Serna v. Madden

Opinion

1 2 3 4 5 6 7 10 11 ALFRED DAVID SERNA, Case No.: 3:22-CV-00841-JES-DEB CDCR #E-25219, 12 ORDER GRANTING DEFENDANTS’ Plaintiff, JUDGMENT PURSUANT TO 14 FEDERAL RULES OF CIVIL

15 PROCEDURE 56 vs. 16

17 [ECF No. 31]

18 ESCOBAR, Correctional Officer; 19 C. LOPEZ, Correctional Officer; 20 FRANZ, Correctional Officer, 21 Defendants. 22 23 24 Plaintiff Alfred David Serna (“Plaintiff” or “Serna”), an inmate housed at the 25 Richard J. Donovan Correctional Facility (“RJD”), filed this civil rights action pursuant 26 to 42 U.S.C. § 1983 alleging that Defendants were deliberately indifferent to a serious 27 28 1 threat to Serna’s safety in violation of his Eighth Amendment rights. See generally ECF 2 No. 1, Compl.1 3 Before the Court is Defendants Escobar, Lopez, and Franz’s Motion for Summary 4 Judgment. See ECF No. 31. Plaintiff filed an Opposition to Defendants’ Motion, see ECF 5 No. 48, and Defendants filed a Reply, see ECF No. 49. 6 Having reviewed the Parties’ submissions and the applicable law, the Court 7 GRANTS Defendants’ Motion for Summary Judgment and DIRECTS the Clerk of the 8 Court to enter judgment in favor of Defendants and to close the case. 10 On June 6, 2022, Plaintiff filed a Complaint under 42 U.S.C. § 1983 alleging that 11 Defendants violated his Eighth Amendment rights when they failed to protect him from 12 an attack from another inmate. See Compl., ECF No. 1 at 3-5. 13 On August 12, 2022, United States District Judge Janis L. Sammartino screened 14 his Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, dismissed his claims 15 against Defendant Madden, and gave him the option to file an amended complaint or 16 proceed on his Eighth Amendment failure to protect claim against the remaining 17 Defendants. See ECF No. 6. Plaintiff notified the Court of his intention to proceed with 18 his Eighth Amendment claim only against Defendants Escobar, Lopez, and Franz and the 19 Court directed U.S. Marshal service pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 20 4(c)(3) as to these named defendants. See ECF Nos. 7, 8. Defendants filed an Answer to 21 the Complaint on November 29, 2022. See ECF No. 15. The matter was transferred to 22 this Court on March 22, 2023. See ECF No. 29. 23 24 25 26 1 Throughout this Order and for ease of consistency and reference, the Court will cite to 27 each document in the record using both the number assigned to the document and the page number automatically generated by its Case Management/Electronic Case File 28 1 On April 3, 2023, Defendants Lopez, Franz, and Escobar (“Defendants”) filed a 2 Motion for Summary Judgment. See ECF No. 31. The Court notified Plaintiff of the 3 requirements for opposing summary judgment pursuant to Rand v. Rowland, 154 F.3d 4 952 (9th Cir. 1998) (en banc). See ECF No. 35. United States Magistrate Judge Daniel E. 5 Butcher granted Plaintiff two extensions of time to file his Opposition which he filed on 6 August 23, 2023. See ECF Nos. 42, 47, 48. Defendants filed their Reply on September 7 18, 2023. See ECF No. 49. 9 A. Plaintiff’s Factual Allegations 10 On April 4, 2022, Serna was assaulted by Inmate Lafita (“Lafita”) “causing stab 11 wounds in face and arm.” Compl. at 3. Both Serna and Lafita were “sprayed in [the] 12 face” causing both to become prone on the floor. Id. One minute later, Lafita “got up and 13 grabbed an ADA chair” and hit Serna five times in the back of the head. Id. 14 Defendant Correctional Officer Escobar (“Escobar”) was in the control booth and 15 was in charge of controlling cell doors and was the “gunner in case a situation gets out of 16 control.” Id. Lafita got up from the floor “after being ordered to get down.” Id. 17 Defendants Correctional Officer Lopez (“Lopez”) and Franz (“Franz”) were floor 18 officers and they both [used their pepper spray] “one time during the first attack” by 19 Lafita and a second time when Lafita “got up [and] walked over to Plaintiff with an ADA 20 metal/plastic chair and repeatedly hit him in the head [and] back.” Id. 21 Plaintiff alleges he would not have been injured “if the gunner [Correctional 22 Officer] Escober” had shot Latifa with at least one shot. Id. at 4. As he was being 23 attacked by Lafita with the chair, Plaintiff alleges Defendants Franz and Lopez “were 24 25 26 2 In this Order, “Defendants” refers collectively to the three defendants who are the 27 subjects of the instant Motion for Summary Judgment—Lopez, Franz, and Escobar—and not other previously dismissed defendants, unless otherwise noted. 