(PC) Muniz v. Pfeiffer ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL MUNIZ, through his successor Case No. 1:19-cv-00233-JLT-CDB (PC) in interest CELINA MUNIZ, 12 FINDINGS AND RECOMMENDATIONS Plaintiff, TO GRANT DEFENDANTS’ MOTION 13 FOR SUMMARY JUDGMENT1 v. 14 OBJECTIONS DUE WITHIN 14 DAYS CHRISTIAN PFEIFFER, ET AL., 15 (ECF No. 79) Defendants. 16 17 This is an action by the estate of Daniel Muniz (the decedent) and his mother Celina 18 Muniz against staff from the Kern Valley State Prison (KVSP)2 in which Muniz (“Plaintiff”) 19 asserts civil rights claims under 42 U.S.C. § 1983 for failure to protect, denial of familial 20 relationship, wrongful death, and for violation of Cal. Code § 845.6. (ECF Nos. 25, 35). Pending 21 before the Court is Defendants’ motion for summary judgment, filed November 8, 2022, with 22 declarations and exhibits filed in support. (ECF No. 79). Plaintiff filed an opposition with a 23 declaration and sealed and unsealed exhibits (ECF Nos. 88 - 93), and Defendants filed a reply 24 with supporting declaration (ECF No. 94). 25 For the reasons stated below, the undersigned recommends that the district court grant 26 1 The undersigned submits these factual findings and recommendations to the District Court 27 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 2 The individually named defendants are R. Calderon, J. Custer, A. Diaz-Albarran, M. Faulkner, J. 1 Defendants’ motion. When Plaintiff’s allegations are viewed in their most favorable light, they 2 fail to show that the decision to double-cell decedent with another inmate recently released from 3 the Segregated Housing Unit (SHU) posed an objective, substantial risk of serious harm. See 4 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (holding that an Eighth Amendment failure to 5 protect claim must allege that there was “objectively” a “substantial risk of serious harm” to 6 which defendant was indifferent).3 Because Plaintiff’s speculative and general allegations do not 7 satisfy the deliberate indifference standard, I do not reach Defendants’ alternate claimed bases for 8 summary judgment. 9 I. BACKGROUND 10 Daniel Muniz was a former California Department of Corrections and Rehabilitation 11 (CDCR) inmate who was fatally attacked by his cellmate, Toribio Mendoza (Mendoza) on March 12 24, 2018, while he was confined at Kern Valley State Prison (KVSP). The Defendants are or 13 were correctional officers at KVSP when the incident occurred, except C. Pfeiffer who was the 14 warden. 15 Mendoza arrived at KVSP on July 1, 2016, from California Medical Facility (CMF). 16 Mendoza is serving a term of 109 years for kidnapping, criminal threats to cause great bodily 17 harm or death and assault with a deadly weapon. Mendoza also is a “drop out” of the Security 18 Threat Group (STG) known as the Fresno Bulldogs. Mendoza had committed 15 rules violations 19 during his incarceration between 2006 and 2018. (ECF No. 88-3, Ex. C p. 2). Some notable 20 incidents include an in-cell battery of an inmate on September 2, 2007, and a battery on another 21 inmate that caused serious injury in 2017. Id. 22 Muniz arrived at KVSP on June 2, 2016 and was eligible for an earliest release date of 23 May 6, 2030. (Ex. C p. 14). Muniz is a drop out of the South Side Kings STG. Muniz and 24 Mendoza had been cellmates together for a total of approximately three-and-one-half months, 25 3 See also Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1161 (9th Cir. 2013) (“The record, 26 viewed objectively and subjectively, is insufficient to preclude summary judgment on the claim that . . . officials were deliberately indifferent to a substantial risk that” one prisoner would assault another, since 27 the two prisoners in question “had been in general population together for an extended period with no record of any threats or problems between them.”). While reasonable minds might disagree over the best place to house decedent and his cellmate, a mere difference of opinion does not create a substantial risk. 1 including for approximately seven weeks in the same cell where Mendoza attacked Muniz on 2 March 24, 2018. Id. p. 1. 