noting that 5 the “known risk of injury must be a strong likelihood, rather than a mere possibility before a 6 guard’s failure to act can constitute deliberate indifference” (internal quotation marks 7 omitted)
How later courts described this case
- noting that 5 the “known risk of injury must be a strong likelihood, rather than a mere possibility before a 6 guard’s failure to act can constitute deliberate indifference” (internal quotation marks 7 omitted)
- holding that an Eighth 10 Amendment failure to protect claim must allege that there was “objectively” a “substantial risk 11 of serious harm” to which defendant was indifferent
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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9 TOY TERRELL SMITH, Case No. 1:16-cv-01924-LJO-JDP
10 Plaintiff, ORDER VACATING FINDINGS AND
RECOMMENDATIONS
11 v.
ECF No. 75
12 J. TORRES, et al.,
FINDINGS AND RECOMMENDATIONS
13 Defendants. THAT COURT GRANT DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
14 AND DISMISS CASE WITH PREJUDICE
15 OBJECTIONS DUE IN 14 DAYS
16 ECF No. 69
17 I. Order Vacating August 26, 2019 Findings and Recommendations
18 On August 26, 2019, I recommend granting defendants’ motion for summary judgment
19 without prejudice. ECF No. 75. Defendants responded that the case should be dismissed with
20 prejudice. See ECF No. 76. For good cause shown, I hereby vacate my August 25, 2019
21 Findings and Recommendations. The corrected findings and recommendations that follow are
22 for dismissal with prejudice, but otherwise remain unchanged.
23 II. Procedural History
24 Plaintiff Toy Terrell Smith is a state prisoner proceeding without counsel in this civil
25 rights action brought under 42 U.S.C. § 1983. Terrell alleges that defendants J. Torres and
26 M. Hoggard, both correctional counselors at California State Prison Corcoran, were
27 deliberately indifferent to his safety and so violated the Eighth Amendment by recommending
that he be returned to Kern Valley State Prison. See ECF No. 10 at 13. On February 15, 2019,
1 Torres and Hoggard moved for summary judgment under Federal Rule of Civil Procedure 56, `
2 arguing that the move was not objectively dangerous, that the defendants were not subjectively
3 indifferent to any danger, that Smith cannot establish causation, and that defendants Torres and
4 Hoggard are entitled to qualified immunity. See ECF No. 69-2 at 1-2. Smith filed an
5 opposition on May 13, 2019, and the defendants filed a reply on May 21. See ECF Nos. 73 and
6 74.1
7 When Smith’s allegations are viewed in their most favorable light, they fail to show that
8 the decision to move him to Kern Valley State Prison posed an objective, substantial risk of
9 serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (holding that an Eighth
10 Amendment failure to protect claim must allege that there was “objectively” a “substantial risk
11 of serious harm” to which defendant was indifferent). Because Smith’s speculative and
12 general allegations do not satisfy the objective risk requirement, I do not reach defendants’
13 alternate claimed bases for summary judgment.
14 III. Factual Background
15 In early 2016, Smith was an inmate at Corcoran State Prison. Defendant Torres
16 approached Smith about placement at a different facility. ECF No. 73 at 2. Torres presented
17 Smith with a list of prisons to which he might be transferred, but Smith “informed her that he
18 was not interested in any of them because none of them were mental health care treatment
19 facilities.” Id. Smith also gave Torres a two-page statement intended to inform the committee
20 making the facility assignment. The committee, which included both Smith and Hoggard,
21 recommended based on a variety of factors that Smith be sent to Kern Valley State Prison,
22 where he was previously housed. Smith had been involved in a violent incident and riot at
23 Kern Valley, see generally id. at 21 (“Exhibit B”), and did not want to be returned there.
24 Smith appealed the committee’s decision and met with Hoggard concerning the appeal. Id. at
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1 As required by Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998), defendants gave
27 plaintiff notice of the requirements for opposing a summary judgment motion via an attachment
to the motion for summary judgment. See ECF No. 69-1.
1 4. Smith’s appeal was unsuccessful. He was transferred back to Kern Valley, where he was `
2 attacked.
3 IV. Legal Standard
4 Summary judgment is appropriate when there is “no genuine dispute as to any material
5 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
6 factual dispute is genuine if a reasonable trier of fact could find in favor of either party at trial.
7 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The disputed fact is material if
8 it “might affect the outcome of the suit under the governing law.” See id. at 248.
