1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SKYLER R. BROWN, No. 2:20-cv-1734 WBS DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ALLEN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. 18 §1983. Plaintiff alleges defendants violated her Eighth Amendment rights when they failed to 19 protect her from attacks by other inmates. Before the court is defendants’ motion for summary 20 judgment. For the reasons set forth below, this court will recommend defendants’ motion be 21 granted in part and denied in part. 22 BACKGROUND 23 This case is proceeding on plaintiff’s first amended complaint (“FAC”) filed July 8, 2021. 24 (ECF No. 16.) Plaintiff complains of conduct that occurred in August 2019 when she was 25 incarcerated at Mule Creek State Prison (“MCSP”). Plaintiff identifies two defendants, 26 Correctional Officers Allen and Chao. 27 Plaintiff alleges the following. On August 27, 2019, inmate Lindsey attempted to attack 28 plaintiff. Both defendants observed what was happening and were “laughing at the situation as it 1 was happening.” Plaintiff approached the defendants after she had “gotten out of Lindsey’s 2 reach” and told defendants that she believed her “safety was at risk.” Defendant Allen told 3 plaintiff that he did not “see a reason of [plaintiff’s] safety being in jeopardy” as inmate Lindsey 4 had not succeeded in striking plaintiff. Defendant Chao agreed with Allen. 5 Inmate Lindsey returned to the cell he shared with plaintiff while “yelling threats to do 6 [plaintiff] bodily harm.” Defendants Allen and Chao were closer to inmate Lindsey than plaintiff 7 and were watching while this occurred. Plaintiff was later ordered back to her cell by defendants. 8 Plaintiff protested, saying “I can’t! You heard what he said. He’s going to hurt me.” Defendant 9 Chao told plaintiff that because she was not hit by inmate Lindsey, she needed to return to her cell 10 or she would receive a disciplinary write-up. Plaintiff then requested to leave the yard due to 11 safety concerns, but defendant Chao also denied this request as “there was no fight.” 12 The following day, inmate Lindsey and two other inmates attacked plaintiff. Plaintiff was 13 “hospitalized with a concussion, laceration on right ear (5 stitches) and a broken nose bone that 14 had caved in a nasal pathway, resulting in surgery to unobstruct breathing through that nasal 15 path.” Plaintiff seeks damages. 16 On April 6, 2023, defendants filed the present motion for summary judgment. (ECF No. 17 41.) Defendants argue plaintiff failed to exhaust her administrative remedies for her claims 18 against defendant Allen. They further argue that the undisputed facts show plaintiff cannot 19 succeed on her Eighth Amendment claims for failure to protect and that they are entitled to 20 qualified immunity. Plaintiff filed an opposition to defendants’ motion (ECF No. 47) and 21 defendants filed a reply (ECF No. 48). Defendants also filed objections to evidence submitted by 22 plaintiff. (ECF No. 49.) 23 MOTION FOR SUMMARY JUDGMENT 24 I. Summary Judgment Standards under Rule 56 25 Summary judgment is appropriate when the moving party “shows that there is no genuine 26 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 27 Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of 28 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litigation, 627 1 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 2 moving party may accomplish this by “citing to particular parts of materials in the record, 3 including depositions, documents, electronically stored information, affidavits or declarations, 4 stipulations (including those made for purposes of the motion only), admissions, interrogatory 5 answers, or other materials” or by showing that such materials “do not establish the absence or 6 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 7 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). 8 When the non-moving party bears the burden of proof at trial, “the moving party need 9 only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle 10 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.); see also Fed. R. Civ. P. 56(c)(1)(B). 11 Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 12 against a party who fails to make a showing sufficient to establish the existence of an element 13 essential to that party's case, and on which that party will bear the burden of proof at trial. See 14 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the 15 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 16 circumstance, summary judgment should be granted, “so long as whatever is before the district 17 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323. 18 If the moving party meets its initial responsibility, the burden then shifts to the opposing 19 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 20 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 21 existence of this factual dispute, the opposing party typically may not rely upon the allegations or 22 denials of its pleadings but is required to tender evidence of specific facts in the form of 23 affidavits, and/or admissible discovery material, in support of its contention that the dispute 24 exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. However, a complaint that 25 is submitted in substantial compliance with the form prescribed in 28 U.S.C. § 1746 is a “verified 26 complaint” and may serve as an opposing affidavit under Rule 56 as long as its allegations arise 27 from personal knowledge and contain specific facts admissible into evidence. See Jones v. 28 Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1 1995) (accepting the verified complaint as an opposing affidavit because the plaintiff 