1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEVIN R. SCHRUBB, Case No. 12-cv-00418-JSW

8 Plaintiff,

ORDER GRANTING DEFENDANTS’

9 v. MOTION FOR SUMMARY

JUDGMENT

10 R. SIMMONS, et al., Re: Docket. No. 121 Defendants. 11

12 13 INTRODUCTION 14 In this pro se prisoner’s civil rights action, Kevin Schrubb complains that he was attacked 15 by his cellmate at Pelican Bay State Prison (“PBSP”). Before the Court is Defendants’ motion for 16 summary judgment. For the reasons discussed below, the motion for summary judgment will be 17 granted and judgment entered in Defendants’ favor. 18 BACKGROUND 19 A. Factual Background 20 The following facts are undisputed unless otherwise noted. 21 In 2007, an inmate named Davis was ordered to share a cell with Plaintiff at PBSP. See 22 ECF No. 93 (“Second Amended Complaint” or “SAC”) at 68-69. Plaintiff represents that Davis 23 informed Defendant Officer Simmons that he refused to be housed with Plaintiff, and on June 18, 24 2007, was issued an RVR for refusing the housing assignment. See SAC at 69; see also ECF No. 25 132 (“Opposition”) at 7. Defendants represent that Davis made no such refusal, see generally, 26 ECF No. 121 (“summary judgment motion” or “MSJ”), and that in any event Defendant Officer 27 Simmons did not have the authority to modify housing assignments, see id. at 4. Indeed, in his 1 [Davis] didn’t want to house with [Plaintiff].” ECF No. 121-1 (“Padua Declaration”), Ex. A at 2 24:23-25. 3 In June or July of 2007, Davis was moved into Plaintiff’s cell. See id. at 24:8-9 (stating 4 that Plaintiff and Davis were housed together for “four or five months” before Davis attacked 5 Plaintiff). For “four or five months,” Plaintiff and Davis had no “negative interactions,” and “got 6 along pretty well, for the most part.” Id. at 24:11-15. 7 Plaintiff and Davis had Unit Classification Committee (“UCC”) meetings on November 8, 8 2007, and November 1, 2007, respectively. In his November 8, 2007, UCC meeting, Plaintiff 9 informed the UCC that he “agree[d] with his current double-cell assignment . . . with Inmate 10 Davis,” and that the assignment was “okay.” ECF No. 121-2 (“Cervantes Declaration”), Ex. A. In 11 his November 1, 2007 UCC meeting, Davis said the same. See ECF No. 121-3 (“Barbra 12 Declaration”), Ex. A. 13 On November 19, 2007, after both inmates had agreed to be celled with one another and 14 after they had been celled together for at least four months without incident, Davis stabbed 15 Plaintiff with a homemade weapon and attacked him with an electrical adapter, causing serious 16 injuries to Plaintiff’s face. SAC at 69. 17 At various times, Plaintiff has alternately represented that Davis attacked him because 18 Plaintiff refused to join Davis’s gang, see Cervantes Decl., Ex. B; that Davis attacked him because 19 Davis believed Plaintiff had disparaged Davis’s gang, Cervantes Decl., Ex. C; and that Plaintiff 20 did not know why Davis attacked him, and that it occurred suddenly and without provocation, see 21 Padua Decl., Ex. A at 16:21-25, 17:1-8. 22 B. Procedural Background 23 Plaintiff filed the original Complaint in this action in January 2012. See ECF No. 1. The 24 Court screened the Complaint, and found that Plaintiff’s “alleg[ation] that Lopez and Bryant, two 25 PBSP officials, housed him in a cell with an inmate with a history of attacks on other inmates,” 26 and that Plaintiff was subsequently attacked, state a cognizable claim that Defendants had been 27 deliberately indifferent to Plaintiff’s safety. See ECF No. 4 at 2-3. 1 This action was dismissed when Plaintiff failed timely to serve Defendants, then reopened 2 following an appeal of the dismissal. See ECF Nos. 19, 43. 3 Plaintiff subsequently filed a first amended complaint (“FAC”), adding claims against 4 Defendants Simmons and Webster, on the theory that Davis informed Simmons that Davis did not 5 want to be celled with Plaintiff. See ECF No. 51. The Court granted Plaintiff’s motion to amend, 6 and ordered Defendants to respond to Plaintiff’s new claims. See ECF No. 52. 7 Upon Defendants’ motion, the Court subsequently revoked Plaintiff’s in forma pauperis 8 status, see ECF No. 65, and dismissed this action when Plaintiff failed to pay the filing fee, see 9 ECF No. 70. Following an appeal of this second dismissal, the Court reinstated Plaintiff’s in 10 forma pauperis status and ordered Defendants to file a dispositive motion. See ECF No. 81. 11 Defendants subsequently moved to dismiss the FAC, arguing that Plaintiff’s claim was 12 barred by the statute of limitations, and that Plaintiff failed to provide facts showing that 13 Defendants were aware of Davis’s violent proclivities. See ECF No. 82. The Court denied 14 Defendants’ motion as to the statute of limitations argument, and granted Plaintiff’s request to 15 amend the FAC to provide more facts regarding Defendants’ awareness of the risk Davis posed to 16 Plaintiff. See ECF No. 92. 