(PC) Muniz v. Pfeiffer

Opinion

DANIEL MUNIZ, through his successor Case No. 1:19-cv-00233-JLT-CDB (PC) in interest CELINA MUNIZ, FINDINGS AND RECOMMENDATIONS Plaintiff, TO GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT1 v. OBJECTIONS DUE WITHIN 14 DAYS CHRISTIAN PFEIFFER, ET AL., (ECF No. 79) Defendants.

This is an action by the estate of Daniel Muniz (the decedent) and his mother Celina Muniz against staff from the Kern Valley State Prison (KVSP)2 in which Muniz (“Plaintiff”) asserts civil rights claims under 42 U.S.C. § 1983 for failure to protect, denial of familial relationship, wrongful death, and for violation of Cal. Code § 845.6. (ECF Nos. 25, 35). Pending before the Court is Defendants’ motion for summary judgment, filed November 8, 2022, with declarations and exhibits filed in support. (ECF No. 79). Plaintiff filed an opposition with a declaration and sealed and unsealed exhibits (ECF Nos. 88 - 93), and Defendants filed a reply with supporting declaration (ECF No. 94). For the reasons stated below, the undersigned recommends that the district court grant 1 The undersigned submits these factual findings and recommendations to the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022).

2 The individually named defendants are R. Calderon, J. Custer, A. Diaz-Albarran, M. Faulkner, J. Defendants’ motion. When Plaintiff’s allegations are viewed in their most favorable light, they fail to show that the decision to double-cell decedent with another inmate recently released from the Segregated Housing Unit (SHU) posed an objective, substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (holding that an Eighth Amendment failure to protect claim must allege that there was “objectively” a “substantial risk of serious harm” to which defendant was indifferent).3 Because Plaintiff’s speculative and general allegations do not satisfy the deliberate indifference standard, I do not reach Defendants’ alternate claimed bases for summary judgment. Daniel Muniz was a former California Department of Corrections and Rehabilitation (CDCR) inmate who was fatally attacked by his cellmate, Toribio Mendoza (Mendoza) on March 24, 2018, while he was confined at Kern Valley State Prison (KVSP). The Defendants are or were correctional officers at KVSP when the incident occurred, except C. Pfeiffer who was the warden. Mendoza arrived at KVSP on July 1, 2016, from California Medical Facility (CMF). Mendoza is serving a term of 109 years for kidnapping, criminal threats to cause great bodily harm or death and assault with a deadly weapon. Mendoza also is a “drop out” of the Security Threat Group (STG) known as the Fresno Bulldogs. Mendoza had committed 15 rules violations during his incarceration between 2006 and 2018. (ECF No. 88-3, Ex. C p. 2). Some notable incidents include an in-cell battery of an inmate on September 2, 2007, and a battery on another inmate that caused serious injury in 2017. Id. Muniz arrived at KVSP on June 2, 2016 and was eligible for an earliest release date of May 6, 2030. (Ex. C p. 14). Muniz is a drop out of the South Side Kings STG. Muniz and Mendoza had been cellmates together for a total of approximately three-and-one-half months,

3 See also Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1161 (9th Cir. 2013) (“The record, viewed objectively and subjectively, is insufficient to preclude summary judgment on the claim that . . . officials were deliberately indifferent to a substantial risk that” one prisoner would assault another, since the two prisoners in question “had been in general population together for an extended period with no record of any threats or problems between them.”). While reasonable minds might disagree over the best place to house decedent and his cellmate, a mere difference of opinion does not create a substantial risk. including for approximately seven weeks in the same cell where Mendoza attacked Muniz on March 24, 2018. Id. p. 1. On March 24, 2018, at approximately 6:32 a.m., Defendants Diaz-Albarran and Calderon were conducting a count of inmates and reached the cell in which Muniz and Mendoza were housed. (ECF No. 93-4, Ex. 4, Diaz-Albarran Depo., p. 48). Diaz-Albarran did not hear any commotion from the cell and none of the other inmates informed him that they heard any yelling or screaming form the cell. Id. As he approached the cell, Diaz-Albarran encountered Mendoza, who was blocking the cell-door with his body and had the lights turned off. Id. p. 28. Diaz- Albarran ordered Mendoza to turn the lights on, after which the officers observed Muniz lying on the ground, under the bunkbed. Diaz-Albarran yelled for help from his partner Defendant Calderon, and activated his alarm, which called for medical assistance. Id. p. 31. Diaz-Albarran