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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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9 TOY TERRELL SMITH, Case No. 1:16-cv-01924-LJO-JDP

10 Plaintiff, FINDINGS AND RECOMMENDATIONS

THAT COURT GRANT DEFENDANTS’

11 v. MOTION FOR SUMMARY JUDGMENT

12 J. TORRES, et al., OBJECTIONS DUE IN 14 DAYS

13 Defendants. ECF No. 69 14 15 Plaintiff Toy Terrell Smith is a state prisoner proceeding without counsel in this civil 16 rights action brought under 42 U.S.C. § 1983. Terrell alleges that defendants J. Torres and 17 M. Hoggard, both correctional counselors at California State Prison Corcoran, were 18 deliberately indifferent to his safety and so violated the Eighth Amendment by recommending 19 that he be returned to Kern Valley State Prison. See ECF No. 10 at 13. On February 15, 2019, 20 Torres and Hoggard moved for summary judgment under Federal Rule of Civil Procedure 56, 21 arguing that the move was not objectively dangerous, that the defendants were not subjectively 22 indifferent to any danger, that Smith cannot establish causation, and that defendants Torres and 23 Hoggard are entitled to qualified immunity. See ECF No. 69-2 at 1-2. Smith filed an 24 opposition on May 13, 2019, and the defendants filed a reply on May 21. See ECF Nos. 73 and 25 74.1 26 1 As required by Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998), defendants gave 27 plaintiff notice of the requirements for opposing a summary judgment motion via an attachment to the motion for summary judgment. See ECF No. 69-1. 1 I recommend granting defendants’ motion for summary judgment. When Smith’s ` 2 allegations are viewed in their most favorable light, they fail to show that the decision to move 3 him to Kern Valley State Prison posed an objective, substantial risk of serious harm. See 4 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (holding that an Eighth Amendment failure to 5 protect claim must allege that there was “objectively” a “substantial risk of serious harm” to 6 which defendant was indifferent). Because Smith’s speculative and general allegations do not 7 satisfy the objective risk requirement, I do not reach defendants’ alternate claimed bases for 8 summary judgment. 9 I. Factual Background 10 In early 2016, Smith was an inmate at Corcoran State Prison. Defendant Torres 11 approached Smith about placement at a different facility. ECF No. 73 at 2. Torres presented 12 Smith with a list of prisons to which he might be transferred, but Smith “informed her that he 13 was not interested in any of them because none of them were mental health care treatment 14 facilities.” Id. Smith also gave Torres a two-page statement intended to inform the committee 15 making the facility assignment. The committee, which included both Smith and Hoggard, 16 recommended based on a variety of factors that Smith be sent to Kern Valley State Prison, 17 where he was previously housed. Smith had been involved in a violent incident and riot at 18 Kern Valley, see generally id. at 21 (“Exhibit B”), and did not want to be returned there. 19 Smith appealed the committee’s decision and met with Hoggard concerning the appeal. Id. at 20 4. Smith’s appeal was unsuccessful. He was transferred back to Kern Valley, where he was 21 attacked. 22 II. Legal Standard 23 Summary judgment is appropriate when there is “no genuine dispute as to any material 24 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 25 factual dispute is genuine if a reasonable trier of fact could find in favor of either party at trial. 26 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The disputed fact is material if 27 it “might affect the outcome of the suit under the governing law.” See id. at 248. 1 The party seeking summary judgment bears the initial burden of demonstrating the ` 2 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 3 (1986). Once the moving party has met its burden, the non-moving party may not rest on the 4 allegations or denials in its pleading, Anderson, 477 U.S. at 248, but “must come forward with 5 ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co., 6 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). 7 In making a summary judgment determination, a court “may not engage in credibility 8 determinations or the weighing of evidence,” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 9 2017) (citation omitted), and it must view the inferences drawn from the underlying facts in the 10 light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 11 655 (1962) (per curiam); Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). 