(PC) Melendez v. Diaz

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 FREDDY ANTHONY MENDOZA, et Case No. 1:20-cv-01393-KES-CDB al., 9 FINDINGS AND RECOMMENDATIONS TO Plaintiffs, GRANT DEFENDANTS’ MOTION FOR 10 SUMMARY JUDGMENT v. 11 (Doc. 89) RALPH DIAZ, et al., 12 14-DAY DEADLINE TO FILE Defendants. OBJECTIONS 13 14 15 Pending before the Court is the motion for summary judgement by Defendants Rosemary 16 Ndoh (“Ndoh” or “Warden Ndoh”) and Ralph Diaz (“Diaz” or “Secretary Diaz”). (Doc. 89). 17 Defendants contend the undisputed facts demonstrate that they are not liable for deliberate 18 indifference under the Eighth Amendment and are also immune from liability under the doctrine 19 of qualified immunity. Plaintiffs Freddy Anthony Mendoza (“Mendoza”) and Salvador Salazar 20 (“Salazar”) filed an opposition to Defendants’ motion on March 29, 2024 (Doc. 95). Defendants 21 filed a reply on April 9, 2024. (Doc. 96). For the reasons set forth below, the undersigned 22 recommends that Defendants motion for summary judgment be granted. 23 I. Background 24 1. The Inmate Attack at Avenal State Prison on September 29, 2018 25 Plaintiff Mendoza was committed to the California Department of Corrections and 26 Rehabilitation (“CDCR”) from January 14, 2016, to October 25, 2018, and was incarcerated at 27 Avenal State Prison (“ASP”) from August 3, 2016, to November 17, 2018, when he was released on parole. (Doc. 96-2 Reply to Plaintiffs’ Opposition to Defendants’ Statement of Undisputed 1 Facts in Support of Defendants’ Motion for Summary Judgment; “CSUF” No. 1); (Doc. 89-7 2 “Torres Decl.” ⁋4).1 Plaintiff Salazar was incarcerated at ASP from February 27, 2017, to 3 November 17, 2018, when he was released on parole. (CSUF No. 2; Torres Decl. ⁋5). Plaintiffs 4 are associated with the Fresno Bulldogs (“Bulldogs”), a gang recognized by CDCR as a Security 5 Threat Group (“STG”). (Doc. 15 “First Amended Complaint” or “FAC” ⁋7; CSUF Nos. 8-9). 6 On September 28, 2018, at around 10:30 a.m., ASP officials were informed that an 7 incident occurred at California State Prison, Corcoran (“Corcoran”) where members of the 8 Bulldogs stabbed a high-ranking gang member (“shot caller”) of the Sureños, a rival gang. CSUF 9 No. 11 (citing Doc. 89-4 “Gutierrez Decl.” ⁋7). On that same day, at approximately 6:00 p.m., 10 the ASP Investigative Services Unit (“ISU”) received credible information regarding a possible 11 threat on all Bulldog inmates in retaliation for the attack on the Sureños at Corcoran. CSUF No. 12 12 (citing Gutierrez Decl. ⁋8). At approximately 9:15 p.m., the ASP ISU received information 13 from a Confidential Reliable Informant (“CRI”) that the Sureños in housing units 510 and 550 at 14 ASP were planning to attack all Bulldogs on the prison yard on September 29, 2018, at around 15 9:00 to 9:15 a.m. CSUF No. 13 (citing Gutierrez Decl. ⁋9). The CRI further stated that the 16 Sureños were obligated to use weapons in their attack. Id. Based on the information received 17 from the CRI, the ASP ISU also suspected that violence would erupt in Facilities E and F, since 18 they housed both Sureños and Bulldogs. CSUF No. 14 (citing Gutierrez Decl. ⁋10). 19 On September 28, 2018, J. Gutierrez, who was then employed as an institutional gang 20 investigator at ASP’s ISU, contacted Paul Vera (“Vera”), ASP’s chief deputy warden, regarding 21 the information ISU had received about the threat to the Bulldogs and whether this threat would 22 affect ASP. Id. ⁋1, 12. Thereafter, Vera placed Facilities E and F in a “modified program” in 23 response to the reported threat. Id. ⁋12.2 Vera contacted Warden Ndoh by phone and informed 24 1 The CSUF is comprised of Defendants’ Statement of Undisputed Facts (Doc. 89-2); 25 Plaintiffs’ objections (Doc. 95-1); and Defendants’ reply to Plaintiffs’ objections. Unless otherwise noted, the Court cites the CSUF herein where the parties do not dispute the referenced 26 fact. 27 2 While Plaintiffs do not dispute that ASP staff took “some measures” in response to the information, they dispute Defendants’ characterization of and terminology used in describing 1 her of the threat against the Bulldogs as well as his plan to place Facilities E and F on a modified 2 program. (Doc. 89-5 “Vera Decl.” ⁋8). Modified programs are enacted when correctional 3 officers discover evidence or receive information that violence is being planned by some inmates 4 against other inmates or correctional staff. CSUF No. 22 (citing Vera Decl. ⁋7). Modified 5 programs may suspend certain prison functions like work and education programs, visits, 6 dayroom privileges, and outdoor yard time. Id. 7 According to Vera, Warden Ndoh was away from ASP on September 28 and 29, 2018, 8 and he was the acting warden during this timeframe. Vera Decl. ⁋3. As a general matter, Vera 9 sought out Ndoh’s approval before implementing decisions and all decisions made by Vera were 10 subject to the Ndoh’s approval. (Doc. 78-1, Exhibit C “Ndoh Depo.” pp. 19-20; 21-22). 