28 1 standing [two] feet away and watched” but did not “utilize their side baton, instead they 2 froze until other officers responded.” Id. Plaintiff alleges that all three officers “knew that 3 there was a substantial risk that Plaintiff would be seriously injured” but they “did 4 nothing to stop the attack on Plaintiff.” Id. As a result, Plaintiff has “injuries to eye, head, 5 back, and legs” that still “are affecting Plaintiff daily.” Id. 6 Plaintiff seeks declaratory relief, $500,000 in compensatory damages, $500,000 in 7 punitive damages and other costs “the Court deems just and proper.” Id. at 7. 8 B. Defendants’ Claims and Evidence 9 On April 4, 2022, Serna and Lafita were both housed in Facility C, Housing Unit 10 13 at RJD. See Burns Decl., ECF No. 31-4, Ex. A (hereinafter “Pl.’s Depo.”) at 26:14-22; 11 Escobar Decl., ECF No. 31-5, at ¶ 6. Facility C, Housing Unit 13 is a “two-level 12 building,” which has a “U-shaped dayroom surrounded by approximately 100 cells – 50 13 on each level.” Escobar Decl. at ¶ 2. The dayroom contains three sections, A, B and C, 14 and the control booth is “approximately fifteen feet above the ground, in the middle of 15 the dayroom, facing the dayroom and the surrounding cells.” Id. The control booth “is a 16 secured location and has windows on all three sides so that the control booth officer can 17 observe the entire dayroom.” Id. 18 On this day, Escobar was “assigned to RJD as a control booth officer in Facility C, 19 Housing Unit 13” and there is “only one officer assigned to the control booth at a time.” 20 Id. at ¶¶ 1, 3. His duties included “observing the dayroom and maintaining the safety and 21 security of the institution, the inmates, and the staff.” Id. at ¶ 3. 22 In the middle of the first floor, there is a podium “facing the control booth and 23 flanked by the two sides of the U-shaped dayroom.” Id. at ¶ 2. Immediately in front of the 24 podium is a “table where two floor officers are stationed” and there are “approximately 25 16 cells and one shower on each floor behind the podium.” Id. at ¶ 3. Latifa was assigned 26 to Cell 124 which is on the first floor of Housing Unit 13 and the podium where the floor 27 officers are assigned “is in between Cell 124 and the control booth.” Id. at ¶ 6. 28 1 Lopez and Franz were both “Housing Unit 13 floor officer[s]” whose duties 2 included “monitoring inmate activities and maintaining the safety and security of the 3 institution, inmates, and the staff.” Franz Decl., ECF No. 31-6 at ¶ 3; Lopez Decl., ECF 4 No. 31-7 at ¶ 3. They were the only “two custody staff on the floor in Housing 13” on the 5 day of the attack. Id. at ¶ 6; Id. at ¶ 6. Both officers had “access to two use-of-force 6 options: (1) Oleoresin Capsicum (OC) spray, or pepper spray, with an effective range of 7 between six and twelve feet; and (2) a hand-held baton.” Id. at ¶ 4; Id. at ¶ 4. As the 8 control booth officer, Escobar “had access to three use-of-force options: (1) a Ruger 9 mini-14 rifle; (2) a 40mm launcher; and (3) a large canister of MK-46 OC spray designed 10 for use in large areas only.” Escobar Decl. at ¶ 4. 11 At 9:18 a.m., Serna walked towards Lafita’s cell and arrived at 9:18:17 a.m. See 12 Gaither Decl., ECF NO. 31-8, Ex. A, Video Title HU 13 Podium 1-2022-04-04 (“AVSS 13 Podium 1”). A few seconds later, Lafita exits his cell, appears to physically bump into 14 Serna and starts striking Serna in the head and neck region. See id. 15 Franz, who was standing at the table in front of the podium facing the dayroom, 16 and Lopez, who was sitting at the table in front of the podium, both “heard a scuff on the 17 ground.” Franz Decl. at ¶ 6; Lopez Decl. at ¶ 6. At approximately 9:18 a.m. on April 4, 18 2022, Escobar, Lopez, and Franz “observed inmates Serna and Lafita physically striking 19 each other in front of cell 124.” Escobar Decl. at ¶ 7; Franz Decl. at ¶ 6; Lopez Decl. at ¶ 20 6. 