Davall v. Cordero

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, CDCR #AW-8294, Case No.: 20-cv-1968-JLS-KSC 12 Plaintiff, REPORT AND RECOMMENDATION 13 v. REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT 14 A. CORDERO; D. WHITE; WHITMAN, 15 Defendants. [Doc. Nos. 68, 71] 16 17 18 Plaintiff Joseph Davall (“plaintiff”) is proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983, alleging defendants violated his rights 20 under the Eighth Amendment to the United States Constitution by failing to protect him 21 from an excessive risk to his safety. See generally Doc. No. 1. Before the Court are 22 plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) and defendants’ Motion 23 for Summary Judgment (“Defendants’ Motion,” and, collectively, the “Motions”). See 24 Doc. Nos. 68, 71. Pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1, the 25 undersigned Magistrate Judge submits this Report and Recommendation to United States 26 District Judge Janis L. Sammartino. For the reasons stated below, the Court 27 RECOMMENDS that Plaintiff’s Motion be DENIED and that Defendants’ Motion be 28 GRANTED. 1 2 I. BACKGROUND 3 A. Factual Background 4 In 2015, a jury found plaintiff guilty of forcibly raping a 12-year-old girl and other 5 associated offenses.1 See Doc. No. 68 at 1; Doc. No. 71-1 at 87-88; Doc. No. 71-2 at 26- 6 27.2 He is currently serving a sentence of life without parole at Calipatria State Prison 7 (“Calipatria”). Doc. No. 71-1 at 90. Plaintiff arrived at Calipatria in August 2015, but was 8 transferred in July 2016 to the county jail in Riverside while awaiting trial on burglary 9 charges unrelated to the rape. Id. at 89-90; see also Declaration of M. Whitman in Support 10 of Defendants’ Motion for Summary Judgment (“Whitman Decl.,” Doc. No. 71-6), ¶ 4. He 11 remained in Riverside from 2016 through 2019. Id. 12 1. Plaintiff’s Cell Placement Upon Return to Calipatria 13 Plaintiff returned to Calipatria on July 3, 2019. Whitman Decl., ¶ 5. As a convicted 14 sex offender, plaintiff is not eligible to be housed in the general population, and therefore 15 plaintiff was placed on the Sensitive Needs Yard (“SNY”). See Doc. No. 71-1 at 100-01; 16 Whitman Decl., ¶ 6. After being screened for an appropriate housing assignment,3 plaintiff 17 was assigned to a double cell with inmate Maldonado. Doc. No. 71-1 at 134; Whitman 18 Decl., ¶ 5. According to plaintiff, trouble with Maldonado began shortly thereafter, with 19 Maldonado demanding “several times” that plaintiff show him “paperwork.” Doc. No. 71- 20 21 1 These included: penetration by force, criminal threat to cause great bodily injury or death, 22 assault with a deadly weapon, and second-degree burglary. See Doc. No. 71-2 at 26. 23 2 Citations are to the page numbers assigned by the Court’s CM/ECF system, except for 24 citations to declarations which refer to the paragraphs as numbered therein. 25 3 The regulations provide that all inmates are expected to double cell, unless the staff determine that single cell status is appropriate. See Cal. Code Regs. tit. 15, § 3269 (hereafter 26 “Section 3269”). Prison staff consider many factors when making this determination. See 27 id. At Calipatria, housing assessments were made by a Classification Committee upon arrival and, pursuant to regulations, were reassessed every year thereafter and on an ad hoc 28 1 1 at 134. Plaintiff interpreted Maldonado’s request to mean that Maldonado wanted to “see 2 paperwork proving my commitment offense, why I’m in here. Most of the time that means 3 ‘Are you a sex offender, or are you okay? Are you good, or are you no good?’” Id. at 134. 4 Plaintiff testified that he keeps papers in his cell that would reveal his commitment offense, 5 and that he did not show Maldonado these papers because “that would have resulted in 6 immediate assault.” Id. at 135. 7 Plaintiff testified he told defendant A. Cordero (“Cordero”), a corrections officer, 8 about Maldonado’s demands and “asked him if there was any way I could get something 9 saying I am not a sex offender.” Doc. No. 71-1 at 129. Plaintiff also requested to be placed 10 in a single cell. Id. at 128. Plaintiff states that Cordero refused to give him false paperwork 11 and told plaintiff that he could not be put in a single cell unless plaintiff “[did] something 12 really bad.” Id. at 128, 136-37. Plaintiff did not ask for a new cellmate or to be moved 13 elsewhere. Id. at 137. He explained that he believed “the danger would have been the same, 14 or worse” if he had moved, because the “policy” among inmates that sex offenders are 15 “[p]ersona non grata” is “the same everywhere.” Id. at 137; see also id. at 142-43 (plaintiff 16 stating that “every inmate knows” it is the “unspoken” “policy” among inmates who were 17 gang members to “assault or kill any sex offender immediately upon knowledge of that 18 commitment offense”). Plaintiff also did not report his concerns about Maldonado to 19 anyone but Cordero. Id. at 139. 20 Plaintiff testified that Maldonado demanded that plaintiff move out of the cell when 21 plaintiff failed to provide the requested paperwork. Doc. No. 71-1 at 139. Plaintiff refused 22 to leave because it was “his cell” and Maldonado “moved in with me.” Id. at 139. 