Cook v. Lee

          ORDER

          David G. Campbell Senior United States District Judge.

         Plaintiff Cleveland Yarrow Cook, who is confined in the Arizona State Prison Complex (ASPC)-Lewis, Rast Unit, brought this pro se civil rights action under 42 U.S.C. § 1983 against five Arizona Department of Corrections (ADC) employees-Deputy Warden Crystal Lee, Chief of Security Captain Randy Kaufman, Programs Director Wayne Metzler, Programs Facilitator Robert Charette, and Shift Supervisor Heather Pontious (ADC Defendants)-and three Corizon employees-Dr. Itoro Elijah, Dr. Murray Young, and Nurse Practitioner (NP) Lawrence Ende (Corizon Defendants). (Doc. 1.) Before the Court are two separate Motions for Summary Judgment, one filed by ADC Defendants and one filed by Corizon Defendants. (Docs. 64, 66.) The Court will deny ADC Defendants' Motion and grant Corizon Defendants' Motion.

         I. Background

         Plaintiff's claims arose during his confinement at the ASPC-Lewis, Buckeye Unit. (Doc. 1 at 1.) In Count One of his Complaint, Plaintiff alleged that ADC Defendants failed to protect him from an attack by another prisoner. (Id. at 5.) Plaintiff averred that he immediately informed Pontious and Charette of numerous threats of harm and death threats from this other prisoner. (Id.) Plaintiff alleged that Kaufman and Metzler were notified of the threats to Plaintiff's safety via emails, incident reports, and numerous inmate letters. (Id.) According to Plaintiff, ADC Defendants were deliberately indifferent to the risk of harm to Plaintiff's safety posed by the other prisoner and took no action. (Id. at 5-6, 8.) Thereafter, during an escort to recreation, the other prisoner slipped out of his cuffs and assaulted Plaintiff. (Id. at 6-7.)

         In Count Two, Plaintiff alleged that Corizon Defendants failed to provide adequate medical treatment after the attack. (Id. at 10.) Plaintiff stated that he suffered two lacerations to his right ear, which caused his ear to split into three pieces, and that he suffered queasiness, dizziness, and a constant ringing in his ear. (Id. at 10.) Plaintiff alleged that Corizon Defendants refused to take Plaintiff to the emergency room for treatment or stitches. (Id. at 10-12.) The next morning, Dr. Elijah put 13 stitches in Plaintiff's ear, but she failed to address Plaintiff's dizziness, vomiting, and the ringing in his ear. (Id. at 11.) Plaintiff was seen in medical six days after the attack, at which time a nurse conducted a concussion protocol for the first time. (Id.)

         Upon screening, the Court determined that Plaintiff sufficiently stated an Eighth Amendment failure-to-protect claim in Count One and an Eighth Amendment medical care claim in Count Two. (Doc. 7.)

         ADC Defendants move for summary judgment as to Count One on the grounds that Pontious did not perceive a risk of harm to Plaintiff; Charette acted reasonably to the risk of harm; Lee, Metzler, and Kaufman had no knowledge of the threats against Plaintiff; and Pontious and Charette are entitled to qualified immunity. (Doc. 66.)

         Corizon Defendants move for summary judgment as to Count Two on the grounds that Plaintiff did not have a serious medical need, there is no evidence Corizon Defendants acted with deliberate indifference, and Plaintiff cannot show any harm or injury as a result of Corizon Defendants' conduct. (Doc. 64.)^[1]

         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 then 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, 477 U.S. at 250; 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 Nat'l Bank of Ariz. v. Cities Serv. 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) (internal citation omitted); 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 does not make credibility determinations; it must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 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). Further, where the nonmovant is pro se, the court must consider as evidence in opposition to summary judgment all of the pro se litigant's contentions that are based on personal knowledge and that are set forth in verified pleadings and motions. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); see Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995).

