O'Guinn v. Baca

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROY O’GUINN, Case No. 3:18-cv-00469-MMD-CSD Plaintiff, 7 ORDER v. 8 ISIDRO BACA, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Roy O’Guinn, an inmate in the custody of the Nevada Department 13 of Corrections (“NDOC”), brings this civil rights action under 42 U.S.C. § 1983. (ECF No. 14 10.) O’Guinn alleges that Defendants Isidro Baca and Buchanan violated O’Guinn’s rights 15 under the Eighth Amendment when Defendants failed to protect him from another inmate’s 16 attack. (Id.) Before the Court is the Report and Recommendation of United States 17 Magistrate Judge Craig S. Denney. (ECF No. 57 (“R&R”).) The R&R recommends that 18 Defendants’ motion for summary judgment (ECF No. 44) be granted. (Id.) O’Guinn timely 19 filed an objection to the R&R. (ECF No. 58 (“Objection”).)1 More recently, O’Guinn has 20 also filed a motion titled “Plaintiff’s 1st dispositive motion.” (ECF No. 60.) The Court denies 21 this motion as it lacks merit. Moreover, because the Court agrees with Judge Denney— 22 as further explained below—the Court overrules the Objection, adopts the R&R in full, and 23 grants summary judgment in favor of Defendants. 24 II. BACKGROUND 25 The Court incorporates by reference Judge Denney’s recitation of the factual 26 background provided in the R&R, which the Court adopts here. (ECF No. 57 at 1-2, 6-9.) 27 28 1O’Guinn also filed a motion to add two exhibits to his Objection. (ECF No. 59.) Defendants did not file a response. As such, the Court will grant the motion. See LR 7- 2 A. Review of the Magistrate Judge’s Recommendation 3 This Court “may accept, reject, or modify, in whole or in part, the findings or 4 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 5 timely objects to a magistrate judge’s report and recommendation, then the Court is 6 required to “make a de novo determination of those portions of the [report and 7 recommendation] to which objection is made.” Id. The Court’s review is thus de novo 8 because O’Guinn filed his Objection. (ECF No. 58.) 9 B. Summary Judgment 10 “The purpose of summary judgment is to avoid unnecessary trials when there is no 11 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. United States Dep’t of 12 Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is 13 appropriate when the pleadings, the discovery and disclosure materials on file, and any 14 affidavits “show there is no genuine issue as to any material fact and that the movant is 15 entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 16 An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact- 17 finder could find for the nonmoving party and a dispute is “material” if it could affect the 18 outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 19 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, 20 however, summary judgment is not appropriate. See id. at 250-51. “The amount of 21 evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury 22 or judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral 23 Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 24 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all 25 facts and draws all inferences in the light most favorable to the nonmoving party. See 26 Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) 27 (citation omitted). 28 /// 2 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 3 the moving party satisfies the requirements of Rule 56 of the Federal Rules of Civil 4 Procedure, the burden shifts to the party resisting the motion to “set forth specific facts 5 showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving 6 party “may not rely on denials in the pleadings but must produce specific evidence, through 7 affidavits or admissible discovery material, to show that the dispute exists,” Bhan v. NME 8 Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show 9 that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 10 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 11 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in support of the 12 plaintiff’s position will be insufficient[.]” Anderson, 477 U.S. at 252. 13 IV. DISCUSSION 14 Because the Court agrees with Judge Denney that summary judgment should be 15 granted to Defendants, the Court will first address O’Guinn’s objections to the R&R. The 16 Court will then proceed to address O’Guinn’s request for appointment of counsel in the 17 Objection. The Court will conclude by addressing O’Guinn’s “1st dipositive motion.” 18 A. Objection2 19 Following a de novo review of the R&R and other records in this case, the Court 20 finds good cause to accept and adopt Judge Denney’s R&R in full. Judge Denney 21 recommends that Defendants’ motion for summary judgment be granted because O’Guinn 22 has failed to provide evidence that he had advised Defendants that his attacker was being 23 housed again in his unit after the December 2017 attack. (ECF No. 57 at 9.) Additionally, 24 there is no evidence that O’Guinn advised Defendants of any risk of harm regarding his 25 attacker after it was confirmed that the attacker was no longer living in O’Guinn’s unit. (Id.) 26 In his Objection, O’Guinn makes the following arguments: (1) Judge Denney failed 27 2The Court notes that in the manner that O’Guinn’s 32- page Objection is written, 28 the structure of his arguments is at times difficult to follow. As such, the Court construes O’Guinn’s arguments as stated in this order. 