2 “demonstrated his personal knowledge by citing two specific instances where correctional staff 3 members . . . made statements from which a jury could reasonably infer a retaliatory motive”); 4 McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987); see also El Bey v. Roop, 530 F.3d 5 407, 414 (6th Cir. 2008) (Court reversed the district court’s grant of summary judgment because 6 it “fail[ed] to account for the fact that El Bey signed his complaint under penalty of perjury 7 pursuant to 28 U.S.C. § 1746. His verified complaint therefore carries the same weight as would 8 an affidavit for the purposes of summary judgment.”). The opposing party must demonstrate that 9 the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 10 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury 11 could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 12 242, 248 (1986). 13 To show the existence of a factual dispute, the opposing party need not establish a 14 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 15 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 16 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). 17 Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in 18 order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations 19 omitted). 20 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 21 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 22 party.” Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the 23 opposing party’s obligation to produce a factual predicate from which the inference may be 24 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 25 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 26 party “must do more than simply show that there is some metaphysical doubt as to the material 27 facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 28 //// 1 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 2 omitted). 3 II. Analysis 4 Defendants argue the undisputed facts show that: (1) plaintiff failed to exhaust her 5 administrative remedies with respect to her claim against defendant Allen; (2) defendants were 6 not deliberately indifferent to plaintiff’s safety; and (3) defendants are entitled to qualified 7 immunity. Plaintiff disputes many of defendants’ facts.1 This court finds defendant Allen should 8 be entitled to summary judgment because plaintiff failed to exhaust her administrative remedies 9 for a failure to protect claim against Allen. With respect to defendants’ other arguments, this 10 court finds disputed issues of material fact with respect to plaintiff’s claim that defendants failed 11 to protect her from harm from inmate Lindsey. However, this court finds no competent evidence 12 showing that plaintiff can succeed on a claim that defendants failed to protect her from inmates 13 Jackson and Moore. Defendants should be granted summary judgment on this latter issue and 14 denied summary judgment with respect to plaintiff’s claims that they failed to protect her from 15 defendant Lindsey and on the issue of qualified immunity. 16 A. Exhaustion of Administrative Remedies 17 Defendants argue that plaintiff failed to identify defendant Allen in the grievances she 18 submitted about the events on August 27 and 28, 2019. Therefore, plaintiff failed to exhaust her 19 administrative remedies prior to filing this suit as required by the Prison Litigation Reform Act 20 (“PLRA”). Plaintiff attempts to show that her grievances and challenges to disciplinary write-ups 21 included references to Allen. 22 //// 23 //// 24 ////

25 1 Defendants filed objections to plaintiff’s “evidence” contained in her responses to defendants’ statement of undisputed facts (“DSUF”). (ECF No. 49.) As stated below, because plaintiff did 26 not verify her responses to the DSUF, this court does not consider them as evidence. Therefore, 27 this court does not find it necessary to rule on defendants’ objections individually. To the extent defendants’ objections are relevant, this court has considered them when analyzing the evidence 28 plaintiff presents in her verified FAC and in her sworn deposition testimony. 1 1. Legal Standards 2 a. PLRA Exhaustion Requirement 3 The PLRA mandates that “[n]o action shall be brought with respect to prison conditions 4 under section 1983 . . . or any other Federal law, by a prisoner confined in any jail, prison, or 5 other correctional facility until such administrative remedies as are available are exhausted.” 42 6 U.S.C. § 1997e(a). Compliance with deadlines and other critical prison grievance rules is 7 required to exhaust. Woodford v. Ngo, 548 U.S. 81, 90 (2006) (exhaustion of administrative 8 remedies requires “using all steps that the agency holds out, and doing so properly”). “[T]o 9 properly exhaust administrative remedies prisoners ‘must complete the administrative review 10 process in accordance with the applicable procedural rules,’ - rules that are defined not by the 11 PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) 12 (quoting Woodford, 548 U.S. at 88); see also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 13 2009) (“The California prison system’s requirements ‘define the boundaries of proper 14 exhaustion.’” (quoting Jones, 549 U.S. at 218)). 15 Although “the PLRA’s exhaustion requirement applies to all inmate suits about prison 16 life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), the requirement for exhaustion under the PLRA 17 is not absolute, Albino v. Baca, 747 F.3d 1162, 1172-72 (9th Cir. 2014) (en banc). As explicitly 18 stated in the statute, “[t]he PLRA requires that an inmate exhaust only those administrative 19 remedies ‘as are available.’