Matthews v. Reubart

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 IVAN LEE MATTHEWS, II, Case No. 3:19-CV-0221-MMD-CLB

5 Plaintiff, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v. [ECF No. 12] 7 WILLIAM REUBART,

8 Defendant.

9 10 This case involves a civil rights action filed by Plaintiff Ivan Lee Matthews, II 11 (“Matthews”) against Defendant William Reubart (“Reubart”). Currently pending before 12 the Court is Reubart’s motion for summary judgment. (ECF No. 12.)2 Matthews opposed 13 the motion, (ECF No. 20), and no reply was filed. For the reasons stated below, the Court 14 recommends that Reubart’s motion for summary judgment, (ECF No. 12), be granted. 15 I. PROCEDURAL HISTORY 16 At the time this matter was initiated in April 2019, Matthews was an inmate in the 17 custody of the Nevada Department of Corrections (“NDOC”), and the events that gave 18 rise to this action occurred at the Ely State Prison (“ESP”). (ECF No. 1-1.) Matthews 19 submitted an amended civil rights complaint pursuant to 42 U.S.C. § 1983. (Id.)3 On 20 March 30, 2020, the Court screened the amended complaint and dismissed it with leave 21 to amend. (ECF No. 3.) Matthews then filed his second amended complaint (“SAC”). (ECF 22 No. 5.) In his SAC, Matthews sued Reubart for one claim of Eighth Amendment deliberate 23

24 1 This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate 25 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4.

26 2 Reubart also filed exhibits under seal, (ECF No. 14), and an erratum with declarations authenticating the exhibits. (ECF No. 17.) 27 3 The initial complaint was labeled as “amended complaint,” even though Matthews 1 indifference to serious medical needs and sought monetary relief. (Id. at 1-2, 4, 10.) 2 The SAC alleged on April 4, 2018, August 10, 2018, and approximately December 3 20, 2018, Matthews was improperly assigned a top bunk although he informed staff at 4 ESP that he had a seizure disorder and required a lower bunk. (Id. at 4.) On December 5 8, 2020, the Court screened the SAC. (ECF No. 6.) Based on the allegations, the Court 6 allowed Matthews to proceed as to the portion of Count One alleging Eighth Amendment 7 unsafe prison conditions against Reubart. (Id.) 8 On June 10, 2021, Reubart filed the instant motion for summary judgment. (ECF 9 No. 12.) Reubart asserts he is entitled to summary judgment because: (1) he did not 10 personally participate in the alleged violation; (2) there is insufficient evidence to sustain 11 a claim of deliberate indifference against him; and (3) alternatively, he is entitled to 12 qualified immunity. (Id.) Matthews opposed the motion, (ECF No. 20), and no reply was 13 filed. 14 II. FACTS4 15 On April 4, 2018, Matthews was transferred from the Southern Desert Correctional 16 Center to ESP. (ECF Nos. 12-1 at 1 (bed assignments); ECF No. 12-5 at 2 (explaining 17 bed assignments.)) Upon his arrival, Matthews was assigned to a cell in Unit 7, Block B, 18 cell number 32, on the top bunk. (Id.) There is no information in the record regarding who 19 initially assigned Matthews to this cell and bunk upon his arrival at ESP. 20 On April 13, 2018, Matthews submitted a “medical kite,” informing medical 21 personnel that he needed to be placed on a lower bunk due to a seizure disorder. (ECF 22 No. 12-2 at 1.) The following day, Matthews was seen by Nurse Christopher Rice. (ECF 23 No. 14-1 at 2-3.) At that time, Matthews informed Nurse Rice of his seizure disorder and 24 need for a lower bunk. (Id.) Nurse Rice’s notes indicate that the first-time medical staff 25 became aware of Matthews’s seizure disorder and need for a lower bunk occurred on 26

27 4 The facts as stated herein are taken from the authenticated evidence submitted by Reubart in support of the motion for summary judgment. Matthews did not submit any 1 April 13, 2018 when Matthews submitted the medical kite several days after arriving at 2 ESP. (Id.)5 On April 18, 2018, Nurse “Jones” responded to Matthews’s kite stating that he 3 had been “reclassified,” meaning his request for a new cell and lower bunk was granted. 4 (ECF No. 12-2 at 2.) On the following day, Matthews was reassigned to Unit 7, Block B, 5 cell number 23, on the lower bunk. (ECF No. 12-1 at 2.) 6 On April 11, 2018, Matthews submitted an informal grievance asserting that he 7 was improperly assigned to a top bunk. (ECF No. 12-3 at 11-13.) In the informal 8 grievance, Matthews claimed he was screened for housing “by medical,” who asked him 9 several questions about himself and his health when he arrived at ESP on April 4, 2018. 