3 On March 24, 2018, at approximately 6:32 a.m., Defendants Diaz-Albarran and Calderon 4 were conducting a count of inmates and reached the cell in which Muniz and Mendoza were 5 housed. (ECF No. 93-4, Ex. 4, Diaz-Albarran Depo., p. 48). Diaz-Albarran did not hear any 6 commotion from the cell and none of the other inmates informed him that they heard any yelling 7 or screaming form the cell. Id. As he approached the cell, Diaz-Albarran encountered Mendoza, 8 who was blocking the cell-door with his body and had the lights turned off. Id. p. 28. Diaz- 9 Albarran ordered Mendoza to turn the lights on, after which the officers observed Muniz lying on 10 the ground, under the bunkbed. Diaz-Albarran yelled for help from his partner Defendant 11 Calderon, and activated his alarm, which called for medical assistance. Id. p. 31. Diaz-Albarran 12 noted that Muniz was still breathing and ordered Mendoza to “cuff up.” Id. After securing 13 Mendoza, Diaz-Albarran escorted Mendoza out of the cell. 14 Once Mendoza was removed, medical personnel attended to Muniz, and they brought him 15 down to a lower tier. (ECF No. 93-3 Ex. G., Calderon Depo., p. 45). A post hoc review of the 16 incident conducted by CDCR concludes that Mendoza used his hands and feet to injure Muniz. 17 (Ex. C. p. 4). Muniz suffered from extensive injuries to his brain including brain swelling, and a 18 subarachnoid hemorrhage. Muniz’s brain function deteriorated dramatically and ultimately 19 caused his death. 20 II. APPLICABLE LAW 21 Summary judgment is appropriate where there is “no genuine dispute as to any material 22 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 23 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 24 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 25 while a fact is material if it “might affect the outcome of the suit under the governing law.” 26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 27 F.2d 1422, 1436 (9th Cir. 1987). 1 the record, including but not limited to depositions, documents, declarations, or discovery; or 2 (2) showing that the materials cited do not establish the presence or absence of a genuine dispute 3 or that the opposing party cannot produce admissible evidence to support the fact. See Fed. R. 4 Civ. P. 56(c)(1). The court may consider other materials in the record not cited to by the parties, 5 but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified 6 School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (on summary judgment, “the court has 7 discretion in appropriate circumstances to consider other materials, [but] it need not do so”). 8 Furthermore, “[a]t summary judgment, a party does not necessarily have to produce evidence in a 9 form that would be admissible at trial.” Nevada Dep’t of Corr v. Greene, 648 F.3d 1014, 1019 10 (9th Cir. 2011). (citations and internal quotations omitted). The focus is on the admissibility of 11 the evidence’s contents rather than its form. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 12 F.3d 840, 846 (9th Cir. 2004). 13 “The moving party initially bears the burden of proving the absence of a genuine issue of 14 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 15 moving party must either produce evidence negating an essential element of the nonmoving 16 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 17 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 18 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 19 initial burden, the burden then shifts to the non-moving party “to designate specific facts 20 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 21 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than 22 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 23 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material 24 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to 25 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. 26 Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). 27 The court must apply standards consistent with Rule 56 to determine whether the moving 1 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 2 “[A] court ruling on a motion for summary judgment may not engage in credibility 3 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 4 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 5 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 6 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 7 198 F.3d 1130, 1134 (9th Cir. 2000). 8 III. DISCUSSION 9 A. Summary of Plaintiff’s Claims 10 Plaintiff alleges that Defendant Goss (the associate warden) violated Plaintiff’s 8th 11 Amendment constitutional rights in two respects. First, Plaintiff alleges that Goss was 12 deliberately indifferent to the threat Mendoza posed to other inmates and erred when he housed 13 Mendoza with Muniz, as both inmates were dropouts from rival gangs and Mendoza had a history 14 of violence and mental health issues. 15 Plaintiff also asserts Goss erred months before Mendoza attacked Muniz when he 16 rescinded part of Mendoza’s Special Housing Unit (SHU) term and “but for” this rescission, 17 Mendoza would never have been double-celled with Muniz. Goss’s decisions to rescind 18 Mendoza’s SHU term and pair him with Muniz amounted to a failure to protect Muniz. 