11 On September 29, 2018, at around 9:12 a.m., the Sureños commenced a coordinated 12 attack on the Bulldogs at ASP housing units 630, 610, 510, and 530. (Doc. 89-6 “Diaz Decl.” 13 ⁋3). The Sureños attacked the Bulldogs with various makeshift weapons, including shivs and 14 padlocks-in-socks (“saps”). (FAC ⁋⁋ 1,7, 27-28, 49). Plaintiffs Mendoza and Salazar were 15 incarcerated in Facility F, Housing Unit 610, Dorm 20 at the time of the attack. (CSUF Nos. 1-2). 16 During the attack, Plaintiff Salazar received multiple stab wounds on his head. (Doc. 95- 17 2, Exhibit J p. 70). Plaintiff Salazar needed to be put in a stretcher and flown to a hospital via 18 helicopter. Id. Plaintiff Mendoza recalls getting kicked, punched, and stabbed. (Doc. 95-2, 19 Exhibit M p. 59). Plaintiff Mendoza recalls being covered in blood from head to toe and being 20 taken in an ambulance. Id. According to the FAC, the attack continued for approximately 20-30 21 minutes. FAC ⁋8. The FAC alleges that 180 inmates affiliated with the Sureños and another 22 STG known as the Mexican Mafia (“EME”) attacked Plaintiffs’ group, which is estimated to be 23 comprised of 18 Bulldogs. Id. ⁋49. 24 Plaintiffs allege Defendants disregarded the substantial risk of harm facing them when 25 Defendants failed to take reasonable measures to protect them from the attack. FAC ⁋⁋69-70. 26 Plaintiffs contend that reasonable defensive measures were known and available to Defendants, 27 but they nevertheless did not take those steps without any reasonable justification. Id. For 1 maintained Plaintiffs at the same location of their attackers, failed to allocate sufficient guards at 2 Facilities E and F, and failed to take preventative measures such as putting a gunner in the blocks. 3 Id. ⁋68. Plaintiffs contend that those were common-sense measures that were previously 4 implemented in similar situations. Id. ⁋69. 5 Plaintiffs initiated this action with the filing of their complaint on September 28, 2020. 6 (Doc. 1). Under the operative FAC, Plaintiffs asserted four causes of action: (1) Deliberate 7 Indifference and Failure to Protect under 42 U.S.C. § 1983; (2) Conspiracy to Deprive Plaintiffs 8 the Equal Protection of the Laws under 42 U.S.C 1985(3); (3) Neglect to Prevent Interference 9 with Civil Rights under 42 U.S.C. § 1986; and (4) Negligence. (FAC ⁋⁋ 64-96). On April 8, 10 2022, the Court granted Defendants’ motion to dismiss in part. (Doc. 26). Plaintiffs’ claims 11 against Defendants in their official capacities were dismissed without leave to amend. Id. at 16. 12 Plaintiffs’ state law negligence claim, §1985(3) claim, and §1986 claim against Defendants in 13 their individual capacities were dismissed with leave to file an amended complaint within 21 14 days. Id. at 16-17. Plaintiffs filed no amended complaint, and thus have elected to proceed 15 against Defendants Diaz and Ndoh only on their Section 1983 deliberate indifference – failure to 16 protect claim.3 17 2. The Defendants 18 Defendant Ralph Diaz served as the acting secretary of CDCR from September 1, 2018, to 19 March 27, 2019. (Doc. 89-8 “Diaz Decl.” ⁋1). On March 27, 2019, Defendant Diaz was 20 appointed as the Secretary of CDCR, a position which he held until October 2020, when he 21 retired. Id. As secretary of CDCR, Defendant Diaz was responsible of state statewide operations 22 for CDCR. Id. ⁋2. Defendant Diaz’s duties included holding regular meetings with executive 23 staff and directors to be briefed on major program and organizational issues of CDCR. Defendant 24 Diaz would meet with prison wardens and other staff each month. Id. 25 26 3 On September 5, 2023, the Court dismissed Plaintiffs John Melendez, Justice Dillon Pajarillo, Jose Canales, Jr., Pedro Castro, Emerson Gaitan, Carlos Espinoza, Eric Hernandez, and 27 Daniel Garcia for their failure to exhaust administrative remedies. (Doc. 80). Plaintiffs Alejandrino Manjaraz and Phillip Bernard were dismissed on the parties’ stipulation pursuant to 1 According to Defendant Diaz, his duties and responsibilities as Secretary of CDCR did 2 not include providing oversight of a warden at a particular prison within CDCR, including how to 3 respond to threats posed to inmates by STGs. Instead, the wardens and their managerial staff 4 conducted regular meetings to address day-to-day operations, including how to respond to threats 5 of violence. Id. ⁋3. Likewise, Defendant Diaz’s responsibilities did not involve monitoring gang 6 activity or rival gang friction within CDCR’s prisons, as these activities are handled by each 7 institutions’ ISU, the Office of Correctional Safety, the Director of the Division of Adult 8 Institutions, and the associate director. Id. Nevertheless, Diaz did receive investigative reports 9 from investigative units about high-level gang members when sufficiently serious threats were 10 discovered. (CSUF No. 4). 