17 Plaintiff filed a second amended complaint (“SAC”). ECF No. 93. The Court screened the 18 SAC, and concluded that “[w]hen liberally construed,” it stated an Eighth Amendment claim 19 against Defendants Simmons and Webster. ECF No. 96. The Court dismissed a due process 20 claim. See id. The Court ordered Defendants to respond to the SAC. See id. 21 Defendants moved for summary judgment, arguing that Plaintiff had failed to exhaust his 22 claims and that Plaintiff’s requests for injunctive and declaratory relief were moot. See ECF No. 23 102. The Court granted Defendants’ motion in part, concluding that Defendants were not entitled 24 to summary judgment on the exhaustion issue, but granting summary judgment as to Plaintiff’s 25 requests for injunctive and declaratory relief. See ECF No. 112. 26 Defendants now have moved for summary judgment as to Plaintiff’s remaining claims. 27 See ECF No. 121 (“summary judgment motion” or “MSJ”). 1 DISCOVERY DISPUTE 2 Plaintiff raises two discovery issues which the Court will address before discussing 3 Defendants’ summary judgment motion. 4 A. Deposition Transcript 5 Plaintiff asks for the transcript of his deposition to be stricken from the record because he 6 has not reviewed it. See Opp. at 6-7. This request is DENIED because there is no showing in the 7 record that Plaintiff requested the opportunity to review the deposition transcript. 8 First, Plaintiff has not shown that he affirmatively requested the opportunity to review his 9 deposition transcript. See Fed. R. Civ. P. 30(e)(1) (“On request by the deponent or a party before 10 the deposition is completed, the deponent must be allowed 30 days . . . to review the transcript or 11 recording . . . .”). Plaintiff states in his Opposition that he did not waive the right to review his 12 deposition transcript, but he does not say that he made an affirmative request as required under the 13 Federal Rules. See Opp. at 7. Moreover, the Federal Rules require the officer recording the 14 deposition to state “whether a review was requested.” Fed. R. Civ. P. 30(e)(2). No such statement 15 appears here, see Padua Decl., Ex. A at 53, suggesting Plaintiff made no such request. 16 Second, although Plaintiff received a copy of the portions of the deposition transcript on 17 which Defendants rely, he does not explain what “changes in form or substance” he would have 18 made if given the opportunity, Fed. R. Civ. P. 30(e)(1)(B), and thus has failed to demonstrate why 19 the Court should not rely on the portions of the deposition transcript provided. 20 B. Request for Additional Documents 21 In his Opposition, Plaintiff appears to argue that he needs more discovery before he can 22 fully respond to Defendants’ summary judgment motion. See generally, Opp. 23 Plaintiff represents that Defendants did not respond to all of his discovery requests. See id. 24 at 2, 4, 16. The record reveals that Plaintiff made requests such as “[a]ny and all incident 25 packages . . . generated by prison staff in relation to, or involving, Davis, from the time of his 26 inception into CDC/R to present,” and “[a]ny and all RVRs, . . . generated by any prison staff, 27 whether issued or not, to Davis, from the time of his inception into CDC/R to present.” Opp., Ex. 1 privacy, see id., Ex. 2, Plaintiff neither attempted to limit his document requests to more relevant 2 information, nor moved to compel production of the documents as requested, see generally, 3 Docket. 4 Although Plaintiff did not expressly move for relief under Federal Rule of Civil Procedure 5 56(d) (“Rule 56(d)”), the Court construes Plaintiff’s Opposition arguments as a “request under 6 Federal Rule of Civil Procedure 56(d) for further discovery prior to judgment.” Calloway v. Veal, 7 571 F. App’x 626, 627–28 (9th Cir. 2014) (stating that even improperly phrased requests should 8 be construed as Rule 56(d) motions, because of “the allowances that must be made for pro se 9 prisoners”); Hausauer v. City of Mesa, 754 F. App’x 665, 666 (9th Cir. 2019) (holding that a pro 10 se plaintiff’s inartful request could be construed as a Rule 56(d) motion, and affirming the district 11 court’s denial of the Rule 56(d) motion). So construed, Plaintiff’s implied 56(d) motion is 12 DENIED. 13 Rule 56(d) is a device for litigants to avoid summary judgment when the non-movant 14 needs to discover affirmative evidence necessary to oppose the motion. See Garrett v. San 15 Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). To succeed on a Rule 56(d) motion, a party 16 opposing summary judgment must make clear “what information is sought and how it would 17 preclude summary judgment.” Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); see, e.g., id. 18 at 853-54 (district court correctly denied motion for continuance to engage in further discovery 19 under Rule 56(d) where plaintiff did not provide any basis or factual support for his assertions that 20 further discovery would lead to the facts and testimony he described, and his assertions appeared 21 based on nothing more than “wild speculation”). Rule 56(d) requires that the requesting party 22 show (1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery, 23 (2) the facts sought exist, and (3) the sought-after facts are essential to oppose summary judgment. 