23 Maldonado continued to demand plaintiff’s paperwork, but he did not make any explicit 24 threats, nor was he “physical” with plaintiff. Id. at 140, 147. Nevertheless, plaintiff 25 perceived Maldonado’s continued demands as “aggressive” behavior because “every 26 inmate knows that if you do not provide the paperwork eventually, you will be 27 automatically assumed as hiding something, and the results will be the same.” Id. at 140- 28 1 41. Plaintiff spoke to Cordero again about Maldonado’s “aggressive” behavior, reiterating 2 his requests for false paperwork or placement in a single cell; Cordero again declined. Id. 3 2. July 28, 2019 Incidents with Inmates Maldonado and Carlson 4 Matters came to a head on July 28, 2019, when plaintiff and Maldonado were 5 involved in a physical altercation in the yard during mealtime. See Doc. No. 71-1 at 236- 6 237. Plaintiff told officers at the time that he started the fight when he “jumped” 7 Maldonado. See id. at 240. At his deposition, however, plaintiff denied that he was the 8 instigator, stating that he and Maldonado “started fighting at the same time.” Id. at 147. As 9 plaintiff recounted it, Maldonado “flinched” in his direction and “looked like he was going 10 to move towards me.” Id. at 147-148. Maldonado threw a punch at plaintiff but missed, 11 and plaintiff “punched [Maldonado] back.” Id. at 148. During the 30-second melee, 12 Maldonado landed a single strike against plaintiff; plaintiff punched Maldonado “20, 25” 13 times, breaking his two pinky fingers in the process. Id. at 148-49; see also Doc. No. 68-1 14 (x-ray results dated July 30, 2019, reporting findings of bilateral finger fractures). The fight 15 ended when an officer sprayed plaintiff and Maldonado with pepper spray. Doc. No. 71-1 16 at 148, 236.4 17 Immediately following this incident, plaintiff was removed from the cell with 18 Maldonado and assigned to a cell with inmate Carlson. Id. at 153. Plaintiff testified that 19 when he went into the cell, Carlson asked him for “paperwork,” at which point he exited 20 the cell and refused to be celled with Carlson. Id. Officers repeatedly asked plaintiff why 21 he could not cell with Carlson, but he would not say, stating only “I can’t tell you” and “I 22 can’t be on this yard.” Id. at 251. 23 3. Disciplinary and Housing Actions After July 28, 2019 24 25 4 Plaintiff and Maldonado were interviewed by a Correctional Sergeant and a Program 26 Sergeant after the incident and reported that their altercation “was a misunderstanding” and 27 that “they ha[d] settled their differences.” Doc. No. 71-1 at 265. Both inmates also stated they could “safely program together on Facility D without incident, and [did] not consider 28 1 Plaintiff was issued two Rules Violation Reports (“RVRs”) for the events on July 2 28, 2019: battery on a fellow inmate, and refusing to accept assigned housing. See Doc. 3 No. 71-1 at 236-41, 251-254. Plaintiff pled guilty to both offenses. See id. at 244, 258. 4 Based on plaintiff’s plea and the other evidence before it, on August 10, 2019, a 5 Disciplinary Committee found plaintiff guilty of refusing to accept his assigned housing. 6 Id. at 255-63. At the hearing, plaintiff’s only explanation to the Committee was that “[t]he 7 inmate inside the cell I was going into was asking for my paperwork and I didn’t have it 8 with me.” Id. at 258. He also told the Disciplinary Committee that he did not have any 9 enemy or safety concerns at that time. Id. at 261. A separate Disciplinary Committee 10 hearing was held on August 19, 2019 regarding the charge of battery on an inmate. See id. 11 at 241-50. Plaintiff appeared but did not give a statement. Id. at 244. Based on his guilty 12 plea and other evidence, the Disciplinary Committee found plaintiff guilty of the battery 13 charge. See Doc. No. 71-1 at 241-50. Plaintiff did not appeal these disciplinary findings. 14 See id. at 5, 25. As a result of the disciplinary findings arising from the July 28, 2019 15 altercation, plaintiff was placed on “C Status” or administrative segregation for 180 days. 16 Id. at 177. Plaintiff explained that meant he was “confined in [his] cell with no privileges.” 17 Id. Plaintiff did not have a cellmate during this time. Id. at 177. 18 On July 31, 2019, the Classification Committee reviewed plaintiff’s housing 19 assignment, noting that he had recently been charged with battery on his cellmate. Doc. 20 No. 71-2 at 2, 105-08. The Classification Committee noted that plaintiff did not have a 21 “pervasive pattern of in-cell misconduct” and that on question, plaintiff stated he had “no 22 problem” with his cellmate or with being double-celled. Id. Plaintiff was therefore 23 “approved for double cell housing with no special restrictions.” Id. 24 The Classification Committee met again on September 17, 2019, after plaintiff had 25 been found guilty of the two disciplinary charges and rescinded their earlier 26 recommendation that plaintiff be transferred to a lower-security prison. Doc. No. 71-2 at 27 5-9, 101-04. The Classification Committee did not change their earlier assessment that 28 double-cell housing was appropriate. Id. 1 The record reflects further assessments by the Classification Committee on June 25, 2 2020, May 11, 2021, and September 28, 2021, with no change to his double-cell 3 classification. See Doc. No. 71-2 at 13, 86, 90, 94. Plaintiff was informed of his right to 4 appeal the Classification Committee’s decisions, but did not do so. See id. at 88, 92, 96, 5 107, 111. 6 4. Plaintiff’s Grievance Regarding His Cell Assignment 7 On February 14, 2020, approximately seven months after the incident with 8 Maldonado, plaintiff filed a grievance regarding his cell assignment. Doc. No. 71-1 at 10. 