21 Franz and Lopez got up from the table and Franz ordered Serna and Lafita to “Hey, 22 get down.” Gainther Decl., Ex. A., Video Title C 12 FLR 2 CO42013-2022-04-04, 23 Correctional Officer N. Franz Body Warn Camera (“Franz BWC”); C Spare 04 24 CO40004-2022-04-04, (“Lopez BWC”). A “get down” order is a command for inmates to 25 immediately stop fighting and lie on the ground in a prone position.” Franz Decl. at ¶ 9. 26 Lafita assumed a kneeling position over Serna and struck him in the stomach and torso. 27 See Gainther Decl., Franz BWC; Lopez BWC. Serna grabbed Lafita’s shirt as Lafita was 28 striking Serna’s torso. See Gainther Decl., AVSS Podium 1. 1 Escobar “[i]mmediately after observing inmates Serna and Lafita fighting,” 2 grabbed the “40mm launcher, ordered everyone in the dayroom to ‘get down’ over the 3 public address system, activated an alarm, and aimed the 40mm launcher towards the 4 fight.” Escober Decl. at ¶ 10. At approximately the same time, Lopez “ordered inmates 5 Serna and Lafita to ‘get down’ three times, and pepper sprayed once.” Lopez Decl. at ¶ 9. 6 Franz “ordered inmates Serna and Lafita to ‘get down’ several times with no effect, 7 pepper sprayed them five times, and called for backup.” Franz Decl. at ¶ 9. 8 The ”pepper spray had the intended effect, and inmates Serna and Lafita separated, 9 ceased fighting, and got in the prone position.” Lopez Decl. at ¶ 10; Franz Decl. at ¶ 10. 10 Both Franz and Lopez saw that Serna “made several attempts to get up from the prone 11 position” and multiple times ordered him to “get down” or “stay down.” Id. Serna 12 “eventually complied.” Id. 13 The fight “appeared to be over” and Franz was “preparing to put on latex gloves to 14 handcuff the inmates, when Lafita quickly made eye contact with [Franz] and grabbed a 15 nearby chair.” Franz Decl. at ¶ 11. Franz “immediately instructed [Lopez] ‘over here’ 16 three times and gestured towards Lafita.” Id. “At that time, [Lopez] observed inmate 17 Lafita strike inmate Serna with the chair multiple times.” Lopez Decl. at ¶ 12. Both Franz 18 and Lopez told Lafita to “get down” and pepper sprayed him. Franz Decl. at ¶ 12; Lopez 19 Decl. at ¶ 12. However, Lafita “ignored” their orders and “continued striking Serna with 20 the chair.” Id. Both Franz and Lopez “put away” their pepper spray canister and got out 21 their “hand-held baton.” Id. However, neither officer used their baton because a 22 “responding officer arrived and pepper sprayed Lafita” and the “fight then ended.” Id. 23 Escobar “aimed the 40mm launcher towards inmate Serna and Lafita for the entire 24 duration of the fight.” Escobar Decl. at ¶ 11. However, Franz and Lopez were “in 25 between [Escobar] and inmates Serna and Lafita, which blocked a clear line of sight to 26 the fight.” Id. Escobar did not fire the launcher “because [he] did not have a clear shot at 27 either inmate while they were fighting and, therefore, firing the 40mm launcher could 28 have incapacitated or injured the floor officers.” Id. 1 “After the fight ended, [Franz and Lopez] learned that inmate Lafita was using an 2 inmate manufactured weapon, which was not apparent to [them] at any time during the 3 fight, to stab inmate Serna.” Franz Decl. at ¶ 13; Lopez Decl. at ¶ 13. Escobar also did 4 not “observe an inmate manufactured weapon being used in the fight.” Escobar Decl. at ¶ 5 12. 7 Summary judgment is appropriate “if the movant shows that there is no genuine 8 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 9 Fed. R. Civ. P. 56(a). A fact is material when it “might affect the outcome of the suit.” 10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 11 The initial burden of establishing the absence of any genuine issues of material fact 12 falls on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The 13 movant can satisfy this burden in two ways: (1) by presenting evidence that negates an 14 essential element of the non-moving party’s case; or (2) by demonstrating that the non- 15 moving party failed to make a showing sufficient to establish an element essential to that 16 party’s case on which that party will bear the burden of proof at trial. See id. at 322–23. 