# McCullock v. Scharr

> District Court, S.D. California · July 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10084052

## Case

- **Court:** District Court, S.D. California
- **Decided:** July 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10084052

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 ROBERT McCULLOCK, Case No.: 3:19-cv-2110-DMS-DEB
CDCR #V-32182,
12
ORDER GRANTING DEFENDANTS’
Plaintiff,
13 MOTION FOR SUMMARY
vs. JUDGMENT PURSUANT TO Fed. R.
14
Civ. P. 56(a)
N. SCHARR, Correctional Sergeant;
15
H. FERREL, Correctional Lieutenant
[ECF No. 35]
16 T. MARTINEZ, Correctional Captain;
J. JUAREZ, Associate Warden;
17
SMITH, Correctional Officer;
18 DOE -10,

19
Defendants.
20
21
22 ROBERT McCULLOCK (“Plaintiff”), a prisoner currently incarcerated at the
23 California Mens Colony located in San Luis Obispo, California, is proceeding pro se and
24 in forma pauperis (“IFP”) in this civil action pursuant to 42 U.S.C. § 1983. In his
25 Complaint (“Compl.”), Plaintiff alleges Richard J. Donovan Correctional Facility
26 (“RJD”) prison officials violated his Eighth Amendment rights when they failed to
27
28
1 protect him from an attack by another inmate. See ECF No. 1 at 4-6.
2 I. Procedural History
3 On December 3, 2019, the Court granted Plaintiff leave to proceed IFP pursuant to
4 28 U.S.C. § 1915(a) and screened his Complaint before service as required by 28 U.S.C.
5 § 1915(e)(2) and § 1915A(b). See ECF No. 6. The Court sua sponte dismissed Defendant
6 Covello but found Plaintiff’s Eighth Amendment failure to protect claims against
7 Defendants Scharr, Ferrel, Martinez, Juarez, and Smith (“Defendants”) sufficient to state
8 plausible claims upon which relief may be granted. Id. at 5-7.
9 Defendants filed an Answer to Plaintiff’s Complaint on February 18, 2020. See
10 ECF No. 22. On February 12, 2021, Defendants filed a Motion for Summary Judgment.
11 See ECF No. 35. On February 16, 2021, the Court notified Plaintiff of the requirements
12 for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th
13 Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and set a
14 briefing schedule. See ECF No. 36. Plaintiff filed his Opposition to Defendants’ Motion
15 on April 2, 2021. See ECF No. 40. Defendants filed their Reply to Plaintiff’s Opposition
16 on April 2, 2021. See ECF No. 41.
17 The Court determined that a report and recommendation from Magistrate Judge
18 Butcher was not necessary, no oral argument was required, and took Defendants’ Motion
19 for Summary Judgment under submission for resolution on the papers pursuant to S.D.
20 CAL. CIVLR 7.1.d.
21 Having carefully considered the record as submitted, the Court now GRANTS
22 Defendants’ Motion for Summary Judgment.
23 / / /
24
25

26
27 1 Page numbers for all documents filed in the Court’s Case Management/Electronic Case
File (“CM/ECF”) will refer to the pagination generated by CM/ECF as indicated on the
28
1 II. Factual Background
2 A. Plaintiff’s Claims
3 Plaintiff alleges that he was assaulted by Inmate Anthony Muci (“Muci”) on May 16,
4 2019. (See Compl. at 12.) Plaintiff had returned to his cell after dinner and “sat at the
5 table facing away from the door.” (See id.) Plaintiff claims that was the “last [he]
6 remember[ed] until regaining consciousness approximately [six] hours later at Scripps
7 Hospital [Emergency Room].” (Id.)
8 Plaintiff contends Muci “has attacked elders before,” as well as having been a
9 “general population” inmate who is “always enemy to all “SNY” (special needs yard).”
10 (Id.) Plaintiff is seventy years old and “part deaf.” (Id.) Plaintiff alleges that the
11 “custody staff of [RJD] knew or should have known of Musi’s combative history but
12 chose to turn a blind eye.” (Id. at 17.)
13 B. Defendants’ Claims
14 On May 16, 2019, Defendant Scharr, an RJD correctional sergeant, was “directed to
15 secure housing on Facility D for an inmate with a lower-tier/lower-bunk restriction who
16 was a C-PAP user, but not a wheelchair user.” (Scharr Decl., ECF No. 35-4 at ¶ 2) At the
17 time, “Housing Unit 20 on Facility D was the preferred housing unit for non-wheelchair-
18 bound C-PAP-using inmates because most of the electrical outlet configuration in the
19 cells provided power to C-PAP units better than those in other housing units.” (Id. at ¶
20 3.)