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (quoting 42 20 U.S.C. § 1997e(a)) (administrative remedies plainly unavailable if grievance was screened out for 21 improper reasons); see also Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (“Remedies 22 that rational inmates cannot be expected to use are not capable of accomplishing their purposes 23 and so are not available.”). “We have recognized that the PLRA therefore does not require 24 exhaustion when circumstances render administrative remedies ‘effectively unavailable.’” Sapp, 25 623 F.3d at 822 (citing Nunez, 591 F.3d at 1226); accord Brown v. Valoff, 422 F.3d 926, 935 26 (9th Cir. 2005) (“The obligation to exhaust ‘available’ remedies persists as long as some remedy 27 remains ‘available.’ Once that is no longer the case, then there are no ‘remedies . . . available,’ 28 and the prisoner need not further pursue the grievance.”). 1 Dismissal of a prisoner civil rights action for failure to exhaust administrative remedies 2 must generally be brought and decided pursuant to a motion for summary judgment under Rule 3 56, Federal Rules of Civil Procedure. Albino, 747 F.3d at 1168. “Nonexhaustion” is “an 4 affirmative defense” and defendants have the burden of “prov[ing] that there was an available 5 administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1171- 6 72. A remedy is “available” where it is “capable of use; at hand.” Williams v. Paramo, 775 F.3d 7 1182, 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1171). Grievance procedures that do not 8 allow for all types of relief sought are still “available” as long as the procedures may afford 9 “some relief.” Booth v. Churner, 532 U.S. 731, 738 (2001). If a defendant meets the initial 10 burden, a plaintiff then must “come forward with evidence showing that there is something in his 11 particular case that made the existing and generally available administrative remedies effectively 12 unavailable to him.” Albino, 747 F.3d at 1172. Remedies are “effectively unavailable” where 13 they are “ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.” Id. 14 (quoting Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). “[T]he ultimate 15 burden of proof,” however, never leaves the defendant. Id. 16 b. California’s Inmate Appeal Process 17 In California, prisoners may appeal “any policy, decision, action, condition, or omission 18 by the department or its staff that the inmate or parolee can demonstrate as having a material 19 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). At 20 the time plaintiff filed his appeals,2 inmates in California proceeded through three levels of appeal 21 to exhaust the appeal process: (1) formal written appeal on a CDCR 602 inmate appeal form; (2) 22 second level appeal to the institution head or designee; and (3) third level appeal to the Director 23 of the California Department of Corrections and Rehabilitation (“CDCR”). Cal. Code Regs. tit. 24 15, § 3084.7. In specific circumstances, the first level review may be bypassed. Id. The third 25

26 2 In 2020, California changed the grievance system from a three-tier system to a two-tier system. That change was effective in June 2020, after plaintiff initiated the relevant appeals in the present 27 case. See Cal. Code Regs. tit. 15, § 3480. All citations to the California code in the text refer to the prior law. It can be found here: https://www.cdcr.ca.gov/regulations/wp- 28 content/uploads/sites/171/2020/04/Master-File-Appeals-Emerg-Regs_ADA.pdf 1 level of review constitutes the decision of the Secretary of the CDCR and exhausts a prisoner’s 2 administrative remedies. See id. § 3084.7(d)(3). However, a cancellation or rejection decision 3 does not exhaust administrative remedies. Id. § 3084.1(b). 4 A California prisoner is required to submit an inmate appeal at the appropriate level and 5 proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 6 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). In submitting a grievance, 7 an inmate is required to “list all staff members involved and shall describe their involvement in 8 the issue.” Cal. Code Regs. tit. 15, § 3084.2(3). “If the inmate or parolee does not have the 9 requested identifying information about the staff member(s), he or she shall provide any other 10 available information that would assist the appeals coordinator in making a reasonable attempt to 11 identify the staff member(s) in question.” Id. Further, the inmate must “state all facts known and 12 available to him/her regarding the issue being appealed at the time,” and they must “describe the 13 specific issue under appeal and the relief requested.” Id. § 3084.2(a)(4). The appeal should not 14 involve multiple issues that do not derive from a single event. Id. § 3084.6(b)(8). 15 An inmate has thirty calendar days to submit their grievance from the occurrence of the 16 event or decision being appealed, or “upon first having knowledge of the action or decision being 17 appealed.” Cal. Code Regs. tit. 15, § 3084.8(b). 18 2. Discussion of Exhaustion 19 Defendants filed a statement of undisputed facts (“DSUF”) as required by Local Rule 20 260(a). (ECF No. 41-1.) Local Rule 260(b) requires a party opposing a motion for summary 21 judgment to specifically address each fact alleged to be undisputed and, for those facts the party 22 disputes, provide a citation to “any pleading, affidavit, deposition, interrogatory answer, 23 admission, or other document relied upon in support of that denial.” E.D. Cal. R. 260(b). 