The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 JOYCE MARIE SIMMONS, Case No. 19-cv-00139-HSG
8 Plaintiff, ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
9 v. JUDGMENT
10 KIMBERLY LUKE, Re: Dkt. No. 23
11 Defendant.
12
13 Plaintiff Joyce Marie Simmons filed this pro se civil rights action under Bivens v.
14 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that
15 Federal Correctional Institution in Dublin, California (“FCI-Dublin”) Unit Manager Kimberly
16 Luke was deliberately indifferent to her safety, in violation of the Eighth Amendment. Dkt. No.
17 11. Now pending before the Court is defendant’s motion to dismiss or, in the alternative, for
18 summary judgment. Dkt. No. 23. Plaintiff has filed an opposition, Dkt. No. 26, and defendant has
19 filed a reply, Dkt. No. 27. For the reasons set forth below, the Court GRANTS defendant’s
20 summary judgment motion.
21 BACKGROUND
22 The following facts are undisputed unless otherwise noted.
23 FCI-Dublin is an all-female, low-security federal correctional institution with an adjacent
24 minimum-security satellite camp. Luke Decl. ¶ 2 and Ex. B. There are no armed correctional
25 officers assigned within the FCI-Dublin satellite camp. Luke Decl. ¶ 4. There are two armed
26 correctional officers who patrol the perimeter of both the correctional institution and the satellite
27 camp, and watch for inmates who may be attempting to escape. Dkt. No. 26 at 2. There is no
1 During the relevant time period, plaintiff was housed at the FCI-Dublin satellite camp and
2 defendant Luke was employed there as the Unit Manager. Luke Decl. ¶ 1. As FCI-Dublin’s Unit
3 Manager, defendant Luke managed the programs and activities of the camp and supervised the
4 other members of the Unit Team. Luke Decl. ¶ 1. The assigned uniform color for inmates
5 assigned to the satellite camp was blue and the assigned uniform color for inmates assigned to the
6 low security unit was khaki. Luke Decl. ¶ 3. FCI Dublin’s Trust Fund Department handles the
7 issuance of prison clothing. Luke Decl. ¶ 3. If clothing is sought for religious purposes, FCI
8 Dublin’s Religious Services Department handles the issuance of the relevant clothing. Luke Decl.
9 ¶ 3. The issuance of clothing is not handled by defendant Luke’s department, the Unit Team.
10 Luke Decl. ¶ 3.
11 In or around September 2017, FCI-Dublin’s Trust Fund department head Andrea Giles
12 approved the issuance of a khaki dress to plaintiff for religious reasons.
13 On September 5, 2017, plaintiff emailed Chaplain Margaret Ashforth of the Religious
14 Services department, complaining that although Ms. Giles had approved the issuance of a khaki
15 dress, plaintiff had not received the dress. Luke Decl. ¶ 4 and Ex. 1; Dkt. No. 26 at 6. On
16 September 6, 2017, Chaplain Ashford responded that she would send Ms. Giles a memo
17 authorizing the dress. Luke Decl. ¶ 4 and Ex. 1. Plaintiff forwarded this email to Ms. Giles. Luke
18 Decl. ¶ 4 and Ex. 1.
19 On September 13, 2017, plaintiff filed a “Request for Administrative Remedy,” requesting
20 that a jumper dress be issued to her immediately for religious reasons. Dkt. No. 23-1 at 20.
21 On September 22, 2017, plaintiff received an email from Ms. Giles stating as follows:
As discussed at mainline, you (sic) religious article (dress) is standing by at the camp Unit
22 team for approval as the color of the dress is Khaki.
I will get back to you as soon as obtain (sic) the approval.
23 Thank you.
24 Dkt. No. 26 at 16. Plaintiff alleges that this reference to the Unit team refers to obtaining
25 defendant Luke’s approval for the issuance of the dress because defendant Luke was the Unit
26 Manager during the relevant time and her approval would be required before plaintiff could wear a
27 dress that was not the required color (at that time, blue). Dkt. No. 26 at 2. Plaintiff argues that
1 at 2. Defendant Luke states that she was unaware that plaintiff requested, was issued, or wore a
2 khaki colored dress. Luke Decl. ¶ 3.