21 After Scharr directed staff to find the “first available cell placement that would
22 accommodate a lower-tier/lower-bunk-restricted inmate, and to start with Housing Unit
23 20.” (Id.) It was discovered that Muci was a “lower-tier cell assigned to a lower bunk”
24 but he did not have a “lower-tier restriction.” (Id.) So moving Muci to an “upper-tier”
25 cell that accommodated a “lower-bunk restriction” would allow an inmate requiring a C-
26 PAP to be housed in Muci’s cell. (Id.)
27 / / /
28 / / /
1 It was also discovered that Plaintiff had a cell on the upper tier, no cellmate, and he
2 had no “housing restrictions dating back to 2017, including no lower-bunk or lower-tier
3 restriction.” (Id. at ¶ 4.) Officer Herrera, who worked second watch, “requested that
4 [Plaintiff] be reassigned to the upper bunk in his same cell.” (Id. at ¶ 5.) Officer Erece2,
5 who worked third watch, “requested that [Muci] be reassigned to [Plaintiff’s] cell to the
6 lower bunk.” (Id. at ¶ 6.) Scharr “reviewed and approved this request.” (Id.)
7 Plaintiff and Muci’s moves were finalized and the inmate requiring the C-PAP was
8 “assigned to the lower bunk that [Muci] had occupied.” (Id. at ¶ 7.) “After reviewing
9 housing information” for Plaintiff and Muci, Scharr “made the decision” to house Muci
10 in Plaintiff’s cell. (Id. at ¶ 8.) Scharr maintains that Defendants Ferrel, Juarez, Martinez,
11 and Smith “were not involved in this housing decision.” (Id.) Scharr reviewed Muci’s
12 file and determined that on April 26, 2019 Muci had be “evaluated and cleared for
13 double-cell housing by a committee (which included a captain) that would have
14 thoroughly evaluated [Muci’s] background, Rules Violation Reports, and other case
15 factors, in the process of determining his housing restrictions.” (Id.)
16 Scharr maintains that before the “May 16, 2019 incident, [he] did not believe that
17 [Muci] would assault [Plaintiff], or anyone else.” (Id. at ¶ 11.) His review of Muci’s file
18 indicated that the “last incident before May 16, 2019, involving [Muci] and another
19 inmate occurred on April 11, 2018, when [Muci] received a Rules Violation Report for
20 fighting with his cellmate, but the cellmate admitted to hitting [Muci] first and that
21 [Muci] was simply defending himself.” (Id. at ¶ 13.) Both inmates signed “paperwork
22 confirming that the incident was just a misunderstanding, that no safety issues existed,
23 and they could continue to cell together.” (Id.) Muci had another incident on April 20,
24 1999 which resulted in a charge of “battery on an inmate without serious injury.” (Id.)
25
26
27
28
1 III. Motion for Summary Judgment
2 Defendants have moved for summary judgment on the grounds that: (1)
3 Defendants were not deliberately indifferent to Plaintiff’s safety; (2) Plaintiff’s
4 Fourteenth Amendment claim should be dismissed; (3) Defendants are entitled to
5 qualified immunity; and (4) Plaintiff failed to exhaust his administrative remedies
6 pursuant to 42 U.S.C. § 1997e(a) prior to filing his 42 U.S.C. § 1983 complaint in this
7 Court. (See Defs.’ P&As in Supp. of Summ. J. Mot. [“Defs.’ P&As”], ECF No. 20 at 19-
8 30.)
9 A. Legal Standards for Summary Judgment pursuant to FRCP 56
10 Summary judgment is appropriate when the moving party “shows that there is no
11 genuine dispute as to any material fact and the movant is entitled to judgment as a matter
12 of law.” Fed. R. Civ. P. 56(a). The “purpose of summary judgment is to ‘pierce the
13 pleadings and to assess the proof in order to see whether there is a genuine need for
14 trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
15 (citations omitted).
16 As the moving parties, the Defendants “initially bear[] the burden of proving the
17 absence of a genuine issue of material fact.” Nursing Home Pension Fund, Local 144 v.
