McCullock v. Scharr

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT McCULLOCK, Case No.: 3:19-cv-2110-DMS-DEB CDCR #V-32182, 12 ORDER GRANTING DEFENDANTS’ Plaintiff, 13 MOTION FOR SUMMARY vs. JUDGMENT PURSUANT TO Fed. R. 14 Civ. P. 56(a) N. SCHARR, Correctional Sergeant; 15 H. FERREL, Correctional Lieutenant [ECF No. 35] 16 T. MARTINEZ, Correctional Captain; J. JUAREZ, Associate Warden; 17 SMITH, Correctional Officer; 18 DOE -10,

19 Defendants. 20 21 22 ROBERT McCULLOCK (“Plaintiff”), a prisoner currently incarcerated at the 23 California Mens Colony located in San Luis Obispo, California, is proceeding pro se and 24 in forma pauperis (“IFP”) in this civil action pursuant to 42 U.S.C. § 1983. In his 25 Complaint (“Compl.”), Plaintiff alleges Richard J. Donovan Correctional Facility 26 (“RJD”) prison officials violated his Eighth Amendment rights when they failed to 27 28 1 protect him from an attack by another inmate. See ECF No. 1 at 4-6. 2 I. Procedural History 3 On December 3, 2019, the Court granted Plaintiff leave to proceed IFP pursuant to 4 28 U.S.C. § 1915(a) and screened his Complaint before service as required by 28 U.S.C. 5 § 1915(e)(2) and § 1915A(b). See ECF No. 6. The Court sua sponte dismissed Defendant 6 Covello but found Plaintiff’s Eighth Amendment failure to protect claims against 7 Defendants Scharr, Ferrel, Martinez, Juarez, and Smith (“Defendants”) sufficient to state 8 plausible claims upon which relief may be granted. Id. at 5-7. 9 Defendants filed an Answer to Plaintiff’s Complaint on February 18, 2020. See 10 ECF No. 22. On February 12, 2021, Defendants filed a Motion for Summary Judgment. 11 See ECF No. 35. On February 16, 2021, the Court notified Plaintiff of the requirements 12 for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th 13 Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and set a 14 briefing schedule. See ECF No. 36. Plaintiff filed his Opposition to Defendants’ Motion 15 on April 2, 2021. See ECF No. 40. Defendants filed their Reply to Plaintiff’s Opposition 16 on April 2, 2021. See ECF No. 41. 17 The Court determined that a report and recommendation from Magistrate Judge 18 Butcher was not necessary, no oral argument was required, and took Defendants’ Motion 19 for Summary Judgment under submission for resolution on the papers pursuant to S.D. 20 CAL. CIVLR 7.1.d. 21 Having carefully considered the record as submitted, the Court now GRANTS 22 Defendants’ Motion for Summary Judgment. 23 / / / 24 25

26 27 1 Page numbers for all documents filed in the Court’s Case Management/Electronic Case File (“CM/ECF”) will refer to the pagination generated by CM/ECF as indicated on the 28 1 II. Factual Background 2 A. Plaintiff’s Claims 3 Plaintiff alleges that he was assaulted by Inmate Anthony Muci (“Muci”) on May 16, 4 2019. (See Compl. at 12.) Plaintiff had returned to his cell after dinner and “sat at the 5 table facing away from the door.” (See id.) Plaintiff claims that was the “last [he] 6 remember[ed] until regaining consciousness approximately [six] hours later at Scripps 7 Hospital [Emergency Room].” (Id.) 8 Plaintiff contends Muci “has attacked elders before,” as well as having been a 9 “general population” inmate who is “always enemy to all “SNY” (special needs yard).” 10 (Id.) Plaintiff is seventy years old and “part deaf.” (Id.) Plaintiff alleges that the 11 “custody staff of [RJD] knew or should have known of Musi’s combative history but 12 chose to turn a blind eye.” (Id. at 17.) 13 B. Defendants’ Claims 14 On May 16, 2019, Defendant Scharr, an RJD correctional sergeant, was “directed to 15 secure housing on Facility D for an inmate with a lower-tier/lower-bunk restriction who 16 was a C-PAP user, but not a wheelchair user.” (Scharr Decl., ECF No. 35-4 at ¶ 2) At the 17 time, “Housing Unit 20 on Facility D was the preferred housing unit for non-wheelchair- 18 bound C-PAP-using inmates because most of the electrical outlet configuration in the 19 cells provided power to C-PAP units better than those in other housing units.” (Id. at ¶ 20 3.) 