Tate v. Delgadillo ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DEREK TATE, 7 Case No. 20-cv-09476 EJD (PR) Plaintiff, 8 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 9 v. 10 D. DELGADILLO, 11 Defendant. (Docket No. 30) 12 13 14 Plaintiff, a California inmate, filed the instant pro se civil rights complaint under 42 15 U.S.C. § 1983, based on an alleged attack by two inmates which was orchestrated by 16 Defendant Correctional Officer D. Delgadillo, in retaliation for filing inmate appeals. Dkt. 17 No. 1. The Court dismissed the complaint with leave to amend for Plaintiff to attempt to 18 correct deficiencies with respect to an equal protection claim; the claims against two inmates 19 were dismissed. Dkt. No. 9 at 3-4. Plaintiff filed notice that he wished to proceed on the 20 cognizable First and Eighth Amendment claims against Defendant Delgadillo and strike all 21 other claims from the complaint. Dkt. No. 13. Accordingly, the Court struck the non- 22 cognizable claims and ordered service of the matter on Defendant Delgadillo. Dkt. No. 14. 23 Defendant filed a motion for summary judgment, supported by declarations and 24 exhibits, asserting that there is no evidence to support Plaintiff’s allegations and that 25 irrefutable evidence demonstrates inmates had a legitimate reason for being released from 26 their cells at the time of the purported incident, and that he is entitled to qualified immunity. 27 1 Dkt. No. 30.1 The matter was stayed while Plaintiff appealed discovery issues to the Ninth 2 Circuit. Dkt. No. 64. After the Ninth Circuit denied the appeal for lack of jurisdiction, Dkt. 3 No. 68, the Court reset the briefing schedule. Dkt. No. 70. Plaintiff filed opposition, Dkt. 4 No. 71, and Defendant filed a reply, Dkt. No. 72. 5 For the reasons discussed below, Defendant’s summary judgment motion is 6 GRANTED. 7 DISCUSSION 8 I. Statement of Facts2 9 Plaintiff was housed at SVSP in Facility D, Housing Unit D2, Cell 213, from 10 February 26, 2017, to August 9, 2017. Delgadillo Decl. ¶ 4 (Dkt. No. 30-5 at 2); Lopez Decl. 11 ¶ 3, Ex. A (Dkt. No. 30-4 at 4, 5, 6). At all times relevant to this action, Inmates Jeremie 12 Overstreet (CDCR No. T88986) and Armando Cuellar (CDCR No. AQ6797) were also 13 housed at SVSP in Facility D, Housing Unit D2. Lopez Decl. ¶ 3, Ex. A (Dkt. No. 30-4 at 14 4, 5, 6). 15 This action is based on an alleged “gassing” 3 attack by the two inmates against 16 Plaintiff on August 9, 2017. Plaintiff claims Defendant Delgadillo facilitated the attack to 17 retaliate against Plaintiff for filing grievances. Liberally construing the complaint, the Court 18 found Plaintiff stated cognizable claims of retaliation and failure-to-protect against 19 Defendant Delgadillo. Dkt. No. 14. 20 21 1 In support of the motion, Defendant submits several declarations with supporting exhibits: (1) the declaration of counsel Anne M. Kammer, Deputy Attorney General, along with Exhibits 1 through 22 5, which include relevant excerpts from the transcript of Plaintiff’s deposition taken on December 8, 2021 (Ex. 1, hereinafter “Pl. Dep.”), Dkt. No. 30-3; (2) the declaration of G. Lopez, Litigation 23 Coordinator at SVSP, with Exhibits A (bed assignment histories), B (Rules Violation Reports histories), and C (job assignment histories), Dkt. No. 30-4; (3) the declaration of Defendant D. 24 Delgadillo, along with Exhibit D (Rules Violation Report dated August 9, 2017, log no. 3144526), Dkt. No. 30-5; (4) the declaration of Sgt. J. Sevey of SVSP, with Exhibit F (Crime/Incident Report 25 dated August 9, 2017, log no. SVSP-FD2-17-08-0526), Dkt. No. 30-6. 2 The following facts are undisputed unless otherwise indicated. 26 3 According to Defendant: “‘gassing’ means intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids 27 or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the persons skin or membranes.” Dkt. 1 A. Plaintiff’s Account 2 The following is Plaintiff’s version of events. Plaintiff states that Inmates Overstreet 3 and Cuellar previously attacked him on July 10, 2017. Dkt. No. 1 at 11. Sgt. Sevey observed 4 Plaintiff’s injuries after the attack on that date and refused to document them. Pl. Decl. in 5 Opp. at ¶ 23 (Dkt. No. 71-2 at 5). Thereafter, Plaintiff refused to exit his cell because of the 6 alleged attacks by inmates in July. Dkt. No. 1 at 14. Plaintiff admits that he never told any 7 correctional officer that the reason he refused to leave his cell from July 11, 2017 to August 8 9, 2017, was because he feared being attacked. Pl. Dep. at 141:11-19 (Dkt. No. 30-3 at 34). 9 Plaintiff alleges several retaliatory acts by Defendant involving interference with his 10 meals during late 2016 and early 2017. Dkt. No. 1 at 20-21. The last grievance Plaintiff 11 submitted against Defendant Delgadillo was on March 19, 2017, for making a threatening 12 hand gesture and comment. Pl. Dep. At 134:18-20 (Dkt. No. 30-3 at 29). Plaintiff claims 13 that on April 19, 2016, Defendant Delgadillo threatened him by stating, “you write too many 14 602s, your life can always get harder around here [sic]”; Defendant then refused to sign a 15 CDCR Form 22 (Inmate Request Form) and destroyed it after reading it. Dkt. No. 1 at 19- 16 20. Thereafter until August 9, 2017, Plaintiff had no further negative interactions with 17 Defendant by avoiding him as much as possible. Id. at 134:24-135:7 (Dkt. No. 30-3 at 29- 18 30). 