12 As detailed below, defendants have met their burden of showing the absence of a genuine 13 issue of material fact, and Smith has not shown that there is an issue for trial. 14 III. Analysis 15 The Eighth Amendment of the United States Constitution protects prisoners against a 16 prison official’s “deliberate indifference” to “a substantial risk of serious harm.” Farmer, 511 17 U.S. at 828 (1994). “Deliberate indifference” has both an objective and subjective component: 18 there must be an objective risk to inmate safety, and the official in question must also “draw 19 the inference” that the risk exists and disregard it. Id. at 837; see also Clement v. Gomez, 298 20 F.3d 898, 904 (9th Cir. 2002) (describing subjective and objective components). For a risk to 21 be objectively “substantial” it must be more than merely possible, since prisons are, “by 22 definition,” institutions “of involuntary confinement of persons who have a demonstrated 23 proclivity for anti-social criminal, and often violent, conduct.” Hudson v. Palmer, 468 U.S. 24 517, 526 (1984); see also Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (noting that 25 the “known risk of injury must be a strong likelihood, rather than a mere possibility before a 26 guard’s failure to act can constitute deliberate indifference” (internal quotation marks 27 omitted)). For this reason, “speculative and generalized fears of harm at the hands of other 1 prisoners do not rise to a sufficiently substantial risk of serious harm.” Williams v. Wood, 223 ` 2 F. App’x 670, 671 (9th Cir. 2007). 3 Even when viewed in their most favorable light, Smith’s allegations do not show that 4 being moved to Kern Valley created a substantial risk of serious harm. While his statement to 5 the corrections committee mentioned the past riot at Kern Valley, it mentioned no specific 6 threats that would attend to his being housed there in the future. See ECF No. 73 at 19-20; see 7 also Cal. Code Regs., tit. 15 § 3378(b)(2) (“Any offender who claims enemies shall provide 8 sufficient information to positively identify the claimed enemy.”). Smith’s statement also 9 mentioned several other violent encounters at other facilities involving Smith—all of which 10 were mentioned not for the purpose of showing that a move to Kern Valley would be 11 substantially dangerous, but that Smith was repeatedly “set up for harm if not death” by the 12 system more generally, and that all Muslims (like Smith) were mistreated by the California 13 Department of Corrections and Rehabilitation. Id. An incident report on the Kern Valley riot 14 likewise raised no specific and substantial risks that would attend to transferring Smith to a part 15 of the Kern Valley facility where Smith had no documented enemies. See generally id. at 21 16 (“Exhibit B”). Smith’s claims about the move—fears that many prisoners might unfortunately 17 face—are too “speculative and generalized” to amount to a substantial risk of serious harm or 18 preclude summary judgment in defendants’ favor. Williams, 223 F. App’x at 671; see also 19 Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1161 (9th Cir. 2013) (“The record, viewed 20 objectively and subjectively, is insufficient to preclude summary judgment on the claim that 21 . . . officials were deliberately indifferent to a substantial risk that” one prisoner would assault 22 another, since the two prisoners in question “had been in general population together for an 23 extended period with no record of any threats or problems between them.”). While reasonable 24 minds might disagree over the best place to house Smith, a mere difference of opinion does not 25 create a substantial risk. Cf. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). 26 IV. Findings and Recommendations 27 For the foregoing reasons, I recommend that: 1 2. This case be dismissed without prejudice. . 2 These findings and recommendations are submitted to the U.S. district judge presiding 3 | over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 4 | service of the findings and recommendations, the parties may file written objections to the 5 | findings and recommendations with the court and serve a copy on all parties. That document 6 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 7 | presiding district judge will then review the findings and recommendations under 28 U.S.C. 8 | § 636(b)(1)(C). 9 10 T IS SO ORDERED. g : CN prssenn —_ ated: _ August 23, 2019 12 UNI STATES MAGISTRATE JUDGE 13 14 15 | No. 205 16 17 18 19 20 21 22 23 24 25 26 27 28