1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLTON DEWAYNE FIELDS, No. 2: 18-cv-0653 MCE KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DIRECTOR OF CDCR, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court are defendants’ summary judgment motion and 20 supplemental summary judgment motion. (ECF Nos. 50, 62.) For the reasons stated herein, the 21 undersigned recommends that defendants’ motions be granted. 22 II. Legal Standard for Summary Judgment 23 Summary judgment is appropriate when it is demonstrated that the standard set forth in 24 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the 25 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 26 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 27 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis 28 for its motion, and identifying those portions of “the pleadings, 1 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate 2 the absence of a genuine issue of material fact. 3 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 4 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need 5 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 6 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 7 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory 8 committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial 9 burden of production may rely on a showing that a party who does have the trial burden cannot 10 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 11 should be entered, after adequate time for discovery and upon motion, against a party who fails to 12 make a showing sufficient to establish the existence of an element essential to that party’s case, 13 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. 14 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 15 necessarily renders all other facts immaterial.” Id. at 323. 16 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 17 the opposing party to establish that a genuine issue as to any material fact actually exists. See 18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 19 establish the existence of such a factual dispute, the opposing party may not rely upon the 20 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the 21 form of affidavits, and/or admissible discovery material in support of its contention that such a 22 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 23 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 24 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 25 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 26 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 27 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 28 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1 1564, 1575 (9th Cir. 1990). 2 In the endeavor to establish the existence of a factual dispute, the opposing party need not 3 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 4 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 5 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce 6 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 7 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 8 amendments). 9 In resolving a summary judgment motion, the court examines the pleadings, depositions, 10 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 11 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 12 255. All reasonable inferences that may be drawn from the facts placed before the court must be 13 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Central Costa 14 County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). Nevertheless, inferences are not 15 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from 16 which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 17 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a 18 genuine issue, the opposing party “must do more than simply show that there is some 19 metaphysical doubt as to the material facts. . . . Where the record taken as a whole could 20 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 21 trial.’” Matsushita, 475 U.S. at 586 (citation omitted). 22 By contemporaneous notice provided on December 2, 2020 (ECF No. 47), plaintiff was 23 advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal 24 Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); 25 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 26 //// 27 //// 28 //// 1 III. Plaintiff’s Claims 2 Clarification of Plaintiff’s Claims 3 On September 5, 2019, the undersigned recommended that this action be dismissed. (ECF 4 No. 24.) In particular, the undersigned recommended that claim II raised in the second amended 5 complaint, challenging a policy of mixing general population and sensitive needs yard inmates, be 6 dismissed for failure to exhaust administrative remedies. (Id.) 7 The undersigned also recommended that claim I raised in the second amended complaint 8 be dismissed for failure to state a potentially colorable claim. (Id.) In particular, the undersigned 9 found that plaintiff had not pled sufficient facts in support of his claim that defendants violated 10 the Eighth Amendment by denying his request for single-cell status despite his history of in-cell 11 violence. (Id.) Additionally, the undersigned found that plaintiff had not pled sufficient facts in 12 support of his claim that his mental health problems warranted single-cell status. (Id.) 13 On October 15, 2019, the Honorable Morrison C. England adopted the September 5, 2019 14 findings and recommendations. (ECF No. 26.) 15 On April 9, 2020, the Ninth Circuit Court of Appeals affirmed in part and reversed in part 16 the court’s judgment. (ECF No. 33.) The Ninth Circuit affirmed the dismissal of Count II for 17 failure to exhaust administrative remedies. The Ninth Circuit reversed the dismissal of claim I for 18 failure to state a claim for the reasons stated herein: 19 The district court dismissed Field’s Eighth Amendment failure-to- protect claim in Count I for failure to state a claim. However, Fields’ 20 alleged defendants had been notified via grievances of unsafe conditions, he had been attacked in his cell on numerous occasions, 21 and defendants had refused his request for a single cell. Liberally construed, these allegations were “sufficient to warrant ordering 22 [defendants] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 23 2010) (explaining that “where the petitioner is pro se, particularly in civil rights cases, [courts should] construe the pleadings liberally and 24 …afford the petitioner the benefit of any doubt” (citation and internal quotation marks omitted); Hearns v. Terhune, 413 F.3d 1036, 1040 25 (9th Cir. 2005) (elements of a failure-to-protect claim). We reverse the judgment as to this claim and remand for further proceedings on 26 this claim only. 27 (Id.) 28 On July 19, 2021, defendants filed a summary judgment motion addressing plaintiff’s 1 claim that defendants violated the Eighth Amendment by denying his request for single-cell status 2 despite his history of in-cell violence. (ECF No. 50.) 3 On October 7, 2021, the undersigned issued an order observing that the Ninth Circuit’s 4 April 9, 2020 order did not specifically address the court’s dismissal of plaintiff’s claim alleging 5 that defendants failed to consider his mental health when denying his request for single-cell 6 status. (ECF No. 59.) In an abundance of caution, the undersigned granted defendants thirty days 7 to file a supplemental summary judgment motion addressing this claim. (Id.) 8 On November 15, 2021, defendants filed a supplemental summary judgment motion 9 addressing plaintiff’s claim that defendants failed to consider his mental health when denying his 10 request for single-cell status. (ECF No. 62.) 11 Allegations in Second Amended Complaint 12 As discussed above, this action proceeds on claim I raised in the second amended 13 complaint against the following defendants: former California Department of Corrections and 14 Rehabilitation (“CDCR”) Secretary Kernan, Warden Sexton and Matta.1 (ECF No. 21.) 15 Plaintiff alleges that defendants Sexton and Matta wrongly denied his grievances 16 requesting single-cell status while he was housed at California State Prison-Corcoran 17 (“Corcoran”). (Id. at 3.) Plaintiff alleges that he notified defendants in his grievances that he had 18 been attacked in his cell “numerous times …cell fights and batteries.” (Id.) Plaintiff alleges that 19 defendants denied his request for single-cell status despite CDCR policy mandating that single- 20 cell status be granted when mental health and in-cell violence show that double-celling is no 21 longer safe. (Id.) Plaintiff alleges that he had two additional cell fights after defendants denied 22 his grievance. (Id.) 23 Plaintiff alleges that defendant Kernan supervises defendants Sexton and Matta. (Id. at 2.) 24 Plaintiff alleges that all defendants, including defendant Kernan, enacted a policy of placing 25 cellmates together regardless of compatibility. (Id. at 9.) 26 //// 27

