Ewalan v. Schreiber ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 JOSEPH LOCHUCH EWALAN, CASE NO. C20-5678JLR 11 Plaintiff, ORDER ON REPORT AND v. RECOMMENDATION 12 WASHINGTON STATE 13 DEPARTMENT OF CORRECTIONS, et al., 14 15 Defendants. 16 I. INTRODUCTION 17 This matter comes before the court on Defendants Washington State Department 18 of Corrections (“DOC”), Stafford Creek Corrections Center (“SCCC”), and SCCC 19 employees Robert Schreiber, Arlee Rothwell, Russell Dickerson, Tammy Nikula, Kendra 20 Wakefield, and Denny Larsen’s (collectively, “Defendants”) motion for summary 21 judgment (MSJ (Dkt. # 53); Reply (Dkt. # 67)); various filings, which the court construes 22 as Plaintiff Joseph Lochuch Ewalan’s summary judgment response (Stay Mot. (Dkt. 1 # 65); Suppl. Stay Mot. (Dkt. # 66); MSJ Resp. (Dkt. # 68); Cross-MSJ (Dkt. # 70)); 2 Defendants’ response to Mr. Ewalan’s “cross-motion” (Cross-MSJ Resp. (Dkt. # 75)); the 3 report and recommendation of United States Magistrate Judge Theresa L. Fricke (R&R 4 (Dkt. # 82)); and Mr. Ewalan’s objections thereto (Obj. (Dkt. # 83).) Having carefully 5 reviewed those documents, the relevant portions of the record, and the applicable law, the 6 court ADOPTS in part and DECLINES TO ADOPT in part the report and 7 recommendation and GRANTS in part and DENIES in part Defendants’ motion for 8 summary judgment.1 9 II. BACKGROUND 10 This is a civil rights action brought under 42 U.S.C. § 1983 by Mr. Ewalan, an 11 inmate at the Washington State Penitentiary. (R&R at 1.) Mr. Ewalan alleges that, while 12 an inmate at SCCC, he was twice assaulted—on July 16, 2017 and October 4, 2019—by 13 other inmates. (Id. at 2.) He has sued Defendants for money damages for violating his 14 Eighth Amendment rights by failing to protect him from these assaults and by failing to 15 adequately treat his resulting injuries. (Id.) The remaining factual background and 16 procedural history are comprehensively described in the report and recommendation 17 (R&R at 1-6), which the court ADOPTS and incorporates by reference herein. 18 Accordingly, the court discusses below only those facts that are of particular relevance to 19 its analysis in this order. 20 // 21 1 Mr. Ewalan’s “cross-motion” (Dkt. # 70) does not seek summary judgment in his favor, but rather “appears to seek additional discovery . . . and to address evidentiary issues raised by 22 defendants.” (R&R at 11.) 1 The report and recommendation recommends that the court: (1) deny Defendants’ 2 motions to strike some of Mr. Ewalan’s exhibits, declaration testimony, and “cross- 3 motion” (id. at 9-11); (2) dismiss Sgt. Dickerson without prejudice (id. at 11-12); (3) 4 dismiss the DOC and the SCCC with prejudice (id. at 12); (4) dismiss count III of Mr. 5 Ewalan’s complaint, which alleges that he received inadequate treatment of his injuries, 6 without prejudice (see Compl. (Dkt. # 5) at 15;2 R&R at 13); (5) grant summary 7 judgment to Defendants on count I of Mr. Ewalan’s complaint, which alleges that 8 Defendants failed to protect him from an assault by inmate Leland Harris on July 16, 9 2017 (the “July 2017 Incident”) (see Compl. at 5; R&R at 14-18); (6) grant summary 10 judgment to Defendants on count II of Mr. Ewalan’s complaint, which alleges that 11 Defendants failed to protect him from an assault by inmate Juan Figueroa on October 4, 12 2019 (the “October 2019 Incident”) (see Compl. at 14; R&R at 18-19); (7) deny Mr. 13 Ewalan’s motion for a continuance (Dkt. # 65) and “cross-motion” (Dkt. # 70) (R&R at 14 20-22); and (8) continue Mr. Ewalan’s in forma pauperis status in the event of an appeal 15 (id. at 22). 16 Mr. Ewalan objects to: (1) dismissing Sgt. Dickerson without prejudice (Obj. at 17 2); (2) dismissing DOC and SCCC with prejudice (id. at 4); (3) granting summary 18 judgment on count I (id. at 19); (4) granting summary judgment on count II (id. at 21); 19 and (5) declining to reach the issue of qualified immunity (id. at 22-23).3 20 2 The court uses the CM/ECF page numbers when citing to Mr. Ewalan’s complaint. 21 3 Mr. Ewalan does not actually object to the court dismissing count III of his complaint, but seemingly writes to provide further evidence of his intent to voluntarily dismiss that claim. 22 (See Obj. at 25; id. at 139 (affirming that he has “no interest in pursuing medical negligence at 1 III. ANALYSIS 2 The court ADOPTS in full the recommendations to which Mr. Ewalan has not 3 objected and, after setting forth the applicable standards of review, considers below each 4 recommendation to which he has objected. 