(PC) Melendez v. Diaz

1

2

3

4

5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF CALIFORNIA

7

8 FREDDY ANTHONY MENDOZA, et Case No. 1:20-cv-01393-KES-CDB

al.,

9 FINDINGS AND RECOMMENDATIONS TO

Plaintiffs, GRANT DEFENDANTS’ MOTION FOR

10 SUMMARY JUDGMENT

v.

11 (Doc. 89)

RALPH DIAZ, et al.,

12 14-DAY DEADLINE TO FILE

Defendants. OBJECTIONS

13

14

15 Pending before the Court is the motion for summary judgement by Defendants Rosemary

16 Ndoh (“Ndoh” or “Warden Ndoh”) and Ralph Diaz (“Diaz” or “Secretary Diaz”). (Doc. 89).

17 Defendants contend the undisputed facts demonstrate that they are not liable for deliberate

18 indifference under the Eighth Amendment and are also immune from liability under the doctrine

19 of qualified immunity. Plaintiffs Freddy Anthony Mendoza (“Mendoza”) and Salvador Salazar

20 (“Salazar”) filed an opposition to Defendants’ motion on March 29, 2024 (Doc. 95). Defendants

21 filed a reply on April 9, 2024. (Doc. 96). For the reasons set forth below, the undersigned

22 recommends that Defendants motion for summary judgment be granted.

23 I. Background

24 1. The Inmate Attack at Avenal State Prison on September 29, 2018

25 Plaintiff Mendoza was committed to the California Department of Corrections and

26 Rehabilitation (“CDCR”) from January 14, 2016, to October 25, 2018, and was incarcerated at

27 Avenal State Prison (“ASP”) from August 3, 2016, to November 17, 2018, when he was released

on parole. (Doc. 96-2 Reply to Plaintiffs’ Opposition to Defendants’ Statement of Undisputed

1 Facts in Support of Defendants’ Motion for Summary Judgment; “CSUF” No. 1); (Doc. 89-7

2 “Torres Decl.” ⁋4).1 Plaintiff Salazar was incarcerated at ASP from February 27, 2017, to

3 November 17, 2018, when he was released on parole. (CSUF No. 2; Torres Decl. ⁋5). Plaintiffs

4 are associated with the Fresno Bulldogs (“Bulldogs”), a gang recognized by CDCR as a Security

5 Threat Group (“STG”). (Doc. 15 “First Amended Complaint” or “FAC” ⁋7; CSUF Nos. 8-9).

6 On September 28, 2018, at around 10:30 a.m., ASP officials were informed that an

7 incident occurred at California State Prison, Corcoran (“Corcoran”) where members of the

8 Bulldogs stabbed a high-ranking gang member (“shot caller”) of the Sureños, a rival gang. CSUF

9 No. 11 (citing Doc. 89-4 “Gutierrez Decl.” ⁋7). On that same day, at approximately 6:00 p.m.,

10 the ASP Investigative Services Unit (“ISU”) received credible information regarding a possible

11 threat on all Bulldog inmates in retaliation for the attack on the Sureños at Corcoran. CSUF No.

12 12 (citing Gutierrez Decl. ⁋8). At approximately 9:15 p.m., the ASP ISU received information

13 from a Confidential Reliable Informant (“CRI”) that the Sureños in housing units 510 and 550 at

14 ASP were planning to attack all Bulldogs on the prison yard on September 29, 2018, at around

15 9:00 to 9:15 a.m. CSUF No. 13 (citing Gutierrez Decl. ⁋9). The CRI further stated that the

16 Sureños were obligated to use weapons in their attack. Id. Based on the information received

17 from the CRI, the ASP ISU also suspected that violence would erupt in Facilities E and F, since

18 they housed both Sureños and Bulldogs. CSUF No. 14 (citing Gutierrez Decl. ⁋10).

