’x 670, 671 (9th Cir. 2007) (concluding that 21 district court properly dismissed the plaintiff’s claims because his “speculative and generalized 22 fears of harm at the hands of other prisoners do not rise to a sufficiently substantial risk of serious 23 harm”); Turner v. Bunn, 107 F.3d 17 (9th Cir. 1997) (unpublished) (“Plaintiff expressed only a 24 general fear of harm by other inmates and failed to create a genuine issue of triable fact as to the 25 risk of serious harm.”). Here, however, defendants were presented with more than a generalized 26 risk or fear. Rather, the anonymous caller identified the date on which violence would occur (May 27 25, 2021, during yard time), who would perpetrate the violence (the Fresno Bulldogs), and the 1 This suggests that CTF officials “had been exposed to information concerning the risk” which 2 came to fruition, “and thus ‘must have known’ about it.” Farmer, 511 U.S. at 842. See, e.g., 3 Sernas v. Cantrell, 857 F. App’x 400, (Mem)–401 (9th Cir. 2021) (concluding, where plaintiff had 4 informed defendant-officials of threats to his life if returned to his housing unit and was assaulted 5 within fifteen minutes of defendant-officials’ returning him to that housing unit, that “the 6 allegations … support a plausible inference that these defendants were both ‘aware of facts from 7 which the inference could be drawn that a substantial risk of harm exists,’ and ‘also [drew] the 8 inference’”) (quoting Farmer, 511 U.S. at 837). 9 Defendants do not argue that the risked harm—injury from a riot—was insufficiently 10 serious to implicate the Eighth Amendment. See generally Falcon MSJ, Serrato MSJ, Perez MSJ. 11 Rather, defendants argue they lacked the knowledge necessary to be liable for deliberate 12 indifference. 13 In Falcon, defendants initially argued they had no knowledge that a riot would occur and 14 suggested they had not received an anonymous tip the day before the riot. See generally MSJ; see 15 e..g., Dkt. No. 35-4 (“Koenig Declaration”) at ¶¶ 10–15 (stating defendant Koenig had not 16 received advanced notice of the riot). For the first time in their reply, defendants disclosed 17 evidence that a tip had been received. Dkt. No. 40 at 3. The lack of knowledge on which 18 defendants’ summary judgment arguments turn is thus in question. Cf. Koenig Decl. at ¶ 15 (“I am 19 not aware of any staff that received advanced notice of the May 25, 2021 riot from any source, 20 directly or indirectly.”). 21 In their replies, defendants shift approaches and argue that they investigated the tip and 22 concluded that it was not credible. Reply at 3–4; Serrato MSJ at 12 (“Defendants have provided 23 undisputed evidence that CTF staff fully investigated the anonymous tip that was provided on 24 May 24, 2021, and were unable to find any credible evidence to corroborate a risk of violence.”). 25 But there is no evidence in the record to suggest any defendant asked any Fresno Bulldog about 26 the alleged attack plan after receiving the tip. Rather, defendants’ investigation consisted of 27 reciting that the Bulldogs’ leadership committee were interviewed four hours before the tip came 1 40-1. Defendants do not represent that any officer re-interviewed the Bulldog leaders after 2 receiving the tip, nor that the discrepancy between the tip’s information and the Bulldog 3 leadership’s expectations was ever addressed. That the Bulldog leaders had earlier disavowed 4 other issues thus does not appear to foreclose defendants’ having been deliberately indifferent to 5 plaintiffs’ right to be protected from harm at the hands of other inmates. See Davis v. Scott, 94 6 F.3d 444, 446 (8th Cir. 1996) (“The Supreme Court has cautioned, however, that . . . a prison 7 official would not necessarily escape liability just because he could not verify a particular risk, if 8 he strongly suspected the risk to exist.”). 9 Finally, defendants argue that they could not restrict the right of non-STG-affiliated 10 prisoners to access the yard without violating those prisoners’ constitutional rights. See Perez MSJ 11 at 17–18. This argument ignores that CTF officials could have restricted the Fresno Bulldogs’ yard 12 access while they investigated a tip that the Fresno Bulldogs planned to attack other inmates. 13 For these reasons, there appears to be a triable issue of fact as to whether defendants were 14 subjectively deliberately indifferent to the risk that plaintiffs would be attacked by the Fresno 15 Bulldogs on May 25, 2021. 16 B. Qualified Immunity 17 The defense of qualified immunity protects “government officials . . . from liability for 18 civil damages insofar as their conduct does not violate clearly established statutory or 19 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 20 U.S. 800, 818 (1982). The rule of “qualified immunity protects ‘all but the plainly incompetent or 21 those who knowingly violate the law.’” Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting 22 Malley v. Briggs, 475 U.S. 335, 341 (1986)). 23 Defendants argue that they are entitled to qualified immunity because “[i]t was not clearly 24 established that investigating an anonymous tip and determining it was not credible would result 25 in a constitutional violation.” Serrato MSJ at 15. As explained above, however, the evidence 26 would permit a jury to conclude that defendants did not investigate the anonymous tip. 27 Defendants’ own facts show that they did not follow up with any Fresno Bulldog regarding the tip, ] defendants decided the tip was not credible based on a meeting held four hours before the tip was 2 || received. This “plainly incompetent” failure to investigate is not entitled to the shield of qualified 3 || immunity. Saucier, 533 U.S. at 202. 4 CONCLUSION 5 Defendants’ motions for summary judgment are DENIED. See Dkt. No. 35; Serrato Dkt. 6 || No. 50; Perez Dkt. No. 35. Mr. Falcon’s motion to file a sur-reply is GRANTED and his sur-reply 7 || was considered herein. Dkt. No. 42. 8 This action is referred to Magistrate Judge Il|man for mediation or settlement proceedings 9 || pursuant to the Pro Se Prisoner Mediation Program. The Clerk shall send a copy of this order to 10 || Magistrate Judge Illman. 1] IT IS SO ORDERED. 13 Dated: March 20, 2026 14 Z. 15 L Coy 2 P. Casey Pitts = 16 United States District Judge

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