King v. Fiero

• Court: District Court, S.D. California
• Decided: February 16, 2023
• Docket: 3:20-cv-01254
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TRISTIN D. KING, Case No.: 20-CV-1254 JLS (AHG) CDCR #AW-9524 12 ORDER GRANTING DEFENDANTS’ Plaintiff, 13 MOTION FOR SUMMARY v. JUDGMENT 14 C/O FIERRO, Correctional Officer; and 15 C/O WOLLESEN, Correctional Officer, 16 Defendants. 17 18 19 Plaintiff Tristin D. King, a state prisoner incarcerated at the R.J. Donovan 20 Correctional Facility (“RJD”) in San Diego, California, at the time of the events but since 21 released from custody, is proceeding pro se and in forma pauperis with a civil rights 22 Complaint pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff claims Defendants RJD 23 Correctional Officers C. Fierro and J. Wollesen failed to protect him from assault by 24 another inmate in violation of the Eighth Amendment. See id. 25 Currently pending is Defendants’ Motion for Summary Judgment. ECF No. 29. 26 They contend Plaintiff has failed to exhaust available administrative remedies and the 27 uncontroverted evidence establishes they were unaware he faced a risk of assault. See id. 28 No opposition has been filed. 1 For the following reasons, the Court GRANTS the Motion for Summary Judgment 2 and enters judgment in favor of Defendants.1 3 I. Procedural Background 4 Plaintiff initiated this action by filing a Complaint on July 2, 2020, naming RJD 5 Correctional Officers Fierro and Wollesen as Defendants. ECF No. 1. On August 19, 6 2020, the Court granted Plaintiff leave to proceed in forma pauperis, directed the Clerk of 7 Court to issue a summons for each Defendant, and ordered the United States Marshal to 8 serve each Defendant. ECF No. 5. 9 Defendants filed an Answer on August 30, 2021, and filed the instant Motion for 10 Summary Judgment on July 18, 2022. ECF Nos. 22, 29. Plaintiff’s Opposition was 11 initially due August 18, 2022. ECF No. 30. 12 On August 25, 2022, the Court sua sponte extended the time for Plaintiff to file an 13 opposition to September 19, 2022. ECF No. 31. That order was returned to the Court as 14 undeliverable. ECF No. 33. On October 7, 2022, the Court issued an Order to Show Cause 15 why the case should not be dismissed for failure to prosecute. ECF No. 36. On November 16 8, 2022, Plaintiff notified the Court of a change of address and requested copies of Court 17 documents. ECF No. 41. On November 8, 2022, the Court extended the opposition 18 deadline to December 16, 2022, and directed the Clerk of Court to send Plaintiff copies of 19 the Order to Show Cause and the Defendants’ Motion for Summary Judgment. ECF No. 20 42. Plaintiff has not filed an opposition or otherwise responded. 21 II. Plaintiff’s Allegations 22 Plaintiff alleges that at approximately 7:10 p.m. on December 4, 2019, while housed 23 in the RJD Enhanced Outpatient Program, he exited his cell to participate in the evening 24 dayroom program. ECF No. 1 at 3. He was approached by RJD Correctional Officer Ogle 25 who informed him he needed to sign for legal mail and accompanied him to the dayroom. 26

27 1 Although this motion was referred to United States Magistrate Judge Allison H. Goddard pursuant to 28 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral 1 Id. Inmate Carr exited his cell and followed them. Id. Plaintiff was signing for his mail 2 in the presence of Officer Ogle and Defendants RJD Correctional Officers Fierro and 3 Wollesen when Inmate Carr whispered something unintelligible in Plaintiff’s ear from 4 behind. Id. at 4. When Plaintiff turned around to ask Inmate Carr what he said, Inmate 5 Carr allegedly punched Plaintiff in the face. Id. Defendants Fierro and Wollesen just 6 “stood there; not sounding any emergency alarm or reacting in any way,” according to 7 Plaintiff. Id. After five seconds Plaintiff looked at the officers and asked “really?” Id. 8 Officer Ogle then told Inmate Carr to “just walk away, man,” which Carr did. Id. Plaintiff 9 then said to Defendant Wollesen: “Really?, you’re just gonna let that man punch me in my 10 face?” Id. at 5. Officer Ogle handcuffed and escorted Inmate Carr out of the building. Id. 11 Plaintiff alleges Defendant Wollesen “laughed and stated, ‘Carr’s just crazy, man,’” which 12 “made the plaintiff feel humiliated, embarrassed, devalued, and afraid of exactly how the 13 officers conducted their duties in the building.” Id. Inmate Carr was returned to his cell, 14 but neither he nor Plaintiff were interviewed or asked to sign a document that evening 15 agreeing they could cohabit peacefully as required by prison regulations. Id. 16 When Plaintiff exited his cell for breakfast the next morning, Inmate