5 A. Standard of Review 6 A district court has jurisdiction to review a Magistrate Judge’s report and 7 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “A judge of the court 8 may accept, reject, or modify, in whole or in part, the findings or recommendations made 9 by the magistrate judge.” 28 U.S.C. § 636(b)(1). “The district judge must determine de 10 novo any part of the magistrate judge’s disposition that has been properly objected to,” 11 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), but need 12 not review de novo any portion of the report and recommendation to which no objection 13 has been made, Wang, 416 F.3d at 1000 n.13. Because Mr. Ewalan is proceeding pro se, 14 the court must interpret his objections liberally. See Bernhardt v. Los Angeles Cnty., 339 15 F.3d 920, 925 (9th Cir. 2003). 16 As this matter comes to the court on Defendants’ summary judgment motion, the 17 court will apply the traditional summary judgment standard in reviewing the report and 18 recommendation. Summary judgment is appropriate if the evidence viewed in the light 19 most favorable to the non-moving party shows “that there is no genuine dispute as to any 20 // 21 this point in time”).) Accordingly, the court ADOPTS the recommendation to dismiss count III without prejudice without conducting de novo review. See Wang v. Masaitis, 416 F.3d 992, 22 1000 n.13 (9th Cir. 2005). 1 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 2 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Beaver v. Tarsadia Hotels, 3 816 F.3d 1170, 1177 (9th Cir. 2016). A fact is “material” if it might affect the outcome 4 of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute 5 is “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the 6 non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) 7 (citing Anderson, 477 U.S. at 248-49). 8 The moving party bears the initial burden of showing there is no genuine dispute 9 of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 10 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can 11 show the absence of such a dispute in two ways: (1) by producing evidence negating an 12 essential element of the nonmoving party’s case, or (2) by showing that the nonmoving 13 party lacks evidence of an essential element of its claim or defense. Nissan Fire & 14 Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party 15 meets its burden of production, the burden then shifts to the nonmoving party to identify 16 specific facts from which a factfinder could reasonably find in the nonmoving party’s 17 favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. 18 B. Recommendations for Dismissal of Parties 19 1. Sgt. Russell Dickerson 20 The report and recommendation recommends dismissing Sgt. Dickerson based on 21 Mr. Ewalan’s failure to properly serve him with a copy of the summons and complaint. 22 (R&R at 11.) Mr. Ewalan objects that Sgt. Dickerson, notwithstanding his assertion of 1 insufficient service, has been an active participant in this case through counsel for 2 Defendants, who have appeared on his behalf, and so clearly had sufficient notice of the 3 lawsuit. (See Obj. at 2; see also Rachel NOA (Dkt. # 10); Ahearn NOA (Dkt. # 11).) 4 Moreover, because the court directed the Clerk to send requests for waiver of service to 5 Defendants by email (7/24/20 Order (Dkt. # 8) at 1-2), Mr. Ewalan contends that he 6 should not be held responsible for any failure to perfect service on Sgt. Dickerson, 7 especially where ineffective service appears to be a result of Sgt. Dickerson’s retirement 8 from DOC. (Obj. at 2-4.) 9 On July 24, 2020, Magistrate Judge Fricke directed the Clerk to send Defendants 10 “by e-mail: copies of plaintiff’s complaint, this Order, the Notice of Option to Consent, 11 the notice of lawsuit and request for waiver of service of summons, and a waiver of 12 service of summons.” (7/24/20 Order at 1-2.) The July 24, 2020 order also notified 13 Defendants that failure “to timely return the signed waiver” would result in personal 14 service and that they may be responsible for covering the cost of that effort, in 15 accordance with Federal Rule of Civil Procedure 4(d)(2). (Id. at 2.) The order further 16 directed the Clerk to send the order and the court’s “pro se instruction sheet” to Mr. 17 Ewalan. (Id. at 5.) With respect to service, the pro se instruction sheet states that “[a]fter 18 a defendant/respondent has been served with your complaint/petition, all documents and 19 motions you file