3 On or about September 27, 2017, the khaki dress was issued to plaintiff with Ms. Giles’
4 permission. Dkt. No. 26 at 26. Plaintiff alleges that the dress was issued to her in the presence of
5 Unit Team Counselor Rhaney and Unit Manager defendant Luke. Dkt. No. 26 at 26. Defendant
6 Luke does not recall being present when the dress was issued and states that she was unaware that
7 plaintiff requested, was issued, or wore a khaki colored dress. Luke Decl. ¶ 3.
8 Plaintiff wore this khaki dress without incident until October 4, 2017, when Mr. Hilliard
9 angrily questioned plaintiff whether she had a memo authorizing her to wear the khaki dress. Dkt.
10 No. 26 at 26. Plaintiff took off the dress and gave it to Officer Phillips. Dkt. No. 26 at 26. Two
11 hours later, Officer Phillips returned the dress to her. Dkt. No. 26 at 26.
12 On October 5, 2017, plaintiff voluntarily withdrew the Request for Administrative Remedy
13 filed on September 13, 2017. Dkt. No. 23-1 at 19; Dk. No. 26 at 1. That same day, plaintiff was
14 informed by FCI Unit Manager Moore that if she had gone outside while wearing the khaki dress,
15 perimeter officials could have fired upon her, thinking that she was attempting to escape. Dkt. No.
16 26.
17 On October 6, 2017, plaintiff sent Captain Castillo an email, recounting the events of
18 October 4, 2017, and requesting a memorandum formally authorizing her to wear the khaki dress,
19 and requesting a dress in green when the camp switched its clothing to green. Dkt. No. 26 at 26.
20 Plaintiff alleges that she pursued administrative remedies for the issue raised in this action
21 by directly filing a grievance with the BOP Regional Director (Form BP-10) on October 18, 2017,
22 and a grievance with the BOP Central Office (Form BOP-11) on December 21, 2017, but that she
23 received no answer from either level. Dkt. No. 26 at 6, 8. She alleges that she felt it was
24 necessary to bypass the first level of the grievance process because she was concerned that she
25 would face retaliation and because she was housed in the Special Housing Unit at that time. Dkt.
26 No. 26 at 1, 6. Defendant Luke states that the BOP has no record of ever receiving these
27 submissions or otherwise making any determination with respect to them. Dkt. No. 23-1 at 3-4, 6-
1 On April 4, 2018, plaintiff filed a claim under the Federal Tort Claim Act, which was
2 denied on June 11, 2018. Dkt. No. 26 at 10-12, 14.
3 DISCUSSION
4 Defendant Luke argues that this action should be dismissed under Fed. R. Civ. P. 12(b)(6)
5 because a Bivens remedy should not be extended to plaintiff’s claim pursuant to Ziglar v. Abbasi,
6 137 S. Ct. 1843 (2017). In the alternative, defendant argues that the Court should grant summary
7 judgment in her favor because plaintiff failed to exhaust her administrative remedies, defendant
8 Luke did not violate plaintiff’s Eighth Amendment rights, and defendant Luke is entitled to
9 qualified immunity. Dkt. No. 23.
10 The Court finds that, viewing the record in the light most favorable to plaintiff, there is no
11 triable issue of material fact as to whether defendant Luke violated plaintiff’s Eighth Amendment
12 rights, and defendant Luke is therefore entitled to qualified immunity. The Court GRANTS
13 summary judgment on these grounds. As such, the Court need not address defendant Luke’s other
14 arguments.
15 I. Summary Judgment Standard
16 Summary judgment is proper where the pleadings, discovery and affidavits show there is
17 “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
18 law.” See Fed. R. Civ. P. 56(a) (2014). Material facts are those that may affect the outcome of the
19 case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material
20 fact is genuine if the evidence is such that a reasonable jury could return a verdict for the
21 nonmoving party. See id.
22 A court shall grant summary judgment “against a party who fails to make a showing
23 sufficient to establish the existence of an element essential to that party’s case, and on which that
24 party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an
25 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
26 See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial
27 burden of identifying those portions of the record that demonstrate the absence of a genuine issue
1 pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and
2 admissions on file, ‘designate ‘specific facts showing that there is a genuine issue for trial.’” See
3 id. at 324 (citing Fed. R. Civ. P. 56(e)).