Carr, “who was 17 waiting on a blind spot on the side of the sally-port exit, ran towards the plaintiff and began 18 punching the plaintiff in the face and torso.” Id. at 5–6. When Plaintiff put his hands up 19 to protect his face from a “barrage of punches,” his left hand “was damaged very badly 20 from the impact, and still is, with limited mobility.” Id. at 6. Plaintiff immediately returned 21 to his cell and filled out a 602-inmate grievance, a copy of which is attached to the 22 Complaint. Id. at 22–26. He stated in the grievance that the Defendants “should have 23 separated me from my attacker but instead jeopardized my safety by allowing him to stay 24 in the building and attack me,” and requested “compensation for injuries and reprimanding 25 officers for jeopardizing safety.” Id. 26 Plaintiff alleges that Defendants Fierro and Wollesen were again on duty in the 27 dayroom that evening, December 5, 2019, and Wollesen allegedly “smiled and said 28 jokingly to plaintiff, ‘how’s your jaw?’” Id. at 7. Plaintiff told Wollesen that because 1 Wollesen had failed to separate Plaintiff and Inmate Carr the previous evening, Inmate Carr 2 had attacked Plaintiff again. Id. According to Plaintiff, Wollesen asked Plaintiff if he had 3 “fought back ‘this time?’” Id. 4 Plaintiff states that about a week later he was summoned to the program office to be 5 interviewed about the December 4, 2019, incident. Id. at 7–8. He told the interviewing 6 officer “how the on duty officers witnessed the attack and failed to properly respond to the 7 attack, which led to another attack the morning of December 5.” Id. at 8. Plaintiff was 8 asked if anyone witnessed the attack, and he told the interviewing officer that Inmate 9 Alexander was a witness willing to make a statement. Id. Inmate Alexander was 10 summoned that same night to be interviewed about the December 4 incident, and he told 11 Plaintiff “he had been interviewed about the attack, where he explained what he’d 12 witnessed; inmate Carr walk up to plaintiff and punch him.” Id. 13 On “December 24, 2019, plaintiff received a ‘Staff Complaint Response - Appeal 14 #RJD-B-19-07660’ (‘Appeal Response’) regarding the 602 on the attack of December 4th 15 and 5th.” Id. A copy is attached to the Complaint. Id. at 20–21. It does not mention 16 Plaintiff’s request for monetary compensation and states that the matter was referred to the 17 hiring authority to determine whether the evidence warrants an investigation. Id. at 9. It 18 also states that the request for Defendants to be reprimanded was “beyond the scope of the 19 staff complaint process” and “allegations of staff misconduct do not limit or restrict the 20 availability of further relief via the inmate appeals process.” Id. Plaintiff alleges he did 21 not understand what “further relief” he could possibly seek, and contends the appeal 22 response constituted an attempt to confuse, discourage, and obstruct his attempt to exhaust 23 his administrative remedies. Id. at 9–10. 24 III. Defendants Are Entitled to Summary Judgment 25 Defendants move for summary judgment for two reasons. First, they contend 26 Plaintiff received a second level response to his 602-inmate grievance but never appealed 27 to the third and final level of appeal as required to exhaust administrative remedies, even 28 though that course of action was available to him. ECF No. 29-1 at 12–14. They argue 1 Plaintiff cannot groundlessly plead confusion arising from the second level response as a 2 reason for not proceeding to the final level because the second level response clearly stated 3 he was required to appeal to the final level in order to exhaust administrative remedies. 4 Moreover, Plaintiff has properly exhausted four prior inmate grievances. Id. 5 Defendants argue in the alternative that they are entitled to summary judgment on 6 Plaintiff’s Eighth Amendment failure to protect claim because, even if Plaintiff’s 7 allegations are true, he has failed to demonstrate that Defendants had a sufficiently culpable 8 state of mind. Id. at 15–17. They argue that neither the allegations in the Complaint, nor 9 the uncontroverted evidence, support a finding that they had any advance notice Inmate 10 Carr would attack Plaintiff on the first occasion, and since they were not the first 11 correctional officers to respond to that first attack, they did not have a responsibility to 12 sound an alarm or investigate whether the two inmates presented a further danger to each 13 other. Id. As to the second attack, they contend that Plaintiff: (1) did not complain to 14 anyone that he feared for his safety after the first attack; (2) did not report the second attack, 15 but merely returned to his cell to prepare a 602-inmate grievance seeking compensation for 16 the attack and requesting that Defendants be disciplined; (3) has presented no evidence that 17 the second attack even occurred; and (4) has come forward with no evidence to contradict 18 Defendants’ evidence that Plaintiff and Inmate Carr were interviewed about two weeks 19 later about any mutual hostility, and both inmates signed a memorandum stating they did 20 not consider each other enemies and could remain housed together without further incident. 