10 (Id.) Matthews claimed he expressly told this person—who is unidentified—he suffered 11 from a seizure disorder at that time. (Id.) Thereafter, Matthews asserted he also informed 12 “R&R” and Unit 7B officers of his condition. (Id. at 13.) Despite this, Matthews claimed he 13 was improperly assigned to a top bunk. (Id.) It appears grievance coordinator, Reubart, 14 signed for receipt of the informal grievance on April 16, 2018. However, based on the 15 other signatures on the informal grievance and the NOTIS documents provided, Reubart 16 did not personally respond to the grievance. Rather, the grievance was responded to by 17 a caseworker, who denied the grievance because Matthews had already been moved to 18 a lower bunk. (Id. at 10.) 19 Matthews then filed a “First Level Grievance,” which it appears grievance 20 coordinator Reubart, also received on June 1, 2018. (Id. at 7.) “J. Carpenter”—not 21 Reubart—provided the response to the grievance on August 1, 2018. (Id. at 6-7.) 22 Carpenter affirmed the denial of Matthews’s informal grievance. (Id.) Thereafter, 23 Matthews filed a “Second Level Grievance,” which grievance coordinator, Reubart, 24 received on September 4, 2018. (Id. at 2.) Once again, however, Reubart did not respond 25 to the grievance. Rather, this grievance was responded to by Minev on January 29, 2019, 26 5 Other medical kites sent by Matthews between his arrival at ESP on April 4, 2018, 27 and the date of this medical kite corroborate this information. Specifically, Matthews sent medical kites on April 7, 2018 and April 11, 2018. However, Matthews did not refer to, or 1 who indicated the grievance had been resolved. (Id.) 2 Subsequently, Matthews was reassigned to an upper bunk on two additional 3 occasions relevant to this case. First, Matthews was reassigned to a top bunk for one 4 night on August 8, 2018, following a fight. (ECF No. 12-1 at 1; ECF No. 12-4 at 2.) Second, 5 Matthews was assigned to a top bunk between December 4, 2018, to December 18, 2018, 6 while he was housed in the infirmary. (ECF No. 12-3 at 3; ECF No. 12-5 at 3.) While in 7 the infirmary, Matthews was under 24-hour observation. (ECF No. 12-5 at 3.) There is no 8 evidence in the record indicating who was responsible for these reassignments, nor is 9 there any record of any grievance or medical kite sent by Matthews taking issue with the 10 subsequent upper bunk assignments. 11 In support of the motion for summary judgment, Reubart submitted a declaration. 12 (ECF No. 12-5.) In this declaration, Reubart states that in his role as assistant warden, it 13 was within his authority to reassign inmates to different cells on a case-by-case basis; 14 however, he did not have primary authority for making the initial cell and bunk 15 assignments for inmates arriving at ESP or for reassignments of each inmate at ESP. (Id. 16 at 3.) Reubart also states he never personally responded to any grievance from Matthews 17 related to his upper bunk assignment and he had no knowledge of Matthews’s specific 18 health conditions or medical history during the times relevant to the complaint. (Id.) 19 III. LEGAL STANDARD 20 “The court shall grant summary judgment if the movant shows that there is no 21 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 22 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 23 substantive law applicable to the claim or claims determines which facts are material. 24 Coles v. Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 25 U.S. 242, 248 (1986)). Only disputes over facts that address the main legal question of 26 the suit can preclude summary judgment, and factual disputes that are irrelevant are not 27 material. Frlekin v. Apple, Inc., 979 F.3d 639, 644 (9th Cir. 2020). A dispute is “genuine” 1 248. 2 The parties subject to a motion for summary judgment must: (1) cite facts from the 3 record, including but not limited to depositions, documents, and declarations, and then 4 (2) “show[] that the materials cited do not establish the absence or presence of a genuine 5 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 6 Fed. R. Civ. P. 56(c)(1). Documents submitted during summary judgment must be 7 authenticated, and if only personal knowledge authenticates a document (i.e., even a 8 review of the contents of the document would not prove that it is authentic), an affidavit 9 attesting to its authenticity must be attached to the submitted document. Las Vegas 10 Sands, LLC v. Neheme, 632 F.3d 526, 532-33 (9th Cir. 2011). Conclusory statements, 11 speculative opinions, pleading allegations, or other assertions uncorroborated by facts 12 are insufficient to establish the absence or presence of a genuine dispute. Soremekun v. 13 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); Stephens v. Union Pac. R.R. Co., 14 935 F.3d 852, 856 (9th Cir. 2019). 