(PC) Perez v. Smith ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SANDRO S. PEREZ, Case No. 1:20-cv-00840-ADA-SAB (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 12 v. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND DISMISSING DOE 13 A. SMITH, et al., DEFENDANT 14 Defendants. (ECF Nos. 68, 80) 15 16 17 Plaintiff Sandro S. Perez (“Plaintiff”) is proceeding pro se and in forma pauperis in this 18 civil rights action filed pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 4, 2022, the assigned United States Magistrate Judge issued findings and 21 recommendations, recommending Defendants’ motion for summary judgment be denied because 22 disputed facts exist as to whether Defendants were deliberately indifferent to Plaintiff’s safety. 23 (ECF No. 80.) The Magistrate Judge also recommended that Doe Defendant be dismissed from 24 the action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Id. at 18-20.) The 25 findings and recommendations were served on the parties and contained notice that any 26 objections were to be filed within twenty-one (21) days after service. (Id. at 20.) Defendants 27 filed objections on October 18, 2022. (ECF No. 81.) 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 2 de novo review of this case. Having carefully reviewed the entire file, including Defendants’ 3 objections, the Court finds the findings and recommendations to be supported by the record and 4 by proper analysis. 5 In their objections, Defendants note that Plaintiff’s deposition contradicts the factual 6 allegations in his complaint, specifically those allegations relating to inmate Galindo. (ECF No. 7 81 at 2.) However, Defendants fail to cite any authority that supports that the Court is permitted 8 to weigh the credibility of a complaint’s allegations against Plaintiff’s deposition testimony. In a 9 motion for summary judgment, the Court may not weigh the parties’ evidence or assess their 10 respective credibility. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 11 Although Plaintiff did not file an opposition, a verified complaint may be used as an opposing 12 affidavit under Rule 56 of the Federal Rules of Civil Procedure, as long as it is based on personal 13 knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 14 F.3d 454, 460 nn. 10-11 (9th Cir. 1996). Because Plaintiff’s complaint is made under penalty of 15 perjury, (ECF No. 1), the Court considers it as part of the evidence in opposition to Defendants’ 16 motion for summary judgment. Whether Defendants had knowledge of inmate Quezada’s 17 intention to harm an inmate, including Plaintiff, is a material fact to Plaintiff’s claim against 18 Defendants. Viewing the evidence in the light most favorable to the non-moving party, the 19 Court agrees with the Magistrate Judge’s recommendation that there is a genuine issue of 20 material fact to Plaintiff’s claim that Defendants acted with deliberate indifference to his safety. 21 Therefore, the Court finds that a reasonable jury may find that Defendants were aware of inmate 22 Quezada’s threat to harm another inmate. 23 Defendants further argue that Plaintiff’s inability to identify the officers who had 24 overheard Mr. Quezada express that he did not want to be placed in Avenal State Prison creates a 25 hearsay problem at trial. (Id. at 3.) The Court, however, finds that inmate Galindo may testify at 26 trial with respect to Defendants’ knowledge of inmate Quezada’s then-pending attack, and that 27 parties’ counsel may examine the witness, which is an opportunity to attack or support a 1 | recommendations erroneously rely on the allegations of post-incident comments. (/d. 3-4.) They 2 | rely on Foster v. Div. of Adult Parole Operations, 1:19-CV-00987-LJO-SAB, 2019 WL 3 | 4058582, at *5 (E.D. Cal. Aug. 28, 2019), to support that the Court may not consider post- 4 | incident action by Defendants to demonstrate knowledge. Even without considering the 5 | evidence that took place after the December 18, 2018 attack, the Court still agrees that there is a 6 | genuine issue of material fact to Plaintiffs claim, and that a reasonable jury may find that 7 | Defendants were aware of inmate Quezada’s threat to harm another inmate. 8 Accordingly, 9 1. The findings and recommendations issued on October 4, 2022, (ECF No. 80), are 10 adopted in full; 11 2. Defendants’ motion for summary judgment filed on April 22, 2022, (ECF No. 68), is 12 denied; 13 3. The Doe Defendant is dismissed from the action pursuant to Federal Rule of Civil 14 Procedure 4(m); and 15 4. The matter is referred back to the Magistrate Judge for further proceedings. 16 17 1g | IT IS SO ORDERED. 19 Dated: _ December 20, 2022 50 UNITED $TATES DISTRICT JUDGE 21 22 23 24 25 26 27 28