21 Id. 22 For the following reasons, the Court finds summary judgment is appropriate based 23 on both of Defendants’ contentions. 24 A. Legal Standards 25 A defendant is entitled to summary judgment if they show “there is no genuine issue 26 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 27 Civ. P. 56(c). The moving party has the initial burden of showing summary judgment is 28 proper by “showing the absence of a genuine issue as to any material fact.” Adickes v. S.H. 1 Kress & Co., 398 U.S. 144, 157 (1970). Entry of summary judgment is appropriate 2 “against a party who fails to make a showing sufficient to establish the existence of an 3 element essential to that party’s case, and on which that party will bear the burden of proof 4 at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a 5 complete failure of proof concerning an essential element of the nonmoving party’s case 6 necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 7 322–23 (1986). 8 To avoid summary judgment, the nonmovant “must set forth specific facts showing 9 that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 10 (1986). The Court may not weigh evidence or make credibility determinations, and any 11 justifiable inferences drawn from the underlying facts must be viewed in the light most 12 favorable to the nonmoving party. Id. at 255. The nonmovant’s evidence need only be 13 such that a “jury might return a verdict in his favor.” Id. at 257. 14 B. Exhaustion of Administrative Remedies 15 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust 16 ‘such administrative remedies as are available’ before bringing suit to challenge prison 17 conditions.” Ross v. Blake, 578 U.S. 632, 638 (2016) (quoting 42 U.S.C. § 1997e(a)). 18 “[T]he PLRA’s exhaustion requirement does not allow a prisoner to file a complaint 19 addressing non-exhausted claims.” Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 20 2010). “[P]roper exhaustion improves the quality of those prisoner suits that are eventually 21 filed because proper exhaustion often results in the creation of an administrative record 22 that is helpful to the court.” Woodford v. Ngo, 548 U.S. 81, 94–95 (2006). 23 When the events alleged in the Complaint took place in 2019 there were three formal 24 levels of administrative review in the CDCR.2 See Cal. Code Regs., tit. 15 § 3084.5. An 25 26 2 The citations to the California Code of Regulations in this Order are to the code sections in effect in 2019. See Wimberly v. Cuevas, No. 19cv8316-SI, 2021 WL 879881, at *4 n.1 (N.D. Cal. Mar. 9, 2021) 27 (unpublished) (“On March 25, 2020, and effective June 1, 2020, California Code of Regulations Title 15, sections 3084 through 3084.9 were repealed and replaced with renumbered and amended provisions at 28 1 inmate began the process by submitting, within thirty days of the adverse action, a CDCR 2 form 602-inmate appeal describing the adverse action challenged. Cal. Code Regs., tit. 15 3 § 3084.8(b)(1). If the inmate was not satisfied with the first level response, the inmate 4 could have submitted an appeal at the second level of review. Id. If the inmate was not 5 satisfied with the second level response, the inmate could have submitted an appeal to the 6 Office of Appeals for a third level of review by the Chief of the Office of Appeals in 7 Sacramento, which completed the exhaustion process. Id. 8 1. Allegations in the Complaint Regarding Exhaustion 9 Plaintiff alleges in the Complaint he was attacked by Inmate Carr on his way to 10 breakfast at roughly 5:45 a.m. on December 5, 2019, and immediately returned to his cell 11 without breakfast to fill out a 602-inmate grievance. ECF No. 1 at 6. He attaches a copy 12 of that grievance to the Complaint, which states: 13 December 4, 2019, at approx. 7:15 p.m. I was attacked by an 14 inmate while receiving my legal in front of c/o Fiero [sic] c/o Ogle, and c/o Wollenson [sic]. They told the inmate to walk 15 away after he punched me in the face. The next morning the 16 same inmate still in the building try to attack me at morning chow, forcing me to defend myself. The c/o’s should have 17 separated me from my attacker but instead jeopardized my safety 18 by allowing him to stay in the building and attack me. 19 Id. at 22–23. 