28 1 Defendant Sexton is deceased. 1 IV. Summary Judgment Motion (ECF No. 50) 2 As discussed above, defendants’ summary judgment motion addresses plaintiff’s claim 3 that defendants violated the Eighth Amendment by denying plaintiff’s grievance requesting 4 single-cell status despite plaintiff’s history of in-cell violence. 5 A. Undisputed Facts 6 Plaintiff disputes some of defendants’ undisputed facts. Accordingly, the undersigned 7 herein sets forth only those facts that are undisputed by both parties. 8 Undisputed Facts 9 Undisputed Fact No. 1: At all relevant times, plaintiff was a prisoner in custody of the 10 CDCR. (ECF No. 57 at 1.) 11 Undisputed Fact No. 2: On September 21, 2016, plaintiff arrived at Corcoran after being 12 transferred from Kern Valley State Prison (“Kern Valley”). Plaintiff was housed at Corcoran 13 from September 21, 2016, to August 18, 2017. Plaintiff did not receive a Rules Violation Report 14 (“RVR”) involving violence with a cellmate while he was housed at Corcoran. (ECF No. 57 at 1- 15 2; ECF No. 54 at 10.) 16 Undisputed Fact No. 3: On January 25, 2017, plaintiff submitted appeal log. No. CSPC- 17 3-17-0019, requesting that he be granted single-cell status at Corcoran. (ECF No. 57 at 2; ECF 18 No. 54 at 10.) 19 Undisputed Fact No. 4: Plaintiff’s appeal regarding single cell status was denied at the 20 first, second and third levels of review because the ICC at Corcoran found that plaintiff did not 21 meet the criteria for single-cell status. Plaintiff’s appeal was denied at the first level of review on 22 February 27, 2017, then denied at the second level of review on April 12, 2017. (ECF No. 57 at 23 2; ECF No. 54 at 10.) 24 Undisputed Fact No. 5: Sometime after November 16, 2016, plaintiff was categorized as 25 needing EOP level of care. EOP stands for Enhanced Out Patient and is part of CDCR’s Mental 26 Health Delivery System. An EOP designation does not automatically qualify an inmate for 27 //// 28 //// 1 single-cell status.2 (ECF No. 57 at 2; ECF No. 54 at 10.) 2 Undisputed Fact No. 6: Inmate housing determinations, including single-cell status, are 3 determined by an ICC. The ICC is a committee within the prison that reviews the inmate’s case 4 factors within the prison setting to determine the best program and housing units available for that 5 inmate. The ICC meets with the inmate and considers all available information concerning the 6 inmate, including prior disciplinary action, incidents of in-cell violence, classification scores and 7 security level. The ICC also considers the inmate’s view on his program, housing status, and any 8 other matters affecting the inmate within the prison system. The ICC will then make a 9 determination as to what it believes is the best program and housing status best suited for the 10 inmate.3 (ECF No. 57 at 2; ECF No. 54 at 11.) 11 Undisputed Fact No. 7: When an inmate is transferred to a new institution within CDCR, 12 prison staff at the new institution hold classification committees to determine housing placement 13 and programming based on the above procedures.4 (ECF No. 57 at 2; ECF No. 54 at 11.) 14 Undisputed Fact No. 8: Plaintiff was seen by an ICC when he was transferred to 15 California State Prison, Sacramento. (ECF No. 57 at 2; ECF No. 54 at 11.) 16 Undisputed Fact No. 9: Before transferring to Corcoran, an ICC at Kern Valley was held 17 on September 1, 2016. The ICC recognized that plaintiff had a pending Rules Violation Report 18 (RVR) dated August 28, 2016, for battery on an inmate. The ICC also noted that plaintiff had no 19 2 In response to undisputed fact no. 5, plaintiff contends that inmate mental health is a factor that 20 is now considered when making housing determinations. (ECF No. 54 at 10-11.) However, plaintiff does not dispute that an EOP designation does not automatically qualify an inmate for 21 single-cell status. In undisputed fact no. 5, citing defendant Matta’s declaration, defendants also state that 22 plaintiff did not have any custody-related factors that would prelude him from double-cell 23 housing. (ECF No. 57 at 2.) The term “custody-related factors” is unclear and not defined in defendant Matta’s declaration. 24 3 In his response to defendants’ undisputed fact no. 6, plaintiff claims that the ICC did not 25 consider the factors set forth above when considering whether plaintiff qualified for single-cell status. (ECF No. 54 at 11.) However, plaintiff does not dispute the description of the ICC’s 26 duties set forth in undisputed fact no. 6. 27 4 In his response to defendants’ undisputed fact no. 7, plaintiff “denies that the prison generally 28 adheres to these rules…” (ECF No. 54 at 11.) 1 other RVR for battery on an inmate within the previous 12 months, and that plaintiff had no 2 significant history of in-cell predatory or assaultive behavior toward inmates. Based on a review 3 of plaintiff’s case factors, the Kern Valley ICC elected to continue plaintiff on double-cell status 4 with a compatible inmate, and recommended that plaintiff transfer to Corcoran.5 (ECF No. 57 at 5 3; ECF No. 54 at 12.) 6 Undisputed Fact No. 10: After being transferred from Kern Valley, an ICC at Corcoran 7 was held on October 4, 2016. The ICC reviewed plaintiff’s case factors and found that plaintiff 8 did not have significant in-cell predatory or assaultive behavior toward inmates. The ICC 9 considered the following history of plaintiff’s in-cell violence: a pending RVR for the August 28, 10 2016, battery on a prisoner, a September 18, 2015, RVR for fighting, and a March 9, 2013, RVR 11 for battery on an inmate—each of which occurred before plaintiff was housed at Corcoran. Based 12 on an evaluation of plaintiff’s case factors, the ICC cleared plaintiff for double-cell housing.6 13 (ECF No. 57 at 3.) 14 Undisputed Fact No. 11: A second ICC was held at Corcoran on February 22, 2017. The 15 ICC noted that plaintiff was placed into an administrative segregation unit (ASU) on February 11, 16 2017, after receiving a RVR for battery on a peace officer. The ICC further noted that plaintiff 17 had not engaged in any in-cell altercations with inmates since the incident at Kern Valley on 18 August 28, 2016. Based on an evaluation of plaintiff’s case factors, the ICC cleared plaintiff for 19 double-cell housing.7 (ECF No. 57 at 3; ECF No. 54 at 12.) 20 Undisputed Fact No. 12: A third ICC was held at Corcoran on May 9, 2017. The ICC 21 elected to continue plaintiff on double-cell housing with a compatible inmate, noting that plaintiff 22 met departmental criteria to be double celled and had no significant history of in-cell predatory or 23 5 In his response to defendants’ undisputed fact no. 9, plaintiff contends that the KVSP ICC 24 wrongly found that he qualified for double cell status because “one battery is sufficient to warrant action according to the law.” (ECF No. 54 at 11.) 25

6 Plaintiff’s response to defendants’ statement of undisputed facts does not address defendants’ 26 undisputed fact no. 10. 27 7 In his response to defendants’ undisputed fact no. 11, plaintiff points out that he had no 28 cellmate while housed in the ASU. (ECF No. 54 at 12.) 1 assaultive behavior toward inmates.8 (ECF No. 57 at 3; ECF No. 54 at 13.) 2 Undisputed Fact No. 13: A fourth ICC was held at Corcoran on August 8, 2017. The ICC 3 again elected to continue plaintiff on double-cell housing with a compatible inmate, noting that 4 plaintiff met the departmental criteria to be double celled and had no significant history of in-cell 5 predatory or assaultive behavior toward inmates.9 (ECF No. 57 at 3-4; ECF No. 54 at 13.) 6 Undisputed Fact No. 14: Defendant Matta reviewed plaintiff’s administrative grievance 7 concerning single cell status at the first level of review. Defendant Matta was not a member of 8 the ICC that assisted in plaintiff’s classification and housing determination. (ECF No. 57 at 4; 9 ECF No. 54 at 13.) 10 Undisputed Fact No. 15: Defendant Sexton’s signature is on the second level response to 11 plaintiff’s grievance. (ECF No. 57 at 4; ECF No. 54 at 14.) 12 Undisputed Fact No. 16: Defendant Kernan was not involved in the custody-level 13 decision to retain plaintiff on double-cell status, and he was not involved in plaintiff’s inmate 14 appeal concerning single-cell status.10 (ECF No. 57 at 4.) 15 Undisputed Fact No. 17: Plaintiff did not seek medical treatment related to in-cell 16 incidents that occurred after being transferred away from Corcoran.11 (ECF No. 57 at 4.) 17 8 In his response to defendants’ undisputed fact no. 12, plaintiff disputes the finding by the May 18 9, 2017 ICC that he had no significant history of in-cell predatory or assaultive behavior toward 19 inmates. (ECF No. 54 at 13.) Plaintiff cites his “documented battery on inmate and cell fights.” (Id.) The undersigned observes that undisputed fact no. 12 describes the findings of the May 9, 20 2017 ICC.