17 In such cases, “there can be ‘no genuine issue as to any material fact,’ since a complete 18 failure of proof concerning an essential element of the nonmoving party’s case 19 necessarily renders all other facts immaterial.” Id. 20 Once the moving party has satisfied its initial burden, the non-moving party cannot 21 rest on the mere allegations or denials of its pleading. The non-moving party must “go 22 beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to 23 interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a 24 genuine issue for trial.’” Id. at 324. The non-moving party may meet this requirement by 25 presenting evidence from which a reasonable jury could find in its favor, viewing the 26 record as a whole, in light of the evidentiary burden the law places on that party. See 27 Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221–22 (9th Cir. 1995). In 28 determining whether there are any genuine issues of material fact, the court must “view[] 1 the evidence in the light most favorable to the nonmoving party.” Fontana v. Haskin, 262 2 F.3d 871, 876 (9th Cir. 2001) (citation omitted). 4 Defendants move for summary judgment on the ground that they were not 5 deliberately indifferent to a serious threat to Serna’s safety in violation of his Eighth 6 Amendment rights.3 See Defs.’ Memo. of P&As at 11-15. Defendants point to the 7 “Officers’ body worn camera footage and the prison’s Audio-Visual Surveillance System 8 (AVSS) footage” to demonstrate that none of the named Defendants were deliberately 9 different to Plaintiff’s safety when they responded to the incident that occurred between 10 Serna and Lafita. Id. at 11. In addition, Defendants argue that they are entitled to 11 qualified immunity. See id. at 11-13. 12 A. Eighth Amendment Failure to Protect 13 “‘[P]rison officials have a duty . . . to protect prisoners from violence at the hands 14 of other prisoners.’” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes- 15 Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “The failure of 16 prison officials to protect inmates from attacks by other inmates may rise to the level of 17 an Eighth Amendment violation when: (1) the deprivation is ‘objectively, sufficiently 18 serious’ and (2) the prison officials had a ‘sufficiently culpable state of mind,’ acting with 19 deliberate indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) 20 (quoting Farmer, 511 U.S. at 834). The second prong of this test is subjective, and “the 21 official must both be aware of facts from which the inference could be drawn that a 22 substantial risk of serious harm exists, and he must also draw the inference.” See Farmer, 23 511 U.S. at 837. “‘Deliberate indifference entails something more than mere negligence 24 but is satisfied by something less than acts or omissions for the very purpose of causing 25 26 27 3 Plaintiff appears to attempt to raise an Eighth Amendment excessive force claim, for the first time, in his Opposition. However, Plaintiff did not allege an Eighth Amendment excessive force claim in this 28 1 harm or with knowledge that harm will result.’” Hearns, 413 F.3d at 1040 (quoting 2 Farmer, 511 U.S. at 835) (internal alterations omitted)). “[A]n official’s failure to 3 alleviate a significant risk that he should have perceived but did not, while no cause for 4 commendation, cannot under [the Supreme Court’s] cases be condemned as the infliction 5 of punishment.” Farmer, 511 U.S. at 838. 6 Thus, “deliberate indifference” entails something more than mere negligence, but 7 may be satisfied with proof of something less than acts or omissions “for the very 8 purpose of causing harm,” or that a particular official “acted or failed to act believing that 9 harm actually would befall an inmate; it is enough that the official acted or failed to act 10 despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842. 11 “Whether a prison official had the requisite knowledge of a substantial risk” may be 12 inferred if the prisoner produces evidence sufficient to show that the risk was “obvious.” 13 Id. 14 As an initial matter, it should be noted that there is no allegation, or any evidence 15 in the record to support an allegation, that any of the named Defendants were aware that 16 Lafita intended to attack or cause Plaintiff harm prior to the incident. There is also no 17 evidence that Defendants failed to respond to the attack by Lafita but instead Plaintiff 18 argues that Defendants “observed inmate Lafita attempting to murder Plaintiff and 19 fail[ed] to use the authorized and available level of force and use of force options to 20 effectively intervene in inmate Lafita’s attempt to murder Plaintiff.” Pl.’s Opp’n at 3. 