24 See Family Home & Fin. Ctr. v. Fed. Home Loan Mtg. Corp., 525 F.3d 822, 827 (9th Cir. 2008); 25 see also Margolis, 140 F.3d at 853–54 (district court correctly denied Rule 56(d) motion where 26 plaintiff did not provide any basis or factual support for his assertions that further discovery would 27 lead to the facts and testimony he described). The party seeking relief must “explain why those 1 Cir. 2006) (emphasis added). The party must also show that it “diligently pursued its previous 2 discovery opportunities, and . . . demonstrate that allowing additional discovery would . . . 3 preclude[] summary judgment.” Bank of Am., NT & SA v. PENGWIN, 175 F.3d 1109, 1118 (9th 4 Cir. 1999). 5 “The failure to conduct discovery diligently is grounds for the denial of a [Rule 56(d)] 6 motion.” Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1005 (9th Cir. 2002); accord Long v. 7 Playboy Enters. Int’l, Inc., 565 F. App’x 646, 648 (9th Cir. 2014) (“Failing to diligently pursue 8 discovery in the past is sufficient reason to deny [a Rule 56(d) motion for] further discovery.”). 9 As the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) has repeatedly held, 10 even pro se prisoners must pursue discovery in a diligent manner. See McRae v. United States, 11 812 F. App’x 505 (9th Cir. 2020) (“The district court did not abuse its discretion by denying 12 [federal prisoner] McRae’s requests for additional discovery pursuant to Fed. R. Civ. P. 56(d) and 13 to continue summary judgment [in a case under the Federal Tort Claims Act] because McRae did 14 not diligently pursue discovery during the time allotted by the district court.”).1 Diligence is so 15 important that the Ninth Circuit will overturn the district court’s discretionary Rule 56(d) order 16 only if “the movant [both] diligently pursued its previous discovery opportunities, and can 17 demonstrate that allowing additional discovery would have precluded summary judgment.” 18 PENGWIN, 175 F.3d at 1117–18 (emphasis added). 19 Plaintiff fails to meet these requirements. 20 First, the missing information would not help Plaintiff avoid summary judgment. 21 Although the requested discovery could go toward whether Davis told Simmons that Davis did not 22 wish to be celled with Plaintiff, as explained below Plaintiff’s claim fails even if the Court 23 assumes that Davis made this statement. Plaintiff’s desired facts thus would not help him avoid 24 summary judgment. See Family Home & Fin. Ctr., 525 F.3d at 827. 25

26 1 See also Ricky R. v. City of Alhambra, 330 F. App’x 639, 640 (9th Cir. 2009) (finding that district court did not abuse its discretion, where pro se prisoner had not diligently pursued 27 discovery); Revelles v. Stout, 103 F. App’x 622, 627 n.5 (9th Cir. 2004) (same); Seaton v. Shatzer, 1 Second, the Court denies plaintiff’s Rule 56(d) motion on the alternative and independent 2 basis that Plaintiff did not diligently pursue discovery. Defendants clearly explained why 3 Plaintiff’s discovery requests were overbroad, and Plaintiff neither attempted to correct the scope 4 of his requests, nor moved to compel production of the desired documents. This cannot be 5 considered diligence. 6 Because the missing information would not help Plaintiff avoid summary judgment, and 7 because Plaintiff was not diligent, he cannot avoid summary judgment with his implied 56(d) 8 motion. 9 DISCUSSION OF SUMMARY JUDGMENT MOTION 10 A. Legal Standard 11 Summary judgment is proper where the pleadings, discovery and affidavits show that there 12 is “no genuine dispute as to any material fact and [that] the moving party is entitled to judgment as 13 a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment “against a party 14 who fails to make a showing sufficient to establish the existence of an element essential to that 15 party’s case, and on which that party will bear the burden of proof at trial . . . since a complete 16 failure of proof concerning an essential element of the nonmoving party’s case necessarily renders 17 all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is 18 material if it might affect the outcome of the lawsuit under governing law, and a dispute about 19 such a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict 20 for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 21 Where, as here, the defendant moves for judgment against a plaintiff on the merits of his 22 claim, that the moving party bears the initial burden of identifying those portions of the record 23 which demonstrate the absence of a genuine dispute of material fact. The burden then shifts to the 24 nonmoving party, which must “go beyond the pleadings, and by his own affidavits, or by the 25 ‘depositions, answers to interrogatories, or admissions on file,’ designate ‘specific facts showing 26 that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). 