15 The moving party bears the initial burden of demonstrating an absence of a 16 genuine dispute. Soremekun, 509 F.3d at 984. “Where the moving party will have the 17 burden of proof on an issue at trial, the movant must affirmatively demonstrate that no 18 reasonable trier of fact could find other than for the moving party.” Soremekun, 509 F.3d 19 at 984. However, if the moving party does not bear the burden of proof at trial, the moving 20 party may meet their initial burden by demonstrating either: (1) there is an absence of 21 evidence to support an essential element of the nonmoving party’s claim or claims; or (2) 22 submitting admissible evidence that establishes the record forecloses the possibility of a 23 reasonable jury finding in favor of the nonmoving party. See Pakootas v. Teck Cominco 24 Metals, Ltd., 905 F.3d 565, 593-94 (9th Cir. 2018); Nissan Fire & Marine Ins. Co. v. Fritz 25 Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The court views all evidence and any 26 inferences arising therefrom in the light most favorable to the nonmoving party. Colwell v. 27 Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014). If the moving party does not meet its 1 materials to oppose the motion, and the court will deny summary judgment. Celotex, 477 2 U.S. at 322-23. 3 Where the moving party has met its burden, however, the burden shifts to the 4 nonmoving party to establish that a genuine issue of material fact actually exists. 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986). The 6 nonmoving must “go beyond the pleadings” to meet this burden. Pac. Gulf Shipping Co. 7 v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (internal quotation 8 omitted). In other words, the nonmoving party may not simply rely upon the allegations or 9 denials of its pleadings; rather, they must tender evidence of specific facts in the form of 10 affidavits, and/or admissible discovery material in support of its contention that such a 11 dispute exists. See Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n. 11. This burden is 12 “not a light one,” and requires the nonmoving party to “show more than the mere existence 13 of a scintilla of evidence.” Id. (quoting In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 14 (9th Cir. 2010)). The non-moving party “must come forth with evidence from which a jury 15 could reasonably render a verdict in the non-moving party’s favor.” Pac. Gulf Shipping 16 Co., 992 F.3d at 898 (quoting Oracle Corp. Sec. Litig., 627 F.3d at 387). Mere assertions 17 and “metaphysical doubt as to the material facts” will not defeat a properly supported and 18 meritorious summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 19 475 U.S. 574, 586–87 (1986). 20 When a pro se litigant opposes summary judgment, his or her contentions in 21 motions and pleadings may be considered as evidence to meet the non-party’s burden to 22 the extent: (1) contents of the document are based on personal knowledge, (2) they set 23 forth facts that would be admissible into evidence, and (3) the litigant attested under 24 penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 25 (9th Cir. 2004). 26 Upon the parties meeting their respective burdens for the motion for summary 27 judgment, the court determines whether reasonable minds could differ when interpreting 1 of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). The court may consider evidence in 2 the record not cited by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3). 3 Nevertheless, the court will view the cited records before it and will not mine the record 4 for triable issues of fact. Oracle Corp. Sec. Litig., 627 F.3d at 386 (if a nonmoving party 5 does not make nor provide support for a possible objection, the court will likewise not 6 consider it). 7 IV. DISCUSSION 8 A. Personal Participation 9 Reubart asserts he is entitled to summary judgment because there is no evidence 10 that he personally participated in assigning Matthews to his cell and bunk assignments, 11 that he responded to any of Matthews’s grievances, or that he knew of Matthews’s 12 medical condition. (ECF No. 12 at 6-7.) To support this argument, Reubart submitted 13 authenticated evidence related to Matthews’s medical care, his cell and bunk 14 assignments, and his own declaration. (See ECF No. 12 (and attached exhibits); ECF No. 15 14 (and attached sealed exhibits); ECF No. 17, (authenticating affidavit for documents 16 attached to motion).) 17 In opposition, Matthews argues Reubart did respond to his grievances and, as the 18 associate warden, he was responsible for his overall health and safety. (ECF No. 20.) 