19 Plaintiff separately claims that Defendants Diaz-Albarran and Calderon failed to protect 20 Muniz, as they were on duty at the time Mendoza attacked Muniz and, thus, should have been 21 able to hear Muniz’s labored breathing and yelling during their shifts, and relatedly, that they 22 violated Cal. Code §§ 844.6 and 845.6. 23 Notably, Plaintiff’s brief and supporting materials offered in opposition to summary 24 judgment present no facts or argument with respect to Defendants J. Custer, M. Faulkner, J. 25 Fitzpatrick, M. Jones and C. Pfeiffer. As set forth below, Defendants’ motion for summary 26 judgment establishes that Plaintiff does not have enough evidence to demonstrate that any of 27 these five defendants were deliberately indifferent to a substantial risk that Mendoza would harm 1 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 2 at 387. As Plaintiff failed to carry her burden, the undersigned limits the legal analysis of 3 Plaintiff’s claims only as to defendants Goss, Diaz-Albarran, and Calderon. See Ramirez v. City 4 of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009) (holding that a party abandons an issue by 5 failing to address it in opposition to summary judgment). 6 B. Analysis of Plaintiff’s Claims 7 1. Plaintiff’s Deliberate Indifference Claims Against Goss4 8 “The Eighth Amendment imposes a duty on prison officials to protect inmates from 9 violence at the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). In 10 order to prevail on an Eighth Amendment claim, a prisoner must show that prison officials were 11 deliberately indifferent to a substantial risk of harm to his health or safety. Farmer v. Brennan, 12 511 U.S. 825, 847 (1994). “Deliberate indifference” has both subjective and objective 13 components, meaning that objectively, the prison conditions posed a risk of serious harm and 14 subjectively a prison official must “be aware of facts from which the inference could be drawn 15 that a substantial risk of serious harm exists, and . . . must also draw the inference.” Id., at 837; 16 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013). “Deliberate 17 indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. A prison official is liable only 18 when the official “knows that inmates face a substantial risk of serious harm and disregards that 19 risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. 20 A jury may “conclude that a prison official knew of a substantial risk from the very fact 21 that the risk was obvious.” Id. at 842. For instance, if the “plaintiff presents evidence showing 22 that a substantial risk of inmate of attacks was ‘longstanding, pervasive, well-documented, or 23 expressly noted by prison officials in the past, and the circumstances suggest that the defendant- 24 4 In her opposition to Defendants’ motion for summary judgment, Plaintiff devotes a single 25 sentence to refuting Defendants’ showing that Defendants Diaz-Albarran and Calderon were not 26 deliberately indifferent. Opp. at 18. The threadbare deliberate indifference theory advanced against those two Defendants is addressed below in connection with the Court’s analysis of Plaintiff’s Cal. Government 27 Code claims against them. Although it appears Plaintiff has abandoned her deliberate indifference claims against these two correctional officers and limits her opposition to Goss’s liability, the Court nevertheless finds that for all the reasons Goss was not deliberately indifferent, neither were Defendants Diaz-Albarran 1 official being sued had been exposed to information concerning the risk and thus ‘must have 2 known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the 3 defendant-official had actual knowledge of the risk.’” Id. at 842-43. Liability for deliberate 4 indifference may not be premised on constructive notice, but prison officials cannot ignore 5 obvious dangers to inmates. See id. at 842. 6 Here, Plaintiff alleges that Defendant Goss – as the chairperson of the Institution 7 Classification Committee (ICC) on May 11, 2017 – was deliberately indifferent to the substantial 8 risk of harm Mendoza presented to the health and safety of Muniz in two respects. (Ex. C p. 50). 9 First, Plaintiff asserts that Goss’s involvement in the decision to house Muniz with Mendoza 10 demonstrated deliberate indifference. Second, Plaintiff assert Goss’s prior involvement in 11 Mendoza’s early release from administrative segregation after being assessed a 19-month term to 12 be served in segregated housing for a rules infraction involving violence likewise demonstrated 13 deliberate indifference. The two claims are analyzed below. 