21 After Scharr directed staff to find the “first available cell placement that would 22 accommodate a lower-tier/lower-bunk-restricted inmate, and to start with Housing Unit 23 20.” (Id.) It was discovered that Muci was a “lower-tier cell assigned to a lower bunk” 24 but he did not have a “lower-tier restriction.” (Id.) So moving Muci to an “upper-tier” 25 cell that accommodated a “lower-bunk restriction” would allow an inmate requiring a C- 26 PAP to be housed in Muci’s cell. (Id.) 27 / / / 28 / / / 1 It was also discovered that Plaintiff had a cell on the upper tier, no cellmate, and he 2 had no “housing restrictions dating back to 2017, including no lower-bunk or lower-tier 3 restriction.” (Id. at ¶ 4.) Officer Herrera, who worked second watch, “requested that 4 [Plaintiff] be reassigned to the upper bunk in his same cell.” (Id. at ¶ 5.) Officer Erece2, 5 who worked third watch, “requested that [Muci] be reassigned to [Plaintiff’s] cell to the 6 lower bunk.” (Id. at ¶ 6.) Scharr “reviewed and approved this request.” (Id.) 7 Plaintiff and Muci’s moves were finalized and the inmate requiring the C-PAP was 8 “assigned to the lower bunk that [Muci] had occupied.” (Id. at ¶ 7.) “After reviewing 9 housing information” for Plaintiff and Muci, Scharr “made the decision” to house Muci 10 in Plaintiff’s cell. (Id. at ¶ 8.) Scharr maintains that Defendants Ferrel, Juarez, Martinez, 11 and Smith “were not involved in this housing decision.” (Id.) Scharr reviewed Muci’s 12 file and determined that on April 26, 2019 Muci had be “evaluated and cleared for 13 double-cell housing by a committee (which included a captain) that would have 14 thoroughly evaluated [Muci’s] background, Rules Violation Reports, and other case 15 factors, in the process of determining his housing restrictions.” (Id.) 16 Scharr maintains that before the “May 16, 2019 incident, [he] did not believe that 17 [Muci] would assault [Plaintiff], or anyone else.” (Id. at ¶ 11.) His review of Muci’s file 18 indicated that the “last incident before May 16, 2019, involving [Muci] and another 19 inmate occurred on April 11, 2018, when [Muci] received a Rules Violation Report for 20 fighting with his cellmate, but the cellmate admitted to hitting [Muci] first and that 21 [Muci] was simply defending himself.” (Id. at ¶ 13.) Both inmates signed “paperwork 22 confirming that the incident was just a misunderstanding, that no safety issues existed, 23 and they could continue to cell together.” (Id.) Muci had another incident on April 20, 24 1999 which resulted in a charge of “battery on an inmate without serious injury.” (Id.) 25 26 27 28 1 III. Motion for Summary Judgment 2 Defendants have moved for summary judgment on the grounds that: (1) 3 Defendants were not deliberately indifferent to Plaintiff’s safety; (2) Plaintiff’s 4 Fourteenth Amendment claim should be dismissed; (3) Defendants are entitled to 5 qualified immunity; and (4) Plaintiff failed to exhaust his administrative remedies 6 pursuant to 42 U.S.C. § 1997e(a) prior to filing his 42 U.S.C. § 1983 complaint in this 7 Court. (See Defs.’ P&As in Supp. of Summ. J. Mot. [“Defs.’ P&As”], ECF No. 20 at 19- 8 30.) 9 A. Legal Standards for Summary Judgment pursuant to FRCP 56 10 Summary judgment is appropriate when the moving party “shows that there is no 11 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 12 of law.” Fed. R. Civ. P. 56(a). The “purpose of summary judgment is to ‘pierce the 13 pleadings and to assess the proof in order to see whether there is a genuine need for 14 trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 15 (citations omitted). 16 As the moving parties, the Defendants “initially bear[] the burden of proving the 17 absence of a genuine issue of material fact.” Nursing Home Pension Fund, Local 144 v. 18 Oracle Corp., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 19 U.S. 317, 323 (1986)). Defendants may accomplish this by “citing to particular parts of 20 materials in the record, including depositions, documents, electronically stored 21 information, affidavits or declarations, stipulations (including those made for purposes of 22 the motion only), admission, interrogatory answers, or other materials” or by showing 23 that such materials “do not establish the absence or presence of a genuine dispute, or that 24 the adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 25 56(c)(1)(A), (B). 26 While Plaintiff bears the burden of proof at trial, Defendants “need only prove that 27 there is an absence of evidence to support [Plaintiff’s] case.” Oracle Corp., 627 F.3d at 28 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, 1 summary judgment should be entered, after adequate time for discovery and upon 2 motion, against a party who fails to make a showing sufficient to establish the existence 3 of an element essential to that party’s case, and on which that party will bear the burden 4 of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning 5 an essential element of the nonmoving party’s case necessarily renders all other facts 6 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long 7 as whatever is before the district court demonstrates that the standard for entry of 8 summary judgment . . . is satisfied.” Id. at 323. 