19 Based on these assertions, Matthews argues there is sufficient evidence to establish that 20 Reubart personally participated in his cell and bunk assignments. Matthews did not 21 submit any evidence or exhibits to support these assertions, nor did he cite to any 22 evidence in the record. 23 “There are two elements to a section 1983 claim: (1) the conduct complained of 24 must have been under color of state law, and (2) the conduct must have subjected the 25 plaintiff to a deprivation of constitutional rights.” Jones v. Cmty. Redevelopment Agency 26 of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984). A prerequisite to recovery under the 27 Civil Rights Act, 42 U.S.C. § 1983, is that the plaintiff prove that the defendants deprived 1 Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985). Therefore, liability under § 1983 arises only 2 upon a showing of personal participation by the defendant. Taylor v. List, 880 F.2d 1040, 3 1045 (9th Cir. 1989) (emphasis added). A person deprives another “of a constitutional 4 right, within the meaning of section 1983, if he does an affirmative act, participates in 5 another's affirmative acts, or omits to perform an act which he is legally required to do 6 that causes the deprivation of which [the plaintiff complains].” Leer v. Murphy, 844 F.2d 7 628, 633 (9th Cir. 1988). “[V]icarious liability is inapplicable to ... § 1983 suits, a plaintiff 8 must plead that each Government-official defendant, through the official's own individual 9 actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 10 1937, 1948, 173 L.Ed. 2d 868 (2009). 11 A review of the evidence submitted and cited by Reubart supports his assertion 12 that he did not personally participate in the events giving rise to this lawsuit. First, in his 13 declaration, Reubart expressly states, under oath, that it was not his primary responsibility 14 to make cell assignments or reassignments for ESP. (ECF No. 12-5 at 3.) Moreover, there 15 does not appear to be any evidence in the record that suggests Reubart was involved in 16 assigning Matthews to a top bunk when he arrived at ESP or subsequently reassigning 17 him to an upper bunk. Thus, there is no evidence in the record to establish Reubart 18 personally participated in the cell and bunk assignments for Matthews. 19 In addition, the evidence submitted by Reubart establishes that he did not respond 20 to, or personally adjudicate, any grievance submitted by Matthews related to his cell and 21 bunk assignments. A review of those documents reveals that these grievances were 22 responded to by other individuals—not Reubart. (ECF No. 12-3.) In addition, Reubart’s 23 declaration confirms he did not personally respond to any of Matthews’s grievances 24 related to assignment to an upper bunk. (ECF No. 12-5 at 4.) 25 In addition to his declaration, Reubart submitted authenticated documents related 26 to the medical kites and grievances submitted by Matthews related to these issues. (ECF 27 Nos. 12-2, 12-3, 17.) In these documents, there is no mention or indication that Reubart 1 on April 4, 2018. Nor is there any evidence or indication in these records that Reubart 2 was responsible for assigning Matthews to a new cell or bunk thereafter. Finally, there is 3 no evidence in these records that Reubart personally responded to any of Matthews’s 4 medical kites or grievances related to his cell and bunk assignment. 5 Rather, a review of these documents reveals that Matthews was assigned to a top 6 bunk upon arriving at ESP on April 4, 2018. Shortly thereafter, on April 13, 2018, 7 Matthews sent a medical kite requesting a reclassification of his bunk assignment. (ECF 8 No. 12-2 at 2.) Matthews was seen the following day by medical staff and his request for 9 a lower bunk was granted as confirmed by the response to his kite. (Id., ECF Nos. 12-3, 10 14-1.) The documents also establish that Matthews filed an informal grievance related to 11 this issue on April 11, 2018, which was responded to by a caseworker. (ECF No. 12-3 at 12 10-11.) Thereafter, Matthews filed his first and second level grievances, which were 13 responded to by Carpenter and Minev, respectively. (ECF No. 12-3 at 2, 6.) Although it 14 appears that as grievance coordinator, Reubart, may have initially received these 15 grievances, there is no evidence that Reubart personally responded to these grievances. 