21 9 In his response to defendants’ undisputed fact no. 13, plaintiff disputes the finding by the August 8, 2017 ICC that he had no significant history of in-cell predatory or assaultive behavior 22 toward inmates. (ECF No. 54 at 13.) Plaintiff cites “the documented cell violence.” (Id.) The 23 undersigned observes that undisputed fact no. 13 describes the findings of the August 8, 2017

ICC.

24 10 In his response, plaintiff disputes defendants’ undisputed fact no. 16. (ECF No. 54 at 14.) 25 Plaintiff argues that defendant Kernan “set in place” a series of unconstitutional policies which led to the alleged deprivations. (Id.) However, plaintiff does not dispute that defendant Kernan 26 was not involved in the custody level decision to retain plaintiff on double-cell status or plaintiff’s 27 appeal concerning single-cell status.

28 11 Plaintiff does not address defendants’ undisputed fact no. 17. 1 B. Relevant Documentary Evidence

2 The undersigned herein sets forth the contents of plaintiff’s relevant grievances,

3 defendants’ responses to these grievances and the ICC chronos discussed in the grievances.

4 In the grievance submitted on January 25, 2017, plaintiff wrote, “I have documented cell 5 fights, battery, etc. I’m E.O.P. diagnosed with mental health issues that make me vulnerable…” 6 (ECF No. 50-4 at 8.) Plaintiff also wrote that his history of in-cell violence and the nature of his 7 commitment offense should be considered. (Id. at 10.) Plaintiff wrote that he had a “domestic 8 violence child enhancement” which put him in “violent situations with men who have wives, 9 10 children.” (Id.) Plaintiff requested single-cell status. (Id. at 8.) 11 On February 27, 2017, defendant Matta issued a first level response to plaintiff’s 12 grievance. (Id. at 21-22.) Defendant Matta upheld the decision of the February 22, 2017 ICC 13 finding that plaintiff met the criteria for double cell status: 14 15 The California State Prison-Corcoran (CSP-COR) Administrative Segregation Institution Classification Committee (ICC) reviewed 16 your case on February 22, 2017. Your cell status was reviewed and it was determined you meet the criteria for double cell status. As 17 noted in the Strategic Offender Management System (SOMS) Classification Committee Chrono dated February 22, 2017; you have 18 prior in-cell assaultive behavior toward cellmates. Additionally, it is noted you were cleared for double cell status per ICC action dated 19 September 1, 2016 and the February 22, 2017 ICC elected to continue your double cell status with a compatible inmate. Although 20 it is considered, your conviction for Penal Code 273.5(e)(1)-Corporal Injury Spouse Within 7 Years of Prior/Specified Conviction does not 21 preclude you from double cell housing. 22 (Id. at 22.) 23 In his second level grievance plaintiff wrote, “I am dissatisfied with the first level 24 response. I’m EOP and being celled with other EOP inmates causes clashing of symptoms. Also 25 no privacy is degrading.” (Id. at 9.) 26 On April 12, 2017, defendant Sexton denied plaintiff’s second level grievance. (Id. at 12- 27 13.) Defendant Sexton described the problem addressed in the grievance as follows: 28 You contend you have documented cell fights and a battery. You 1 contend you are a participant in the Enhanced Outpatient Program (EOP) and have mental health issues which make you vulnerable. 2 You contend the Department Operations Manual (DOM) Chapter 5, Article 46, addressed the proper housing of inmates to ensure the 3 safety and security of the institution. You contend that California Code of Regulations (CCR), Title 15, section 3377.1(c), states the 4 history of in cell violence should be considered. You further contend you have a domestic violence child endangerment offense which puts 5 you in violent situations with men who have wives and children. 6 (Id. at 12.) 7 Defendant Sexton denied plaintiff’s request for single-cell status and upheld the decision 8 of the February 22, 2017, finding plaintiff eligible for double-cell status: 9 California State Prison (CSP), Corcoran’s (COR) Institutional 10 Classification Committee (ICC) reviewed your case on February 22, 2017 for an Initial Administrative Segregation Unit (ASU) review. 11 ICC elected to continue you on double cell status per Classification Committee Chrono dated February 22, 2017, which states in part, 12 “ICC dated 9/1/16 elected to continue S on double cell. S has remained double cell without further documented in-cell incidents. 13 Therefore this ICC elects to continue S on D/C with compatible inmate with safety concerns. S meets departmental D/C policy, 14 noting S has no significant history of in-cell predatory/assaultive behavior towards cellmates.” Your in-cell history was also 15 reviewed: “S has the following history of in-cell assaultive behavior towards cellmates: RVR dated 3/9/13 for Battery on an Inmate; RVR 16 dated 9/18/15 for Fighting and RVR dates 8/28/16 for Battery on a Prisoner.” You do not have any custody related factors which would 17 preclude you from double cell housing. The department expectation is that all inmates double cell pursuant to CCR, Title 15, Section 18 3269, which states, in part, “Inmates shall accept Inmate Housing Assignments (IHAs) as directed by staff. It is the expectation that all 19 inmates double cell…If staff determines an inmate is suitable for double celling, based on the criteria as set forth in this section, the 20 inmate shall accept the housing assignment or be subject to disciplinary action for refusing…” The department also considers 21 the mental health staff recommendations regarding cell status, pursuant to CCR, Title 15, Section 3269(f), which states, in part, “In 22 cases where single cell status is recommended by clinical staff due to mental health or medical concerns, a classification committee 23 shall make the final determination of an inmate’s cell assignment. The classification committee shall consider the clinical 24 recommendations made by the evaluating clinician with assistance from the clinician who participates in the committee and review the 25 inmate’s case factors when determining the housing assignment. Single cell status based upon clinical recommendation is usually a 26 temporary short-term measure and must be periodically reviewed…” Therefore, your placement on single cell status is not 27 warranted. 28 Pursuant to CCR, Title 15, 3377.1(c) and DOM section 54046.1, a 1 classification committee has reviewed your custody and elected not to affix an “S” suffix based on documented evidence you may be 2 safety housed in a double cell situation. 3 (Id. at 12-13 (emphasis in original).) 4 The September 1, 2016, ICC decision finding plaintiff suitable for double-cell status 5 found, 6 CELL REVIEW: S has one act of in-cell violence noting pending 7 RVR dated 8/28/16 for Battery on an Inmate. Committee elects to place S on D/C with a compatible cellmate with safety concerns. S 8 meets departmental D/C policy, noting S has no significant history of in-cell predatory/assaultive behavior towards cellmates. 9 (Id. at 39.) 10 The September 1, 2016 decision states that plaintiff has no other RVR for battery on an 11 inmate within the last twelve months. (Id.) The September 1, 2016, ICC decision noted 12 plaintiff’s conviction for corporal injury on a spouse. (Id.) 13 The September 1, 2016, ICC decision also includes a section titled “Clinician Review.” 14 (Id.) This section states, 15 S is a participant in the MHSCS. S’s Activities of Daily Living 16 (ADL) are adequate. S’s interactions with staff appear to be appropriate. S’s placement in alternative levels of care in the Mental 17 Health Services Delivery System was considered and is not recommended. Per S’s assigned clinician, S’s mental health is 18 unlikely to decompensate while retained in ASU. Present as a member of the ICC was Dr. Ward. 19 (Id.) 20 The September 1, 2016, ICC decision also includes a section addressing medical and 21 mental health status: 22 MEDICAL/MENTAL HEALTH STATUS: S’s medical status has 23 been reviewed and S has no housing restrictions. S is Full Duty/High Risk per CDC 128C-3 dated 5/25/16. Per CDC 128C-2 dated 24 2/20/13, S is designated as NCF.