11 CDCR facilities in 2018 produced daily activity reports that are forwarded the 12 “headquarters mission” and which are “rolled up into a departmental activity report [“DAR”], 13 which is sent out via email to institutions to give them . . . a snapshot of what’s going on” 14 between prisons. CSUF Nos. 4, 5. Those DARs were circulated every day around 5:00 p.m. Id. 15 Defendant Rosemary Ndoh worked for CDCR for over 25 years and was the warden of 16 ASP at the time of the attack against Plaintiffs. CSUF No. 7. Ndoh was not present at ASP at the 17 time of the incident or the day prior. CSUF No. 18.4 Instead, Chief Deputy Warden Vera was 18 managing ASP on her behalf. CSUF No. 19. Defendant Ndoh formerly served as a chief deputy 19 warden and is familiar with that position. Ndoh Depo. p. 18. The chief deputy warden has 20 significant authority over a prison, including oversight of appeals, grievances and prisoner 21 classifications, management of prison programs, conduct of meetings, and control over prison 22 incidents. Id. 23 The prison warden ultimately makes all the decisions in a prison. Id. p. 19. The chief 24 deputy warden would consistently look to the warden for input and ratification of his decisions. 25 Id. If a chief deputy warden wanted to implement his decisions, the warden would either ratify 26 those decisions or correct them if she thought they were wrong. Id. The chief deputy warden’s 27 4 While Plaintiffs dispute the reason for Ndoh’s absence, they do not dispute she was, in 1 decisions are subject to final approval by the warden. Id. p. 22. 2 II. Standard of Law 3 Summary judgment is appropriate where there is “no genuine dispute as to any material 4 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 5 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 6 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 7 while a fact is material if it “might affect the outcome of the suit under the governing law.” 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 9 F.2d 1422, 1436 (9th Cir. 1987). 10 Each party’s position must be supported by: (1) citing to particular portions of materials in 11 the record, including but not limited to depositions, documents, declarations, or discovery; or 12 (2) showing that the materials cited do not establish the presence or absence of a genuine dispute 13 or that the opposing party cannot produce admissible evidence to support the fact. See Fed. R. 14 Civ. P. 56(c)(1). The court may consider other materials in the record not cited to by the parties, 15 but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified 16 School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (on summary judgment, “the court has 17 discretion in appropriate circumstances to consider other materials, [but] it need not do so”). 18 Furthermore, “[a]t summary judgment, a party does not necessarily have to produce evidence in a 19 form that would be admissible at trial.” Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 20 (9th Cir. 2011) (citations and internal quotations omitted). The focus is on the admissibility of 21 the evidence’s contents rather than its form. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 22 F.3d 840, 846 (9th Cir. 2004). 23 “The moving party initially bears the burden of proving the absence of a genuine issue of 24 material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 25 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet its burden, “the moving party must either 26 produce evidence negating an essential element of the nonmoving party’s claim or defense or 27 show that the nonmoving party does not have enough evidence of an essential element to carry its 1 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this initial burden, the burden 2 then shifts to the non-moving party “to designate specific facts demonstrating the existence of 3 genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 4 477 U.S. at 323). The non-moving party must “show more than the mere existence of a scintilla 5 of evidence.” Id. (citing Anderson, 477 U.S. at 252). However, the non-moving party is not 6 required to establish a material issue of fact conclusively in its favor; it is sufficient that “the 7 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 8 versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 9 F.2d 626, 630 (9th Cir. 1987). 10 The court must apply standards consistent with Rule 56 to determine whether the moving 11 party has demonstrated the absence of any genuine issue of material fact and that judgment is 12 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 13 “[A] court ruling on a motion for summary judgment may not engage in credibility 14 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 15 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 16 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 17 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 18 198 F.3d 1130, 1134 (9th Cir. 2000). 19 II. Discussion 20 1. Evidentiary Objections 21 Plaintiffs filed a statement in opposition to Defendants’ Statement of Undisputed Facts in 22 support of their motion for summary judgment. (Doc. 95-1). Plaintiffs’ opposition is comprised 23 of various points of disputed facts with relevant citations. The undersigned will address the 24 parties’ disputed issues of fact as necessary in tandem with discussion of the relevant points of 25 argument below. 