19 On September 28, 2018, J. Gutierrez, who was then employed as an institutional gang

20 investigator at ASP’s ISU, contacted Paul Vera (“Vera”), ASP’s chief deputy warden, regarding

21 the information ISU had received about the threat to the Bulldogs and whether this threat would

22 affect ASP. Id. ⁋1, 12. Thereafter, Vera placed Facilities E and F in a “modified program” in

23 response to the reported threat. Id. ⁋12.2 Vera contacted Warden Ndoh by phone and informed

24

1 The CSUF is comprised of Defendants’ Statement of Undisputed Facts (Doc. 89-2);

25 Plaintiffs’ objections (Doc. 95-1); and Defendants’ reply to Plaintiffs’ objections. Unless

otherwise noted, the Court cites the CSUF herein where the parties do not dispute the referenced

26 fact.

27 2 While Plaintiffs do not dispute that ASP staff took “some measures” in response to the

information, they dispute Defendants’ characterization of and terminology used in describing

1 her of the threat against the Bulldogs as well as his plan to place Facilities E and F on a modified

2 program. (Doc. 89-5 “Vera Decl.” ⁋8). Modified programs are enacted when correctional

3 officers discover evidence or receive information that violence is being planned by some inmates

4 against other inmates or correctional staff. CSUF No. 22 (citing Vera Decl. ⁋7). Modified

5 programs may suspend certain prison functions like work and education programs, visits,

6 dayroom privileges, and outdoor yard time. Id.

7 According to Vera, Warden Ndoh was away from ASP on September 28 and 29, 2018,

8 and he was the acting warden during this timeframe. Vera Decl. ⁋3. As a general matter, Vera

9 sought out Ndoh’s approval before implementing decisions and all decisions made by Vera were

10 subject to the Ndoh’s approval. (Doc. 78-1, Exhibit C “Ndoh Depo.” pp. 19-20; 21-22).

11 On September 29, 2018, at around 9:12 a.m., the Sureños commenced a coordinated

12 attack on the Bulldogs at ASP housing units 630, 610, 510, and 530. (Doc. 89-6 “Diaz Decl.”

13 ⁋3). The Sureños attacked the Bulldogs with various makeshift weapons, including shivs and

14 padlocks-in-socks (“saps”). (FAC ⁋⁋ 1,7, 27-28, 49). Plaintiffs Mendoza and Salazar were

15 incarcerated in Facility F, Housing Unit 610, Dorm 20 at the time of the attack. (CSUF Nos. 1-2).

16 During the attack, Plaintiff Salazar received multiple stab wounds on his head. (Doc. 95-

17 2, Exhibit J p. 70). Plaintiff Salazar needed to be put in a stretcher and flown to a hospital via

18 helicopter. Id. Plaintiff Mendoza recalls getting kicked, punched, and stabbed. (Doc. 95-2,

19 Exhibit M p. 59). Plaintiff Mendoza recalls being covered in blood from head to toe and being

20 taken in an ambulance. Id. According to the FAC, the attack continued for approximately 20-30

21 minutes. FAC ⁋8. The FAC alleges that 180 inmates affiliated with the Sureños and another

22 STG known as the Mexican Mafia (“EME”) attacked Plaintiffs’ group, which is estimated to be

23 comprised of 18 Bulldogs. Id. ⁋49.

24 Plaintiffs allege Defendants disregarded the substantial risk of harm facing them when

25 Defendants failed to take reasonable measures to protect them from the attack. FAC ⁋⁋69-70.

26 Plaintiffs contend that reasonable defensive measures were known and available to Defendants,

27 but they nevertheless did not take those steps without any reasonable justification. Id. For

1 maintained Plaintiffs at the same location of their attackers, failed to allocate sufficient guards at

2 Facilities E and F, and failed to take preventative measures such as putting a gunner in the blocks.

3 Id. ⁋68. Plaintiffs contend that those were common-sense measures that were previously

4 implemented in similar situations. Id. ⁋69.