21 Here, as noted above, the interaction between Serna and Lafita, as well as the 22 response by Officers to this interaction, has been documented by footage from the 23 Officer’s BWC and other cameras throughout the facility. The Court must view the 24 record in the light most favorable to Plaintiff as the non-moving party “so long as 25 [Plaintiff’s] version on the facts is not blatantly contradicted by the video [or audio] 26 evidence.” Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) (citation 27 omitted). However, “[t]he mere existence of video footage of the incident does not 28 1 foreclose a genuine factual dispute as to the reasonable inferences that can be drawn from 2 that footage.” Id. 3 The video footage provided is not disputed by Plaintiff and provides some clear 4 footage of the entire incident. On April 4, 2022, at approximately 9:18 a.m., Serna is seen 5 walking across the dayroom and arriving at the door of Lafita’s cell. See ECF No. 31-8, 6 Ex. A, Video Title HU 13 Podium 1-2022-04-04 (AVSS Podium 1). Just a few seconds 7 later, Lafita comes out of his cell, bumps into Serna and almost immediately begins 8 attacking Serna. See id. Defendant Lopez is seated at a table while Defendant Franz is 9 standing at the same table, but neither are facing the view of Lafita’s cell. See id. As 10 Lafita begins attacking Serna, both Defendants turn their head towards Serna and Lafita 11 and begin approaching Serna and Lafita. See id. 12 Lafita pulls Serna to the ground as Franz and Lopez approach and is continually 13 striking Serna on the head. See id. At 9:18:29, Franz and Lopez both pull out their pepper 14 spray canisters. See id. Four seconds later, Franz sprays both Serna and Lafita with one 15 burst of pepper spray but Lafita continued attacking Serna. See id. It can also be observed 16 that Franz appears to speak into her radio and in her declaration indicates she was calling 17 “for backup.” See id; Franz Decl. at ¶ 9. Both Franz and Lopez maintain that they 18 repeatedly ordered both inmates to “get down” and remain prone but both ignored the 19 orders. See Franz Decl. at ¶ 9; Lopez Decl. at ¶ 9. However, it appears that Serna was 20 already down during most of the attack. See AVSS Podium 1. Franz sprayed both inmates 21 for a second time a few seconds later but Lafita continued attacking Serna. See id. At 22 9:18:34, Escobar spoke over the public address system in the tower and ordered “get 23 down, everyone get down.” See ECF No. 31-8, Ex. A, C 13 CNTRL CO4201102-04-04 24 (Correctional Officer R. Escobar Body Worn Camera (BWC)). Escobar aimed the 40mm 25 launcher towards the direction of Serna and Lafita but did not fire the launcher. See id. At 26 this same time, Lopez sprays both Serna and Lafita a third time with pepper spray but 27 that did not deter Lafita from continuing the attack. See AVSS Podium 1. A few seconds 28 later, Lopez sprays both inmates for a fourth time and Lafita then stands up while Serna 1 grabs Lafita’s shirt. See id. Lafita walks backward and Serna and Lafita are ultimately 2 separated. See id. Lopez aims his pepper spray towards Serna while Franz is attempting 3 to put on latex gloves “to handcuff the inmates.” See id.; Franz Decl. at ¶ 11. 4 As Franz was attempting to put the gloves on, Lafita picks up a shower chair, 5 approaches Serna, lifts it above his head and hits Serna on the head multiple times. See 6 AVSS Podium 1. As he is beating Serna, both Lopez and Franz again spray pepper spray 7 at Lafita and Serna. See id. Franz then puts away her pepper spray and removes her baton 8 from her belt. See id. A few seconds later, Lopez also puts away his pepper spray and 9 removes his baton. See id. The video then shows several officers responding to the 10 incident, and one sprays Lafita with pepper spray in the face which ends the attack. See 11 id. Escobar has aimed his 40mm launcher towards Serna and Lafita during the duration of 12 the attack but attests that he “did not have a clear shot at either inmate” and if he had 13 fired his launcher it “could have incapacitated or injured the floor officers.” See Escobar 14 BWC; Escobar Decl. at ¶ 11. 