20 In the “Action requested” section of the grievance, Plaintiff stated: “Requesting 21 compensation for injuries and reprimanding officers for jeopardizing safety.” Id. at 22. 22 Plaintiff alleges that about a week later he was interviewed about the December 4, 2019, 23 incident and told the interviewing officer “how the on duty officers witnessed the attack 24 and failed to properly respond to the attack, which led to another attack the morning of 25 December 5.” Id. at 7–8. Inmate Alexander told Plaintiff he reported to prison authorities 26 “what he’d witnessed; inmate Carr walk up to plaintiff and punch him.” Id. at 8. 27 / / / 28 / / / 1 Plaintiff received a second level response to his grievance on December 24, 2019, 2 which is attached to the Complaint. Id. at 20–21. It did not mention his request for 3 monetary compensation and stated: “A review of the allegations of staff misconduct 4 presented in the written complaint has been completed. Based upon this review your 5 appeal is: Pending review by ISU as an Allegation Inquiry.” Id. at 20. Under the heading 6 “Allegation Inquiry,” it states: “Your appeal has been referred by the hiring authority to a 7 trained investigator to determine whether the evidence warrants an investigation or 8 inquiry. After the determination has been made your complaint will be processed 9 accordingly and you will be notified of the outcome.” Id. at 21. It states that his request 10 for the Defendants to be reprimanded was “beyond the scope of the staff complaint 11 process” and that “allegations of staff misconduct do not limit or restrict the availability 12 of further relief via the inmate appeals process.” Id. Plaintiff alleges he did not understand 13 what “further relief” he could possibly seek and that the second level appeal response 14 constituted an attempt to confuse, discourage, and obstruct his attempt to exhaust his 15 administrative remedies. Id. at 9–10. The second level response concluded: “If you wish 16 to appeal the decision and/or exhaust administrative remedies, you must submit your staff 17 complaint appeal through all levels of appeal review up to, and including, the 18 Secretary’s/Third Level of Review. Once a decision has been rendered at the Third Level, 19 administrative remedies will be considered exhausted.” Id. at 21. 20 In sum, the second level response: (1) ignored Plaintiff’s request for compensation, 21 (2) indicated that his request for disciplinary action against the Defendants was outside the 22 scope of the grievance process but was currently being investigated and Plaintiff would be 23 notified of the result, and (3) informed Plaintiff that exhaustion of administrative remedies 24 would not be complete unless and until he advanced to the third and final level of review. 25 / / / 26 / / / 27 / / / 28 / / / 1 2. Defendants Have Met Their Burden of Demonstrating Failure to Exhaust 2 Howard E. Mosely, the Associate Director of the Office of Appeals (“OOA”) for the 3 California Department of Corrections and Rehabilitation (“CDCR”), states that he is 4 responsible for administering the CDCR’s grievance and appeals process for all inmates, 5 and that a decision by the OOA constitutes the final level of review. Declaration of Howard 6 E. Mosely in Support of Defendants’ Motion for Summary Judgment (“Mosely Decl.,” 7 ECF No. 29-5) ¶¶ 1, 5. According to Mosely, a search of the OOA records failed to identify 8 a final level of review submitted by Plaintiff with respect to the allegations presented in 9 this action, but the search did return four other inmate appeals by Plaintiff taken to the third 10 and final level of appeal, with one occurring in 2017 and three in 2018. Id. ¶¶ 8–9; id. at 11 6. 12 Defendants point out that the second level response attached to the Complaint states: 13 “If you wish to appeal the decision and/or exhaust administrative remedies, you must 14 submit your staff complaint appeal through all levels of appeal review up to, and including, 15 the Secretary’s/Third Level of Review. Once a decision has been rendered at the Third 16 Level, administrative remedies will be considered exhausted.” ECF No. 1 at 21. The 17 second level response also states: “The appellant alleges custody staff at the Richard J. 18 Donovan Correctional Facility (RJDCF) witnessed an inmate batter you and failed to act 19 and failed to protect you from a future attack by the same inmate,” and therefore concerns 20 the claim presented in the Complaint. Id. at 20. Defendants argue that Plaintiff is familiar 21 with the appeals process as he recently took four prior inmate appeals to the third and final 22 level of review. ECF No. 29-1 at 14; Mosely Decl. at 6. 