5 Plaintiffs initiated this action with the filing of their complaint on September 28, 2020.

6 (Doc. 1). Under the operative FAC, Plaintiffs asserted four causes of action: (1) Deliberate

7 Indifference and Failure to Protect under 42 U.S.C. § 1983; (2) Conspiracy to Deprive Plaintiffs

8 the Equal Protection of the Laws under 42 U.S.C 1985(3); (3) Neglect to Prevent Interference

9 with Civil Rights under 42 U.S.C. § 1986; and (4) Negligence. (FAC ⁋⁋ 64-96). On April 8,

10 2022, the Court granted Defendants’ motion to dismiss in part. (Doc. 26). Plaintiffs’ claims

11 against Defendants in their official capacities were dismissed without leave to amend. Id. at 16.

12 Plaintiffs’ state law negligence claim, §1985(3) claim, and §1986 claim against Defendants in

13 their individual capacities were dismissed with leave to file an amended complaint within 21

14 days. Id. at 16-17. Plaintiffs filed no amended complaint, and thus have elected to proceed

15 against Defendants Diaz and Ndoh only on their Section 1983 deliberate indifference – failure to

16 protect claim.3

17 2. The Defendants

18 Defendant Ralph Diaz served as the acting secretary of CDCR from September 1, 2018, to

19 March 27, 2019. (Doc. 89-8 “Diaz Decl.” ⁋1). On March 27, 2019, Defendant Diaz was

20 appointed as the Secretary of CDCR, a position which he held until October 2020, when he

21 retired. Id. As secretary of CDCR, Defendant Diaz was responsible of state statewide operations

22 for CDCR. Id. ⁋2. Defendant Diaz’s duties included holding regular meetings with executive

23 staff and directors to be briefed on major program and organizational issues of CDCR. Defendant

24 Diaz would meet with prison wardens and other staff each month. Id.

25

26 3 On September 5, 2023, the Court dismissed Plaintiffs John Melendez, Justice Dillon

Pajarillo, Jose Canales, Jr., Pedro Castro, Emerson Gaitan, Carlos Espinoza, Eric Hernandez, and

27

Daniel Garcia for their failure to exhaust administrative remedies. (Doc. 80). Plaintiffs

Alejandrino Manjaraz and Phillip Bernard were dismissed on the parties’ stipulation pursuant to

1 According to Defendant Diaz, his duties and responsibilities as Secretary of CDCR did

2 not include providing oversight of a warden at a particular prison within CDCR, including how to

3 respond to threats posed to inmates by STGs. Instead, the wardens and their managerial staff

4 conducted regular meetings to address day-to-day operations, including how to respond to threats

5 of violence. Id. ⁋3. Likewise, Defendant Diaz’s responsibilities did not involve monitoring gang

6 activity or rival gang friction within CDCR’s prisons, as these activities are handled by each

7 institutions’ ISU, the Office of Correctional Safety, the Director of the Division of Adult

8 Institutions, and the associate director. Id. Nevertheless, Diaz did receive investigative reports

9 from investigative units about high-level gang members when sufficiently serious threats were

10 discovered. (CSUF No. 4).

11 CDCR facilities in 2018 produced daily activity reports that are forwarded the

12 “headquarters mission” and which are “rolled up into a departmental activity report [“DAR”],

13 which is sent out via email to institutions to give them . . . a snapshot of what’s going on”

14 between prisons. CSUF Nos. 4, 5. Those DARs were circulated every day around 5:00 p.m. Id.

15 Defendant Rosemary Ndoh worked for CDCR for over 25 years and was the warden of

16 ASP at the time of the attack against Plaintiffs. CSUF No. 7. Ndoh was not present at ASP at the

17 time of the incident or the day prior. CSUF No. 18.4 Instead, Chief Deputy Warden Vera was

18 managing ASP on her behalf. CSUF No. 19. Defendant Ndoh formerly served as a chief deputy

19 warden and is familiar with that position. Ndoh Depo. p. 18. The chief deputy warden has

20 significant authority over a prison, including oversight of appeals, grievances and prisoner

21 classifications, management of prison programs, conduct of meetings, and control over prison

22 incidents. Id.