with the [c]ourt will be electronically served on defendant/respondent’s 20 attorney (or on defendant/respondent if the defendant/respondent is pro se).” (Pro Se 21 Instruction Sheet (Dkt. # 8-1) at 1.) Unlike all other Defendants, Sgt. Dickerson did not 22 return a waiver of service form, apparently because he “has retired from the Washington 1 State Department of Corrections and was unable to be located for a waiver of service at 2 his last known contact information.” (MSJ at 1 n.1.) However, counsel for Defendants 3 nevertheless “entered an appearance on his behalf as a precaution.” (Id.; Rachel NOA; 4 Ahearn NOA.) In that capacity, they answered the complaint and raised the affirmative 5 defense of deficient service (Answer (Dkt. # 24) at 4), pursuant to which they 6 subsequently moved for his dismissal (MSJ at 7). 7 Defendants have a duty to avoid unnecessary expenses of serving the summons, 8 and so plaintiffs may request that a defendant waive service of a summons. See Fed. R. 9 Civ. P. 4(d)(1). However, defendants are “not legally required to respond to a request for 10 waiver of service,” Markel Ins. Co. v. Dahn Yoga & Health Centers, Inc., No. 11 C09-1221RSM, 2010 WL 1980307, at *5 (W.D. Wash. May 17, 2010), and, “if a 12 defendant fails to respond to a request for wavier, the plaintiff nonetheless must effect 13 service of process on that defendant in a timely manner under Rule 4(m),” Al-Hizbullahi 14 v. Bleisner, No. C 04-4903 MMC (PR), 2009 WL 1855234, at *2 (N.D. Cal. June 29, 15 2009) (citing William W. Schwarzer, et al., Federal Civil Procedure Before Trial § 5:90 16 (2009)). 17 Where a plaintiff has failed to comply with Rule 4(m), a court may extend the time 18 period for service of a complaint if good cause is shown. In re Sheehan, 253 F.3d 507, 19 512 (9th Cir. 2001). “At a minimum, ‘good cause’ means excusable neglect.” Id. 20 (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)). This is shown where 21 “(a) the party to be served received actual notice of the lawsuit; (b) the defendant would 22 suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were 1 dismissed.” Id. (quoting Boudette, 923 F.2d at 756). Given defense counsel’s 2 representations in this case (see MSJ at 1 n.1), it is not clear whether Sgt. Dickerson has 3 actual knowledge of this litigation, although the fact that his interests—which appear to 4 align with those of his co-Defendants—have been represented since the outset suggests 5 that he has not been prejudiced by the deficient service (see id. at 7). 6 On the other hand, Mr. Ewalan would clearly be prejudiced by the dismissal of 7 Sgt. Dickerson. “It is well-established that claims brought under § 1983 borrow the 8 forum state’s statute of limitations for personal injury claims.” Action Apartment Ass’n, 9 Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026 (9th Cir. 2007). In 10 Washington, “[t]he statute of limitations on personal injury suits is three years from the 11 time the plaintiff knows all the essential elements of the cause of action.” Deggs v. 12 Asbestos Corp. Ltd., 381 P.3d 32, 34 (Wash. 2016). Count I of Mr. Ewalan’s lawsuit 13 stems from events that took place in July 2017 (Compl. at 5-13) and so dismissal, even 14 without prejudice, may result in that claim being time barred should he be forced to 15 re-file it. See In re Sheehan, 253 F.3d at 512. 16 Even where good cause is not shown, however, “[c]ourts have discretion under 17 Rule 4(m) . . . to extend the time for service or to dismiss the action without prejudice.” 18 Id. at 513 (declining “to articulate a specific test” but emphasizing that “under the terms 19 of [Rule 4(m)], the court’s discretion is broad”). Here, the court finds that the following 20 factors justify an exercise of discretion in Mr. Ewalan’s favor: (1) his pro se status; (2) 21 his apparent confusion about whether the Clerk’s office, having distributed waiver of 22 service materials to Defendants in the first instance, would retain responsibility for 1 personally serving any Defendant that failed to return a waiver; (3) the appearance of 2 counsel on Sgt. Dickerson’s behalf from the outset of the case; and (4) the unusual 3 difficulties created by Sgt. Dickerson’s apparent retirement from DOC and relocation. 4 For the foregoing reasons, the court DECLINES TO ADOPT the recommendation 5 for dismissal of Sgt. Dickerson and instead EXTENDS Mr. Ewalan’s time to serve Sgt. 6 Dickerson with a copy of the summons and complaint by forty-five (45) days, starting 7 from the date of this order. Failure to perfect service of Sgt. Dickerson in that time will 8 result in his dismissal from this action. 