Stanley V. Wells v. Lima

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STANLEY V. WELLS, Case No. 1:22-cv-00205-KES-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT’S MOTION 13 v. FOR SUMMARY JUDGMENT 14 LIMA, (Doc. 41) 15 Defendant. 14-DAY OBJECTION PERIOD 16 17 Stanley V. Wells is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s Eighth 19 Amendment claim against Defendant Lima. 20 I. INTRODUCTION 21 Defendant Lima filed a merits-based motion for summary judgment on January 23, 2025. 22 (Doc. 41.) Following the Court’s issuance of an Order to Show Cause concerning Plaintiff’s 23 failure to file an opposition or statement of non-opposition to Defendant’s motion (Doc. 44), 24 Plaintiff filed an opposition on March 10, 2024 (Doc. 45). Defendant did not file a reply. 25 II. APPLICABLE LEGAL STANDARDS 26 Motions for Summary Judgment 27 Summary judgment is appropriate when it is demonstrated that there “is no genuine 28 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 1 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 2 “citing to particular parts of materials in the record, including depositions, documents, 3 electronically stored information, affidavits or declarations, stipulations (including those made for 4 purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed. R. 5 Civ. P. 56(c)(1)(A). 6 Summary judgment should be entered, after adequate time for discovery and upon motion, 7 against a party who fails to make a showing sufficient to establish the existence of an element 8 essential to that party's case, and on which that party will bear the burden of proof at trial. See 9 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 10 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 11 Id. If the moving party meets its initial responsibility, the burden then shifts to the opposing party 12 to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. 13 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 14 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 15 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 16 and/or admissible discovery material, in support of its contention that the dispute exists or shows 17 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 18 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. 19 The opposing party must demonstrate that the fact in contention is material, i.e., a fact that 20 might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, 21 Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 22 626, 630 (9th Cir. 1987). Further, the opposing party must also demonstrate that the dispute is 23 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 24 party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). In the endeavor 25 to establish the existence of a factual dispute, the opposing party need not establish a material 26 issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to 27 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. 28 Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to 1 assess the proof in order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 2 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). 3 In resolving the summary judgment motion, the evidence of the opposing party is to be 4 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 5 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 6 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 7 obligation to produce a factual predicate from which the inference may be drawn. See Richards v. 8 Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th 9 Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 10 show that there is some metaphysical doubt as to the material facts.... Where the record taken as a 11 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 12 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 13 Eighth Amendment: Deliberate Indifference - Failure to Protect 14 Prison officials have a duty “to take reasonable measures to guarantee the safety of 15 inmates, which has been interpreted to include a duty to protect prisoners.” Labatad v. 16 Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer v. Brennan, 17 511 U.S. 825, 832-33 (1994) & Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To 18 establish a violation of this duty, a prisoner must “show that the officials acted with deliberate 19 indifference to threat of serious harm or injury to an inmate.” Id. (citing Gibson v. County of 20 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). 21 A failure to protect claim under the Eighth Amendment requires a showing that “the 22 official [knew] of and disregard[ed] an excessive risk to inmate ... safety.” Farmer, 511 U.S. at 23 837. “Whether a prison official had the requisite knowledge of a substantial risk is a question of 24 fact subject to demonstration in the usual ways, including inference from circumstantial 25 evidence, ... and a factfinder may conclude that a prison official knew of a substantial risk from 26 the very fact that the risk was obvious.” Id. at 842 (citations omitted). The duty to protect a 27 prisoner from serious harm requires that prison officials take reasonable measures to guarantee 28 the safety and well-being of the prisoner. Id. at 832-33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th 1 Cir. 1998). As “only the unnecessary and wanton infliction of pain implicates the Eighth 2 Amendment,” plaintiff must allege facts showing the defendant acted with a “sufficiently 3 culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotations marks, 4 emphasis & citations omitted). 5 To state a claim, the Eighth Amendment requires allegations sufficient to plausibly show 6 that prison officials were deliberately indifferent to a substantial risk of harm or safety. Farmer, 7 511 U.S. at 847. The objective component of an Eighth Amendment requires that a prisoner show 8 he was deprived of something “sufficiently serious.” Foster v. Runnels, 554 F.3d 807, 812 (9th 9 Cir. 2009) (quoting Farmer, 511 U.S. at 834. The state of mind requirement under the subjective 10 component of the Eighth Amendment standard has been defined as “deliberate indifference” to an 11 inmate’s health or safety. Farmer, 511 U.S. at 834. Under the “deliberate indifference” standard, 12 a prison official cannot be found liable for denying an inmate humane conditions of confinement 13 unless the official knows of and disregards an excessive risk to inmate health or safety. Id. at 837. 