26 Plaintiffs’ opposition also presents evidentiary objections to many of Defendants’ 27 proffered undisputed facts as vague, misleading, or irrelevant. See id. A party may “object that 1 admissible in evidence.” Fed. R. Civ. P. 56(c)(2) (emphasis added). “At the summary judgment 2 stage, we do not focus on the admissibility of the evidence’s form. We instead focus on the 3 admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Accord, 4 Nevada Dep’t of Corr., 648 F.3d at 1019; Carmen, 237 F.3d at 1031. Thus, “when evidence is 5 not presented in an admissible form in the context of a motion for summary judgment, but it may 6 be presented in an admissible form at trial, a court may still consider that evidence.” Burch v. 7 Regents of Univ. of Cal., 433 F. Supp.2d 1110, 1120 (E.D. Cal. 2006) (emphasis in original) 8 (citing Fraser, 342 F.3d at 1037). 9 Plaintiffs specifically object to approximately 18 of Defendants’ proffered statements of 10 undisputed fact, largely on vagueness and relevance grounds. See CSFU Nos. 4, 5, 6, 16, 20, 21, 11 22, 25, 26, 37-45. These types of objections are the quintessential type for which, “[i]nstead 12 of objecting, parties should simply argue that the facts are not material.” Burch, 433 F. Supp.2d 13 at 1119-20. As an example, Plaintiffs object on relevance grounds to Defendants’ proffer as an 14 undisputed fact that CDCR and its individual prisons have preexisting response plans to facilitate 15 quelling large-scale incidents while minimizing injuries to suspected participants. CSUF No. 37. 16 The existence of response plans plainly is relevant to allegations that prison officials were 17 deliberately indifferent in the face of an inmate uprising like that at issue in this case. Indeed, as 18 they do with virtually all of the undisputed facts for which they assert relevance objections, 19 Plaintiffs undermine the basis of their objection by coupling it with an argumentative statement of 20 dispute and citations to record evidence for arguably inconsistent facts. See Sandoval v. Cnty. of 21 San Diego, 985 F.3d 657, 665 (9th Cir. 2021) (“if evidence submitted on summary judgment 22 could create a genuine dispute of material fact, it is, by definition, ‘of consequence in determining 23 the action,’ and therefore relevant .... Conversely, if the submitted evidence does not create a 24 genuine dispute of material fact, there is no need for the court to separately determine whether it 25 is relevant because, even assuming it is not, it will not affect the ultimate summary judgment 26 ruling.”). Given that relevance is broadly defined and generally presents a low threshold for 27 admissibility and given that Plaintiffs’ relevance objections are more akin to arguments attacking 1 objections. The objections are pertinent, if at all, to the weight of the fact asserted. 2 To take one example of Plaintiffs’ vagueness objections, Defendants proffer as an 3 undisputed fact that Defendant Diaz “did not have any knowledge” of the attack at ASP until after 4 it was quelled. CSUF No. 5. Plaintiffs argue the assertion is vague because it is unclear whether 5 Defendant Diaz denies knowing about the ASP attack, or about a prior threat of a riot, or of 6 possible violence in general. Id. First, the undersigned disagrees the proffered fact is vague – the 7 assertion about Defendant Diaz’s knowledge of the ASP attack plainly is limited to the actual 8 attack, not circumstances leading up to the attack or violence in general. Second, whatever 9 vagueness is presented in the statement as written, the undersigned is sufficiently confident that 10 Defendants could present at trial an admissible form of the fact to conclude for the purposes of 11 Defendants’ summary judgment motion that Defendants’ vagueness objection is without merit. 12 See Fed. R. Civ. P. 56(c)(2) (party may “object that the material cited to support or dispute a 13 fact cannot be presented in a form that would be admissible in evidence”) (emphasis added); 14 Burch, 433 F. Supp.2d at 1120. The undersigned likewise overrules Plaintiffs’ other vagueness 15 objections on the same grounds. 16 2. Deliberate Indifference 17 A. Standard of Law 18 “The Eighth Amendment imposes a duty on prison officials to protect inmates from 19 violence at the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). In 20 order to prevail on an Eighth Amendment claim, a prisoner must show that prison officials were 21 deliberately indifferent to a substantial risk of harm to his health or safety. Farmer v. Brennan, 22 511 U.S. 825, 847 (1994). “Deliberate indifference” has both subjective and objective 23 components, meaning that objectively, the prison conditions posed a risk of serious harm, and 24 subjectively, a prison official must “be aware of facts from which the inference could be drawn 25 that a substantial risk of serious harm exists, and . . . must also draw the inference.” Id. at 837; 26 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013). “Deliberate 27 indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). A 1 serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 2 511 U.S. at 847. 