9 Plaintiff stated that “[p]ursuant to [Cal. Code Regs. tit. 15, §] 3269(a),” his commitment 10 offense was “a safety issue for double cell” and that “past history cell assignments ha[d] 11 already caused [him] harm over this issue.” Id. Under “Action Requested,” plaintiff stated: 12 “I need a single cell to protect my safety, and or, the safety of my celley seeking to harm 13 me for the nature of [my] commitment offense.” Id. Whitman denied this request on March 14 25, 2020. Id. In a letter to plaintiff of that date, Whitman explained that plaintiff was not 15 eligible for single-cell status, noting that plaintiff had been interviewed by staff and denied 16 any active safety concerns, but rather a belief that his commitment offense entitled him to 17 single-cell housing. Id. at 16. Whitman also noted that the regulations did not provide for 18 single-cell housing on the basis of “an isolated incident.” Id. 19 Plaintiff appealed the decision to the second level review on April 6, 2020. Doc. No. 20 71-1 at 11. Explaining why he disagreed with the decision, plaintiff stated, for the first 21 time, that he had been raped by his cellmate in Riverside County Jail. Id. He also stated 22 that at Calipatria, he had been “victimized” by his cellmate and was “forced to defend 23 [him]self,” referring to the incident with Maldonado. Id. Plaintiff claimed that both 24 incidents were “a result of [his] commitment offense” and asked staff to “review [his] file 25 again for single-cell status.” Id. Plaintiff acknowledged at his deposition that April 6, 2020 26 was the first time plaintiff told anyone that he had been raped. Id. at 171; see also id. at 186 27 (“Q. So you didn’t tell any prison staff about that rape until April 6, 2020? A. Correct.”). 28 1 Chief Deputy Warden S. Moore denied plaintiff’s second-level appeal on May 26, 2 2020. Doc. No. 71-1 at 11. In a letter to plaintiff of that date, Moore explained that plaintiff 3 still did not meet the criteria for single-cell status, and informed him that he could appeal 4 the decision to the third level of review. Id. at 12-14. 5 Plaintiff appealed to the third level of review. Doc. No. 71-1 at 9. In his appeal, 6 plaintiff complained that staff had not properly evaluated his eligibility for single-cell 7 housing. Id. Plaintiff stated that he had been placed in a cell with “drop out” and “active” 8 gang members “many times” and that “each time” his life was in danger. Id. By letter dated 9 August 31, 2021, CDCR’s Office of Appeals informed plaintiff that “[u]pon review of the 10 Second Level Response previously issued to you and the written record in this case, the 11 Office of Appeals has determined that the Second Level Response to your claim . . . shall 12 serve as the Department’s final decision.” Doc. No. 71-1 at 7. 13 B. Procedural History and Plaintiff’s Remaining Claim 14 Plaintiff filed his Complaint and a Motion for leave to proceed in forma pauperis 15 (“IFP”) on October 5, 2020. Doc. No. 1. After granting plaintiff’s IFP Motion, the District 16 Court screened plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2). Doc. No. 4. As a 17 result of that screening, the District Court determined that plaintiff failed to state a 18 cognizable Fourteenth Amendment claim against defendant White, but found that: 19 Plaintiff’s Complaint contains “sufficient factual matter, accepted as true,” to 20 state Eighth Amendment claim for relief that is “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to survive the “low threshold” set 21 for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 22 See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Farmer v. Brennan, 511 U.S. 825, 837 (1994) (failure to protect claims under the Eighth 23 Amendment require a showing that “the official [knew] of and disregard[ed] 24 an excessive risk to inmate health or safety.”). 25 Doc. No. 4 at 9.5 26 27 5 Plaintiff later moved for reconsideration regarding dismissal of the claims against White, 28 1 On December 2, 2020, plaintiff moved for the issuance of a preliminary injunction 2 and temporary restraining order, seeking an order that “defendant Whitman and each of his 3 officers, agents, employees and all persons acting in concert or participating with them are 4 restrained from placing [plaintiff] in a double cell.” Doc. No. 9. The District Court denied 5 the Motion on February 18, 2021. Doc. No. 30. The District Court noted that the alleged 6 assault in July 2019 and a second alleged assault in October 2020 formed the “basis” of 7 plaintiff’s Eighth Amendment claims against Cordero and Whitman. Id. at 5. Analyzing 8 the evidence before it, the District Court determined that plaintiff had not established “a 9 substantial risk of serious harm presented by a specific inmate,” and had also not 10 established that he was likely to succeed on the merits of his failure-to-protect claim. Id. at 11 5-7. The District Court therefore found that the “ʻextraordinary and drastic remedy’” of a 12 preliminary injunction was not warranted. Id. at 9. 13 On January 19, 2021, Whitman moved to dismiss plaintiff’s claims against her. See 14 Doc. No. 22. At this time, Cordero had not been served and had not appeared in the action. 15 On June 1, 2021, the District Court granted the Motion to Dismiss in part and denied it in 16 part. See generally Doc. No. 37. The District Court observed that plaintiff’s “only 17 allegations against Whitman arise from her response to [his February 14, 2020] grievance.” 18 Id. at 8. To the extent plaintiff alleged that Whitman’s response to the grievance was in 19 violation of his Eighth Amendment rights, the District Court found, he had not pled 20 sufficient facts that would “ʻallow[] the court to draw the reasonable inference’ that 21 Whitman knew he faced a substantial risk of danger, and yet chose to ignore it.” Id. (citing 22 Iqbal, 556 U.S. at 678 and Farmer, 511 U.S. at 847). Plaintiff’s Eighth Amendment claim 23 against Whitman in her individual capacity was therefore dismissed. Id. 24 However, the District Court also noted that plaintiff sought injunctive relief and 25 found that because plaintiff alleged that “the ‘CDCR policy’ to ‘not give a single cell until 26 after violence has occurred’ violates his constitutional rights,” and further alleged that 27 Whitman was “the appropriate official to handle his request for injunctive relief,” Whitman 28 was appropriately named in her official capacity. Doc. No. 37 at 8-9. The District Court 1 dismissed plaintiff’s claims against Whitman based on the Prison Rape Elimination Act 2 (“PREA”), finding that PREA did not create a private cause of action. Id. at 9-10. Finally, 3 the District Court directed additional measures be taken to effectuate service of the 4 Complaint upon Cordero. Id. at 11-12. 