23 Defendants have carried their burden on summary judgment by coming forward with 24 evidence showing there is no genuine issue of material fact in dispute that Plaintiff could 25 have, but never, filed a third level appeal of his 602-inmate grievance presenting the claim 26 raised in his Complaint, despite being informed that he needed to do so to exhaust 27 administrative remedies and despite having done so with respect to at least four prior 28 inmate appeals. See Sapp v. Kimbrell, 623 F.3d 813, 827 (9th Cir. 2010) (“[Plaintiff] could 1 have pursued [his] grievance through the full administrative appeal process. Nothing in 2 the record indicates that these apparently straight-forward procedures ‘trip up’ ordinary 3 inmates. To the contrary, [Plaintiff] has proven his own ability to navigate them, as he 4 successfully exhausted [another grievance] around the same time as he pursued his appeals 5 about [this grievance].”). 6 3. Plaintiff Has Failed to Show Administrative Remedies Were Unavailable 7 Once a defendant meets the burden of showing “there was an available 8 administrative remedy, and that the prisoner did not exhaust that available remedy . . . the 9 burden shifts to the prisoner to come forward with evidence showing that there is 10 something in his particular case that made the existing and generally available 11 administrative remedies effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162, 12 1172 (9th Cir. 2014) (en banc). Inmates are not required to exhaust administrative 13 remedies when circumstances render administrative remedies “effectively unavailable.” 14 Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). Any justifiable inferences drawn 15 from the facts in the record in this regard will be viewed in the light most favorable to 16 Plaintiff. Anderson, 477 U.S. at 247–50. 17 Plaintiff alleges he should be excused from failing to appeal to the third and final 18 level of appeal because the second level response contained “confusing and dead end 19 instructions that would ultimately lead to nowhere.” ECF No. 1 at 10. He contends there 20 was nothing left to appeal because (1) his request for compensation was not addressed in 21 the second level of appeal response; (2) the second-level response stated that the appeal 22 process was not available for his request that the Defendants be disciplined; and (3) the 23 second-level response confused the issue by stating: “Allegations of staff misconduct do 24 not limit or restrict the availability of further relief via the inmate appeals process.” Id. at 25 9–10, 21. 26 There are “three kinds of circumstances in which an administrative remedy, although 27 officially on the books, is not capable of use to obtain relief.” Ross, 578 U.S. at 643. They 28 arise when: (1) the exhaustion procedure “operates as a simple dead end – with officers 1 unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) the 2 prison’s exhaustion scheme is “so opaque that it becomes, practically speaking, incapable 3 of use . . . so that no ordinary prisoner can make sense of what it demands”; and (3) “prison 4 administrators thwart inmates from taking advantage of a grievance process through 5 machination, misrepresentation, or intimidation.” Id. at 643–44. 6 Because Plaintiff did not sign his Complaint under penalty of perjury the Court is 7 unable to consider the statements contained therein as evidence in opposition to the 8 summary judgment motion. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) 9 (“[B]ecause Jones is pro se, we must consider as evidence in his opposition to summary 10 judgment all of Jones’s contentions offered in motions and pleadings, where such 11 contentions are based on personal knowledge and set forth facts that would be admissible 12 in evidence, and where Jones attested under penalty of perjury that the contents of the 13 motions or pleadings are true and correct.”). However, even assuming Plaintiff would 14 verify his Complaint if given the opportunity to do so, it is clear he was still required to 15 submit a final level appeal of his 602-inmate grievance to exhaust his available 16 administrative remedies despite his confusion. 17 The Ninth Circuit has held that exhaustion is not required “when circumstances 18 render administrative remedies ‘effectively unavailable,’” such as “improperly screening a 19 prisoner’s grievances.” Sapp, 623 F.3d at 822–23 (quoting Nunez, 591 F.3d at 1226). 