3 A jury may “conclude that a prison official knew of a substantial risk from the very fact 4 that the risk was obvious.” Id. at 842. For instance, if the “plaintiff presents evidence showing 5 that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or 6 expressly noted by prison officials in the past, and the circumstances suggest that the defendant- 7 official being sued had been exposed to information concerning the risk and thus must have 8 known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the 9 defendant-official had actual knowledge of the risk.” Id. at 842-43 (internal quotations omitted). 10 Liability for deliberate indifference may not be premised on constructive notice, but prison 11 officials cannot ignore obvious dangers to inmates. Id. at 842. 12 A defendant may only be held liable as a supervisor under Section 1983 “if there exists 13 either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient 14 causal connection between the supervisor’s wrongful conduct and the constitutional violation.” 15 Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (internal quotation marks and citation 16 omitted); Lolli v. Cnty. of Orange, 351 F.3d 410, 418 (9th Cir. 2003). A supervisor may be liable 17 for her “own culpable action or inaction in the training, supervision, or control of his 18 subordinates”; for her “acquiescence in the constitutional deprivations”; or for “conduct that 19 showed a reckless or callous indifference to the rights of others.” Id. at 1205-05; Lemire v. Cal. 20 Dept’ of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013). 21 B. Discussion 22 Defendant Diaz argues that he was not deliberately indifferent because he received no 23 notice of the attack or otherwise was involved in the incident in any way. (Doc. 89 p. 12). 24 Plaintiffs argue that Defendant Diaz monitored, or at least, received information about high-level 25 gang members from the office of correctional safety while he was Secretary. (Doc. 95 p. 7). 26 Plaintiffs further argue that since part of Diaz’s responsibilities included monitoring gang activity, 27 receiving reports about high-ranking gang members, and receiving daily snapshots of activity in 1 5:00 p.m., he must have known in advance about the imminent danger from the Sureño attack at 2 ASP. Id. pp. 7-8. 3 A prison official’s knowledge of a substantial risk of harm may be demonstrated by 4 inferences drawn from circumstantial evidence. Farmer, 511 U.S. at 842. Thus, for instance, 5 were a plaintiff to present evidence showing that the substantial risk of an attack was 6 “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past” and 7 the defendant official “must have known” about it, this evidence may be sufficient to defeat 8 summary judgment. Id. at 842-43. 9 Here, although Plaintiffs point to Defendant Diaz’s general responsibilities as Secretary to 10 monitor the affairs of high-ranking gang members and that under certain circumstances, the 11 severity of gang-related issues might be elevated to him (Doc. 95 p. 7), there is no record 12 evidence that Defendant Diaz did, in fact, monitor the developments related to the antecedent 13 stabbing of the Sureño shot caller by the Bulldogs at a close-by CDCR facility. Likewise, there is 14 no evidence that Defendant Diaz was aware of impending retaliation against the Bulldogs at ASP, 15 particularly given his undisputed deposition testimony that this type of information pertaining to 16 the safety of an individual prison typically would be addressed by the warden or escalated to that 17 prison’s respective mission. Because Plaintiffs have not identified “specific facts demonstrating 18 the existence of genuine issues for trial” concerning Defendant Diaz’s awareness of 19 circumstances posing a risk of serious harm to Plaintiffs, or that Defendant Diaz otherwise “must 20 have known” about this risk, summary judgment is warranted. In re Oracle Corp. Sec. Litig., 627 21 F.3d at 387. 22 As for Defendant Ndoh, Defendants argue she was not deliberately indifferent because, on 23 the day of the ASP attack, “she was on leave and ASP’s Chief Deputy Warden P. Vera was the 24 acting warden during the relevant time period.” (Doc. 89 p. 12). However, Ndoh’s physical 25 location is not determinative of whether, for purposes of the deliberate indifference analysis, she 26 could be aware of facts from which she could infer that an impending attack at ASP presented a 27 substantial risk of serious harm to Plaintiffs. Farmer, 511 U.S. at 837. Indeed, Defendants 1 preceding the attack, informed her of the reported threat against the Fresno Bulldogs, and 2 reported implementation of a modified program at Facilities E and F. Ndoh Decl. ⁋5; Vera Decl. 3 ⁋6. In addition, Ndoh testified that, as a general matter, Vera sought her approval before 4 implementing decisions and that all decisions made by Vera were subject to her approval. Ndoh 5 Depo. p. 19-20; 21-22. Accordingly, given Vera’s report to Ndoh about the impending attack the 6 evening prior and Ndoh’s assertion that, in general, Vera required her approval prior to 7 implementing action, the undersigned finds there are disputed issues of material fact concerning 8 Defendant Ndoh’s awareness of circumstances posing a risk of serious harm to Plaintiffs. 9 But that is not enough for Plaintiffs to defeat Defendants’ motion for summary judgment. 