1 2 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 3 May 18, 2021 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 CARLOS A. VELASQUEZ, 10 Plaintiff, No. 2:20-CV-00137-SAB 11 v. 12 STATE OF WASHINGTON; ORDER GRANTING IN PART 13 WASHINGTON DEPARTMENT OF AND DENYING IN PART 14 CORRECTIONS, DEFENDANT’S MOTION FOR 15 Defendant. SUMMARY JUDGMENT 16 17 Before the Court is Defendant’s Motion for Summary Judgment, ECF No. 18 13. The motion was considered without oral argument. Plaintiff is represented by 19 Richard Wall and Defendant is represented by Nicholas Ulrich. 20 Defendant requests that the Court grant summary judgment on both of 21 Plaintiff’s claims and dismiss the case. In response, Plaintiff concedes that 22 summary judgment is appropriate for his claim under 42 U.S.C. § 1983. However, 23 Plaintiff argues that there are genuine disputes of material fact which preclude 24 summary judgment on his negligence claim. For the reasons discussed below, the 25 Court grants in part and denies in part Defendant’s motion and remands the case to 26 state court. 27 // 28 // 1 Background 2 The following facts are taken from Defendant’s motion, Plaintiff’s response, 3 and the parties’ respective statements of material fact, but are construed in 4 Plaintiff’s favor. ECF Nos. 13, 14, 22, 23. 5 On February 27, 2017, Plaintiff Carlos Velasquez was an inmate at the 6 Airway Heights Corrections, a state prison run by Defendant Washington State 7 Department of Corrections. At the time, Plaintiff’s cellmate was Kent Whiting 8 (“Mr. Whiting”). Both Plaintiff and Mr. Whiting were in the N-Unit of Airway 9 Heights. 10 Every afternoon, Airway Heights performs a mandatory lockdown and 11 “count” of the inmates. During the count, corrections officers pull some inmates 12 out of their cells to do random urinalysis (“UA”) tests for prohibited substances. If 13 an inmate refuses to comply, they are automatically infracted. On February 27, 14 2017, Plaintiff and Mr. Whiting were pulled out of their cell during the count for 15 UA testing after corrections officers found a broken light bulb in their cell, raising 16 suspicions of drug use. Both Plaintiff and Mr. Whiting refused to comply with UA 17 testing and thus were infracted before they returned to their cell. 18 Each unit in Airway Heights has a Unit Booth, which controls and oversees 19 the cells in the unit. In the N-Unit, each cell has a button above the toilet below the 20 intercom. If the inmate presses the button while the unit is not in lockdown, the 21 button will open the cell door. However, if the inmate presses the button while the 22 unit is in lockdown, the button will sound an alarm in the Unit Booth. On February 23 27, when Plaintiff and Mr. Whiting were returned to their cell after being infracted, 24 Mr. Whiting began threatening Plaintiff. Specifically, Mr. Whiting stated that he 25 was going to break Plaintiff’s face, beat him up, and knock him out if he told 26 corrections officers that the lightbulb belonged to Mr. Whiting. At the time of the 27 threat, the N-Unit was still on lockdown for the count. But when Plaintiff tried to 28 1 press the button in the cell to sound the alarm in the Unit Booth and thereby call 2 officers for help, no one came. 3 After the lockdown ended, Plaintiff left the cell and went to the correction 4 officers’ office. Plaintiff told the officer that he was being threatened by Mr. 5 Whiting and that he was afraid to return to his cell. The officer told Plaintiff to go 6 back to his cell. When Plaintiff repeated his fears, the officer put his hand on his 7 pepper spray canister and asked if Plaintiff was refusing to return. Plaintiff then 8 returned to his cell. 9 Shortly after Plaintiff returned, Mr. Whiting attacked Plaintiff by repeatedly 10 punching him in the face. Plaintiff was taken to the prison medical unit for 11 treatment, but was then transferred to the local emergency room where he received 12 eight to ten stitches for a cut under his left eye. Additionally, as a result of the 13 assault, Plaintiff suffered multiple fractures to his left cheek bone and nerve 14 damage on the left side of his face. 15 Plaintiff originally filed his complaint in Spokane County Superior Court on 16 March 12, 2020. ECF No. 1-3. In his complaint, Plaintiff asserted two claims: (1) 17 negligence under state law; and (2) violation of the Eighth Amendment under 42 18 U.S.C. § 1983. Id. at 3. On April 1, 2020, Defendant removed the case to federal 19 court on the basis of federal question jurisdiction. ECF No. 1 at 2. The Court set a 20 jury trial date of June 7, 2021. ECF No. 6. 