20 However, in that situation, “the inmate must establish (1) that he actually filed a grievance 21 or grievances that, if pursued through all levels of administrative appeals, would have 22 sufficed to exhaust the claim that he seeks to pursue in federal court, and (2) that prison 23 officials screened his grievance or grievances for reasons inconsistent with or unsupported 24 by applicable regulations.” Id. at 823–24. Plaintiff’s anticipation that filing a third level 25 appeal of his inmate grievance would have been a dead end, even if reasonable, does not 26 excuse his failure to file at that level because he has not shown the second level response 27 was inconsistent with or unsupported by the prison regulations. Id.; see also Marella v. 28 Terhune, 568 F.3d 1024, 1028 (9th Cir. 2009) (“If a prisoner had full opportunity and 1 ability to file a grievance timely, but failed to do so, he has not properly exhausted his 2 administrative remedies.” (citing Woodford, 548 U.S. at 88)). Plaintiff’s alleged confusion 3 about what remedies remained available to him after the second level denial of his 4 grievance—that is, his contention there was nothing to appeal because his request for 5 compensation was not addressed at the second level of appeal and the appeal process was 6 not available for his request that the Defendants be disciplined—does not excuse his failure 7 to exhaust because “prisoners are obligated to navigate all a prison’s administrative review 8 process ‘regardless of the fit between a prisoner’s prayer for relief and the administrative 9 remedies possible.’” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (quoting Booth v. 10 Churner, 532 U.S. 731, 739 (2001)). Thus, Plaintiff was required to file at the third level 11 because it was “available” to him. See Booth, 532 U.S. at 737 (noting that “available” 12 means “capable of use for the accomplishment of a purpose” and “that which is accessible 13 or may be obtained.” (internal quotation omitted)); Williams v. Paramo, 775 F.3d 1182, 14 1191 (9th Cir. 2015) (“To be available, a remedy must be available ‘as a practical matter’; 15 it must be ‘capable of use; at hand.’” (quoting Albino, 747 F.3d at 1171)). 16 In sum, the uncontroverted evidence establishes that Plaintiff did not file a third level 17 appeal of the denial of his 602-inmate grievance containing the allegations against the 18 Defendants upon which the claim in the Complaint is based, despite being instructed to do 19 so to exhaust administrative remedies, having had an opportunity to do so, and having done 20 so with prior appeals of inmate grievances. This establishes a lack of exhaustion of 21 available administrative remedies. Defendants are entitled to summary judgment because 22 Plaintiff has “failed to establish the existence of an element essential to [his] case.” Catrett, 23 477 U.S. at 322; Rhodes, 621 F.3d at 1004 (“[T]he PLRA’s exhaustion requirement does 24 not allow a prisoner to file a complaint addressing non-exhausted claims.”). 25 The Court GRANTS Defendants’ Motion for Summary Judgment based on 26 Plaintiff’s failure to exhaust available administrative remedies. 27 / / / 28 / / / 1 C. Eighth Amendment Claim 2 Defendants contend in the alternative that even if Plaintiff is not precluded from 3 bringing his Eighth Amendment failure to protect claim due to a failure to exhaust 4 administrative remedies, the uncontroverted evidence establishes that Defendant was 5 neither aware of nor deliberately indifferent to a risk of assault on Plaintiff by Inmate Carr. 6 ECF No. 29-1 at 15–17. Defendants argue that neither the allegations in the Complaint nor 7 the uncontroverted evidence support a finding that they had any advance notice that Inmate 8 Carr would attack Plaintiff on the first occasion, and, because they were not the first 9 correctional officers to respond to that first attack, they did not have a responsibility to 10 sound an alarm or investigate whether the two inmates presented a further danger to each 11 other. Id. As to the second attack, they contend that (1) Plaintiff did not complain to 12 anyone that he feared for his safety after the first attack or report either attack, but merely 13 returned to his cell to prepare a 602-inmate grievance seeking compensation for the attacks 14 and requesting Defendants be disciplined; (2) Plaintiff has presented no evidence that the 15 second attack even occurred; and (3) he has not come forward with evidence to contradict 16 Defendants’ evidence that Plaintiff and Inmate Carr were interviewed within two weeks 17 about any mutual hostility, and both inmates signed a memorandum stating they did not 18 consider each other enemies and could remain housed together without further incident. 