(PC) Timberland v. Mascarenas

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 RONALD TIMBERLAND, 1:16-cv-00922-NONE-GSA-PC

12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT 13 vs. MASCARENAS’ MOTION FOR SUMMARY JUDGMENT BE GRANTED 14 G. MASCARENAS, et al., (ECF No. 51.)

15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16

20 21 I. BACKGROUND 22 Ronald Timberland (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds 24 with Plaintiff’s Second Amended Complaint, filed on June 20, 2018, against defendant G. 25 Mascarenas (Correctional Counselor I) (“Defendant”) for failure to protect Plaintiff, in violation 26 of the Eighth Amendment.1 (ECF No. 26.) 27 28 1 On October 12, 2018, the court issued an order dismissing all other claims and defendants from this action, based on Plaintiff’s failure to state a claim. (ECF No. 30.) een tee eee neon nn NE IE OI OS INGE IED me

1 On January 6, 2020, Defendant Mascarenas filed a motion for summary judgment on the 2 grounds the following grounds: (1) there are no genuine issues of material fact in dispute and 3 || therefore, Defendant is entitled to judgment asa matter of law; and, (2) Defendant is entitled to 4 || qualified immunity.* (ECF 51.) On November 16, 2020, Plaintiff filed an opposition to the 5 ||motion. (ECF No. 76.) On November 24, 2020, Defendant filed a reply to the opposition. (ECF 6 1|No. 79.) The motion is deemed submitted. Local Rule 230(J). 7 For the reasons set forth below, the court recommends that Defendant’s motion for 8 ||summary judgment be granted. 9 I. SUMMARY OF PLAINTIFF’S ALLEGATIONS? 10 The events at issue in this case arose at Corcoran State Prison (CSP) in Corcoran, 11 || California, when Plaintiff was incarcerated there in the custody of the California Department of 12 Corrections and Rehabilitation (CDCR). Defendant Mascarenas was an employee of the CDCR 13 CSP durmg the relevant time. Plaintiffs allegations follow. 14 Background 15 On May 17, 2012, while at High Desert State Prison in Susanville, California, Plaintiff 16 || began serving a determinate Security Housing Unit (SHU) term of 48 months after being found 17 || guilty pursuant to a Rules Violation Report (RVR) for conspiracy to murder a peace officer. This 18 ||RVR was based on information provided by a confidential informant. 19 On July 24, 2014, Plaintiff paroled to San Diego, California, having served his entire five- 20 || year sentence. Plamtiffs total SHU time served to that date was 26 months and 7 days. 21 22 23 24 2 Concurrently with her motion for summary judgment, Defendant served Plaintiff with the requisite notice of the requirements for opposing the motion. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); 25 || Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 51-2.) 26 3 Plaintiff's Second Amended Complaint is verified and his allegations constitute evidence where they are based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23 27 || (th Cir. 2004). summarization of Plaintiff's claim in this section should not be viewed by the parties as a ruling that the allegations are admissible. The court will address, to the extent necessary, the admissibility of Plaintiff's 28 || evidence in the sections which follow.

1 On August 21, 2014, Plaintiff was returned to custody on new charges. While awaiting 2 the outcome of these charges Plaintiff was placed in the SHU as a Max Custody Inmate because 3 he had paroled from the SHU. Plaintiff served another 6 months and 14 days in the SHU before 4 being sentenced and returned to CDCR custody. Plaintiff’s total SHU time served to that date 5 was 32 months and 21 days. 6 Plaintiff returned to CDCR custody on March 5, 2015, at the California Institute for Men 7 in Chino, California. Plaintiff was notified by the Prison Law Office in San Quentin, California 8 that he was a member of “classes” in two cases, Coleman v. Brown, covering prisoners with 9 mental health diagnoses, and Armstrong v. Brown, covering prisoners with physical disabilities 10 under the ADA. Plaintiff was also notified that he qualified as a member of the Ashker v. Brown 11 lawsuit, which brought to light the nefarious tactics used by the CDCR concerning SHU term 12 sentences and releases, especially with regard to those prisoners who received SHU terms based 13 on information provided by confidential informants. Plaintiff was also notified of the proposed 14 settlement agreement in the Ashker litigation, in particular regarding determinate SHU terms: 15 “All prisoners serving determinate SHU terms will serve 1/2 of the term specified. 16 Parolees/violators returning to CDCR custody with new sentences shall not be returned to SHU 17 to complete unexpired SHU term from previous prison term(s).” ECF No. 26 at 6 ¶ M. 18 Classification Committee Hearing 19 On April 1, 2015, Plaintiff returned to CSP SHU, Facility 4B. On May 5, 2015, 20 Defendant, Plaintiff’s assigned counselor, and committee members, held a hearing which 21 resulted in Plaintiff being given another 26-month SHU term based on the RVR from 2012. As 22 of the date of the hearing, Plaintiff had served a total of 34 months and 21 days in the SHU. This 23 was well over the “1/2 time” to be served per the Ashker Settlement Agreement. ECF No. 26 at 24 6 ¶ N. As a result of this hearing Plaintiff served an additional 23 months and 21 days in the 25 SHU. Upon his release from the SHU Plaintiff had served a total of 58 months and 12 days for 26 a 48-month SHU term. This “extra” SHU time lasted 10 months and 12 days beyond the original 27 48-month SHU term for a total of 34 months and 12 days beyond the “1/2 time” that all other 28 prisoners with SHU terms had served. ECF No. 26 at 7:7-11. 1 Plaintiff was deprived of privileges such as phone calls, contact and family visits, 2 religious services, quarterly packages, work/job assignments and education classes and 3 programs, denying Plaintiff of the opportunity to earn a minimum of 30 weeks of “Milestone 4 Credits,” which would reduce his prison term. ECF No. 26 at 7:17. Plaintiff also suffered 5 reduced yard access, reduced time spent out of his cell, and reduced medical services. 6 Defendant G. Mascarenas, Plaintiff’s assigned counselor, did not provide any notice to 7 Plaintiff of the May 5, 2015, Institutional Classification Committee hearing, either before or after 8 the hearing. Defendant Mascarenas also failed to provide Plaintiff with any written notice of 9 conduct reports or charges against him. Plaintiff was denied an opportunity to attend the hearing, 10 submit any evidence, call witnesses, or offer any defense to the allegations against him. At the 11 hearing defendant Mascarenas presented committee members with many false statements, 12 allegations, and outright lies, which were entered in Plaintiff’s Central File via the Classification 13 Committee Chrono (128-G). 14 Defendant D. Patterson, Plaintiff’s assigned staff assistant for the May 5, 2015 hearing, 15 also failed to provide Plaintiff any notice of the hearing or charges against him, or assistance to 16 Plaintiff to defend against charges. Defendant Patterson did not even meet with Plaintiff before 17 or after the hearing. 18 Inmate Appeal 19 On June 2, 2015, Plaintiff filed inmate appeal log no. CSPC-6-15-03064, complaining 20 about the actions of the committee members and defendant Mascarenas who gave Plaintiff’s 21 Classification Committee Chrono to another inmate with instructions to “pass this around,” 22 which placed Plaintiff in extreme danger from other inmates. ECF No. 26 at 12:5-6. Plaintiff 23 requested that the false “facts” be removed from his C-file. ECF No. 26 at 12:19-20. He also 24 requested to be placed on permanent single-cell status and moved to the recently instituted Long 25 Term Restricted Housing (LTRH) for those SHU inmates in the mental health program. 26 The actions of the committee members should have automatically warranted an 27 investigation into staff misconduct as mentioned in CDCR’s Code of Regulations governing 28 “Inmate Appeals - Levels of Review and Disposition.” ECF No. 26 at 9-10. 1 On June 12, 2015, at the first level of review, defendant A. Maxfield partially granted 2 Plaintiff’s request to be moved to the LTRH Unit, but denied the request for single-cell status. 3 No mention of staff misconduct was made. 4 On July 6, 2015, at the second level of review, defendant M. Sexton again partially 5 granted Plaintiff’s request to be moved to the LTRH Unit, but denied the request for single-cell 6 status. No mention of staff misconduct was made. There was an acknowledgement of “several 7 errors documented on the 128-G dated May 5, 2015.” ECF No. 26 at 10:18-20. 