23 The prison warden ultimately makes all the decisions in a prison. Id. p. 19. The chief

24 deputy warden would consistently look to the warden for input and ratification of his decisions.

25 Id. If a chief deputy warden wanted to implement his decisions, the warden would either ratify

26 those decisions or correct them if she thought they were wrong. Id. The chief deputy warden’s

27

4 While Plaintiffs dispute the reason for Ndoh’s absence, they do not dispute she was, in

1 decisions are subject to final approval by the warden. Id. p. 22.

2 II. Standard of Law

3 Summary judgment is appropriate where there is “no genuine dispute as to any material

4 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington

5 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine

6 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party,

7 while a fact is material if it “might affect the outcome of the suit under the governing law.”

8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818

9 F.2d 1422, 1436 (9th Cir. 1987).

10 Each party’s position must be supported by: (1) citing to particular portions of materials in

11 the record, including but not limited to depositions, documents, declarations, or discovery; or

12 (2) showing that the materials cited do not establish the presence or absence of a genuine dispute

13 or that the opposing party cannot produce admissible evidence to support the fact. See Fed. R.

14 Civ. P. 56(c)(1). The court may consider other materials in the record not cited to by the parties,

15 but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified

16 School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (on summary judgment, “the court has

17 discretion in appropriate circumstances to consider other materials, [but] it need not do so”).

18 Furthermore, “[a]t summary judgment, a party does not necessarily have to produce evidence in a

19 form that would be admissible at trial.” Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019

20 (9th Cir. 2011) (citations and internal quotations omitted). The focus is on the admissibility of

21 the evidence’s contents rather than its form. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374

22 F.3d 840, 846 (9th Cir. 2004).

23 “The moving party initially bears the burden of proving the absence of a genuine issue of

24 material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex

25 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet its burden, “the moving party must either

26 produce evidence negating an essential element of the nonmoving party’s claim or defense or

27 show that the nonmoving party does not have enough evidence of an essential element to carry its

1 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this initial burden, the burden

2 then shifts to the non-moving party “to designate specific facts demonstrating the existence of

3 genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp.,

4 477 U.S. at 323). The non-moving party must “show more than the mere existence of a scintilla

5 of evidence.” Id. (citing Anderson, 477 U.S. at 252). However, the non-moving party is not

6 required to establish a material issue of fact conclusively in its favor; it is sufficient that “the

7 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

8 versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pac. Elec. Contractors Assoc., 809

9 F.2d 626, 630 (9th Cir. 1987).

10 The court must apply standards consistent with Rule 56 to determine whether the moving

11 party has demonstrated the absence of any genuine issue of material fact and that judgment is

12 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).

13 “[A] court ruling on a motion for summary judgment may not engage in credibility

14 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

15 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the

16 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party.

17 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc.,

18 198 F.3d 1130, 1134 (9th Cir. 2000).

19 II. Discussion

20 1. Evidentiary Objections

21 Plaintiffs filed a statement in opposition to Defendants’ Statement of Undisputed Facts in

22 support of their motion for summary judgment. (Doc. 95-1). Plaintiffs’ opposition is comprised

23 of various points of disputed facts with relevant citations. The undersigned will address the

24 parties’ disputed issues of fact as necessary in tandem with discussion of the relevant points of

25 argument below.

26 Plaintiffs’ opposition also presents evidentiary objections to many of Defendants’

27 proffered undisputed facts as vague, misleading, or irrelevant. See id. A party may “object that

1 admissible in evidence.” Fed. R. Civ. P. 56(c)(2) (emphasis added). “At the summary judgment

2 stage, we do not focus on the admissibility of the evidence’s form. We instead focus on the

3 admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Accord,

4 Nevada Dep’t of Corr., 648 F.3d at 1019; Carmen, 237 F.3d at 1031. Thus, “when evidence is

5 not presented in an admissible form in the context of a motion for summary judgment, but it may

6 be presented in an admissible form at trial, a court may still consider that evidence.” Burch v.