14 III. PLAINTIFF’S ALLEGATIONS 15 Plaintiff contends that on the evening of September 15, 2021, he was working as a porter on third watch, distributing the evening meal. 16 Defendant Lima was working as the “tower Booth” officer, opening and closing cell doors “by remote Button.” Plaintiff was 17 accompanied by Correctional Officer Ortiz (not a named defendant). Ortiz began unlocking the cell door tray slots so that inmates could 18 receive their evening meal from the porters. Inmates were to return their trays and the porters would collect or remove them. Plaintiff 19 asserts that while Ortiz was collecting trays in “section-A,” Plaintiff was working in “C” section. Plaintiff contends Defendant Lima was 20 aware that the inmates in C section are to remain in their cells because they had not been “cleared to exit … without escort for 21 [their] safety and those of whom was not on orientation safety.” Plaintiff states that “[f]or some unknown reason,” Lima “abandoned 22 procedures in allowing C/O Ortiz to remove trays from the slots of doors and open inmate Hernandez #BN6528 and Jones #BK3236 23 whom was on orientation and not cleared to be among inmates without staff security….” Hernandez and Jones exited their cell, went 24 through the B section sally port and into C section where Plaintiff was working. Plaintiff contends Hernandez and Jones attacked him. 25 As a result of the attack, Plaintiff sustained a “deep cut” to his right lower leg that required medical attention. Plaintiff seeks 26 compensatory damages in the sum of $750,000. 27 (See Doc. 11 at 3 [First Screening Order], citations omitted.) 28 // 1 IV. DEFENDANT’S STATEMENT OF UNDISPUTED FACTS 2 1. Plaintiff Stanley V. Wells is an incarcerated individual in the custody of the California 3 Department of Corrections and Rehabilitation (CDCR). At all times relevant to the 4 allegations in this case, Plaintiff was housed at California State Prison – Corcoran 5 (CSP – Corcoran). 6 2. Plaintiff filed his Complaint on February 18, 2022, while housed within the custody of 7 CDCR. 8 3. In his Complaint, Plaintiff alleges that on September 15, 2021, Defendant Lima was 9 working as the Control Booth Officer in Facility 4B, Building 4L (4B4L) at CSP - 10 Corcoran. Plaintiff alleges that Defendant Lima opened the cell doors of two inmates 11 (Hernandez and Jones) who were on orientation status during meal tray collection. 12 These inmates proceeded to slip through the openings in their cell doors and attack 13 Plaintiff as he was conducting his porter duties and collecting meal trays. 14 4. The Court screened Plaintiff’s Complaint as required under 28 U.S.C. § 1915A(a) and 15 determined that Plaintiff stated a cognizable Eighth Amendment deliberate 16 indifference claim against Defendant Lima. 17 5. As of September 15, 2021, Defendant Lima was employed by CDCR as a Correctional 18 Officer at CSP – Corcoran. As of that date, Defendant Lima was assigned to the role 19 of Control Booth Officer in Facility 4B, Building 4L. 20 6. As of September 15, 2021, Plaintiff was housed in Facility 4B, Building 4L at CSP – 21 Corcoran. 22 7. As of September 15, 2021, Facility 4B was on a Non-Designated Programming 23 Facility (NDPF) yard and exclusively housed inmates with a Level 2 security level. 24 8. Inmates are endorsed to an NDPF yard after a careful review of their assessed security 25 level, potential safety concerns, and housing/rehabilitation needs. Inmates are only 26 assigned to CDCR facilities with a security level that corresponds to their placement 27 score, which is determined by a review of an inmate’s case factors (e.g., age, 28 commitment offense and if violence used, prior incarceration history, gang 1 involvement). 2 9. Inmates who transfer to a new facility that they have been endorsed to are on 3 “orientation status” until they are seen by an Initial Classification Committee. This 4 committee typically happens four to twelve days after an inmate’s arrival. 5 10. Inmates on orientation status in Facility 4B, Building 4L, an NDPF facility, have been 6 endorsed to house there prior to their arrival. 7 11. As of September 15, 2021, Facility 4B operated as a dorm setting with inmates’ cell 8 doors open throughout the day, regardless of inmates’ orientation status. 9 12. As of September 15, 2021, Plaintiff was assigned to work as an afternoon porter in 10 Facility 4B, Building 4L. 11 13. As of September 15, 2021, inmates Hernandez and Jones were housed in Facility 4B, 12 Building 4L at CSP – Corcoran. 13 14. As of September 15, 2021, inmates Hernandez and Jones were both assigned to 14 security Level 2 based on their respective placement scores. These placement scores 15 and endorsement to be housed in Facility 4B were generally based on a lack of prior 16 incarceration history and/or lack of serious disciplinary incidents and minimal 17 incarceration sentences. 18 15. As of September 15, 2021, inmate Hernandez and Jones were both on orientation 19 status. 20 16. Prior to September 15, 2021, Defendant Lima did not know who Plaintiff was beyond 21 having general knowledge that he was housed in Facility 4B. Defendant Lima had 22 never had direct any interactions with Plaintiff, to the best of his recollection. 23 17. Prior to the September 15, 2021 incident, Defendant Lima did not know who inmates 24 Hernandez and Jones were beyond having general knowledge that they were housed in 25 Facility 4B. Defendant Lima had never had any direct interaction with either inmate, 26 to the best of his recollection. Defendant Lima likewise does not remember whether 27 inmates Hernandez and Jones were on orientation status as of September 15, 2021. 28 18. Prior to the September 15, 2021 incident, Defendant Lima did not know or suspect 1 that inmates Hernandez and Jones specifically, together or individually, posed a safety 2 threat to any inmate housed in Facility 4B, including Plaintiff. 3 19. As of September 15, 2021, Defendant Lima had no reason to know or suspect that any 4 inmate on orientation status posed a safety threat to any inmate housed in Facility 4B, 5 including Plaintiff. 6 20. On September 15, 2021, at approximately 7:05 p.m. as Defendant Lima opened the 7 cell doors of inmates housed in Facility 4B to facilitate meal tray collection, a 8 correctional staff member was walking in the unit as doors were opened. Meal trays 9 were collected by non-party inmate porter Lopes. 10 21. On September 15, 2021, between approximately 7:06:10 and 7:06:35 p.m., Defendant 11 Lima opened the cell doors of inmates Hernandez and Jones approximately 10-12 12 inches in order for them to place their meal trays on the ground outside of their 13 respective cell doors. 