8 As defendants Maxfield and Sexton were both members of the committee whose actions 9 the appeal was about, neither should have reviewed this appeal at any level of review. Both 10 defendants effectively blocked any investigation into staff misconduct by fellow committee 11 members. Despite the approval to be moved to the LTRH Unit rendered on June 12, 2015, 12 Plaintiff was not actually moved until April 13, 2016. 13 Plaintiff’s 128-G Chrono 14 On May 11, 2015, third watch floor officer M. Tabarez [not a defendant] slid an envelope 15 under Plaintiff’s cell door, stating, “Hey, the dude in cell #10 just gave this to me. He said a 16 counselor gave it to him last week, at least he’s giving it back.” ECF No. 26 at 11:14-16. Upon 17 opening the envelope and reading the enclosed document, Plaintiff realized that this was a 128- 18 G committee chrono concerning a hearing which apparently occurred the previous week. The 19 document contained many false statements about Plaintiff, particularly under the headings “Cell 20 Review” and “Effective Communication.” ECF No. 26 at 11:23-25. 21 On May 12, 2015, while outside in the recreation “cages,” Plaintiff was able to question 22 the inmate who resided in cell #10, known as “Baby Boy,” a validated Crips gang member, and 23 asked him about the 128-G form. ECF No. 26 at 11-12. Baby Boy stated, “Yeah, some female 24 counselor gave that to me last week and told me to ‘pass this around.’ You shouldn’t be working 25 for the police and snitching on people.” ECF No. 26 at 12:4-8. Plaintiff immediately realized 26 that his status amongst the other inmates was in jeopardy by the reaction from them. Many of 27 them made comments about “snitches being dead meat.” ECF No. 26 at 12:10-13. 28 /// 1 Between May 5, 2015 and May 11, 2015, defendant Mascarenas did knowingly place 2 Plaintiff’s safety in jeopardy by giving the 128-G form, which contained many false “facts” about 3 Plaintiff, to another inmate with instructions to “pass it around,” effectively labeling Plaintiff a 4 “snitch” or “rat” to other inmates. ECF No. 26 at 12:17-24. 5 For the remainder of the time that Plaintiff spent in the SHU he was under a constant and 6 escalating barrage of written and verbal threats of violence and death from inmates in both the 7 General Population (GP) and Sensitive Needs Yard (SNY). 8 Plaintiff suffered physical injury on numerous occasions - being spit on; being gassed, 9 having feces, urine, or a mixture of both, thrown on him; and being the target of homemade darts 10 and arrows using blowguns and bows, these being dipped in feces and/or urine, designed to 11 cause illness and infection. On one occasion a wheelchair-bound inmate squirted the contents of 12 his colostomy bag on Plaintiff. 13 Plaintiff also suffered from anxiety, fear, nervousness, paranoia, deep depression, 14 insomnia, weight loss and gain, loss of appetite, exhaustion, stress, suicidal thoughts, and various 15 side effects from medications prescribed to help deal with these issues. Elavil, Triliptal, 16 Clonadine, Levothyroxine, and Abilify are but a few of the medications prescribed to Plaintiff. 17 Upon Plaintiff’s release from the SHU on April 26, 2017, he was informed that he could no 18 longer be housed on any General Population yard due to confirmed death threats from other 19 inmates. These threats used the information provided on the 128-G dated April 29, 2015, printed 20 and given to another inmate by defendant G. Mascarenas. Plaintiff has received numerous death 21 threats from SNY prison gangs, Northern Riders, Independent Riders, and USA Skins. 22 Plaintiff has received RVRs and suffered loss of credits and various privileges due to his 23 refusal to accept a cell mate. Plaintiff has been moved/transferred five times since his release 24 from the SHU. He is currently awaiting transfer to another prison due to safety/enemy concerns. 25 Relief 26 Plaintiff requests monetary damages, including punitive damages, and injunctive relief. 27 /// 28 /// 1 III. SUMMARY JUDGMENT STANDARD 2 Any party may move for summary judgment, and the court shall grant summary judgment 3 if the movant shows that there is no genuine dispute as to any material fact and the movant is 4 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); 5 Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 6 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular 7 parts of materials in the record, including but not limited to depositions, documents, declarations, 8 or discovery; or (2) showing that the materials cited do not establish the presence or absence of 9 a genuine dispute or that the opposing party cannot produce admissible evidence to support the 10 fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials 11 in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); 12 Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord 13 Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 14 Defendants do not bear the burden of proof at trial and in moving for summary judgment, 15 they need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. Sec. 16 Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 17 S.Ct. 2548 (1986)). If Defendants meet their initial burden, the burden then shifts to Plaintiff “to 18 designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle 19 Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show 20 more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, 21 Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)). 22 In judging the evidence at the summary judgment stage, the court may not make 23 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 24 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all 25 inferences in the light most favorable to the nonmoving party and determine whether a genuine 26 issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. 27 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). 28 /// 1 The court determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d 2 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted). 3 In arriving at these findings and recommendations, the court carefully reviewed and 4 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 5 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 6 reference to an argument, document, paper, or objection is not to be construed to the effect that 7 this court did not consider the argument, document, paper, or objection. This court thoroughly 8 reviewed and considered the evidence it deemed admissible, material, and appropriate. 9 IV. PLAINTIFF’S EIGHTH AMENDMENT FAILURE TO PROTECT CLAIM 10 Plaintiff brings a claim against defendant G. Mascarenas (Correctional Counselor I) for 11 failure to protect Plaintiff, in violation of the Eighth Amendment. 12 The Eighth Amendment protects prisoners from inhumane methods of punishment and 13 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 14 2006). Although prison conditions may be restrictive and harsh, prison officials must provide 15 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. 16 Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison 17 officials have a duty to take reasonable steps to protect inmates from physical abuse. Farmer, 18 511 U.S. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison 19 officials to protect inmates from attacks by other inmates may rise to the level of an Eighth 20 Amendment violation where prison officials know of and disregard a substantial risk of serious 21 harm to the plaintiff. E.g., Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. 22 To establish a violation of this duty, the prisoner must establish that prison officials were 23 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834. The 24 question under the Eighth Amendment is whether prison officials, acting with deliberate 25 indifference, exposed a prisoner to a sufficiently “substantial risk of serious harm” to his future 26 health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has 27 explained that “deliberate indifference entails something more than mere negligence . . . [but] 28 something less than acts or omissions for the very purpose of causing harm or with the knowledge 1 that harm will result.” Farmer, 511 U.S. at 835. The Court defined this “deliberate indifference” 2 standard as equal to “recklessness,” in which “a person disregards a risk of harm of which he is 3 aware.” Id. at 836-37. 4 The deliberate indifference standard involves both an objective and a subjective prong. 5 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834. 6 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 7 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). 8 To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in 9 fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. 10 at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). 11 V. DEFENDANT’S UNDISPUTED FACTS (DUF)4 12 Defendant Mascarenas submitted the following facts in support of her motion for 13 summary judgment. (ECF No. 51-3.) 14 A. Parties. 15 1. At all times relevant to this action, Plaintiff Ronald Timberland (T-20871) was in 16 the custody of the California Department of Corrections and Rehabilitation 17 (CDCR) and confined in the Security Housing Unit at California State Prison – 18 Corcoran (COR). (ECF No. 27, ¶ D; Defendant’s Exhibit A (DX A), Attachment 19 1, Decl. of B. Hancock and documents from Timberland’s central file, p. 5-6.) 20 2. Defendant G. Mascarenas was employed by CDCR, and worked at COR as a 21 Correctional Counselor I. (ECF No. 27, ¶ E.) In that position, Defendant 22 Mascarenas would formulate inmate case information and present that 23