27 The non-moving party “must show more than the mere existence of a scintilla of evidence.” In re 1 252). “[T]he non-moving party must come forth with evidence from which a jury could 2 reasonably render a verdict in the non-moving party’s favor.” Id. (citing Liberty Lobby, 477 U.S. 3 at 252). If the non-moving party fails to make this showing, “the moving party is entitled to 4 judgment as a matter of law.” Celotex, 477 U.S. at 323. 5 A court’s function on a summary judgment motion is not to make credibility 6 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. 7 Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must 8 be viewed in the light most favorable to the nonmoving party, and inferences drawn from the facts 9 must be viewed in the light most favorable to the nonmoving party. See id. at 631. However, a 10 court’s obligation to view evidence in the light most favorable to the non-movant does not require 11 it to ignore undisputed evidence produced by the movant. See L.F. v. Lake Wash. Sch. Dist., 947 12 F.3d 621, 625 (9th Cir. 2020). Even pro se litigants must identify or submit some competent 13 evidence to support a claim. See Soto v. Sweetman, 882 F.3d 865, 873 (9th Cir. 2018) (plaintiff 14 not entitled to equitable tolling where he failed to submit any competent evidence in his 15 opposition). 16 Nor is it the task of the district court to scour the record in search of a genuine issue of 17 triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The plaintiff must identify with 18 reasonable particularity the evidence that precludes summary judgment. Id.; see also Carmen v. 19 S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29, 1031 (9th Cir. 2001) (even if there is evidence in 20 the court file which creates a genuine issue of material fact, a court may grant summary judgment 21 if the opposing papers do not include or conveniently refer to that evidence). 22 B. Analysis 23 Plaintiff alleges that Defendants were aware that Davis posed a risk to Plaintiff’s safety, 24 because Davis had informed Officer Simmons that Davis did not want to be celled with Plaintiff. 25 See generally, SAC. Plaintiff claims that Defendants’ failure to separate Plaintiff and Davis 26 constituted deliberate indifference to Plaintiff’s safety, in violation of the Eighth Amendment. 27 Defendants counter that Plaintiff has failed to carry his summary judgment burden because he has 1 As explained below, there appears to be a dispute of fact as to whether Davis initially 2 refused to be housed with Plaintiff. However, as discussed below, this dispute of fact is not 3 material because, under the facts presented here, Defendants would not have been aware of any 4 risk to Plaintiff’s safety. First, Davis’s statement is too vague to have alerted Defendants to a 5 substantial risk of serious harm to Plaintiff. Second, by the time of the attack circumstances had 6 changed such that even if Davis’s statement had raised an inference that Plaintiff might be in 7 danger, Defendants would no longer recognize that danger. 8 1. Deliberate indifference standard 9 The Constitution does not mandate comfortable prisons, but neither does it permit 10 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Deliberate indifference to an 11 inmate’s health or safety may violate the Eighth Amendment’s proscription against cruel and 12 unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the 13 Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, 14 objectively, sufficiently serious, i.e., “the inmate must show that he is incarcerated under 15 conditions posing a substantial risk of serious harm,” and (2) the official is, subjectively, 16 deliberately indifferent to the substantial risk of serious harm. See Farmer, 511 U.S. at 834. 17 Under the deliberate indifference standard, the prison “official must both be aware of facts 18 from which the inference could be drawn that a substantial risk of serious harm exists, and he must 19 also draw the inference.” Id. at 837. The prisoner “need not show that a prison official acted or 20 failed to act believing that harm would befall an inmate; it is enough that the official acted or 21 failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. “Whether a 22 prison official had the requisite knowledge of a substantial risk is a question of fact subject to 23 demonstration in the usual ways, including inference from circumstantial evidence, and a 24 factfinder may conclude that a prison official knew of a substantial risk from the very fact that the 25 risk was obvious.” Id. (citation omitted). 26 2. There is a dispute of fact regarding Davis’s statements 27 Plaintiff’s theory is that Defendants knew Plaintiff was in danger from Davis because 1 Davis was charged with a rules violation (“RVR”), for refusing to obey the order to share a cell 2 with Plaintiff. See Opp. at 5-6, 16. Plaintiff claims that this RVR was later reduced to a “128 3 Counseling Chrono.” Id. at 6. 