25 (Id.) 26 The October 4, 2016, ICC decision finding plaintiff suitable for double-cell status states, 27 CELL STATUS REVIEW: Committee has reviewed “S” housing status and determined “S” does not have significant in- 28 cell/predatory/assaultive behavior towards inmates. “S” has the 1 following history of in-cell violence: 8/28/16 “Battery on a Prisoner” (pending), 9/8/2015 “Fighting”, 3/9/2013 “Battery on an Inmate.” 2 Committee elects to continue double cell status.

3 (Id. at 44.) 4 The October 4, 2016, ICC decision also noted plaintiff’s conviction for corporal injury on 5 a spouse. (Id.) The October 4, 2016, ICC decision also has a section titled “Clinician Review.” 6 (Id.) This section states, “’S’ is a participant in the MHSDS at the EOP level of care per CDCR 7 128MH dated 9/13/2016. D. Minter PHD, present during hearing.” (Id.) 8 The February 22, 2017, ICC decision states finding petitioner suitable for double-cell 9 status states, 10 CELL REVIEW: S has the following history of in-cell assaultive behavior towards cellmates: RVR dated 3/9/13 for Battery on an 11 Inmate, RVR dated 9/18/15 for Fighting and RVR dated 8/28/16for Battery on a Prisoner. ICC dated 9/1/16 elected to continue S on 12 double cell. S has remained double cell without further documented in-cell incidents. Therefore this ICC elects to continue S on D/C with 13 compatible inmate with safety concerns. S meets departmental D/C policy, noting S has no significant history of in-cell 14 predatory/assaultive behavior towards cellmates. 15 (Id. at 48.) 16 The February 22, 2017, ICC decision also states that plaintiff was initially placed in 17 administrative segregation on February 11, 2017, for battery on a peace officer. (Id.) The 18 February 22, 2017, ICC decision also has a section titled “Clinician Comments.” (Id.) This 19 section states, 20 S is a participant in the MDSDS at the EOP level of care. Based on an interview with S and review of the C-File; S’s Activities of Daily 21 Living (ADL) are adequate. S’s interactions with staff appear to be appropriate. S’s placement in alternative levels of care in the Mental 22 Health Delivery System was considered and is not recommended. Per’s S’s assigned clinician, S’s mental health is unlikely to 23 decompensate while retained in ASU. Present as a member of ICC was Dr. Gonzales. 24 25 (Id.) 26 The undersigned observes that defendants presented evidence that after plaintiff’s transfer 27 to Corcoran on September 21, 2016, plaintiff was held in the ASU from February 11, 2017, until 28 his transfer away from Corcoran on August 18, 2017. (Id. at 34.) In his opposition, plaintiff 1 contends that he was in a single-cell while housed in the Corcoran ASU. (ECF No. 54 at 12.) 2 C. Are Defendants Linked to the Alleged Deprivations? 3 Defendants move for summary judgment on the grounds that they are not adequately 4 linked to the alleged deprivations. 5 Defendants Matta and Sexton 6 It is undisputed that defendant Matta and Sexton’s involvement was limited to their 7 review of plaintiff’s administrative appeals at the first and second levels, respectively. 8 Defendants move for summary judgment as to these defendants on the grounds that they were not 9 positioned to make a determination on or grant plaintiff’s request for single-cell status because 10 they did not participate in any ICC regarding plaintiff’s housing status. 11 An official whose only involvement in an inmate’s constitutional claim was as a 12 participant in the administrative grievance process generally is not subject to liability under 13 § 1983. For example, an appeals coordinator cannot cause or contribute to a completed 14 constitutional violation that occurred in the past and that is not remediable by any action the 15 reviewer might take. See, e.g., George v. Smith, 507 F.3d 605, 609–10 (7th Cir. 2007) (“A guard 16 who stands and watches while another guard beats a prisoner violates the Constitution; a guard 17 who rejects an administrative complaint about a completed act of misconduct does not.”). 18 If, however, the defendant (1) knew of an ongoing constitutional violation, (2) “had the 19 authority and opportunity to prevent” that violation, yet (3) failed to act to remedy the violation, 20 then the defendant may be liable under § 1983. See Herrera v. Hall, 2010 WL 2791586, at *4 21 (E.D. Cal. July 14, 2010) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). 22 In the summary judgment motion, defendants argue that they “were never in a position to 23 make a determination on or grant plaintiff’s request for single-cell status because they did not 24 participate in any ICC hearing.” (ECF No. 50-1 at 11.) While defendants may not have been on 25 the ICC’s considering plaintiff’s housing status, they reviewed plaintiff’s grievances challenging 26 the ICC decision finding plaintiff eligible for double-cell status. Defendants’ ability to review the 27 ICC decisions indicates that they had some authority to address plaintiff’s claim that the ICC 28 incorrectly found him ineligible for single-cell status. Accordingly, defendants’ motion for 1 summary judgment on the grounds that defendants Matta and Sexton had no personal 2 participation in the incidents complained of should be denied. 3 Plaintiff also claims that defendants Matta and Sexton enacted or authorized a policy 4 permitting prison officials to double-cell inmates with histories of cell violence. However, 5 plaintiff provides no evidence in support of this conclusory allegation. Plaintiff’s own experience 6 of allegedly being housed with incompatible cellmates is not evidence of the CDCR-wide policy 7 alleged. Accordingly, defendants Matta and Sexton should be granted summary judgment to this 8 claim. 9 Defendant Kernan 10 Defendants argue that plaintiff failed to link defendant Kernan to the alleged deprivations. 11 Under § 1983, liability may not be imposed on supervisory personnel for the actions or 12 omissions of their subordinates under the theory of respondeat superior. Ashcroft v. Iqbal, 556 13 U.S. 662, 677 (2009). “A supervisor may be liable only if (1) he or she is personally involved in 14 the constitutional deprivation, or (2) there is ‘a sufficient causal connection between the 15 supervisor’s wrongful conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 16 967, 977 (9th Cir. 2013) (citations omitted). “Under the latter theory, supervisory liability exists 17 even without overt personal participation in the offensive act if supervisory officials implemented 18 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 19 moving force of a constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 20 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted). 21 In the second amended complaint, plaintiff identifies defendant Kernan as the Secretary of 22 CDCR. (ECF No. 21 at 2.) Plaintiff alleges that his grievances notified supervisors acting on 23 defendant Kernan’s behalf that plaintiff had been attacked in his cell several times. (Id. at 3.) 24 Plaintiff alleges that defendant Kernan supervises defendants Matta and Sexton. (Id. at 6.) 25 Plaintiff also alleges that defendant Kernan is liable because he created a policy or custom 26 permitting inmates to be celled together despite incompatibility. (Id. at 9.) 27 In the summary judgment motion, defendants argue that plaintiff presents no facts 28 showing that defendant Kernan personally participated in the alleged deprivations. In the 1 opposition, plaintiff argues that defendant Kernan was notified by way of plaintiff’s appeal that 2 plaintiff was in an unsafe condition. Plaintiff also argues that defendant Kernan implemented a 3 policy that permitted double-celling of inmates with a history of cell violence. Plaintiff argues 4 that as the CDCR Secretary, defendant Kernan had to know that CDCR was not addressing cell 5 violence. 6 To the extent plaintiff bases defendant Kernan’s liability on a theory of respondeat 7 superior, defendant Kernan is entitled to summary judgment. The undersigned also rejects 8 plaintiff’s argument that defendant Kernan knew of the unsafe conditions plaintiff faced through 9 plaintiff’s grievances. Defendant Kernan did not sign plaintiff’s first or second level grievance, 10 as discussed above. The third level grievance is also not signed by defendant Kernan. (ECF No. 11 50-4 at 32.) There is no evidence that defendant Kernan had knowledge of plaintiff’s grievances. 12 While plaintiff claims that defendant Kernan enacted or authorized a policy permitting 13 prison officials to double-cell inmates with histories of cell violence, plaintiff provides no 14 evidence in support of this conclusory allegation. Plaintiff’s own experience of allegedly being 15 housed with incompatible cellmates is not evidence of the CDCR-wide policy alleged. 16 Accordingly, for the reasons discussed above, the undersigned recommends that defendant 17 Kernan be granted summary judgment on the grounds that plaintiff has not presented sufficient 18 evidence linking him to the alleged deprivations. 19 D. Did Defendants Act with Deliberate Indifference to a Serious Risk to Plaintiff’s 20 Safety? 21 At the outset, the undersigned clarifies plaintiff’s Eighth Amendment claim. As discussed 22 above, plaintiff alleges that defendants violated the Eighth Amendment by denying his grievances 23 requesting single-cell status despite plaintiff’s history of in-cell violence. In the second amended 24 complaint, plaintiff alleges that he notified defendants in his grievances that he had been 25 “attacked in his cell numerous times, cell fights and batteries.” (ECF No. 21 at 3.) 26 Legal Standard for Eighth Amendment Failure-to-Protect Claim 27 “[P]rison officials have a duty … to protect prisoners from violence at the hands of other 28 prisoners.” Farmer, 511 U.S. at 833. To establish a failure to protect claim, the prisoner must 1 establish that prison officials were deliberately indifferent to a sufficiently serious threat to the 2 prisoner’s safety. Id. at 837. “‘Deliberate indifference’ has both subjective and objective 3 components.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). The prisoner 4 must show that “the official [knew] of and disregard[ed] an excessive risk to inmate...safety; the 5 official must both be aware of facts from which the inference could be drawn that a substantial 6 risk of serious harm exists, and [the official] must also draw the inference.” Farmer, 511 U.S. at 7 837. “Liability may follow only if a prison official ‘knows that inmates face a substantial risk of 8 serious harm and disregards that risk by failing to take reasonable measures to abate it.’” 9 Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 847). 10 Discussion—Did Defendants Act with Deliberate Indifference? 11 Defendants argue that they did not act with deliberate indifference when denying 12 plaintiff’s grievances because it is undisputed that they were not subjectively aware of any known 13 risk of harm to plaintiff at the time they denied his grievances. Defendants also argue that they 14 could not have been aware of the in-cell incidents that occurred at CSP-Sac after plaintiff was 15 transferred away from Corcoran. 16 To put defendants’ denial of plaintiff’s grievances in context, the undersigned herein sets 17 forth the relevant regulation addressing the standards for granting single-cell status to inmates 18 who have been victimized in-cell by another inmate and for inmates who are the instigators of in- 19 cell abuse, i.e., California Code of Regulations Title 15, § 3269(d). The ICC decisions referred to 20 this regulation when they found that plaintiff did not have a significant history of in-cell violence, 21 although they did not specifically cite this regulation: 22 (d) Single cell status shall be considered for those inmates who demonstrate a history of in-cell abuse, significant in-cell violence 23 towards a cell partner, verification of predatory behavior towards a cell partner, or who have been victimized in-cell by another inmate. 24 Staff shall consider the inmate's pattern of behavior, not just an isolated incident. An act of mutual combat in itself does not warrant 25 single cell status. The following factors must be considered when evaluating single cell status, noting these factors are not exclusive of 26 other considerations: 27 (1) Predatory behavior is characterized by aggressive, repeated attempts to physically or sexually abuse another inmate. 28 1 (2) Documented and verified instances of being a victim of in-cell physical or sexual abuse by another inmate. 2