24 4 Plaintiff failed to properly address Defendant’s statement of undisputed facts as required by 25 Local Rule 260(b). Accordingly, the court may consider Defendant’s assertions of fact as undisputed for purposes of this motion. Id; Fed. R. Civ. P. 56(e)(2). However, in light of the Ninth Circuit’s directive that a document filed 26 pro se is “to be liberally construed,” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, and Rule 8(e) of the Federal Rules of Civil Procedure providing that “[p]leadings shall be construed so as to do justice,” see Erickson v. 27 Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007), the court shall strive to resolve this motion for summary judgment on the merits. 28 1 information, and proposed Committee action, to the Classification Committee for 2 final review and approval during the inmate’s classification hearing. (Defendant’s 3 Exhibit B (DX B), Decl. of G. Mascarenas, ¶ 2.) 4 3. Before presenting the information to the Classification Committee, Defendant 5 Mascarenas reviewed all case information that was available to her, including the 6 inmate’s central file, all confidential information, and the inmate’s Strategic 7 Offender Management (SOMS) file. (DX B, ¶ 3.) 8 4. Timberland claims that he has never met Defendant Mascarenas. (Defendant’s 9 Exhibit C (DX C), deposition transcript of Ronald Timberland taken September 10 25, 2019, at 21:11-13.) 11 B. Background 12 5. Timberland was returned to the custody of CDCR on July 15, 2014. (DX A, p. 6.) 13 6. On March 5, 2015, Timberland was placed into administrative segregation at the 14 California Institution for Men (CIM). (DX A, p. 16-17.) 15 7. A computer check revealed that Timberland had been paroled with an unexpired 16 SHU term for conspiracy to murder a peace officer. (DX A, p. 16.) Timberland 17 was deemed a threat to the safety and security of the institution, and he remained 18 in administrative segregation pending transfer. (Id.) 19 8. Timberland arrived at COR on April 1, 2015, and was placed into the Security 20 Housing Unit. (DX A, p. 5.) 21 C. Timberland’s Initial Classification Hearing 22 9. On May 1, 2015, Defendant Mascarenas advised Timberland that he would appear 23 before the Institutional Classification Committee on May 5, 2015. (DX A, p. 20- 24 21.) The notification allowed Timberland to determine if there were any issues he 25 wanted to discuss with the Committee. (DX B, ¶ 7.) Inmate Timberland refused 26 to attend the hearing, therefore it was held in absentia. (DX A, p. DX B, ¶ 7.) 27 28 1 10. Defendant Mascarenas was not inmate Timberland’s assigned counselor, but was 2 asked to assist Timberland’s assigned counselor, V. Plata, who had a very heavy 3 caseload. (DX B, ¶ 6.) 4 11. After reviewing all of Timberland’s case information, but prior to the Committee 5 hearing, Counselor Mascarenas documented the information on a CDCR Form 6 128-G prior to the Committee hearing. (DX B, ¶ 4.) 7 12. During the Committee hearing, Counselor Mascarenas presented the information, 8 which was reviewed by the entire Committee. (Id.) 9 13. Timberland’s Classification Committee hearing was held on May 5, 2015. (DX 10 B, ¶ 5.) As a Correctional Counselor, Mascarenas was not a member of the 11 Committee. (Id.) The members of inmate Timberland’s Initial Classification 12 Committee included Sergeant M. Cuevas; Officer J. Pierce from the Institutional 13 Gang Investigations (IGI) Unit; D. Tepperman, a Licensed Clinical Social Worker 14 (LCSW); Correctional Counselor II Maxfield, who acted as the Recorder; and 15 Chief Deputy Warden Sexton. (DX A, p. 23; Id.) 16 14. On the Form 128-G, Counselor Mascarenas noted under “Committee Comments” 17 that Timberland “was housed on a Sensitive Needs Yard (SNY) facility from 2002 18 to 2005. Per 128B 3/11/15, S states he is general population and his safety needs 19 were exclusive to High Desert State Prison (HDSP). ICC action dated 3/11/15, 20 does not address prior SNY placement and there is no current documentation since 21 current term documentation if S is still requesting SNY placement.” (DX A, p. 22 22.) 23 15. The information contained in the 128-G regarding inmate Timberland’s history 24 on the Sensitive Needs Yard (SNY) was accurate information that Counselor 25 Mascarenas obtained from Timberland’s central file. (DX B, ¶ 8.) 26 16. There are several documents in Timberland’s central file, including Inmate 27 Segregation Profiles dated January 11, 2014, June 18, 2014, July 14, 2014, and 28 1 March 5, 2015, that all document Timberland’s desire to be housed on an SNY, 2 or his placement on an SNY. (DX A, p. 8-11.) 3 17. Because Timberland did not attend his Institutional Classification Committee 4 hearing, he could not advise the Committee of any inaccuracies in the Form 128- 5 G. (DX B, ¶ 10.) 6 18. Based on the information provided to the Committee, they elected to retain 7 Timberland on single cell status until his housing cell status could be further 8 reviewed, and he could be returned to the ICC to address his cell placement. (DX 9 A, p. 22.) 10 D. Timberland’s Grievance 11 19. On June 2, 2015, Timberland filed a grievance claiming that he had received a 12 copy of his classification chrono through the institutional mail on May 11, 2015. 13 (DX A, p. 24-25.) Timberland claimed that Correctional Counselor Patterson had 14 made “fraudulent” statements on the chrono, including that Timberland wore 15 hearing aids, and that he was housed on the SNY. (DX A, p. 25.) According to 16 Timberland, in July 2013 he had told Sergeant Lopez that he was rescinding his 17 SNY status. (DX A, p. 25.) 18 20. Timberland claimed that the information regarding SNY would place him at a 19 “greater risk of injury/death.” (DX A, p. 24.) 20 21. Timberland requested that he be placed on permanent single cell status, and that 21 he remain in the SHU for the remainder of his term of imprisonment. (DX A, p. 22 24-25.) 23 22. On June 12, 2015, Timberland’s grievance was answered at the first level of 24 review by Correctional Counselor II Maxwell. (DX A, p. 31-32.) The answer 25 noted that there were several errors in the 128-G, and that Timberland would be 26 scheduled for another ICC hearing to correct those errors. (Id.) 27 23. Dissatisfied with the response, Timberland elevated the grievance to the second 28 level of review on July 1, 2015. (DX A, p. 26-27.) For the first time Timberland 1 claimed that he was receiving death threats from both general population and SNY 2 inmates, even though he was housed in the SHU where inmates are confined to 3 their cells, and not allowed on either the general population or SNY. (DX A, p. 4 26; DX B, ¶ 14.) 5 24. Timberland again claimed that he had received his classification chrono through 6 the institutional mail, but this time noted that the chrono had been mistakenly 7 given to the inmate in cell 10, who passed the chrono around the unit. (DX A, p. 8 27.) Timberland again blamed CCI Patterson. (DX A, p. 27.) 9 25. Timberland received the second level response on July 6, 2015. (DX A, p. 33.) 10 Again, Timberland’s request for single cell status was denied. (DX A, p. 33-34.) 11 E. Timberland’s Inmate Segregation Record 12 26. Timberland later claimed that he spoke with “Baby Boy,” the inmate who 13 mistakenly received the chrono, while out on the yard on May 11, 2015. (ECF No. 14 27, § R.) 15 27. According to Timberland, “Baby Boy” identified the person who gave him the 16 chrono as a “female counselor.” (Id.) Timberland admits that there are several 17 female counselors. (DX C, at 39:16-20.) Timberland now claims that because 18 Defendant Mascarenas’ name was on the chrono, he assumed that she was the 19 Counselor who gave it to the other inmate. (DX C, at 39:4-7.) 20 28. Timberland’s segregation record shows that he did not go out to the yard between 21 April 23, 2015 and July 28, 2015. (DX A, p. 38-47.) 