7 Regents of Univ. of Cal., 433 F. Supp.2d 1110, 1120 (E.D. Cal. 2006) (emphasis in original)

8 (citing Fraser, 342 F.3d at 1037).

9 Plaintiffs specifically object to approximately 18 of Defendants’ proffered statements of

10 undisputed fact, largely on vagueness and relevance grounds. See CSFU Nos. 4, 5, 6, 16, 20, 21,

11 22, 25, 26, 37-45. These types of objections are the quintessential type for which, “[i]nstead

12 of objecting, parties should simply argue that the facts are not material.” Burch, 433 F. Supp.2d

13 at 1119-20. As an example, Plaintiffs object on relevance grounds to Defendants’ proffer as an

14 undisputed fact that CDCR and its individual prisons have preexisting response plans to facilitate

15 quelling large-scale incidents while minimizing injuries to suspected participants. CSUF No. 37.

16 The existence of response plans plainly is relevant to allegations that prison officials were

17 deliberately indifferent in the face of an inmate uprising like that at issue in this case. Indeed, as

18 they do with virtually all of the undisputed facts for which they assert relevance objections,

19 Plaintiffs undermine the basis of their objection by coupling it with an argumentative statement of

20 dispute and citations to record evidence for arguably inconsistent facts. See Sandoval v. Cnty. of

21 San Diego, 985 F.3d 657, 665 (9th Cir. 2021) (“if evidence submitted on summary judgment

22 could create a genuine dispute of material fact, it is, by definition, ‘of consequence in determining

23 the action,’ and therefore relevant .... Conversely, if the submitted evidence does not create a

24 genuine dispute of material fact, there is no need for the court to separately determine whether it

25 is relevant because, even assuming it is not, it will not affect the ultimate summary judgment

26 ruling.”). Given that relevance is broadly defined and generally presents a low threshold for

27 admissibility and given that Plaintiffs’ relevance objections are more akin to arguments attacking

1 objections. The objections are pertinent, if at all, to the weight of the fact asserted.

2 To take one example of Plaintiffs’ vagueness objections, Defendants proffer as an

3 undisputed fact that Defendant Diaz “did not have any knowledge” of the attack at ASP until after

4 it was quelled. CSUF No. 5. Plaintiffs argue the assertion is vague because it is unclear whether

5 Defendant Diaz denies knowing about the ASP attack, or about a prior threat of a riot, or of

6 possible violence in general. Id. First, the undersigned disagrees the proffered fact is vague – the

7 assertion about Defendant Diaz’s knowledge of the ASP attack plainly is limited to the actual

8 attack, not circumstances leading up to the attack or violence in general. Second, whatever

9 vagueness is presented in the statement as written, the undersigned is sufficiently confident that

10 Defendants could present at trial an admissible form of the fact to conclude for the purposes of

11 Defendants’ summary judgment motion that Defendants’ vagueness objection is without merit.

12 See Fed. R. Civ. P. 56(c)(2) (party may “object that the material cited to support or dispute a

13 fact cannot be presented in a form that would be admissible in evidence”) (emphasis added);

14 Burch, 433 F. Supp.2d at 1120. The undersigned likewise overrules Plaintiffs’ other vagueness

15 objections on the same grounds.