16 As such, Reubart has met his burden on summary judgment to establish that he 17 did not personally participate in the alleged constitutional violation in this case. See 18 Celotex Corp., 477 U.S. at 325. Therefore, the burden shifts to Matthews to come forward 19 with admissible evidence establishing that a material issue of fact exists as to his personal 20 participation. Nissan, 210 F.3d at 1102. 21 Matthews, however, failed to present or offer any evidence to the Court. Rather, 22 Matthews’s Opposition is based solely upon his own statements—unsupported by 23 admissible evidence—that Reubart was involved in making his cell and bunk assignments 24 and in responding to his grievances. Based on the failure to come forward with admissible 25 evidence on this issue, Matthews has failed to meet his burden and Reubart is entitled to 26 summary judgment. 27 /// 1 B. Grievances 2 To the extent Reubart’s role as grievance coordinator involved his receipt of 3 grievances filed by Matthews, this is also insufficient evidence to establish his personal 4 participation. The law is clear that one cannot state a constitutional claim based on their 5 dissatisfaction with the grievance process. Grenning v. Klemme, 34 F. Supp. 3d 1144, 6 1157 (E.D. Wash. 2014). Where the defendant's only involvement in the allegedly 7 unconstitutional conduct is “the denial of administrative grievances or the failure to act, 8 the defendant cannot be liable under § 1983.” Id. (quoting Shehee v. Luttrell, 199 F.3d 9 295, 300 (6th Cir.1999)). However, the issue of whether responding to a grievance can 10 rise to the level of personal participation required for a § 1983 claim was addressed by 11 the Ninth Circuit in Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012)., overruled on other 12 grounds in Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014). In Snow, the inmate plaintiff 13 had submitted several grievances about the denial of a recommended hip surgery; there 14 was testimony that the warden and associate warden were aware of the grievances, and 15 that they had reviewed an order stating that the inmate needed a hip replacement. Snow, 16 681 F.3d at 989. Defendants argued that there was no evidence in the record that they 17 were personally involved in any of the medical treatment decisions. Id. The Ninth Circuit, 18 however, said that their review of the grievance was sufficient to demonstrate that the 19 warden and associate warden were aware of the inmate’s serious hip condition and failed 20 to act to prevent further harm so that the warden and associate warden were not entitled 21 to summary judgment based on lack of personal participation. Id. 22 Here, the only evidence that Reubart was involved in the grievance process at 23 issue in this case involved his role as grievance coordinator at ESP at the time Matthews 24 filed his grievances. However, a review of the authenticated documents submitted by 25 Reubart establishes he did not respond to the Matthews’s grievances. Rather, these 26 documents show that Reubart did nothing more than receive the grievances when they 27 were filed. “Holding a prison official personally responsible for damages simply because 1 prisoner and through communications with his subordinates [or caseworkers] is such a 2 broad theory of liability that it is inconsistent with the personal responsibility requirement 3 for assessing damages against public officials in a 42 U.S.C. § 1983 suit.” May v. 4 Williams, No. 2:10-CV-576-GMN-LRL, 2012 WL 1155390, at *3 (D. Nev. Apr. 4, 2012) 5 (citing Crowder v. Lash, 687 F.2d 996, 1005-1006 (7th Cir. 1982); see also Jackson, v. 6 State of Nevada, No. 2:16-cv-00995-APG-NJK, 2019 WL 6499106, at *7 (D. Nev. Dec. 3, 7 2019) (“[C]ourts have held that merely denying a grievance without some decision-making 8 authority or ability to resolve the underlying issue grieved is not enough to establish 9 personal participation.”). Reubart’s mere receipt of the grievances is not sufficient to 10 establish that Reubart personally participated in this case. 11 C. Eighth Amendment – Deliberate Indifference to Prison Conditions 12 In the alternative, Reubart argues that even if the Court disagrees on the issue of 13 personal participation, he is still entitled to summary judgment because there is no 14 evidence to support Matthews’s Eighth Amendment Claim. (ECF No. 12 at 7-9.) The 15 Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized 16 standards, humanity, and decency” by prohibiting imposition of cruel and unusual 17 punishment by state actors. Estelle v. Gamble, 429 U.S. 97, 102 (1976). Inmates may 18 challenge conditions of confinement that are exceptionally cruel. However, “[t]he Eighth 19 Amendment is not a basis for broad prison reform. It requires neither that prisons be 20 comfortable nor that they provide every amenity that one might find desirable.” Hallett v. 21 Morgan, 296 F.3d 732, 745 (9th Cir. 2002) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 22 (9th Cir. 1982)). In assessing inmates’ claims, “courts must bear in mind that their inquiries 23 ‘spring from constitutional requirements and that judicial answers to them must reflect that 24 fact rather than a court’s idea of how best to operate a detention facility.’” Rhodes v. 25 Chapman, 452, U.S. 337, 351 (1981) (quoting Bell v. Wolfish, 451 U.S. 520, 529 (1979)). 