5 Whitman answered the Complaint on June 15, 2021. Doc. No. 38. Cordero answered 6 on August 30, 2021. Doc. No. 54. 7 II. LEGAL STANDARDS 8 Rule 56(a) of the Federal Rules of Civil Procedure provides that a court “shall grant 9 summary judgment if the movant shows that there is no genuine dispute as to any material 10 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 11 “principal purpose[] of Rule 56 is to dispose of factually unsupported claims or defenses.” 12 Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1087 (S.D. Cal. 2006) (citation omitted). 13 The party moving for summary judgment bears the burden of demonstrating that 14 there is no genuine issue for trial. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th 15 Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Rule 56 requires the 16 moving party to state the basis for its motion, and identify those portions of “the pleadings, 17 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 18 if any,” which it believes demonstrate the absence of a genuine issue of material fact. 19 Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56). 20 The showing required by the moving party depends upon whether that party bears 21 the burden of proof at trial. A party who moves for summary judgment on an issue or claim 22 upon which it does not bear the burden of proof at trial must simply demonstrate that the 23 non-moving party lacks evidence upon which a reasonable jury could find in the 24 nonmoving party’s favor. Oracle, 627 F.3d at 387. Where the moving party bears the 25 burden of proof at trial, however, “‘that party must show affirmatively the absence of a 26 genuine issue of material fact,’ that is, ‘[that] no reasonable jury could find for the non- 27 moving party.’” Ram v. Infinity Select Ins., 807 F. Supp. 2d 843, 853 (N.D. Cal. 2011) 28 (citation omitted). “Once the movant has made this showing, the burden then shift to the 1 party opposing summary judgment to designate ‘specific facts showing there is a genuine 2 issue for trial.’” Id. The non-moving party must then “point to some facts in the record that 3 demonstrate a genuine issue of material fact and, with all reasonable inferences made in 4 the plaintiff[’s] favor, that could convince a reasonable jury to find for the plaintiff[].” 5 Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) (citations 6 omitted). The Court must assess the movant’s entitlement to summary judgment based on 7 the record before it and “with the evidence viewed in the light most favorable to the non- 8 moving party.” San Diego Police Officers Ass’n v. San Diego City Emps.’ Ret. Sys., 568 9 F.3d 725, 733 (9th Cir. 2009). 10 III. DISCUSSION 11 Before proceeding to the merits of the parties’ arguments, the Court addresses what 12 plaintiff has labeled a “procedural default” in defendants’ Motion. See Doc. No. 73 at 1. 13 Plaintiff notes that he filed his Motion on March 11, 2022 and that defendants’ Motion was 14 filed on March 25, 2022. Id. Plaintiff therefore asserts that “by filing a separate motion 15 rather than responding to my motion for summary judgment defense counsel is removing 16 her burden as the non-moving party and forcing that burden on me.” Id. The Court reminds 17 plaintiff that the parties’ deadline to file their summary judgment motions was extended 18 upon a joint request of the parties. See Doc. No. 67. Defendants’ Motion was timely, even 19 if filed after plaintiff’s Motion. Furthermore, as explained above, the parties’ respective 20 burdens on summary judgment are not determined by the order in which the motions were 21 filed, but by reference to the parties’ burdens of proof at trial. For these reasons, the Court 22 rejects plaintiff’s charge of gamesmanship, and finds no procedural impropriety in 23 defendants’ Motion. The Court turns now to the parties’ arguments in support of summary 24 judgment. 25 A. Exhaustion 26 The PLRA requires inmates challenging the conditions of their confinement to 27 exhaust “such administrative remedies as are available” before filing suit in federal court. 28 42 U.S.C. §1997e(a). “Exhaustion is mandatory[,]” but where an administrative remedy is 1 “effectively unavailable” to the inmate, a failure to exhaust that remedy “does not bar a 2 claim from being heard in federal court.” Soto v. Sweetman, 882 F.3d 865, 869-70 (9th Cir. 3 2018) (internal quotation marks and citation omitted). A prisoner’s failure to exhaust 4 administrative remedies is an affirmative defense for which defendants bear the burden of 5 proof. 6 Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). At summary 6 judgment, defendants’ burden is “to prove that there was an available administrative 7 remedy, and that the prisoner did not exhaust it.” Id. 8 Defendants argue that they are entitled to summary judgment because plaintiff failed 9 to exhaust the available administrative remedies before filing suit, because he never filed 10 a grievance that named Cordero (or Whitman, for that matter) or that referred to the incident 11 with Maldonado. Doc. No. 71 at 8, 17. Plaintiff concedes that he did not name Cordero or 12 Whitman in his grievance form, but asserts that he was not required to do so. See Doc. No. 13 73 at 2-3. Instead, plaintiff asserts, he was required to do nothing more than assert the 14 “operative fact” of his request for a single cell and that identifying this “operative fact” 15 “satisfies the exhaustion requirement.” Id. at 3. That may have been true with respect to 16 any Eighth Amendment claim arising out of Whitman’s denial of plaintiff’s request for 17 single-cell status.7 But, the Court need not resolve the question of whether anything more 18 was required because, as explained above, the District Court has already dismissed 19 plaintiff’s claim for deliberate indifference as against Whitman. Doc. No. 37 at 8. The only 20 remaining Eighth Amendment claim is for Cordero’s alleged deliberate indifference. 