         III. Count One-Failure to Protect

         A. Procedural/Evidentiary Issues

         1. ADC Defendants' Statement of Facts

         Local Rule of Civil Procedure 56.1(a) provides that the summary judgment movant must submit a separate statement of facts that is to “include only those facts that the Court needs to decide the motion. Other undisputed facts (such as those providing background about the action or the parties) may be included in the memorandum of law, but should not be included in the separate statement of facts.” ADC Defendants submitted a separate Statement of Facts that includes 193 paragraphs. (Doc. 67.) These paragraphs are not in any type of chronological order, and they include background facts about the action, the parties, and ADC policies, as well as facts that are not material to deciding the Motion- facts that should not have been included. (See id.) ADC Defendants' failure to comply with Local Rule 56.1(a) made the summary judgment review process arduous. Defense counsel is reminded of her obligation to comply with the Federal and Local Rules of Civil Procedure. See LRCiv 83.1(f)(1)(A).

         2. Plaintiff's Statement of Facts

         Under Local Rule 56.1(b), the party opposing a summary judgment motion must file a separate statement of facts that sets forth, for each of the movant's statements of fact, a correspondingly numbered paragraph indicating whether the nonmovant disputes the statement and a reference to the admissible evidence in the record that supports the nonmovant's position if a statement is disputed. Plaintiff filed a separate Statement of Facts in opposition to Defendants' Statement of Facts, and he addressed all 193 paragraphs and indicated whether each statement was disputed or not. (Doc. 75.) Because most of ADC Defendants' asserted facts are background facts or immaterial, Plaintiff does not dispute the majority of ADC Defendants' statements. (See id.) As to those statements that Plaintiff disputed, he set forth factual statements supporting his position. (See, e.g., id. ¶¶ 19, 52, 130, 148, 154, 174.) But, as ADC Defendants point out, Plaintiff's separate Statement of Facts is not signed under penalty of perjury, nor did Plaintiff submit a declaration in support of his Statement of Facts. (See Doc. 75.) ADC Defendants argue that, pursuant to Soto v. Sweetman, 882 F.3d 865 (9th Cir.2018), Plaintiff's unsworn statements are not competent summary judgment evidence and cannot be considered by the Court. (Doc. 81 at 2.)

         In Soto, the Ninth Circuit held that a prisoner-plaintiff's unsworn statements related to his argument for tolling the statute of limitations were not competent evidence where those statements were not included in the verified complaint and were not set forth in an affidavit. 882 F.3d at 872. Soto specifically noted that the plaintiff knew how to file a sworn affidavit, having submitted two sworn affidavits in response to the defendants' summary judgment motion. Id. at 873. Neither of the affidavits, however, included facts relevant to the grievance process and the tolling argument. Id. The plaintiff instead raised his equitable tolling argument for the first time in his unsworn summary judgment response. The Court further found that even if it considered the unsworn statements in the plaintiff's response as competent evidence, his own conduct during the relevant time undermined his argument that he was entitled to equitable tolling. Id. at 874.^[2]

         Unlike the litigant in Soto, Plaintiff did not set out some of his facts in opposition to summary judgment in affidavits and other facts in his unsworn Statement of Facts. Rather, he presented all of his facts in his Statement of Facts. (See Doc. 74-75.) And Plaintiff's asserted facts all relate to the merits of his underlying failure-to-protect claim because ADC Defendants' Motion is based entirely on the merits-they did not raise any arguments such as statute of limitations or failure to exhaust remedies, which would hinge on facts completely unrelated to those raised in the verified Complaint. (See Doc. 66.) Also, unlike Soto, where the outcome would not have differed even if the plaintiff's unsworn statements were considered as competent evidence, the existence of questions of fact as to some ADC Defendants' liability turns on whether the Court considers Plaintiff's response statements.

         More importantly, Soto did not address and did not overrule Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), which held that in the summary judgment analysis, the district court should have considered unsworn, inadmissible hearsay statements written by the plaintiff in a diary. The Ninth Circuit explained that, at summary judgment, courts “do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents.” Id. at 1036.^[3] Therefore, because the contents of the diary pertained to events within the plaintiff's personal knowledge, and because the diary's contents could be presented in an admissible form at trial-namely, the plaintiff could testify from her personal knowledge-the court could consider the diary contents in the summary judgment analysis. Id. at 1036-37.