14 a. The Double-Celling Decision 15 Plaintiff asserts that Goss was deliberately indifferent when he authorized Muniz to 16 double-cell with Mendoza on account of the following factors: (1) that Muniz was a drop out 17 from the South Side Kings, which placed him at considerable danger given that Mendoza is a 18 Fresno Bulldog drop out, an alleged rival of the South Side Kings; (2) that Mendoza had a history 19 of violence within CDCR facilities; and (3) that Mendoza suffered from mental health issues. 20 When Mendoza arrived at KVSP, he was subjected to an Initial Classification Hearing on 21 July 13, 2016. The classification committee’s notes reflect “a thorough review” of Mendoza’s 22 case facts. After noting several prior disciplinary infractions, including incidents involving 23 violence, and memorializing that it interviewed Mendoza, the committee concluded Mendoza 24 should be doubled-celled because of “no significant history of in cell victimization or predator 25 behavior towards a cellmate.” (ECF No. 88-3, Ex. C at p. 50) 26 Plaintiff does not dispute that the committee’s decision in this regard is consistent with the 27 CDCR’s “Double-Cell Housing Policy” (ECF No. 79-3, Goss Decl., Ex. B). Under that policy, 1 significant in-cell violence against a cell partner, or verification of predatory behavior toward a 2 cell or dormitory partner shall be reviewed and evaluated for single-cell status.” Id. Plaintiff 3 does not seriously dispute that Mendoza met none of those disqualifying factors. While Mendoza 4 did sustain one rules violation for an in-cell battery, that occurred more than ten years before his 5 attack on Muniz and involved only “minor injuries” (ECF No. 88-3, Ex. C. at pp. 2, 8). See 6 Palmer v. Vasquez, No. 1:13-cv-1400-AWI-JLT, 2015 WL 5021666, at *11 (E.D. Cal. Aug. 17, 7 2015) (summary judgment granted on claim against officer who approved Plaintiff for double-cell 8 status where Plaintiff had not previously been victimized and housing decision was consistent 9 with CDCR policy). 10 Defendant Goss attests that staff are trained to immediately remove an inmate from the 11 area if they express safety or enemy concerns. (ECF 79-2, Goss Decl. ¶ 8). Goss was aware that 12 Mendoza received a rules violation for fighting, but noted that the incident occurred in the prison 13 yard and not in a cell. Goss also attests that inmates are given an opportunity to speak with each 14 other to ensure that they are compatible prior to housing them together as cellmates, and that if an 15 inmate informs staff that he is incompatible with his cellmate, they will not be housed together. 16 Id. ¶¶ 8 – 9. 17 Plaintiff does not offer any facts to dispute that Goss’s involvement in the decision to 18 double-house Muniz with Mendoza was informed and consistent with CDCR policy. Thus, there 19 is no evidence that either Mendoza or Muniz had a problem with each other prior to Mendoza’s 20 attack on Muniz. Instead, Plaintiff merely points out that Mendoza had a documented history of 21 violence and that, as such, Goss had “more than a mere suspicion that Mendoza would attack 22 again.” Opp. at 16 (citing Berg v. Kincheloe, 794 F.2d 457 (9th Cir. 1986)). But in Berg, the 23 plaintiff-inmate specifically told the correctional officer who moved him to less-secure housing 24 that his life would be in danger if he were moved. There is no such suggestion that Muniz ever 25 reported to Goss that his life would be in danger if housed with Mendoza; to the contrary, Muniz 26 never filed any complaint about Mendoza during their months’ long housing together. Just as in 27 Berg, where claims against certain correctional officers were dismissed because the plaintiff- 1 Goss had no reason to suspect a specific risk of harm between Muniz and Mendoza See Berg, 2 794 F.2d at 460 (9th Cir. 1986) (affirming grant of summary judgment where plaintiff did not 3 provide evidence demonstrating that defendants “had any reason to believe” that plaintiff would 4 be attacked). See also Shelton v. Reinke, 2013 WL 1319630, at *9 (D. Idaho Mar. 28, 2013) 5 (“Prison officials cannot be deliberately indifferent toward a purported substantial risk of harm 6 when Plaintiff fails to inform them of the risk, despite having numerous opportunities to do so”), 7 aff'd, 585 Fed.Appx. 359 (9th Cir. 2014) (unpublished). 