9 2. Washington Department of Corrections and Stafford Creek Corrections Center 10 The report and recommendation further recommends dismissing Defendants DOC 11 and SCCC with prejudice because neither is a “person” under 42 U.S.C. § 1983. (R&R at 12 12.) Mr. Ewalan “objects” to clarify that he has not sued these Defendants, but has rather 13 sued only individual employees of the DOC. (See Obj. at 4.) Mr. Ewalan points out that 14 he names neither entity in the “Defendant Information” portion of this complaint, 15 although the court notes that both are named in the case caption of his complaint. (See 16 Compl. at 1.) Moreover, each entity participated as a defendant in this litigation. (See 17 generally Dkt.). Regardless, the court ADOPTS the recommendation to dismiss 18 Defendants DOC and SCCC with prejudice either because (1) Mr. Ewalan did not intend 19 to sue them (see Obj. at 4) or, alternatively, (2) as arms of the State of Washington, both 20 are immune from lawsuits brought in federal court under 42 U.S.C. § 1983. (See R&R at 21 12); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64-66 (1989); Garnica v. 22 1 Washington Dep’t of Corr., 965 F. Supp. 2d 1250, 1268 (W.D. Wash. 2013) (“A state 2 agency is not a ‘person’ under 42 U.S.C. § 1983.”), aff’d, 639 F. App’x 484 (9th Cir. 3 2016). 4 C. Recommendations on Mr. Ewalan’s Failure to Protect Claims 5 The report and recommendation recommends granting summary judgment in 6 Defendants’ favor on counts I and II of Mr. Ewalan’s complaint, which allege that 7 Defendants violated his Eighth Amendment rights on two separate occasions by failing to 8 protect him from assaults perpetrated by Mr. Harris in July 2017 (count I) and Mr. 9 Figueroa in October 2019 (count II). (R&R at 13-19.) These recommendations flow 10 from the report and recommendation’s conclusion that Mr. Ewalan failed to meet the 11 “subjective component” of the failure to protect test set forth in Farmer v. Brennan, 511 12 U.S. 825, 826 (1994) for counts I and II. (See id. at 18-19.) 13 “The Eighth Amendment imposes a duty on prison officials to protect inmates 14 from violence at the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050 (9th 15 Cir. 2015) (citing Farmer, 511 U.S. at 833). “[A] prison official violates an inmate’s 16 Eighth Amendment right only if that official is ‘deliberately indifferent’—in other words, 17 if the official is subjectively aware of a substantial risk of serious harm to an inmate and 18 disregards that risk by failing to respond reasonably.” Wilk v. Neven, 956 F.3d 1143, 19 1148 (9th Cir. 2020) (citing Farmer, 511 U.S. at 837, 844-45). This subjective awareness 20 inquiry is “fact-intensive and typically should not be resolved at the summary judgment 21 stage.” Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 1062, 1078 (9th Cir. 22 2013). 1 1. The July 2017 Incident 2 As an initial matter, the court ADOPTS the report and recommendation’s 3 recommendation that summary judgment be GRANTED in favor of Ms. Tammy Nikula 4 with respect to the July 2017 incident.4 The court has independently considered the 5 matter and agrees with Magistrate Judge Fricke’s reasoning that Mr. Ewalan presents “no 6 evidence of any pre-attack notice” to Ms. Nikula, and so failed to establish a factual 7 dispute as to her subjective awareness of any threat he faced from Mr. Harris. (See R&R 8 at 15, 16; see also Obj. at 27 (asserting that Mr. Ewalan “narrated threats . . . to all 9 deffendants [sic] in count one, before 7/16/2017 . . . except to counselor Nikula”).) 10 However, Mr. Ewalan has presented evidence that he provided pre-attack notice to 11 Mr. Schreiber and Sgt. Rothwell.5 Specifically, Mr. Ewalan testifies that, during the 12 week of July 10, 2017, he had separate conversations with Mr. Schreiber and Sgt. 13 Rothwell, in which he told them that he was in danger of an “imminent assault” by Mr. 14 // 15 4 The report and recommendation considers whether Ms. Wakefield and Sgt. Larsen were 16 aware that Mr. Ewalan had received threats from Mr. Harris in advance of the July 2017 Incident. (R&R at 16.) It, likewise, considers whether Ms. Nikula, Mr. Robert Schreiber, or Sgt. 17 Arlee Rothwell were aware that Mr. Ewalan had been threatened by Mr. Figueroa prior to the October 2019 Incident. (Id. at 18.) Mr. Ewalan notes that Ms. Wakefield and Sgt. Larsen were 18 sued only in connection with the October 2019 Incident and that Ms. Nikula, Mr. Schreiber, and Sgt. Rothwell were sued only in connection with the July 2017 Incident (see Obj. at 8, 13; see 19 also Compl. at 5-15), although he does not object to the report and recommendation on the basis of this “slight mix[]-up” (Obj. at 8, 13). Accordingly, the court considers only Ms. Nikula, Mr. 20 Schreiber, and Sgt. Rothwell’s subjective awareness in connection with the July 2017 Incident and only Ms. Wakefield and Sgt. Larsen’s subjective awareness in connection with the October 2019 Incident. 