18 Oracle Corp., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477
19 U.S. 317, 323 (1986)). Defendants may accomplish this by “citing to particular parts of
20 materials in the record, including depositions, documents, electronically stored
21 information, affidavits or declarations, stipulations (including those made for purposes of
22 the motion only), admission, interrogatory answers, or other materials” or by showing
23 that such materials “do not establish the absence or presence of a genuine dispute, or that
24 the adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
25 56(c)(1)(A), (B).
26 While Plaintiff bears the burden of proof at trial, Defendants “need only prove that
27 there is an absence of evidence to support [Plaintiff’s] case.” Oracle Corp., 627 F.3d at
28 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed,
1 summary judgment should be entered, after adequate time for discovery and upon
2 motion, against a party who fails to make a showing sufficient to establish the existence
3 of an element essential to that party’s case, and on which that party will bear the burden
4 of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning
5 an essential element of the nonmoving party’s case necessarily renders all other facts
6 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long
7 as whatever is before the district court demonstrates that the standard for entry of
8 summary judgment . . . is satisfied.” Id. at 323.
9 If Defendants, as the moving parties, meet their initial responsibility, the burden
10 then shifts to Plaintiff to establish a genuine dispute as to any material facts that exist.
11 Matsushita, 475 U.S. at 586. To establish the existence of this factual dispute, Plaintiff
12 must then present evidence in the form of affidavits and/or admissible discovery material
13 to support his contention that a genuine dispute exists. See Fed. R. Civ. P. 56(c)(1);
14 Matsushita, 475 U.S. at 586 n.11. “A [p]laintiff’s verified complaint may be considered
15 as an affidavit in opposition to summary judgment if it is based on personal knowledge
16 and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132
17 n.14 (9th Cir. 2000) (en banc).
18 Plaintiff must also demonstrate that the fact in contention is material, i.e., a fact
19 that might affect the outcome of his suit under the governing law, see Anderson v. Liberty
20 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
21 Assoc., 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the
22 evidence is such that a reasonable jury could return a verdict for him. See Wool v.
23 Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
24 Finally, district courts must “construe liberally motion papers and pleadings filed
25 by pro se inmates and . . . avoid applying summary judgment rules strictly.” Thomas v.
26 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However, if Plaintiff “fails to properly
27 support an assertion of fact or fails to properly address [Defendant’s] assertion of fact, as
28 required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the
1 motion . . . .” Fed. R. Civ. P. 56(e)(2). Nor may the Court permit Plaintiff, as the
2 opposing party, to rest solely on conclusory allegations of fact or law. Berg v. Kincheloe,
3 794 F.2d 457, 459 (9th Cir. 1986). A “motion for summary judgment may not be
4 defeated. . . by evidence that is ‘merely colorable’ or ‘is not significantly probative.’”
5 Anderson, 477 U.S. at 249–50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th
6 Cir. 2006); Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) (“‘[M]ere allegation
7 and speculation do not create a factual dispute for purposes of summary judgment.’”)
8 (quoting Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081 (9th Cir. 1996)) (brackets in
9 original)).
10 B. Eighth Amendment Deliberate Indifference
11 Defendants argue that they are entitled to summary judgment on Plaintiff’s Eighth
12 Amendment claim as they did not act with deliberate indifference when they housed
13 Plaintiff with Muci. (See Defs. P&As at 19-21.)
14 “‘[P]rison officials have a duty . . . to protect prisoners from violence at the hands
15 of other prisoners.’” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-
16 Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “The failure of
17 prison officials to protect inmates from attacks by other inmates may rise to the level of
18 an Eighth Amendment violation when: (1) the deprivation is ‘objectively, sufficiently
19 serious’ and (2) the prison officials had a ‘sufficiently culpable state of mind,’ acting with
20 deliberate indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)
21 (quoting Farmer, 511 U.S. at 834). The second prong of this test is subjective, and “the
22 official must both be aware of facts from which the inference could be drawn that a
23 substantial risk of serious harm exists, and he must also draw the inference.” See
24 Farmer, 511 U.S. at 837. “‘Deliberate indifference entails something more than mere
25 negligence but is satisfied by something less than acts or omissions for the very purpose
26 of causing harm or with knowledge that harm will result.’” Hearns, 413 F.3d at 1040
27 (quoting Farmer, 511 U.S. at 835) (internal alterations omitted)). “[A]n official’s failure
28 to alleviate a significant risk that he should have perceived but did not, while no cause for
1 commendation, cannot under [the Supreme Court’s] cases be condemned as the infliction
2 of punishment.” Farmer, 511 U.S. at 838.