24 Plaintiff largely complied with Rule 260(b). While plaintiff did not file a brief or other 25 documents describing her opposition to defendants’ motion, some of those arguments are 26 contained in her responses to the DSUF. This court has also attempted to discern plaintiff’s 27 //// 28 //// 1 arguments through review of the FAC and plaintiff’s deposition testimony.3 With respect to 2 plaintiff’s assertions of fact in her responses to the DSUF, because she did not verify those 3 responses, this court does not consider her statements therein as evidence. This court looks to 4 plaintiff’s verified FAC, sworn deposition testimony, and documentary evidence as the evidence 5 she has submitted in opposition to defendants’ motion. 6 The material facts regarding the exhaustion issue are not disputed.4 It is not disputed that 7 plaintiff submitted the following three grievances regarding the events of August 27 and 28, 8 2019: 9 a. CDCR Appeal 602 #MCSP-B 19-05226 submitted by plaintiff on 10 December 19, 2019. (Ex. 1 to Decl. of H. Moseley, ECF No. 41-4 at 11 58-84.) Plaintiff complained that her due process rights were violated 12 with respect to Rules Violation Report (“RVR”) #6900411, issued 13 August 27, 2019 for her failure to comply with orders to enter her cell. 14 Both defendants are mentioned in the documentation regarding this 15 grievance. In the decision at the second level of administrative review, 16 it is mentioned that the only witness plaintiff requested for the RVR 17 hearing was defendant Chao. (Id. at 67.) In the document entitled 18 “Disciplinary Hearing Results,” plaintiff’s questioning of Chao is 19 recorded. In response to a question from plaintiff regarding what Chao 20 witnessed between plaintiff and Lindsey, Chao stated that “BROWN 21 and LINDSEY were talking and then BROWN refused to go back to 22 his cell.” When asked by plaintiff what reasons plaintiff had given 23 Chao for refusing to return to her cell, Chao stated: “BROWN s[t]ated 24 that LINDSEY thought BROWN was spreading rumors of his 25 ‘business’ and that he did not want to go back in the cell or get in 26

27 3 Defendants lodged a paper copy of the transcript of plaintiff’s deposition. (See ECF No. 42.) 4 Defendants’ DSUF includes statements about the prison’s grievance procedures. (See DSUF 28 ##1-6.) These procedures are set out in the California Code of Regulations and are not in dispute. 1 trouble. BROWN stated that he just wanted to move into a different 2 cell and this was not a safety concern issue.” (Id. at 72.) It is noted 3 that plaintiff “did not provide questions for Officer Allen at the 4 hearing.” (Id.) It is further noted that plaintiff said, “I wasn’t refusing 5 housing. This is all related to a fight.” (Id.) 6 b. CDCR Appeal 602 #MCSP-B 19-04373 submitted by plaintiff on 7 October 22, 2019. (Ex. 3 to Decl. of H. Moseley, ECF No. 41-4 at 27- 8 57.) Plaintiff complained about the process for the disciplinary hearing 9 on RVR #6896575, written on August 28, 2019 regarding plaintiff’s 10 interaction with inmates Jackson and Moore. Plaintiff mentions a 11 failure to protect in this grievance but only states that CDCR and B 12 yard officers failed to protect her. (Id. at 30, 31.) 13 c. CDCR Appeal 602 #MCSP-B 19-04544 submitted by plaintiff on 14 October 31, 2019. (ECF No. 51-1.) Here, plaintiff complains about 15 RVR #6896572, which was issued for her altercation with Lindsey on 16 August 28. She specifically states that defendant Chao5 failed to 17 protect her after plaintiff told Chao that she could no longer house with 18 inmate Lindsey due to the risk to her safety. (Id. at 8.) Plaintiff further 19 stated that Chao would not allow plaintiff to put Lindsey on her enemy 20 list. (Id. at 10.) Plaintiff does not mention any conduct by defendant 21 Allen. 22 //// 23 //// 24 //// 25 //// 26

27 5 It appears that plaintiff spells defendant’s name as “Chen” or “Chow” in the grievance. Defendants do not dispute that plaintiff is referring to defendant Chao and do not contend that 28 plaintiff failed to exhaust her remedies with respect to her failure to protect claim against Chao. 1 The parties also provide a copy of a document entitled “RVR 2 Supplemental” regarding RVR #6896572.6 (ECF No. 41-3 at 52-53; 3 No. 47 at 25.) The document reflects that Chao responded to the 4 investigating officer’s questions in essentially the same way he had 5 responded to the questions posed by plaintiff that are described above 6 with respect to grievance #19-05266. However, the investigating 7 officer also asked Chao about plaintiff’s and Lindsey’s demeanors. 8 Chao stated that both were “agitated.” (Id.) In addition, the document 9 includes questions the investigating officer posed to other inmates. The 10 only relevant responses were from inmate Contreras who stated the 11 following: He separated plaintiff and Lindsey over “cellie issues.” 12 Plaintiff was “scared” and Lindsey was “upset.” Contreras had plaintiff 13 sit near the podium to protect her from Lindsey. Contreras told 14 defendant Allen that plaintiff and Lindsey “were not getting along.” 15 Contreras advised plaintiff that she should not return to her cell because 16 she and Lindsey were not “getting along.” (Id.) 17 Plaintiff argues that MCSP was on notice that she also had a complaint about defendant 18 Allen for three reasons. First, plaintiff states that she mentioned failure to protect by both 19 defendant Chao and another “B yard officer” in grievance #19-04544. In #19-04544, plaintiff 20 stated: “Brought it to c/o Chen (sic) attention B- Building Officer I could no longer house with 21 I/M Lindsey or safely program with him.” (ECF No. 51-1 at 8.) Plaintiff then goes on to discuss 22 what “he” did. Plaintiff’s reference to “B Building Officer” appears to be further identification of 23 Chao. This interpretation is supported by the fact plaintiff complains of actions by just one 24 6 The original copy of plaintiff’s grievance #19-04544 and the related RVR #6896572 submitted 25 by defendants was incomplete so the court ordered them to submit a complete copy. (See Feb. 2, 2024 Order (ECF No. 50).) In response, they submitted “the complete grievance and disciplinary 26 results.” (ECF No. 51-1 at 2.) However, a copy of this “RVR Supplemental” is not included. 