noted that Muniz was still breathing and ordered Mendoza to “cuff up.” Id. After securing Mendoza, Diaz-Albarran escorted Mendoza out of the cell. Once Mendoza was removed, medical personnel attended to Muniz, and they brought him down to a lower tier. (ECF No. 93-3 Ex. G., Calderon Depo., p. 45). A post hoc review of the incident conducted by CDCR concludes that Mendoza used his hands and feet to injure Muniz. (Ex. C. p. 4). Muniz suffered from extensive injuries to his brain including brain swelling, and a subarachnoid hemorrhage. Muniz’s brain function deteriorated dramatically and ultimately caused his death. Summary judgment is appropriate where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. See Fed. R. Civ. P. 56(c)(1). The court may consider other materials in the record not cited to by the parties, but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (on summary judgment, “the court has discretion in appropriate circumstances to consider other materials, [but] it need not do so”). Furthermore, “[a]t summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial.” Nevada Dep’t of Corr v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011). (citations and internal quotations omitted). The focus is on the admissibility of the evidence’s contents rather than its form. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004). “The moving party initially bears the burden of proving the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this initial burden, the burden then shifts to the non-moving party “to designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). The court must apply standards consistent with Rule 56 to determine whether the moving appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). “[A] court ruling on a motion for summary judgment may not engage in credibility determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A. Summary of Plaintiff’s Claims Plaintiff alleges that Defendant Goss (the associate warden) violated Plaintiff’s 8th Amendment constitutional rights in two respects. First, Plaintiff alleges that Goss was deliberately indifferent to the threat Mendoza posed to other inmates and erred when he housed Mendoza with Muniz, as both inmates were dropouts from rival gangs and Mendoza had a history of violence and mental health issues. Plaintiff also asserts Goss erred months before Mendoza attacked Muniz when he rescinded part of Mendoza’s Special Housing Unit (SHU) term and “but for” this rescission, Mendoza would never have been double-celled with Muniz. Goss’s decisions to rescind Mendoza’s SHU term and pair him with Muniz amounted to a failure to protect Muniz. Plaintiff separately claims that Defendants Diaz-Albarran and Calderon failed to protect Muniz, as they were on duty at the time Mendoza attacked Muniz and, thus, should have been able to hear Muniz’s labored breathing and yelling during their shifts, and relatedly, that they violated Cal. Code §§ 844.6 and 845.6. Notably, Plaintiff’s brief and supporting materials offered in opposition to summary judgment present no facts or argument with respect to Defendants J. Custer, M. Faulkner, J. Fitzpatrick, M. Jones and C. Pfeiffer. As set forth below, Defendants’ motion for summary judgment establishes that Plaintiff does not have enough evidence to demonstrate that any of these five defendants were deliberately indifferent to a substantial risk that Mendoza would harm demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387. As Plaintiff failed to carry her burden, the undersigned limits the legal analysis of Plaintiff’s claims only as to defendants Goss, Diaz-Albarran, and Calderon. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009) (holding that a party abandons an issue by failing to address it in opposition to summary judgment). B. Analysis of Plaintiff’s Claims 1. Plaintiff’s Deliberate Indifference Claims Against Goss4 “The Eighth Amendment imposes a duty on prison officials to protect inmates from violence at the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). In order to prevail on an Eighth Amendment claim, a prisoner must show that prison officials were deliberately indifferent to a substantial risk of harm to his health or safety. Farmer v. Brennan, 511 U.S. 825, 847 (1994). “Deliberate indifference” has both subjective and objective components, meaning that objectively, the prison conditions posed a risk of serious harm and subjectively a prison official must “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . . must also draw the inference.” Id., at 837; Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013). “Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. A prison official is liable only when the official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. A