8 Plaintiff also argues that Goss had more than a suspicion about the threat Mendoza 9 presented to Muniz because they were drop outs from rival gangs. While Plaintiff argues that 10 Mendoza may have been insincere about renouncing his gang-affiliations, and thus presumably, 11 harbored gang-rival animosities towards Muniz (ECF No. 25, Second Amended Complaint, ¶¶ 12 33-35), she offers no facts to demonstrate that was, in fact, the case. Nothing shows that 13 Mendoza associated with gang members while incarcerated or harbored malevolent intent 14 towards current or former members of any rival STGs. Additionally, because there are no 15 incident reports raised by Muniz when he was housed with Mendoza, there is no documentation 16 that could have placed Goss on notice that there was any risk of serious harm, let alone a 17 substantial risk of such harm. E.g. Shelton, 2013 WL 1319630, at *9 (finding no substantial risk 18 of serious harm where plaintiff inmate lived with cellmate for four months prior to assault and 19 never submitted a single complaint to prison officials). Even with all reasonable inferences 20 granted in her favor, Plaintiff does not point to any facts that could generate a genuine factual 21 dispute that should be resolved at trial. Plaintiff’s allegations about Mendoza’s gang affiliations 22 do not rise above speculation. 23 In Labatad v. Corr. Corp. of Am., 714 F.3d 1155 (9th Cir. 2013), the Ninth Circuit 24 affirmed the district court’s grant of summary judgment against an plaintiff-inmate who alleged 25 prison officials were deliberately indifferent in housing him with a rival gang member who 26 assaulted him. In affirming summary judgment, the Court found that a prison’s policy of 27 permitting members of different gangs to be housed together was not itself an Eighth Amendment 1 largely because the two inmates lived peacefully together for an extended period of time before 2 the they were involved in the assault. That the assaulting inmate only days earlier had been 3 involved in a violent incident with a different rival gang member was not enough to establish 4 deliberate indifference. 5 Here, Goss had even less reason to be aware of any significant risk of harm presented in 6 housing Muniz and Mendoza together than the correctional officers in Labatad because the two 7 inmates were not gang rivals, but instead, drop outs of rival gangs. Accord, Thompson v. Lee, No. 8 1:07-cv-01299-LJO-GSA-PC, 2015 WL 769683, at *7-8 (E.D. Cal. Feb. 23, 2015) (summary 9 judgment granted where plaintiff-inmate did not communicate a specific fear of harm in relation 10 to his housing with a rival gang member); Schrubb v. Simmons, 2022 WL 3717254, at * 8-9 (N.D. 11 Cal. Aug. 29, 2022) (same). Although Mendoza had been involved in previous violent events, to 12 wit, an instance of in-cell violence in 2007, and an instance of out-of-cell assault causing serious 13 bodily harm in 2017, the record does not show a pattern of behavior that would have put Goss on 14 notice that he posed a substantial risk of serious harm to Muniz. (ECF No. 88-3, Ex. C. p. 6). To 15 the contrary, there is no evidence from the moment Muniz was housed with Mendoza to the date 16 of the attach that Muniz raised any concern at all about his celling arrangement. 17 While it is undisputed that Mendoza was receiving the highest level of mental health care 18 offered at KVSP at the time of his attack on Muniz, Plaintiff identifies no facts linking Mendoza’s 19 particular mental health situation with an inference that Mendoza accordingly could not 20 appropriately be double-celled with Muniz. Indeed, the Initial Classification Hearing Committee 21 notes reflect that Mendoza had been clinically discharged from California Medical Facility and 22 stated he was in good health and ready to proceed – all of which leads to the reasonable inference 23 that Mendoza presented no mental health condition requiring single-cell housing. (ECF No. 88-3, 24 Ex. C. p. 48). In support of the argument that Mendoza’s mental health is a material fact, Plaintiff 25 points to videos of Mendoza being interviewed by prison officials after the attack that she claims 26 show Goss erred in evaluating Mendoza’s mental health in connection with his double-celling 27 decision. But the record viewed as a whole does not support a reasonable inference that 1 In particular, Plaintiff points to Mendoza’s “incomprehensible” speech pattern as evidence 2 of poor mental health, but his manner of speech had been documented in his prison file as 3 evidencing his capability to understand directions in plain, concise English and was able to 4 communicate with the housing committee. (ECF No. 88-3, Ex. C. p. 51). Given that Plaintiff’s 5 assertion is unsupported by the record, the allegation