9 The party seeking summary judgment bears the initial burden of demonstrating the
10 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325
11 (1986). Once the moving party has met its burden, the non-moving party may not rest on the
12 allegations or denials in its pleading, Anderson, 477 U.S. at 248, but “must come forward with
13 ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co.,
14 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)).
15 In making a summary judgment determination, a court “may not engage in credibility
16 determinations or the weighing of evidence,” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.
17 2017) (citation omitted), and it must view the inferences drawn from the underlying facts in the
18 light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654,
19 655 (1962) (per curiam); Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002).
20 As detailed below, defendants have met their burden of showing the absence of a genuine
21 issue of material fact, and Smith has not shown that there is an issue for trial.
22 V. Analysis
23 The Eighth Amendment of the United States Constitution protects prisoners against a
24 prison official’s “deliberate indifference” to “a substantial risk of serious harm.” Farmer, 511
25 U.S. at 828 (1994). “Deliberate indifference” has both an objective and subjective component:
26 there must be an objective risk to inmate safety, and the official in question must also “draw
27 the inference” that the risk exists and disregard it. Id. at 837; see also Clement v. Gomez, 298
1 be objectively “substantial” it must be more than merely possible, since prisons are, “by `
2 definition,” institutions “of involuntary confinement of persons who have a demonstrated
3 proclivity for anti-social criminal, and often violent, conduct.” Hudson v. Palmer, 468 U.S.
4 517, 526 (1984); see also Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (noting that
5 the “known risk of injury must be a strong likelihood, rather than a mere possibility before a
6 guard’s failure to act can constitute deliberate indifference” (internal quotation marks
7 omitted)). For this reason, “speculative and generalized fears of harm at the hands of other
8 prisoners do not rise to a sufficiently substantial risk of serious harm.” Williams v. Wood, 223
9 F. App’x 670, 671 (9th Cir. 2007).
10 Even when viewed in their most favorable light, Smith’s allegations do not show that
11 being moved to Kern Valley created a substantial risk of serious harm. While his statement to
12 the corrections committee mentioned the past riot at Kern Valley, it mentioned no specific
13 threats that would attend to his being housed there in the future. See ECF No. 73 at 19-20; see
14 also Cal. Code Regs., tit. 15 § 3378(b)(2) (“Any offender who claims enemies shall provide
15 sufficient information to positively identify the claimed enemy.”). Smith’s statement also
16 mentioned several other violent encounters at other facilities involving Smith—all of which
17 were mentioned not for the purpose of showing that a move to Kern Valley would be
18 substantially dangerous, but that Smith was repeatedly “set up for harm if not death” by the
19 system more generally, and that all Muslims (like Smith) were mistreated by the California
20 Department of Corrections and Rehabilitation. Id. An incident report on the Kern Valley riot
21 likewise raised no specific and substantial risks that would attend to transferring Smith to a part
22 of the Kern Valley facility where Smith had no documented enemies. See generally id. at 21
23 (“Exhibit B”). Smith’s claims about the move—fears that many prisoners might unfortunately
24 face—are too “speculative and generalized” to amount to a substantial risk of serious harm or
25 preclude summary judgment in defendants’ favor. Williams, 223 F. App’x at 671; see also
26 Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1161 (9th Cir. 2013) (“The record, viewed
27 objectively and subjectively, is insufficient to preclude summary judgment on the claim that
1 | another, since the two prisoners in question “had been in general population together for an .
2 | extended period with no record of any threats or problems between them.”). While reasonable
3 | minds might disagree over the best place to house Smith, a mere difference of opinion does not
4 | create a substantial risk. Cf Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).
5 VI. Findings and Recommendations
6 For the foregoing reasons, I recommend that:
7 1. The court grant in full defendant’s motion for summary judgment, ECF No. 69.
8 2. This case be dismissed with prejudice.
9 These findings and recommendations are submitted to the U.S. district judge presiding
10 | over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the
11 | service of the findings and recommendations, the parties may file written objections to the
12 | findings and recommendations with the court and serve a copy on all parties. That document
13 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The
14 | presiding district judge will then review the findings and recommendations under 28 U.S.C.
15 | § 636(b)(1)(C).
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7 T IS SO ORDERED.
18 ( {WSs
ated: _ August 29, 2019
19 UNI STATES MAGISTRATE JUDGE
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