jury may “conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842. For instance, if the “plaintiff presents evidence showing that a substantial risk of inmate of attacks was ‘longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant- 4 In her opposition to Defendants’ motion for summary judgment, Plaintiff devotes a single sentence to refuting Defendants’ showing that Defendants Diaz-Albarran and Calderon were not deliberately indifferent. Opp. at 18. The threadbare deliberate indifference theory advanced against those two Defendants is addressed below in connection with the Court’s analysis of Plaintiff’s Cal. Government Code claims against them. Although it appears Plaintiff has abandoned her deliberate indifference claims against these two correctional officers and limits her opposition to Goss’s liability, the Court nevertheless finds that for all the reasons Goss was not deliberately indifferent, neither were Defendants Diaz-Albarran official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.’” Id. at 842-43. Liability for deliberate indifference may not be premised on constructive notice, but prison officials cannot ignore obvious dangers to inmates. See id. at 842. Here, Plaintiff alleges that Defendant Goss – as the chairperson of the Institution Classification Committee (ICC) on May 11, 2017 – was deliberately indifferent to the substantial risk of harm Mendoza presented to the health and safety of Muniz in two respects. (Ex. C p. 50). First, Plaintiff asserts that Goss’s involvement in the decision to house Muniz with Mendoza demonstrated deliberate indifference. Second, Plaintiff assert Goss’s prior involvement in Mendoza’s early release from administrative segregation after being assessed a 19-month term to be served in segregated housing for a rules infraction involving violence likewise demonstrated deliberate indifference. The two claims are analyzed below. a. The Double-Celling Decision Plaintiff asserts that Goss was deliberately indifferent when he authorized Muniz to double-cell with Mendoza on account of the following factors: (1) that Muniz was a drop out from the South Side Kings, which placed him at considerable danger given that Mendoza is a Fresno Bulldog drop out, an alleged rival of the South Side Kings; (2) that Mendoza had a history of violence within CDCR facilities; and (3) that Mendoza suffered from mental health issues. When Mendoza arrived at KVSP, he was subjected to an Initial Classification Hearing on July 13, 2016. The classification committee’s notes reflect “a thorough review” of Mendoza’s case facts. After noting several prior disciplinary infractions, including incidents involving violence, and memorializing that it interviewed Mendoza, the committee concluded Mendoza should be doubled-celled because of “no significant history of in cell victimization or predator behavior towards a cellmate.” (ECF No. 88-3, Ex. C at p. 50) Plaintiff does not dispute that the committee’s decision in this regard is consistent with the CDCR’s “Double-Cell Housing Policy” (ECF No. 79-3, Goss Decl., Ex. B). Under that policy, significant in-cell violence against a cell partner, or verification of predatory behavior toward a cell or dormitory partner shall be reviewed and evaluated for single-cell status.” Id. Plaintiff does not seriously dispute that Mendoza met none of those disqualifying factors. While Mendoza did sustain one rules violation for an in-cell battery, that occurred more than ten years before his attack on Muniz and involved only “minor injuries” (ECF No. 88-3, Ex. C. at pp. 2, 8). See Palmer v. Vasquez, No. 1:13-cv-1400-AWI-JLT, 2015 WL 5021666, at *11 (E.D. Cal. Aug. 17, 2015) (summary judgment granted on claim against officer who approved Plaintiff for double-cell status where Plaintiff had not previously been victimized and housing decision was consistent with CDCR policy). Defendant Goss attests that staff are trained to immediately remove an inmate from the area if they express safety or enemy concerns. (ECF 79-2, Goss Decl. ¶ 8). Goss was aware that Mendoza received a rules violation for fighting, but noted that the incident occurred in the prison yard and not in a cell. Goss also attests that inmates are given an opportunity to speak with each other to ensure that they are compatible prior to housing them together as cellmates, and that if an inmate informs staff that he is incompatible with his cellmate, they will not be housed together. Id. ¶¶ 8 – 9. Plaintiff does not offer any facts to dispute that Goss’s involvement in the decision to double-house Muniz with Mendoza was informed and consistent with CDCR policy. Thus, there is no evidence that either Mendoza or Muniz had a problem with each other prior