that Mendoza’s mental health was severely 6 compromised amounts to little more than speculation. In isolation, the video cannot support any 7 reasonable inference that Mendoza had severe mental defects – such an inference would require 8 expert opinion.5 9 Plaintiff also asserts Defendants’ deliberate indifference is demonstrated by facts 10 discovered during the in-cell assault review conducted shortly after the attack. Although it is 11 undisputed that the review determined that Mendoza’s July 2016 initial housing review was 12 incomplete, there is no indication any of the Defendants were involved in that initial housing 13 review. Moreover, Plaintiff fails to link the noted discrepancies – recording Mendoza’s sentence 14 and release date inaccurately and failing to note Mendoza’s reported aggression towards jail staff 15 – to any reasonable inference that the initial housing review decision to double-cell Mendoza 16 accordingly was improper. Such discrepancies do not rise to the level of creating a disputed issue 17 of material fact because they are not facts that would affect the outcome of the suit. Anderson, 18 477 U.S. at 248. 19 b. Mendoza’s SHU Confinement 20 Plaintiff next contends that Goss acted with deliberate indifference when he authorized 21 Mendoza’s early release from administrative segregation after being assessed a 19-month term to 22 be served in segregated housing for a rules infraction involving violence. 23 At the outset, Defendants urge the Court to disregard Plaintiff’s argument regarding the 24 SHU because it “was not included in the complaint.” Reply at 2 (citing inter alia Pickern v. Pier 25 26 5 Although not addressed by the parties in their summary judgment papers. Exhibit B is a video recording in which investigators attempt to ascertain Mendoza’s motivations behind his assault on Muniz. 27 According to Mendoza, Muniz was the initial aggressor over some disagreement in which Muniz attempted to contact one of Mendoza’s close friends. Mendoza allegedly struck Muniz and he stumbled into the floor and into unconsciousness. Mendoza further stated that the incident was not gang related. See 1 1 Imports (U.S.), Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (holding that a plaintiff may not raise 2 new allegations in opposition to a motion for summary judgment where the complaint does not 3 give a defendant proper notice of those allegations). Thus, under the liberal pleading standard of 4 Federal Rule of Civil Procedure 8(a)(2), a complaint must allege sufficient facts to “give the 5 defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” 6 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 7 47 (1957)). Summary judgment is not a “procedural second chance to flesh out inadequate 8 proceedings.” Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006). A 9 party may not defeat a motion for summary judgment “by raising theories that lie outside the 10 scope of their pleadings.” Wormuth v. Lammersville Union Sch. Dist., 305 F. Supp 1108, 1119 11 (E.D. Cal. 2018). 12 In Morgan v. Brown, the plaintiff-inmate alleged in the operative complaint that a 13 defendant correctional officer’s deliberate indifference in leaving a gate unsecured resulted in 14 another inmate gaining access to him and assaulting him. In opposition to summary judgment, 15 the plaintiff offered a different theory of deliberate indifference – that defendant’s failure to 16 ensure an escort officer was present for an inmate release constituted deliberate indifference. No. 17 1:17-cv-00425-LJO-JLT, 2018 WL 4385842, at *3-4 (E.D. Cal. Sep. 14, 2018). The Court found 18 that the defendant was on sufficient notice of the general legal theory of deliberate indifference 19 and, accordingly, permitted plaintiff to advance the variation of his argument in opposition to 20 summary judgment because it did not subject Defendant “to the necessity of entirely reworking 21 his defense.” Id. at *4. 22 For the same reasons articulated by the Court in Morgan, this Court will consider 23 Plaintiff’s SHU argument although not expressly set forth in the complaint. Indeed, Defendants 24 acknowledged Mendoza’s placement in the SHU in their filings in support of summary judgment 25 (see ECF No. 79-2, Goss Decl. ¶ 8), thus undermining any suggestion that permitting Plaintiff to 26 advance the SHU theory would require Defendants to rework their defense. Morgan, 2018 WL 27 4385842, *4. 