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Salazar v. Blades

United States District Court, D. Idaho

September 28, 2018



          Ronald E. Bush Chief U.S. Magistrate Judge.

         Pending before the Court are: (1) Defendants' Second Motion for Summary Judgment (Dkt. 49); (2) Plaintiff's Cross-Motion for Summary Judgment (Dkt. 53); and (3) Plaintiff's Motion for Leave to File Supplemental Pleading (Dkt. 58). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


         Plaintiff Victor Salazar is a prisoner in the custody of the Idaho Department of Correction (“IDOC), currently incarcerated at the Idaho State Correctional Institution (“ISCI”). Plaintiff's claims originally arose out of two physical altercations while at the Idaho State Correctional Center (“ISCC”) - the first on December 3, 2014; the second on August 28, 2015. In each instance, Plaintiff claims to have been attacked by Norteño gang members.

         Concerning the December 3, 2014 incident at ISCC, Plaintiff claims that, as a former Norteño gang member, he was specifically “green-lighted”. See Pl.'s Brief ISO MSJ 2 (Dkt. 53-1) (describing “green-lighting” as being “targeted . . . by a gang you were once of member of, [where] the assaults would continue until you were physically incapacitated or dead.”). Though claiming that his involvement in the December 3, 2014 fight was limited to self-defense, Plaintiff was issued a Disciplinary Offense Report (“DOR”) for fighting. See Pl.'s Obj. to MSJ 9 (Dkt. 29-2). That DOR was ultimately dismissed on December 22, 2014 and, after informing Defendant Randy Blades (Warden at ISCC) of the events leading up to the December 3, 2014 attack, Plaintiff was transferred to ISCI - ostensibly for his own safety and protection. See id.; see also Exs. C, D to Obj. to MSJ (Dkt. 29-3).

         However, despite the December 3, 2014 incident alongside his claimed warnings about being returned to ISCC, Plaintiff was transferred back to ISCC on August 28, 2015 where he was promptly involved in another incident with Norteño gang members - this time, Plaintiff admits that he initiated the fight and was issued a DOR, explaining during oral argument that he “had to fight” in the sense of self-preservation. See Compl. 2 (Dkt. 3); see also Ex. A to Am. Compl. (Dkt. 43-1) (December 10, 2015 “Offender Concern Form” from Plaintiff to Warden Blades, stating: “Sir on 12/3/14 I as jumped there at ISCC. After speaking to you about this situation you had me moved to ISCI for my protection. On 8/28/15 I was sent back to ISCC from ISCI and got into a fight and broke my hand. Sir it is clear my civil rights have been violated - the IDOC staff has done nothing to prevent this from happening . . . .”).

         Representing himself, Plaintiff brought this action on January 26, 2016, asserting Eighth Amendment failure-to-protect claims against Defendants Kevin Kempf (IDOC Director), Warden Blades, Davina Lau (ISCI Transfer Coordinator), Jay Christensen (Deputy Warden at ISCC), and ISCC Investigators Bongiovi and Maes. See generally Compl. On April 7, 2016, the Court reviewed Plaintiff's Complaint pursuant to 28 U.S.C. § 1915 and 1915A and allowed Plaintiff to proceed on Eighth Amendment failure-to protect claims based on the two incidents as well as injunctive relief. See 4/7/16 IRO 6-7 (Dkt. 8) (“Plaintiff's Complaint, liberally construed, appears to state colorable Eighth Amendment claims against Defendants Blades, Lau, Christensen, Bongiovi, and Maes for damages and injunctive relief. Plaintiff has sufficiently alleged that he informed each of these Defendants that he was in danger of attack at ISCC, but that none of them acted to protect him. Plaintiff may also proceed on a claim for injunctive relief against Defendant Kempf, who - as the Director of the IDOC - appears to have direct responsibility for the conditions of confinement at Idaho prisons. However, because the Complaint does not allege that Defendant Kempf (1) was aware of the danger to Plaintiff at ISCC prior to his transfer to ISCC, (2) personally participated in the decision to transfer Plaintiff, or (3) is subject to personal liability as a supervisor, Plaintiff has not stated a plausible claim for monetary damages against Kempf in his individual capacity.”) (internal citations omitted). On June 23, 2016, Defendants moved for summary judgment, arguing that Plaintiff's claims should be dismissed for failure to exhaust his administrative remedies. See generally Defs.' Mem. ISO MSJ (Dkt. 16-1). While that motion was pending, on October 26, 2016, Plaintiff moved to amend his Complaint, again raising failure-to-protect claims relating to the above-referenced December 2014 and August 2015 incidents, in addition to a third altercation at the Idaho Maximum Security Institution (“IMSI”) on April 27, 2016. See Pl.'s Mot. to Am. (Dkt. 26); see also Prop. Am. Compl. (Dkt. 26-1). Even though IMSI is a different prison from ISCC (where Plaintiff was previously attacked), Plaintiff claims that a Norteño gang member - who should have been placed in administrative segregation - was instead moved from ISCC to IMSI and placed on the same housing tier as Plaintiff where he attacked Plaintiff on April 27, 2016. See id. at 5.