19 On August 9, 2017, at approximately 1530 hours, Inmates Overstreet and Cuellar 20 came to the front of Plaintiff’s cell and “began to taunt and harass” him for not coming out 21 of his cell. Dkt. No. 1 at 14; Dkt. No. 71-2 at 5. Plaintiff observed the two inmates speak 22 with Defendant Delgadillo through the control booth window and leave. Dkt. No. 1 at 15; 23 Dkt. No. 71-2 at 5. When these two inmates returned later at about the “1610 hr,” Defendant 24 Delgadillo opened Plaintiff’s cell door and the two inmates threw a coffee canister full of 25 urine and feces into Plaintiff’s cell. Dkt. No. 1 at 16-17. Defendant could not initially open 26 the door because Plaintiff had attempted to jam the door. Id. at 17. However, Defendant 27 “began to open and close the… door continually” until there was enough of an opening for 1 the inmates to throw the canister into Plaintiff’s cell. Id. Plaintiff claims that after the attack, 2 he threatened to “write-up” Defendant Delgadillo for the attack. Id. at 23. Plaintiff claims 3 Defendant Delgadillo responded, “there’s more where that came from, go ahead, your 602s 4 mean hard time for you, not me.” Id. 5 Plaintiff began experiencing chest pains from the stench inside his cell from the 6 gassing attack. Id. at 24. After Defendant Delgadillo opened the cell door for the pill call 7 line at about “2000 hr,” Plaintiff informed Officer Ventura that he was experiencing chest 8 pains and shortness of breath. Id. After Sgt. Sevey4 arrived at approximately 2040 hours, 9 Plaintiff told him about the gassing attack and showed him “the soiled linens used to clean 10 the feces and urine.” Id. at 24-25. Sgt. Sevey assured Plaintiff that the issue would be 11 addressed but that Plaintiff’s medical issues needed to be taken care of first. Id. at 25. Sgt. 12 Sevey observed the soiled linen but “failed to obtain/preserve and collect this evidence.” Pl. 13 Decl. at ¶ 28 (Dkt. No. 71-2 at 6). 14 Plaintiff states that there were “no porter related duties existed during the 1600 hr 15 count time” on August 9, 2017. Pl. Decl. at ¶ 4 (Dkt. No. 71-2 at 2). Plaintiff also states 16 that he did not report for any D2 housing porter related duties from September 30, 2016 17 through August 9, 2017. Id. at ¶ 12. Lastly, Plaintiff states that he was not disciplined for 18 refusing to work on August 9, 2017. Id. at ¶ 27. 19 Plaintiff also states that he was “falsely accused of threatening Defendant” and placed 20 in administrative segregation on August 9, 2017. Dkt. No. 1 at 25. 21 B. Defendant’s Account 22 The following is Defendant Delgadillo’s version of events. In contrast to Plaintiff’s 23 account, Defendant states that there was a legitimate reason for opening the inmates’ cell 24 doors at the relevant time and denies any retaliatory motive in doing so. Defendant also 25 26 4 In the complaint, Plaintiff identified the sergeant as “Pavey.” Then in his opposition, 27 Plaintiff refers to him as “Sevey.” Dkt. No. 71-1 at 4-5. Accordingly, the Court assumes that the parties agree that this individual is Sgt. Sevey, who submitted a declaration in 1 does not recall a gassing incident against Plaintiff on August 9, 2017. 2 According to Defendant, there is no record of any incident warranting a disciplinary 3 action, i.e., a Rules Violation Report – “RVR,” involving Plaintiff and Inmates Overstreet 4 and Cuellar on July 10, 2017, August 9, 2017, or any other date. Delgadillo Decl. ¶¶ 6, 15 5 (Dkt. No. 30-5 at 3, 5); Sevey Decl. ¶¶ 4-5 (Dkt. No. 30-6 at 2); Lopez Decl. ¶ 4, Ex. B (Dkt. 6 No. 30-4 at 8-9). CDCR regulations provide that any incident between inmates that involves 7 violence and/or results in physical injury is considered an unusual occurrence and is entered 8 into the daily log; it also qualifies as a serious rules violation, and any assault by an inmate 9 on another inmate or a staff member results in a write up and possible refer to the district 10 attorney for pursuit of criminal charges.5 Delgadillo Decl. ¶ 5 (Dkt. No. 30-5 at 2-3); Sevey 11 Decl. ¶ 3 (Dkt. No. 30-6 at 2). Furthermore, during his deposition, Plaintiff stated that he 12 “had no issues with” Inmates Overstreet and Cuellar before the day of the alleged attack on 13 August 9, 2017. Pl. Dep. at 84:4-7, 135:24-25 (Dkt. No. 30-3 at 14, 30). 14 On August 9, 2017, Plaintiff and Inmates Overstreet and Cuellar were assigned to 15 work as third-watch porters.6 Delgadillo Decl. ¶ 8 (Dkt. No. 30-5 at 3); Lopez Decl. ¶ 5, 16 Ex. C (Dkt. No. 30-4 at 11-14). These inmates would have been subject to release from their 17 cells during the regularly scheduled work hours of 1400-1645 hours and 1715-2100 hours. 18 Delgadillo Decl. ¶¶ 7, 9 (Dkt. No. 30-5 at 4). As the third-watch control booth officer from 19 1400 hours to 2200 hours on August 9, 2017, it would have been part of Defendant 20 Delgadillo’s job duties to release the inmates from their cells for the purpose of completing 21 their work assignments. Id. 22 At approximately 1615 hours, Defendant Delgadillo attempted to release Plaintiff 23 24 5 For example, on July 11, 2017, Plaintiff was charged with an RVR for fighting Inmate Taylor (CDCR No. AR0369). Kammer Decl. ¶ 4, Ex. 3 (Dkt. No. 30-3 at 39-43); Dkt. No. 25 1 at 14. After the incident, Plaintiff stated that there was no animosity and no unresolved issues with Inmate Taylor and informed staff that he could continue to program safely in his 26 assigned housing unit. Kammer Decl. ¶ 3, Ex. 2 (Dkt. No. 30-3 at 37). 