3 Cal. Code Regs. Tit. 15, § 3269(d). 4 The undersigned herein considers whether the information defendants reviewed when they 5 denied plaintiff’s grievances demonstrated that plaintiff faced a substantial risk of harm from 6 other inmates if not granted single-cell status. 7 The undersigned first observes that in denying plaintiff’s grievances defendants could not 8 have considered the two fights plaintiff referred to in his second amended complaint because they 9 occurred after plaintiff transferred away from Corcoran. These fights occurred on May 18, 2018, 10 and July 18, 2018. (ECF No. 21 at 15, 17.) On these dates, plaintiff was housed at California 11 State Prison-Sacramento. (ECF No. 50-4 at 34.) 12 The responses to plaintiff’s grievances demonstrate that defendants reviewed plaintiff’s 13 grievance and the February 22, 2017, ICC decision when denying his grievances. (ECF No. 50-5 14 at 11-12, 21-22). In his response to plaintiff’s grievance, defendant Matta also states that he 15 considered information from his interview with plaintiff. (ECF No. 50-5 at 21-22.) In his 16 declaration, defendant Matta states that during the interview, he asked plaintiff to further explain 17 the issue and to provide any additional supporting evidence, documents or witnesses. (ECF No. 18 50-4 at 5-6.) Defendant Matta states that plaintiff provided no additional information. (Id.) In 19 his unverified opposition, plaintiff denies that defendant Matta interviewed him. (ECF No. 54 at 20 13.) 21 Accordingly, the undersigned herein considers whether plaintiff’s grievances and/or the 22 February 22, 2017, ICC decision contained information demonstrating that plaintiff faced a 23 substantial risk of harm from other inmates if he did not receive single-cell status. Because 24 plaintiff failed to adequately oppose defendants’ evidence regarding his interview with defendant 25 Matta, the undersigned also considers defendants’ evidence that plaintiff provided no additional 26 information during the interview. 27 Plaintiff’s grievances did not refer to any risk or threats from specific inmates. In his 28 1 grievance, as discussed above, plaintiff wrote, “I have documented cell fights, battery, etc. I’m 2 EOP diagnosed with mental health issues that make me vulnerable…” (ECF No. 50-4 at 8.) In 3 his grievance, plaintiff did not inform defendants that he had been attacked in his cell numerous 4 times following his transfer to Corcoran. Instead, it appears that plaintiff referred to the three 5 incidents of in-cell violence discussed in the ICC reports. In addition, during the interview with 6 defendant Matta, plaintiff did not claim that he had incidents of in-cell violence following his 7 transfer to Corcoran. For these reasons, the undersigned finds that plaintiff’s grievance did not 8 demonstrate that plaintiff faced a serious risk of harm from other inmates if he did not receive 9 single-cell status. 10 As discussed above, the February 22, 2017, ICC decision noted plaintiff’s history of three 11 incidents of in-cell violence: March 9, 2013 RVR for battery on an inmate, September 18, 2015 12 RVR for fighting, and the August 28, 2016 RVR for battery on a prisoner. (ECF No. 50-4 at 48.) 13 The February 22, 2017, ICC found plaintiff eligible for double-cell status because he had no 14 “significant history of in-cell predatory/assaultive behavior toward other inmates.” (Id.) The 15 February 22, 2017, ICC also found that plaintiff had remained double celled without further 16 documented in-cell incidents. (Id.) 17 While the February 22, 2017, ICC decision acknowledged plaintiff’s three prior incidents 18 of in-cell violence, it did not find that they involved “significant in-cell violence toward a cell 19 partner,” which could have qualified plaintiff for single-cell status. Cal. Code Regs. tit. 15, 20 § 3269(d). Plaintiff does not contend that these prior incidents involved “significant in-cell 21 violence” and nor has he presented evidence supporting such a claim. Most importantly, the 22 record contains no evidence suggesting that the ICC should have found that these prior incidents 23 involved “significant in-cell violence toward a cell partner” and that defendants knew of this 24 error. 25 The February 22, 2017, ICC also did not find that plaintiff was the victim of any of the 26 prior incidents of in-cell violence, which also may have qualified plaintiff for single-cell status. 27 Cal. Code Regs. tit. 15, § 3269(d). The February 22, 2017, ICC also did not find that plaintiff 28 engaged in predatory behavior during the prior incidents of in-cell violence, which also may have 1 qualified plaintiff for single-cell status. Cal. Code Regs. tit. 15, § 3269(d). Plaintiff presented no 2 evidence demonstrating that the ICC should have found that he was the victim or that he engaged 3 in predatory behavior during the prior incidents and that defendants knew of this error. 4 The February 22, 2017, ICC decision found that plaintiff did not have a “significant 5 history” of in-cell predatory/assaultive behavior toward cellmates warranting single-cell status. 6 This finding was apparently based on the fact that plaintiff’s three prior incidents of in-cell 7 violence occurred over a 3 ½ year period of time. In addition, these three prior incidents 8 apparently did not involve “significant in-cell violence toward a cell partner” or “predatory” 9 behavior. Plaintiff also had no incidents of in-cell violence following his transfer to Corcoran in 10 September 2016. The undersigned finds that, based on these circumstances reflected in the 11 February 22, 2017, ICC decision, plaintiff’s three prior incidents of in-cell violence did not 12 demonstrate that plaintiff faced a substantial risk of harm from other inmates were he not granted 13 single-cell status. This finding is supported by the February 22, 2017, ICCs finding that plaintiff 14 would continue to be housed with a compatible inmate. (ECF No. 50-4 at 48.) 15 For the reasons discussed above, the undersigned finds that defendants did not act with 16 deliberate indifference when they denied plaintiff’s grievances requesting single-cell status. The 17 information defendants reviewed when evaluating plaintiff’s grievances, i.e., plaintiff’s 18 grievances, the interview with defendant Matta and the February 22, 2017, ICC decision, 19 contained no information demonstrating that plaintiff faced a substantial risk of harm from other 20 inmates were he not granted single-cell status. Accordingly, defendants should be granted 21 summary judgment on these grounds. See Villery v. California Department of Corrections, 2020 22 WL 7651976, at *3 (E.D. Cal. Feb. 25, 2020) (“[H]ousing determinations for prisoners in the 23 CDCR are complex decisions peculiarly within the province of expert prison officials involving a 24 multitude of factors).12

