United States District Court, D. Idaho
OMAR CASTILLON, DUSTY KNIGHT, JUSTIN PETERSON, LEON RUSSELL, CHRISTOHPER JORDAN, JACOB JUDD, MICHAEL FORD- RIDGES, AND RAYMOND BRYANT, Plaintiffs,
CORRECTIONS CORPORATION OF AMERICA, INC., Defendant.
ORDER ON REPORT AND RECOMMENDATION
J. LODGE UNITED STATES DISTRICT JUDGE
December 3, 2015, United States Magistrate Judge Candy W.
Dale (“Judge Dale”) issued a Report and
Recommendation (“Report”), recommending
Defendant’s Motion for Summary Judgment be granted
(Dkt. 231). Plaintiffs filed objections to the Report (Dkt.
233), and Defendant responded (Dkt. 235). The Court has
considered the parties’ contentions and adopts in part
and rejects in part the Report’s findings.
OF REVIEW 
to 28 U.S.C. § 636(b)(1)(C), this Court may accept,
reject, or modify, in whole or in part, the findings and
recommendations made by the Magistrate Judge. Where the
parties object to a report and recommendation, this Court
shall make a de novo determination of those portions
of the report to which objection is made. Id. Where,
however, no objections are made, arguments to the contrary
are waived. Id.; see also Fed. R. Civ.
Proc. 72. “When no timely objection is filed, the Court
need only satisfy itself that there is no clear error on the
face of the record in order to accept the
recommendation.” Advisory Committee Notes to Fed. R.
Civ. Proc. 72 (citing Campbell v. United States Dist.
Court, 501 F.2d 196, 206 (9th Cir. 1974)).
Court has reviewed the entire Report and the record in this
matter and finds no clear error on the face of the record. In
this case, only Plaintiffs filed objections to the Report.
The Court has conducted a de novo review of the
portions of the Report to which Plaintiffs object and finds
case involves a brutal inmate gang attack that occurred on
May 5, 2012, at the Idaho Correctional Center
(“ICC”). Plaintiffs Dusty Knight, Leon Russell,
Christopher Jordan, Jacob Judd, Michael Ford-Bridges, and
Raymond Bryant (“Plaintiffs”) are prisoners in
the custody of the Idaho Department of Correction
(“IDOC”). At all relevant times, Plaintiffs were
incarcerated at the ICC, a private prison which, at the time
of the attack, was operated by Defendant Corrections
Corporation of America, Inc. (“CCA” or
“Defendant”), under contract with
4, 2012, Plaintiffs were moved into a housing unit at ICC
known as F-pod or Pod F1, in the DEF unit. The DEF unit is
the only unit within the IDOC system that is dedicated for
offenders classified as close custody. (Dkt. 169, p. 6.)
Close custody facilities are designed to house high risk
inmates, either because they have escaped, have a serious
institutional disciplinary history, or have displayed
dangerous behavior while incarcerated. (Id., pp.
5-6.) The DEF unit houses a high percentage of Security
Threat Groups (“STGs”), defined as “a group
of two or more offenders who have been determined to be
acting in concert so as to pose a significant threat to the
safety, security, and orderly operation of any [IDOC]
facility.” (Id., pp. 6-7.)
offender classified as “close custody” does not
live within the general population of the prison, but is
instead confined within a secure perimeter and under 24 hour
staff supervision. (Id., p. 6.) Movement of close
custody offenders in the institution is limited.
Specifically, close custody offenders are only allowed out of
their cells for one hour of exercise, five days per week, and
one hour per day of dayroom time, five days per week.
(Id., p. 8.) Close custody inmates thus spend 22
hours per day in their cells during the week, and 24 hours on
unit had six pods, or tiers-Delta 1, Delta 2, Echo 1, Echo 2,
Fox 1 and Fox 2. (Dkt. 167, ¶ 31.) Each tier, or pod,
was divided into fourths, and a specific gang, grouped
together in a “walk” was housed in each of these
areas. (Dkt. 159-2, p. 4.) For example, the Aryan Knights
would occupy one walk, the Severely Violent Criminals
another, the Sureños another, and the Norteños
yet another walk. Inmates from different walks were not
allowed to recreate together. (Dkt. 169, p. 8.) In other
words, only one group of inmates assigned to a particular
walk was allowed out of their cells together for the same
recreation or dayroom break. (Dkt. 167, ¶ 14.)