6 A porter’s duties include “performing all janitorial duties necessary to maintain the 27 cleanliness of the porter’s assigned building, including ensuring the restroom/toilet area is clean and fully stocked with supplies, cleaning shower areas, sweeping, mopping, washing 1 from his cell for the purpose of working his shift as a porter, but Plaintiff refused to come 2 out and work. Delgadillo Decl. ¶ 10, Ex. D (Dkt. No. 30-5 at 8). Defendant Delgadillo was 3 not able to open Plaintiff’s cell door more than a foot wide because the cell door was jammed 4 with papers; Plaintiff told Defendant Delgadillo to close his cell door, and after multiple 5 attempts, Defendant was able to do so. Id. Defendant Delgadillo does not recall a gassing 6 incident by Inmates Overstreet and Cuellar at that time. Id. at ¶ 15 (Dkt. No. 30-5 at 5). 7 Later that day at approximately 2030 hours, Plaintiff was released from his cell for 8 medication distribution. Delgadillo Decl. ¶ 12, Ex. D (Dkt. No. 30-5 at 8). Plaintiff refused 9 to take his medicine and then refused to return to his cell after Defendant Delgadillo 10 instructed him to do so. Id. Plaintiff threatened Defendant, stating, “‘I’m going to stab you 11 [in] the neck you fat son of a bitch,’” while “making a stabbing gesture with his right hand 12 towards his own throat area.” Id. Sgt. J. Sevey responded to the housing unit and was 13 informed by Defendant Delgadillo that Plaintiff had made a threat towards him. Id.; Sevey 14 Decl. ¶ 4 (Dkt. No. 30-6 at 2-3). Sgt. Sevey also does not recall a gassing incident against 15 Plaintiff by Inmates Overstreet and Cuellar on August 9, 2017. Sevey Decl. ¶ 5 (Dkt. No. 16 30-6 at 2-3). Sgt. Sevey attempted to talk to Plaintiff, who was agitated, and instructed him 17 to return to his cell. Delgadillo Decl. ¶ 12 (Dkt. No. 30-5 at 5); Sevey Decl. ¶ 4, Ex. F (Dkt. 18 No. 30-6 at 5). Plaintiff told Sgt. Sevey that he was having chest pains; Defendant Delgadillo 19 activated the Housing Unit’s Audible Alarm and Sgt. Sevey initiated a Code 1 medical 20 emergency response via institutional Radio. Id. At approximately 2100 hours, Plaintiff was 21 transported by another officer to the Correctional Treatment Center. Id. The medical report 22 from this incident indicates Plaintiff suffered no injuries. Kammer Decl. ¶ 6, Ex. 4 (Dkt. 23 No. 30-3 at 45). When staff wanted to send him to an outside hospital, Plaintiff refused to 24 go. Pl. Dep. at 131:15-19,138:8-10 (Dkt. No. 30-3 at 27, 33). 25 The same day, Defendant Delgadillo authored and submitted an RVR (log no. 26 3144526) charging Plaintiff with threatening great bodily injury or death and a 27 Crime/Incident Report Part C – Staff Report (CDCR 837-C) (log no. SVSP-FD2-17-08- 1 0526), documenting the incident. Delgadillo Decl. ¶ 13, Ex. D (Dkt. No. 30-5 at 12-13). 2 Plaintiff was found guilty of the charge. Id. Sgt. Sevey also authored and submitted a 3 Crime/Incident Report Part C – Staff Report (CDCR 837-C) (log no. SVSP-FD2-17-08- 4 0526), also reporting that Plaintiff had threatening Defendant Delgadillo with great bodily 5 injury. Sevey Decl. ¶ 5, Ex. F (Dkt. No. 30-6 at 2-3, 5). Neither staff report mentions a 6 gassing incident against Plaintiff by Inmates Overstreet and Cuellar or soiled linens. 7 Inmates Overstreet and Cuellar were not charged with a rule violation for any 8 incident, gassing or otherwise, occurring on August 9, 2017. Delgadillo Decl. ¶ 15 (Dkt. 9 No. 30-5 at 5); Sevey Decl. ¶ 5 (Dkt. No. 30-6 at 2-3). An investigation into Plaintiff’s claim 10 regarding the alleged gassing incident concluded that no violation of policy or procedure 11 occurred, and that on August 9, 2017, Defendant Delgadillo attempted to release Plaintiff 12 from his cell so that Plaintiff could conduct his assigned duties as a porter. Delgadillo Decl. 13 ¶ 16 (Dkt. No. 30-5 at 5-6); Dkt. No. 1-1 at 7-10. 14 Prior to August 9, 2017, Plaintiff submitted grievances against Defendant Delgadillo 15 but none of Plaintiff’s claims were substantiated. Id. ¶ 17. 16 II. Summary Judgment 17 Summary judgment is proper where the pleadings, discovery and affidavits show that 18 there is “no genuine dispute as to any material fact and the movant is entitled to judgment 19 as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment “against a 20 party who fails to make a showing sufficient to establish the existence of an element essential 21 to that party’s case, and on which that party will bear the burden of proof at trial . . . since a 22 complete failure of proof concerning an essential element of the nonmoving party’s case 23 necessarily renders all other facts immaterial.” Celotex Corp. v. Cattrett, 477 U.S. 317, 322- 24 23 (1986). A fact is material if it might affect the outcome of the lawsuit under governing 25 law, and a dispute about such a material fact is genuine “if the evidence is such that a 26 reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 27 Inc., 477 U.S. 242, 248 (1986). 