4 For purposes of summary judgment, the court must view the evidence in the light most
5 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with
6 evidence produced by the nonmoving party, the court must assume the truth of the evidence
7 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).
8 The court’s function on a summary judgment motion is not to make credibility determinations or
9 weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc., v.
10 Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
11 II. Legal Standard
12 The treatment a prisoner receives in prison and the conditions under which he is confined
13 are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31
14 (1993). The Eighth Amendment requires that prison officials take reasonable measures to
15 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The failure of
16 prison officials to guarantee inmate safety violates the Eighth Amendment when two requirements
17 are met: (1) the inmate must show that she is incarcerated under conditions that pose a substantial
18 risk of serious harm; and (2) the prison official is, subjectively, deliberately indifferent to inmate
19 health or safety. Farmer, 511 U.S. at 834. To establish liability under the Eighth Amendment, the
20 prison official must know of and disregard an excessive risk to inmate safety by failing to take
21 reasonable steps to abate it. Id. at 837. The official must both be aware of facts from which the
22 inference could be drawn that a substantial risk of serious harm exists, and she must also draw the
23 inference. Id. at 837. Neither negligence nor gross negligence will constitute deliberate
24 indifference. See Farmer, 511 U.S. at 835–36 & n.4; Estelle v. Gamble, 429 U.S. 97, 106 (1976).
25 III. Analysis
26 Viewing the facts in the light most favorable to plaintiff, the Court presumes that defendant
27 Luke was aware that plaintiff had been issued and regularly wore a khaki-colored dress whereas
1 viewed in the light most favorable to plaintiff, does not demonstrate a triable issue of fact as to
2 whether (1) allowing plaintiff to wear a khaki-colored dress subjected plaintiff to a substantial risk
3 of serious harm; and (2) defendant Luke knew that wearing a khaki-colored dress placed an inmate
4 at risk of being shot at by correctional officials, and defendant Luke ignored this risk.
5 There is no triable issue of fact as to the first element of the Eighth Amendment claim.
6 Plaintiff has not established that inmates wearing clothing that differed in color from the mandated
7 uniform color were at substantial risk of being fired upon by correctional officers. It is undisputed
8 that there has never been an instance of a correctional official firing on an FCI-Dublin inmate. In
9 addition, none of the FCI-Dublin correctional officials involved in allowing the khaki-colored
10 dress (Giles, Ashforth, Rhaney, Phillips, Castillo) expressed any concern about the khaki-colored
11 dress causing confusion as to whether plaintiff was trying to escape from the adjacent minimum
12 security institution.1 Given this context, Unit Manager Moore’s statement does not, by itself,
13 establish a triable issue of fact as to whether plaintiff faced a serious risk of substantial harm.
14 Plaintiff has not identified any evidence from which a reasonable jury could conclude that wearing
15 a khaki-colored uniform in the minimum security camp when the mandated uniform color was
16 blue subjected an inmate to a risk of being shot.
17 There is no triable issue of fact as to the second element of the Eighth Amendment claim.
18 Even if plaintiff faced a serious risk of substantial harm when she wore the khaki-colored uniform,
19 to survive summary judgment, plaintiff must establish that there is a triable issue of fact as to
20 whether defendant Luke was aware of this risk. There is nothing in the record that indicates that
21 defendant Luke shared Unit Manager Moore’s assessment of the risk that plaintiff faced when
22 wearing a khaki-colored dress. Plaintiff argues that “any reasonable person would have known
23 that this was a violation of [prison] policy that put plaintiff at risk for substantial harm.” Dkt. No.
24 26 at 3. While obviousness of risk may be one factor in demonstrating subjective knowledge, a
25
1 It appears that plaintiff continued to wear the khaki-colored dress after her encounter with Unit
26
Manager Moore. The day after Unit Manager Moore allegedly told plaintiff that the khaki-colored
uniform put her at risk of being shot, plaintiff sought to continue wearing the dress. She requested
27
that FCI-Dublin Captain Castillo provide her with a memorandum, a copy of which she would
1 defendant’s liability must still be based on actual awareness of the risk rather than constructive
2 knowledge. Harrington v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015). Plaintiff has not
3 designated specific facts showing that Defendant Luke knew that plaintiff faced a serious risk of
4 substantial harm when she wore the khaki-colored uniform, much less ignored that risk.