the high percentage of STGs within the DEF unit, moving new
arrivals into the unit posed difficulties. For instance, DEF
Unit Manager Norma Rodriguez was concerned that moving new
individuals into the F1 pod might cause such individuals to
be recruited into a STG, or become subject to extortion by
gang members. (Dkt. 168-5, pp. 3-4, 8.) Rodriguez thus wanted
to put new inmates in the F1 pod who were not vulnerable to
that type of pressure from other inmates. (Id.) At
the time Rodriguez moved Plaintiffs into F1, there were
already inmates living in the F1 pod, assigned to a different
walk, who were members of STGs such as the Aryan Knights,
Severely Violent Criminals (“SVC”), and
Sureños. (Id., pp. 4-5.) Rodriguez thought
Plaintiffs were good candidates to move into F1 because they
were all friends who believed a walk of their own would
benefit them as well as the facility. (Dkt. 168-8, p. 2.)
5, 2012, the day after they were moved into the F1 pod,
Plaintiffs were attacked when six members of the Aryan
Knights did not return to their cells after they were let out
for recreation. Instead, the gang members hid in a
janitor’s closet that should have been locked, and then
burst out of the closet and attacked Plaintiffs with homemade
weapons and their fists when Plaintiffs were subsequently
released for their recreation. The attackers seriously
injured all of the Plaintiffs, one of whom was stabbed 18
allege CCA had deliberate policies of understaffing and of
housing individuals within the same gang affiliation
together, and claim both of these policies caused the May 5,
2012 attack. CCA filed a Motion for Summary Judgment arguing
the undisputed facts do not establish it had a deliberately
indifferent custom or policy that was the moving force behind
a violation of Plaintiffs’ constitutional rights. After
considering CCA’s motion and conducting a hearing,
Judge Dale issued the instant Report recommending summary
judgment be granted in favor of CCA. (Dkt. 231.)
factual background of this matter is meticulously detailed in
the Report and is not objected to by the
parties. As such, the Report’s recitation of
the general background of this case (Dkt. 231, pp. 1-26) is
incorporated by reference and hereby adopted.
object to the Report on two general grounds: (1) that it
“fundamentally misconstrues Eighth Amendment
jurisprudence and ignores the Law of the Case
Doctrine”; (2) that the record demonstrates Plaintiffs
have proven all four elements of a claim under Monell v.
Dep’t of Soc. Services, 436 U.S. 658
(1978). (Dkt. 233, pp. 2-3.) The Court will
address Plaintiffs’ objections in turn. Before doing
so, a review of the appropriate legal framework for
Plaintiffs’ claim is necessary.
bring their claim under 42 U.S.C. § 1983, the civil
rights statute, which provides, in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State . . . subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges or immunities secured
by the Constitution and laws, shall be liable to the party
42 U.S.C. § 1983.
1983 does not create any substantive rights, but is instead a
vehicle by which plaintiffs can bring federal constitutional
and statutory challenges to actions by state and local
officials.” Anderson v. Warner, 451 F.3d 1063,
1067 (9th Cir. 2006) (citing Cholla Ready Mix, Inc. v.
Civish, 382 F.3d 969, 978 (9th Cir. 2004)). “The
purpose of § 1983 is to deter state actors from using
the badge of their authority to deprive individuals of their
federally guaranteed rights.” Id. (citation
omitted). To state a valid claim under § 1983, a
plaintiff must allege a violation of rights protected by the
Constitution or created by federal statute proximately caused
by the conduct of a person acting under color of state law.
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
here allege an Eighth Amendment violation based on a failure
to prevent harm. The Eighth Amendment prohibition against
“cruel and unusual punishment” imposes duties on
prison officials to “take reasonable measures to
guarantee the safety of inmates.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v.
Palmer, 468 U.S. 517, 526-27 (1984)). In particular,
“‘prison officials have a duty . . . to protect
prisoners from violence at the hands of other
prisoners.’” Id. at 833 (quoting
Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556,
558 (1st Cir. 1988)). While prison conditions may be
“restrictive and even harsh. . . gratuitously allowing
the beating or rape of one prisoner by another serves no
legitimate penological objective, any more than it squares
with evolving standards of decency.” Farmer at
833 (internal quotation marks, bracket and citations
omitted). Put simply, being violently assaulted in prison is
not “‘part of the penalty that criminal offenders
pay for their offenses against society.’”