19 Id. 20 “The Eighth Amendment imposes a duty on prison officials to protect inmates from 21 violence at the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 22 2015) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)). There are objective and 23 subjective prongs to a failure to protect claim. “First, objectively viewed, the prison 24 official’s act or omission must cause ‘a substantial risk of serious harm.’ Second, the 25 official must be subjectively aware of that risk and act with ‘deliberate indifference to 26 inmate health or safety.’” Id. (quoting Farmer, 511 U.S. at 834, 839–40). “[T]he official 27 must both be aware of facts from which the inference could be drawn that a substantial risk 28 of serious harm exists, and he most also draw that inference.” Farmer, 511 U.S. at 837. 1 Deliberate indifference can be established from an “inference from circumstantial 2 evidence” or “from the very fact that the risk was obvious.” Id. at 842. 3 Defendants each present their own sworn declaration. Defendant Fierro states that 4 he did not observe Inmate Carr strike Plaintiff on December 4, 2019, and that he had no 5 reason to believe Plaintiff faced any danger of physical attack by Inmate Carr. Declaration 6 of C. Fierro in Support of Defendants’ Motion for Summary Judgment (“Fierro Decl.,” 7 ECF No. 29-3) ¶¶ 4-5. He states that because he did not witness that attack, he had no 8 obligation to sound an alarm or investigate whether Plaintiff was in danger of further attack. 9 Id. ¶ 6. Moreover, when he observed Plaintiff after the attack, Plaintiff did not appear to 10 be distraught or injured, and Plaintiff never indicated he faced further danger from Inmate 11 Carr. Id. ¶¶ 9-10. Defendant Fierro further states that he was not aware Plaintiff was 12 involved in another altercation with Inmate Carr on December 5, 2019, that he was not 13 aware Plaintiff faced such a danger, and that if he had, he would have acted as he has been 14 trained to act to prevent the second assault. Id. ¶¶ 11–12. Defendant Wollesen makes 15 essentially the same statements in his sworn declaration, adding that he had a conversation 16 with Plaintiff following the first assault in which he asked Plaintiff if he wanted medical 17 attention, which he declined. Declaration of J. Wollesen in Support of Defendants’ Motion 18 for Summary Judgment (“Wollesen Decl.,” ECF No. 29-4) ¶¶ 4–12. 19 Defendants also present the declaration of Giam Nguyen, a Supervising Deputy 20 California Attorney General, who attaches a copy of a memorandum taken from Plaintiff’s 21 prison file. Declaration of Giam Nguyen in Support of Defendants’ Motion for Summary 22 Judgment (“Nguyen Decl.,” ECF No. 29-6) ¶ 3. That document, which is signed by 23 Plaintiff and Inmate Carr, indicates that on December 17, 2019, Plaintiff and Inmate Carr 24 were interviewed and both stated they do not consider each other enemies, and that they 25 can remain housed on Facility A without further incident. Id. at 4. 26 Accordingly, Defendants have come forward with evidence that they were unaware 27 of facts from which an inference could have been drawn that Plaintiff faced a substantial 28 risk of Inmate Carr’s first attack, which Plaintiff himself states was unexpected and 1 inexplicable. They have also presented evidence that they were unaware of any risk of 2 further attack, and were under no obligation to intervene, because Plaintiff never informed 3 anyone that he feared further attack by Inmate Carr. Thus, they have come forward with 4 evidence that no Eighth Amendment violation occurred as a result of any act or omission 5 on their part. See Farmer, 511 U.S. at 837 (“[T]he official must both be aware of facts 6 from which the inference could be drawn that a substantial risk of serious harm exists, and 7 he most also draw that inference.”); Adickes, 398 U.S. at 157 (noting moving party bears 8 the initial burden of “showing the absence of a genuine issue as to any material fact.”). To 9 avoid summary judgment, Plaintiff “must set forth specific facts showing that there is a 10 genuine issue for trial.” Anderson, 477 U.S. at 256. 11 Plaintiff has come forward with no facts or evidence whatsoever. As noted, he has 12 not filed an opposition to the Defendants’ Motion and his Complaint is not verified. Even 13 if he were allowed an opportunity to verify his Complaint, the allegations therein, if proven 14 true and to the extent they are within his personal knowledge, merely establish that 15 Defendants were on duty in the dayroom when Plaintiff was unexpectedly assaulted by 16 Inmate Carr as Officer Ogle escorted Plaintiff to sign for legal mail. ECF No. 1 at 4. 