9 If Defendants, as the moving parties, meet their initial responsibility, the burden 10 then shifts to Plaintiff to establish a genuine dispute as to any material facts that exist. 11 Matsushita, 475 U.S. at 586. To establish the existence of this factual dispute, Plaintiff 12 must then present evidence in the form of affidavits and/or admissible discovery material 13 to support his contention that a genuine dispute exists. See Fed. R. Civ. P. 56(c)(1); 14 Matsushita, 475 U.S. at 586 n.11. “A [p]laintiff’s verified complaint may be considered 15 as an affidavit in opposition to summary judgment if it is based on personal knowledge 16 and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132 17 n.14 (9th Cir. 2000) (en banc). 18 Plaintiff must also demonstrate that the fact in contention is material, i.e., a fact 19 that might affect the outcome of his suit under the governing law, see Anderson v. Liberty 20 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors 21 Assoc., 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the 22 evidence is such that a reasonable jury could return a verdict for him. See Wool v. 23 Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 24 Finally, district courts must “construe liberally motion papers and pleadings filed 25 by pro se inmates and . . . avoid applying summary judgment rules strictly.” Thomas v. 26 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However, if Plaintiff “fails to properly 27 support an assertion of fact or fails to properly address [Defendant’s] assertion of fact, as 28 required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the 1 motion . . . .” Fed. R. Civ. P. 56(e)(2). Nor may the Court permit Plaintiff, as the 2 opposing party, to rest solely on conclusory allegations of fact or law. Berg v. Kincheloe, 3 794 F.2d 457, 459 (9th Cir. 1986). A “motion for summary judgment may not be 4 defeated. . . by evidence that is ‘merely colorable’ or ‘is not significantly probative.’” 5 Anderson, 477 U.S. at 249–50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th 6 Cir. 2006); Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) (“‘[M]ere allegation 7 and speculation do not create a factual dispute for purposes of summary judgment.’”) 8 (quoting Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081 (9th Cir. 1996)) (brackets in 9 original)). 10 B. Eighth Amendment Deliberate Indifference 11 Defendants argue that they are entitled to summary judgment on Plaintiff’s Eighth 12 Amendment claim as they did not act with deliberate indifference when they housed 13 Plaintiff with Muci. (See Defs. P&As at 19-21.) 14 “‘[P]rison officials have a duty . . . to protect prisoners from violence at the hands 15 of other prisoners.’” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes- 16 Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “The failure of 17 prison officials to protect inmates from attacks by other inmates may rise to the level of 18 an Eighth Amendment violation when: (1) the deprivation is ‘objectively, sufficiently 19 serious’ and (2) the prison officials had a ‘sufficiently culpable state of mind,’ acting with 20 deliberate indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) 21 (quoting Farmer, 511 U.S. at 834). The second prong of this test is subjective, and “the 22 official must both be aware of facts from which the inference could be drawn that a 23 substantial risk of serious harm exists, and he must also draw the inference.” See 24 Farmer, 511 U.S. at 837. “‘Deliberate indifference entails something more than mere 25 negligence but is satisfied by something less than acts or omissions for the very purpose 26 of causing harm or with knowledge that harm will result.’” Hearns, 413 F.3d at 1040 27 (quoting Farmer, 511 U.S. at 835) (internal alterations omitted)). “[A]n official’s failure 28 to alleviate a significant risk that he should have perceived but did not, while no cause for 1 commendation, cannot under [the Supreme Court’s] cases be condemned as the infliction 2 of punishment.” Farmer, 511 U.S. at 838. 