27 Because it is attached to the Declaration of H. Fletes submitted by defendants with their motion for summary judgment (ECF No. 41-3 at 52-53), this court considers it an undisputed part of the 28 proceedings on RVR #6896572. 1 person. Grievance #19-04544 gave MCSP no reason to think plaintiff was accusing a second 2 officer of failure to protect him. Plaintiff does make a reference in #19-04373 to B yard officers. 3 This is plaintiff’s grievance about the RVR related to plaintiff’s interactions with Jackson and 4 Moore on August 28. Plaintiff states that “CDCR” and “B yard officers” failed to protect her. 5 (ECF No. 41-4 at 30, 31.) 6 Second, plaintiff points out that during the RVR hearing, plaintiff asked inmate Contreras, 7 “What did you discuss with C/O Allen over Brown and Lindsey?” (ECF No. 47 at 25.) 8 Contreras’s response simply shows that Allen was present. It does not show that plaintiff 9 complained that Allen failed to protect her. 10 Third, plaintiff points out that in his declaration, Allen states that he witnessed plaintiff 11 refusing to go to her cell when she was escorted there by Officer Chao. In addition, this court 12 notes that defendant Allen is referenced in a notation regarding grievance #19-05226 that plaintiff 13 did not ask Allen any questions at the RVR hearing. (ECF No. 41-4 at 72.) Again, these 14 references show Allen was present. However, they do not show that plaintiff was charging Allen 15 with a violation of his constitutional rights. 16 The fact that MCSP had notice that defendant Allen was present during the events on 17 August 27 is not the same as having notice that plaintiff contended Allen failed to protect her. 18 Plaintiff’s reference to “B yard officers” in grievance #19-04373 is insufficiently specific to 19 identify Allen and does not mention the events on August 27. Rather, the grievance focuses on 20 August 28 and the undisputed evidence, set out below, shows that defendant Allen was not 21 working in B-yard at that time. A reasonable reading of grievance #19-04373 is that plaintiff was 22 complaining about the failure of the officers on the yard on August 28 to protect her. 23 Moreover, plaintiff does not contend she was unaware of Allen’s name. California 24 regulations required an inmate to “list all staff members involved and [] describe their 25 involvement in the issue.” Cal. Code Regs. tit. 15, § 3084.2(3). The PLRA requires compliance 26 with available state regulations in order to exhaust administrative remedies. Jones v. Bock, 549 27 U.S. 199, 218 (2007). Plaintiff did not comply with the regulations and, in any event, did not put 28 //// 1 MCSP on notice that she was alleging Allen violated her Eighth Amendment rights. This court 2 will recommend plaintiff’s claim against defendant Allen be dismissed for failure to exhaust. 3 B. Failure to Protect 4 Defendants primarily argue that the undisputed evidence shows plaintiff did not face an 5 excessive risk of harm and that, even if she did, because defendant did not have the authority to 6 move plaintiff out of B yard, they cannot be charged with failing to take all reasonable actions to 7 protect her. This court does not find defendants’ arguments persuasive or their facts undisputed 8 with respect to the risk of harm from defendant Lindsey. Below, this court finds disputed issues 9 of fact regarding whether plaintiff faced an excessive risk of harm, whether defendants knew of 10 that risk, and whether defendants were deliberately indifferent to plaintiff’s safety when they 11 failed to take reasonable actions to protect plaintiff. This court further finds the competent, 12 material evidence is undisputed that plaintiff cannot succeed on a failure to protect claim 13 regarding the risk of harm from inmates Jackson and Moore. 14 1. Legal Standards 15 Prison officials have a duty “to take reasonable measures to guarantee the safety of 16 inmates, which has been interpreted to include a duty to protect prisoners.” Labatad v. 17 Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer v. Brennan, 18 511 U.S. 825, 832-33 (1994) and Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To 19 establish a violation of this duty, a prisoner must “show that the officials acted with deliberate 20 indifference to threat of serious harm or injury to an inmate.” Labatad, 714 F.3d at 1160 (citing 21 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). 22 A failure to protect claim under the Eighth Amendment requires a showing that “the 23 official [knew] of and disregard[ed] an excessive risk to inmate . . . safety.” Farmer, 511 U.S. at 24 837. “Whether a prison official had the requisite knowledge of a substantial risk is a question of 25 fact subject to demonstration in the usual ways, including inference from circumstantial evidence, 26 . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very 27 fact that the risk was obvious.” Id. at 842 (citations omitted). The duty to protect a prisoner from 28 serious harm requires that prison officials take reasonable measures to guarantee the safety and 1 well-being of the prisoner. Id. at 832-33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 2 Because “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,” 3 plaintiff must allege facts showing the defendant acted with a “sufficiently culpable state of 4 mind.” Wilson, 501 U.S. at 297 (internal quotations marks, emphasis, and citations omitted). 