2 filed kites to both Defendants Baca and Buchanan; (3) and O’Guinn’s informal grievance 3 was not resolved because the attacker was no longer in Unit 2 but was rather in the 4 hospital. (ECF No. 58 at 16-32.) Because the Court disagrees, it will set forth the legal 5 standard for an Eighth Amendment deliberate indifference claim and then will summarily 6 address O’Guinn’s three arguments. 7 1. Eighth Amendment—Deliberate Indifference 8 The Constitution does not mandate comfortable prisons, but neither does it permit 9 inhumane ones. See Rhodes v. Chapman, 452 U.S. 337, 349 (1981); Farmer v. Brennan, 10 511 U.S. 825, 832 (1994). The “treatment a prisoner receives in prison and the conditions 11 under which he [or she] is confined are subject to scrutiny under the Eighth Amendment.” 12 Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment imposes duties on 13 prison officials to take reasonable measures to guarantee the safety of inmates and to 14 ensure that inmates receive adequate food, clothing, shelter, and medical care. See 15 Farmer, 511 U.S. at 832. 16 To establish violations of these duties, the inmate must show that prison officials 17 were deliberately indifferent to serious threats to his or her safety. See id. at 834. To 18 demonstrate that prison officials were deliberately indifferent to a serious threat to his or 19 her safety, the inmate must show that “the official[s] [knew] of and disregard[ed] an 20 excessive risk to inmate . . . safety; the official[s] must both be aware of facts from which 21 the inference could be drawn that a substantial risk of serious harm exists, and [the 22 officials] must also draw the inference.” Id. at 837. Prison officials may not escape liability 23 because they cannot, or did not, identify the specific source of the risk; the serious threat 24 can be one to which all inmates are exposed. Id. at 843. Although the risk of harm must 25 be “substantial,” it is well settled “a prisoner need not wait until he [or she] is actually 26 assaulted before obtaining relief.” Helling, 509 U.S. at 33; see also, e.g., Munoz v. Cal. 27 Dep’t of Corr., Case No. 18-cv-10264, 2020 WL 5163589, at *4 (C.D. Cal. July 24, 2020) 28 /// 2 relief for deliberate indifference to a serious risk of harm.”). 3 2. Baca’s Memorandum 4 O’Guinn argues that Judge Denney failed to consider the fact that Defendant Baca 5 had signed a memorandum on January 10, 2018. (ECF No. 58 at 17.) O’Guinn appears 6 to argue this to show that Baca was “aware of the condition.” (Id.) However, it is unclear 7 to the Court if “condition” refers to O’Guinn’s medical condition or the alleged failure-to- 8 protect conditions following the attack that occurred on December 16, 2017. Regardless, 9 the Court disagrees with O’Guinn. 10 Judge Denney unequivocally did not exclude the fact that Baca signed the 11 memorandum. He expressly stated in the R&R that “Baca signed the memorandum on 12 January 10, 2018.” (ECF No. 57 at 7 (citing ECF No. 46-3 at 24 (sealed)).) He further 13 stated that “Baca signed a memorandum that [O’Guinn’s] grievance was not a supervisor 14 issue” and that O’Guinn sent a kite telling Baca that he did not want the attacker housed 15 in his unit. (Id. at 8.) After the kite was sent, it was later confirmed that the attacker was 16 no longer in O’Guinn’s unit. (Id.) Because O’Guinn has failed to provide evidence that 17 Baca placed the attacker back in his unit following the attack, no substantial risk of harm 18 existed. (Id. at 9.) Therefore, and contrary to O’Guinn’s argument, Judge Denney did not 19 fail to consider that Baca signed the memorandum when recommending that summary 20 judgment should be granted to Defendants. Accordingly, O’Guinn’s objection is overruled. 21 3. Kites to Defendants 22 O’Guinn appears to argue that he cooperated with the instructions provided to him 23 that he should file kites “to medical, to Baca, to Buchanan.” (ECF No. 58 at 18.) According 24 to O’Guinn, his kites prove that Defendants failed to “properly aid [O’Guinn].” (Id.) The 25 Court disagrees. 26 O’Guinn sent a medical kite on December 18, 2017, requesting a refill of his 27 medication after his attack. (ECF No. 46-1 at 3.) On the same day, he sent another kite 28 detailing his attack and requesting to be seen by Medical. (Id. at 3-4.) On December 31, 2 dying because the attacker bashed his head and requested that his attacker not be placed 3 back in his cell. (ECF No. 44-2 at 2.) O’Guinn also sent a medical kite that day stating that 4 he was in constant pain from the attack and did not want his attacker moved back to his 5 cell. (ECF No. 46-1 at 2 (sealed).) Additionally, O’Guinn sent an inmate request form to 6 Baca stating again that his attacker had bashed his head, and again requested that the 7 attacker not be moved back into his cell. (ECF No. 10 at 66.) Notably, O’Guinn mentioned 8 his attacker was in the hospital. (Id.) 9 The Court, having reviewed the record, does not find that O’Guinn sent a kite to 10 Buchanan. However, an inmate request form was sent to Baca. (ECF No. 10 at 66.) But 11 that form also disclosed that the attacker was in the hospital, therefore, a “substantial risk 12 of serious harm” did not exist as there is no evidence the attacker was placed back in 13 O’Guinn’s unit following the attack. See Farmer, 511 U.S. at 837. This is further supported 14 by evidence that a caseworker responded to O’Guinn’s grievance that his attacker was 15 “removed from the unit.” (ECF No. 44-4 at 2.) Moreover, in his response, O’Guinn admits 16 that his attacker was no longer in Unit 2 and was in fact in the hospital. (ECF No. 58 at 17 19.) Because there is no evidence that O’Guinn’s attacker was placed in the same unit 18 with O’Guinn following the attack, the Court does not find that Baca failed to properly aid 19 O’Guinn. Merely because O’Guinn followed instructions and filed kites does not mean 20 Defendants were deliberately indifferent. The Court thus overrules this objection. 