14 22. At approximately 7:06:36 p.m., inmate Hernandez exited his cell through the gap 15 created when Defendant Lima began to open his cell door and began to attack non- 16 party inmate Lopes, who was approximately two feet away conducting his porter 17 duties. 18 23. At approximately 7:06:44 p.m., inmate Jones exited his cell through the gap that 19 remained as Defendant Lima was beginning to close his cell door. Jones began to 20 attack inmate Lopes, who was approximately fifteen feet away, fleeing inmate 21 Hernandez’s attack. 22 24. At approximately 7:06:54 p.m., Defendant Lima, from his position in the Facility 4B 23 control booth, hit his institutional alarm and utilized his radio to notify staff of the 24 ensuing incident. 25 25. At approximately 7:07:15 p.m., Defendant Lima opened the Facility 4B doors to allow 26 staff to enter the building and respond to the incident. 27 26. Inmates Hernandez and Jones made their way from Facility 4B Section A over to 28 Section C, where Plaintiff was conducting his porter duties. 1 (Doc. 41-6 [hereafter UDF].) 2 Plaintiff’s opposition references Local Rule 260(b) and states: “Plaintiff submits the 3 following statements of Disputed facts opposing Defendant Lima undisputed facts and deny each 4 itemized that has been identified as fact.” (Doc. 45 at 1.) Thereafter, Plaintiff addressed UDF 5 numbers 10, 11, and 17-26. (Id. at 2-5.) Additionally included is a copy of Defendant’s Separate 6 Statement of Undisputed Facts in Support of Defendant’s Motion for Summary Judgment that 7 includes Plaintiff’s responses to each of the numbered UDFs. (Id. at 8-13.) Following review, the 8 undersigned liberally construes1 Plaintiff’s responses to Defendant’s UDFs as follows: numbers 9 1, 2, 4, 5, 6, 9, 12, and 13 are admitted, whereas numbers 3, 7, 8, 10, 11, and 14 through 26 are 10 denied. 11 V. SUMMARY OF THE PARTIES’ BRIEFING 12 Defendant’s Motion for Summary Judgment (Doc. 41) 13 Defendant contends he was not deliberately indifferent to Plaintiff’s serious risk of harm. 14 Specifically, Defendant asserts that Plaintiff’s claim that Defendant opened inmates Hernandez 15 and Jones’s cell doors knowing they posed a risk to Plaintiff’s safety lacks merit. Defendant 16 maintains Plaintiff has no evidence that he knew of Hernandez and Jones’s orientation status, and 17 that even had Defendant known, “that did not implicitly mean that they posed a danger” to other 18 inmates. Additionally, Defendant argues he immediately responded to the attack and took action 19 to stop the assault perpetrated by Hernandez and Jones. Therefore, Defendant contends Plaintiff 20 cannot prevail and summary judgment is appropriate. Finally, Defendant maintains he is entitled 21 to qualified immunity. 22 Plaintiff’s Opposition to Defendant’s Motion (Doc. 45) 23 Briefly stated, in the narrative portion of his opposition, Plaintiff states that Defendant is 24 improperly “placing blame … on those who endorsed” Hernandez and Jones to Building 4B4L 25 and argues newly arrived inmates on orientation status are not to have contact “with 26 [programming] inmates until the facility initial classification Committee release[s] them ….” 27 1 Plaintiff does not “admit” or “deny” each UDF, although he does reply affirmatively in a few instances. Nevertheless, the undersigned’s construed conclusion is informed by a review of each of Plaintiff’s substantive 28 responses. 1 Additionally, Plaintiff contends orientation inmates like Hernandez and Jones dine in cell. 2 Plaintiff argues that officers assigned to the control booth are “aware from their 3 [acknowledgment] in the computer ‘SOMS’ that what status of restrictions inmates are on” and 4 that Defendant Lima “knew upon his arrival in 4b-4L building the inmates in each building 5 section that was allowed to come out of their cell.” Next, Plaintiff maintains that the Herleman 6 declaration is not “correct otherwise” Defendant Lima “would have no reason to be in 4b-4L 7 building tower control booth if inmates on orientation could have physical contact with other 8 programming inmates.” 9 Plaintiff relies on Title 15 of the California Code of Regulations section 3335.5(c) to 10 support his position and argues “orientation in itself pose[s] a threat to other inmates until” the 11 Classification Committee review occurs. Plaintiff asserts “the building ‘AVSS’ in ‘B’ Section” 12 will show what inmate Lopes (who was also assaulted by Hernandez and Jones) and Correctional 13 Officer Ortiz (not a defendant in this action) were doing at the time of the incident. And although 14 not entirely clear, Plaintiff seems to dispute whether Hernandez or Jones commenced the attack 15 on Lopes based upon the location of their cells. Additionally, it appears Plaintiff disputes the 16 timing of Defendant Lima’s hitting of the alarm, stating that it was “not when it started,” but 17 rather when Defendant observed Plaintiff – rather than Lopes – being attacked. 18 VI. DISCUSSION 19 A. Defendant is Entitled to Summary Judgment 20 Defendant Lima contends he was not deliberately indifferent to Plaintiff’s serious risk of 21 harm. Specifically, Defendant asserts he had no knowledge that opening inmates Hernandez and 22 Jones’s cell doors posed a risk to Plaintiff’s safety. Defendant had no knowledge of Hernandez 23 and Jones’s orientation status, or that either would pose a threat to inmate safety. Additionally, 24 Defendant argues he immediately responded to the attack and took action to stop the assault 25 perpetrated by Hernandez and Jones. 26 In resolving Defendant’s motion herein, the undersigned has reviewed all the evidence 27 presented, including the pleadings, the supporting declarations of defense counsel, P. Herleman 28 and P. Williams, and Defendant Lima, as well as the video evidence submitted. (See Doc. 46.) 1 Defendant Met His Initial Burden 2 Defendant Lima was the Control Booth Officer in 4B4L on the date of the incident, a 3 NDPF unit housing inmates designated level 2 security following a placement review. UDF 5-8. 