Id. (quoting Rhodes v. Chapman, 452 U.S.
337, 347 (1981)).
not every injury suffered by one prisoner at the hands of
another translates into constitutional liability for prison
officials responsible for a victim’s safety.
Id. at 834. For an inmate to succeed on a claim
based on a failure to prevent harm, he must show (1) that he
was incarcerated under conditions posing a substantial risk
of serious harm; and (2) that the prison official was
“deliberately indifferent” to inmate health or
safety. Id. The first element of the test is
objective. Clouthier v. Cnty. of Contra Costa, 591
F.3d 1232, 1242 (9th Cir. 2010) (quoting Farmer, 511
U.S. at 834). The second element, deliberate indifference, is
a subjective test in that “the official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.” Farmer, 511 U.S. at 837.
“[A]n official’s failure to alleviate a
significant risk that he should have perceived but did not,
while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.”
Id. at 838. Thus, if a “person should have
been aware of the risk, but was not, then the person has not
violated the Eighth Amendment, no matter how severe the
risk.” Gibson v. Cnty. of Washoe, Nev., 290
F.3d 1175, 1188 (9th Cir. 2002) (citation omitted).
“But if a person is aware of a substantial risk of
serious harm, a person may be liable for neglecting a
prisoner’s . . . needs on the basis of either his
action or his inaction.” Id. (citing
Farmer, 511 U.S. at 842).
as here, an inmate claims a private prison has violated the
inmate’s constitutional rights, the plaintiff must also
meet the test articulated in Monell v. Dep’t of
Soc. Services, 436 U.S. 658, 691-94 (1978). See also
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th
Cir. 2012) (applying Monell to private entities
performing state functions). Under Monell, a
municipality is subject to liability under § 1983 if it
is alleged “to have caused a constitutional tort
through ‘a policy, statement, ordinance, regulation, or
decision officially adopted and promulgated by that
body’s officers.’” City of St. Louis v.
Praprotnik. 485 U.S. 112, 121 (1988) (quoting
Monell, 436 U.S. at 690). To meet this test,
Plaintiffs must go beyond the respondeat superior theory of
liability and demonstrate the alleged constitutional
deprivation was the product of a policy or custom of the
local governmental unit, because municipal liability must
rest on the action of the municipality, and not on the
actions of the employees of the municipality. See Connick
v. Thompson, 536 U.S. 51, 60 (2011). The Supreme Court
has emphasized that “[w]here a plaintiff claims that
the municipality . . . has caused an employee to [violate a
plaintiff’s constitutional rights], rigorous standards
of culpability and causation must be applied to ensure that
the municipality is not held liable solely for the actions of
its employee.” Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 405 (1997).
municipal policy includes the decisions of a
government’s lawmakers, the acts of its policymaking
officials, and practices so persistent and widespread as to
practically have the force of law.” Connick,
536 U.S. at 61. Absent a formal governmental policy, a
plaintiff must show a “longstanding practice or custom
which constitutes the standard operating procedure of the
local governmental entity.” Trevino v. Gates,
99 F.3d 911, 918 (9th Cir. 1996). “[A]n act performed
pursuant to a ‘custom’ that has not been formally
approved by an appropriate decisionmaker may fairly subject a
municipality to liability on the theory that the relevant
practice is so widespread as to have the force of law.”
Brown, 520 U.S. at 404 (citing Monell, 436
U.S. at 690-91.) In addition, a policy of inaction may be a
municipal policy within the meaning of Monell.
Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.
1992) (“[A] local governmental body may be liable if it
has a policy of inaction and such inaction amounts to a
failure to protect constitutional rights.”). However,
liability of an allegedly improper custom or policy may not
be predicated upon isolated or sporadic events; rather,
“it must be founded upon practices of sufficient
duration, frequency and consistency that the conduct has
become a traditional method of carrying out policy.”
