United States District Court, D. Arizona
David G. Campbell United States District Judge
Plaintiff Hunter Alan Finkle, who is currently confined in Arizona State Prison Complex (ASPC)-Lewis, brought this civil rights case pursuant to 42 U.S.C. § 1983. Doc. 1. Defendants have filed a motion for summary judgment (Doc. 29), and Plaintiff has not responded, although he was informed of his right and obligation to do so. Also pending before the Court are the following motions: (1) Defendants’ motion for summary disposition (Doc. 36); (2) Plaintiff’s “Motion to Sett[le] Out of Court with Defendants, Protect My Name to Keep Anonymous from Public Eyes” (Doc. 37); and (3) Defendants’ motion to strike Plaintiff’s motion to settle (Doc. 38). For the following reasons, the Court will deny Defendants’ motion for summary disposition, Plaintiff’s motion to settle, and Defendants’ motion to strike. The Court will grant Defendants’ motion for summary judgment and terminate this case.
In his Complaint, Plaintiff alleged that Defendants violated his Eighth Amendment rights by failing to place him in protective custody (“PC”). Plaintiff named as Defendants Arizona Department of Corrections (“ADC”) Director Charles Ryan, ADC Security Administrator Keith Smith, and the following individuals at ASPC-Florence: Warden Hetmer, Deputy Warden Fizer, Lieutenant Evans, Sergeant Brown, Sergeant Norris, Sergeant Parker, and Dr. French.
Plaintiff alleged the following relevant facts. In May or June 2007, while he was incarcerated at the Yavapai County Jail, Plaintiff was questioned by a supervising officer about another inmate, whom Plaintiff alleges bit the head off a bird and spit the head at a sergeant. Doc. 1 at 6, ¶ 4. Plaintiff’s statements to the officer aided in the prosecution of that other inmate on animal cruelty charges. Id. After that, around June or July, Plaintiff’s two cellmates were told by another inmate to assault Plaintiff for “snitching” on the other inmate. Id., ¶ 5. Officers at the jail “realized that the Plaintiff was in further danger after being assaulted due to being a ‘snitch’ and placed the Plaintiff in protective custody.” Id.
Plaintiff was transferred later that year to ADC’s custody. Id. at 6-7, ¶ 6. In June 2008, an inmate threatened to tell the Aryan Brotherhood prison gang that Plaintiff was a “snitch” unless Plaintiff paid the inmate $20 every two weeks. Id. Plaintiff requested PC a week later, but was denied. Id. at 7, ¶ 7. Between 2008 and June 17, 2014, when he filed this lawsuit, Plaintiff requested and went through the PC process ten different times, but was denied PC status each time. See Id. at 7-16.
Plaintiff seeks damages and injunctive relief in the form of an order to Defendants “to cease and protect the Plaintiff . . . from further threats and physical violence.” Id. at 18. On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment claim and directed Defendants Fizer, Norris, Parker, and Smith to answer the Complaint. Doc. 5 at 1. The Court dismissed the remaining claims and Defendants. Id.
Defendants Fizer, Norris, Parker, and Smith now move for summary judgment, arguing that: (1) Plaintiff’s claims for events prior to June 17, 2012 are time barred; (2) Defendants were not deliberately indifferent to Plaintiff’s safety; (3) Plaintiff did not exhaust his administrative remedies against Norris and Parker; and (4) Defendants are entitled to qualified immunity. See Doc. 29 at 9-16.
II. Summary Judgment Standard.
A court must grant summary judgment “if the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968); however, it must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks and citation omitted; emphasis in original); see Fed. R. Civ. P. 56(c)(1).
At summary judgment, the judge’s function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).
III. Motion for Summary Disposition.
In their motion for summary disposition, Defendants ask the Court to summarily grant their pending motion for summary judgment because Plaintiff failed to respond to their motion for summary judgment. See Doc. 36. Defendants rely on Local Rule of Civil Procedure 7.2(i), which provides that the Court may deem a party’s failure to respond to a motion as consent to the granting of the motion. Id. at 2.
In Heinemann v. Satterberg, the Ninth Circuit clarified that a local rule permitting a district court to treat the lack of a response as consent to granting a motion does not apply to summary judgment motions. 731 F.3d 914, 917 (9th Cir. 2013) (finding that Western District of Washington Local Rule 7(b)(2) conflicts with Federal Rule of Civil Procedure 56 and cannot provide a valid basis for granting a motion for summary judgment). If a summary judgment motion is unopposed, Rule 56 “authorizes the court to consider a fact as undisputed, ” but it does not permit the court to grant summary judgment by default. Id. Indeed, under the summary judgment standard, if the moving party fails to meet its initial burden of production, the opposing party need not produce anything. Nissan, 210 F.3d at 1102-03.