25 12 Although not specifically raised by plaintiff in the second amended complaint, plaintiff argued in his grievance that his conviction for “domestic violence child enhancement” justified single- 26 cell status because it put him in violent situations with men who have wives and children. 27 Defendants considered plaintiff’s conviction when denying plaintiff’s grievance. Defendant Sexton found that, “Although it is considered, your conviction for Penal Code 273.5(e)(1)- 28 Corporal Injury Spouse Within 7 Years of Prior/Specified Conviction does not preclude you from 1 In an abundance of caution, the undersigned also finds that to the extent defendants 2 reviewed the ICC decisions from September 1, 2016, and October 4, 2016, these decisions 3 contained no information demonstrating that plaintiff faced a substantial risk of harm from other 4 inmates if he did not receive single-cell status. The information in the September 1, 2016, and 5 October 4, 2016, ICC decisions is very similar to the information in the February 22, 2017, ICC 6 decision. 7 E. Discussion—Did Plaintiff Face a Substantial Risk of Serious Harm? 8 Defendants move for summary judgment on the objective prong of plaintiff’s Eighth 9 Amendment claim. Defendants contend that throughout the entirety of plaintiff’s time at 10 Corcoran, plaintiff did not experience any incidents of violence with other inmates. Defendants 11 also observe that plaintiff’s grievances did not refer to any risk or threats from specific inmates. 12 Defendants also argue that each time plaintiff’s case factors were reviewed to determine his 13 housing status, the ICC found that plaintiff had no significant history of in-cell predatory or 14 assaultive behavior toward inmates. Defendants also argue that the two cell fights plaintiff refers 15 to in his second amended complaint occurred at a different institution after plaintiff transferred 16 away from Corcoran. 17 Because the undersigned finds that defendants should be granted summary judgment on 18 the subjective prong of plaintiff’s Eighth Amendment claim, the undersigned need not consider 19 whether defendants are entitled to summary judgment as to the objective prong of plaintiff’s 20 Eighth Amendment claim. 21 F. Did Plaintiff Suffer a Compensable Injury? 22 Defendants move for summary judgment on the grounds that plaintiff suffered no 23 compensable injury. (ECF No. 50-1 at 16.) Because defendants are entitled to summary 24 judgment based on the merits of plaintiff’s Eighth Amendment claim, the undesigned need not 25 reach this issue.13 26 double cell housing.” Defendants did not fail to consider plaintiff’s conviction when denying his 27 request for single-cell status and the record contain no evidence that plaintiff’s incidents of in-cell violence were related to his conviction. 28 13 The undersigned observes that plaintiff was placed in the Corcoran ASU on February 11, 2017, 1 G. Qualified Immunity 2 Defendants argue that they are entitled to qualified immunity. 3 A qualified immunity analysis requires determining: (1) whether facts alleged, taken in the 4 light most favorable to the injured party, show the defendants’ conduct violated a constitutional 5 right; and (2) whether the right was clearly established. Lacey v. Maricopa Cnty., 693 F.3d 896, 6 915 (9th Cir. 2012) (en banc) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part 7 on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009)). With respect to the second 8 prong, a court considers whether the contours of the right were sufficiently clear at the time the 9 action occurred such that a “reasonable official would understand that what he is doing violates 10 that right.” Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994). In the absence of “a case 11 directly on point,” the court may compare relevant “specific factors” to determine whether a 12 reasonable officer would have known that the conduct in question was unlawful. Isayeva v. 13 Sacramento Sheriff's Dep’t, 872 F.3d 938, 947 (9th Cir. 2017). 14 Because the undersigned finds that defendants are entitled to summary judgment based on 15 the merits of plaintiff’s Eighth Amendment claim, the undersigned need not address the issue of 16 qualified immunity any further. 17 H. Plaintiff’s Request for Further Discovery 18 In his opposition, plaintiff contends that additional discovery is necessary to oppose 19 summary judgment. (ECF No. 54 at 3.) 20 Federal Rule of Civil Procedure 56(d) “provides a device for litigants to avoid summary 21 judgment when they have not had sufficient time to develop affirmative evidence.” United States 22 v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). Under Rule 56(d), if the 23