21 5 Because Sgt. Dickerson has not yet been properly served, the court does not discuss whether Mr. Ewalan has raised a triable issue of fact as to Sgt. Dickerson’s subjective awareness 22 of the July 2017 Incident. 1 Harris. (See MSJ Resp. at 36, 39.6) Mr. Ewalan corroborates this testimony with his 2 personal calendar entries from July 2017, which document that Mr. Ewalan reported the 3 “threats” to Mr. Schreiber on July 10, 2017 and Sgt. Rothwell on July 12 and 13, 2017. 4 (See Ex. 1 to MSJ Resp. (Dkt. # 68-1) at 4 ¶ 2 (authenticating calendar entries); id. at 3 5 (the “July 2017 Calendar”).) These reports were apparently “dismissed . . . as baseless.” 6 (MSJ Resp. at 36, 39.) 7 Mr. Ewalan’s evidence thus conflicts with the evidence offered by Mr. Schreiber 8 and Sgt. Rothwell, who testified that they “do not recall receiving any communication 9 from [Mr.] Ewalan, written or oral, in 2017 related to his relationship with his 10 then-cellmate Leland Harris, or any behavior of his cellmate that would have posed a risk 11 of harm.” (See Schreiber Decl. (Dkt. # 61) ¶ 5; Rothwell Decl. (Dkt. # 59) ¶ 5.) Both 12 men also testified that they “had no authority over offender housing assignments,” as 13 proof that “it would have been uncharacteristic and illogical” for Mr. Ewalan to seek their 14 “assistance regarding any interpersonal conflict or desired housing reassignment.” (Id.) 15 Sgt. Rothwell further suggests that Mr. Ewalan would have been unlikely to go to him for 16 assistance because his “demeanor toward” Sgt. Rothwell had “always been icy.” 17 (Rothwell Decl. ¶ 5.)7 18 6 Pages 36-51 of Dkt. # 68 contain Mr. Ewalan’s declarations in support of his summary 19 judgment response. For ease of reference, the court cites to this material using the CM/ECF page numbers. 20 7 Mr. Schreiber and Sgt. Rothwell also testify that they were not working on the dates Mr. Ewalan alleged he reported the threats to them in his complaint. (Schreiber Decl. ¶ 5; Rothwell Decl. ¶ 5.) However, Mr. Ewalan has clarified that the dates in the complaint are inaccurate and 21 that the meetings took place on the dates identified in his response brief, which he corroborates with the relevant portion of his personal calendar. (See MSJ Resp. at 9-10; see also July 2017 22 Calendar.) Defendants moved to strike Mr. Ewalan’s calendar but have not argued that Mr. 1 When the court is confronted by such conflicting direct evidence on summary 2 judgment, it “must assume the truth of the evidence set forth by the nonmoving party 3 with respect to that fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 4 626, 631 (9th Cir. 1987). Thus, the court must assume, for purposes of evaluating 5 Defendants’ motion, that Mr. Ewalan reported his concerns about a threat to Mr. 6 Schreiber and Sgt. Rothwell. While Mr. Ewalan’s factual presentation would be 7 strengthened by the inclusion of “factual detail describing what he told defendants about 8 [Mr.] Harris’s conduct and threats, or what defendants said in response,” the court does 9 not find his testimony to be unduly “vague” or “conclusory.” (R&R at 17.8) Rather, the 10 court finds that Mr. Ewalan’s declaration testimony—and the corroboration provided by 11 his personal calendar—provides a direct factual basis from which a reasonable trier of 12 fact could conclude that Defendants knew Mr. Ewalan faced the substantial risk of 13 physical assault by his cellmate and disregarded that risk. See Farmer, 511 U.S. at 842 14 (“[K]nowledge of a substantial risk is a question of fact subject to demonstration in the 15 usual ways[.]”). 16 Ewalan recorded the meetings on the wrong dates or that they were not working on the dates 17 shown in the calendar. (See Reply at 2-3, 9-10.) The report and recommendation recommends denying Defendants’ motions to strike. (R&R at 9-10.) The court ADOPTS that 18 recommendation. See supra at 4 (adopting recommendations to which no objection was filed). 