17 Plaintiff alleges Defendants did not react in any way, and that Inmate Carr walked away 18 and sat at a nearby bench after Officer Ogle ordered him to walk away. Id. Plaintiff then 19 looked at Defendants and asked them: “Really?, you’re just gonna let that man punch me 20 in my face?”, and Defendant Wollesen “laughed and stated, ‘Carr’s just crazy, man.’” Id. 21 at 4–5. Plaintiff does not contradict Defendants’ evidence that they were not the officers 22 who responded to the attack and were therefore not responsible for determining whether 23 Plaintiff faced a danger of further assault by Inmate Carr. Nor does he contradict 24 Defendants’ testimony he never indicated to them that he was in danger of being assaulted 25 by Inmate Carr after the first assault. In fact, he does not allege that he informed anyone 26 of such a risk or that anyone concluded he faced such a risk. See Farmer, 511 U.S. at 838 27 (“[A]n official’s failure to alleviate a significant risk that he should have perceived but did 28 not, while no cause of commendation, cannot” be an Eighth Amendment violation.). 1 Although the failure of an inmate to inform a prison official of a specific threat is 2 not dispositive of the question of whether the official acted with deliberate indifference to 3 the inmate’s safety, where the record contains no other evidence that Defendants knew of 4 facts which would support an inference of a substantial risk of further assault, or actually 5 drew such an inference, deliberate indifference is not established. Labatad v. Corrs. Corp. 6 of America, 714 F.3d 1155, 1160–61 (9th Cir. 2013). To the extent Plaintiff relies on a 7 general contention that because Inmate Carr unexpectedly and for no reason assaulted him 8 on one occasion he might do so again, it is belied by Plaintiff’s failure to contradict 9 Defendants’ evidence that he and Inmate Carr signed a compatibility report about twelve 10 days later. In any case, even if Plaintiff were allowed to verify his Complaint, his 11 allegations do not overcome the evidence presented by Defendants that they were not in 12 possession of facts from which they could have, or did, draw an inference that Plaintiff was 13 in danger of a second assault by Inmate Carr, or that they could have or should have taken 14 any precautions to prevent the second sudden and unexpected assault, because deliberate 15 indifference requires more than a mere suspicion of danger. See Berg v. Kincheloe, 794 16 F.2d 457, 459 (9th Cir. 1986) (“The standard does not require that the guard or officer 17 believe to a moral certainty that one inmate intends to attack another at a given place at a 18 given time certain before that officer is obligated to take steps to present such an assault. 19 But on the other hand, he must have more than a mere suspicion that an attack will occur.”). 20 Although deliberate indifference can be established from an “inference from 21 circumstantial evidence” or “from the very fact that the risk was obvious,” Farmer, 511 22 U.S. at 842, the uncontroverted evidence shows that Defendants were merely on duty in 23 the dayroom when Inmate Carr unexpectedly and for no reason assaulted Plaintiff, and that 24 Plaintiff never informed Defendants or anyone else he felt a need for protection from 25 Inmate Carr. Thus, there is insufficient evidence the Defendants were in possession of 26 facts from which an inference could be drawn that Plaintiff was in danger of further assault 27 by Inmate Carr, that they actually drew such an inference, or that such a possibility was so 28 obvious they should have drawn such an inference. 1 Defendants have met their burden of showing summary judgment is proper by 2 ||“showing the absence of a genuine issue as to [a] material fact”: whether they were 3 || deliberately indifferent to a substantial risk to Plaintiff's safety. Adickes, 398 U.S. at 157. 4 ||Entry of summary judgment in favor of Defendants on Plaintiffs Eighth Amendment 5 || failure to protect claim is appropriate because Plaintiff has not “set forth specific facts 6 ||showing that there is a genuine issue for trial” with respect to deliberate indifference. 7 || Anderson, 477 U.S. at 256—57 (holding that the nonmovant’s evidence need only be such 8 a “jury might return a verdict in his favor.”). 9 Conclusion and Orders 10 Based on the foregoing, IT IS ORDERED that Defendants’ Motion for Summary 11 || Judgment (ECF No. 29) is GRANTED. The Clerk of Court is directed to enter judgment 12 ||1in favor of Defendants Fierro and Wollesen. As this Order concludes the litigation in this 13 || matter, the Clerk of the Court SHALL CLOSE the file. 14 IT IS SO ORDERED. 13 |! Dated: February 16, 2023 tt 16 jen Janis L. Sammartino 7 United States District Judge 18 19 20 21 22 23 24 25 26 27 28