4 Defendants argue that Plaintiff has no evidence to support this theory. See generally, MSJ. 5 Defendant Officer Simmons represents that he has no recollection of such a conversation, see 6 Docket No. 121-4 (“Simmons Declaration”) ¶ 3, and Defendants represent that Davis’s prison file 7 does not contain any record of the alleged discipline, see id. See also ECF No. 121-5 (“Frisk 8 Declaration”) ¶ 7 (saying Davis’s file does not include such a disciplinary record), Barbra Decl. ¶ 9 6 (same). Moreover, Defendants argue that Plaintiff’s theory is based upon a hearsay statement by 10 an unknown correctional officer, and that such hearsay cannot create a dispute of fact. See MSJ at 11 7; see also Padua Decl., Ex. A at 23:1-24:5 (in deposition, Plaintiff concedes that his theory stems 12 from a statement by an unknown correctional officer). 13 Plaintiff argues that he has more than hearsay to support his theory. He argues that the 14 record of Davis’s November 1, 2007 UCC meeting, which refers to an RVR that had been reduced 15 to a 128 Counseling Chrono, suggests that Davis made the statements and received the discipline 16 alleged. See id. at 6, 8 (quoting sealed Barbra Decl., Ex. A). Plaintiff notes that, although 17 Defendants say Davis’s file did not include an RVR regarding a refusal to share Plaintiff’s cell, no 18 Defendant made a similar representation about a 128 Counseling Chrono. See id. at 13. 19 Additionally, Plaintiff represents that PBSP’s Litigation Coordinator conceded that Davis had 20 been given an RVR by Simmons. See id. Finally, Plaintiff notes that California law bars 21 Defendants from producing any 128 Counseling Chrono’s from Davis’s file, see id. at 4, and 22 argues that Plaintiff should not be penalized because the 128 Counseling Chrono cannot be 23 produced, see id. at 13. 24 At summary judgment, a court is directed to view the evidence if the light most favorable 25 to the non-moving party, and to draw inferences in that party’s favor. See T.W. Elec. Serv., 809 26 F.2d at 631. Here, the record of Davis’s UCC meeting could support Plaintiff’s claim that Davis 27 initially refused to be celled with Plaintiff, and was disciplined for that refusal. That PBSP’s 1 support Plaintiff’s allegation. There thus appears to be a dispute of fact as to whether Davis 2 initially refused to be celled with Plaintiff. 3 3. The dispute of fact is immaterial. 4 Although there is a dispute of fact as to whether Davis initially refused to be celled with 5 Plaintiff, this dispute does not preclude summary judgment. Plaintiff only could avoid summary 6 judgment by showing there is a “genuine dispute as to a[] material fact.” Fed. R. Civ. P. 56(a) 7 (emphasis added). Materiality is judged according to whether a fact could affect the outcome of a 8 lawsuit. See Liberty Lobby, 477 U.S. at 248. Here, even if Davis initially told Defendant Officer 9 Simmons he did not wish to be celled with Plaintiff, such a statement is too vague to make any 10 prison official aware that Davis posed a substantial risk of serious harm to Plaintiff. Moreover, 11 other events which occurred after that alleged conversation there was no “substantial risk of 12 serious harm” when Davis attacked Plaintiff on November 17, 2007. Farmer, 511 U.S. at 842. 13 a. Davis’s statement was too vague to alert Defendants of a substantial risk to Plaintiff’s safety. 14 Davis’s statement that he did not want to be housed with Plaintiff was too vague to alert 15 Defendant Officer Simmons that Davis intended to harm Plaintiff. Even where prison officials 16 have been notified of a threat, courts find no subjective awareness of a substantial risk of serious 17 harm where those threats are “vague and unsubstantiated.” Davis v. Scott, 94 F.3d 444, 446–47 18 (8th Cir. 1996) (affirming summary judgment where plaintiff’s statements to prison officials 19 “were . . . vague and unsubstantiated”); see also Bittaker v. Gomez, 35 F.3d 570 (9th Cir. 1994) 20 (unpublished) (affirming summary judgment where plaintiff told defendants he felt unsafe, but 21 “would not specify why he felt unsafe or identify anyone who had threatened him”); see also 22 Mickens v. Stafford Creek Corr. Ctr., 132 F. App’x 691, 692–93 (9th Cir. 2005) (affirming 23 summary judgment although plaintiff told defendants he feared physical assault, because plaintiff 24 did not identify the person who had threatened him). 25 Here, Davis’s statement does not reach even the level of a vague and unsubstantiated 26 threat. There is no allegation that Davis threatened to harm Plaintiff if forced to cell with him, 27 only that Davis indicated a preference not to share Plaintiff’s cell. At most, Davis’s statement that 1 he did not wish to be celled with Plaintiff might have given rise to a “mere suspicion” that an 2 attack might occur, which is insufficient to support a claim of deliberate indifference.2 Berg v. 3 Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). 4 Moreover, even Davis’s vague statement was effectively retracted before the attack when 5 Davis informed prison officials that he accepted his cellmate assignment, so that the most recent 6 information Defendants had at the time of the attack was that Davis accepted being celled with 7 Plaintiff. Well before Davis attacked Plaintiff, both Plaintiff and Davis told prison officials that 8 they agreed with their current housing assignment. See MSJ at 5 (citing Barba Decl., Ex. A; 9 Cervantes Decl., Ex. A). Moreover, Davis informed prison officials that “he was willing to . . . 