21 Defendant filed the present motion on February 26, 2021. ECF No. 13. On 22 May 5, 2021, due to the pending dispositive motion and the impending trial date, 23 the Court struck the trial date until after the motion was decided. ECF No. 31. 24 Legal Standard 25 Summary judgment is appropriate “if the movant shows that there is no 26 genuine dispute as to any material fact and the movant is entitled to judgment as a 27 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless 28 there is sufficient evidence favoring the non-moving party for a jury to return a 1 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 2 (1986). “An issue of material fact is genuine ‘if there is sufficient evidence for a 3 reasonable jury to return a verdict for the non-moving party.’” Thomas v. Ponder, 4 611 F.3d 1144, 1150 (9th Cir. 2010) (quoting Long v. Cty. of Los Angeles, 442 5 F.3d 1178, 1185 (9th Cir. 2006)). The moving party has the initial burden of 6 showing the absence of a genuine issue of fact for trial. Celotex Corp. v. Catrett, 7 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, the non- 8 moving party must go beyond the pleadings and “set forth specific facts showing 9 that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. 10 In addition to showing there are no questions of material fact, the moving 11 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of 12 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled 13 to judgment as a matter of law when the non-moving party fails to make a 14 sufficient showing on an essential element of a claim on which the non-moving 15 party has the burden of proof. Celotex Corp., 477 U.S. at 323. The non-moving 16 party cannot rely on conclusory allegations alone to create an issue of material fact. 17 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). 18 When considering a motion for summary judgment, a court may neither 19 weigh the evidence nor assess credibility; instead, “the evidence of the non-movant 20 is to be believed, and all justifiable inferences are to be drawn in his favor.” 21 Anderson, 477 U.S. at 255; Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015).
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1 2 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 3 May 18, 2021 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 CARLOS A. VELASQUEZ, 10 Plaintiff, No. 2:20-CV-00137-SAB 11 v. 12 STATE OF WASHINGTON; ORDER GRANTING IN PART 13 WASHINGTON DEPARTMENT OF AND DENYING IN PART 14 CORRECTIONS, DEFENDANT’S MOTION FOR 15 Defendant. SUMMARY JUDGMENT 16 17 Before the Court is Defendant’s Motion for Summary Judgment, ECF No. 18 13. The motion was considered without oral argument. Plaintiff is represented by 19 Richard Wall and Defendant is represented by Nicholas Ulrich. 20 Defendant requests that the Court grant summary judgment on both of 21 Plaintiff’s claims and dismiss the case. In response, Plaintiff concedes that 22 summary judgment is appropriate for his claim under 42 U.S.C. § 1983. However, 23 Plaintiff argues that there are genuine disputes of material fact which preclude 24 summary judgment on his negligence claim. For the reasons discussed below, the 25 Court grants in part and denies in part Defendant’s motion and remands the case to 26 state court. 27 // 28 // 1 Background 2 The following facts are taken from Defendant’s motion, Plaintiff’s response, 3 and the parties’ respective statements of material fact, but are construed in 4 Plaintiff’s favor. ECF Nos. 13, 14, 22, 23. 5 On February 27, 2017, Plaintiff Carlos Velasquez was an inmate at the 6 Airway Heights Corrections, a state prison run by Defendant Washington State 7 Department of Corrections. At the time, Plaintiff’s cellmate was Kent Whiting 8 (“Mr. Whiting”). Both Plaintiff and Mr. Whiting were in the N-Unit of Airway 9 Heights. 