8 Mr. Ewalan offers a few more details about the events leading up to Mr. Harris’s threat, 19 as well as about the nature of the threat itself, in his objection. (See Obj. at 5-6.) He asserts that other inmates spoke to Sgt. Dickerson on his behalf to request that Mr. Ewalan be moved to a 20 different cell for his safety. (See id. at 12.) The court does not, however, consider new arguments or new evidence raised for the first time through an objection to the report and recommendation. See Bowman v. Hayes, No. C16-381 RSM-BAT, 2016 WL 7441013, at *1 21 (W.D. Wash. Dec. 27, 2016); Williams v. Ryan, No. CV-18-00349-TUC-RM, 2019 WL 4750235, at *5 (D. Ariz. Sept. 30, 2019) (“Issues raised for the first time in objections to the 22 magistrate judge’s recommendation are deemed waived.”). 1 Although the report and recommendation, likewise, “accept[s] plaintiff’s evidence 2 that he reported a threat to [D]efendants Schreiber and Rothwell,” it nevertheless 3 concludes that because “threats between inmates are common,” they should not be taken, 4 “‘under all circumstances . . . to impute actual knowledge of a substantial risk of harm’ to 5 a prison official.” (R&R at 16-17 (quoting Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 6 1996)).) And it recommends finding that Mr. Ewalan’s reporting of the threat did not 7 impute actual knowledge here because he has provided no evidence that either “inmate 8 has a prior history of violence.” (Id. at 17 (first citing Perkins v. Grimes, 161 F.3d 1127, 9 1130 (8th Cir. 1998); and then McElroy v. Gomez, No. 120CV00658NONESABPC, 2020 10 WL 6561214, at *12 (E.D. Cal. Nov. 9, 2020), report and recommendation adopted, No. 11 120CV00658NONESABPC, 2020 WL 7319422 (E.D. Cal. Dec. 11, 2020)).) 12 Evidence of prior violence by or between two inmates is plainly relevant to a 13 failure to protect claim. See, e.g., Cortez v. Skol, 776 F.3d 1046, 1052 (9th Cir. 2015) 14 (finding “evidence suggesting that [the defendant] knew about the hostility between the 15 inmates” was “sufficient . . . for a jury to disbelieve” his asserted lack of awareness of 16 any risks). But the court is not aware of any Ninth Circuit cases holding that such 17 evidence is required. Moreover, requiring such a showing conflicts with the Ninth 18 Circuit’s approach in analogous failure to protect cases. For example, in Clem v. Lomeli, 19 the plaintiff was threatened by his drunk cellmate, shouted for help from a nearby prison 20 official, and asked to be moved to a safer location. 566 F.3d 1177, 1180 (9th Cir. 2009). 21 The prison official ignored the call for help and told the plaintiff to “[d]eal with it.” Id. 22 Soon thereafter, the plaintiff was violently beaten by his cellmate. Id. Relying only on 1 the fact that the prison official had direct knowledge of the threat—based on the 2 plaintiff’s call for help—and “took no steps to abate any risk” to the plaintiff, the Ninth 3 Circuit held that the plaintiff “was therefore entitled to a ‘failure to act’ instruction.” Id. 4 at 1182. The prison official’s explanation that he thought the plaintiff “was ‘tired’ of 5 being in his cell and needed to be moved” did not alter the court’s conclusion that an 6 instruction on the official’s failure to act was appropriate. See id. at 1180. 7 Accordingly, the court finds that Mr. Ewalan’s testimony that he directly reported 8 Mr. Harris’s threat to Mr. Schreiber and Sgt. Rothwell can serve to impute actual 9 knowledge of the threat. 10 Even if Defendants had pre-attack notice from Mr. Ewalan, they might 11 nevertheless “be found free from liability if they responded reasonably to the risk, even if 12 the harm ultimately was not averted.” See Farmer, 511 U.S. at 844. Here, Defendants 13 neither argue that they took action to abate the risk, nor that their failure to do so was 14 reasonable. (See MSJ at 8 (arguing only that Mr. Ewalan did not, in fact, report Mr. 15 Harris’s threat to Defendants); Schreiber Decl. ¶ 5; Rothwell Decl. ¶ 5; see also MSJ 16 Resp. at 36, 39 (noting that his reports were dismissed as “baseless”).) The absence of 17 such evidence provides further reason to deny summary judgment to Defendants with 18 respect to the July 2017 Incident. See Farmer, 511 U.S. at 843 n.8 (explaining that a 19 prison official will be liable where he “declined to confirm inferences of risk that he 20 strongly suspected to exist (as when a prison official is aware of a high probability of 21 facts indicating that one prisoner has planned an attack on another but resists 22 opportunities to obtain final confirmation . . .)”). 