         Fraser's holding is consistent with Rule 56, which provides that a party may object to material presented in opposition to summary judgment if that material “cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2); see McAfee v. Metro. Life Inc. Co., 368 Fed.Appx. 771, 772 n.1 (9th Cir. March 1, 2010) (the plaintiff's unsworn letter was admissible under Rule 56 “because it was based on personal knowledge, and the contents could be presented in admissible form at trial”) (citation omitted); Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (“[t]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial . . . ”); Obesity Research Inst., LLC v. Fiber Research Int'l, LLC, 310 F.Supp.3d 1089, 1107 (S.D. Cal. 2018) (same) (collecting cases).^[4] After the 2010 revisions to Rule 56, materials cited to dispute a fact “need only be capable of being presented in a form that would be admissible in evidence.” Mauer v. Indep. Town, 870 F.3d 380, 384 (5th Cir. 2017) (internal quotation omitted). Further, Rule 56 “expressly contemplates that affidavits are only one way to ‘support' a fact; ‘documents . . . declarations, . . . or other materials' are also supportive of facts.” Lee, 859 F.3d at 355 (citing Fed.R.Civ.P. 56(c)(1)(A)).

         ADC Defendants argue that Plaintiff's Statement of Facts is unsworn and not competent evidence, but they fail to assert that Plaintiff could not be presented the facts in a form that would be admissible at trial. (See Doc. 81 at 2-3.) As to most of the facts set forth in his Statement of Facts, Plaintiff clearly has personal knowledge and could present the facts in admissible form by testifying at trial. “To refuse consideration of these statements would elevate form over substance, in disregard of the legally indistinguishable holding of Fraser v. Goodale.” Rosenfeld v. Mastin, No. CV 11-7002-DOC(E), 2013 WL 5705638, at *5 (C.D. Cal. Oct. 15, 2013) (finding that under Fraser and its progeny, the district could should consider unsworn statements in the plaintiff's opposition concerning the force allegedly used on him during his arrest because the plaintiff has personal knowledge of the content of his statements and could present the statements through testimony at trial).

         In sum, because this case is distinguishable from Soto, and absent any argument from ADC Defendants that Plaintiff's facts cannot be presented in an admissible form at trial, the Court will consider Plaintiff's unsworn statements to the extent they are within his personal knowledge and could be presented through testimony at trial.

         B. Relevant Facts

         Where the parties' versions of events differ, the Court takes Plaintiff's facts as true. See Anderson, 477 U.S. at 255.

         Plaintiff was housed in the Rast Unit, a maximum custody unit that houses protective custody prisoners. (Doc. 67 ¶¶ 16, 21, 96 (in part).) Plaintiff had been transferred to the Rast Unit in 2016 and was designated as an “IR 5” prisoner, referring to internal risk level 5, which is the highest level of risk to staff and other prisoners. (Id. ¶ 12, 14, 73.) On February 2, 2017, prisoner Jorge I. Acosta-Alvarez was moved to a single-man cell adjacent to Plaintiff's single-man cell in Pod 5. (Doc. 67 ¶ 16; Doc. 75 ¶ 16.) Acosta was also designated as an IR 5 prisoner. (Doc. 67 ¶ 17.)

         Prisoners in the maximum custody Rast Unit are also designated as Step I, Step II, or Step III prisoners pursuant to a step system that provides progressive opportunities to participate in jobs, programs, and other out-of-cell activities. (Id. ¶ 90.) Based on behavior and programming, prisoners can advance from Step I-the most controlled level-up to the less controlled Step II and Step III levels, which allow more privileges and movement outside of cells without restraints. (Id. ¶¶ 91, 93; Doc. 67-1 at 70.) At the relevant time, Plaintiff was designated as a Step III prisoner, and Acosta was a Step I prisoner. (Doc. 67 ¶¶ 10, 123, 127.)

         As a Step III prisoner, Plaintiff had a job as a Pod porter, which allowed him to move around the Pod to work. (Id. ¶¶ 23, 155.) Due to the amount of radio traffic on a single radio channel, correctional officers sometimes opened the wrong cell doors while Step III porters were working in the Pod. (Id. ¶ 23.)