22 F. Counselor Mascarenas’ Procedures 23 29. During her time as a Correctional Counselor I in the Security Housing Unit, it was 24 Counselor Mascarenas’ custom and practice to provide an inmate with a copy of 25 the CDCR Form 128-G only if the chrono was requested by the inmate. (DX B, ¶ 26 12.) She did not send the inmate’s 128-G through institutional mail. (DX B, ¶ 13.) 27 30. Because the inmates in the Security Housing Unit (SHU) are confined to their 28 cells, they cannot come to Counselor Mascarenas’ office to request a copy of the 1 128-G. (DX B, ¶ 14.) Inmates would request a copy of the 128-G at the completion 2 of Committee, or if they saw Counselor Mascarenas in the housing unit and called 3 me over to their cell. (Id.) Because Inmate Timberland was not present during his 4 ICC hearing held May 5, 2015, he did not request a copy of his 128-G at the 5 hearing. (DX B, ¶ 14.) 6 31. Because she was not inmate Timberland’s assigned counselor, Counselor 7 Mascarenas did not work in his building, therefore, Counselor Mascarenas was 8 not present in the housing unit for inmate Timberland to request that she provide 9 him with a copy of his 128-G. (DX B, ¶ 15.) 10 32. Counselor Mascarenas did not receive a request for inmate Timberland for a copy 11 of his 128-G, and therefore, as was her practice, she did not provide inmate 12 Timberland with a copy that document. (DX B, ¶ 16.) 13 33. Counselor Mascarenas did not give any other inmate a copy of inmate 14 Timberland’s 128-G. (DX B, ¶ 17.) 15 VI. DEFENDANT MASCARENAS’ ARGUMENTS 16 Defendant Mascarenas argues that she did not violate Plaintiff’s Eighth Amendment 17 rights by failing to protect him from harm. Defendant’s evidence includes Plaintiff’s allegations 18 in the Second Amended Complaint; the declarations of B. Hancock (Custodian of Records) and 19 defendant G. Mascarenas (Correctional Counselor); selected testimony from Plaintiff Ronald 20 Timberland’s deposition taken on September 25, 2019; Plaintiff’s prison appeal log no. CSPC- 21 6-03064; and documents from Plaintiff’s prison central file. 22 A. Plaintiff Cannot Show that Defendant Mascarenas Personally Participated 23 in Giving Plaintiff’s Chrono to Another Inmate 24 First, Defendant argues that Plaintiff cannot establish that defendant Mascarenas 25 personally participated in the alleged constitutional violation against Plaintiff. In the Second 26 Amended Complaint, Plaintiff alleges that defendant Mascarenas gave another inmate Plaintiff’s 27 128-G classification chrono, but Plaintiff bases this allegation solely on the facts that 28 Mascarenas’ name is on the chrono and the inmate told Plaintiff that a “female counselor” gave 1 him the chrono. Plaintiff admits that there is more than one female counselor at CSP and he 2 never met Mascarenas. Defendant Mascarenas explains that she was not Plaintiff’s assigned 3 counselor and did not work in Plaintiff’s building. Counselor Mascarenas prepared the 128-G 4 chrono before the committee hearing and presented the information at Plaintiff’s classification 5 committee hearing on May 5, 2015. However, Plaintiff did not request a copy of the 128-G 6 chrono, and Counselor Mascarenas did not provide a copy to Plaintiff or any other inmate. 7 Plaintiff fails to offer any evidence to support his conclusory allegations, that if proven would 8 show Mascarenas’ personal involvement in an Eighth Amendment violation. 9 B. Defendant Mascarenas was not Deliberately Indifferent to a Known Risk of 10 Harm, and Plaintiff has no Personal Knowledge or Evidence to the Contrary 11 Second, Defendant argues that defendant Mascarenas was not deliberately indifferent to 12 a known risk of harm to Plaintiff, and Plaintiff has no evidence to the contrary. In the Second 13 Amended Complaint, Plaintiff alleges that his assigned Correctional Counselor, defendant 14 Mascarenas, put false information on Plaintiff’s chrono, stating that Plaintiff has previously been 15 housed on a Sensitive Needs Yard (SNY). Because of the false information, Plaintiff claims that 16 he was labeled a “snitch” and physically and emotionally assaulted by other inmates. But 17 Counselor Mascarenas reviewed the confidential section of Plaintiff’s central file and found 18 information indicating that Plaintiff sought placement in the SNY while at High Desert State 19 Prison, and Mascarenas properly documented this information on the 128-G chrono. Moreover, 20 Plaintiff’s grievance states that the chrono was accidentally provided to another inmate, and was 21 not done intentionally. Defendant concludes that for these reasons, Plaintiff’s Eighth 22 Amendment claim fails. 23 1. Plaintiff was not housed under conditions posing a substantial risk of 24 harm 25 On June 2, 2015, Plaintiff submitted a grievance claiming that he received his 26 classification chrono through institutional mail. Plaintiff alleged that the chrono contained errors, 27 including that he had been housed on SNY between 2002 and 2005. Plaintiff claimed that he 28 had rescinded his SNY status in 2013. In the grievance, Plaintiff requested single cell status, 1 claiming the erroneous information placed him at a “greater risk of injury or death.” However, 2 Plaintiff did not claim in the grievance that he had been assaulted by other inmates. 3 In the Second Amended Complaint, Plaintiff claims that he was assaulted by other 4 inmates while participating in yard, but Plaintiff’s segregation record shows that he refused to go 5 to yard during this time period. Moreover, as indicated by the classification committee, Plaintiff 6 was being retained on single cell status until the issue of Plaintiff’s SNY status could be 7 investigated. Defendant argues that the undisputed evidence establishes that Plaintiff was housed 8 under conditions meant to reinforce his need for safety, rather than under conditions posing an 9 excessive risk to Plaintiff’s safety. 10 2. Defendant Mascarenas was not Deliberately Indifferent to Plaintiff’s 11 Safety 12 Defendant Mascarenas shows evidence that she did not label Plaintiff a “snitch” or spread 13 a rumor that put Plaintiff at risk of assault by other inmates. Plaintiff’s form 128-G chrono made 14 no reference to any such information. Instead, defendant Mascarenas wrote that Plaintiff was 15 housed on the SNY before his release on parole, a fact that is recorded on several documents 16 contained in Plaintiff’s central file. This statement does not suggest in any way that Plaintiff has 17 acted as a “snitch.” 18 Plaintiff has not alleged facts that defendant Mascarenas was personally aware of any risk 19 of harm against him. Nor has Plaintiff shown that he was under any specific risk of harm after 20 his initial classification committee hearing. Although Plaintiff may have been afraid, he lacks 21 evidence that defendant Mascarenas knew about any specific ongoing threat to his safety and did 22 nothing about it. Under these facts, Plaintiff has not shown that defendant Mascarenas failed to 23 protect him in violation of the Eighth Amendment. 24 C. Defendant has Met her Burden 25 Based on Defendant’s arguments and evidence, the court finds that Defendant has met 26 her burden of demonstrating that she did not act with deliberate indifference to a substantial risk 27 of serious harm to Plaintiff. Therefore, the burden now shifts to Plaintiff to produce evidence of 28 a genuine material fact in dispute that would affect the final determination in this case. 1 VII. PLAINTIFF’S STATEMENT OF FACTS (SOF)5 2 Plaintiff submitted the following facts in support of his opposition to Defendant’s motion 3 for summary judgment. (ECF No. 76 at 5-6.)6 4 1. Plaintiff is a state prisoner. On September 13, 2912, while at High Desert State 5 Prison (HDSP), Plaintiff was transferred to California State Prison – Corcoran, 6 Security Housing Unit, to serve a 48 month SHU term. 7 2. Plaintiff was paroled from Donovan State Prison – San Diego on July 24, 2014. 8 Plaintiff was returned to custody on March 5, 2015 to California Institute of Men 9 – Chino (CIM). While there, it was decided for Plaintiff to return to Corcoran– 10 SHU to resume serving the remainder of his SHU term. 11 3. Plaintiff was transferred to Corcoran-SHU on April 1, 2015, to complete his SHU 12 term. On May 5, 2015, an Institutional Classification Committee (ICC) hearing 13 was held. Being that Plaintiff had no prior notification of this hearing, it was held 14 in absentia. 15 4. It was at this hearing that Defendant introduced/presented false information about 16 Plaintiff to Committee Members. This false information, now entered into 17 Plaintiff’s Central File (C-File), was then printed out on a Form 128-G 18 Classification Chrono. 19 5. This chrono was later hand delivered to another inmate with verbal instruction(s) 20 to “pass it around” by a staff member who was later identified by two (2) Housing 21 Unit Officers, the officer who worked in the Housing Unit Tower, as well as the 22 inmate who was given the Chrono, as Defendant, Counselor G. Mascarenas. 23 /// 24