4 Upon arrival at 4B4L, inmates are on “orientation status” until their initial classification 5 committee review. UDF 9-10. Facility 4B4L is a dorm setting and allows inmate cell doors to 6 remain open throughout the day. UDF 11. On the date of the incident involving Plaintiff, inmates 7 Hernandez and Jones were housed on 4B4L following placement and endorsement; both were on 8 orientation status. UDF 13-15. Defendant did not know Plaintiff, Hernandez, or Jones, prior to the 9 incident beyond his general knowledge each was housed on 4B4L. UDF 16-17. He did not know 10 or suspect Hernandez or Jones, or any inmate on orientation status, posed a threat to any inmate in 11 Facility 4B prior to this incident. UDF 18-19. On September 15, 2021, at about 7:06 p.m., 12 Defendant opened Hernandez and Jones’s cell doors approximately ten to twelve inches to allow 13 them to place their meal trays outside their cell doors. UDF 21. Inmate Hernandez slid through 14 the gap and began to attack inmate porter Lopes. UDF 20, 22. Inmate Jones slid through the gap 15 in his cell door seconds later, also attacking Lopes. UDF 23. Within ten seconds, Defendant hit 16 his alarm and notified staff via radio. UDF 24. When Defendant opened the Facility 4B doors for 17 responding staff, Hernandez and Jones had moved from section A to section C, assaulting 18 Plaintiff and causing him minor injuries. UDF 25-26. 19 Defendant Lima has met his initial burden by demonstrating there is no genuine dispute as 20 to any material fact. Fed. R. Civ. P. 56(a). Specifically, Defendant Lima’s facts demonstrate that 21 he had no knowledge Hernandez and Jones presented any excessive risk to Plaintiff and, given his 22 relatively speedy response time, that he did not disregard any such risk. Farmer, 511 U.S. at 837. 23 Thus, the burden shifts to Plaintiff as the non-moving party to establish that a genuine issue as to 24 any material fact actually does exist. Matsushita, 475 U.S. at 586. 25 Plaintiff Has Not Met His Burden of Production 26 As noted above, Plaintiff disputes Defendant’s UDF 3, 7, 8, 10, 11, and 14 through 26. As 27 concerns UDF 3, Plaintiff contends Hernandez and Jones were “restricted to assigned quarters 28 until evaluate for safety and security factors clear the both of them for program on FAC-4B that 1 meant [they] had no contact with other programming inmates on fac-4b inside the building.” 2 (Doc. 45 at 9.) But Plaintiff’s assertions that his attackers were restricted to their cells and 3 prohibited from having contact with him are unsupported by any evidence. There is no evidence 4 that Hernandez and Jones were “restricted to assigned” quarters or that they were not permitted 5 “contact with other programming inmates” in 4B4L. Plaintiff’s mere allegation is insufficient. See 6 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To 7 survive summary judgment, a plaintiff must set forth non-speculative evidence of specific facts, 8 not sweeping conclusory allegations); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th 9 Cir. 2007) (a party may not rely on speculative or conclusory testimony contained within 10 affidavits, pleadings, or moving papers to raise a genuine dispute of material fact in an effort to 11 defeat summary judgment); Nelson v. Pima Community College, 83 F.3d 1075, 1081-82 (9th Cir. 12 1996) (“mere allegation and speculation do not create a factual dispute for purposes of summary 13 judgment”); Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006) 14 (“statements in declarations based on speculation or improper legal conclusions, or argumentative 15 statements, are not facts and likewise will not be considered on a motion for summary judgment” 16 (emphasis omitted)). 17 The same can be said of Plaintiff’s disputes with UDF 7 (that 4B4L “was a level two 18 orientation building for new arrivals”), 8 (inmates endorsed to “Corcoran level two [were] placed 19 on orientation and restricted to their housing until release for program”), 10 (orientation status 20 inmates were “restricted from contact of inmates”), and 11 (orientation status inmates “couldn’t 21 have physical contact with other inmates”), 11 (“4B FACILITY DOORS were open but not in 4b- 22 4L with orientation inmates”). Other than his own beliefs, Plaintiff offers no evidence to support 23 his conclusory assertions that inmates on orientation status are restricted to their cells. Cafasso, 24 637 F.3d at 1061; Soremekun, 509 F.3d at 984; Nelson, 83 F.3d at 1081-82; Burch, 433 F.Supp.2d 25 at 1119. More specifically, Plaintiff’s unsupported beliefs do not overcome Defendant’s evidence, 26 particularly that offered by Declaration of P. Herleman. Herleman declares he was a sergeant 27 assigned to Facility 4B on the date of the incident; as sergeant, he supervised all correctional staff 28 and inmates. (Doc. 41-3, ¶ 2.) At that time, Facility 4B was a NDPF, exclusively housing inmates 1 with a level 2 security designation. (Id., ¶ 5.) NDPFs were established to afford inmates greater 2 access to rehabilitative programs and job opportunities, free from the influence of gang pressure 3 and criminal activity. (Id., ¶ 6.) To preserve the safety and program efficiency of NDPF yards, a 4 careful review of an inmate’s individual case factors, security level, potential safety concerns, and 5 housing/rehabilitation needs is done before designating and endorsing an inmate to an NDPF 6 yard. (Id. at ¶¶ 6-7.) An inmate’s placement score can be reduced if that inmate has been 7 programming and is discipline-free whereas those inmates receiving any disciplinary action will 8 have an increased placement score. (Id., ¶ 7.) A level 2 security designation involves a placement 9 score between 19 and 35 and level 2 facilities primarily consist of open dorms with a secure 10 perimeter. (Id., ¶ 8.) Inmates’ cell doors are unlocked in the morning and opened and closed by 11 inmates throughout the day without the need for correctional staff’s assistance regardless of an 12 inmate’s orientation status. (Id., ¶ 9.) Being on “orientation status” is maintained until the recently 13 endorsed inmate is seen by the initial classification committee that will determine whether the 14 inmate has housing or programming needs that warrant a transfer to another facility; the 15 classification committee meeting typically occurs within four to twelve days of an inmate’s 16 arrival. (Id., ¶ 10.) During orientation status in Facility 4B, inmates are escorted by correctional 17 staff when outside the building, but an escort is not required to move about inside the building or 18 sections of that building. (Id., ¶ 12.) 