1 Generally, the moving party bears the initial burden of identifying those portions of 2 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 3 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 4 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 5 than for the moving party. But on an issue for which the opposing party will have the burden 6 of proof at trial, the moving party need only point out “that there is an absence of evidence 7 to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition to the 8 motion is merely colorable, or is not significantly probative, summary judgment may be 9 granted. See Liberty Lobby, 477 U.S. at 249-50. 10 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 11 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 12 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex Corp., 13 477 U.S. at 324 (citations omitted). “This burden is not a light one. The non-moving party 14 must show more than the mere existence of a scintilla of evidence.” In re Oracle Corporation 15 Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Liberty Lobby, 477 U.S. at 16 252). “The non-moving party must do more than show there is some ‘metaphysical doubt’ 17 as to the material facts at issue.” Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 18 Corp., 475 U.S. 574, 586 (1986)). “In fact, the non-moving party must come forth with 19 evidence from which a jury could reasonably render a verdict in the non-moving party’s 20 favor.” Id. (citing Liberty Lobby, 477 U.S. at 252). If the nonmoving party fails to make 21 this showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 22 477 U.S. at 323. 23 The Court’s function on a summary judgment motion is not to make credibility 24 determinations or weigh conflicting evidence with respect to a material fact. See T.W. Elec. 25 Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The 26 evidence must be viewed in the light most favorable to the nonmoving party, and the 27 inferences to be drawn from the facts must be viewed in a light most favorable to the 1 nonmoving party. See id. at 631. It is not the task of the district court to scour the record in 2 search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 3 1996). The nonmoving party has the burden of identifying with reasonable particularity the 4 evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, the 5 district court may properly grant summary judgment in favor of the moving party. See id.; 6 see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 (9th Cir. 7 2001). The court’s obligation to view evidence in the light most favorable to the non-movant 8 does not require it to ignore undisputed evidence produced by the movant. L.F. v. Lake 9 Washington School District, 947 F.3d 621, 625 (9th Cir. 2020). 10 Courts “may not simply accept what may be self-serving account by the police 11 officer,” especially in light of contrary evidence. Zion v. County of Orange, 874 F.3d 1072, 12 1076 (9th Cir. 2017) (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994); see id. 13 (finding summary judgment inappropriate when officer’s testimony that a knife-wielding 14 suspect was trying to get up after being shot at 18 times, with 9 of those shots at close range 15 while the suspect was lying on the ground, was contradicted by the video which did not show 16 the suspect trying to get up). “When opposing parties tell different stories, one of which is 17 blatantly contradicted by the record, so that no reasonable jury could believe it, a court 18 should not adopt that version of the facts for purposes of ruling on a motion for summary 19 judgment.” Scott v. Harris, 550 U.S. 372, 380-83 (2007) (police officer entitled to summary 20 judgment based on qualified immunity in light of video evidence capturing plaintiff’s 21 reckless driving in attempting to evade capture which utterly discredits plaintiff’s claim that 22 there was little or no actual threat to innocent bystanders); see Intel Corp. Inv. Policy Comm. 23 v. Sulyma, 140 S. Ct. 768, 779 (2020) (in ERISA case where the issue was whether plaintiff 24 had actual knowledge of an alleged fiduciary breach, the court indicated that plaintiff’s 25 denial of knowledge could be discredited at summary judgment stage if it was blatantly 26 contradicted by electronic records showing plaintiff viewed a website containing relevant 27 disclosures of investment decisions); cf. Hughes v. Rodriguez, 31 F.4th 1211, 1219 (9th Cir. 1 2022) (district court erred in disregarding all of plaintiff’s testimony where bodycam footage 2 of arrest blatantly contradicted some but not all of the testimony; video did not depict 3 whether plaintiff was punched after he was handcuffed, and panel majority found audio of 4 the arrest was also unclear as to the sequence). 5 A. Failure to Protect Claim 6 Plaintiff claims Defendant Delgadillo violated the Eighth Amendment by failing to 7 protect him from the attack by Inmates Overstreet and Cuellar. Dkt. No. 1 at 34. Defendant 8 asserts that he did not fail to protect Plaintiff from a known risk of harm to Plaintiff’s safety. 9 Dkt. No. 30-1 at 12. 10 The Eighth Amendment requires that prison officials take reasonable measures to 11 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In 12 particular, prison officials have a duty to protect prisoners from violence at the hands of 13 other prisoners. Id. at 833; Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. 