21 As to that claim, the Court finds the evidence of plaintiff’s failure to exhaust 22 irrefutable. The Court begins with plaintiff’s February 14, 2020 grievance form, in which 23 24 25 6 Whitman and Cordero each pled plaintiff’s “Failure to Exhaust Administrative Remedies” as an affirmative defense. See Doc. No. 38 at 3; Doc. No. 54 at 3. 26 7 The Court notes that the Office of Appeals informed plaintiff in its August 31, 2021 letter 27 regarding his request for single-cell status that “[his] administrative remedies have been 28 exhausted for this appeal issue.” Doc. No. 71-1 at 7. 1 plaintiff states – and states only – that his classification for double-celling “is a safety issue” 2 and that his past cell assignments “caused him harm.” Doc. No. 71-1 at 30-31. Cordero is 3 not identified by name, and there is no information whatsoever that resembles the 4 allegations in the Complaint against Cordero – i.e., that plaintiff informed him of 5 Maldonado’s perceived threats and that Cordero failed to appropriately act on that 6 information. There is a generic reference to “staff” having disposed of documents related 7 to plaintiff’s grievance, specifically the “last 2 R.V.R.’s and C status placement.” Id. But, 8 even reference to these documents would not clarify Cordero’s involvement, because 9 neither the RVRs nor the disciplinary proceeding reports make any reference to plaintiff’s 10 conversations with Cordero before the July 28, 2019 incident with Maldonado. Plaintiff’s 11 replies to the First Level and Second Level responses to his grievance likewise do not 12 identify Cordero by name and do not state any of the facts that form the basis of plaintiff’s 13 Eighth Amendment claim against him.8 See id. at 9, 31. 14 Defendants also submit the declarations of Howard E. Moseley (“Moseley Decl.,” 15 Doc. No. 71-4), the Associate Director of the Office of Appeals (“OOA”) for CDCR, and 16 P. Lopez (“Lopez Decl.,” Doc. No. 71-5), the Appeals Coordinator at Calipatria. Moseley 17 states that at all times relevant to this action, inmates were required to follow the procedures 18 set forth in Title 15, sections 3084-3085 of the California Code of Regulations to pursue a 19 grievance. Moseley Decl., ¶ 6; accord Cal. Code Regs. tit. 15 §§ 3084-3085 (2019) 20 (repealed June 1, 2020).9 Both declarants attest that they directed a search of their 21 22 23 8 In replying to the First Level response, plaintiff stated he “was victimized by my celley 24 . . . as a result of [his] commitment offense,” apparently referring to the incident with Maldonado. Id. at 31. However, when questioned about this statement, plaintiff stated only 25 that “he felt he was victimized by the system that housed him with an inmate he felt he was 26 incompatible with and subsequently fought with . . .” Doc. No. 71-1 at 19. He denied enemy or safety concerns at the time. Id. There is no reference to Cordero. Id. 27 9 “On March 25, 2020, and effective June 1, 2020, California Code of Regulations Title 28 1 respective offices’ records and that plaintiff’s February 14, 2020 grievance is the only 2 grievance filed by plaintiff relating to his single-cell status or the alleged failure of 3 defendants to protect him from harm. See Moseley Decl., ¶¶ 8-10; Lopez Decl., ¶¶ 1, 4. 4 The Court finds that the foregoing evidence is sufficient to meet defendants’ burden 5 to “prove that there was an available administrative remedy, and the prisoner did not 6 exhaust [it].” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). “Proper exhaustion 7 demands compliance with an agency’s deadlines and other . . . procedural rules.” Woodford 8 v. Ngo, 548 U.S. 81, 91 (2006). “The level of detail in an administrative grievance 9 necessary to properly exhaust a claim is determined by the prison’s applicable grievance 10 procedures.” Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010). At the time plaintiff filed 11 his grievance, the applicable regulations required him to “list all staff member(s) involved 12 and shall describe their involvement in the issue.” Cal. Code Regs., tit. 15 § 3084.2(a)(3) 13 (repealed eff. June 1, 2020)). As plaintiff admits, he did not do so. Doc. No. 73 at 3; see 14 also Doc. No. 71-1 at 182 (“Q: Did you ever file a grievance against Cordero stating that 15 he had ignored your complaints about Maldonado? A: I did not. Q: Any specific reason? 16 A: No. Well, I did not. I kind of thought this one would cover it, you know.”). Pursuant to 17 the foregoing precedent and the regulations in effect at the time, this constitutes a failure 18 to exhaust his available administrative remedies. 19 The Court further finds that plaintiff has not met his burden to “come forward with 20 evidence showing that there is something particular in his case that made the existing and 21 generally available administrative remedies effectively unavailable to him.” Albino, 747 22 F.3d at 1172. The facts upon which plaintiff’s allegations against Cordero are based were 23 known to plaintiff as of the time he submitted his grievance, such that he could have 24 included those details, but he chose not to. Plaintiff has also failed to present any evidence 25 that the grievance procedures at Calipatria “operate[d] as a simple dead end,” were “so 26 27 amended provisions at sections 3480 through 3487.” Wimberly v. Cuevas, No. 19cv8316- 28 1 opaque” that no ordinary prisoner could navigate them, or that he felt too threatened or 2 intimidated by prison staff to pursue his grievances. See Ross v. Blake, 578 U.S. 632, 643- 3 44 (2016) (describing reasons why an administrative grievance procedure would be 4 considered “unavailable”). Any such argument by plaintiff would be seriously undermined 5 by evidence of plaintiff’s willingness and ability to pursue not just the grievance at issue 6 in this case, but several others regarding “theft” of his prison funds, the quality of the 7 prison’s food, certain disciplinary actions unrelated to the July 28, 2019 altercation with 8 Maldonado, and need for office supplies. See Doc. No. 71-1 at 36, 47, 55 and 59. Indeed, 9 plaintiff testified at his deposition that he has filed “in the ballpark of 10 to 15” grievances 10 while in CDCR’s custody, and conceded that he is “pretty familiar with the grievance 11 process.”’ See id. at 182-83. 12 On the record before it, the Court is persuaded that no reasonable jury could find in 13 plaintiff’s favor on the issue of exhaustion. See Ram, 807 F. Supp. 2d at 853. On this basis, 14 the undersigned Magistrate Judge RECOMMENDS the District Court GRANT 15 Defendants’ Motion and DENY Plaintiff’s Motion. 16 B. Cordero’s Deliberate Indifference 17 Exhaustion is a “threshold requirement,” and plaintiff’s failure to comply with this 18 requirement means he is not entitled to “review of his claims in federal court.” McBride, 19 807 F.3d at 988. Nevertheless, the Court finds that even if plaintiff had exhausted his 20 administrative remedies, defendants are entitled to summary judgment on plaintiff’s Eighth 21 Amendment claim for Cordero’s alleged deliberate indifference to, and failure to protect 22 plaintiff from, a serious risk to his safety. 23 The Eighth Amendment requires prison officials to protect the safety of inmates. See 24 Farmer v. Brennan, 511 U.S. 825, 833 (1994). Yet, “not ... every injury suffered by one 25 prisoner at the hands of another” is a constitutional violation. Id. at 834 (internal quotation 26 marks, ellipsis, and citation omitted). Instead, a prison official violates the Eighth 27 Amendment only when that official is “deliberately indifferent” to a prisoner’s health or 28 safety, defined as “know[ing] of and disregard[ing] an excessive risk to inmate health and 1 safety.” Id. at 834, 837. Under this standard, the official must both “be aware of facts from 2 which the inference could be drawn that a substantial risk of serious harm exists,” and he 3 must actually draw that inference. Id. “In other words, the official must demonstrate a 4 subjective awareness of the risk of harm.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 5 1068 (9th Cir. 2016). 6 To prevail on his Eighth Amendment claim, plaintiff bears the burden of proving 7 Cordero was subjectively aware of the risk of assault by Maldonado. Proof of the 8 defendant’s subjective knowledge may be demonstrated by direct evidence or by inference 9 from circumstantial evidence. Farmer, 511 U.S. at 842. Plaintiff has not put forward either. 10 See Celotex, 477 U.S. 322–23 (stating that summary judgment is proper where there is “a 11 complete failure of proof concerning an essential element of the nonmoving party’s case”). 12 Plaintiff claims he told Cordero “two or three . . . different times” that Maldonado 13 was “requesting [plaintiff’s] paperwork” and that he was “becoming aggressive.” Doc. No. 14 71-1 at 128-29. He also testified that he was suing Cordero for deliberate indifference 15 because he “was requesting a single cell, and [Cordero] told me, no, I could not have that.” 16 Id. at 128. But plaintiff has not offered any evidence – such as Cordero’s own testimony – 17 that would support the inference that Cordero believed plaintiff to be in imminent danger 18 from Maldonado. Even the circumstantial evidence falls short: plaintiff’s own testimony is 19 that when an inmate is asked by another inmate for his “paperwork,” “[m]ost of the time 20 that means ‘Are you a sex offender, or are you okay?’” Doc. No. 71-1 at 134. Plaintiff 21 intuited that this was Maldonado’s meaning at this time, and he interpreted Maldonado’s 22 comments and behavior as putting him at risk of an “immediate assault.” Id. at 135. But 23 the evidence that Cordero did likewise is nonexistent. 24 Even viewing the record in the light most favorable to plaintiff, the most the Court 25 can infer is that Cordero should have known that plaintiff was in danger. This is not 26 sufficient for liability. See Farmer, 511 U.S. at 838-39 (explaining that the “subjective 27 approach” to deliberate indifference claims focuses on what “defendant’s mental attitude 28 actually was,” and not “what it should have been”). Stated otherwise, the Eighth 1 Amendment prohibits deliberate, not negligent, indifference. Id. at 835 (noting that 2 “‘deliberate indifference’ describes a state of mind more blameworthy than negligence”). 3 The Court finds that the record before it is devoid of any evidence upon which a 4 reasonable juror could find that Cordero knew of, and failed to protect plaintiff from, an 5 excessive risk to plaintiff’s safety. Accordingly, and to the extent the District Court does 6 not adopt the undersigned’s findings with respect to plaintiff’s failure to exhaust his 7 administrative remedies, the undersigned Magistrate Judge RECOMMENDS that the 8 District Court DENY Plaintiff’s Motion and GRANT Defendants’ Motion on the 9 alternative ground that plaintiff has failed to adduce evidence to support his claim that 10 Cordero violated his Eighth Amendment rights. 