19 Regarding UDF 14, Plaintiff’s assertion that he was attacked by inmates Hernandez and 20 Jones on September 15, 2021, in combination with the fact Plaintiff was interviewed by 21 Lieutenant Magallanes two days later wherein those inmates were identified as “enemy/safety” 22 concerns for Plaintiff, does not create a genuine issue of material fact concerning Hernandez and 23 Jones’s level 2 placement or endorsement scores assigned before the incident. (See Doc. 41-2 24 [Exhibits to Declaration of Patricia M. Kealy] at 7, 9, 11, 13-14 [Hernandez] & 18, 20, 22, 24-25 25 [Jones].) See, e.g., Jaross v. Phillips, No. 2:10-cv-01631-PMP-GWF, 2011 WL 3471865, at *6 26 (D. Nev. Aug. 9, 2011) (“The evidence of the incident itself and the evidence of Phillips’ 27 behavior throughout and after his encounter with Jaross are insufficient to raise a genuine issue of 28 material fact that Phillips acted with intent”); Williams v. Roark, No. 2:21-cv-00128-JRS-MKK, 1 2024 WL 198392, at *11 n.13 (S.D. Ind. Jan. 18, 2024) (“Mr. Williams’ allegations that Sgt. 2 Leffler approached him on August 11, 2020, three days after the incident ‘making subtle 3 offensive remarks to the course of events and how Plaintiff would pay dearly for breaking his 4 Oakley glasses’ do not create a material fact issue related to use of force during the instant 5 incident).2 6 Concerning UDF 15, wherein Plaintiff alleges Hernandez and Jones’s orientation status 7 “meant no-contact with porters,” Plaintiff’s assertions are unsupported and conclusory and, thus, 8 do not create a genuine issue of material fact. Cafasso, 637 F.3d at 1061; Soremekun, 509 F.3d at 9 984; Nelson, 83 F.3d at 1081-82; Burch, 433 F.Supp.2d at 1119. 10 UDF 16 concerns Defendant’s general knowledge that Plaintiff was housed in Facility 4B 11 and Defendant’s statement that he did not recall having any direct interaction with Plaintiff prior 12 to the date of the incident. Plaintiff attempts to dispute UDF 16 by asserting the following: “the 13 tower booth officers whom were assigned to that post 4B-4L made 3rd watch porters aware 14 whom was to be cell feed because [they] couldn’t come out to obtain their own meal tray and 15 ‘SOMS’ in the computer advise.” Plaintiff’s dispute or denial fails to address the substance of 16 UDF 16 and does not serve to create a genuine issue of material fact. Anderson, 477 U.S. at 248; 17 T.W. Elec. Serv., Inc., 809 F.2d at 626. 18 Next, UDF 17 concerns Defendant’s statements that he did not know either Hernandez or 19 Jones beyond having general knowledge they were housed in Facility 4B, that he does not recall 20 having any direct interaction with either Hernandez or Jones prior to the date of the incident and 21 does not remember whether Hernandez and Jones were on orientation status on that date. Plaintiff 22 attempts to dispute UDF 17 by asserting the following: “ok 4B-4L was the only building with 23 staff in the control booth for the control to what doors? It was only for those inmates with no- 24 contact restrictions with other inmates such as Hernandez and Jones otherwise [they] wouldn’t be 25 2 In the CDCR-128B form dated September 23, 2021, and attached to Plaintiff’s opposition, Lieutenant Magallanes noted the following: “Wells mentioned why we continue to allow inmates who are ‘active’ and refuse to program on 26 a Non Designated Program Facility (NDPF) knowingly [sic] knowing they will attack a programming inmate housed on Facility 4B. I explained to Wells the inmates he is referring to are disciplinary free and meet the criteria for 27 endorsement on an NDPF facility. Wells stated he disagreed with the release of inmates no willing to program on a NDPF and stated we need to stop that before someone gets seriously hurt.” (Doc. 45 at 7.) Plaintiff’s disagreement 28 with or belief about NDPF protocols does not create a genuine issue of material fact. 1 on orientation.” Again, Plaintiff’s conclusory and unsupported assertion does not overcome 2 Defendant’s evidence to create a genuine issue of material fact. Cafasso, 637 F.3d at 1061; 3 Soremekun, 509 F.3d at 984; Nelson, 83 F.3d at 1081-82; Burch, 433 F.Supp.2d at 1119. (See 4 also Doc. 41-3 [Declaration of P. Herleman] at ¶ 12 [inmates on orientation status are free to 5 move about inside the NDPF building or sections of that building without escort].) 6 UDF 18 and 19 concern Defendant’s statements that he did not know or suspect that 7 Hernandez and Jones posed a threat to the safety of those housed in Facility 4B, or that any 8 inmate on orientation status posed a safety threat to any inmate housed on that facility, including 9 Plaintiff. Plaintiff attempts to dispute UDF 18 by asserting Defendant “had to know what inmates 10 under his control posed a safety risk if they couldn’t have contact with other inmates in 4B-4L 11 BUILDING.” Like Plaintiff’s other disputes, his assertion is conclusory and unsupported. 12 Plaintiff offers no evidence other than his continued bare assertions that “orientation status” 13 inmates are not to have contact with other inmates. Cafasso, 637 F.3d at 1061; Soremekun, 509 14 F.3d at 984; Nelson, 83 F.3d at 1081-82; Burch, 433 F.Supp.2d at 1119. Importantly, Plaintiff 15 offers no evidence to refute Defendant’s showing that both programming and orientation-status 16 inmates have comparable, low-risk endorsement scores for placement in a Level 2 security level. 17 (See Doc. 41-3, ¶ 11.) 18 Next, Plaintiff attempts to dispute UDF 19 by stating that as of the date of the incident, 19 “according to CAL CODE of Regs.Tit.15; 3335.5(C) state for institution security and the safety 20 of persons until comm, evaluate safety, security FACTOR.” However, during the relevant period, 21 that section appears to have applied only to inmates housed in an administrative segregation unit. 22 See, e.g., Rico v. Beard, No. 2:17-cv-1402 KJM DB P, 2018 WL 3702310, at *5 (E.D. Cal. Aug. 23 2, 2018) (distinguishing the regulations applicable to the SHU and the ASU and stating generally 24 that “[i]nmates are placed in the ASU for a variety of reasons including where they present or are 25 subjected to an immediate threat to safety, where they are subject to an investigation, where they 26 are related to a prison staff member, where they have been the victim of a sex crime, and for 27 medical or psychiatric reasons. Cal. Code Regs. tit. 15, §§ 3335, 3335.5”). Thus, the section cited 28 by Plaintiff was not applicable to the NDPF designated 4B Facility. In sum, Plaintiff’s disputes 1 with UDF 18 and 19 are unsupported. They do not overcome Defendant’s evidence that the fact 2 Hernandez and Jones were on orientation status does not support a presumption that either posed 3 a threat to safety because both had been endorsed to the facility after a thorough review; that 4 endorsement creates a presumption of a “minimum safety risk to other inmates housed in the 5 same facility.” (See Doc. 41-3 [Declaration of P. Herleman] at 5, ¶¶ 24-25.) 