3 In order to satisfy the first prong of a failure to protect claim that the deprivation is
4 objectively serious, it must be shown that Plaintiff was “incarcerated under conditions
5 posing a substantial risk of serious harm.” Lemire v. Cal. Dep’t of Corr. & Rehab., 726
6 F.3d 1062, 1075 (9th Cir. 2013) (citing Farmer, 511 U.S. at 834). “The objective
7 question of whether a prison officer’s actions have exposed an inmate to a substantial risk
8 of serious harm is a question of fact, and as such must be decided by a jury if there is any
9 room for doubt.” Id. at 1075-76.
10 Defendants argue that Scharr was “directed to find appropriate housing” for a
11 “non-wheelchair-bound C-PAP using inmate” who required a “lower-tier/lower-bunk.”
12 (Defs.’ P&As at 19; Scharr Decl. at ¶ 2.) Because the building to which Plaintiff was
13 assigned had “most of the electrical outlet configuration in the cells provided power to C-
14 PAP units better than those in other housing units.” (Scharr Decl. at ¶ 2.) Plaintiff
15 disputes this and claims, without citation to any supporting evidence, that “many other
16 cells, in other buildings have multiple outlets.” (Pl.’s Opp’n at 2.) Scharr directed
17 “Facility D staff” to look for a cell that would accommodate this inmate and they found
18 that “inmate Muci was in a lower-tier cell” but he did not have a “lower-tier restriction,
19 only a lower-bunk restriction.” (Scharr Decl. at ¶ 3.) Again, Plaintiff disputes this
20 assertion and maintains that staff was “manipulated” by this inmate who uses a C-PAP
21 because this inmate wanted to “move back to the same cell” where he was housed before
22 he served a disciplinary sentence. (Pl.’s Opp’n at 2.) Plaintiff claims that this inmate
23 “manipulated staff at Plaintiff’s expense.” However, Plaintiff does not dispute that Muci
24 did not have a lower-tier restriction. (See id. at 3.) Scharr attests that they also
25 determined that Plaintiff did not have a cellmate, was eligible for “double-cell housing,”
26 and had “no housing restrictions.” (Scharr at ¶ 4.) Plaintiff does not dispute this
27 statement. (See Pl.’s Opp’n at 3.) Scharr “reviewed and approved” staff’s request to
28 move Muci to Plaintiff’s cell and allowed the inmate with the C-PAP to move into
1 Muci’s cell. (Id. at ¶¶ 5-8.) Plaintiff claims that Scharr “reviewed housing information
2 of Muci and knew of priors” but offers no evidence in the record that Plaintiff points to
3 that clarifies what he understands or has direct knowledge of what these “priors” were or
4 how Scharr purportedly knew of these “priors.” (Pl.’s Opp’n at 4.)
5 Scharr does attest that his review of Muci’s file indicated that “on April 26, 2019,
6 inmate Muci had been evaluated and cleared for double-cell housing by a committee”
7 that would have “thoroughly reviewed inmate Muci’s background, Rules Violation
8 Reports, and other case factors, in the process of determining his housing restrictions.”
9 (Scharr Decl. at ¶ 9.) Scharr also acknowledges that Muci did have a fight with a
10 cellmate in April of 2018 but Muci’s cellmate admitted to being the attacker and it was
11 found that Muci was “simply defending himself.” (Id. at ¶ 13.) Plaintiff responds in is
12 Opposition by stating this previous altercation Muci had “has no bearing to this case.”
13 (Pl.’s Opp’n at 6.) Plaintiff does not dispute Scharr’s testimony that Muci’s altercation
14 with a previous cellmate did not raise any concern to Defendants that Muci would be a
15 danger to Plaintiff.
16 Plaintiff argues that because he has not personally gone through evaluations by a
17 committee , the fact that Muci was evaluated such a committee “would infer to a
18 reasonable person that Muci need[ed] a thorough looking over.” (Pl.’s Opp’n at 5.)