24 after being charged with Battery on a Peace Officer. (ECF No. 50-4 at 8.) Plaintiff was single- celled while housed in the Corcoran ASU from February 11, 2017, until his transfer away from 25 Corcoran on August 18, 2017. (See ECF Nos. 50-4 at 34; 54 at 12.) The February 22, 2017, ICC report states that on February 22, 2017, the ICC approved a 180-day ASU extension to complete 26 the disciplinary process for battery on a peace officer. (ECF No. 50-4 at 49.) Based on this 27 extension, plaintiff remained single-celled in the ASU until his transfer away from Corcoran. Therefore, defendants’ denial of plaintiff’s request for single-cell status appears to have had no 28 practical effect on his housing status at Corcoran. 1 nonmoving party “shows by affidavit or declaration that, for specified reasons, it cannot present 2 facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; 3 (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other 4 appropriate order.” Fed. R. Civ. P. 56(d). 5 In order to prevail under Rule 56(d), the party opposing summary judgment must make 6 “‘(a) a timely application which (b) specifically identifies (c) relevant information, (d) where 7 there is some basis for believing that the information sought actually exists.’” Emp’rs Teamsters 8 Local Nos. 175 & 505 Pension Trust Fund v. Clorox, 353 F.3d 1125, 1129 (9th Cir. 2004) 9 (quoting VISA Int'l Serv. Ass'n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 10 1986)). 11 In the opposition, plaintiff does not identify the discovery he allegedly needs in order to 12 oppose defendants’ summary judgment motion. The undersigned also observes that plaintiff had 13 an opportunity to conduct discovery in this case. (ECF No. 47 (discovery and scheduling order).) 14 Accordingly, plaintiff’s motion to defer defendants’ summary judgment motion pursuant to Rule 15 56(d) should be denied. 16 V. Supplemental Summary Judgment Motion (ECF No. 62) 17 As discussed above, defendants’ supplemental summary judgment motion addresses 18 plaintiff’s claim that defendants violated the Eighth Amendment by failing to consider his mental 19 health needs when denying his request for single-cell status made in plaintiff’s grievances. 20 A. Legal Standard 21 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 22 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 23 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 24 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 25 indifference requires plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 26 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and 27 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately 28 indifferent.” Jett, 439 F.3d at 1096. 1 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 2 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. at 3 837. “Deliberate indifference is a high legal standard,” Toguchi v. Chung, 391 F.3d 1051, 1060 4 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to respond to a 5 prisoner’s pain or possible medical need” and the indifference caused harm. Jett, 439 F.3d at 6 1096. 7 B. Undisputed Facts 8 Undisputed Fact No. 1: Inmate who require mental health services are placed into 9 different levels of care, depending on the urgency of those needs. (ECF No. 62-1 at 1; 10 ECF No. 65 at 6.) 11 12 Undisputed Fact No. 2: Inmates placed into the Enhanced Outpatient Program (EOP), 13 for example, require a higher level of care than those inmates in the Correctional 14 Clinical Case Management System (CCCMS). (ECF No. 62-1 at 1; ECF No. 65 at 6.) 15 16 Undisputed Fact No. 3: An EOP placement or status does not qualify an inmate for 17 single-cell status.14 (ECF No. 62-1 at 1.) 18 19 Undisputed Fact No. 4: Only an ICC may determine an inmate’s housing status, 20 including whether an inmate qualifies for a single cell. And a recommendation from 21 mental health staff will rarely result in an inmate being placed on single-cell status.15 22 (ECF No. 62-1 at 2.) 23 24 Undisputed Fact No. 5: During the time plaintiff was housed at Corcoran, plaintiff

25 14 Plaintiff objects that undisputed fact no. 3 is vague. (ECF No. 65 at 6.) This objection is without merit and overruled. 26

27 15 Plaintiff objects that undisputed fact no. 4 is vague. (ECF No. 65 at 6.) This objection is without merit and overruled. 28 1 was a participant in the EOP level of care. ECF No. 62-1 at 2; ECF No. 65 at 7.) 2 3 Undisputed Fact No. 6: The ICC is a committee within the prison that reviews an 4 inmate’s case factors within the prison setting to determine the best program and 5 housing assignments for that inmate. Among several case factors, an inmate’s mental 6 health history is always reviewed and considered by the ICC.16 (ECF No. 62-1 at 2.) 7 8 Undisputed Fact No. 7: A mental health clinician must be present at every ICC at 9 Corcoran. (ECF No. 62-1 at 2; ECF No. 65 at 7.) 10 11 Undisputed Fact No. 8: In cases where single-cell status is recommended by clinical 12 staff due to mental health or medical concerns, an ICC, i.e., custody staff, shall make 13 the final determination of an inmate’s housing or cell placement.17 (ECF No.62-1 at 14 2.) 15 16 Undisputed Fact No. 9: The ICC shall consider the clinician recommendations, with 17 assistance from the clinician who participates in the committee and reviews the 18 inmate’s case factors when determining the housing status. Single-cell status based 19 upon clinician recommendation is usually a temporary, short-term measure and must 20 be periodically reviewed.18 (ECF No. 62-1 at 2.) 21 22 Undisputed Fact No. 10: Based on a review of plaintiff’s mental health records, 23 clinical staff did not recommend single-cell status for plaintiff due to mental health or 24 16 Plaintiff objects that undisputed fact no. 6 is vague. (ECF No. 65 at 7.) This objection is 25 without merit and overruled. 17 Plaintiff objects that undisputed fact no. 8 is vague. (ECF No. 65 at 7.) This objection is 26 without merit and overruled. 27 18 Plaintiff objects that undisputed fact no. 9 is vague. (ECF No. 65 at 7.) This objection is without merit and overruled. 28 1 medical concerns during the time plaintiff was housed at Corcoran.19 (ECF No. 62-1 2 at 2.) 3 4 Undisputed Fact No. 11: Plaintiff arrived at Corcoran after transferring from Kern 5 Valley State Prison (Kern Valley) on September 21, 2016. Plaintiff was housed at 6 Corcoran until August 18, 2017. (ECF No. 62-1 at 2; ECF No. 65 at 7.) 7 8 Undisputed Fact No. 12: After plaintiff was transferred from Kern Valley, an ICC at 9 Corcoran was held on October 4, 2016. Among other factors considered by the ICC, 10 plaintiff’s mental health was reviewed and a clinician, Dr. D. Minter, was present 11 during the ICC.20 (ECF No. 62-1 at 2.) 12 13 Undisputed Fact No. 13: A second ICC was held at Corcoran on February 22, 2017. 14 Among other factors considered by the ICC, plaintiff’s mental health was reviewed 15 and records indicate that a clinician, Dr. Gonzales, was present during the ICC. Dr. 16 Gonzales noted that, based on an interview with plaintiff and a review of his central 17 file, plaintiff’s activities of daily living (ADL) were adequate, his interactions with 18 staff appeared to be appropriate, and plaintiff’s placement in alternative levels of 19 mental health care was not recommended.21 (ECF No. 62-1 at 3.) 20 21 Undisputed Fact No. 14: A third ICC was held at Corcoran on May 9, 2017. Among

22 19 Plaintiff objects that undisputed fact no. 10 is vague. (ECF No. 65 at 7.) This objection is 23 without merit and overruled.