5 2. Undisputed Material Facts Re Failure to Protect Claims 6 a. During all relevant times, plaintiff was an inmate at MCSP who was 7 housed in the B yard. (FAC, ECF No. 16 at 7-8.) 8 b. During all relevant times, defendants were correctional officers working at 9 MCSP. (Defendants’ Declarations, ECF Nos. 41-5 and 41-8.) 10 c. On August 27, 2019, plaintiff had an interaction with inmate Lindsey. 11 (ECF No. 16 at 7-8; DSUF #7.) 12 d. At the time of that interaction, plaintiff and Lindsey were cellmates. 13 (DSUF #10.) 14 e. Defendant Chao observed all or part of that interaction. (DSUF #7.) 15 f. After the interaction, plaintiff refused to return to her cell. (DSUF #7.) 16 g. Both defendants observed plaintiff refusing to return to her cell. (DSUF 17 ##7, 11.) 18 h. After plaintiff refused to return to her cell, defendant Chao took plaintiff to 19 the program office. (DSUF ##9, 11.) 20 i. At the program office, Chao wrote plaintiff an RVR for her refusal to 21 return to her cell. (DSUF #11.) 22 j. When Chao and plaintiff left the program office, Chao referred plaintiff to 23 his supervisor. (DSUF #9.) 24 k. Chao did not have the authority to move plaintiff to a new cell without 25 approval from a supervisor when the reason for the move was plaintiff’s 26 refusal to return to her cell. (DSUF #9.) 27 l. Defendants did not have the authority to make the decision to move 28 plaintiff to a new yard. (ECF Nos. 41-5 and 41-8.) Moving an inmate to a 1 new yard requires direction from the Institutional Classification 2 Committee. (DSUF #12.) 3 m. After leaving the program office, plaintiff was moved to a different cell, 4 also in B Yard. (DSUF #10.) 5 n. Plaintiff alleges inmate Lindsey attacked her as soon as she went out to the 6 yard on the morning of August 28. (DSUF #13.) 7 o. Plaintiff did not report this attack by Lindsey. (DSUF #13.) 8 p. On August 28, plaintiff and inmate Lindsey engaged in a physical 9 altercation.7 Officers intervened. Plaintiff was issued an RVR for this 10 altercation. (DSUF #14.) 11 q. On August 28 after the altercation with Lindsey, plaintiff signed a peaceful 12 co-existence chrono for Lindsey which meant that: “after you fight with 13 someone nothing else will happen and you are safe to return to the yard.” 14 Plaintiff claims she was pressured to sign the chrono by an unnamed 15 lieutenant. (DSUF #15.) 16 r. After signing the chrono, plaintiff was in a physical altercation with 17 inmates Jackson and Moore. (Plt.’s Depo. at 51.) During the altercation, 18 plaintiff was injured. Plaintiff was issued an RVR for this altercation. 19 (DSUF #16.) 20 s. Plaintiff is not aware of a connection between inmate Lindsey and inmates 21 Jackson and Moore. Plaintiff has no evidence to show that defendants 22 were aware of a connection between inmate Lindsey and inmates Jackson 23 and Moore.8 (DSUF #17.) 24 25 7 This court recognizes that plaintiff is alleging the altercation with Lindsey was an attack, not a mutually instigated fight. This court’s use of the term “physical altercation” is not meant to 26 indicate that plaintiff was not attacked, only that the parties involved had a physical interaction that was harmful or potentially harmful to one or both parties. 27 8 In her response to the DSUF, plaintiff appears to be alleging that defendants should have known 28 Lindsey, and perhaps Jackson and Moore, were gang members. (ECF No. 47 at 7.) However, in 1 t. Neither defendant was working on August 28 at the times plaintiff’s 2 altercations with Lindsey and with Moore and Jackson occurred. (DSUF 3 #18.) 4 3. Disputed Material Facts re Failure to Protect Claims 5 Defendants’ declarations are extremely brief, notable for what they omit rather than what 6 they state. For example, Chao does not explain what he told his supervisor when he referred 7 plaintiff to his supervisor after leaving the program office on August 27. Because that 8 information is material to plaintiff’s claim and is not in the record, this court considers it, and 9 other material omissions, as disputed facts. 10 a. What occurred during the interaction between plaintiff and Lindsey on 11 August 27 12 Plaintiff alleges that inmate Lindsey attempted to “attack” her on 13 August 27. (FAC at 7-8.) Lindsey tried “to swing and hit me.” (Plt.’s 14 Depo. at 29.) She states that she backed away to prevent Lindsey from 15 hitting her and that inmate Contreras intervened by getting between 16 plaintiff and Lindsey. (FAC at 7-8; Plt.’s Depo. at 36.) 17 In his declaration, Chao simply refers to his testimony at the RVR 18 hearing where he said only that he saw plaintiff and Lindsey talking and 19 saw plaintiff refuse to return to her cell. (ECF No. 41-5.) Allen does not 20 say anything about what occurred between Lindsey and plaintiff on the 21 27th. (ECF No. 41-8.) Neither defendant directly disputes plaintiff’s 22 description of her interaction with Lindsey on the 27th. 23 b. Whether Lindsey threatened plaintiff after their interaction on August 27 24 Both defendants are silent with respect to plaintiff’s allegations that 25 when Lindsey was returned to the cell he shared with plaintiff, he shouted 26