19 Plaintiff testified that he personally knew “nothing” about inmate Muci before the attack
20 occurred. (Defs. Ex. 5, Pl.’s Depo., ECF No. 35-1, 20:9-11.) Plaintiff does not point to
21 any evidence to support his claim that any of the named Defendants were aware that
22 Muci would attack Plaintiff or that the risk was present that Muci would attack Plaintiff.
23 Based on record before the Court, the Court finds that Defendants have satisfied
24 their initial burden to show an absence of evidence to support Plaintiff’s claims that they
25 failed to protect him from substantial harm. Now Plaintiff must establish a genuine
26 dispute as to any material facts that exist. See Matsushita, 475 U.S. at 586.
27 The evidence in the record before the Court demonstrates that Scharr was unaware
28 that inmate Muci would expose Plaintiff to a substantial risk of serious harm. Plaintiff
1 offers no evidence to dispute this. The remaining Defendants, Officer Smith, Lieutenant
2 Ferrel, Associate Warden Juarez, or Lieutenant Martinez, argue that Plaintiff “has no
3 admissible evidence” that they “knew that inmate Muci had a combative history toward
4 older inmates.” (Defs. P&As at 21.) When Plaintiff was asked what evidence he had that
5 Scharr had prior knowledge inmate Muci’s “combative history towards older inmates,”
6 Plaintiff testified that the “only information that [he] had after the incident was only by
7 rumor.” (Defs. Ex. 5, ECF No. 35-1, Pl.’s Depo 27:22 – 28:1.) He further testified that
8 he had “no hard physical proof” that Scharr had any prior knowledge of inmate Muci’s
9 purported history of violence with other inmates.
10 When Plaintiff was asked to identify what evidence he had that Defendant Ferrel
11 “knew . . . that Muci had a combative history towards inmates.” (Id. at 29:25-30:2.)
12 Plaintiff responded by testifying to claims of retaliation by Ferrel towards him after the
13 incident with Muci but offers no testimony or other evidence that Defendant Ferrel was
14 aware of a history of violence by inmate Muci.
15 Plaintiff was questioned as to whether he had “any evidence that Associate Warden
16 Juarez knew that inmate Muci had a combative history towards older inmates.” (Id. at
17 32:1-3.) Plaintiff testified that he did not have any such evidence. (Id. at 32:4.) Plaintiff
18 was presented with the same question as to Defendant Smith. (Id. at 32:5-7.) Plaintiff
19 offered no specific testimony as to any knowledge on the part of Smith but instead
20 testified as to general issues with “custody staff” whom he claimed went “out of their
21 way to set up such situations where there’s a combative situation.” (Id. at 31:11-13.)
22 Finally, Plaintiff was asked the same question as to whether he had any evidence that
23 Defendant Martinez was aware of inmate Muci’s purported history and he testified
24 “[n]o.” (Id. at 33:4-9.)
25 Viewing the evidence and reasonable inferences in the light most favorable to
26 Plaintiff, the Court finds there is no genuine dispute of material fact with regard to
27 Plaintiff’s Eighth Amendment failure to protect claim. See Celotex, 477 U.S. at 323
28 (“[A] complete failure of proof concerning an essential element of the nonmoving party’s
1 case necessarily renders all other facts immaterial.”). Accordingly, Defendants’ Motion
2 for Summary Judgment as to Plaintiff’s Eighth Amendment claim is GRANTED.
3 C. Supervisory Liability
4 Plaintiff seeks to hold all Defendants liable based on their purported failure to
5 “follow CDCR’s Department Operation Manual” and their “failure to train.” (Compl. at
6 5.) Defendants seek summary judgment of these claims on the ground that there is no
7 supervisory liability in § 1983 actions and there is no admissible evidence that any of the
8 named Defendants had actual knowledge of inmate Muci’s alleged combative history
9 with other inmates. (See Defs.’ P&As at 22-23.)
10 “A plaintiff must allege facts, not simply conclusions, that show that an individual
11 was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152
12 F.3d 1193, 1194 (9th Cir. 1998). A person deprives another of a constitutional right
13 under section 1983, where that person “‘does an affirmative act, participates in another’ s
14 affirmative acts, or omits to perform an act which [that person] is legally required to do
15 that causes the deprivation of which complaint is made.’” Johnson v. Duffy, 588 F.2d
16 740, 743 (9th Cir. 1978). The “requisite causal connection can be established not only by
17 some kind of direct personal participation in the deprivation, but also by setting in motion
18 a series of acts by others which the actor knows or reasonably should know would cause
19 others to inflict the constitutional injury.” Id. at 743-44. There is no respondeat superior
20 liability under § 1983; therefore, supervisors, like the named Defendants, may be held
21 liable for the constitutional violations of his or her subordinates only if they “participated
22 in or directed the violations, or knew of the violations and failed to act to prevent them.”
