Botts v. Sheppard ( 2022 )

1 5 3 . 6 □ 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 D’RON BOTTS, Case No.: 3:19-cv-01387-DMS-RBM My Plaintiff, 12 v. REPORT AND . RECOMMENDATION OF USS. 13 MAGISTRATE JUDGE RE: ill SunPPARD □□□ DENYING DEFENDANTS’ MOTION ° ” FOR SUMMARY JUDGMENT 15 Defendants. 16 [Doc. 43] . 17 I. INTRODUCTION _ 18 Plaintiff D’Ron Botts (“Plaintiff”), a state prisoner proceeding in forma pauperis 19 || and represented by counsel, brings a civil rights action pursuant to 42 U.S.C. § 1983 against 20 Defendants Warden Paramo, Correctional Officer (“C/O”) Newman!, C/O Camacho, C/O 21 ||Legue?, C/O Rodriguez, and C/O Sheppard} (collectively, “Defendants”).4 (Doc. 8.) 22 23 24 ' Warden Paramo and C/O Newman were dismissed from the instant case on July 6, 2021. See discussion infra p. 3, section II.B. 25 ||? Defendants refer to this Defendant by the last name “Legge” in their MSJ; however, the 6 || Court will use the spelling utilized in Plaintiff's FAC. (Docs. 8, 43.) □ 3 Defendants refer to this Defendant by the last name “Shepherd,” in their MSJ; however, 27 || the Court will use the spelling utilized in Plaintiff's FAC. (/d.) 28 * Plaintiff's FAC also alleges claims against C/O Miller and C/O Mitchell; however, both have not been served or made appearances to date. 1 || Plaintiff alleges Defendants retaliated against him in violation of the First Amendment after 2 || Plaintiff allegedly reported corruption at Richard J. Donovan Correctional Facility (“RJD”) 3 California Department of Corrections and Rehabilitation (“CDCR”) Director, Brian 4 ||Duffy. (Doc. 8 at 3, J] 5-8.) Plaintiff also alleges a failure to protect claim under the 5 Eighth Amendment, negligence under California Government Code section 844.6, and a 6 || violation of civil rights under the Bane Act, California Civil Code section 52.1, after 7 || Plaintiff was allegedly physically attacked by another RJD inmate (“Inmate Tillman”). Ud. 8 9.). Presently before the Court is Defendants’ motion for summary judgment (“MSJ”). 9 ||(Doc. 43.) Plaintiff filed an opposition (“Opposition”) to Defendants’ MSJ on August 27, 10 |) 2021, and Defendants filed a reply (“Reply”) on September 10, 2021. (Docs. 62, 70.) 11 For the reasons outlined below, the undersigned issues a Report and 12 ||Recommendation as to Defendants’ MSJ. See 28 U.S.C. § 636(b)(1)(B); CivLR 72.1(c) 13 72.3(a). After a thorough review of the pleadings, papers, prior orders of the Court, 14 ||the facts, and applicable law, the undersigned respectfully RECOMMENDS that 15 || Defendants’ motion for summary judgment be DENIED. 16 . I. FACTUAL & PROCEDURAL BACKGROUND 17 A. Allegations in FAC 18 Plaintiff initiated this action by filing a complaint on July 24, 2019. (Doc. 1.) On 19 |) August 5, 2019, the Court screened the complaint under 28 U.S.C. § 1915 and granted 20 || Plaintiff leave to proceed in forma pauperis. (Doc. 6.) On September 11, 2019, Plaintiff 21 || filed a first amended complaint (“FAC”) through his counsel of record under 42 U.S.C. § 22 1/1983 for retaliation under the First Amendment, failure to protect under the Eighth 23 || Amendment, negligence, and a violation of the Bane Act against Defendants. (Doc. 8.) 24 Plaintiff alleges in his FAC that around October 4, 2017, Plaintiff provided visiting 25 ||CDCR Director Duffy information about corruption at RJD after CDCR Director Duffy 26 asked Plaintiff for his thoughts about the prison. (/d. at 3, 5-7.) Shortly thereafter, 27, || Plaintiff alleges he began receiving threats from Defendants, including death threats. □□□□ 28 || 9-10.) On or around October 13, 2017, Plaintiff alleges, C/O Sheppard, C/O Camacho, . 4 . 1 ||C/O Newman, and Does 11-14 orchestrated retaliation against Plaintiff by instructing 2 Inmate Tillman to batter Plaintiff. Ud., 11.) After breakfast, Inmate Tillman approached 3 Plaintiff, said, “[y]ou know who sent me”, and proceeded to batter Plaintiff. (/d., 12- 4 During the attack, Plaintiff alleges C/O Legue and C/O Rodriguez cheered, laughed, 5 || and made boxing motions as they saw Inmate Tillman batter Plaintiff. (/d. at 4, □ 15-16.) 6 || After a few minutes, C/O Legue and C/O Rodriguez told both Inmate Tillman and Plaintiff 7 to get down. Ud., § 17.) Plaintiff bled through his eye during the attack and alleges he is 8 || blind in his left eye as a result of the attack. (d., fj 20-22.) □□ 9 B. Surviving Causes of Action in FAC 10 |] . On July 2, 2021, the parties filed a joint motion to dismiss Defendants C/O Newman Warden Paramo, which District Judge Sabraw granted without prejudice on July 6, 12 |)2021. (Docs. 46, 47.) Accordingly, Plaintiffs sixth and seventh causes of action for 13 ||negligent retention and supervisory liability against Warden Paramo have been dismissed. 14 |}On August 30, 2021, the parties filed a joint motion to dismiss Defendant C/O Camacho 15 || from the Eighth Amendment failure to protect and negligence causes of action, which 16 || District Judge Sabraw granted without prejudice on September 1, 2021. (Docs. 66, 68.) 17 The surviving causes of action in Plaintiff's FAC are as follows: (1) retaliation under 18 First. Amendment against C/O Camacho, C/O Legue, C/O Rodriguez, and C/O 19 || Sheppard; (2) failure to protect under the Eighth Amendment against C/O Legue, C/O 20 ||Rodriguez, and C/O Sheppard; (3) negligence under California Government Code section 21 || 844.6 against C/O Legue, C/O Rodriguez, and C/O Sheppard; and (4) violation of the Bane 22 || Act under California Civil Code section 52.1 against C/O Camacho, C/O Legue, C/O 23 || Rodriguez, and C/O Sheppard.° : 24 25 tti—