1 ICC assessed a 19-month SHU term, with a Minimum Eligible Release Date (MERD) of 2 November 16, 2017. (ECF No. 94-2, Custer Decl. ¶ 5). On May 11, 2017, Defendant Goss 3 chaired a Classification Committee hearing which found that Mendoza’s term in the SHU was no 4 longer warranted. Although the ICC early terminated Mendoza’s previously assessed 19-month 5 SHU term, it is undisputed that the Committee arrived at that conclusion because Mendoza, while 6 double-celled in administrative segregation for approximately three months, remained discipline 7 free and engaged in positive programming. (ECF No. 93-1, Custer Depo. pp. 55-56). The 8 Committee’s imposition of a 19-month SHU term in Mendoza’s case was not fixed and 9 irrevocable, but rather, a “potential penalty” which commonly is suspended where the inmate 10 (like Mendoza here) committed no other SHU-able offenses within the past year. (ECF No. 94-2, 11 Custer Decl. ¶¶ 5-6; ECF No. 88-3, Ex. C pp. 50-51). The Committee further noted that Mendoza 12 possessed no mental health factors that would cause him to experience difficulty in understanding 13 the prison disciplinary process, and there was no finding that his mental health was a contributing 14 cause of the February 5, 2017 incident. The Committee noted that Mendoza had no significant 15 history of in-cell predatory/assaultive behavior towards cellmates, while mentioning his prior 16 instance of in-cell violence on September 2, 2007, as an isolated incident with no further acts of 17 violence. Id. 18 In short, Goss did not disregard any facts and circumstances suggesting that Mendoza’s 19 release from a SHU term would create a substantial risk of serious harm to Muniz. 20 2. Plaintiff’s California Government Code § 845.6 Claim Against Officers 21 Diaz-Albarran and Calderon 22 Plaintiff alleges that Officers Diaz-Albarran and Calderon, violated Cal. Govt. Code §§ 23 844.6 and 845.6 for failing their duty to monitor, check and respond to persons under their 24 custody, supervision and control. “In order to state a claim under § 845.6, a prisoner must 25 establish three elements: (1) the public employee knew or had reason to know of the need (2) for 26 immediate medical care, and (3) failed to reasonably summon such care.” Horton by Horton v. 27 City of Santa Maria, 915 F.3d 592, 606 (9th Cir. 2019) (quoting Jett v. Penner, 439 F.3d 1091, 1 In opposing summary judgment, Plaintiff’s sole mention of and allegation against 2 Defendants Diaz-Albarran and Calderon relates to Plaintiff’s assertion that they violated the 3 Eighth Amendment through deliberate indifference. Plaintiff’s theory is that Diaz-Albarran and 4 Calderon were on-duty correctional officers at the time of Mendoza’s attack against Muniz, and 5 as such “should have heard and responded to” the attack given Muniz’s alleged heavy breathing 6 and audible distress. Opp. 8-10, 18. Plaintiff wholly fails to address Defendants’ showing that 7 this conduct fails to raise a disputed issue of material fact with respect to the § 845.6 claim. 8 Nevertheless, the Court will incorporate the substance of Plaintiff’s deliberate indifference claims 9 against Diaz-Albarran and Calderon and consider below whether they satisfy the elements of § 10 845.6. 11 Under the first Jett prong, Plaintiff points to a video that arguably shows Muniz loudly 12 hyperventilating while being treated by medical staff. (ECF No. 88-3, Ex. A).6 The video has no 13 timestamp and it is unknown how proximate in time it was taken after Officers Calderon and 14 Diaz-Albarran found Muniz under his cell bunk. However, there is reason to believe the video 15 was not contemporaneous with the officers’ initial discovery of Muniz because Diaz-Albarran 16 attested during his deposition that when he found Muniz at around 6:32 a.m., he was 17 unresponsive or breathing normally. (ECF No. 93-4, Diaz-Albarran Depo. p. 48). Aside from 18 Plaintiff’s speculation that Muniz must have been exhibiting audible signs of distress, there is 19 nothing in the record either by the way of prisoner affidavits or depositions that Muniz was, in 20 fact, in a hyperventilating state at the time that he was discovered. Accordingly, even with all 21 reasonable inferences granted in Plaintiff’s favor, it does not follow that because Muniz was 22 breathing loudly while attended by medical staff, that he also was in the same state when he was 23 discovered by the officers (thereby, presumably, giving them reason to foreknow of an immediate 24 need of medical attention). 