25 5 The facts reproduced here are from Plaintiff’s Statement of Facts. (ECF No. 76 at 5-6.) Plaintiff 26 has not submitted an appropriate Statement of Undisputed Facts, as required by Local Rule 260(b). However, as indicated above at fn.3, the court shall strive to resolve Defendant’s motion for summary judgment on the merits. 27 6 All page numbers cited herein are those assigned by the court’s CM/ECF system and are not 28 based on the parties’ pagination of their briefing materials. 1 6. This document was then passed around the whole Housing Unit, to all white G.P. 2 inmates. From that time until the present, Plaintiff has suffered various forms of 3 physical assaults, verbal abuses, as well as both physical and psychological injury. 4 7. Plaintiff did file a CDCR Form 602 Inmate Appeal Grievance Form on June 2, 5 2015. This appeal was “denied” at all three levels of response. 6 VIII. PLAINTIFF’S ARGUMENTS 7 Plaintiff argues that Defendant G. Mascarenas failed to protect Plaintiff from harm, in 8 violation of the Eighth Amendment. Plaintiff’s evidence includes Plaintiff’s allegations in the 9 Second Amended Complaint; the Notice of Classification Hearing dated April 29, 2015; 10 Plaintiff’s 602 Inmate Appeal Grievance log number CSPC-6-15-3064, filed on June 2, 2015; 11 Classification Committee Chronos; Plaintiff’s Declarations; Correspondence; and documents 12 from Plaintiff’s prison central file. 13 A. Plaintiff did not receive prior notice of ICC Hearing from Defendant G. 14 Mascarenas, his assigned CCI 15 Plaintiff argues that he did not receive prior notice of the May 5, 2015 ICC Hearing from 16 Defendant Mascarenas. In support of this argument, Plaintiff refers to the Notice of 17 Classification Hearing dated April 29, 2015, which was filed as Exhibit A in Defendant 18 Mascarenas’ Statement of Undisputed Facts and shows that none of the boxes normally attributed 19 to the inmate in question are marked --“Inmate waives right to appear in person;” and “Inmate 20 waives right to 72 hour notification” – and Plaintiff’s signature is missing. 21 Plaintiff also alleges in the Second Amended Complaint that a female staff member came 22 to his cell door who he mistakenly thought was a psych-tech, and Plaintiff told her, “I’m fine and 23 didn’t need to see anyone,” after which she responded, “Oh, yeah?” and walked away. The form 24 dated April 29, 2015, a full 48 hours before the Committee Hearing, gives the appearance that a 25 conversation had taken place, but Plaintiff states that there was never any mention of an 26 upcoming Committee Hearing. 27 /// 28 /// 1 B. Defendant presented false facts to Committee members and on the CDCR 2 Form 128-G about Plaintiff 3 Plaintiff argues that Defendant Mascarenas presented false facts to the Committee 4 members and on the Form 128-G about Plaintiff. In support of this argument, Plaintiff states that 5 Defendant admits in Defendant’s Statement of Undisputed Facts (SUF), that she was the CCI 6 who presented the information at Timberland’s initial SHU Classification Committee Hearing 7 held on May 5, 2015. In another of Defendant’s DUFs, Defendant states that the information on 8 the 128-G form regarding Timberlake’s history on the SNY is accurate information that she 9 obtained from Plaintiff’s central file. 10 But Plaintiff notes the following: 11 1) ICC notes state that Plaintiff was on SNY status prior to parole. Plaintiff was 12 formerly on SNY status from 2002-2005, but on March 11, 2015, form 128-B, Plaintiff states 13 that he is G.P. Plaintiff argues that the ICC action on March 11, 2015 does not address his prior 14 SNY placement and there is no current documentation since he is still requesting SNY 15 placement. ICC elects to place Plaintiff on single cell status pending review. 16 2) While Defendant Mascarenas insists the information is accurate information 17 obtained from Plaintiff’s Central File, none of the other documents, exhibits, or statements 18 mention that Plaintiff was “SNY from 2002-2005.” 19 3) Three of Defendant’s documents in the DUF – Inmate Segregation Profile dated 20 9/13/12, 7/7/14, and 3/5/15 – show under the heading “Safety Concerns”: “9-13-12 CSP-COR 21 wants SNY.” The 9-13-12 document should have said Plaintiff “wants information about SNY.” 22 Plaintiff did ask the R&R Officer for information about SNY status when he arrived at CSP-COR 23 SHU on 9-13-12. 24 4) Plaintiff did not accept SNY status until April 26, 2017 when at ICC, committee 25 members notified him that “You can no longer be housed on a G.P. yard, due to confirmed death 26 threats from STG Aryan Brotherhood and their sympathizers. Plaintiff’s SMF, exhibits. 27 5) The threats only came about as a direct result of Defendant Mascarenas’ actions 28 printing false facts on the 128-G form and giving this to another inmate to “pass around.” 1 6) Defendant states on DUF #15 that she reviewed the confidential section of 2 plaintiff’s central file and found information indicating that plaintiff sought placement on SNY 3 while housed at High Desert State Prion and properly documented this information on the Form 4 128-G. Yet Defendant provides documentation which clearly shows that plaintiff 5 “arrived/received from another facility at HDSP on April 17, 2012” and “transferred to another 6 facility – CSP-COR) on September 13, 2012” (DMPA, Ex. A, External Movements Summary, 7 pg. 205 or 786.) If it were true that plaintiff sought SNY placement while at HDSP, it would 8 have occurred during those dates in 2012, not from 2002-2005 as she presented on the 128-G. 9 C. Defendant G. Mascarenas Personally Participated in giving Plaintiff’s 128-G 10 Chrono to another inmate 11 Plaintiff argues that Defendant Mascarenas personally participated in giving Plaintiff’s 12 128-G chrono to another inmate. In support of this argument, Plaintiff notes: 13 On May 11, 2015, plaintiff received his copy of ICC chrono 128-G dated April 29, 2015 14 and May 5, 2015 from 3rd watch Floor Officer Tabarez who stated: “I just got this from the guy 15 in cell 110. He said a female counselor gave it to him last week, at least he gave it back.” 16 While at yard the next day, Plaintiff talked to the inmate in cell 110, known as “Baby 17 Boy,” who stated, “Yeah, some female counselor gave that to me last week and told me to pass 18 it around. You shouldn’t be working for the police and snitching on people.” (P’s SMF, Ex.) 19 Defendant explains that she was not plaintiff’s assigned counselor and did not work in 20 Plaintiff’s building. (DUF #29.) Defendant’s custom was to provide an inmate with a copy of 21 the 128-G only if the chrono was requested by the inmate. (Id.) She did not send the inmate’s 22 chrono 128-G through institutional mail. (Id.) CCI Mascarenas did not receive a request from 23 inmate Timberland for a copy of his 128-G, so she did not provide one. (DUF #32.) 24 Plaintiff agrees that he was not present at the hearing on May 5, 2015, and did not request 25 a copy of his 128-G, as he was not aware of its existence, nor that a hearing was held until he 26 received the copy from Officer Tabarez on May 11, 2015. 27 /// 28 /// 1 Plaintiff argues that there are discrepancies in Defendant’s own statements: 2 1) Defendant would have had to be present in Plaintiff’s housing unit if it were true 3 that she gave notice of the hearing to plaintiff on May 1, 2015. 4 2) If Defendant did not utilize institutional mail to provide requested copies of 128- 5 Gs, the only means left is to do so in person. 6 In the video deposition conducted by Defendant’s counsel on September 25, 2019, while 7 Plaintiff was residing at CCI-Tehachapi, counsel revealed that he [Plaintiff] had declarations 8 from 2nd and 3rd watch Floor Officers Tabarez, Aldaco, the Town Officer Malin, and inmate 9 “Baby Boy,” who all identified Defendant Mascarenas as the counselor who gave the 128-G to 10 the inmate residing in cell 110, Baby Boy. Plaintiff explained that during one of his many 11 transfers since being released from the SHU on April 26, 2017, the box of property that contained 12 the declarations, as well as other legal documents, research papers, and copies pertaining to this 13 case, was lost in transit. Plaintiff further explained that he was having great difficulty receiving 14 requested information as to where these officers were now employed, and information about 15 Baby Boy, if he was still an inmate and where he is housed. These requests were denied as 16 having safety and security issues. Plaintiff believes that this conversation was on the record. 