15 Defendants do not dispute Serna’s claim that during the attack Lafita used a seven 16 inch long “inmate manufactured weapon/knife/shank that was sharpened to a point” to 17 stab Serna repeatedly in the head. Pl.’s Opp’n at 7. However, Defendants all attest that 18 “[a]fter the fight ended, [they] learned that inmate Lafita was using an inmate 19 manufactured weapon” but “[a]t no point during the fight did [they] observe an inmate 20 manufactured weapon being used in the fight.” Escobar Decl., at ¶ 12; Franz Decl. at ¶ 21 13; Lopez Decl. at ¶ 13. 22 A careful review of the video footage of the incident indicates that from the time 23 Lafita made initial body contact with Serna to the end of the attack when the outside 24 officer sprayed Lafita in the face with pepper spray was approximately one (1) minute. 25 See AVSS Podium 1. 26 Serna argues that Defendants were deliberately indifferent because the “use-of- 27 force options chos[en] by Defendants Franz and Lopez were wholly inappropriate to 28 effectively intervene and to protect Plaintiff given the character and the nature of the 1 lethal attack” by Lafita. See Pl.’s Opp’n at 8. In addition, Serna argues there was a 2 “complete failure of Defendant Escobar to use any of the use-of-force options available” 3 for him to use to prevent the “serious bodily injury” by Lafita on Serna. Id. 4 Here, the Court finds that Defendants are entitled to summary judgment on Serna’s 5 failure to protect claim because they have met their burden to demonstrate there is no 6 genuine issue of material fact that any of the named Defendants were deliberately 7 indifferent to an excessive risk to Serna’s health or safety. See Farmer, 511 U.S. at 834. 8 A review of the video of the incident between Serna and Lafita undeniably shows that 9 Serna was brutally attacked by Lafita. As Serna notes in his Opposition, while the 10 Defendants refer to this entire incident as a fight between these two inmates, the video 11 shows only Lafita as the aggressor. See Pl.’s Opp’n at 4. Defendants appear to concede 12 this point in their Reply by agreeing to use the word “incident” instead of “fight.” Defs.’ 13 Reply at 3, fn. 1. However, Defendants are correct that whether it was a fight or a one- 14 sided attack, “Defendants owed the same duty to protect Serna.” Id. at 3 (citing Farmer, 15 511 U.S. at 833). 16 “A prison official’s deliberate indifference may be established through an 17 ‘inference from circumstantial evidence’ or ‘from the very fact that the risk was 18 obvious.’” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015) (quoting Farmer, 511 19 U.S. at 842). As stated above, neither negligence nor gross negligence constitutes 20 deliberate indifference. Farmer, 511 U.S. at 835-36 & n.4. The BWC and dayroom 21 videos show that neither Franz nor Lopez were facing Lafita’s cell at the time the attack 22 started and could not have seen which inmate instigated the incident. However, the video 23 does show that almost immediately after the attack began, both Franz and Lopez 24 approached both inmates and within a few seconds sprayed both inmates with pepper 25 spray, ordered them to lay prone, and called for backup from other officers over the radio. 26 The BWC video of Escobar also shows that he was in the tower when the attack started, 27 he called out for all inmates in the dayroom to get down and aimed his 440mm launcher 28 towards Serna and Lafita. The evidence demonstrates that Defendants did attempt to stop 1 the attack and while Serna undeniably suffered injuries from this attack, his claims that 2 they were just “standing [two] feet away and watch[ing]” while he was being attacked is 3 directly contradicted by the undisputed video evidence. Compl. at 4. Moreover, Serna 4 offers no evidence to dispute Escobar’s sworn testimony in his declaration that he was 5 unable to fire any weapon because he did not have a clear shot at either Serna or Lafita. 6 Moreover, there is no evidence in the record that any of the named Defendants 7 were aware that there was even the possibility that Serna was going to be attacked by 8 Lafita. Instead, Serna’s Opposition focuses on an argument that Franz and Lopez had not 9 received “training concerning CDCR policies and procedures on inmate-on-inmate 10 attacks” and had only been employed by the CDCR for sixteen (16) months at the time 11 the attack occurred. Pl.’s Opp’n at 12-13. As to Escobar, Plaintiff argues that he had 12 purportedly received no “training concerning CDCR policies and procedures as a control 13 officer, no training for how to respond to a Code 1 (one on one incident).” Id. at 11. 