25 Likewise, Plaintiff offers no evidence that the Officers failed the second and third prongs 26 27 6 The individual depicted in the video is not outright identified as Muniz but given that his facial injuries were consistent with what was documented on the record, and the man had a “SSK” tattoo across his chest, which presumably stands for “South Side Kings”, a STG that Muniz used to associate himself 1 outlined by Jett. Thus, no information contradicts Calderon’s deposition testimony that he 2 immediately asked the control booth to open the cell door and called for responding staff upon 3 discovering Muniz. (ECF No. 93-3, Ex. G, Calderon Depo. pp. 44-45). 4 Because Plaintiff fails to present any disputed issues of material fact in support of her § 5 845.6 claims against Diaz-Albarran and Calderon, summary judgment is appropriate. 6 3. Plaintiff’s Loss of Familial Relations Claims 7 Parents have a Fourteenth Amendment liberty interest in the companionship and society 8 of their children. Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). However, only official 9 conduct that “shocks the conscience” is cognizable as a due process violation. County of 10 Sacramento v. Lewis, 523 U.S. 833, 846 (1998). (citations omitted). The key inquiry is “whether 11 the behavior of the government official is so egregious, so outrageous, that it may fairly be said to 12 shock the contemporary conscience.” Id. at 847 n. 8. Typically, the type of conduct which is 13 most likely to rise to the “conscience-shocking level” is “conduct intended to injure in some way 14 unjustifiable by any governmental interest.” Id. at 849. Nevertheless, conduct which was not 15 intentional, but rather deliberately indifferent, may rise to the conscience-shocking level in some 16 instances. Id. at 849-50. 17 As there are no findings of deliberate indifference in the underlying failure to protect 18 claims, Plaintiff’s familial relation claims must also fail. See Toguchi, 391 F.3d at 1061 (“because 19 a due process claim predicated upon the violation of a parent’s liberty interest in the 20 companionship of his child requires a showing of more than negligence, entry of summary 21 judgment” affirmed where deliberate indifference claims failed); Cotta v. County of Kings, 79 F. 22 Supp.2d 1148, 1180 (E.D. Cal. 2015) (same). 23 4. Plaintiff’s Wrongful Death Claims 24 Plaintiff alleges Defendants breached their duty owed to Muniz, which includes a duty to 25 provide “safe and appropriate prison custody,” obey court orders, summons necessary and 26 appropriate care, refrain from abusing their authority, and refrain from violating his United States 27 and California constitutional rights. (ECF No. 25 ¶ 116). Plaintiff alleges she suffered injuries 1 “The elements of the cause of action for wrongful death are the tort (negligence or other 2 wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by 3 the heirs.” Quiroz v. Seventh Ave. Center, 140 Cal.App.4th 1256, 1263 (2002) (emphasis 4 omitted). In order to support a finding of negligence, the plaintiff must show that a defendant had 5 a duty of care, he breached that duty, and that the breach was the proximate or legal cause of the 6 injury. Cotta, 79 F. Supp. 3d at 1183. In Cotta, the court found that in a situation where prison 7 officials had no reason to be aware of a foreseeable risk of harm, there was no breach of duty. Id 8 As discussed above, there is no evidence that Defendants had any reason to believe that 9 Mendoza posed a risk to Muniz’s safety. There was no indication of any adversity between the 10 two prior to Muniz’s death. In other words, the undisputed facts demonstrate that Mendoza did 11 not pose a foreseeable risk of harm to Muniz of which Defendants were aware (or should have 12 been aware). Nor does Plaintiff offer any disputed issues of material fact as to Defendants’ 13 breach of duties to summons necessary and appropriate care upon discovering Muniz, and to 14 refrain from abusing their authority and violating inmates’ constitutional rights. Accordingly, the 15 undisputed facts demonstrate that Defendants did not breach their duty of care to protect Muniz 16 from any foreseeable harm. 17 IV. RECOMMENDATION 18 Based on the foregoing, it is HEREBY RECOMMENDED that Defendants motion for 19 summary judgment be GRANTED in whole. 20 These Findings and Recommendation will be submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within 30 days after 22 being served with these Findings and Recommendation, the parties may file written objections 23 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 24 and Recommendation.” The parties are advised that failure to file objections within the specified 25 / / / 26 / / / 27 / / / 1 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 2 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 | IT IS SO ORDERED. “| Dated: _ January 13, 2023 | hr 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17