to Mendoza’s attack on Muniz. Instead, Plaintiff merely points out that Mendoza had a documented history of violence and that, as such, Goss had “more than a mere suspicion that Mendoza would attack again.” Opp. at 16 (citing Berg v. Kincheloe, 794 F.2d 457 (9th Cir. 1986)). But in Berg, the plaintiff-inmate specifically told the correctional officer who moved him to less-secure housing that his life would be in danger if he were moved. There is no such suggestion that Muniz ever reported to Goss that his life would be in danger if housed with Mendoza; to the contrary, Muniz never filed any complaint about Mendoza during their months’ long housing together. Just as in Berg, where claims against certain correctional officers were dismissed because the plaintiff- Goss had no reason to suspect a specific risk of harm between Muniz and Mendoza See Berg, 794 F.2d at 460 (9th Cir. 1986) (affirming grant of summary judgment where plaintiff did not provide evidence demonstrating that defendants “had any reason to believe” that plaintiff would be attacked). See also Shelton v. Reinke, 2013 WL 1319630, at *9 (D. Idaho Mar. 28, 2013) (“Prison officials cannot be deliberately indifferent toward a purported substantial risk of harm when Plaintiff fails to inform them of the risk, despite having numerous opportunities to do so”), aff'd, 585 Fed.Appx. 359 (9th Cir. 2014) (unpublished). Plaintiff also argues that Goss had more than a suspicion about the threat Mendoza presented to Muniz because they were drop outs from rival gangs. While Plaintiff argues that Mendoza may have been insincere about renouncing his gang-affiliations, and thus presumably, harbored gang-rival animosities towards Muniz (ECF No. 25, Second Amended Complaint, ¶¶ 33-35), she offers no facts to demonstrate that was, in fact, the case. Nothing shows that Mendoza associated with gang members while incarcerated or harbored malevolent intent towards current or former members of any rival STGs. Additionally, because there are no incident reports raised by Muniz when he was housed with Mendoza, there is no documentation that could have placed Goss on notice that there was any risk of serious harm, let alone a substantial risk of such harm. E.g. Shelton, 2013 WL 1319630, at *9 (finding no substantial risk of serious harm where plaintiff inmate lived with cellmate for four months prior to assault and never submitted a single complaint to prison officials). Even with all reasonable inferences granted in her favor, Plaintiff does not point to any facts that could generate a genuine factual dispute that should be resolved at trial. Plaintiff’s allegations about Mendoza’s gang affiliations do not rise above speculation. In Labatad v. Corr. Corp. of Am., 714 F.3d 1155 (9th Cir. 2013), the Ninth Circuit affirmed the district court’s grant of summary judgment against an plaintiff-inmate who alleged prison officials were deliberately indifferent in housing him with a rival gang member who assaulted him. In affirming summary judgment, the Court found that a prison’s policy of permitting members of different gangs to be housed together was not itself an Eighth Amendment largely because the two inmates lived peacefully together for an extended period of time before the they were involved in the assault. That the assaulting inmate only days earlier had been involved in a violent incident with a different rival gang member was not enough to establish deliberate indifference. Here, Goss had even less reason to be aware of any significant risk of harm presented in housing Muniz and Mendoza together than the correctional officers in Labatad because the two inmates were not gang rivals, but instead, drop outs of rival gangs. Accord, Thompson v. Lee, No. 1:07-cv-01299-LJO-GSA-PC, 2015 WL 769683, at *7-8 (E.D. Cal. Feb. 23, 2015) (summary judgment granted where plaintiff-inmate did not communicate a specific fear of harm in relation to his housing with a rival gang member); Schrubb v. Simmons, 2022 WL 3717254, at * 8-9 (N.D. Cal. Aug. 29, 2022) (same). Although Mendoza had been involved in previous violent events, to wit, an instance of in-cell violence in 2007, and an instance of out-of-cell assault causing serious bodily harm in 2017, the record does not show a pattern of behavior that would have put Goss on notice that he posed a substantial risk of serious harm to Muniz. (ECF No. 88-3, Ex. C. p. 6). To the contrary, there is no evidence from the moment Muniz was housed with Mendoza to the date of the attach that Muniz raised any concern at all about his celling arrangement. While it is undisputed that Mendoza was receiving the highest level of mental health care offered at KVSP at the time of his attack on Muniz, Plaintiff identifies no facts linking