         About a week after Acosta moved into the cell next to Plaintiff's, he began telling Plaintiff that he was going to stab and kill Plaintiff at the first opportunity. (Doc. 1 at 5.) Plaintiff told Defendants Pontious and Charette each time Acosta made a threat. Acosta made approximately ten such threats. (Id.) Plaintiff also informed Pontious that Acosta had told numerous prisoners, including Plaintiff, that he was going to fight them at recreation, and Plaintiff told Pontious that Acosta made threats involving the use of a weapon. (Doc. 67 ¶ 19; Doc. 75 ¶ 19.) In response, Pontious told Plaintiff that she had alerted her supervisors, had filed an information report, and had sent an email. (Doc. 75 ¶¶ 20, 30, 133.)^[5]

         Charette facilitated a weekly programming class that Plaintiff was required to attend as part of the Step Program, and, around March 17, 2017, during one of these classes, Plaintiff informed Charette that he and other prisoners were being threatened by Acosta. (Doc. 67 ¶ 42; Doc. 75 ¶ 42.) Plaintiff asked Charette to help him move or to get Acosta moved. (Doc. 75 ¶ 43.) ADC does not permit a prisoner to request that another prisoner be moved, and Charette advised Plaintiff of this, but Charette told Plaintiff that he could request that he himself be moved to another pod if he was in fear for his life due to an imminent threat. (Doc. 67 ¶ 46; Doc. 75 ¶ 46.) Plaintiff requested to be moved because he did not want to be assaulted, and stated that he was in fear for his life. (Doc. 75 ¶¶ 47, 52.) Charette told Plaintiff he would contact count movement on Plaintiff's behalf. (Id. ¶ 52.) Charette also advised Plaintiff to speak to security personnel about his issues because they might be able to do something Charette could not, and Plaintiff agreed to do so. (Doc. 67 ¶¶ 48-49; Doc. 75 ¶¶ 48-49.)^[6]

         Meanwhile, Plaintiff sent Defendant Metzler four inmate letters about the threats made by Acosta to Plaintiff. (Doc. 1 at 6.)

         On March 22, 2017, Plaintiff spoke with a Psych Associate, Annette Holland, about Acosta's threats. (Id.) Holland told Plaintiff that she would speak with Defendant Captain Kaufman. (Id.) Later that day, Holland returned and told Plaintiff that she had talked to Kaufman about Plaintiff and Acosta and that Kaufman was receptive. (Id.)^[7]

         Also on March 22, 2017, Plaintiff sent the first of several inmate letters to Defendant Associate Deputy Warden Lee that explained the ongoing threats by Acosta. Plaintiff handed the inmate letter to Pontious. (Doc. 75 ¶ 154.) On this day, Plaintiff was working as a Pod porter, so he collected inmate letters in the Pod and handed all of them directly to Pontious. (Id. ¶ 155.)

         On the morning of April 9, 2017, Officer Tovar entered Pod 5 and announced “Rec, ” meaning that he would be escorting prisoners to recreation. (Doc. 67 ¶ 184 (in part); Doc. 75 ¶ 184.) Step III prisoners get six hours of recreation a week. (Doc. 67-1 at 89.) According to Plaintiff, the six hours are divided among three days a week. (Doc. 75 ¶ 104.) One day a week, there is “priority” Step recreation, where Step III prisoners are escorted to the recreation enclosures unrestrained with other Step III prisoners. (Doc. 67 ¶¶ 23, 25 (in part); Doc 75 ¶ 25, 104.) On the other “non-priority” Step recreation days, all prisoners, regardless of Step level, are escorted to the recreation enclosures together. (Doc. 75 ¶ 105.) On these days, when all Step levels are escorted together, all prisoners are handcuffed during escort to and from the recreation enclosures. (Id. ¶¶ 25, 105; Doc. 67 ¶ 25.) Although Step I and Step III prisoners are escorted to the recreation enclosures together, they are not placed in the enclosures together and do not participate in recreational activities together. (Doc. 67 ¶ 26; Doc. 75 ¶¶ 26, 182.)