The Court must therefore address Defendants’ motion for summary judgment on the merits, and Defendants’ motion for summary disposition will be denied.
IV. Relevant Facts.
A. The Protective Custody Process.
ADC inmates who need protection from other inmates may seek PC under Department Order (“DO”) 805. Doc. 30 at 1, ¶ 1. PC status offers inmates the greatest degree of protection and inmates granted PC status are housed only with other PC inmates. Id. at 2, ¶ 2. An alternative to PC status is “alternate placement, ” where an inmate may be housed in the general population but away from other inmates who may pose a threat. Id., ¶ 3. Such alternate placement may include changes to cell block, bed assignments, or prison unit. Id. An inmate who poses a threat to another inmate is placed on a “Do Not House With” (“DNHW”) list, which is included in the inmate’s computerized Adult Inmate Management System (“AIMS”) file. Id.
An inmate seeking voluntary PC segregation begins the process with a written or verbal request for protection, immediately after which the inmate is isolated in a safe, reasonably secure area. Id., ¶ 4. The Shift Commander is notified and she or he conducts an initial inquiry to determine if the inmate requires PC review. Id. The Shift Commander interviews the inmate using PC Security Initial Interview Form and sends the PC packet to the Deputy Warden for informal review. Id., ¶ 5. The Deputy Warden reviews the information and determines if the inmate could be moved to another general population location to resolve the problem or if the PC process should continue. Id. at 2- 3, ¶ 6. If the PC process continues, the Deputy Warden documents the reasons why and sends the documents to the Corrections Officer (“CO”) IV. Id. The CO IV and the Special Security Unit (“SSU”) then review the case, gather facts, and document the results, which is then forwarded to the Deputy Warden. Id. at 3, ¶ 7. The Deputy Warden reviews the information, documents his findings on the Protective Custody Decision Worksheet, and makes a recommendation which is forwarded to the Protective Custody Administrator (“PCA”). Id., ¶ 8. The PCA or the Protective Custody Committee (“PCC”) reviews the information and makes a final decision on whether a threat to the inmate exists. Id., ¶ 9. The decision is documented if it differs from the Deputy Warden’s recommendation. Id. The Deputy Warden notifies the inmate of the PCA’s or PCC’s decision. Id. at 3-4, ¶ 10. The inmate may appeal the decision by submitting an Inmate Letter, which is sent to the Protective Custody Unit. Id. The Security Operations Administrator reviews the appeal and issues a response, which is final. Id. at 4, ¶ 11.
B. Plaintiff’s PC Requests.
Prior to June 17, 2012, Plaintiff requested PC on July 17, 2008, December 27, 2010, and March 4, 2012. Id., ¶ 12. On each occasion, Plaintiff was placed into the PC process, and each time Plaintiff’s PC request was denied. Id.
Defendants do not provide any details of those three PC requests, but Plaintiff states in his complaint that in June 2008, an inmate named Ty Randell confronted him about being a “snitch” while they were both at the Yavapai County Jail and Randell threatened to tell the head of the Aryan Brotherhood prison gang about Plaintiff being a snitch unless Plaintiff paid him $20 every two weeks. Doc. 1 at 6-7, ¶ 6. A week later, Plaintiff requested PC and went through the ADC’s PC process. Id. at 7, ¶ 7. Plaintiff was denied PC but Randell was added to Plaintiff’s DNHW list. Id. According to Plaintiff, anyone who is known by other inmates to request the PC process under DO 805 is labeled a “snitch” because the requesting inmate must give information to officers; therefore, anyone requesting PC faces the same threat as “snitches.” Id., ¶ 8.
In November 2010, Randell gained access to Plaintiff’s cell block and told all the other inmates that Plaintiff was a snitch and had requested the 805 process, thereby “endangering the Plaintiff further.” Id. at 8, ¶ 10. About a week later, on December 3, Plaintiff gave a letter to Defendants Fizer and Brown stating that he was in danger, was receiving threats, and needed the 805 process. Id. Fizer and Brown said they would put Plaintiff’s letter in the “report box, ” but Plaintiff did not receive a response. Id. On December 15, Plaintiff asked Brown if he would be receiving a response to his letter, but Brown said he was going home in 20 minutes and “it was not his problem.” Id., ¶ 12. On December 24, 2010, Plaintiff was walking to his cell when an inmate named Randolph ran towards Plaintiff “to assault him and they began to fight.” Id. at 9, ¶ 14. Plaintiff says Randolph was aware of Plaintiff’s “issues” because of Randell. Id. According to Plaintiff, Brown failed to follow security protocol for the unit where this occurred, a level 5 maximum security facility, in which two inmates were not to be allowed out of their cells at the same time. Id. at 8, ¶ 13. Plaintiff asked Brown for the 805 process and Brown granted this request. Id. at 9, ¶ 15. Plaintiff was interviewed by SSU J. McCune on January 3, 2011, and Plaintiff explained the issues he was having, beginning with helping prosecute another inmate at the Yavapai County Jail. Id., ¶ 16. Plaintiff was denied PC status on February 17, 2011, and his appeal was denied on March 2, 2011. Id.