10 In addition to demonstrating a prison official knows that inmates face a substantial risk of serious 11 harm, a plaintiff alleging deliberate indifference must also establish that the official 12 “disregard[ed] that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 13 847. Here, while there is no dispute that prison staff responded to threat information received in 14 advance of and predicting the ASP attack by taking some prophylactic measures – such as placing 15 the targeted housing units in modified programing – the parties disagree about the sufficiency of 16 ASP officials’ protective measures, relying in part on their respective expert witnesses who come 17 to different conclusions. Cf. (Doc. 89 p. 12 and Doc. 96 pp. 8-9 with Doc. 95 pp. 10, 16). 18 However, as explained below, even if Warden Ndoh knew about and acted unreasonably in the 19 face of the risk of serious harm posed by the impending attack, she nevertheless would be entitled 20 to qualified immunity. See Hines v. Youseff, 914 F.3d 1218, 1239 (9th. Cir. 2019) (“The courts 21 below did not decide whether exposing inmates to a heightened risk of Valley Fever violates the 22 Eighth Amendment. Neither do we. Instead, we go straight to the second prong of the qualified 23 immunity analysis”). 24 3. Qualified Immunity 25 A. Standard of Law 26 “The doctrine of qualified immunity protects government officials ‘from liability for civil 27 damages insofar as their conduct does not violate clearly established or constitutional rights of 1 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two 2 important interests — the need to hold public official accountable when they exercise power 3 irresponsibly and the need to shield officials from harassment, distraction, and liability when they 4 perform their duties reasonably.” Id. The doctrine is intended to “give[] government officials 5 breathing room to make reasonable but mistaken judgments about open legal questions.” 6 Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). 7 “The protection of qualified immunity applies regardless of whether the government 8 official’s error is ‘a mistake a law, a mistake of fact, or a mistake based on mixed questions of 9 law and fact.’” Pearson, 555 U.S. at 231 (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) 10 (Kennedy, J., dissenting)). “[T]he ‘clearly established’ inquiry is a question of law that only a 11 judge can decide.” Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017). 12 In determining whether a prison official is entitled to qualified immunity, the Court 13 decides (1) whether facts alleged or shown by plaintiff make out a violation of constitutional 14 right; and (2) whether that right was clearly established at the time of the officer’s alleged 15 misconduct. Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 553 U.S. 194, 201 (2001)). A 16 plaintiff must prove both steps of the inquiry to establish the official is not entitled to qualified 17 immunity. Felarca v. Birgeneau, 891 F.3d 809, 815 (9th Cir. 2018) (citation omitted).5 The 18 Court has discretion to decide which prong of qualified immunity to address first given the 19 circumstances of the case and, if one prong is dispositive, the Court need not examine the other 20 prong. Pearson, 555 U.S. at 236. 21 B. Discussion – “Clearly Established” 22 “To be clearly established, a legal principle must have a sufficiently clear foundation in 23 then-existing precedent,” as shown in “controlling authority or a robust consensus of cases of 24 persuasive authority.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (citations omitted); 25 see Sharp v. Cnty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (“Plaintiffs must point to prior 26 case law that articulates a constitutional rule specific enough to alert these deputies in this case 27 5 Thus, Plaintiffs are mistaken in arguing that “defendants’ [sic] have failed to meet their 1 that their particular conduct was unlawful”) (emphasis removed). The Supreme Court has held 2 that the law “does not require a case directly on point for a right to be clearly established, [but] 3 existing precedent must have placed the statutory or constitutional question beyond debate.” 4 White v. Pauly, 580 U.S. 73, 79 (2017) (quotations and citations omitted); accord Rico v. Ducart, 5 980 F.3d 1292, 1298 (9th Cir. 2020) (citing Ashcroft, 563 U.S. at 741). 6 When examining whether the right at issue has been clearly established, the court may not 7 “define clearly established law at a high level of generality.” Kisela v. Hughes, 584 U.S. 100, 104 8 (2018) (quoting Ashcroft, 563 U.S. at 742). Instead, “the clearly established law at issue must be 9 particularized to the facts of the case.” White, 580 U.S. at 79 (quotations and citations omitted). 