(PC) Stanford v. Pena ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES R. STANFORD, No. 2:18-cv-03007-KJM-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 A. PENA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 11, 2022, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. Defendant McQuade has 23 filed objections to the findings and recommendations. ECF No. 60. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 26 findings and recommendations to be supported by the record and by the proper analysis. 27 The court writes separately to address defendant McQuade’s objection that there is no 28 evidence to support plaintiff’s “allegation that he told McQuade that he felt at risk because Chan 1 knew Stanford had been convicted of a sexual offense against a minor.” ECF No. 60 at 1. In 2 relevant part, the magistrate judge found 3 [t]here is evidence that McQuade knew of a serious risk of harm to plaintiff by Chan. Plaintiff first told McQuade that he was “extremely 4 incompatible” with Chan as a cellmate and, after Chan was moved out of plaintiff’s cell, told McQuade that he still felt threatened by 5 Chan—both because Chan remained in the building and because Chan knew that plaintiff had been convicted of a sexual offense 6 against a minor.1 Viewing the evidence in the light most favorable to plaintiff, McQuade was aware that there was a specific threat from 7 Chan and that the risk of harm was obvious, since inmates known as sexual offenders are at a substantially higher risk of harm. See 8 Nailing v. Fosterer, No. CIV S-09-2475-MCE-CMK, 2012 WL 1130655, at *8 (E.D. Cal. Mar. 2, 2012) (finding that plaintiff had 9 sufficiently pled a failure to protect claim because “a reasonable jury could conclude that defendants were deliberately indifferent to the 10 generally known risk sex offenders face in the prison general population”); Morris v. Burkhouse, No. CV 19-5839-SVW (KK), 11 2021 WL 2119497, at *4 (C.D. Cal. March 24, 2021) (finding that a correctional officer’s false accusation of indecent exposure, made in 12 order to label the plaintiff as a sex offender, was sufficient to demonstrate that the plaintiff faced “a substantial risk of harm to his 13 health and safety”) (citing Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (analyzing due process claim and stating, “[w]e can hardly 14 conceive of a state’s action bearing more ‘stigmatizing consequences’ than the labeling of a prison inmate as a sex offender”). Despite that, 15 McQuade took no action to protect plaintiff. 16 ECF No. 59 at 5-6. Defendant McQuade relies on excerpts from plaintiff’s deposition to support 17 his objection. See ECF No. 60. 18 Upon review, the record contains sufficient evidence to support an inference that 19 defendant McQuade knew that inmate Chan knew that plaintiff was a convicted sex offender. 20 Plaintiff appended a copy of his verified complaint, filed January 22, 2019, as Exhibit B to his 21 opposition to defendants’ motion for summary judgment. ECF No. 55 at 46-74. Statements in 22 plaintiff’s verified complaint are properly considered as an affidavit in opposition to defendants’ 23 motion for summary judgment to the extent those statements are “based on [plaintiff]’s personal 24 knowledge of admissible evidence.” Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). 25 In paragraph 23, plaintiff states that about four or five days after inmate Chan moved into his cell, 26 inmate Chan told plaintiff 27 28 1 The record does not reveal why Chan was moved. ] that he had been informed by the floor officer that plaintiff was a “sex Offender’”’ and that plaintiffs victim had been under the age of 2 14. (that however was not plaintiffs current term was for). Plaintiff informed Chan that McQuade was lying at thats not what plaintiff 3 was currently in prison for. 4 | ECF No. 55 at 61 (verbatim transcription). Plaintiff also states in paragraph 26 that 5 [a]s the days passed, it become apparent that Chan or someone was discussing plaintiffs case factors with other inmates. Previously 6 other inmates who had been friendly, no longer were. Inmates who had spoke to plaintiff or wished him a good day, no longer did. Some 7 inmates even gave plaintiff the evil eye. Infact, some time after this incidence, many inmates began to harrass plaintiff and he was 8 Jumped by three Mexicans which lead to plaintiffs transfer out of HDSP. 9 10 || /d. at 62 (verbatim transcription). At his deposition, plaintiff testified that he “specifically” talked 11 || to defendant McQuade about feeling “threatened” by Chan being in the same building and 12 | “knowing [plaintiffs] case.” Stanford Depo., Ex. C to ECF No. 55, at 45:15-22. The foregoing 13 || 1s sufficient evidence to support a reasonable factfinder’s finding that defendant McQuade knew 14 | that inmate Chan was aware plaintiff was a convicted sex offender and that plaintiff 15 || communicated his concern about this to defendant McQuade. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed February 11, 2022 are adopted in full; 18 2. Defendants’ motion for summary judgment, ECF No. 51, is denied as to McQuade and 19 || granted as to defendants Lewis and Pena; 20 3. This matter is referred to the court’s ADR and Pro Bono Director, Sujean Park, to 21 || attempt to locate pro bono counsel to represent plaintiff at a settlkement conference to be set by 22 || subsequent order of the court; and 23 4. The matter will be set for a final pretrial status conference once settlement is 94 || exhausted. 25 || DATED: September 23, 2022. /\ (] 26 iA | LV f\ / AY CHIEF NT] ED STATES DISTRICT JUDGE 27 28