14 Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005); Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th 15 Cir. 1982). The failure of prison officials to protect inmates from attacks by other inmates 16 or from dangerous conditions at the prison violates the Eighth Amendment when two 17 requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) 18 the prison official is, subjectively, deliberately indifferent to inmate health or safety. Farmer, 19 511 U.S. at 834. A prison official is deliberately indifferent if he knows of and disregards an 20 excessive risk to inmate health or safety by failing to take reasonable steps to abate it. Id. at 21 837. 22 A prisoner may state a § 1983 claim under the Eighth Amendment against prison 23 officials only where the officials acted with “deliberate indifference” to the threat of serious 24 harm or injury to an inmate by another prisoner. See Berg v, Kincheloe, 794 F.2d 457, 459 25 (9th Cir. 1986). However, an Eighth Amendment claimant need not show that a prison 26 official acted or failed to act believing that harm actually would befall an inmate; it is enough 27 that the official acted or failed to act despite his knowledge of a substantial risk of serious 1 harm. See Farmer, 511 U.S. at 842; see also Lemire v. Cal. Dept. Corrections & 2 Rehabilitation, 726 F.3d 1062, 1078 (9th Cir. 2013) (articulating two-part test for deliberate 3 indifference: plaintiff must show, first, that risk was obvious or provide other evidence that 4 prison officials were aware of the substantial risk to the inmates’ safety, and second, no 5 reasonable justification for exposing inmates to risk). But while obviousness of risk may be 6 one factor in demonstrating subjective knowledge, a defendant’s liability must still be based 7 on actual awareness of the risk rather than constructive knowledge. Harrington v. Scribner, 8 785 F.3d 1299, 1304 (9th Cir. 2015). 9 While the deliberate indifference standard requires a finding of some degree of 10 individual culpability, it does not require an express intent to punish. See Haygood v. 11 Younger, 769 F.2d 1350, 1354-55 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 12 (1986). A prison official need not “believe to a moral certainty that one inmate intends to 13 attack another at a given place at a time certain before that officer is obligated to take steps 14 to prevent such an assault.” See Berg, 794 F.2d at 459. Before being required to take action 15 he must, however, have more than a “mere suspicion” that an attack will occur. See id. 16 While a prisoner’s failure to give prison officials advance notice of a specific threat is not 17 dispositive with respect to whether prison officials acted with deliberate indifference to the 18 prisoner’s safety needs, deliberate indifference will not be found where there is no other 19 evidence in the record showing that the defendants knew of facts supporting an inference 20 and drew the inference of substantial risk to the prisoner. Labatad v, Corrections Corp. of 21 America, 714 F.3d 1155, 1160-61 (9th Cir. 2013) (finding no deliberate indifference to 22 prisoner’s safety where the record, viewed objectively and subjectively, did not lead to an 23 inference that the prison officials responsible for making the prisoner’s cell assignment were 24 aware that he faced a substantial risk of harm). 25 Defendant asserts that there is no evidence to support Plaintiff’s claim that Inmates 26 Overstreet and Cuellar posed an objectively serious risk of harm to Plaintiff’s safety. Dkt. 27 No. 30-1 at 13. Defendant points out that the three inmates were housed together in Facility 1 D, Housing Unit D12, floor 2, from March 1, 2017 through August 9, 2017, with no record 2 of any incidents, altercations, or enmity amongst them. Id., citing Delgadillo Decl. ¶¶ 4, 6, 3 15; Sevey Decl. ¶ 4; Lopez Decl. ¶ 4, Ex. B. Defendant also asserts that Plaintiff stated 4 during his deposition that he “had no issues with” Inmates Overstreet and Cuellar. Id., citing 5 Pl. Dep. at 135:24-25. Furthermore, Defendant asserts that there is no record of any incident 6 occurring on July 10, 2017, involving Plaintiff and the two inmates. Id. Defendant asserts 7 that under these circumstances, no trier of fact would conclude that Inmates Overstreet and 8 Cuellar posed a threat to Plaintiff’s safety, much less a substantial one. Id. 9 Furthermore, Defendant asserts that even assuming arguendo that Inmates Overstreet 10 and Cuellar posed an objectively serious harm to Plaintiff’s safety, the undisputed evidence 11 shows that Defendant Delgadillo was neither aware of, nor deliberately indifferent to, a 12 substantial risk of serious harm to Plaintiff. Dkt. No. 30-1 at 14. Defendant Delgadillo 13 states that he was not aware of any incident involving Plaintiff and Inmates Overstreet and 14 Cuellar on July 10, 2017. Id., citing Delgadillo Decl. ¶ 6. Defendant also points out that 15 Plaintiff admitted that he never told any correctional officers – including Defendant 16 Delgadillo, that he refused to leave his cell from July 11, 2017 to August 9, 2017, out of fear 17 of being attacked. Id., citing Pl. Dep. at 141:11-19. Furthermore, after a fight with Inmate 18 Taylor, Plaintiff informed staff that he could program safely on the yard. Id., citing Kammer 19 Decl. ¶ 3, Ex. 2. Defendant asserts that Plaintiff’s allegations are based on mere speculation 20 and inference based on a “sequence of events.” Dkt. No. 30-1 at 14. Defendant asserts that 21 Plaintiff