Trevino, 99 F.3d at 918 (citations omitted).
the requisite elements of a § 1983 policy-based claim
against a municipality are the following: (1) the plaintiff
was deprived of a constitutional right; (2) the
defendant had a policy or custom; (3) the policy or custom
amounted to deliberate indifference to the plaintiff’s
constitutional right; and (4) the policy or custom was the
moving force behind the constitutional violation. Mabe v.
San Bernadino Cnty., 237 F.3d 1101, 1110-11 (9th Cir.
2001) (citing Van Ort v. Estate of Stanewich, 92
F.3d 831, 835 (9th Cir. 1996)). With this framework in mind,
the Court turns to Plaintiffs’ objections to the
Eighth Amendment Jurisprudence and Law of the Case
first fault the Report for purportedly ignoring this
Court’s decision denying Defendant’s Motion to
Dismiss at an earlier stage of this proceeding. (Dkt. 233,
pp. 5-8.) Shortly after Plaintiffs filed their First Amended
Complaint (Dkt. 14) in 2013, Defendant filed a Motion to
Dismiss for Failure to State a Claim and Failure to Exhaust
Administrative Remedies. (Dkt. 19.) In denying Defendant’s
Motion to Dismiss for Failure to State a Claim, this Court
held Plaintiffs had sufficiently stated a plausible
Monell claim by alleging that Defendant maintained a
policy or custom of (1) participating in a “ghost
worker” scheme resulting in fewer correctional officers
and thus contributing to danger in the prison, and (2)
housing prison gang members together in the same unit. (Dkt.
54, pp. 6-7.)
holding, this Court cited Farmer for the proposition
that a prison official may not ignore a threat of violence
even if he does not perceive it as likely. (Dkt. 54, p. 8)
(citing Farmer, 511 U.S. at 833) (“Nor may a
prison official escape liability for deliberate indifference
by showing that, while he was aware of an obvious,
substantial risk to inmate safety, he did not know that the
claimant was especially likely to be assaulted by a specific
prisoner who eventually committed the assault.”). This
Court also concluded evidence of a longstanding custom may be
introduced to support Plaintiffs’ claim, including
evidence of understaffing and gang clustering dating back to
2008, noting: “Although Defendant contends that
Plaintiffs’ attack in May 2012 is too far removed from
the IDOC’s 2008 investigation, the allegation that gang
members were still being housed on the same walk at the time
of the attack raises a plausible inference that CCA had not
resolved the problems identified by the IDOC years
earlier.” (Dkt. 54, p. 8.) This Court also held the
attackers’ actions should not be construed as a
superseding cause, and the allegations that CCA had been
indifferent to the mere threat of violence can constitute a
proper Monell claim, stating:
Defendant appears to suggest that however dangerous the pod
might have been, the attackers’ independent actions
constituted a superseding cause eliminating any § 1983
claim. This argument illustrates a fundamental
misunderstanding of § 1983 jurisprudence. Claims that a
prison policy amounts to deliberate indifference ‘to
the threat of serious harm of injury’ by one prisoner
against another are cognizable under § 1983.
(Dkt. 54, p. 11) (quoting Berg v. Kincheloe, 794
F.2d 457, 459 (9th Cir. 1986)).
criticize the Report for purportedly departing from the
aforementioned analysis and holding, “[p]laintiffs fail
to explain how the actual staffing pattern on May 5, 2012, in
the DEF unit caused Plaintiff’s injuries[.]” (Dkt
231, p. 43.) Plaintiffs argue the “threat” of
serious harm or injury is enough to claim an Eighth Amendment
violation under Farmer and this Court’s order
denying Defendant’s Motion to Dismiss, and that they
thus need not explain how the staffing pattern on the date of
their attack caused their injuries. (Dkt. 233, p. 6.) As
such, Plaintiffs claim the Report violates the “law of
the case” doctrine, which provides a “court is
generally precluded from reconsidering an issue that has
already been decided by the same court, or a higher court in
the identical case.” Rebel Oil Co., Inc. v.
Atlantic Richfield Co., 146 F.3d 1088, 1093 (9th Cir.
1998) (internal quotation marks and citation omitted).
argument is unavailing. First, the law of the case doctrine
does not apply where, as here, two different standards of
review apply to the relevant Court orders. See, e.g.,
Stagl v. Delta Airlines, Inc., 117 F.3d 76, 80 (2d Cir.