Mendoza’s particular mental health situation with an inference that Mendoza accordingly could not appropriately be double-celled with Muniz. Indeed, the Initial Classification Hearing Committee notes reflect that Mendoza had been clinically discharged from California Medical Facility and stated he was in good health and ready to proceed – all of which leads to the reasonable inference that Mendoza presented no mental health condition requiring single-cell housing. (ECF No. 88-3, Ex. C. p. 48). In support of the argument that Mendoza’s mental health is a material fact, Plaintiff points to videos of Mendoza being interviewed by prison officials after the attack that she claims show Goss erred in evaluating Mendoza’s mental health in connection with his double-celling decision. But the record viewed as a whole does not support a reasonable inference that In particular, Plaintiff points to Mendoza’s “incomprehensible” speech pattern as evidence of poor mental health, but his manner of speech had been documented in his prison file as evidencing his capability to understand directions in plain, concise English and was able to communicate with the housing committee. (ECF No. 88-3, Ex. C. p. 51). Given that Plaintiff’s assertion is unsupported by the record, the allegation that Mendoza’s mental health was severely compromised amounts to little more than speculation. In isolation, the video cannot support any reasonable inference that Mendoza had severe mental defects – such an inference would require expert opinion.5 Plaintiff also asserts Defendants’ deliberate indifference is demonstrated by facts discovered during the in-cell assault review conducted shortly after the attack. Although it is undisputed that the review determined that Mendoza’s July 2016 initial housing review was incomplete, there is no indication any of the Defendants were involved in that initial housing review. Moreover, Plaintiff fails to link the noted discrepancies – recording Mendoza’s sentence and release date inaccurately and failing to note Mendoza’s reported aggression towards jail staff – to any reasonable inference that the initial housing review decision to double-cell Mendoza accordingly was improper. Such discrepancies do not rise to the level of creating a disputed issue of material fact because they are not facts that would affect the outcome of the suit. Anderson, 477 U.S. at 248. b. Mendoza’s SHU Confinement Plaintiff next contends that Goss acted with deliberate indifference when he authorized Mendoza’s early release from administrative segregation after being assessed a 19-month term to be served in segregated housing for a rules infraction involving violence. At the outset, Defendants urge the Court to disregard Plaintiff’s argument regarding the SHU because it “was not included in the complaint.” Reply at 2 (citing inter alia Pickern v. Pier

5 Although not addressed by the parties in their summary judgment papers. Exhibit B is a video recording in which investigators attempt to ascertain Mendoza’s motivations behind his assault on Muniz. According to Mendoza, Muniz was the initial aggressor over some disagreement in which Muniz attempted to contact one of Mendoza’s close friends. Mendoza allegedly struck Muniz and he stumbled into the floor and into unconsciousness. Mendoza further stated that the incident was not gang related. See 1 Imports (U.S.), Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (holding that a plaintiff may not raise new allegations in opposition to a motion for summary judgment where the complaint does not give a defendant proper notice of those allegations). Thus, under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), a complaint must allege sufficient facts to “give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Summary judgment is not a “procedural second chance to flesh out inadequate proceedings.” Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006). A party may not defeat a motion for summary judgment “by raising theories that lie outside the scope of their pleadings.” Wormuth v. Lammersville Union Sch. Dist., 305 F. Supp 1108, 1119 (E.D. Cal. 2018). In Morgan v. Brown, the plaintiff-inmate alleged in the operative complaint that a defendant correctional officer’s deliberate indifference in leaving a gate unsecured resulted in another inmate gaining access to him and assaulting him. In opposition to summary judgment, the plaintiff offered a different theory of deliberate indifference – that defendant’s failure to ensure an escort officer was present for an inmate release constituted deliberate indifference. No. 1:17-cv-00425-LJO-JLT, 2018 WL 4385842, at *3-4 (E.D. Cal. Sep. 14, 2018). The Court found that the defendant was on sufficient notice of the general legal