21 4. Grievance Resolution 22 O’Guinn appears to argue that his informal grievance, which requested his attacker 23 be moved to another unit, was not resolved because his attacker was in the hospital and 24 therefore not actually removed from Unit 2. (ECF No. 58 at 19.) Regardless of whether the 25 attacker was removed, and as discussed above, O’Guinn does not offer evidence that 26 Defendants place the attacker back with O’Guinn. Rather, O’Guinn’s argument supports 27 the finding that Defendants were not deliberately indifferent to any substantial risk to 28 serious harm because the attacker was in the hospital and not in O’Guinn’s unit. As 2 O’Guinn following the attack. Accordingly, the Court overrules this objection. 3 In sum, O’Guinn’s three arguments do not “set forth specific facts showing that 4 there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The Court therefore overrules 5 his Objection, adopts the R&R in full, and grants summary judgment to Defendants. 6 B. Appointment of Counsel 7 In the response, O’Guinn describes an incident that occurred on March 18, 2022, 8 where he lost his balance and his head hit the concrete floor. (ECF No. 58 at 1-3.) O’Guinn 9 was rushed to the hospital and currently has pain in his head. (Id. at 3.) He states that he 10 is unable to “do any legal filing to oppose [D]efendants[’] motion for summary judgment 11 [be]cause of extreme pain inside [his] head.” (Id.) Out of an abundance of caution, the 12 Court construes O’Guinn’s statements as a request for the appointment of counsel. 13 A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 14 1983 civil rights claims. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). 15 Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any 16 person unable to afford counsel.” However, the Court will appoint counsel for indigent civil 17 litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 18 2009) (§ 1983 action). “When determining whether ‘exceptional circumstances’ exist, a 19 court must consider ‘the likelihood of success on the merits as well as the ability of the 20 petitioner to articulate his [or her] claims pro se in light of the complexity of the legal issues 21 involved.” Id. “Neither of these considerations is dispositive and instead must be viewed 22 together.” Id. In the instant case, the Court does not find exceptional circumstances 23 warrant the appointment of counsel. O’Guinn has not shown a likelihood of success on 24 the merits. While the Court is sympathetic to O’Guinn situation, a close review of his 25 Objection shows he is able to articulate ideas and form sentences to argue his points. 26 Nothing in his Objection suggests cognitive deficiencies that would lead the Court to have 27 cause for concern. As such, O’Guinn’s request for appointment of counsel is denied. 28 /// 1 C. “1st Dispositive Motion” 2 O’Guinn filed a motion titled “Plaintiffs 1st dispositive motion.” (ECF No. 60.) He 3 || begins the motion by describing the pain he is experiencing because of a car accident he 4 || was in dating back to 1981. (/d. at 3.) He proceeds to recount the various incidences in 5 || which the NDOC has not provided him with medical treatment. (/d. at 4-31.) It is not clear 6 || to the Court the relevance of the 1981 car accident, the pain from that accident, or the 7 || various denials of medical treatment described in the motion to the present action. While 8 || O’Guinn briefly realleges his claim against Defendants in various parts of the motion (see 9 || id. at 21-22, 27-28), it remains unclear to the Court the purpose of this motion and its 10 || relevance. Accordingly, O’Guinn’s “1st dispositive motion” is denied without prejudice. 11 || V. CONCLUSION 12 It is therefore ordered that Plaintiff Roy O’Guinn’s Objection (ECF No. 58) is 13 || overruled. 14 It is further ordered that O’Guinn’s requests for appointment of counsel in his 15 || Objection (ECF No. 58 at 1-30) is denied. 16 ltis further ordered that the Report and Recommendation of Magistrate Judge Craig 17 || S. Denney (ECF No. 57) is accepted and adopted in full. 18 It is further ordered that Defendants’ motion for summary judgment (ECF No. 44) 19 || is granted. 20 It is further ordered that O’Guinn’s motion to add two exhibits (ECF No. 59) is 21 || granted. 22 It is further ordered that O’Guinn’s “Plaintiff's 1st Dispositive Motion” (ECF No. 60) 23 || is denied without prejudice. 24 The Clerk of Court is directed to enter judgment accordingly and to close this case. 25 DATED THIS 20" Day of May 2022. 26 -——~ A Afr 28 MIRANGECIT. DU □□□□□□□□□□□□□□□□□□□□□□ CHIEF UNITED STATES DISTRICT JUDGE