10 The plaintiff bears the burden of “proving that the right allegedly violated was clearly established 11 at the time of the official’s allegedly impermissible conduct.” Camarillo v. McCarthy, 998 F.2d 12 638, 639 (9th Cir. 1993); see p. 13 & n.5, supra. Officials are subject to suit only for actions that 13 they knew or should have known violated the law. Hope v. Pelzer, 536 U.S. 730, 741 (2002); 14 accord Hines, 914 F.3d at 1230-21 (to defeat qualified immunity, inmate-plaintiffs “must show 15 that no reasonable officer could have thought that free society tolerated that risk” resulting in the 16 plaintiffs’ injuries). The law is also “clearly established” for the purposes of qualified immunity 17 if “every reasonable official would have understood that what he is doing violates th[e] right” at 18 issue. Taylor v. Barkes, 575 U.S. 822, 825 (2015) (per curiam) (quotation marks omitted). Cf. 19 Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017) (right is clearly established 20 when case law has been “earlier developed in such a concrete and factually defined context to 21 make it obvious to all reasonable government actors, in the defendant’s place, that what he is 22 doing violates federal law”) (citing White, 580 U.S. at 79). 23 As applied here, the Court first defines the right(s) at issue. Plaintiffs make little attempt 24 to define for the Court the right relevant to the qualified immunity analysis other than to argue 25 generally that “the contours” of deliberate indifference law “were sufficiently clear that 26 Defendants knew that they had a duty to keep Plaintiffs safe from harm.” (Doc. 95 p. 15). But 27 that impermissibly casts the relevant law at too high a level of generality and without 1 79. Cf. Hamby v. Hammond, 821 F.3d 1085, 1090-91, 1094 (9th Cir. 2016) (clarifying that the 2 right at issue must not be defined “at too high a level of generality,” such as “the right not to be 3 treated with deliberate indifference to a serious medical need ....”). 4 In King v. Riley (76 F.4th 259 (4th Cir. 2023)), the Fourth Circuit addressed qualified 5 immunity in the context of a plaintiff-inmate’s failure to protect claim against a correctional 6 officer. In that case, the estate of a deceased inmate asserted that a correctional officer at the 7 facility housing the decedent and who was aware the decedent faced a risk of serious harm from 8 inmate violence in his cell was deliberately indifferent because, during his periodic security check 9 when the decedent was being attacked, the officer walked past plaintiff’s cell without looking 10 inside. Id. at 264. The Court explained that the inmate’s right at issue was “to have a 11 correctional officer look into the cell window while conducting a security check – given a known 12 and substantial risk of inmate-on-inmate violence in the Unit.” Id. at 266. The Court elaborated 13 that “even if the risk of inmate violence was substantial and [defendant] knew that – [the inmate] 14 needs precedent establishing that [defendant’s] efforts to mitigate that risk (i.e., security checks 15 without looking in cells) were constitutionally deficient.” Id. In other words, the correctional 16 officer was entitled to qualified immunity if there was no clearly established right to properly 17 conducted security checks. Id. at 264. 18 Similar to the plaintiff in King, Plaintiffs assert their failure to protect claims are 19 “grounded” in the “sufficiency of the specific measures taken and not taken [by Defendants] 20 when Plaintiffs suffered life-threatening injuries from a forewarned, identified, and credible 21 threat.” (Doc. 95 p. 11). They specifically challenge ASP prison officials’ failure to search for 22 and confiscate weapons (id. p. 15) and rely on a report of an expert witness challenging the 23 adequacy of protective measures implemented. Id. p. 10. The expert witness opined, among 24 other things, that ASP prison officials could have better protected inmates by restricting them to 25 their bunks and/or handcuffing them (Doc. 95-1 ⁋⁋38, 42, 44) and by manning a gun post (id. 26 ⁋44). 27 Based on Plaintiffs’ characterization of their claims and theory of liability, to defeat 1 established” authority that Defendants’ failure to take actions apart from implementation of a 2 modified program in the affected cell blocks – such as undertaking the protective measures 3 identified above – amounts to a deliberately indifferent failure to protect. E.g., Hamby, 821 F.3d 4 at 1091 (“existing precedent must have placed beyond debate the unconstitutionality of the 5 officials’ actions, as those actions unfolded in the specific context of the case at hand.”). 6 Plaintiffs have not identified any Supreme Court or Ninth Circuit decision holding officers (or a 7 warden) liable for conduct similar to the alleged actions and omissions of the Defendants here. 8 In their opposition brief addressing Defendants’ arguments on qualified immunity, 9 Plaintiffs’ only serious attempt to identify and analogize to binding precedent implicating 10 purportedly “clearly established” authority governing failure-to-protect claims involves a single 11 Ninth Circuit case (Castro v. Cnty. of Los Angeles, discussed infra). See (Doc. 95 pp. 11-16). 12 The undersigned declines to address the lower court or out-of-Circuit authorities cited by 13 Plaintiffs, which in any event are plainly inapplicable to the qualified immunity analysis here. 14 See id. (citing inter alia Castillo v. Solano Cnty. Jail, No. 2:08-cv-3080 GEB KJN P, 2011 WL 15 3584318, at *13 (E.D. Cal. Aug. 12, 2022), report and recommendation adopted, 2011 WL 16 3911043 (E.D. Cal. Sept. 6, 2011) (involving claims of deliberate indifference to plaintiff’s 17 contraction of scabies and staph infection)). 