27 her deposition plaintiff testified that she did not know whether Lindsey, Jackson, and Moore were members of the same gang. (Plt.’s Depo. at 80-81.) Plaintiff presents no competent evidence to 28 show a connection between Lindsey and Jackson and Moore. 1 for about 15 or 20 minutes that he was going to harm plaintiff. (Plt.’s 2 Depo. at 38.) Plaintiff further alleges that Chao and Allen heard Lindsey 3 make those threats. (Id. at 30.) 4 c. What reasons plaintiff gave defendant Chao and/or Allen for refusing to 5 return to her cell 6 Plaintiff states that she told Chao she did not want to go back to her cell 7 with Lindsey because she feared for her safety. (FAC at 7-8; Plt.’s Depo. 8 at 29.) According to plaintiff, both defendants told her she had to go back 9 to her cell because Lindsey had not hit her. (Plt.’s Depo. at 29.) 10 Chao specifically says plaintiff told him the requested cell move was not 11 motivated by a concern for her safety. Chao states that plaintiff told him 12 that “Lindsay9 thought she (inmate Brown) was spreading rumors of his 13 (inmate Lindsay) business, and that she did not want to go back in the cell 14 or get in trouble. Inmate Brown stated that she just wanted to move into a 15 different cell and this was not a safety concern issue.” (ECF No. 41-5 at 16 2.) Allen’s declaration makes no mention of this interaction. (ECF No. 17 41-8.) 18 d. Whether plaintiff asked Chao and/or Allen to move her to a new yard and 19 how they responded 20 Plaintiff alleges she asked Chao to be placed in a different yard. (Plt.s 21 Depo. at 41.) She further alleges Chao told her that was not an option and 22 if plaintiff continued to refuse to return to her cell, he would write plaintiff 23 up for a rules violation. (Id. at 41-42.) Neither defendant addresses this 24 allegation. 25 //// 26 //// 27 9 While Chao spells this inmate’s name here as “Lindsay,” it is spelled “Lindsey” throughout both 28 parties’ filings and this court uses that latter spelling. 1 e. What Chao told his supervisor when he referred plaintiff to his supervisor 2 Plaintiff does not make any allegations about this apparent interaction. 3 In his declaration, Chao makes an oblique statement that: “Cell moves 4 such as those where an inmate is refusing to house, must be approved by a 5 supervisor, as was the case with inmate Brown on August 27, 2019.” (ECF 6 No. 41-5 at 2.) The description in the DSUF is a bit more specific. It 7 states that Chao “referred her to his supervisor because he did not have the 8 authority to make a housing change requested by Brown.” (DSUF #9.) 9 f. Whether plaintiff was coerced into signing the peaceful coexistence chrono 10 Defendants present no evidence to rebut plaintiff’s allegation that she 11 was forced to sign the peaceful coexistence chrono despite feeling at risk of 12 harm from Lindsey. (Plt.’s Depo. at 45, 51.) However, their argument 13 makes clear they are challenging this allegation. 14 4. Discussion 15 Initially this court notes that in her responses to the DSUF, plaintiff repeatedly challenges 16 the procedures employed in considering her grievances and in adjudicating the rules violations. 17 Plaintiff’s complaint can also be construed as a challenge to defendant Chao’s conduct in giving 18 plaintiff the choice to return to her cell despite verbal threats being made by Lindsey or be 19 charged with a rules violation. Those issues are not before the court as independent claims. This 20 case is proceeding on plaintiff’s claims that defendants failed to protect her from harm. (See ECF 21 Nos. 16, 19.) 22 To prove a claim that defendants violated plaintiff’s Eighth Amendment rights by failing 23 to protect her, plaintiff must prove: (1) there was an excessive risk of harm to plaintiff; (2) 24 defendants knew of that risk; and (3) defendants were deliberately indifferent to that risk. 25 Farmer, 511 U.S. at 837. Defendants fail to show facts material to each of these factors are 26 undisputed with respect to a risk of harm from inmate Lindsey. Defendants do show that plaintiff 27 has no evidence that they knew of a risk of harm from defendants Jackson and Moore. 28 //// 1 First, defendants barely address the question of whether plaintiff faced an excessive risk 2 of harm. Plaintiff alleges that on August 27, defendants knew she faced a risk of bodily harm 3 from Lindsey based on Lindsey’s attempt to attack plaintiff and subsequent shouts of threats to 4 harm plaintiff. Defendants’ only direct evidence that could be construed as contrary is Chao’s 5 statement that plaintiff told him her refusal to return to her cell was not a safety concern. They 6 also argue that the fact plaintiff signed a peaceful co-existence chrono the following day shows 7 that plaintiff did not feel Lindsey posed a risk of harm. However, defendants ignore the fact 8 plaintiff is alleging she was coerced into signing the chrono. Defendants fail to show it is 9 undisputed that plaintiff did not face an excessive risk of harm from Lindsey. 10 Second, defendants fail to present undisputed facts showing that they were not aware of 11 the risk of harm to plaintiff. In her FAC, plaintiff alleges both defendants saw Lindsey 12 attempting to attack her and both were closer to Lindsey than she was so would have heard 13 Lindsey shouting threats to harm plaintiff. Both defendants fail to refute, or even address, 14 plaintiff’s allegations regarding what they saw and heard. The questions of defendants’ 15 knowledge of risks of harm to plaintiff should be decided by a factfinder. 16 Third, with respect to deliberate indifference, the facts are also in dispute. There are 17 significant gaps in the information provided by defendants. Defendants simply rely on the fact 18 that, as correctional officers, they did not have the authority to decide to move plaintiff to a 19 different cell or to move plaintiff to a different yard. While that may be true, it is not enough to 20 establish defendants took reasonable actions to assure plaintiff’s safety. There is no evidence 21 showing what, if any, discussion Chao had with his supervisor regarding moving plaintiff to a 22 new cell. If a factfinder finds plaintiff’s description of the interactions with Lindsey to be true, 23 then whether Chao explained the situation to his supervisor fully is certainly relevant to the 24 reasonableness of Chao’s conduct. 