1 Because Mr. Ewalan has provided Defendants with “at least one sworn averment 2 of” “a specific fact essential to [his] case,” he has done enough for count I to survive 3 summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). 4 Accordingly, the court ADOPTS the recommendation to grant summary judgment to Ms. 5 Nikula, DECLINES TO ADOPT the recommendation to grant summary judgment to the 6 remaining Defendants, GRANTS summary judgment to Ms. Nikula, and DENIES 7 summary judgment on count I for the remaining Defendants. 8 2. The October 2019 Incident 9 The report and recommendation also recommends summary judgment in 10 Defendants’ favor as to count II of Mr. Ewalan’s complaint, which alleges that 11 Defendants violated his Eighth Amendment rights by failing to protect him in connection 12 with the October 2019 Incident. (R&R at 18-19.) As with its recommendation on count 13 I, the report and recommendation recommends finding that Mr. Ewalan has failed to 14 show that Defendants were subjectively aware of the threats he was facing from his 15 cellmate, Mr. Figueroa. (Id.) Mr. Ewalan objects to this recommendation and asserts 16 that he has established that Ms. Wakefield and Sgt. Larsen had advance notice of the 17 “impending assault” by Mr. Figueroa because (1) he reported the threat directly to them 18 and (2) “[t]wo witnesses, Mike and Anwar [Jaylani] provided their statements” and 19 explained that “Mr. Ewalan and Figueroa had lot [sic] going on a lot,” which was the 20 reason a move to Mr. Jaylani’s cell was required. (Obj. at 14.) Mr. Ewalan did not 21 provide a declaration from “Mike” or Mr. Jaylani with his summary judgment response 22 // 1 (see generally MSJ Resp.) and does not include any evidence of these statements with his 2 objection (see generally Obj.). 3 The evidence Mr. Ewalan has marshalled in support of count II, however, includes 4 his testimony that, on some unspecified date prior to October 4, 2019, he reported an 5 “impending assault” to Ms. Wakefield, who “dismissed the report as mere words.” (MSJ 6 Resp. at 47-48.) Despite this brush off, Mr. Ewalan testifies that Ms. Wakefield 7 nevertheless referred him to Sgt. Larsen to “find a solution to” his desire for 8 “protect[ion]” and “safety.” (Id. at 48.) Mr. Ewalan next testifies that, on some 9 unspecified date “prior to assault,” he “reported impending assault to” Sgt. Larsen. (Id. at 10 50-51.) 11 This testimony is contradicted by Ms. Wakefield and Sgt. Larsen, who both testify 12 that Mr. Ewalan never reported any concerns about living with Mr. Figueroa prior to the 13 October 2019 Incident and that they were not otherwise aware of any such concerns. 14 (See Wakefield Decl. (Dkt. # 55) ¶ 4, 6; Larsen Decl. (Dkt. # 54) ¶ 8.) The record also 15 contains evidence that Mr. Ewalan requested a transfer into Mr. Figueroa’s cell on June 16 3, 2019 because he believed the two would be “compatible” cellmates, and that he 17 requested another transfer to Mr. Jaylani’s cell on July 28, 2019, again because he 18 thought it would be a compatible situation. (See Larsen Decl. ¶ 6, Ex. A.) Sgt. Larsen 19 denied the July 28, 2019 transfer request because the second bed in Mr. Jaylani’s cell was 20 already occupied. (See id.) 21 Because Mr. Ewalan is the non-moving party, the court takes as true his testimony 22 that he informed Ms. Wakefield and Sgt. Larsen prior to the October 2019 Incident that 1 he had been threatened by Mr. Figueroa. And drawing all inferences in Mr. Ewalan’s 2 favor, the court cannot say that the evidence of his transfer requests—though they give no 3 indication of a brewing problem between Mr. Figueroa and Mr. Ewalan—dispositively 4 undercuts the evidence that Ms. Wakefield and Sgt. Larsen knew Mr. Ewalan had been 5 threatened. (See MSJ at 9 (describing transfer requests as “silent” on the issue).) 6 Although Defendants might nevertheless “be found free from liability if they responded 7 reasonably to the risk, even if the harm ultimately was not averted,” see Farmer, 511 U.S. 8 at 844, they have made no argument nor presented evidence to support that theory here. 9 (See MSJ at 8-9 (arguing only that Mr. Ewalan did not report any threats.) 