theory of deliberate indifference and, accordingly, permitted plaintiff to advance the variation of his argument in opposition to summary judgment because it did not subject Defendant “to the necessity of entirely reworking his defense.” Id. at *4. For the same reasons articulated by the Court in Morgan, this Court will consider Plaintiff’s SHU argument although not expressly set forth in the complaint. Indeed, Defendants acknowledged Mendoza’s placement in the SHU in their filings in support of summary judgment (see ECF No. 79-2, Goss Decl. ¶ 8), thus undermining any suggestion that permitting Plaintiff to advance the SHU theory would require Defendants to rework their defense. Morgan, 2018 WL 4385842, *4. ICC assessed a 19-month SHU term, with a Minimum Eligible Release Date (MERD) of November 16, 2017. (ECF No. 94-2, Custer Decl. ¶ 5). On May 11, 2017, Defendant Goss chaired a Classification Committee hearing which found that Mendoza’s term in the SHU was no longer warranted. Although the ICC early terminated Mendoza’s previously assessed 19-month SHU term, it is undisputed that the Committee arrived at that conclusion because Mendoza, while double-celled in administrative segregation for approximately three months, remained discipline free and engaged in positive programming. (ECF No. 93-1, Custer Depo. pp. 55-56). The Committee’s imposition of a 19-month SHU term in Mendoza’s case was not fixed and irrevocable, but rather, a “potential penalty” which commonly is suspended where the inmate (like Mendoza here) committed no other SHU-able offenses within the past year. (ECF No. 94-2, Custer Decl. ¶¶ 5-6; ECF No. 88-3, Ex. C pp. 50-51). The Committee further noted that Mendoza possessed no mental health factors that would cause him to experience difficulty in understanding the prison disciplinary process, and there was no finding that his mental health was a contributing cause of the February 5, 2017 incident. The Committee noted that Mendoza had no significant history of in-cell predatory/assaultive behavior towards cellmates, while mentioning his prior instance of in-cell violence on September 2, 2007, as an isolated incident with no further acts of violence. Id. In short, Goss did not disregard any facts and circumstances suggesting that Mendoza’s release from a SHU term would create a substantial risk of serious harm to Muniz. 2. Plaintiff’s California Government Code § 845.6 Claim Against Officers Diaz-Albarran and Calderon Plaintiff alleges that Officers Diaz-Albarran and Calderon, violated Cal. Govt. Code §§ 844.6 and 845.6 for failing their duty to monitor, check and respond to persons under their custody, supervision and control. “In order to state a claim under § 845.6, a prisoner must establish three elements: (1) the public employee knew or had reason to know of the need (2) for immediate medical care, and (3) failed to reasonably summon such care.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 606 (9th Cir. 2019) (quoting Jett v. Penner, 439 F.3d 1091, In opposing summary judgment, Plaintiff’s sole mention of and allegation against Defendants Diaz-Albarran and Calderon relates to Plaintiff’s assertion that they violated the Eighth Amendment through deliberate indifference. Plaintiff’s theory is that Diaz-Albarran and Calderon were on-duty correctional officers at the time of Mendoza’s attack against Muniz, and as such “should have heard and responded to” the attack given Muniz’s alleged heavy breathing and audible distress. Opp. 8-10, 18. Plaintiff wholly fails to address Defendants’ showing that this conduct fails to raise a disputed issue of material fact with respect to the § 845.6 claim. Nevertheless, the Court will incorporate the substance of Plaintiff’s deliberate indifference claims against Diaz-Albarran and Calderon and consider below whether they satisfy the elements of § 845.6. Under the first Jett prong, Plaintiff points to a video that arguably shows Muniz loudly hyperventilating while being treated by medical staff. (ECF No. 88-3, Ex. A).6 The video has no timestamp and it is unknown how proximate in time it was taken after Officers Calderon and Diaz-Albarran found Muniz under his cell bunk. However, there is reason to believe the video was not contemporaneous with the officers’ initial discovery of Muniz because Diaz-Albarran attested during his deposition that when he found Muniz at around 6:32 a.m., he was unresponsive or breathing normally. (ECF No. 93-4, Diaz-Albarran Depo. p. 48). Aside from Plaintiff’s speculation that Muniz must have been exhibiting audible signs of distress, there is nothing in the record either by the way of prisoner affidavits or depositions that Muniz was, in fact, in a hyperventilating state at the time that he was discovered. Accordingly, even with all reasonable inferences granted in Plaintiff’s favor, it does not follow that because Muniz was breathing loudly while attended by medical staff, that he also was in the same state when he was discovered by the officers (thereby, presumably, giving them reason to foreknow of an immediate need of medical attention). Likewise, Plaintiff offers no evidence that the Officers failed the second and third prongs