         On March 16, 2017, the Court agreed with Defendants and granted their Motion for Summary Judgment, determining that “Plaintiff did not properly exhaust available administrative remedies as to his claims arising from the December 2014 and August 2015 attacks.” 3/16/17 MDO 13-14 (Dkt. 42); see also id. at 15 (additionally concluding that, even if Plaintiff properly grieved issue of April 27, 2016 attack, it “cannot serve to exhaust his claims arising from the December 2014 and August 2015 attacks”). The Court also granted Plaintiff's Motion to Amend, at least insofar as adding the April 27, 2016 attack as the support for his legal claims. See id. at 5 (“Amendment with respect to Plaintiff's claims arising from the first two attacks, in December 2014 and August 2015, is futile because . . . Plaintiff did not exhaust available administrative remedies as to those claims. Therefore, Plaintiff's Motion to Amend will be denied in part. The Motion will be granted with respect to Plaintiff's claim based on the April 2016 incident, as Defendants do not oppose amendment for that purpose.”). Thus, Plaintiff's failure-to-protect claims have evolved to relate only to the April 27, 2016 attack at IMSI.

         On October 26, 2017, Defendants moved for summary judgment on Plaintiff's claim that Defendants failed to protect Plaintiff from attack on April 27, 2016 in violation of his Eighth Amendment rights. Specifically, Defendants argue that (1) the named Defendants must be dismissed because there are no allegations they had any role in the events leading up to the April 27, 2016 attack (none of them even work at IMSI);[1] (2) the official capacity claims against Director Kempf must be dismissed because (a) Plaintiff was permitted to proceed only on injunctive relief claims against Director Kempf, and (b) Plaintiff has not sought any injunctive relief from this Court; and (3) Plaintiff failed to take affirmative steps to reduce his risk of harm by alerting facility officials of the harm he believed he was facing and requesting protective custody. See Defs.' Mem. ISO MSJ 2-3.

         Plaintiff rejects these arguments and, on November 9, 2017, moved for summary judgment himself. See Pl.'s MSJ (Dkt. 53). Plaintiff submits that “Defendants knew of the serious risk and harm to [him] at the hands of ex-gang members and after being informed through multiple avenues showed ‘deliberate indifference' by placing [him] in non-secure housing in close proximity to ex-gang members, where he was assaulted on numerous occasions.” Pl.'s Mem. ISO MSJ 1-2 (Dkt. 53-1).[2]


         A. Legal Standards

         1. Cross-Motions for Summary Judgment

         Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). One of the principal purposes of summary judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is “not a disfavored procedural shortcut, ” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact - a fact “that may affect the outcome of the case.” Id. at 248.

         The evidence must be viewed in the light most favorable to the non-moving party, and the court must not make credibility findings. See id. at 255. Direct testimony of the non-movant must be believed, however implausible. See Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). However, the Court is not required to adopt unreasonable inferences from circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

         When parties submit cross-motions for summary judgment, the Court must consider each party's evidence, regardless under which motion the evidence is issued. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011); see also Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001) (“[W]hen simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material identified, and submitted in support of both motions, and in opposition to both motions, before ruling on each of them.”). The Court must independently search the record for factual disputes. See Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001). The filing of cross-motions for summary judgment - where both parties essentially assert that there are no material factual disputes - does not vitiate the Court's responsibility to determine whether disputes as to material fact are present. See id.

         The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the non-moving party's case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9thCir. 2000). This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. See Devereaux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show “by [his] own affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324. Where reasonable minds could differ on the material facts at issue, summary judgment should not be granted. See Anderson, 477 U.S. at 251.

         2. Failure to Protect and Deliberate Indifference

         “Section 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 [Section] 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 Section 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. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).

         Relevant here, Plaintiff alleges an Eighth Amendment violation based on a failure to prevent harm. The Eighth Amendment's proscription against cruel and unusual punishment requires prison officials to protect inmates from violent attacks by other inmates. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). But not every injury “suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety.” Id. at 834. To establish a legally-sufficient failure-to-protect claim, “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm” and that the prison official acted with “deliberate indifference” to that harm (the inmate's health or safety). Id.

         A prison official acts with deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety” - that is, “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.” Id. at 837. A prisoner alleging an Eighth Amendment violation need not show that prison officials believed that harm would actually occur; “it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. A prison official's knowledge of the risk “can be proven through circumstantial evidence, such as by showing that the risk was so obvious that the official must have known about it.” Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004). A prison official, however, may avoid liability if he ‚Äúresponded reasonably to the ...

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