24 20 Plaintiff objects that undisputed fact no. 12 is vague. (ECF No. 65 at 7.) This objection is without merit and overruled. 25

21 Plaintiff denies undisputed fact no. 13 on the grounds that defendants did not produce his 26 mental health records. (ECF No. 65 at 7-8.) The undersigned construes this argument as a 27 request to defer defendants’ summary judgment motion pursuant to Rule 56(d). This request is denied herein. 28 1 other factors considered by the ICC, plaintiff’s mental health was reviewed and 2 records indicate that a clinician, Dr. Wilson, was present during the ICC. Dr. Wilson 3 noted that plaintiff was a participant in the EOP level of care, that his ADL were 4 adequate, his interactions with staff appeared to be appropriate and plaintiff’s 5 placement in alternative levels of mental health care were not recommended.22 (ECF 6 No. 62-1 at 3.) 7 8 Undisputed Fact No. 15: A fourth ICC was held at Corcoran on August 8, 2017. 9 Among other factors considered by the ICC, plaintiff’s mental health was reviewed 10 and records indicate that a clinician, Dr. Nguyen, was present during the ICC. As with 11 the ICC held on May 8, 2017, Dr. Nguyen noted that plaintiff was a participant in the 12 EOP level of care, that his ADL were adequate, his interactions with staff appeared to 13 be appropriate, and plaintiff’s placement in alternative levels of mental health care was 14 not recommended.23 (ECF No. 62-1 at 3.) 15 16 Undisputed Fact No. 16: Each ICC at Corcoran reviewed and considered plaintiff’s 17 mental health history prior to deciding to retain him on double-cell status. (ECF No. 18 62-1 at 4; ECF No. 65 at 8.) 19 C. Discussion 20 Defendants argue that they did not act with deliberate indifference to plaintiff’s mental 21 health because the record shows that plaintiff’s mental health was properly reviewed and 22 considered by each ICC at Corcoran. In support of this argument defendants cite California Code 23 of Regulations title 15, § 3269(f), which provides, 24 In cases where single cells status is recommended by clinical staff due to mental health or medical concerns, a classification committee 25

22 Plaintiff denies undisputed fact no. 14 on the grounds that he does not have his mental health 26 records to examine. (ECF No. 65 at 8.) 27 23 Plaintiff denies undisputed fact no. 15 on the grounds that he does not have his mental health 28 records to examine. (ECF No. 65 at 8.) 1 shall make the final determination of an inmate’s cell assignment. The classification committee shall consider the clinical 2 recommendations made by the evaluating clinician with assistance from the clinician who participates in the committee and review the 3 inmate’s case factors when determining the housing assignment. Single cell status based upon clinical recommendation is usually a 4 temporary short-term measure and must be periodically reviewed, minimally at an inmate’s annual review or more frequently at the 5 inmate’s/clinician’s request. 6 Cal. Code Regs. tit. 15, § 3269(f). 7 Defendants’ evidence demonstrates that at the time plaintiff was housed at Corcoran, he 8 was a participant in the EOP level of care. (ECF No. 62-2 at 2.) EOP placement does not 9 qualify an inmate for single-cell status. (Id.) 10 As discussed above, defendants reviewed the February 22, 2017, ICC report when 11 reviewing plaintiff’s grievance. Defendants contend that the February 22, 2017, ICC reviewed 12 plaintiff’s mental health. The February 22, 2017, ICC report states that plaintiff was a participant 13 in the MHSDS at the EOP level of care. (ECF No. 62-2 at 17.) The report states that plaintiff’s 14 interaction with staff appeared appropriate. (Id.) The report states that plaintiff’s placement in 15 alternative levels of care in the Mental Health Services Delivery System were considered and 16 were not recommended. (Id.) The report states that per plaintiff’s assigned clinician, plaintiff’s 17 mental health was unlikely to decompensate while retained in ad seg. (ECF No. 62-2 at 17.) The 18 report also states that Dr. Gonzales was a member of the ICC. (Id.) The undersigned observes 19 that the February 22, 2017, ICC does not state that a mental health clinician recommended that 20 plaintiff be granted single-cell status. 21 In his opposition, plaintiff argues that the ICC is required to give greater consideration to 22 the mental health of an inmate in the EOP program when considering housing status. (ECF No. 23 65 at 3.) Plaintiff contends that mental health incorrectly failed to make the recommendation for 24 single-cell status. (Id.) Plaintiff argues that Dr. Gonzales did not take plaintiff’s EOP status into 25 full consideration. (Id.) 26 Plaintiff provides no evidence that the ICC is required to give greater consideration to the 27 mental health of inmates in the EOP program. The undersigned also finds that the failure of 28 mental health staff to recommend plaintiff for single-cell status cannot be attributed to 1 defendants. 2 As discussed above, in reviewing plaintiff’s grievance, defendants considered plaintiff’s 3 grievance, the February 22, 2017, ICC decision and plaintiff’s interview with defendant Matta. 4 The undersigned finds that neither plaintiff’s grievance nor the February 22, 2017, ICC decision 5 contained information suggesting that the ICC failed to properly consider plaintiff’s mental health 6 when denying plaintiff’s request for single-cell status. The February 22, 2017, ICC report 7 indicates that the ICC considered plaintiff’s mental health when making its orders and 8 recommendations. Most importantly, the February 22, 2017, ICC report does not state that any 9 mental health staff recommended plaintiff for single-cell status pursuant to § 3269(f). 10 The only statement in plaintiff’s grievance requesting single-cell status concerning 11 plaintiff’s mental health was, “I’m EOP diagnosed with mental health issues that make me 12 vulnerable to these issues…” (ECF No. 50-4 at 8, 10.) As discussed above, EOP status does not 13 qualify an inmate for single-cell status. Plaintiff’s grievance contained no specific information 14 suggesting that the ICC failed to properly consider plaintiff’s mental health. As discussed above, 15 plaintiff provided no information during his interview with defendant Matta regarding the ICC’s 16 alleged failure to consider his mental health. 17 Because the record defendants reviewed when denying plaintiff’s request for single-cell 18 status contained no information suggesting that plaintiff’s mental health warranted single-cell 19 status, defendants did not act with deliberate indifference when they denied plaintiff’s grievance. 20 Accordingly, defendants should be granted summary judgment as to this claim. 21 In an abundance of caution, the undersigned also finds that to the extent defendants 22 reviewed the ICC decisions from September 1, 2016, and October 4, 2016, these decisions 23 contained no information demonstrating that plaintiff’s mental health warranted single-cell status. 24 These ICC decisions reflect that plaintiff’s mental health was considered and that no mental 25 health staff recommended plaintiff for single-cell status. 26 The undersigned observes that in his response to plaintiff’s statement of undisputed facts, 27 plaintiff contends that defendants did not produce his mental health records. (ECF No. 65 at 7-8.) 28 Arguably, plaintiff is requesting a deferral of defendants’ summary judgment pursuant to Rule 1 |} 56(d). 2 While plaintiff claims that defendants did not produce his mental health records, plaintiff 3 || does not allege that he requested these records from defendants. Plaintiff did not file a motion to 4 || compel regarding defendants’ alleged failure to produce these records. Because the record 5 || indicates that plaintiff did not previously pursue a request for his mental health records, plaintiff’s 6 || motion to defer defendants’ summary judgment on these grounds should be denied. Big Lagoon 7 || Rancheria v. California, 789 F.3d 947, 955 (9th Cir. 2015) (en banc) (citation omitted) (a Rule 8 | 56(d) motion may be denied if plaintiff did not “diligently pursue[]” their previous discovery 9 || opportunities). 10 Accordingly, IT IS HEREBY RECOMMENDED that defendants’ summary judgment 11 || motion and supplemental summary judgment motion (ECF Nos. 50, 62) be granted. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court and serve a copy on all parties. Such a document should be captioned 16 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 || objections shall be filed and served within fourteen days after service of the objections. The 18 || parties are advised that failure to file objections within the specified time may waive the right to 19 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 20 | Dated: March 7, 2022 Aectl Aharon 22 KENDALL J. NE Fields653.sj(4) UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 30