admits he could not hear the alleged conversation between Defendant and the two 22 inmates shortly before the alleged attack because “they started talking in lower tones” and 23 he “was unable to hear everything that they said.” Id. Defendant asserts that Defendant 24 Delgadillo opened the cell doors at that time to release Plaintiff and Inmates Overstreet and 25 Cuellar for the purpose of completing their work assignments. Id. at 15, citing Delgadillo 26 Decl. ¶¶ 8, 9; Lopez Decl. ¶ 5, Ex. C. 27 In opposition, Plaintiff asserts that the alleged attack occurred at a time “when no 1 inmate movement is allowed” and he was “unprepared and surprised.” Dkt. No. 71 at 2. He 2 largely relies on his complaint, deposition testimony, and declaration, along with documents 3 submitted in support. See generally Dkt. No. 71, 71-1. He asserts that Defendant Delgadillo 4 authored a “false” RVR to cover-up the attack. Id. at 4. Plaintiff also refutes Defendant’s 5 assertion that he opened the cell doors to release Plaintiff and the other inmates for porter 6 duty, asserting that he was never assigned to porter duties and that furthermore, all porter 7 duties had been suspended. Id. at 5-6. In other words, Plaintiff is asserting that Defendant’s 8 purported reason for opening the cell doors is false. Plaintiff asserts that Defendant spoke 9 with the inmates shortly before the attack, and that he and Defendant had a heated, 10 derogatory exchange immediately following the gassing incident. Id. at 9-10. He asserts 11 that the Defendant was on notice that a viable threat was apparent because he saw Inmates 12 Overstreet and Cuellar taunt and harass Plaintiff shortly before the attack. Id. at 19-20. 13 Furthermore, when Defendant inquired of them, “Hey what was all that about?”, Inmate 14 Cuellar said, “He ain’t been to the yard in over four weeks scary ass nigga…” Id. at 20. 15 Plaintiff asserts that Defendant therefore had a “duty to speak with the Plaintiff and have the 16 Plaintiff explain why he had refused to leave his cell.” Id. Plaintiff asserts that Defendant 17 has not refuted this exchange in his motion, and that he was thereby informed of Plaintiff’s 18 refusal to exit his cell for the last four weeks. Id. at 20, 24. 19 In reply, Defendant asserts that Plaintiff’s sworn statements are self-serving and 20 insufficient to create a genuine dispute of fact, and Plaintiff has proffered no other evidence 21 to substantiate his claims. Dkt. No. 72 at 2. Defendant asserts that the documentary evidence 22 submitted by Plaintiff directly contradicts key portions of his declaration. Id. As an 23 example, Defendant points to the July 9, 2017 - Request for Interview, Item, or Service and 24 attachments, which demonstrates that Plaintiff was assigned as a third-watch porter 25 beginning on September 30, 2016, and through August 9, 2017, and that Plaintiff knew of 26 this assignment: in the Request form, Plaintiff inquired whether he could get a paid for the 27 job, and the Assignment Roster indicates that Plaintiff was a porter as of September 30, 1 2016. Id., citing Dkt. No. 71-3 at 1-3. Defendant asserts that these documents directly 2 undermine Plaintiff’s repeated insinuations that he was not a third-watch porter and therefore 3 Defendant Delgadillo should not have opened his cell door to release him for such duties. 4 Id. Defendant also points out that the Job Performance Sheets that Plaintiff submits with his 5 opposition, Dkt. No. 71-3 at 7-40, confirm his porter assignment and demonstrate the 6 undisputed fact that Plaintiff frequently refused to perform his duties as a porter. Dkt. No. 7 72 at 2. Defendant also asserts that the provider notes from August 9, 2017, regarding 8 Plaintiff’s complaints of chest pain show that Plaintiff refused treatment for those pains and 9 instead complained of constipation. Id. at 3, citing Dkt. No. 71-4 at 1-7. Defendant asserts 10 that these notes directly contradict Plaintiff’s claim that he “required immediate medical 11 attention,” or otherwise suffered any injuries that day. Id. Because Plaintiff’s documentary 12 evidence undermines and otherwise does not support his own sworn statements, Defendant 13 assert that his statements are insufficient to create a genuine issue of material fact. Id. 14 After carefully reviewing the papers and viewing the evidence in the light most 15 favorable to Plaintiff, the Court finds that the evidence presented does not show a genuine 16 dispute as to any material fact relating to Plaintiff’s failure to protect claim against 17 Defendant Delgadillo. Even if it were true that Plaintiff was gassed by Inmates Overstreet 18 and Cuellar on August 9, 2017, despite the lack of documentation that such an incident 19 occurred, the undisputed evidence shows that Defendant Delgadillo did not know of, nor did 20 he disregard, an excessive risk to Plaintiff’ safety. 