17 Off the record was a conversation wherein Plaintiff asked about the discovery request he 18 had submitted and had not received any responses. Several times Plaintiff requested a copy of 19 the transcript from the video deposition, along with Trust Withdrawals requests to cover the cost 20 of copies, even with no funds in his account. To date, Plaintiff has received nothing in this regard. 21 Plaintiff will address this situation by a separate motion to expand discovery. 22 D. Defendant G. Mascarenas was Deliberately Indifferent to the Known Risk of 23 Harm to Plaintiff 24 Plaintiff argues that Defendant Mascarenas was deliberately indifferent to the known risk 25 of harm to Plaintiff. In support of this argument, Plaintiff offers the following: 26 Defendant admits that she “received training in the safety and protection of prisoners 27 during my time at the academy in 1999, and has received annual training on the subject every 28 year since I graduated from the academy. In addition, while working for CDCR, I have received 1 on the job training dealing with the protection of staff, inmates, and the institution.” (Defendant’s 2 Response to Interrogatory No. 3.) 3 Defendant admits that “the General Population inmates and inmates on the SNY are kept 4 separated for the safety and security of the institution.” (Defendant’s Response to Request for 5 Admission No. 1.) 6 It was common knowledge among inmates and staff members alike that General 7 Population inmates viewed SNY inmates, formerly known as “PC’s” (Protective Custody) as 8 child molesters, rapists, snitches or rats, inmate copy or task force and as such, they targeted SNY 9 inmates for assault and/or death. 10 General Population inmates were also of the opinion that it was a practice of CDCR to 11 place those SNY inmates who agreed to on G.P. yards, to work as undercover agents or 12 confidential informants, in order to gather evidence of crimes committed or going to be 13 committed, and then “debrief” to CDCR officials who then used this information in the process 14 known as “validating” – gang members would then be given indeterminate SHU terms while also 15 facing possible prosecution for those crimes committed. 16 Among G.P. inmates, there was also the knowledge that some staff members would use 17 a practice known as “smutting up” an inmate. The usual means would be to file false information 18 and enter this false information into that inmate’s personal central file. 19 Another way to use one inmate against another would be to let slip some damaging 20 information about an inmate or group of inmates, thereby putting that inmate or group of inmates 21 at risk of being assaulted or killed. 22 Crime reports and publications7 are available to anyone with a desire to understand, along 23 with reports about High Desert State Prison and CCI-Tehachapi that recognize these various 24 ways that certain CDCR staff utilize to place inmates in positions to be subjected to acts of 25 violence, assault, and death. 26 /// 27

28 7 Here, Plaintiff inserted a list of publications and news sources. 1 Plaintiff’s charge that resulted in his SHU term, Conspiracy to Murder a Peace Officer, 2 immediately placed him in a position of constant reprisal from those CDCR staff members who 3 chose to engage in these actions with impunity. Even though the charge was untrue, Plaintiff 4 could understand the situation for what it was. Plaintiff’s attitude at that time was to “take his 5 lumps,” as these actions involved no other inmates and were directed only at him, with no 6 physical injuries involved. Plaintiff may have suffered smaller food portions, too small or large 7 laundry, short sheets, towels with holes, missed showers or yard. These would eventually cease, 8 as staff members would see how Plaintiff would not react. 9 From 2012 to 2017, Plaintiff understood that the environment at COR SHU included 10 many unprecedented events underway, especially during the dates mentioned in his complaint, 11 April 2015 through April 2016. During that period of Plaintiff’s confinement, both G.P. and 12 SNY inmates were often housed at the same housing units, but in separate cells. This provided 13 ample opportunity for those inmates who decided to participate in such behavior, to “gas,” 14 “spear,” use homemade bows and arrows, and spit upon other inmates, such as Plaintiff, usually 15 when outside of the cells, going to medical, going to yard, or going to various appointments. 16 Correctional Officers were also subjected to these kinds of assaults and suffered physical 17 injuries as well. During this period, inmates of both designations would often use homemade 18 hand-cuff keys to escape their cuffs and assault other inmates, as well as staff/officers of CDCR. 19 Those same opportunities were available for participating inmates who chose to utilize yard 20 privileges, those cell-sized cages inmates commonly refer to as “Kennels.” These violent and 21 dangerous surroundings were at that time commonplace. It should also be noted that this was 22 taking place shortly after the statewide hunger strikes that all G.P. inmates were required to 23 participate in, per instructions from inmate “shot callers,” those inmates involved in prison 24 politics who directed other inmates to act as required to stay in good standing with other inmates. 25 Until the 128-G containing the false and highly incendiary information was passed 26 around, Plaintiff had been in good standing with the other G.P. inmates and had participated in 27 both of the statewide hunger strikes, the latter in 2013 before his parole in 2014. 28 /// 1 The types of actions described above would later provide the impetus for CDCR officials 2 to institute various statewide changes in policy and procedures affecting SHU programs at 3 various prisons, including CSP-Corcoran. There were changes in the process known as 4 “validating,” which was used to identify various inmates as members of any particular prison 5 gangs, and the newly-named “Security Threat Groups,” especially the use of confidential 6 informants and their “information.” Included in these changes was the way those inmates 7 identified as having mental health issues and/or diagnoses would be housed, especially while in 8 the ASU or SHU. By the time plaintiff arrived back at CSP-COR on April 1, 2015, both the 9 short-term and long-term Restricted Housing Programs had been instituted. These various 10 changes were not implemented, however, until after the Mental Health Department and SHU 11 Programs were placed under Federal Receivership by federal courts who recognized the various 12 violations of inmates’ federally protected rights on a daily basis. 13 IX. ANALYSIS 14 To prove Plaintiff’s claim that defendant Mascarenas failed to protect Plaintiff in 15 violation of the Eighth Amendment, Plaintiff must provide evidence that Defendant, acting with 16 deliberate indifference, exposed him to a substantial risk of serious harm to his future health. 17 Farmer, 511 U.S. at 843 (citing Helling, 509 U.S. at 35). The deliberate indifference standard 18 involves both an objective and a subjective prong. First, the alleged deprivation must be, in 19 objective terms, “sufficiently serious.” Id. at 834. Second, subjectively, the prison official must 20 “know of and disregard an excessive risk to inmate health or safety.” Id. at 837; Anderson, 45 21 F.3d at 1313. 22 A. Sufficiently Serious Deprivation 23 Extreme deprivations are required to make out a conditions of confinement claim, and 24 only those deprivations denying the minimal civilized measure of life’s necessities are 25 sufficiently grave to form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; 26 Hudson v. McMillian, 503 U.S. 1, 9 (1992). The circumstances, nature, and duration of the 27 deprivations are critical in determining whether the conditions complained of are grave enough 28 to form the basis of a viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 1 (9th Cir. 2000). To support a failure to protect claim, a plaintiff first must “‘objectively show 2 that he was deprived of something “sufficiently serious”.’” Lemire v. Cal. Dep’t of Corrections 3 & Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013) (quoting Foster v. Runnels, 554 F.3d 807, 4 812 (9th Cir. 2009); Farmer, 511 U.S. at 834). For a claim (like the one here) based on a failure 5 to prevent harm, the inmate must show that he is incarcerated under conditions posing a 6 substantial risk of serious harm. See Helling, 509 U.S. at 35. 7 The Ninth Circuit has recognized that deliberately spreading a rumor that a prisoner is 8 a snitch may state a claim for violation of the right to be protected from violence while in state 9 custody. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). A plaintiff need not 10 show that he was actually threatened or physically injured by inmates on account of 11 being labeled a “snitch.” Id. at 1139. The Supreme Court has rejected the notion that the Eighth 12 Amendment does not reach official conduct that “is sure or very likely to cause” serious injury 13 at the hands of other inmates. Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 14 L.Ed.2d 22 (1993). Moreover, an inmate does not have to wait until he is actually assaulted 15 before obtaining relief. Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980). 16 Discussion 17 In the Second Amended Complaint, Plaintiff alleges that he suffered physical injury and 18 emotional distress because of false information written in his Classification Chrono. 19 “Plaintiff suffered physical injury on numerous occasions - being spit on; being 20 ‘gassed,’ the practice of throwing feces, urine or a mixture of both, on him; and 21 being the target of homemade ‘darts’ and ‘arrows’ using blowguns and bows, 22 these being ‘dipped’ in feces and or urine designed to cause illness and infection. 23 . . . Upon plaintiff’s release from the SHU on April 26, 2017, he was informed 24 that he could no longer be housed on any G.P. yard, due to confirmed death threats 25 from other inmates.” 26 (Second Amended Complaint (SAC), ECF No. 26 at 14-15.) 27 /// 28 /// 1 Plaintiff also declared under penalty of perjury: 2 “A white inmate unknown to me, in a wheelchair cage next to mine attempted to 3 ‘spray’ me with the contents of his colonoscopy bag utilizing the attached hose. 4 Some of the contents did splash on my legs, shoes, hands and face, My jumpsuit 5 was soaked. I immediately ran to the sink and attempted to rinse myself off. I 6 also puked up my breakfast and continued to retch as the stench was so 7 overpowering I could not breathe . . . The inmate called to me, ‘Hey you snitching 8 asshole, there’s some shit for a piece of shit. Your counselor gave you up, 9 fuckboy. That’s what you get for working with the cops?’” (Pltf’s Decl. ECF 10 No. 76 at 60.) 11 In addition, Plaintiff discusses how damaging information can spread from one inmate to 12 another in prison placing inmates in danger of assault, usually when they are outside of cells, 13 going to medical, going to yard, or going to various appointments. (ECF No. 76 at 16.) 14 Defendant has admitted that “the General Population inmates and inmates on the SNY are kept 15 separated for the safety and security of the institution.” (Deft’s response to Pltf’s Request for 16 Admission #1.) 17 Defendant argues that Plaintiff was not at substantial risk of harm because Plaintiff 18 “claimed that he was receiving death threats from both general population and SNY inmates, 19 even though he was housed in the SHU where inmates are confined to their cells and not allowed 20 on either the general population or SNY.” (DUF #23.) Defendant also provides evidence that 21 Plaintiff refused to go out to yard after the May 15, 2015 hearing, whereas Plaintiff’s provides 22 evidence of his personal experience being harassed and assaulted by other inmates. 23 Even assuming without deciding that the parties’ dispute poses a triable issued of fact, 24 the court finds that Plaintiff’s failure to satisfy the remaining elements of a failure-to-protect 25 claim, discussed below, entitle Defendant to summary judgment. 26 B. Personal Participation 27 Under section 1983, Plaintiff must demonstrate that each defendant personally 28 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) 1 (emphasis added). Plaintiff must demonstrate that Defendant Mascarenas, through her own 2 individual actions, violated Plaintiff’s constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 676- 3 77 (2009). 4 Here, Plaintiff has not proven that that defendant Counselor Mascarenas personally 5 participated in the alleged conduct that violated Plaintiff’s rights. 6 The parties do not dispute the following: During the relevant time period, Plaintiff was 7 a state prisoner incarcerated at Corcoran State Prison (CSP) and defendant Mascarenas was 8 employed there as a correctional counselor. (DUF #1, 2; ECF No. 27, ¶ D; Deft’s Exhibit A (DX 9 A), Attachment 1, Decl. of B. Hancock and documents from Timberland’s central file, p. 5-6; 10 ECF No. 27, ¶ e.) (SAC, ECF No. 26 at 2:5-9, 13-14, 24-25.) Plaintiff arrived at CSP on April 11 1, 2015 and was placed into the Security Housing Unit. (DUF #8; Deft’s Exhibit A, ECF No. 12 51-4 at 6 (DX-A 005) – Plaintiff’s movement summary.) (SAC at 7:18-19.) On May 5, 2015, an 13 ICC8 hearing was held at CSP, which Plaintiff did not attend.9 (DUF #9, 13; DX A at 2:25-26, 14 3:9-10.) (SAC at 7:26-28, 8:7-8.) Defendant Mascarenas appeared at the hearing and presented 15 information about plaintiff to the committee members, via a Form 128-G chrono. (DUF # 11, 16 12.) (SAC at 8:12-15, 9:3-9.) A decision was made that Plaintiff would remain on single cell 17 status until his housing cell status could be further reviewed, and he could be returned to the ICC 18 to address his cell placement. (DUF #18.). 19 Defendant Mascarenas declared, “I was the CCI who presented information for inmate 20 Timberland’s Initial SHU Classification Committee hearing held on May 5, 2015.” (Mascarenas 21 Declaration, Exh. B, ¶ 8.) 22 On the Form 128-G, Counselor Mascarenas noted under “Committee Comments” that 23 Timberland “was housed on a Sensitive Needs Yard (SNY) facility from 2002 to 2005. DUF 24 #14.) 25

26 8 Institutional Classification Committee. 27 9 The parties dispute whether Plaintiff was notified about the hearing ahead of time and refused 28 to attend. (DUF #9.) This is not a material dispute of fact. The relevant fact is that Plaintiff did not attend the hearing, which is not in dispute. 1 The 128-G chrono stated as follows. 2 “ICC notes S was SNY status prior to parole. Upon review of SOMS, S was 3 housed on an SNY from 2002-2005. Per 128-B 3-11-15, S States he is G.P. and 4 his safety issues were exclusive to HDSP. ICC action dated 3-11-15 does not 5 address prior SNY placement and there is no current documentation since current 6 term documenting is still requesting SNY placement. ICC elects to place S on 7 single cell status pending cell-review and to return to ICC to address cell 8 placement.” 9 (DUF, ECF. No. 51-4, Exh. A at 23-24, DX-A 25-26; Classification Committee chrono dated 5- 10 5-15, heading: cell review.) (ECF No. 76, Exh. B at 31-32; see pg. 28 (B) – Plaintiff identifies 11 this Classification Committee Chrono as the 128-G at issue.) 12 Plaintiff presents no admissible evidence that defendant Mascarenas purposely submitted 13 false information to the committee, and Defendant denies that she did. 14 “The information in the 128-G regarding inmate Timberland’s history on the SNY 15 is accurate information that I obtained from his Central File.” 16 (DUF #15; Mascarenas Declaration, Exh. B, ECF No. 51-5 at 3 ¶ 8.) 17 The parties dispute whether Counselor Mascarenas gave a copy of Plaintiff’s 128-G 18 chrono to another inmate, which Plaintiff alleges placed him at risk of harm. Plaintiff has no 19 admissible evidence that identifies Counselor Mascarenas as the person Plaintiff alleges gave a 20 copy Plaintiff’s 128-G chrono to another inmate. In fact, there is no evidence that Defendant 21 gave a copy of the 128-G to Plaintiff or any other inmate. Defendant declares: 22 “During my time as a Correctional Counselor I in the Security Housing Unit, it 23 was my custom and practice to provide an inmate with a copy of the CDCR Form 24 128-G if it was requested by the inmate.” (Mascarenas Decl., ECF No. 51-5 ¶ 25 12.) It was not my practice to send the inmate’s 128-G through institutional 26 mail.” (Id. ¶ 13.) “I did not receive a request [from] inmate Timberland for a 27 copy of his 128-G, and therefore, as was my practice, I did not provide inmate 28 /// 1 Timberland with a copy [of] that document.” (Id. ¶ 16.) I did not give any other 2 inmate a copy of inmate Timberland’s 128-G. (Id. ¶ 17.) 3 Plaintiff declared that Officer Tavarez, the officer who gave Plaintiff the envelope 4 containing Plaintiff’s 128-G form, only identified the person who gave Plaintiff’s document to 5 another inmate as a “counselor.” 6 “On May 11, 2015, 4B4R, 3rd Watch Unit ‘Floor’ Officer Tavarez, while passing 7 out inmate mail, stopped in front of my cell door #01, and slid an envelope under 8 my cell door, stating, ‘Hey the guy in #10 gave this to me.’ He said one of the 9 counselors gave it to him last week. Officer Tabarez then walked away. I opened 10 the envelope, which had my name and cell number on it, and started reading the 11 enclosed document. I realized that this was a ‘128-G’ – ‘Classification Committee 12 Chrono’ (C.C.C.), which is received after attending an Institution Classification 13 Committee Hearing. (I.C.C.H.)” (Plaintiff’s Decl. ECF No. 76 at 58.) 