10 Because there remains a disputed question of material fact as to whether 11 Defendants had actual awareness of the risk to Mr. Ewalan, summary judgment on count 12 II is improper. Accordingly, the court DECLINES TO ADOPT the recommendation and 13 DENIES Defendants’ motion for summary judgment on count II. 14 D. Qualified Immunity 15 Defendants have further argued that their motion for summary judgment should be 16 granted because each Defendant is shielded from liability by qualified immunity. (See 17 MSJ at 12-13.) Because the report and recommendation recommends granting summary 18 judgment to Defendants on Mr. Ewalan’s failure to protect claims, it did not need to 19 reach this issue. (R&R at 19; Obj. at 22-24 (objecting to the lack of recommendation 20 denying qualified immunity).) As set forth above, the court declines to grant summary 21 judgment to Defendants on either of Mr. Ewalan’s failure to protect claims it will 22 consider whether summary judgment should be granted to Defendants because they are 1 shielded from liability by qualified immunity. See Wilk v. Neven, 956 F.3d 1143, 1148 2 (9th Cir. 2020).9 3 To determine whether qualified immunity will attach, the court must determine 4 “whether the applicable law was ‘clearly established’ at the time of the incident.” Id. 5 (quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)). “Law is ‘clearly established’ 6 for the purposes of qualified immunity if ‘every reasonable official would have 7 understood that what he is doing violates th[e] right’ at issue.” Id. (quoting Taylor v. 8 Barkes, 575 U.S. 822, 825 (2015) (per curiam)). The Ninth Circuit has “recently and 9 explicitly held that it is clearly established that prison officials must ‘take reasonable 10 measures to mitigate the [known] substantial risk[s]’ to a prisoner.” Id. (quoting Castro 11 v. Cnty. of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016)). 12 Where “there is a material dispute about the correctional officers’ conduct,” the 13 court will “assume those facts in [the plaintiff’s] favor in order to determine whether the 14 denial of qualified immunity was appropriate.” Est. of Ford v. Ramirez-Palmer, 301 F.3d 15 1043, 1048 (9th Cir. 2002); Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (“[W]e 16 evaluate [Gomez’s] claims of qualified immunity by resolving all factual disputes in 17 Jeffers’ favor.”). Doing so here leads the court to assume that Defendants were aware 18 that Mr. Ewalan faced a substantial risk of being attacked by Mr. Harris in 2017 and Mr. 19 Figueroa in 2019, based on Mr. Ewalan’s direct reporting of the imminent attacks to the 20 // 21 9 Because the court grants summary judgment to Ms. Nikula on count I, the only claim for which she is sued, see supra at 11, it need not consider whether she is protected by qualified 22 immunity. 1 Defendants. (See MSJ Resp. at 36, 39, 47-48, 50-51.) Defendants’ inaction in the face of 2 that knowledge would amount to deliberate indifference, see Clem, 566 F.3d at 1182, 3 which “necessarily precludes a finding of qualified immunity.” Est. of Ford, 301 F.3d at 4 1048. “[P]rison officials who deliberately ignore the serious [protection] needs of 5 inmates cannot claim that it was not apparent to a reasonable person that such actions 6 violated the law.” Id. (emphasis in original). 7 Accordingly, Defendants’ motion for summary judgment on the grounds that they 8 are shielded from liability by a qualified immunity is DENIED. 9 IV. CONCLUSION 10 For the foregoing reasons, the court ADOPTS IN PART and DECLINES TO 11 ADOPT IN PART the report and recommendation (Dkt. # 82). The court further 12 GRANTS in part and DENIES in part Defendants’ motion for summary judgment (Dkt. 13 # 53). Specifically, the court: 14 (1) DENIES Defendants’ motion to dismiss Sgt. Dickerson and EXTENDS Mr. 15 Ewalan’s time to serve Sgt. Dickerson with a copy of the summons and complaint by 16 forty-five (45) days, starting from the date of this order. Failure to perfect service of Sgt. 17 Dickerson in that time will result in his dismissal from this action. 18 (2) GRANTS Defendants’ motion and DISMISSES Defendants DOC and 19 SCCC with prejudice; 20 (3) GRANTS Defendants’ motion and DISMISSES count III of Mr. Ewalan’s 21 complaint without prejudice; 22 (4) GRANTS Defendants’ motion for summary judgment on count I as to 1 Ms. Nikula and DENIES Defendants’ motion for summary judgment on count I as to Mr. 2 Schreiber and Sgt. Rothwell. Ms. Nikula is DISMISSED from this action. 3 (5) DENIES Defendants’ motion for summary judgment on count II as to Ms. 4 Wakefield and Sgt. Larsen; 5 (6) DENIES Mr. Ewalan’s motion for a continuance (Dkt. # 65) and “cross 6 motion” (Dkt. # 70); and 7 (7) CONTINUES Mr. Ewalan’s in forma pauperis status in the event of an appeal. 8 Dated this 8th day of December, 2021. 9 A 10 JAMES L. ROBART 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22