10 abstain from violence.” ECF No. 122-1 (“Rush Declaration”), Ex. A. These statements, made 11 prior to Davis’s attack on Plaintiff, would have led Defendant Officer Simmons to believe that 12 Davis did not pose a substantial risk of serious harm to Plaintiff. 13 Davis’s statement that he did not wish to share Plaintiff’s cell simply is insufficient to 14 suggest that Davis would pose a substantial risk of serious harm to Plaintiff. 15 b. Between Davis’s initial refusal to house with Plaintiff, and the attack on Plaintiff, circumstances had changed such that Defendants would not 16 recognize a substantial risk. 17 Even under Plaintiff’s version of events, he and Davis were able to live together peaceably 18 for at least four months. See Padua Decl., Ex. A at 24:11-15 (For “four or five months,” Plaintiff 19 and Davis had no “negative interactions,” and “got along pretty well, for the most part.”). That the 20 two inmates were able to live together for an extended period of time would suggest to Defendant 21 Officer Simmons that Davis did not pose a substantial risk of serious harm to Plaintiff. 22

23 2 On at least two occasions Plaintiff represented to prison officials that Davis attacked Plaintiff because immediately prior to the attack Plaintiff made disparaging statements regarding, or 24 refused to join, a gang. See MSJ at 4 (paraphrasing sealed documents); see also Rush Decl., Exs. B, C (containing Plaintiff’s statements, made on at least two separate occasions to at least three 25 prison officials). This suggests that Davis did not attack Plaintiff out of general animosity expressed in June or July 2007, but rather because of a specific, separate provocation which 26 Defendants could not predict. Indeed, Plaintiff appears to concede that Davis had “no problem with being housed with Plaintiff” on November 1, 2007 – at least four months after Davis’s 27 alleged unwillingness to be celled with Plaintiff - and an intervening event changed Davis’s 1 The Ninth Circuit’s decision in Labatad is instructive. In Labatad, the Ninth Circuit 2 affirmed summary judgment in favor of prison officials against a deliberate indifference claim 3 from an inmate who was assaulted by a member of a rival prison gang with whom he was 4 temporarily assigned to share a cell in a prison that did not house rival gangs separately. 714 F.3d 5 at 1157. The plaintiff in Labatad was a gang member and fought with a member of another gang, 6 after which both combatants told prison investigators that the fight was not gang related and that 7 they had no further issues. Id. Plaintiff then was put in ad-seg and assigned to share a cell with 8 another inmate from the same gang as the inmate with whom plaintiff had just fought. Id. There 9 had been no difficulties with the new cellmate during the extended period both had been in general 10 population, there had been no threats from the new cellmate, and the new cellmate was not 11 identified as an enemy or risk to the plaintiff. Id. Three days after moving in, the new cellmate 12 assaulted the plaintiff. Id. The attacking cellmate later said that he assaulted plaintiff because 13 they were from different gangs and thought he (the attacking cellmate) would be attacked unless 14 he did so first. Id. The Ninth Circuit concluded that the district court properly had granted 15 summary judgment on the claim that prison officials were deliberately indifferent to a substantial 16 risk that the new cellmate would assault plaintiff if the two were housed in the same cell. Id. at 17 1161. Among other things, the court noted the absence of prior conflict between plaintiff and the 18 new cellmate and the assurances that the earlier fight was not gang related. Id. at 1161. The court 19 concluded that summary judgment was properly granted in the defendants’ favor because there 20 was no evidence “showing that the defendants knew of facts supporting an inference and drew the 21 inference of a substantial risk to Labatad if he was placed in a cell with Mara.” Id. 22 Similarly, in Strizich v. Batista, the Ninth Circuit affirmed the dismissal of a suit where the 23 prisoner-plaintiff was attacked by a member of a rival gang. -- F. App'x --, Appeal No. 18-36008, 24 2022 WL 823587, at *2 (9th Cir. Mar. 18, 2022). The Ninth Circuit found that the defendants 25 would not have been aware that the prisoner-plaintiff was at risk from the attacking inmate 26 because he had been “integrated with rival gang members for school, work, and treatment groups 27 without incident” for three months. Id.; see also ECF No. 8, Case No. 16-00012-H-DLC-JTJ (D. 1 within the Ninth Circuit have similarly found a failure to demonstrate deliberate indifference 2 where the prisoner-plaintiff and the attacking inmate had long coexisted peaceably. See Sandoval 3 v. Lewis, No. 16-CV-0460 