         April 9, 2017 was not a Step III priority recreation day for Plaintiff's Pod. Therefore, if Plaintiff wanted to go to recreation that day, his only choice was to go with the Step I prisoners. (Doc. 75 ¶¶ 28, 106, 185.) After Tovar announced “Rec, ” he began searching and cuffing the prisoners for the escort to the recreation enclosures. (Id. ¶ 184.) At the time, Plaintiff used a medically-approved cane, so Tovar applied a belly-chain restraint to him and the three other prisoners going to recreation were handcuffed behind their backs. (Doc. 67 ¶ 187; Doc. 63, Video Seg. 1.) The four prisoners walked in front of Tovar in a single-file line; Plaintiff was the second in line, with Acosta right behind him. (Doc. 67 ¶ 188; Doc. 63, Video Seg. 1.) As soon as the line exited the building, Acosta slipped his left hand out of the handcuffs, drew back his right arm, and swung and punched Plaintiff on the right of his head. (Doc. 63, Video Seg. 1.) Using the metal handcuffs- which were attached to Acosta's right hand-as a weapon, Acosta struck Plaintiff twice in the side of the head. The first blow was to Plaintiff's right ear and the second was to his upper right neck at the base of his skull. (Doc. 1 at 6; Doc. 74 at 7.) Tovar ran after Acosta, pushed him away from Plaintiff, and directed him to stop fighting. (Doc. 67 ¶ 190). Tovar used the microphone at his shoulder to call for assistance. (Id.) Acosta refused to back down and began to walk toward Tovar and Plaintiff. Tovar deployed chemical agents to Acosta's face, after which responding staff arrived and restrained him. (Id. ¶¶ 191-192.) Plaintiff, who suffered two lacerations to his right ear, was escorted to intake to wait for the medical staff. (Id. ¶ 193; Doc. 1 at 5.)

         Following the assault, Plaintiff sought to have criminal charges and an investigation into how the assault was allowed to happen and why staff ignored credible threats and refused to act or move Plaintiff. (Doc. 1 at 6.) Plaintiff submitted inmate letters requesting that the Criminal Investigation Unit investigate the incident, but the Criminal Investigation Unit, shift supervisors, and Captain Kaufman all ignored his requests for an investigation. (Id. at 6-7.)

         C. Legal Standard

         The Eighth Amendment requires prison officials to protect prisoners from violence at the hands of other prisoners because “being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” Farmer v. Brennan, 511 U.S. 825, 833-34 (1994); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009). To prevail on a failure-to-protect claim, a plaintiff must demonstrate facts that satisfy a two-part test: (1) that the alleged deprivation is, objectively, sufficiently serious, and (2) that the official is, subjectively, deliberately indifferent to the inmate's safety. Id. at 834. Thus, there is an objective and subjective component to an actionable Eighth Amendment violation. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002). Under the objective prong, “[w]hat is necessary to show sufficient harm for the purposes of the Cruel and Unusual Punishment Clause depends on the claim at issue.” Hudson v. McMillian, 503 U.S. 1, 8 (1992). For a failure to protect claim, the prisoner must show that he was placed into conditions that posed a substantial risk of serious harm. Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

         The subjective prong requires “more than ordinary lack of due care for the prisoner's interest or safety.” Farmer, 511 U.S. at 835 (quotation omitted). To prove deliberate indifference, a plaintiff must show that the official knew of and disregarded an excessive risk to inmate safety. Id. at 837. To satisfy the knowledge component, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and the official must also draw the inference. Id. The plaintiff need not show that the defendant acted or failed to act believing that harm would actually befall the inmate; “it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. To prove knowledge of the risk, the plaintiff may rely on circumstantial evidence. Id.

         Prison officials who actually knew of a substantial risk to prisoner health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. Id. at 844. Prison officials do not escape liability, however, if the evidence shows that that they “merely refused to verify underlying facts that [they] strongly suspected to be true, or declined to confirm inferences of risk that [they] strongly suspected to exist.” Id. at 843 n.8.

         D. Discussion

         In assessing liability for deliberate indifference, the Court must take an individualized approach and consider the duties and discretion of each defendant, and whether a defendant “was in a position to take steps to avert the [harm], but failed to do so intentionally or with ...