26 To challenge the conditions of confinement at a prison, a plaintiff must make two 27 showings. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (internal citations omitted), 1 plaintiff must make an ‘objective’ showing that the deprivation was ‘sufficiently serious’ to 2 form the basis for an Eighth Amendment violation.” Id. This element may be satisfied by 3 showing a deprivation of essential minimums, such as adequate food, clothing, shelter, 4 or medical care. Id. Second, the plaintiff must “make a subjective showing that the 5 deprivation occurred with deliberate indifference to the inmate’s health or safety.” Thomas 6 v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). The deliberate indifference element itself 7 involves a two-part inquiry to determine whether the official acted “with a sufficiently 8 culpable state of mind.” Johnson, 217 F.3d at 731 (quoting Wilson v. Seiter, 501 U.S. 294, 9 298 (1991)). The official must have been aware of a substantial risk of harm to the 10 inmate’s health or safety, and also must not have had a “‘reasonable’ justification for the 11 deprivation, in spite of that risk.” Thomas, 611 F.3d at 1150. Accordingly, “prison officials 12 who actually knew of a substantial risk to inmate health or safety may be found free from 13 liability if they responded reasonably to the risk, even if the harm ultimately was not 14 averted.” Farmer v. Brennan, 511 U.S. 825, 845 (1994). 15 In his declaration, Reubart expressly states he did not have any personal 16 knowledge of Matthews’s seizure condition when he arrived at ESP or was assigned his 17 cell and bunk. (ECF No. 12-5 at 4.) The authenticated evidence supports Reubart’s 18 statements. Based on the evidence submitted by Reubart, it appears that no one at 19 ESP—including Reubart—was made aware of Matthews’s seizure condition or his need 20 for a lower bunk until April 13, 2018—several days after he arrived at ESP and was 21 assigned a top bunk. (See ECF Nos. 3, 12-2.) As already noted above, there is no 22 evidence Reubart was involved in making any of Matthew’s cell and bunk assignments. 23 As a result, there is no evidence that Reubart knew of Mathew’s seizure condition, much 24 less that he deliberately ignored that condition, resulting in a risk of harm to Matthews. 25 Therefore, Reubart has met his burden on summary judgment to establish that 26 Matthews’s Eighth Amendment claim fails as a matter of law because there is no evidence 27 Reubart knew of Matthews’s condition or that he deliberately ignored his condition placing 1 | Matthews to come forward with admissible evidence establishing that a material issue of fact exists in relation to his Eighth Amendment claim. Nissan, 210 F.3d at 1102. 3 Here again, Matthews failed to present or offer any admissible evidence to the 4| Court to establish that a material issue of fact exists on this claim. Therefore, Reubart is entitled to summary judgment on this additional basis.® 6| V. CONCLUSION 7 For good cause appearing and for the reasons stated above, the Court 8 | recommends that Reubart’s motion for summary judgment, (ECF No. 12), be granted. 9 The parties are advised: 10 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 11 Practice, the parties may file specific written objections to this Report and Recommendation within fourteen days of receipt. These objections should be entitled “Objections to Magistrate Judge’s Report and Recommendation” and should be 14| accompanied by points and authorities for consideration by the District Court. 15 2. This Report and Recommendation is not an appealable order and any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the 17 | District Court’s judgment. 18| VI. RECOMMENDATION 19 IT IS THEREFORE RECOMMENDED that Reubart’s motion for summary judgment, (ECF No. 12), be GRANTED. 21 IT IS FURTHER RECOMMENDED that the Clerk of the Court ENTER JUDGMENT and CLOSE THIS CASE. 23 DATED: September 29, 2021 * 24 UNITED STATES son JUDGE

26 27 | □□□ SSS 6 The Court does not address Reubart’s qualified immunity argument because the 28 | Court finds that Reubart’s constitutional claim fails on the merits. 42