14 Defendants argue in response that their “training records do not create a genuine dispute 15 of material fact.” Defs.’ Reply at 4. The Court agrees. At most, taking the facts in the 16 light most favorable to Serna, this argument could raise an issue of negligence as to how 17 Defendants responded to the attack by Lafita but does not demonstrate that they were 18 acting with deliberate indifference in the manner in which they responded to the attack. 19 See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (“Mere negligence is not 20 sufficient to establish liability.”) 21 The evidence in the record shows that Defendants immediately responded to the 22 incident between Serna and Lafita as they became aware of it, they used force by 23 spraying both inmates several times with pepper spray, ordered all inmates to get down, 24 and called for additional help from other officers who responded within a minute of the 25 beginning of the incident. While Serna argues more should have been done to stop the 26 second part of the attack by Lafita, there is no evidence in the record to show that any of 27 the named Defendants acted with deliberate indifference towards Serna. Thus, the Court 28 GRANTS Defendants’ Motion for Summary Judgment as to Plaintiff’s Eighth 1 Amendment failure to protect claim. 2 B. Qualified Immunity 3 Defendants move for summary judgment on qualified immunity grounds. 4 Specifically, Defendants argue that they did not violate Serna’s constitutional rights and 5 even if the Court “finds constitutional deprivations, those violations are not clearly 6 established.” Defs. Memo of P&As at 17. 7 “Government officials enjoy qualified immunity from civil damages unless their 8 conduct violates ‘clearly established statutory or constitutional rights of which a 9 reasonable person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 10 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When presented with a 11 qualified immunity defense, the central questions for the court are: (1) whether the facts 12 alleged, taken in the light most favorable to Plaintiff, demonstrate that the Defendants 13 conduct violated a statutory or constitutional right; and (2) whether the right at issue was 14 “clearly established” at the time it is alleged to have been violated. Saucier v. Katz, 533 15 U.S. 194, 201 (2001). Although Saucier originally required the Court to answer these 16 questions in order, the U.S. Supreme Court has since held that “while the sequence set 17 forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” 18 Pearson v. Callahan, 555 U.S. 223, 236 (2009). 19 If the Court finds that Plaintiff’s allegations do not make out a statutory or 20 constitutional violation, “there is no necessity for further inquiries concerning qualified 21 immunity.” Saucier, 533 U.S. at 201. Similarly, if the Court determines that the right at 22 issue was not clearly established at the time of the defendant’s alleged misconduct, the 23 court may end further inquiries concerning qualified immunity without determining 24 whether the allegations in fact make out a statutory or constitutional violation. Pearson, 25 555 U.S. at 236-37. 26 Here, the Court has found that there is no genuine dispute of material fact 27 regarding Plaintiff’s Eighth Amendment claims and thus, no qualified immunity analysis 28 is necessary. See, e.g., Aguilera v. Baca, 510 F.3d 1161, 1167, 1174 (9th Cir. 2007) 1 || (noting that if no constitutional violation occurred the court need not decide whether 2 || qualified immunity applies). 3 Vv. CONCLUSION 4 Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment as 5 Plaintiff's Eighth Amendment claims pursuant to Federal Rules of Civil Procedure 56. 6 || ECF No. 31. The Clerk of Court is directed to enter judgment on behalf of all Defendants 7 close the file. 9 . 10 Dated: October 13, 2023 Sin 4, Honorable James E. Simmons, Ir 12 Unites States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 em