23 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). As set forth above in referring to
24 Plaintiff’s testimony in his deposition, he could not point to any evidence that any of the
25 named Defendants had actual knowledge that inmate Muci was a threat to his safety.
26 To prevail on the failure to train claim, Plaintiff must be able to show that
27 Defendants, in their individual capacities, were “deliberately indifferent to the need to
28 train subordinates, and the lack of training actually caused the constitutional harm or
1 deprivation of rights.” Flores v. Cnty. of L.A., 758 F.3d 1154, 1159 (9th Cir. 2014)
2 (quoting Connick v. Thompson, 563 U.S. 51, 62 (2011)).
3 Plaintiff fails to provide any specific factual allegations or evidence to support that
4 any Defendant failed to properly train Defendant Scharr. He does not specify in his
5 Complaint, Opposition to Defendants’ Motion or in his deposition testimony in the record
6 how the alleged lack of training led to the events giving rise to this action. It appears that
7 Plaintiff is merely speculating that a lack of training led to the assault by inmate Muci
8 and speculation is insufficient to create a triable issue of material fact. Plaintiff has not
9 pointed to any evidence in the record that any named Defendant was deliberately
10 indifferent to the need for training. Plaintiff implies, without any evidentiary support, that
11 Scharr made the decisions to move inmates to different cells but lacked the authority to
12 do so. He does not set forth any evidence that Scharr made decisions that exceeded his
13 authority or that his decisions were made due to a lack of training by Defendants.
14 Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiff’s failure
15 to train claims is GRANTED pursuant to FED.R.CIV.P. 56.
16 D. Fourteenth Amendment claims
17 Plaintiff seeks to bring Fourteenth Amendment substantive due process claims
18 based on the same set of facts that gave rise to his Eighth Amendment claims. “Where a
19 particular Amendment ‘provides an explicit textual source of constitutional protection’
20 against a particular sort of government behavior, ‘that Amendment, not the more
21 generalized notion of “substantive due process,” must be the guide of analyzing these
22 claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490
23 U.S. 386, 395 (1989)). “[I]f a constitutional claim is covered by a specific constitutional
24 provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under
25 the standard appropriate to that specific provision, not under the rubric of substantive due
26 process.” United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997). Here, Plaintiff’s
27 Fourteenth Amendment “state created danger” allegations are based on the same set of
28 facts he has brought his claims of violation of the Eighth Amendment’s prohibition of
1 cruel and unusual punishment and thus, his claims should be analyzed under the Eighth
2 || Amendment.
3 Therefore, Defendants’ Motion for Summary Judgment as to Plaintiff's Fourteenth
4 || Amendment claims is GRANTED pursuant to FED.R.CIv.P. 56.
5 E. Qualified Immunity and Exhaustion of Administrative Remedies
6 Defendants also move for summary judgment on the ground that they are entitled
7 || to qualified immunity. Because the Court has found that Defendants are entitled to
8 ||summary judgment as to all of Plaintiff's claims, it need not reach any issues regarding
9 || qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional
10 would have been violated were the allegations established, there is no necessity for
11 || further inquiries concerning qualified immunity.”); County of Sacramento v. Lewis, 523
12 || U.S. 833, 841 n.5 (1998) (“[The better approach to resolving cases in which the defense
13 || of qualified immunity is raised is to determine first whether the plaintiff has alleged the
14 || deprivation of a constitutional right at all.”).
15 In addition, to the extent that Defendants seek summary judgment of Plaintiff's
16 ||claims based on the argument that Plaintiff did not exhaust his administrative remedies
17 || prior to filing this action pursuant to 42 U.S.C. § 1997e, the Court also finds that it need
18 || not reach this issue as the Court has found that Defendants are entitled to summary
19 || judgment as to all of Plaintiffs claims.
20 ||/IV. Conclusion and Order
21 For all the reasons explained, the Court:
22 GRANTS Defendants’ Motion for Summary Judgment pursuant to Fed.R.Civ.P.
23 ||56. The Clerk of Court is directed to enter judgment for all Defendants and close the file.
24 IT IS SO ORDERED. »
25 ||Dated: July 14, 2021
36 Hon. Dana M. Sabraw, Chief Judge
United States District Court
27
28
13

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10084052. Public record. Not legal advice.