6 The individual depicted in the video is not outright identified as Muniz but given that his facial injuries were consistent with what was documented on the record, and the man had a “SSK” tattoo across his chest, which presumably stands for “South Side Kings”, a STG that Muniz used to associate himself outlined by Jett. Thus, no information contradicts Calderon’s deposition testimony that he immediately asked the control booth to open the cell door and called for responding staff upon discovering Muniz. (ECF No. 93-3, Ex. G, Calderon Depo. pp. 44-45). Because Plaintiff fails to present any disputed issues of material fact in support of her § 845.6 claims against Diaz-Albarran and Calderon, summary judgment is appropriate. 3. Plaintiff’s Loss of Familial Relations Claims Parents have a Fourteenth Amendment liberty interest in the companionship and society of their children. Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). However, only official conduct that “shocks the conscience” is cognizable as a due process violation. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). (citations omitted). The key inquiry is “whether the behavior of the government official is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 847 n. 8. Typically, the type of conduct which is most likely to rise to the “conscience-shocking level” is “conduct intended to injure in some way unjustifiable by any governmental interest.” Id. at 849. Nevertheless, conduct which was not intentional, but rather deliberately indifferent, may rise to the conscience-shocking level in some instances. Id. at 849-50. As there are no findings of deliberate indifference in the underlying failure to protect claims, Plaintiff’s familial relation claims must also fail. See Toguchi, 391 F.3d at 1061 (“because a due process claim predicated upon the violation of a parent’s liberty interest in the companionship of his child requires a showing of more than negligence, entry of summary judgment” affirmed where deliberate indifference claims failed); Cotta v. County of Kings, 79 F. Supp.2d 1148, 1180 (E.D. Cal. 2015) (same). 4. Plaintiff’s Wrongful Death Claims Plaintiff alleges Defendants breached their duty owed to Muniz, which includes a duty to provide “safe and appropriate prison custody,” obey court orders, summons necessary and appropriate care, refrain from abusing their authority, and refrain from violating his United States and California constitutional rights. (ECF No. 25 ¶ 116). Plaintiff alleges she suffered injuries “The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” Quiroz v. Seventh Ave. Center, 140 Cal.App.4th 1256, 1263 (2002) (emphasis omitted). In order to support a finding of negligence, the plaintiff must show that a defendant had a duty of care, he breached that duty, and that the breach was the proximate or legal cause of the injury. Cotta, 79 F. Supp. 3d at 1183. In Cotta, the court found that in a situation where prison officials had no reason to be aware of a foreseeable risk of harm, there was no breach of duty. Id As discussed above, there is no evidence that Defendants had any reason to believe that Mendoza posed a risk to Muniz’s safety. There was no indication of any adversity between the two prior to Muniz’s death. In other words, the undisputed facts demonstrate that Mendoza did not pose a foreseeable risk of harm to Muniz of which Defendants were aware (or should have been aware). Nor does Plaintiff offer any disputed issues of material fact as to Defendants’ breach of duties to summons necessary and appropriate care upon discovering Muniz, and to refrain from abusing their authority and violating inmates’ constitutional rights. Accordingly, the undisputed facts demonstrate that Defendants did not breach their duty of care to protect Muniz from any foreseeable harm. Based on the foregoing, it is HEREBY RECOMMENDED that Defendants motion for summary judgment be GRANTED in whole. These Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within 30 days after being served with these Findings and Recommendation, the parties may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure to file objections within the specified / / / / / / / / / time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. “| Dated: _ January 13, 2023 | hr UNITED STATES MAGISTRATE JUDGE 17