25 Defendants do show that the competent and material facts demonstrate that plaintiff 26 cannot succeed on a claim that they failed to protect plaintiff from an attack by inmates Jackson 27 and Moore. Plaintiff admitted in her deposition that she has no evidence connecting Lindsey with 28 //// 1 Jackson and Moore, much less any competent evidence demonstrating that defendants knew of 2 such a connection and risk of harm to plaintiff. 3 This court finds defendants have failed to demonstrate that the undisputed facts show that 4 defendants’ conduct did not violate plaintiff’s Eighth Amendment rights with respect to a risk of 5 harm to plaintiff from defendant Lindsey. This court further finds that defendants have 6 demonstrated that plaintiff cannot prove defendants knew, or should have known, that plaintiff 7 faced a risk of harm from inmates Jackson and Moore. Therefore, plaintiff cannot show 8 defendants were deliberately indifferent to a risk presented by Jackson and Moore. That aspect of 9 plaintiff’s claim, and the injuries she suffered as a result of the altercation with Jackson and 10 Moore, should be dismissed from this case. 11 C. Qualified Immunity 12 1. Legal Standards 13 Government officials enjoy qualified immunity from civil damages unless their conduct 14 violates clearly established statutory or constitutional rights. Jeffers v. Gomez, 267 F.3d 895, 910 15 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is 16 presented with a qualified immunity defense, the central questions for the court are: (1) whether 17 the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the 18 defendant’s conduct violated a statutory or constitutional right; and (2) whether the right at issue 19 was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from, Pearson v. 20 Callahan, 555 U.S. 223 (2009) (the two factors set out in Saucier need not be considered in 21 sequence). “Qualified immunity gives government officials breathing room to make reasonable 22 but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 23 (2011). The existence of triable issues of fact as to whether prison officials were deliberately 24 indifferent does not necessarily preclude qualified immunity. Estate of Ford v. Ramirez–Palmer, 25 301 F.3d 1043, 1053 (9th Cir. 2002). 26 “For the second step in the qualified immunity analysis—whether the constitutional right 27 was clearly established at the time of the conduct—the critical question is whether the contours of 28 the right were ‘sufficiently clear’ that every ‘reasonable official would have understood that what 1 he is doing violates that right.’” Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (quoting 2 al-Kidd, 563 U.S. at 741) (some internal marks omitted). “The plaintiff bears the burden to show 3 that the contours of the right were clearly established.” Clairmont v. Sound Mental Health, 632 4 F.3d 1091, 1109 (9th Cir. 2011). “[W]hether the law was clearly established must be undertaken 5 in light of the specific context of the case, not as a broad general proposition.” Estate of Ford, 6 301 F.3d at 1050 (citation and internal marks omitted). In making this determination, courts 7 consider the state of the law at the time of the alleged violation and the information possessed by 8 the official to determine whether a reasonable official in a particular factual situation should have 9 been on notice that his or her conduct was illegal. Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 10 2007); see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (the “salient question” to the qualified 11 immunity analysis is whether the state of the law at the time gave “fair warning” to the officials 12 that their conduct was unconstitutional). “[W]here there is no case directly on point, ‘existing 13 precedent must have placed the statutory or constitutional question beyond debate.’” C.B. v. City 14 of Sonora, 769 F.3d 1005, 1026 (9th Cir. 2014) (citing al-Kidd, 563 U.S. at 740). An official's 15 subjective beliefs are irrelevant. Inouye, 504 F.3d at 712. 16 2. Discussion 17 Defendants do not argue that the standards for a failure to protect claim were not clearly 18 established. They just repeat their argument that plaintiff cannot show they failed to protect her 19 in violation of the Eighth Amendment. Because defendants’ arguments rely on disputed facts, 20 they are not entitled to summary judgment on the qualified immunity issue. 21 III. Conclusion 22 For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendants’ motion 23 for summary judgment (ECF No. 41) be granted in part and denied in part as follows: 24 1. Defendants’ motion be granted with respect to defendant Allen’s claim that plaintiff 25 failed to exhaust her administrative remedies as to Allen; 26 2. Defendants’ motion be granted with respect to plaintiff’s claim that defendants failed 27 to protect plaintiff from inmates Jackson and Moore on August 28, 2019; and 28 3. Defendants’ motion be denied in all other respects. 1 These findings and recommendations will be submitted to the United States District Judge 2 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 3 | after being served with these findings and recommendations, either party may file written 4 | objections with the court. The document should be captioned “Objections to Magistrate Judge's 5 | Findings and Recommendations.” The parties are advised that failure to file objections within the 6 | specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 7 | Yist, 951 F.2d 1153 (9th Cir. 1991). 8 | Dated: February 8, 2024 9 10 ll ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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