LHK (PR), 2017 WL 487025, at *4 (N.D. Cal. Feb. 6, 2017) (where 4 plaintiff and attacking inmate “had been housed in the same unit for 2.5 years without any incident 5 aside from one verbal altercation,” this suggested defendant official would not have perceived a 6 substantial risk of serious harm when both were in the hallway at the same time); Womack v. 7 Adams, No. 4:15-CV-5095-SMJ, 2017 WL 11557485, at *4 (E.D. Wash. Dec. 27, 2017) (where 8 plaintiff approached defendant once “with generalized concerns about his safety,” but was able to 9 “live[] in the general population for nearly one year without incident,” this was insufficient to raise 10 an inference that the defendant was deliberate indifferent); Fosselman v. Dimmer, No. 1:12-CV- 11 01302-DAD-SAB-PC, 2017 WL 1254685, at *18 (E.D. Cal. Feb. 17, 2017) (plaintiff’s belief that 12 he was incompatible with cellmate did not rise to level of substantial risk of serious harm, where 13 plaintiff and cellmate “were not enemies, and had never been involved in a verbal or physical 14 altercation”). Cf. Toscano v. Lewis, No. C-12-5893 EMC (PR), 2015 WL 4940832, at *19 (N.D. 15 Cal. Aug. 19, 2015) (finding no deliberate indifference where, prior to the attack, “there was no 16 evidence of prior conflict between Mr. Toscano and Northerners in general or with Mr. Ramirez in 17 particular”); ECF No. 41 at 12-13, Lomack v. Beam, No. 3:19-CV-02943-EMC (PR) (N.D. Cal. 18 Aug. 17, 2021) (concluding, where inmates lived together for nine days without incident, this 19 contradicted plaintiff’s allegations that they were enemies incapable of getting along). 20 In Plaintiff’s case, as in Labatad, Strizich, and the decisions of other district courts, there 21 was no evidence of prior conflict between Plaintiff and Davis, and Plaintiff and Davis had 22 peaceably celled together for months without incident before Davis attacked Plaintiff. Thus, even 23 if Davis’s initial refusal had suggested he intended to harm Plaintiff – which it did not – 24 intervening circumstances would have suggested to Defendants that Davis did not pose a 25 substantial risk of serious harm to Plaintiff. 26 Quite simply, the facts of this case – a vague statement to begin with, effectively retracted 27 after a substantial period of time during which the cellmates coexisted peaceably – would not alert 1 Plaintiff has failed to raise a triable issue “that the defendants knew of facts supporting an 2 inference and drew the inference of a substantial risk to [Plaintiff] if he was placed in a cell with” 3 Davis. Id. See Farmer, 511 U.S. at 844 (explaining that defendants cannot be held liable if they 4 show “that they did not know of the underlying facts indicating a sufficiently substantial danger 5 and that they were therefore unaware of a danger”). Walsh v. Brewer, 733 F.2d 473, 477 (7th Cir. 6 1984) (Seventh Circuit “decline[d] to impose liability” because the defendant had no subjective 7 awareness of the risk faced by the plaintiff.). Defendants are entitled to summary judgment 8 because Plaintiff has not established a genuine issue for trial as to whether Defendants were 9 deliberately indifferent to his safety. See Celotex, 477 U.S. at 324. 10 C. Defendants also are entitled to qualified immunity. 11 The defense of qualified immunity protects “government officials . . . from liability for 12 civil damages insofar as their conduct does not violate clearly established statutory or 13 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 14 U.S. 800, 818 (1982). The rule of qualified immunity “‘provides ample protection to all but the 15 plainly incompetent or those who knowingly violate the law.’” Burns v. Reed, 500 U.S. 478, 495 16 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 17 In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-step inquiry for 18 determining whether qualified immunity exists. First, “[t]aken in the light most favorable to the 19 party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional 20 right?” Id. at 201. If no constitutional right was violated if the facts were as alleged, the inquiry 21 ends, and defendants prevail. See id. If, however, “a violation could be made out on a favorable 22 view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly 23 established. . . ‘The contours of the right must be sufficiently clear that a reasonable official 24 would understand that what he is doing violates that right.’ The relevant, dispositive inquiry in 25 determining whether a right is clearly established is whether it would be clear to a reasonable 26 officer that his conduct was unlawful in the situation he confronted.” Id. at 201–02 (quoting 27 Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although Saucier required courts to address 1 which prong to address first, in light of the particular circumstances of each case. See Pearson v. 2 Callahan, 555 U.S. 223, 236 (2009). 