14 Plaintiff asserts that the inmate in cell #10, who said an individual had given him 15 Plaintiff’s mail, only identified the person as a “female counselor.” 16 “On June 1, 2015 plaintiff contacted the black inmate residing in cell #10, known to 17 myself as ‘Baby Boy,’ a validated gang member, asking him exactly when he had received the 18 document (C.C.C.) containing information about the Initial ICC Hearing held on May 5, 2015. 19 He responded, ‘Look here dude, some female counselor shot this under my door a week or so 20 ago. She told me that I should probably pass this around. . . Hey, I won’t lie I read it and was 21 like wow. Sorry man – you know I had to shoot that to your people. If that’s true – you shouldn’t 22 be snitchin’ on folks, you know?’” (Pltf’s Decl., ECF No. 76 at 62.) Thus, according to Plaintiff’s 23 declaration, “Baby Boy” identified the counselor as a female counselor, but importantly did not 24 identify her as defendant Mascarenas. 25 Plaintiff admitted in his deposition that there was more than one female counselor at CSP 26 and that he had never met defendant Mascarenas. (DUF #27, DX C at 39:16-20.) 27 In his opposition to the motion for summary judgment, Plaintiff claims that he had 28 declarations from the following: 2nd and 3rd watch Floor Officers Tabarez, Aldaco, and the 1 Town officer Malin, as well as the inmate known as “Baby Boy,” whom all identified defendant 2 Mascarenas as the counselor who gave the 128-G to the inmate residing in cell 110, Baby Boy. 3 However, during one of his many transfers since being released from the SHU on April 26, 2017, 4 the box of property that contained the declarations, as well as other legal documents were lost in 5 transit. Plaintiff claims that he has been unable to obtain information as to where these officers 6 are now employed, and information about whether Baby Boy is still an inmate and where he can 7 be located. (ECF No. 76 at 12:5-13.) 8 Plaintiff now claims that because Defendant Mascarenas’ name was on the chrono, he 9 assumed that she was the Counselor who gave the 128-G to another inmate. (DUF #28, DX C. 10 at 39:4-7.) 11 In sum, Plaintiff provides only speculation and hearsay evidence in support of his 12 argument that defendant Mascarenas personally participated in the alleged conduct that placed 13 Plaintiff at risk of harm. There is no admissible evidence that defendant Mascarenas was the 14 person who intentionally placed allegedly false information on Plaintiff’s 128-G form, or gave 15 Plaintiff’s 128-G form to another inmate with instructions to pass it around. 16 C. Aware of a Substantial Risk of Serious Harm 17 A prison official does not act in a deliberately indifferent manner unless the official 18 “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 834 19 (1994) (emphasis added). The “official must both be aware of facts from which the inference 20 could be drawn that a substantial risk of serious harm exists, and he must also draw that 21 inference.” Id. at 837 (emphasis added). 22 Plaintiff recognized the significance of the information on the 128-G stating that he had 23 been a SNY inmate: 24 “I quickly understood that the fraudulent information this document contained 25 about myself could/would cause a potentially dangerous situation to be put forth 26 among the inmate population and my standing or reputation with them. This 27 proved to be insanely true as the days and months progressed.” 28 (Pltf’s Decl., ECF No. 76 at 59.) 1 Plaintiff alleges that it was common knowledge among inmates and staff members alike 2 that General Population inmates viewed SNY inmates, formerly known as “PC’s” (Protective 3 Custody) as child molesters, rapists, snitches, or rats, inmate cops and as such they targeted SNY 4 inmates for assault and/or death, (ECF No. 76 at 14:1-6), and Defendant admitted, “The General 5 Population inmates and inmates on the SNY are kept separated for the safety and security of the 6 institution.” (Deft’s response to Pltf’s Request for Admission #1.) However, Plaintiff provides 7 no evidence that Defendant Mascarenas was aware that he was at risk of harm because his 128- 8 G chrono had been shared with another inmate. 9 D. Acted Unreasonably or With Deliberate Indifference 10 To act with deliberate indifference, a prison official must subjectively “know of and 11 disregard an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837; Anderson, 45 12 F.3d at 1313. Conversely, an official who knows of a substantial risk of harm to an inmate’s 13 health or safety but acts reasonably under the circumstances will not be held liable under the 14 cruel and unusual punishment clause, even if the threatened harm results. See Farmer, 511 U.S. 15 at 843. 16 Discussion 17 There is no evidence that Defendant Mascarenas possessed the state of mind necessary to 18 support a claim for deliberate indifference. Plaintiff has admitted that he never met defendant 19 Mascarenas, (DUF #27, DX C, Deposition, ECF No. 51-6 at 3:11-13); that he only assumed that 20 defendant Mascarenas had a problem with him because of what he speculated that defendant 21 Mascarenas had done, (Id. at 5:8-11); and that he thought defendant Mascarenas was the 22 counselor who acted against him because “[s]he’s the one whose signature or whose name is set 23 on the 128-G (Id. at 5:4-7). 24 There is also no indication in defendant Mascarenas’ description of her duties, customs, 25 and practices in performing her job that she harbored any feelings against Plaintiff or had any 26 reason to disregard a known excessive risk of harm to Plaintiff. (Mascarenas Decl., ECF No. 51- 27 5 ¶ 12, 13, 16, 17.) 28 /// 1 Thus, Plaintiff has not presented any evidence that defendant Mascarenas acted 2 unreasonably or with deliberate indifference against him. 3 E. Caused Harm 4 To state a deliberate indifference claim, a causal relationship between Defendants’ acts 5 and Plaintiff’s alleged damages must be shown. Based on the foregoing conclusions that Plaintiff 6 has not proven that Defendant personally acted against him, knew that he was at risk of harm, or 7 acted with deliberate indifference against him, the court finds no evidence that Defendant caused 8 harm to Plaintiff. 9 X. QUALIFIED IMMUNITY 10 Defendant argues that she is entitled to immunity for any of her conduct found to violate 11 Plaintiff’s rights in this case. “Qualified immunity shields government officials from civil 12 damages liability unless the official violated a statutory or constitutional right that was clearly 13 established at the time of the challenged conduct.” Taylor v. Barkes, 575 U.S. 822, ---, 135 S.Ct. 14 2042, 2044 (June 1, 2015) quoting Reichle v. Howards, 566 U. S. 658, 132 S.Ct. 2088, 2093 15 (2012). Qualified immunity analysis requires two prongs of inquiry: “(1) whether ‘the facts 16 alleged show the official’s conduct violated a constitutional right; and (2) if so, whether the right 17 was clearly established’ as of the date of the involved events ‘in light of the specific context of 18 the case.’” Tarabochia v. Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014) quoting Robinson v. 19 York, 566 F.3d 817, 821 (9th Cir. 2009). 20 As discussed above, the court has found that Defendant did not violate Plaintiff’s 21 constitutional rights and that Defendant is entitled to summary judgment. Therefore, the issue of 22 qualified immunity shall not be addressed. 23 XI. CONCLUSION AND RECOMMENDATIONS 24 Defendant has submitted evidence that she did not act with deliberate indifference against 25 Plaintiff in violation of the Eighth Amendment, and Plaintiff has not produced admissible 26 evidence in response that creates a disputed issue of material fact. Accordingly, defendant 27 Mascarenas is entitled to judgment on Plaintiff’s Eighth Amendment claim against her, and 28 Defendant’s motion for summary judgment, filed on January 6, 2020, should be granted. 1 Therefore, IT IS HEREBY RECOMMENDED that: 2 1. Defendant’s motion for summary judgment, filed on January 6, 2020, be 3 GRANTED; and 4 2. Summary judgment be entered in favor of Defendant, closing this case. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 7 (14) days from the date of service of these findings and recommendations, any party may file 8 written objections with the court. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 10 and filed within ten (10) days after the date the objections are filed. The parties are advised that 11 failure to file objections within the specified time may result in the waiver of rights on appeal. 12 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 13 1391, 1394 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15

16 Dated: December 16, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17

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