3 In order to satisfy the first prong of a failure to protect claim that the deprivation is 4 objectively serious, it must be shown that Plaintiff was “incarcerated under conditions 5 posing a substantial risk of serious harm.” Lemire v. Cal. Dep’t of Corr. & Rehab., 726 6 F.3d 1062, 1075 (9th Cir. 2013) (citing Farmer, 511 U.S. at 834). “The objective 7 question of whether a prison officer’s actions have exposed an inmate to a substantial risk 8 of serious harm is a question of fact, and as such must be decided by a jury if there is any 9 room for doubt.” Id. at 1075-76. 10 Defendants argue that Scharr was “directed to find appropriate housing” for a 11 “non-wheelchair-bound C-PAP using inmate” who required a “lower-tier/lower-bunk.” 12 (Defs.’ P&As at 19; Scharr Decl. at ¶ 2.) Because the building to which Plaintiff was 13 assigned had “most of the electrical outlet configuration in the cells provided power to C- 14 PAP units better than those in other housing units.” (Scharr Decl. at ¶ 2.) Plaintiff 15 disputes this and claims, without citation to any supporting evidence, that “many other 16 cells, in other buildings have multiple outlets.” (Pl.’s Opp’n at 2.) Scharr directed 17 “Facility D staff” to look for a cell that would accommodate this inmate and they found 18 that “inmate Muci was in a lower-tier cell” but he did not have a “lower-tier restriction, 19 only a lower-bunk restriction.” (Scharr Decl. at ¶ 3.) Again, Plaintiff disputes this 20 assertion and maintains that staff was “manipulated” by this inmate who uses a C-PAP 21 because this inmate wanted to “move back to the same cell” where he was housed before 22 he served a disciplinary sentence. (Pl.’s Opp’n at 2.) Plaintiff claims that this inmate 23 “manipulated staff at Plaintiff’s expense.” However, Plaintiff does not dispute that Muci 24 did not have a lower-tier restriction. (See id. at 3.) Scharr attests that they also 25 determined that Plaintiff did not have a cellmate, was eligible for “double-cell housing,” 26 and had “no housing restrictions.” (Scharr at ¶ 4.) Plaintiff does not dispute this 27 statement. (See Pl.’s Opp’n at 3.) Scharr “reviewed and approved” staff’s request to 28 move Muci to Plaintiff’s cell and allowed the inmate with the C-PAP to move into 1 Muci’s cell. (Id. at ¶¶ 5-8.) Plaintiff claims that Scharr “reviewed housing information 2 of Muci and knew of priors” but offers no evidence in the record that Plaintiff points to 3 that clarifies what he understands or has direct knowledge of what these “priors” were or 4 how Scharr purportedly knew of these “priors.” (Pl.’s Opp’n at 4.) 5 Scharr does attest that his review of Muci’s file indicated that “on April 26, 2019, 6 inmate Muci had been evaluated and cleared for double-cell housing by a committee” 7 that would have “thoroughly reviewed inmate Muci’s background, Rules Violation 8 Reports, and other case factors, in the process of determining his housing restrictions.” 9 (Scharr Decl. at ¶ 9.) Scharr also acknowledges that Muci did have a fight with a 10 cellmate in April of 2018 but Muci’s cellmate admitted to being the attacker and it was 11 found that Muci was “simply defending himself.” (Id. at ¶ 13.) Plaintiff responds in is 12 Opposition by stating this previous altercation Muci had “has no bearing to this case.” 13 (Pl.’s Opp’n at 6.) Plaintiff does not dispute Scharr’s testimony that Muci’s altercation 14 with a previous cellmate did not raise any concern to Defendants that Muci would be a 15 danger to Plaintiff. 16 Plaintiff argues that because he has not personally gone through evaluations by a 17 committee , the fact that Muci was evaluated such a committee “would infer to a 18 reasonable person that Muci need[ed] a thorough looking over.” (Pl.’s Opp’n at 5.) 19 Plaintiff testified that he personally knew “nothing” about inmate Muci before the attack 20 occurred. (Defs. Ex. 5, Pl.’s Depo., ECF No. 35-1, 20:9-11.) Plaintiff does not point to 21 any evidence to support his claim that any of the named Defendants were aware that 22 Muci would attack Plaintiff or that the risk was present that Muci would attack Plaintiff. 23 Based on record before the Court, the Court finds that Defendants have satisfied 24 their initial burden to show an absence of evidence to support Plaintiff’s claims that they 25 failed to protect him from substantial harm. Now Plaintiff must establish a genuine 26 dispute as to any material facts that exist. See Matsushita, 475 U.S. at 586. 