21 First of all, the Court cannot accept Plaintiff’s self-serving account in light of contrary 22 evidence. Zion, 874 F.3d at 1076; Scott, 550 U.S. at 380-83. The Court agrees with 23 Defendant that some of the allegations that Plaintiff makes are clearly contradicted by his 24 own documentary evidence. For example, Plaintiff attempts to dispute Defendant’s 25 argument that he had a valid reason to open the cell doors by denying that he had porter 26 duties. However, as Defendant points out, Plaintiff’s evidence in opposition, i.e., the 27 Request for Inmate Services form and the Job Performance Sheets, contradicts Plaintiff’s 1 assertion that he was not actually assigned to be a porter. Dkt. No. 71-3. Rather, this 2 evidence shows that Plaintiff was assigned as a porter and that he frequently refused to 3 perform his duties. Id. Accordingly, the Court need not accept Plaintiff’s account that he 4 did not have porter duties during the relevant time and thereby reject Defendant’s reason for 5 opening the cell doors, as no reasonable jury could believe Plaintiff’s contradictory 6 evidence. 7 Furthermore, it is undisputed that no officer was aware that Plaintiff was in fear of an 8 attack from other inmates. Plaintiff admits that he did not inform Defendant or any other 9 officer that he refused to leave his cell because he feared an attack. See supra at 3. The only 10 conflict that was recorded during the relevant time period involved another inmate (Taylor), 11 and Plaintiff informed staff that there were no unresolved issues that required a housing 12 change. See supra at 5, fn. 5. Although he asserts that Inmates Overstreet and Cuellar 13 previously attacked him on July 10, 2017, Plaintiff only alleges that Sgt. Sevey was aware 14 of it and failed to document it. There is no evidence that Defendant Delgadillo knew of this 15 July 10, 2017 incident and was aware that Plaintiff was in danger of further serious harm or 16 injury by these inmates which required that reasonable steps be taken to prevent an attack. 17 In opposition, Plaintiff attempts to argue that Defendant was on notice because he 18 observed the inmates taunt and harass him prior to the attack, and therefore he had a “duty” 19 to inquire of Plaintiff as to why he was not coming out of his cell. See supra at 14. But even 20 if Defendant had such a duty and failed to perform it, his failure only amounts to negligence 21 which does not amount to an Eighth Amendment violation. See Farmer, 511 U.S. at 835-37 22 & n.4; see also Estelle v, Gamble, 429 U.S. 97, 106 (1976) (establishing that deliberate 23 indifference requires more than negligence). Having failed to inquire of Plaintiff, there is 24 no evidence that Defendant was made aware by Plaintiff that he feared an attack from 25 Inmates Overstreet and Cuellar. Furthermore, there is no evidence that these inmates 26 threatened to harm Plaintiff and that Defendant Delgadillo was aware of their threats. 27 Rather, according to Plaintiff’s version of events, when Defendant asked them about their 1 “heated” exchange with Plaintiff, the inmates merely expressed disdain at Plaintiff’s refusal 2 to come out of his cell. These facts are not sufficient to establish that a risk to Plaintiff was 3 obvious or that there was reason for Defendant to suspect that an attack would occur. There 4 is simply no evidence that Defendant Delgadillo actually knew of facts supporting an 5 inference and that he drew the inference of substantial risk to Plaintiff to establish that 6 Defendant acted with deliberate indifference. Labatad, 714 F.3d at 1160-61. 7 Based on the evidence presented, Defendant has shown that there is no genuine issue 8 of material fact with respect to Plaintiff’s failure to protect claim. See Celotex Corp., 477 9 U.S. at 323. Plaintiff has failed to point to specific facts showing that there is a genuine 10 issue for trial, id. at 324, or identify with reasonable particularity the evidence that precludes 11 summary judgment, Keenan, 91 F.3d at 1279. Accordingly, Defendant is entitled to 12 judgment as a matter of law on this claim. Id.; Celotex Corp., 477 U.S. at 323. 13 B. Retaliation 14 “Within the prison context, a viable claim of First Amendment retaliation entails five 15 basic elements: (1) An assertion that a state actor took some adverse action against an inmate 16 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 17 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 18 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 19 Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) 20 (prisoner suing prison officials under § 1983 for retaliation must allege that he was retaliated 21 against for exercising his constitutional rights and that the retaliatory action did not advance 22 legitimate penological goals, such as preserving institutional order and discipline). The 23 prisoner must show that the type of activity he was engaged in was constitutionally 24 protected, that the protected conduct was a substantial or motivating factor for the alleged 25 retaliatory action, and that the retaliatory action advanced no legitimate penological interest. 26 Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) (inferring retaliatory motive from 27 circumstantial evidence). 1 Defendant asserts that Plaintiff cannot establish with specific and substantial 2 evidence that Defendant Delgadillo opened Plaintiff’s cell door and cell doors of Inmates 3 Overstreet and Cuellar on August 9, 2017, with a retaliatory motive. Dkt. No. 30-1 at 16. 4 Defendant asserts that Defendant Delgadillo had no reason to retaliate against Plaintiff on 5 or around August 9, 2017. Delgadillo Decl. ¶ 17. Defendant points out that Plaintiff’s 6 grievances against Defendant Delgadillo were unsubstantiated, and that Plaintiff admitted 7 that he had no negative interactions with Defendant for several months before the incident. 