6 Next, UDF 20 involves Defendant opening the cell doors for inmates housed in Facility 7 4B to facilitate meal tray collection in the presence of correctional staff and inmate porter Lopes. 8 Plaintiff disputes this fact by stating Defendant Lima “disregarded what the c/o ORTIZ floor staff 9 was doing in ‘A’ [section] removing trays through the tray slots by opening cell doors, the 10 orientation sign clearly above their doors gave [Defendant] LIMA the warning not to open the 11 door for safety of person.” As noted above, Defendant’s evidence reveals that Facility 4B was a 12 dorm setting wherein cell doors were unlocked in the morning and were opened and closed 13 throughout the day by inmates without the assistance of correctional staff, despite any inmate’s 14 orientation status. (See Doc. 41-3 [Declaration of P. Herleman], at ¶ 9; UDF 11.) As of September 15 15, 2021, orientation status inmates on Facility 4B were to be cell-fed, meaning they “received, 16 ate, and returned their meal trays from within their cells.” (Id., ¶ 14.) Yet on the date of the 17 incident, all inmates, including those on orientation status, in Facility 4B were fed dinner in their 18 cells likely due to “a modified program that was in place due to COVID-19 protocols” as the 19 entire facility was still affected by the virus during the month of September. (Id., at ¶ 15.) In-cell 20 feeding of all inmates on that date could also have been due to “count” occurring during the 21 dinner hour. (Id., at ¶ 16.) 22 Other than his conclusory assertion inferring Defendant Lima was required to remove 23 meal trays only through the cell door tray slots, Plaintiff offers no evidence to support his 24 contention that Defendant Lima improperly “disregarded” actions taken by “floor staff” in 25 another section concerning the collection of dinner trays. F.T.C. v. Publ'g Clearing House, Inc., 26 104 F.3d 1168, 1171 (9th Cir. 1997), as amended (Apr. 11, 1997) (“A conclusory, self-serving 27 affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine 28 issue of material fact”). Notably too, in support of Defendant’s motion, P. Herleman declares: 1 Based on my experience supervising Facility 4B and understanding of NDPF facilities’ operation, it is my professional opinion that 2 Officer Lima’s protocol for tray collection, while not directly aligned with mealtime policy for inmates on orientation status, did not 3 deliberately and knowingly endanger the safety of the inmates housed in Building 4B4L. Without direct knowledge that an inmate 4 posed a threat to the safety of the other inmates in the building, Officer Lima was justified to believe that an endorsed orientation- 5 status inmate in Facility 4B would not take advantage of a crack in their cell door to exit their cell and assault a non-orientation status 6 inmate, such as Plaintiff. 7 (Doc. 41-3 at 6, ¶ 26.) See In re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000) (personal 8 knowledge may be inferred from the declarant’s position); Barthelemy v. Air Lines Pilots Ass’n, 9 897 F.2d 999, 1018 (9th Cir. 1990) (personal knowledge can be inferred from a declarant’s 10 position and nature of participation in the matter). Here, although Plaintiff’s response to 11 Defendant’s statement of undisputed facts is under penalty of perjury (Doc. 45 at 5), he does not 12 attest that his assertions are based on personal knowledge. See, e.g., Lovelace v. Armor 13 Correctional Health Services, Inc., No. 1:18cv684 (TSE/TCB), 2022 WL 658556, at *4 n. 9 (E.D. 14 Va. Mar. 4, 2022) (on summary judgment, plaintiff’s objection to a nurse’s listed duties did not 15 create a triable issue of fact where “the plaintiff solely relies on his own self-serving testimony” 16 and did not “swear to it based upon personal knowledge or first-hand experience and did not 17 include his assertions about [the nurse’s] duties in his separate affidavit” based on personal 18 knowledge); Simon v. McMahon, No. ED CV 16-2007-RGK(E), 2019 WL 3059581, at *8 (C.D. 19 Cal. May 1, 2019) (finding that Plaintiff’s “unsupported contention” that agency’s search policy 20 proffered in support of its motion for summary judgment was not in effect at operative time “does 21 not raise any triable issue of fact,” citing Soremekum); Brinkman v. Schriro, No. CV 08-0670- 22 TUC-FRZ, 2013 WL 11311260, at *5 (D. Ariz. Mar. 20, 2013) (granting summary judgment and 23 stating “[g]iven the Defendant’s role as the ADC Administrator of Pastoral Activities and his past 24 duties as chaplain at different ADC complexes, the Court finds that in his position, Defendant 25 would have personal knowledge of the practices related to inmate religious services at ADC 26 facilities,” citing In re Kaypro). 27 Nor has Plaintiff offered any evidence in support of his apparent proposition that an 28 “orientation sign” above a cell door meant that the inmate’s door could not be opened for any 1 reason. Cafasso, 637 F.3d at 1061; Soremekun, 509 F.3d at 984; Nelson, 83 F.3d at 1081-82; 2 Burch, 433 F.Supp.2d at 1119. 3 UDFs 21 through 25 concern Defendant Lima’s actions between about 7:06 p.m. and 7:08 4 p.m. on September 15, 2021. Specifically, these proffered facts set forth that Defendant Lima 5 opened Hernandez and Jones’s cell doors ten to twelve inches to allow them to place their meal 6 trays on the ground outside their cells, that Hernandez exited through the gap and began to attack 7 inmate porter Lopes, that less than ten seconds later Jones did the same as Defendant began 8 closing Jones’s door, that Defendant hit the alarm and used his radio to notify staff and opened 9 the Facility 4B doors for the responding staff, and that Hernandez and Jones made their way to 10 the section where Plaintiff was conducting his porter duties. First, Plaintiff’s dispute with UDF 21 11 does not address the substance of Defendant’s undisputed fact—it concerns a conversation he had 12 with inmate porter Lopes— and thus should be overruled. Anderson, 477 U.S. at 248; T.W. Elec. 13 Serv., Inc., 809 F.2d at 626. Second, as concerns UDF 22, Plaintiff states: “at 7:06:36 p.m., meant 14 the cell of Hernandez and JONES was open for ‘25’ seconds [before] Jones attacked inmate 15 LOPES and his is [before] Hernandez cell.” The Court is unclear as to Plaintiff’s point. 