27 The evidence in the record before the Court demonstrates that Scharr was unaware 28 that inmate Muci would expose Plaintiff to a substantial risk of serious harm. Plaintiff 1 offers no evidence to dispute this. The remaining Defendants, Officer Smith, Lieutenant 2 Ferrel, Associate Warden Juarez, or Lieutenant Martinez, argue that Plaintiff “has no 3 admissible evidence” that they “knew that inmate Muci had a combative history toward 4 older inmates.” (Defs. P&As at 21.) When Plaintiff was asked what evidence he had that 5 Scharr had prior knowledge inmate Muci’s “combative history towards older inmates,” 6 Plaintiff testified that the “only information that [he] had after the incident was only by 7 rumor.” (Defs. Ex. 5, ECF No. 35-1, Pl.’s Depo 27:22 – 28:1.) He further testified that 8 he had “no hard physical proof” that Scharr had any prior knowledge of inmate Muci’s 9 purported history of violence with other inmates. 10 When Plaintiff was asked to identify what evidence he had that Defendant Ferrel 11 “knew . . . that Muci had a combative history towards inmates.” (Id. at 29:25-30:2.) 12 Plaintiff responded by testifying to claims of retaliation by Ferrel towards him after the 13 incident with Muci but offers no testimony or other evidence that Defendant Ferrel was 14 aware of a history of violence by inmate Muci. 15 Plaintiff was questioned as to whether he had “any evidence that Associate Warden 16 Juarez knew that inmate Muci had a combative history towards older inmates.” (Id. at 17 32:1-3.) Plaintiff testified that he did not have any such evidence. (Id. at 32:4.) Plaintiff 18 was presented with the same question as to Defendant Smith. (Id. at 32:5-7.) Plaintiff 19 offered no specific testimony as to any knowledge on the part of Smith but instead 20 testified as to general issues with “custody staff” whom he claimed went “out of their 21 way to set up such situations where there’s a combative situation.” (Id. at 31:11-13.) 22 Finally, Plaintiff was asked the same question as to whether he had any evidence that 23 Defendant Martinez was aware of inmate Muci’s purported history and he testified 24 “[n]o.” (Id. at 33:4-9.) 25 Viewing the evidence and reasonable inferences in the light most favorable to 26 Plaintiff, the Court finds there is no genuine dispute of material fact with regard to 27 Plaintiff’s Eighth Amendment failure to protect claim. See Celotex, 477 U.S. at 323 28 (“[A] complete failure of proof concerning an essential element of the nonmoving party’s 1 case necessarily renders all other facts immaterial.”). Accordingly, Defendants’ Motion 2 for Summary Judgment as to Plaintiff’s Eighth Amendment claim is GRANTED. 3 C. Supervisory Liability 4 Plaintiff seeks to hold all Defendants liable based on their purported failure to 5 “follow CDCR’s Department Operation Manual” and their “failure to train.” (Compl. at 6 5.) Defendants seek summary judgment of these claims on the ground that there is no 7 supervisory liability in § 1983 actions and there is no admissible evidence that any of the 8 named Defendants had actual knowledge of inmate Muci’s alleged combative history 9 with other inmates. (See Defs.’ P&As at 22-23.) 10 “A plaintiff must allege facts, not simply conclusions, that show that an individual 11 was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 12 F.3d 1193, 1194 (9th Cir. 1998). A person deprives another of a constitutional right 13 under section 1983, where that person “‘does an affirmative act, participates in another’ s 14 affirmative acts, or omits to perform an act which [that person] is legally required to do 15 that causes the deprivation of which complaint is made.’” Johnson v. Duffy, 588 F.2d 16 740, 743 (9th Cir. 1978). The “requisite causal connection can be established not only by 17 some kind of direct personal participation in the deprivation, but also by setting in motion 18 a series of acts by others which the actor knows or reasonably should know would cause 19 others to inflict the constitutional injury.” Id. at 743-44. There is no respondeat superior 20 liability under § 1983; therefore, supervisors, like the named Defendants, may be held 21 liable for the constitutional violations of his or her subordinates only if they “participated 22 in or directed the violations, or knew of the violations and failed to act to prevent them.” 23 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). As set forth above in referring to 24 Plaintiff’s testimony in his deposition, he could not point to any evidence that any of the 25 named Defendants had actual knowledge that inmate Muci was a threat to his safety. 