5 Plaintiff’s Bivens claim against defendant Luke fails because her unsupported allegation
6 that Unit Manager Moore accurately described the risk to plaintiff’s safety when wearing the
7 khaki-colored dress and her conclusory allegation that defendant Luke was aware of this risk are
8 insufficient to create a genuine issue of material fact. See Arpin v. Santa Clara Valley Transp.
9 Agency, 261 F.3d 912, 922 (9th Cir.2001) (stating that conclusory allegations unsupported by
10 factual data are insufficient to defeat a summary judgment motion).
11 IV. Qualified Immunity
12 Defendant Luke argues that she is entitled to qualified immunity because she did not
13 violate plaintiff’s Eighth Amendment rights, or because the issuance of a khaki dress in this
14 particular context did not violate any clearly established law.
15 Qualified immunity is an entitlement, provided to government officials in the exercise of
16 their duties, not to stand trial or face the other burdens of litigation. Saucier v. Katz, 533 U.S. 194,
17 200 (2001). The doctrine of qualified immunity attempts to balance two important and sometimes
18 competing interests—“the need to hold public officials accountable when they exercise power
19 irresponsibly and the need to shield officials from harassment, distraction, and liability when they
20 perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal
21 quotation marks and citation omitted). The doctrine thus intends to take into account the real-
22 world demands on officials in order to allow them to act “‘swiftly and firmly’” in situations where
23 the rules governing their actions are often “‘voluminous, ambiguous, and contradictory.’” Mueller
24 v. Auker, 576 F.3d 979, 993 (9th Cir. 2009) (citing Davis v. Scherer, 468 U.S. 183, 196 (1984)).
25 “The purpose of this doctrine is to recognize that holding officials liable for reasonable mistakes
26 might unnecessarily paralyze their ability to make difficult decisions in challenging situations,
27 thus disrupting the effective performance of their public duties.” Id. To determine whether an
1 violated a constitutional right, and (2) that right was clearly established at the time of the incident.
2 || Pearson, 555 U.S. at 232. Courts are not required to address the two qualified immunity issues in
3 any particular order, and instead may “exercise their sound discretion in deciding which of the two
4 || prongs of the qualified immunity analysis should be addressed first in light of the circumstances in
5 || the particular case at hand.” Id. at 236.
6 With respect to the second prong of the qualified immunity analysis, the Supreme Court
7 || has recently held that “[a]n officer cannot be said to have violated a clearly established right unless
8 || the right’s contours were sufficiently definite that any reasonable official in his shoes would have
9 || understood that he was violating it, meaning that existing precedent . . . placed the statutory or
10 || constitutional question beyond debate.” City & Cty. of San Francisco, Calif. v. Sheehan, 135 S.
11 Ct. 1765, 1774 (2015) (citation and internal quotation marks omitted). This is an “exacting
12 || standard” which “gives government officials breathing room to make reasonable but mistaken
5 13 || judgments by protecting all but the plainly incompetent or those who knowingly violate the law.”
14 || Id. (citation and internal quotation marks omitted). In conducting this analysis, the Court must
3 15 || determine whether the pre-existing law provided defendants with “fair notice” that their conduct
a 16 || was unlawful. Jd. at 1777.
3 17 As discussed above, the record before the Court, viewed in the light most favorable to
18 || plaintiff does not establish an Eighth Amendment violation. Accordingly, Defendant Luke is
19 entitled to summary judgment on the alternative ground of qualified immunity.
20 CONCLUSION
21 For the foregoing reasons, the Court GRANTS summary judgment in favor of defendant
22 || Luke. The Clerk shall enter judgment in favor of defendant and against plaintiff, and close the
23 case.
24 This order terminates Dkt. No. 23.
25 IT IS SO ORDERED.
26 || Dated: 10/2/2020
21 Aasperd 3 Mbt)
28 HAYWOOD S. GILLIAM, JR.
United States District Judge