16 Defendant’s proffered facts are unchanged in any event: Defendant opened Hernandez and 17 Jones’s cell doors so they could return their meal trays and within a span of 25 seconds each had 18 slipped through the ten-to-twelve-inch gap in the cell door. Anderson, 477 U.S. at 248; T.W. Elec. 19 Serv., Inc., 809 F.2d at 626. Third, as to UDF 23, Plaintiff states that had Defendant “been aware 20 of these attacks what prevented him from securing the incident in that section only the building 21 ‘AVSS’ WILL show what [Defendant’s] ‘BWC’ has not.” In a span of only fourteen seconds, 22 Hernandez commenced his attack on inmate porter Lopes, Jones joined Hernandez in attacking 23 Lopes, and Defendant hit his institutional alarm and radioed for assistance, as the video evidence 24 from Defendant’s body worn camera shows. If Plaintiff believes the “‘AVSS’” video would 25 dispute those facts and support his inference that Defendant should have been able to secure only 26 that section of Facility 4B, it was Plaintiff’s burden to obtain such evidence. Fed. R. Civ. P. 56(c); 27 Matsushita, 475 U.S. at 586 n.11. But without that evidence to proffer, that Plaintiff’s belief is 28 speculative. 1 Fourth, concerning UDF 24, Plaintiff contends Defendant “hit his alarm after the fact” and 2 “didn’t secure the area the incident started from allowing the risk of harm to happen to” Plaintiff. 3 Plaintiff offers no evidence to support an assertion that Defendant only hit the alarm after 4 Hernandez and Jones attacked Plaintiff. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11; 5 Anderson, 477 U.S. at 248; T.W. Elec. Serv., Inc., 809 F.2d at 626. Again, only 14 seconds 6 elapsed between Hernandez and Jones leaving their cells, attacking inmate porter Lopes, and 7 Defendant activating his alarm. It is not reasonable to infer Defendant delayed in responding to 8 the attack by Hernandez and Jones. Richards, 602 F. Supp. at 1244-45. The Court should overrule 9 Plaintiff’s denial. Fifth, concerning UDF 25—wherein Defendant indicates he opened the Facility 10 4B door for responding staff—Plaintiff states Defendant closed Hernandez and Jones “IN C 11 SECTION ON PLAINTIFF FROM ‘B’ SECTION DOOR OPENING” before opening the 12 facility’s doors for staff. Plaintiff offers no evidence to support his speculative assertion. Cafasso, 13 637 F.3d at 1061; Soremekun, 509 F.3d at 984; Nelson, 83 F.3d at 1081-82; Burch, 433 F.Supp.2d 14 at 1119. 15 Lastly, Plaintiff disputes UDF 26—stating Hernandez and Jones made their way from 16 section A to section C where they assaulted Plaintiff— by stating “again these two inmates made 17 their way from a unsecure incident area of 4b-4L-sec: B thru a open door to where plaintiff was 18 conducting his porter duties [where Defendant Lima] watch plaintiff attacked as he hit his alarm.” 19 Other than his own self-serving statement, Plaintiff offers no evidence to support his assertion 20 that he was attacked by Hernandez and Jones at the same time Defendant was activating his 21 institutional alarm. F.T.C., 104 F.3d at 1171. 22 Concerning the remainder of Plaintiff’s opposition, he fails to offer any evidence that as a 23 control booth officer, Defendant Lima was aware that Hernandez and Jones were “restricted” and 24 not allowed “to come out of their cells.” Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. 25 Nor does Plaintiff have any personal knowledge regarding his assertion. F.T.C., 104 F.3d at 1171. 26 To the extent Plaintiff argues Herleman’s declaration is erroneous as concerns an 27 orientation status inmate’s ability to leave his cell, Plaintiff’s conclusory allegation is insufficient 28 to create a genuine dispute of material fact. Herleman was a sergeant assigned to Building 4B at 1 the time of the incident giving rise to Plaintiff’s claim, supervised all correctional staff and 2 inmates working in Herleman’s assigned area, is familiar with the NDPFs, and placement and 3 endorsement protocols and determinations. (See Doc. 41-3 at ¶¶ 1-2, 5-13.) Plaintiff does not 4 attest to having any personal knowledge concerning that information. Further, the CDCR-128B 5 form pertaining to Plaintiff’s September 23, 2021, interview with Lieutenant Magallanes supports 6 that conclusion. See n.2, ante. 7 To the extent Plaintiff argues that Herleman’s declaration places “blame” on those who 8 endorsed Hernandez and Jones to Facility or Building 4B, his argument is not well taken. 9 Herleman’s declaration simply explains the endorsement and placement process and assigns no 10 blame in that regard. (See Doc. 41-3.) 11 Concerning Plaintiff’s contention that Defendant had knowledge that Hernandez and 12 Jones, as orientation status inmates, presented a threat to Plaintiff’s safety because Defendant had 13 access to SOMS, Plaintiff offers no evidence to support his position. Fed. R. Civ. P. 56(c); 14 Matsushita, 475 U.S. at 586 n.11. Again, he advances only a conclusory assertion that is 15 insufficient to create a material fact. Cafasso, 637 F.3d at 1061; Soremekun, 509 F.3d at 984; 16 Nelson, 83 F.3d at 1081-82; Burch, 433 F.Supp.2d at 1119. 17 Finally, the undersigned has reviewed the allegations in Plaintiff’s complaint. See Jones v. 18 Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (nonmovant’s contentions in other pleadings are to be 19 considered in connection with summary judgment motion so long as attested to under penalty of 20 perjury). However, the allegations therein material to Defendant Lima’s summary judgment 21 motion – that Defendant Lima was aware inmates in C Section were confined to their cells 22 because they had not been cleared to exit without escort – do not establish the existence of any 23 factual dispute. That is because the allegations are unsupported by evidence and not offered on 24 the basis of Plaintiff’s personal knowledge that (1) a policy existed restricting inmates to their 25 cells, (2) inmates were unable to exit their cells without escort under such policy, or (3) 26 Defendant Lima knew of such policy. See Fed. R. Civ. P. 56(c); e.g., Simon, 2019 WL 3059581, 27 at *8 (C.D. Cal. May 1, 2019). 28 /// 1 B. Plaintiff Did Not Establish Deliberate Indifference 2 The state of mind, or subjective, element of an Eighth Amendment cause of action 3 concerns deliberate indifference to an inmate’s health and safety. Farmer, 511 U.S. at 834. Prison 4 officials display a deliberate indifference to an inmate’s well-being only when they know of and 5 consciously disregard a substantial risk of harm to his health or safety. Id. at 837. “[T]he official 6 must both be aware of facts from which the inference could be drawn that a substantial risk of 7 serious harm exists, and he must also draw the inference.” Id.; see Taylor v. Barkes, 575 U.S. 822, 8 827 (2015) (noting that Farmer holds that “Eighth Amendment liability requires actual awareness 9 of risk”). Therefore, “[i]t is not … every injury suffered by one prisoner at the hands of another 10 that translates into constitutional liability for prison officials responsible for the victim's safety.” 