At the request of Plaintiff or a family member,  Plaintiff underwent the PC process on June 19, 2012, January 17, 2013, and May 23, 2013. Doc. 30 at 4-6, ¶¶ 13, 20, 27. Each step of the PC process was completed. Id. at 4-7, ¶¶ 14-19, 21-32. At the end of each process, Deputy Warden Fizer recommended alternative placement for Plaintiff and to add inmates to Plaintiff’s DNHW list. Id. at 5-7, ¶¶ 17, 24, 30. The PCA and STG Investigator agreed with Fizer’s recommendations each time, and the PCA approved alternative placement. Id. Plaintiff appealed the decisions in each case, and Defendant Smith denied Plaintiff’s appeals and provided Plaintiff with the reasons for each denial. Id. at 5-7, ¶¶ 18-19, 25-26, 31-32.
Plaintiff does not say in his Complaint why he requested PC placement on June 19, 2012, but in his Protective Segregation Inmate Statement, Plaintiff wrote that he was a confidential informant at the Yavapai County Jail to help build an animal cruelty case against his cellmate and was put in protective segregation there. Doc. 30-2 at 30. Plaintiff said that once he arrived at the prison, another inmate was forcing him to pay him money to keep his mouth shut about Plaintiff “being a rat, ” and that Randell had made everything bad for Plaintiff “with the whit[e] boys.” Id. Following an investigation by SSU, Fizer recommended alternative placement for Plaintiff, and wrote that the SSU contacted the Yavapai County Jail and was told that Plaintiff was placed into protective segregation there because Plaintiff claimed he told on his co-defendant, not because of his statement concerning another inmate’s animal cruelty case. Docs. 30 at 5, ¶ 17; 30-2 at 41. After the PCA approved alternative placement, Plaintiff appealed, and Smith denied Plaintiff’s appeal, writing that Plaintiff’s allegations “are self-reported and unsubstantiated. Appropriate [DNHW] Inmates have been added to your list. You were not threatened. You were not assaulted.” Docs. 30 at 5, ¶ 19; 30-2 at 47.
Plaintiff alleges in his Complaint that he next sought PC on January 17, 2013 after an inmate named “Dirt Bike” told Plaintiff that he could fix Plaintiff’s issues if Plaintiff would assault another inmate. Doc. 1 at 10-11, ¶¶ 19-20. Plaintiff agreed and Dirt Bike gave Plaintiff a six-inch knife to use to stab the other inmate, telling Plaintiff that Plaintiff would be killed if he did not follow through. Id. at 10. Plaintiff did not follow through, and the next day he asked a floor officer for the 805 process. Id. at 11, ¶ 18. Ten minutes later, SSU Nobel came to Plaintiff’s cell and Plaintiff explained the threat against him and told the officer where the letter and knife were located in his cell. Id. Plaintiff was then taken to the yard office where Evans “filled out the 805 process paperwork.” Id. Plaintiff says Fizer was there and told Plaintiff “[t]hanks for doing the right thing.” Id.
After the SSU issued its report, Fizer made the recommendation for alternative placement and to add two inmates to Plaintiff’s DNHW list. Doc. 30 at 6, ¶ 24. Fizer wrote in the Protective Segregation Decision Worksheet that Plaintiff claimed he “has had trouble with the Aryan Brotherhood for some time” and that the other inmate told him this “would square his issue with them.” Id.; Doc. 30-2 at 67. Fizer said that the SSU could not validate Plaintiff’s claim or verify that the inmate named by Plaintiff gave him the weapon or told Plaintiff to perform the assault. Id. In addition to recommending alternative placement, Fizer recommended that inmates who were aware of Plaintiff’s current PC request be put on Plaintiff’s DNHW request. Id. After the PCA approved the alternative placement, Plaintiff appealed, and Smith denied the appeal, writing there was no evidence to support “STG-Related ...