10 Every afternoon, Airway Heights performs a mandatory lockdown and 11 “count” of the inmates. During the count, corrections officers pull some inmates 12 out of their cells to do random urinalysis (“UA”) tests for prohibited substances. If 13 an inmate refuses to comply, they are automatically infracted. On February 27, 14 2017, Plaintiff and Mr. Whiting were pulled out of their cell during the count for 15 UA testing after corrections officers found a broken light bulb in their cell, raising 16 suspicions of drug use. Both Plaintiff and Mr. Whiting refused to comply with UA 17 testing and thus were infracted before they returned to their cell. 18 Each unit in Airway Heights has a Unit Booth, which controls and oversees 19 the cells in the unit. In the N-Unit, each cell has a button above the toilet below the 20 intercom. If the inmate presses the button while the unit is not in lockdown, the 21 button will open the cell door. However, if the inmate presses the button while the 22 unit is in lockdown, the button will sound an alarm in the Unit Booth. On February 23 27, when Plaintiff and Mr. Whiting were returned to their cell after being infracted, 24 Mr. Whiting began threatening Plaintiff. Specifically, Mr. Whiting stated that he 25 was going to break Plaintiff’s face, beat him up, and knock him out if he told 26 corrections officers that the lightbulb belonged to Mr. Whiting. At the time of the 27 threat, the N-Unit was still on lockdown for the count. But when Plaintiff tried to 28 1 press the button in the cell to sound the alarm in the Unit Booth and thereby call 2 officers for help, no one came. 3 After the lockdown ended, Plaintiff left the cell and went to the correction 4 officers’ office. Plaintiff told the officer that he was being threatened by Mr. 5 Whiting and that he was afraid to return to his cell. The officer told Plaintiff to go 6 back to his cell. When Plaintiff repeated his fears, the officer put his hand on his 7 pepper spray canister and asked if Plaintiff was refusing to return. Plaintiff then 8 returned to his cell. 9 Shortly after Plaintiff returned, Mr. Whiting attacked Plaintiff by repeatedly 10 punching him in the face. Plaintiff was taken to the prison medical unit for 11 treatment, but was then transferred to the local emergency room where he received 12 eight to ten stitches for a cut under his left eye. Additionally, as a result of the 13 assault, Plaintiff suffered multiple fractures to his left cheek bone and nerve 14 damage on the left side of his face. 15 Plaintiff originally filed his complaint in Spokane County Superior Court on 16 March 12, 2020. ECF No. 1-3. In his complaint, Plaintiff asserted two claims: (1) 17 negligence under state law; and (2) violation of the Eighth Amendment under 42 18 U.S.C. § 1983. Id. at 3. On April 1, 2020, Defendant removed the case to federal 19 court on the basis of federal question jurisdiction. ECF No. 1 at 2. The Court set a 20 jury trial date of June 7, 2021. ECF No. 6. 21 Defendant filed the present motion on February 26, 2021. ECF No. 13. On 22 May 5, 2021, due to the pending dispositive motion and the impending trial date, 23 the Court struck the trial date until after the motion was decided. ECF No. 31. 24 Legal Standard 25 Summary judgment is appropriate “if the movant shows that there is no 26 genuine dispute as to any material fact and the movant is entitled to judgment as a 27 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless 28 there is sufficient evidence favoring the non-moving party for a jury to return a 1 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 2 (1986). “An issue of material fact is genuine ‘if there is sufficient evidence for a 3 reasonable jury to return a verdict for the non-moving party.’” Thomas v. Ponder, 4 611 F.3d 1144, 1150 (9th Cir. 2010) (quoting Long v. Cty. of Los Angeles, 442 5 F.3d 1178, 1185 (9th Cir. 2006)). The moving party has the initial burden of 6 showing the absence of a genuine issue of fact for trial. Celotex Corp. v. Catrett, 7 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, the non- 8 moving party must go beyond the pleadings and “set forth specific facts showing 9 that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. 