11 Farmer, 511 U.S. at 834. If prison officials “did not know of the underlying facts indicating a 12 sufficiently substantial danger,” and “were therefore unaware of the danger,” or if “they knew the 13 underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was 14 unsubstantial or nonexistent,” they may not be held liable. Id. at 844; see Gibson, 290 F.3d at 15 1188 (noting that a prison official who “should have been aware of the risk, but was not, ... has 16 not violated the Eighth Amendment, no matter how severe the risk”). Moreover, the deliberate 17 indifference standard requires that even if a prison official is alleged to have “actually kn[own] of 18 a substantial risk to [Plaintiff's] health or safety[,] [he] may be found free from liability if [he] 19 responded reasonably to the risk, even if the harm was not ultimately averted.” Farmer, 511 U.S. 20 at 844. Deliberate indifference is, therefore, “‘something more than mere negligence,’ but 21 ‘something less than acts or omissions for the very purpose of causing harm or with knowledge 22 that harm will result.’” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015) (quoting Farmer, 511 23 U.S. at 835). 24 Here, Plaintiff has failed to establish that Defendant Lima knew of the risk presented by 25 Hernandez and Jones and therefore Defendant is not liable. Farmer, 511 U.S. at 844; Gibson, 290 26 F.3d at 1188. At most, this record demonstrates Defendant was negligent (concerning the method 27 for removing meal trays from Hernandez and Jones’s cells) rather than deliberately indifferent. 28 Cortez, 776 F.3d at 1050. Nor has Plaintiff established that Defendant failed to reasonably 1 respond once Hernandez and Jones attacked the inmate porters; Defendant responded in seconds. 2 Farmer, 511 U.S. at 844; see, e.g., Wilkerson v. Johnson, 330 Fed. Appx. 257, 259 (2d Cir.2009) 3 (affirming grant of summary judgment in favor of correctional officers where they responded 4 “immediately” to defuse inmate fight); Loggins v. Franklin County, Ohio, 218 Fed. Appx. 466, 5 471 (6th Cir. 2007) (finding no failure to protect claim where officials did not know of any threat 6 or danger to inmate and responded quickly to inmate-on-inmate assault); McDaniels v. McKinna, 7 96 Fed. Appx. 575, 580 (10th Cir. 2004) (holding correctional officer’s slow reaction to inmate 8 fight where officer lacked prior knowledge of specific threat to plaintiff’s safety and entire 9 incident lasted three minutes constituted at most negligence and did not support deliberate 10 indifference claim); Greenlee v. Shick, No. 2:23-cv-00075-JMS-MG, 2025 WL 896310, at *7 11 (S.D. Ind. Mar. 24, 2025) (granting summary judgment on deliberate indifference claim based on 12 allegation correctional officer failed to timely respond to attack, reasoning that evidence 13 demonstrated officer arrived at the plaintiff’s cell “pretty quick” after he began yelling for help, 14 “which shows that the Officers acted with urgent care, not deliberate indifference”), app’l filed 15 No. 25-1742 (7th Cir Apr. 30, 2025); Horshaw v. Casper, No. 14-CV-0248-NJR-DGW, 2016 WL 16 5394386, at *6 (S.D. Ill. Sept. 27, 2016) (granting summary judgment on failure to protect claim 17 and stating “As to Teas [stationed in Tower 5], the evidence shows that she took action to stop the 18 beating (which lasted approximately 17 seconds) within seconds of first noticing it”), affirmed in 19 relevant part, Horshaw v. Casper, 910 F.3d 1027, 1030 (7th Cir. 2018). It therefore remains 20 undisputed that Defendant Lima was unaware of any risk posed by inmates Hernandez and Jones 21 to Plaintiff. Further, although Plaintiff alleged Defendant knew of the risk posed, on this record, 22 the Court finds that Defendant acted reasonably in response to the risk. Accordingly, no 23 reasonable juror could conclude that Defendant Lima acted with deliberate indifference. 24 C. Summary of Findings 25 Plaintiff has failed to offer sufficient proof to establish any triable issue of fact concerning 26 the essential elements of his Eighth Amendment failure to protect claim against Defendant Lima. 27 Celotex, 477 U.S. at 322; see also Farmer, 511 U.S. at 832-33, 837, 844, 847. Plaintiff has not 28 demonstrated, nor does it appear he could demonstrate, that Defendant Lima knew of and 1 | disregarded an excessive risk to Plaintiff's health and safety. Id. at 834. 2 In sum, on this record, no rational trier of fact would find for Plaintiff as there is no 3 | genuine issue for trial in this matter. Matsushita, 475 U.S. at 587. Thus, the undersigned will 4 || recommend Defendant’s motion for summary judgment be granted.? 5 VII. CONCLUSION AND RECOMMENDATIONS 6 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 7 1. Defendant’s motion for summary judgment (Doc. 41) be GRANTED; and 8 2. The Clerk of the Court be directed to enter judgment in favor of Defendant Lima and 9 to close this case. 10 These Findings and Recommendations will be submitted to the United States District 11 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 12 | after being served with a copy of these Findings and Recommendations, a party may file written 13 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 14 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without 15 || leave of Court and good cause shown. The Court will not consider exhibits attached to the 16 | Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 17 | exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 18 | reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be 19 | disregarded by the District Judge when reviewing these Findings and Recommendations under 28 20 | U.S.C. § 636(b)(1)(C). A party’s failure to file any objections within the specified time may result 21 | inthe waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 22 | IT IS SO ORDERED. | Dated: _ October 6, 2025 | Wr bo 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 3 Because the Court has found that Defendant is entitled to judgment on the merits, the Court does not reach 28 | Defendant's alternative argument that he is entitled to qualified immunity. 22