18 In Castro, a pretrial detainee claimed that defendant-correctional officers and others were 19 deliberately indifferent to the substantial risk of harm created by housing plaintiff in the same 20 sobering cell as another arrestee and failing to maintain appropriate supervision of his cell. 797 21 F.3d 654, 664 (9th Cir. 2015), aff’d in rel. part en banc, 833 F.3d 1060 (9th Cir. 2016). Shortly 22 after the arrestee was placed in the sobering cell, the plaintiff pounded on a window for a full 23 minute to get correctional staff’s attention. 20 minutes later, a community volunteer notified the 24 supervising correctional officer that the arrestee was inappropriately touching the plaintiff, but the 25 supervisor did not investigate. Shortly afterwards, the arrestee violently attacked and injured the 26 plaintiff. The district court rejected the officers’ qualified immunity defense, reasoning that 27 “a jury could find that placing an actively belligerent inmate in an unmonitored cell with [the 1 Circuit affirmed, noting that “Farmer sets forth the contours of the right to be free from violence 2 at the hands of other inmates with sufficient clarity to guide a reasonable officer.” Id. at 664. 3 The facts and circumstances of Castro are starkly distinct from the instant case. There, 4 officers created the circumstances leading to the plaintiff’s ultimate injuries and failed to take any 5 action when alerted to the possibility of danger by the plaintiff. Here, after corrections staff 6 learned of a possible threat from rival gang inmates against Bulldog inmates at ASP, they placed 7 the facilities housing Bulldog inmates on a modified program, limiting inmate movement and 8 confining the inmates to their housing units. CSUF Nos. 21, 22. Unlike the plaintiff in Castro 9 who attempted to alert corrections staff to the danger he perceived, neither Plaintiff Mendoza nor 10 Plaintiff Salazar had advanced notice of the impending attack aside from the information shared 11 with them by corrections officers – thus, they did not unsuccessfully solicit assistance from 12 corrections officers like the plaintiff in Castro. (Doc. 95-2 “Mendoza Depo” p. 59; Doc. 89-3 pp. 13 19-20, 67-68).6 14 At bottom, Plaintiffs fail to cite binding authority that the actions taken by ASP’s 15 corrections staff to protect Bulldog inmates in light of the threat information received was 16 unreasonable or amounted to deliberate indifference. Because they have not shown Defendants 17 failed to “take reasonable measures,” Defendants are entitled to qualified immunity. Farmer, 511 18 U.S. at 847. See Leonard v. Peters, No. 21-35471, 2023 WL 387035, at *3 (9th Cir. Jan. 10, 19 2023) (granting summary judgment to correctional officer on plaintiff’s failure-to-protect claim 20 based on qualified immunity grounds) (citing Castro, 833 F.3d at 1067). 21 Finding Defendants entitled to qualified immunity is consistent with the Supreme Court’s 22 general guidance that prison administrators “should be accorded wide-ranging deference in the 23 adoption and execution of policies and practices that in their judgment are needed to preserve 24 internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 25 547 (1979). “That deference extends to a prison security measure taken in response to an actual 26 confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended 27 to reduce the incidence of these or any other breaches of prison discipline.” Whitley v. Albers, 1 | 475 U.S. 312, 322 (1986). As set forth above, while a corrections officer may not be entitled to 2 | qualified immunity for affirmatively placing an inmate at risk of harm and failing to investigate 3 | the inmate’s reporting of danger (see Castro, supra), those are not the circumstances present here. 4 | Because Plaintiffs fail to carry their burden of identifying binding precedent making it “obvious” 5 | to “all reasonable government actors, in the defendant’s place, that what he is doing violates 6 | federal law,” Defendants are entitled to qualified immunity. Shafer, 868 F.3d at 1117. 7 | IV. Conclusion and Recommendations 8 For the foregoing reasons, the undersigned HEREBY RECOMMENDS that Defendants’ 9 | Motion for Summary Judgment (Doc. 89) be granted. 10 These findings and recommendations are submitted to the district judge assigned to this 11 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 12 | (14) days of service of this recommendation, any party may file written objections to these 13 | findings and recommendations with the Court and serve a copy on all parties. Such a document 14 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 15 | district judge will review the magistrate judge’s findings and recommendations pursuant to 28 16 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 17 | time may waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 18 | 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 | IT IS SO ORDERED. Dated: _ July 2, 2024 | Wr Pr 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 18