10 In addition to showing there are no questions of material fact, the moving 11 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of 12 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled 13 to judgment as a matter of law when the non-moving party fails to make a 14 sufficient showing on an essential element of a claim on which the non-moving 15 party has the burden of proof. Celotex Corp., 477 U.S. at 323. The non-moving 16 party cannot rely on conclusory allegations alone to create an issue of material fact. 17 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). 18 When considering a motion for summary judgment, a court may neither 19 weigh the evidence nor assess credibility; instead, “the evidence of the non-movant 20 is to be believed, and all justifiable inferences are to be drawn in his favor.” 21 Anderson, 477 U.S. at 255; Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). 22 Discussion 23 Defendant argues that the Court should grant summary judgment in its favor 24 and dismiss both of Plaintiff’s claims. With respect to Plaintiff’s Eighth 25 Amendment claim, Defendant argues that Plaintiff fails to state a claim because a 26 state agency such as the Washington Department of Corrections does not constitute 27 a “person” within the meaning of 42 U.S.C. § 1983. ECF No. 13 at 10. As for 28 Plaintiff’s negligence claim, Defendant argues that Plaintiff cannot establish 1 Defendant’s breach of duty because there is no genuine dispute of material fact that 2 Mr. Whiting “simply snapped” in assaulting Plaintiff, and therefore Defendant had 3 no notice of the impending injury. Id. at 5-8. 4 In response, Plaintiff states that he does not object to the Court granting 5 summary judgment on his § 1983 claim. ECF No. 23 at 3-4. However, Plaintiff 6 argues that there are genuine disputes of material fact regarding his negligence 7 claim, including whether Defendant had notice of the likelihood of injury. Id. at 6- 8 7. 9 The Court grants Defendant’s motion as to Plaintiff’s § 1983 claim. Here, 10 Plaintiff has sued the Washington Department of Corrections, an arm of the State, 11 which is prohibited by Will v. Michigan Department of State Police, 491 U.S. 58, 12 71 (1989) (“We hold that neither a State nor its officials acting in their official 13 capacities are ‘persons’ under § 1983.”). 14 However, the Court denies Defendant’s motion as to Plaintiff’s negligence 15 claim due to genuine disputes of material fact. Here, Plaintiff argues that he 16 attempted to call for help while he was being threatened with assault; found help 17 but was then ordered back to his cell after attempting to report the assault; and 18 finally, returned to his cell and was assaulted. Defendant, on the other hand, argues 19 that Plaintiff’s assault was a heat-of-the-moment incident and that its officers had 20 no advance warning that it was going to happen. This factual dispute is sufficient 21 to preclude summary judgment. 22 Finally, because the Court is dismissing Plaintiff’s federal law claim and the 23 parties are not diverse, the Court no longer has subject matter jurisdiction over the 24 action. 28 U.S.C. §§ 1331-32. Thus, the Court remands the case to state court. 25 // 26 // 27 // 28 // 1 Accordingly, IT IS HEREBY ORDERED: 1. Defendants’ Motion for Summary Judgment, ECF No. 13, is 3|| GRANTED in part and DENIED in part. 2. Plaintiff's negligence claim is REMANDED to the Spokane County 5|| Superior Court. 3. The District Court Clerk is directed to enter this Order and forward this file with a copy of this Order to the Clerk of the Spokane County Superior Court. 9 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter this Order, provide copies to counsel, and close the file. 11 DATED this 18th day of May 2021. 12 13 14 15 byt Secthan— 7 Stanley A. Bastian
ig United States District Judge
19 20 21 22 23 24 25 26 27 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S