United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
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.
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.)
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.
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.
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.)
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.
Summary Judgment Standard
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.
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).
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).
Count One-Failure to Protect
ADC Defendants' Statement of Facts
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).
Plaintiff's Statement of Facts
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.)
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.
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.
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. 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
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). 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.
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).
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.
the parties' versions of events differ, the Court takes
Plaintiff's facts as true. See Anderson, 477
U.S. at 255.
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.)
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.)
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.)
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.)
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 ¶¶
Plaintiff sent Defendant Metzler four inmate letters about
the threats made by Acosta to Plaintiff. (Doc. 1 at 6.)
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.
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.)
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.)
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.)
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.)
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)).
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.
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.
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 ...