26 To prevail on the failure to train claim, Plaintiff must be able to show that 27 Defendants, in their individual capacities, were “deliberately indifferent to the need to 28 train subordinates, and the lack of training actually caused the constitutional harm or 1 deprivation of rights.” Flores v. Cnty. of L.A., 758 F.3d 1154, 1159 (9th Cir. 2014) 2 (quoting Connick v. Thompson, 563 U.S. 51, 62 (2011)). 3 Plaintiff fails to provide any specific factual allegations or evidence to support that 4 any Defendant failed to properly train Defendant Scharr. He does not specify in his 5 Complaint, Opposition to Defendants’ Motion or in his deposition testimony in the record 6 how the alleged lack of training led to the events giving rise to this action. It appears that 7 Plaintiff is merely speculating that a lack of training led to the assault by inmate Muci 8 and speculation is insufficient to create a triable issue of material fact. Plaintiff has not 9 pointed to any evidence in the record that any named Defendant was deliberately 10 indifferent to the need for training. Plaintiff implies, without any evidentiary support, that 11 Scharr made the decisions to move inmates to different cells but lacked the authority to 12 do so. He does not set forth any evidence that Scharr made decisions that exceeded his 13 authority or that his decisions were made due to a lack of training by Defendants. 14 Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiff’s failure 15 to train claims is GRANTED pursuant to FED.R.CIV.P. 56. 16 D. Fourteenth Amendment claims 17 Plaintiff seeks to bring Fourteenth Amendment substantive due process claims 18 based on the same set of facts that gave rise to his Eighth Amendment claims. “Where a 19 particular Amendment ‘provides an explicit textual source of constitutional protection’ 20 against a particular sort of government behavior, ‘that Amendment, not the more 21 generalized notion of “substantive due process,” must be the guide of analyzing these 22 claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 23 U.S. 386, 395 (1989)). “[I]f a constitutional claim is covered by a specific constitutional 24 provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under 25 the standard appropriate to that specific provision, not under the rubric of substantive due 26 process.” United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997). Here, Plaintiff’s 27 Fourteenth Amendment “state created danger” allegations are based on the same set of 28 facts he has brought his claims of violation of the Eighth Amendment’s prohibition of 1 cruel and unusual punishment and thus, his claims should be analyzed under the Eighth 2 || Amendment. 3 Therefore, Defendants’ Motion for Summary Judgment as to Plaintiff's Fourteenth 4 || Amendment claims is GRANTED pursuant to FED.R.CIv.P. 56. 5 E. Qualified Immunity and Exhaustion of Administrative Remedies 6 Defendants also move for summary judgment on the ground that they are entitled 7 || to qualified immunity. Because the Court has found that Defendants are entitled to 8 ||summary judgment as to all of Plaintiff's claims, it need not reach any issues regarding 9 || qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional 10 would have been violated were the allegations established, there is no necessity for 11 || further inquiries concerning qualified immunity.”); County of Sacramento v. Lewis, 523 12 || U.S. 833, 841 n.5 (1998) (“[The better approach to resolving cases in which the defense 13 || of qualified immunity is raised is to determine first whether the plaintiff has alleged the 14 || deprivation of a constitutional right at all.”). 15 In addition, to the extent that Defendants seek summary judgment of Plaintiff's 16 ||claims based on the argument that Plaintiff did not exhaust his administrative remedies 17 || prior to filing this action pursuant to 42 U.S.C. § 1997e, the Court also finds that it need 18 || not reach this issue as the Court has found that Defendants are entitled to summary 19 || judgment as to all of Plaintiffs claims. 20 ||/IV. Conclusion and Order 21 For all the reasons explained, the Court: 22 GRANTS Defendants’ Motion for Summary Judgment pursuant to Fed.R.Civ.P. 23 ||56. The Clerk of Court is directed to enter judgment for all Defendants and close the file. 24 IT IS SO ORDERED. » 25 ||Dated: July 14, 2021 36 Hon. Dana M. Sabraw, Chief Judge United States District Court 27 28 13

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