3 The Ninth Circuit clarified the qualified immunity analysis for a deliberate indifference 4 claim in Estate of Ford. In Estate of Ford, the court stated, “it would have been clear to a 5 reasonable prison official that if he knew about an excessive risk to inmate safety, and inferred 6 from the facts of which he was aware that a substantial risk of serious harm exists, he would 7 violate the law by disregarding it.” 301 F.3d at 1050. The court explained that, for an Eighth 8 Amendment violation based on a condition of confinement (such as a safety risk), the official must 9 subjectively have a sufficiently culpable state of mind: 10 ‘A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the 11 official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the 12 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’ . . . Thus, a reasonable prison 13 official understanding that he cannot recklessly disregard a substantial risk of serious harm, could know all of the facts yet 14 mistakenly, but reasonably, perceive that the exposure in any given situation was not that high. In these circumstances, he would be 15 entitled to qualified immunity. 16 Id. (citations omitted). 17 Before the November 17, 2007 attack, for the reasons discussed above, it would not have 18 been clear to a reasonable prison official that Plaintiff faced a “substantial risk of serious harm” 19 from being placed in a cell with someone who did not wish to share a cell with Plaintiff. 301 F.3d 20 at 1051. A reasonable prison official would reasonably perceive that Plaintiff’s exposure to any 21 risk of harm was not substantial in the absence of a specific threat from Davis, the fact that the two 22 inmates said they agreed with their cell assignments, Davis’s statement that he would abstain from 23 violence, and the fact that the two inmates had shared a cell for months without incident. Because 24 the law and the facts here did not put Defendants on notice that their conduct would be clearly 25 unlawful, summary judgment based on qualified immunity also is appropriate. See Saucier, 533 26 U.S. at 202. 27 1 D. Leave to amend will not be granted. 2 In his Opposition, Plaintiff appears to wish to add new claims against new Defendants. 3 Specifically, Plaintiff asks for the opportunity “to identify other responsible PBSP officials 4 currently unknown to him,” and appears to wish to sue the UCC officials on the theory that Davis 5 should never have been approved to share a cell with anyone. Opp. at 22-23. 6 First, it is well-settled that a plaintiff cannot add a new claim in his response to a summary 7 judgment motion, where the basis of the claim was not revealed in the operative complaint. See 8 Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968–69 (9th Cir. 2006) (approving district 9 court’s rejection of new claim where “the complaint gave the Appellees no notice of the specific 10 factual allegations presented for the first time in [the] opposition to summary judgment”); Mercury 11 Serv., Inc. v. Allied Bank of Texas, 907 F.2d 154 (9th Cir. 1990) (“It is not an abuse of discretion 12 to deny a request to add a new claim where, as here, the request is ‘raised at the eleventh hour, 13 after discovery was virtually complete and the [defendant's] motion for summary judgment was 14 pending before the court.’”). Here, the SAC makes no mention of Plaintiff’s new theory that 15 Davis should never have been housed with anyone, and betrays no inclination to sue the members 16 of the UCC. See generally, SAC. Because the factual basis for this new claim is entirely absent 17 from the SAC, it cannot be added at this late stage of the litigation. 18 Second, even if Plaintiff properly had moved to amend his complaint – which he did not – 19 leave to amend would be inappropriate here. “Several factors govern the propriety of a motion to 20 amend: (1) undue delay, (2) bad faith, (3) prejudice to the opponent, and (4) futility of 21 amendment.” Sweaney v. Ada Cnty., Idaho, 119 F.3d 1385, 1392–93 (9th Cir. 1997) (internal 22 citation and quotation marks omitted). Each factor is fulfilled here. The instant action has been 23 pending for ten years, and adding a new claim now, the basis of which could have been brought at 24 the time the original complaint was filed, smacks of undue delay and bad faith. Defendants would 25 be prejudiced by adding Plaintiff’s new claim; they already have won their case, and a new claim 26 would effectively force them to start over, conducting an entirely new round of discovery 27 regarding events that occurred fifteen years ago. Finally, amendment would be futile because 1 statement of not wanting to be celled with Plaintiff, which is insufficient to alert a prison official 2 of a substantial risk of serious harm; before the attack Davis had retracted this statement and 3 agreed to be housed with Plaintiff; and Plaintiff and Davis celled together for months without 4 || incident. 5 Accordingly, Plaintiff will not be allowed to amend. 6 CONCLUSION 7 For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED. 8 The Clerk shall enter judgment and close the file. 9 10 ISSO ORDERED. oo | 11 Dated: August 29, 2022 ff i | } f

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