11 C. Injunctive Relief 12 Defendants also move for summary judgment on plaintiff’s “official capacity claim” 13 against Whitman, and both plaintiff and defendants devote considerable argument to 14 whether Whitman knew of, but failed to protect plaintiff from, a risk to his safety, entitling 15 him to injunctive relief. See Doc. No. 71 at 22-25; see also Doc. No. 68 at 6-8. The 16 undersigned has not considered any of these arguments, given that the District Court quite 17 plainly found that plaintiff failed to state an Eighth Amendment failure-to-protect claim 18 against Whitman arising out of her response to plaintiff’s February 14, 2020 grievance. See 19 Doc. No. 37 at 8 (finding that plaintiff failed to plead facts sufficient to support such a 20 claim). That is the law of the case, and the parties have not provided the Court with any 21 reason to reconsider it. See Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 22 715 (9th Cir. 1991) (explaining that under the law of the case doctrine, “a court is generally 23 precluded from reconsidering an issue previously decided by the same court,” absent 24 certain exceptions that do not apply here); see also Arizona v. California, 460 U.S. 605, 25 618 (1983) (noting that the law-of-the-case doctrine “posits that when a court decides upon 26 a rule of law, that decision should continue to govern the same issues in subsequent stages 27 in the same case”). 28 1 To the extent the parties have interpreted the District Court’s Order on Whitman’s 2 motion to dismiss as recognizing a plaintiff’s request for injunctive relief as a separate and 3 distinct constitutional “claim,” that interpretation is misplaced. See Doc. No. 37 at 9 4 (denying motion to dismiss as to “plaintiff’s Eighth Amendment official-capacity claim” 5 against Whitman). “It is well settled that a claim for ‘injunctive relief’ standing alone is 6 not a cause of action.” Kwai Ling Chan v. Chase Home Loans Inc., No. C12-0273JLR, 7 2012 WL 1252649, at *3 (W.D. Wash. Apr. 13, 2012) (quoting Jensen v. Quality Loan 8 Serv. Corp., 702 F.Supp.2d 1183, 1201 (E.D.Cal.2010)). Instead, a plaintiff must prevail 9 on an independent cause of action for which injunctive relief is an available remedy. See, 10 e.g., Marine Carpenters Pension Fund v. Puglia Marine, LLC, 382 F. Supp. 3d 1134, 11 1147–48 (W.D. Wash. 2019) (stating that “injunctive relief is inappropriate when there has 12 been no alleged violation of the law”) (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 13 193(1978)); see also Jensen, 702 F.Supp.2d at 1201 (“An injunction is a remedy, not a 14 separate claim or cause of action.”). Bearing this authority in mind, any reading of the 15 District Court’s order on Whitman’s Motion to Dismiss as recognizing a standalone “claim 16 for injunctive relief” against Whitman is unsupportable. See Defendants’ Motion at 24. 17 To reiterate, when the District Court issued its Order on Whitman’s Motion to 18 Dismiss, it disposed of plaintiff’s claims that Whitman failed to protect him, whether 19 brought under the Eighth Amendment or PREA. Doc. No. 37 at 9. But, because Cordero 20 had not yet appeared, plaintiff had (at that point) a viable failure-to-protect claim against 21 Cordero. See id. The District Court reasoned that if plaintiff were to prevail on his claim 22 that Cordero violated his Eighth Amendment rights, and sought injunctive relief for that 23 violation, such remedy could only have been pursued against Whitman in her official 24 capacity as the official at Calipatria with the authority to assign plaintiff to a single cell. 25 See id. at 8. The District Court explained that “[t]he Eleventh Amendment bars a prisoner 26 from seeking monetary damages in a § 1983 action against state actors sued in their official 27 capacities . . . [but] does not bar actions against state officials seeking prospective 28 injunctive relief.” Id. (citing Will v. Michigan, 491 U.S. 58, 66 (1989) and Quern v. Jordan, 1 44 U.S. 332, 337 (1979)); accord Cornwell v. California Bd. of Barbering and 2 Cosmetology, 962 F.Supp. 1260, 1265 (S.D. Cal. 1997) (explaining that “[s]tate officials 3 acting in their official capacity . . . are ‘persons’ for the purposes of § 1983 when sued only 4 for prospective injunctive relief”). The District Court further found that since plaintiff had 5 satisfied the procedural requirements for naming Whitman in her official capacity, she 6 would remain in the case for the purpose of providing any injunctive relief for which 7 plaintiff might be eligible. See Doc. No. 37 at 9 (citing Hartmann v. Cal. Dep’t of Corr. & 8 Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013)).10 9 As explained above, plaintiff’s Eighth Amendment failure-to-protect claim against 10 Cordero fails. Because there is no predicate constitutional violation at issue, the Court 11 further finds that plaintiff is not entitled to injunctive relief and RECOMMENDS that any 12 claim to such relief be DENIED. 13 D. Constitutionality of Section 3269 14 Plaintiff argues as an alternative basis for injunctive relief that Section 3269 – and, 15 more specifically, the “criteria” set forth therein for determination of single-cell housing 16 classification – is “unconstitutional.” Plaintiff’s Motion at 7; see also Doc. No. 71-1 at 191- 17 92 (“Q: The injunctive relief you are seeking is to have a single cell; is that correct? A: 18 Correct. Q: Okay. And you’re claiming the policy is unconstitutional as applied to sex 19 offenders; is that correct? A: That’s correct.”). 20 For the reasons outlined above, the undersigned does not read plaintiff’s Complaint 21 as stating, or the District Court’s Order on Whitman’s Motion to Dismiss as recognizing, 22 23 24 25 10 These findings are also consistent with the District Court’s February 18, 2021, Order denying plaintiff’s Motion for a Preliminary Injunction and Temporary Restraining Order. 26 Doc. No. 30. The District Court denied plaintiff’s Motion because it found that plaintiff 27 was unlikely to succeed on his Eighth Amendment claims against Whitman and Cordero arising out of the assault on plaintiff by his cellmate. See id. at 5, 7. 