1997) (law of the case does not apply where the procedural
posture changes the nature of the issue). Specifically, at
the motion to dismiss stage, the parties had yet to present
evidence and this Court was confined to the allegations in
Plaintiffs’ complaint. The issue before this Court at
the motion to dismiss stage was solely whether
Plaintiffs’ complaint, accepted as true, contained
sufficient factual matter to “state a claim for relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). By contrast, at the
summary judgment stage, Judge Dale was charged with applying
the law to the facts and evidence to determine whether
Plaintiffs established a genuine issue of material fact
sufficient to withstand summary judgment. In finding the
facts and evidence failed to establish a genuine dispute of
material fact, Judge Dale did not contradict this
Court’s holding with respect to Plaintiffs’
ability to satisfy the lesser standard required for stating a
plausible claim at the pleading stage.
the Report did not depart from this Court’s recitation
of the law with respect to a successful § 1983 claim.
The Report’s explanation of the law is consistent with,
but more detailed than, this Court’s analysis of the
law in the order denying the Motion to Dismiss. Both this
Court and Judge Dale highlighted that a successful
Monell claim requires a plaintiff to prove
“the policy or custom is a moving force behind the
constitutional violation.” (Compare Dkt. 54,
pp. 5-6 with Dkt. 231, pp. 39, 41-42, 46-49, 55.)
Although this Court held Plaintiffs’ theory that
Defendant created a substantial risk of serious harm by
instituting and maintaining a policy or custom of placing too
few guards on duty and of housing prison gang members in the
same area was plausible, Judge Dale determined the evidence
did not establish such alleged policies were the moving force
behind Plaintiffs’ injury. Although, as will be further
discussed, this Court disagrees with some of Judge
Dale’s factual findings regarding causation, the
Report’s legal analysis is consistent with both this
Court’s decision denying the Motion to Dismiss and with
cases interpreting the Monell causation element.
See, e.g., Mabe, 237 F.3d at 1110-11; Thomas v.
Baca, 514 F.Supp.2d 1201, 1206 (C.D. Cal. 2007) (noting
that the custom must be the “moving force” behind
a plaintiff’s constitutional injuries, which requires
the plaintiff to establish that the custom is “closely
related to the ultimate injury, ” and that the injury
“would have been avoided had proper policies been
implemented.”); Long v. Cnty. of Los Angeles,
442 F.3d 1178, 1190 (9th Cir. 2006).
Plaintiffs claim the Report contradicts itself because it
holds both that the “first objective component of an
Eighth Amendment violation is met if the inmate shows that
‘he is incarcerated under conditions posing a
substantial risk of serious harm…” and that
“Plaintiffs fail to explain how the actual staffing
pattern on May 5, 2012 in the DEF unit caused
Plaintiffs’ injuries….” (Dkt. 233, p. 6)
(internal brackets, quotation marks and emphasis omitted)
(citing Dkt. 231, pp. 34, 43.) Plaintiffs posit, “[i]f
the Plaintiffs only need to demonstrate conditions posing a
substantial risk of serious harm, then the Plaintiffs do not
need to explain how the staffing pattern on a particular date
caused their injuries. The ‘threat’ of serious
harm or injury is enough to claim an Eighth Amendment
violation.” (Id.) In making this argument,
Plaintiffs conflate the test for an Eighth Amendment
violation with that of a successful Monell claim. To
establish liability under Monell, a causal link
between the alleged constitutional violation and the policy
or custom is necessary. City of Canton v. Harris,
489 U.S. 378, 385 (1989) (“our first inquiry in any
case alleging municipal liability under § 1983 is the
question whether there is a direct causal link between a
municipal policy or custom and the alleged constitutional
deprivation.”). The Report did not err in so holding.
Plaintiffs challenge the Report’s reliance on
Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232
(9th Cir. 2010) when this Court determined Clouthier
was inapposite in deciding the Motion to Dismiss. As
Defendant notes, Plaintiffs misconstrue this Court’s
order, which simply found Clouthier-an appeal from
summary judgment- immaterial at the motion to dismiss stage.
(Dkt. 235, pp. 3-4.) Clouthier remains good law for
purposes of summary judgment and the Report.
Plaintiffs’ Ability to Meet Four Elements ...