8 Dkt. No. 30-1 at 16, citing Pl. Dep. at 134:18-20, 25, 135:1-7. 9 In opposition, Plaintiff repeats his allegations from the complaint that Defendant 10 engaged in adverse acts during the preceding months in retaliation for his filing “too many 11 602s.” Dkt. No. 71-1 at 10-11. Plaintiff asserts that Defendant had an affirmative duty to 12 protect him from harm, and that his failure to do so was motivated by retaliatory animus. Id. 13 at 11. Furthermore, Plaintiff asserts that Defendant cannot use a “proper and neutral 14 procedure” to retaliate against him for exercising his constitutional rights. Id. at 15, citing 15 Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003). 16 In reply, Defendant asserts that Plaintiff’s allegation of retaliatory animus is merely 17 speculative and is insufficient to establish the existence of a genuine dispute as to whether 18 Defendant’s actions were in fact motivated by Plaintiff’s previous protected activity. Dkt. 19 No. 72 at 4. Defendant points out that Plaintiff does not dispute that Inmates Overstreet and 20 Cuellar were assigned as porters on the relevant date. Id. Furthermore, Defendant asserts 21 that by August 9, 2017, it had been almost six months since Plaintiff had submitted a 22 grievance against Defendant Delgadillo, indicating that too much time had passed to 23 establish causation. Id., citing Dkt. No. 71-1 at 41. 24 After carefully reviewing the papers and viewing the evidence in the light most 25 favorable to Plaintiff, the Court finds that the evidence presented does not show a genuine 26 dispute as to any material fact relating to Plaintiff’s retaliation claim against Defendant 27 Delgadillo. As discussed above, see supra at 15, Plaintiff’s declarations and papers contain 1 contradictory information regarding his porter assignment such that the Court should not 2 accept Plaintiff’s self-serving account which no reasonable jury could believe in light of this 3 contrary evidence. Zion, 874 F.3d at 1076. Accordingly, it cannot be said there is a genuine 4 dispute as to whether Defendant was taking adverse action against Plaintiff when he opened 5 the inmates’ cell doors on August 9, 2017, to satisfy the first Rhodes element. 6 Furthermore, Plaintiff has failed to point to facts establishing that there is a genuine 7 dispute regarding causation, the second element. Evidence probative of retaliatory animus 8 includes proximity in time between the protected speech and the alleged adverse action, 9 prison official’s expressed opposition to the speech, and prison official’s proffered reason 10 for the adverse action was false or pretextual. See Shephard v. Quillen, 840 F.3d 686, 690 11 (9th Cir. 2016); see also Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (non-prisoner 12 case). Retaliatory motive may also be shown by inconsistency with previous actions, as well 13 as direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003). Mere speculation 14 that defendants acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904 15 (9th Cir. 2014) (citing cases) (affirming grant of summary judgment where no evidence that 16 defendants knew about plaintiff’s prior lawsuit, or that defendants’ disparaging remarks 17 were made in reference to prior lawsuit). Here, Plaintiff’s last grievance against Defendant 18 Delgadillo was filed on March 19, 2017, nearly five months before the underlying incident. 19 See supra at 3. Furthermore, the alleged remark by Defendant accusing Plaintiff of filing 20 “too many” grievances was made in April 2017, also several months preceding. 21 Accordingly, it cannot be said that there is sufficient proximity in time between Plaintiff’s 22 protected conduct in March 2017, and the alleged adverse act in August 2017 to show 23 retaliatory motive. Nor is there any allegation that Plaintiff was engaged in protected 24 conduct at the time of the alleged retaliatory act. Lastly, there is no evidence that 25 Defendant’s proffered reason for opening the cell doors is false or pretextual. What remains 26 is Plaintiff’s mere speculation that Defendant acted with retaliatory motive, which is not 27 sufficient. See Wood, 753 F.3d at 904. 1 Based on the evidence presented, Defendant has shown that there is no genuine issue 2 || of material fact with respect to Plaintiffs retaliation claim. See Celotex Corp., 477 U.S. at 3 || 323. In opposition, Plaintiff has failed to point to specific facts showing that there is a 4 || genuine issue for trial, id. at 324, or identify with reasonable particularity the evidence that 5 || precludes summary judgment, Keenan, 91 F.3d at 1279. Accordingly, Defendant is entitled 6 || to judgment as a matter of law on this retaliation claim. Id.; Celotex Corp., 477 U.S. at 323. 7 CONCLUSION 8 For the reasons stated above, Defendant D. Delgadillo’s motion for summary 9 || judgment is GRANTED.’ Dkt. No. 30. The failure to protect and retaliation claims against 10 || Defendant are DISMISSED with prejudice. 1] This order terminates Docket No. 30. 3 12 IT IS SO ORDERED. 2B 14 || Dated: September 15, 2023 EDWARD J. DAVILA United States District Judge 16 Oo Z 18 19 20 21 22 23 24 25 26 27 TO 7 Because the Court finds that no constitutional violation occurred, it is not necessary to 28 || reach Defendant’s qualified immunity argument.