28 1 an independent claim regarding the constitutionality of Section 3269. However, affording 2 plaintiff all benefit of the doubt as a pro se litigant, the Court nevertheless finds that even 3 if plaintiff stated a claim regarding the “unconstitutional criteria” stated in Section 3269, 4 summary judgment in defendants’ favor is warranted as to that claim. Preliminarily, 5 plaintiff has neither alleged nor proffered any evidence that Whitman exercises any 6 authority over the adoption of CDCR policy or bears the responsibility to ensure that those 7 policies do not violate the U.S. Constitution. See Hartmann, 707 F.3d at 1128 (finding that 8 officials who had such authority and responsibility were “the proper official-capacity 9 defendants”). 10 Moreover, plaintiff argues that the criteria for single-cell consideration stated in 11 Section 3269, subsection (d), are “unconstitutional” because he “should not have to wait to 12 [b]e assaulted multiple times before being considered for safe housing in a single cell.” 13 Plaintiff’s Motion at 7. Yet, as defendants correctly point out, the regulation does not 14 demand that plaintiff – or any other inmate – await multiple instances of victimization 15 before single-cell housing will be considered. See Defendants’ Motion at 8, 24. On a plain 16 reading of the text, Section 3269(d) provides that prison staff must assess an inmate for 17 single-cell status whenever an inmate demonstrates a history of violent or predatory 18 behavior towards a cellmate or has experienced “documented and verified” in-cell 19 victimization, and that such history must be considered during the assessment. Cal. Code 20 Regs., tit. 15, § 3269(d). It does not prevent prison staff from assessing an inmate’s 21 eligibility for single-cell classification at any other time, or from considering any other 22 factors in support of single-cell classification whenever such assessment is made. In fact, 23 the regulation identifies a non-exhaustive list of factors that prison staff should consider 24 when making housing decisions, which are reviewed on a yearly and ad hoc basis. See 25 26 27 11 Indeed, plaintiff’s allegation is that Whitman failed to follow “the correct procedure as outlined in title 15 [section] 3269(d)(2)” by approving him for double celling. See Doc. 28 1 Whitman Decl., ¶ 2. The Court declines to find the regulation unconstitutional based on 2 plaintiff’s misreading of it. 3 Plaintiff asserts that Section 3269 is unconstitutional as to sex offenders per se 4 because sex offenders are so frequently targeted by other inmates that they should 5 automatically be considered in “imminent danger[]” of violence and unable to house safely 6 in a double cell. Plaintiff’s Motion at 7. In support of this position, however, plaintiff 7 merely recycles his previous arguments why he personally “need[s] the extra protection of 8 a single cell.”12 Id. at 8. For the reasons stated in this Report and Recommendation, and 9 in the District Court’s Order on defendants’ Motion to Dismiss, those arguments do not 10 establish that plaintiff’s constitutional rights have been violated – much less those of an 11 entire class of persons. 12 The undersigned reiterates its conclusion that plaintiff’s Complaint does not state an 13 independent claim that Section 3269 is unconstitutional as applied to sex offenders. Should 14 the District Court decline to adopt these findings, the undersigned RECOMMENDS in 15 the alternative that Defendants’ Motion be GRANTED and Plaintiff’s Motion be 16 DENIED as to any such claim, because plaintiff has failed to offer any factual or legal 17 support for it. See Oracle, 627 F.3d at (affirming summary judgment where “[p]laintiffs’ 18 theory [was] unsupported by the record”). 19 RECOMMENDATION AND ORDER 20 Having carefully considered the evidence presented, the applicable law, and the 21 parties’ arguments, the Court finds that no reasonable juror could find that plaintiff 22 exhausted his available administrative remedies. The Court further finds that no reasonable 23 juror could conclude that Cordero knew of, but disregarded, an excessive risk to plaintiff’s 24 25 26 12 This argument is undermined by plaintiff’s own testimony that, as a convicted child 27 rapist, he felt “comfortable” celling with other child molesters. Doc. No. 71-1 at 116. In fact, in 2020 he was doing just that until “personality differences” ended the pair’s living 28 1 || safety, and that because plaintiff's Eighth Amendment claim against Cordero fails he is not 2 ||entitled to injunctive (or any other) relief. The Court also finds that even if plaintiff 3 || adequately pled a claim that Section 3269 is unconstitutional, he has failed to support that 4 || claim legally or factually. 5 Accordingly, and for the reasons stated herein, the undersigned Magistrate Judge 6 ||, RECOMMENDS that the District Court: (1) adopt this Report and Recommendation in 7 entirety; (2) DENY Plaintiffs Motion for Summary Judgment [Doc. No. 68]; (3) 8 ||GRANT Defendants’ Motion for Summary Judgment [Doc. No. 71]; and (4) enter 9 || judgment in defendants’ favor accordingly. 10 IT IS HEREBY ORDERED that no later than September 21, 2022, any party to 11 || this action may file written objections to this Report and Recommendation with the District 12 ||Court and serve a copy on all parties. The document should be captioned “Objections to 13 Report and Recommendation.” 14 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 15 District Court and served on all parties no later than October 5, 2022. Failure to file 16 || objections within the specified time may waive the parties’ right to raise those objections 17 ||on appeal of the District Court’s order. Martinez v. YIst, 951 F.2d 1153, 1158 (9th Cir. 18 1991). 19 || IT IS SO ORDERED. 20 || Dated: August 22, 2022 Jl. Ke 9 Hori. Karen 8S. Crawford United States Magistrate Judge 23 24 25 26 27 28