16 2. Deliberate Indifference

17 A. Standard of Law

18 “The Eighth Amendment imposes a duty on prison officials to protect inmates from

19 violence at the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). In

20 order to prevail on an Eighth Amendment claim, a prisoner must show that prison officials were

21 deliberately indifferent to a substantial risk of harm to his health or safety. Farmer v. Brennan,

22 511 U.S. 825, 847 (1994). “Deliberate indifference” has both subjective and objective

23 components, meaning that objectively, the prison conditions posed a risk of serious harm, and

24 subjectively, a prison official must “be aware of facts from which the inference could be drawn

25 that a substantial risk of serious harm exists, and . . . must also draw the inference.” Id. at 837;

26 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013). “Deliberate

27 indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). A

1 serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer,

2 511 U.S. at 847.

3 A jury may “conclude that a prison official knew of a substantial risk from the very fact

4 that the risk was obvious.” Id. at 842. For instance, if the “plaintiff presents evidence showing

5 that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or

6 expressly noted by prison officials in the past, and the circumstances suggest that the defendant-

7 official being sued had been exposed to information concerning the risk and thus must have

8 known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the

9 defendant-official had actual knowledge of the risk.” Id. at 842-43 (internal quotations omitted).

10 Liability for deliberate indifference may not be premised on constructive notice, but prison

11 officials cannot ignore obvious dangers to inmates. Id. at 842.

12 A defendant may only be held liable as a supervisor under Section 1983 “if there exists

13 either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient

14 causal connection between the supervisor’s wrongful conduct and the constitutional violation.”

15 Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (internal quotation marks and citation

16 omitted); Lolli v. Cnty. of Orange, 351 F.3d 410, 418 (9th Cir. 2003). A supervisor may be liable

17 for her “own culpable action or inaction in the training, supervision, or control of his

18 subordinates”; for her “acquiescence in the constitutional deprivations”; or for “conduct that

19 showed a reckless or callous indifference to the rights of others.” Id. at 1205-05; Lemire v. Cal.

20 Dept’ of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013).

21 B. Discussion

22 Defendant Diaz argues that he was not deliberately indifferent because he received no

23 notice of the attack or otherwise was involved in the incident in any way. (Doc. 89 p. 12).

24 Plaintiffs argue that Defendant Diaz monitored, or at least, received information about high-level

25 gang members from the office of correctional safety while he was Secretary. (Doc. 95 p. 7).

26 Plaintiffs further argue that since part of Diaz’s responsibilities included monitoring gang activity,

27 receiving reports about high-ranking gang members, and receiving daily snapshots of activity in

1 5:00 p.m., he must have known in advance about the imminent danger from the Sureño attack at

2 ASP. Id. pp. 7-8.

3 A prison official’s knowledge of a substantial risk of harm may be demonstrated by

4 inferences drawn from circumstantial evidence. Farmer, 511 U.S. at 842. Thus, for instance,

5 were a plaintiff to present evidence showing that the substantial risk of an attack was

6 “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past” and

7 the defendant official “must have known” about it, this evidence may be sufficient to defeat

8 summary judgment. Id. at 842-43.

9 Here, although Plaintiffs point to Defendant Diaz’s general responsibilities as Secretary to

10 monitor the affairs of high-ranking gang members and that under certain circumstances, the

11 severity of gang-related issues might be elevated to him (Doc. 95 p. 7), there is no record

12 evidence that Defendant Diaz did, in fact, monitor the developments related to the antecedent

13 stabbing of the Sureño shot caller by the Bulldogs at a close-by CDCR facility. Likewise, there is

14 no evidence that Defendant Diaz was aware of impending retaliation against the Bulldogs at ASP,

15 particularly given his undisputed deposition testimony that this type of information pertaining to

16 the safety of an individual prison typically would be addressed by the warden or escalated to that

17 prison’s respective mission. Because Plaintiffs have not identified “specific facts demonstrating

18 the existence of genuine issues for trial” concerning Defendant Diaz’s awareness of

19 circumstances posing a risk of serious harm to Plaintiffs, or that Defendant Diaz otherwise “must

20 have known” about this risk, summary judgment is warranted. In re Oracle Corp. Sec. Litig., 627

21 F.3d at 387.

22 As for Defendant Ndoh, Defendants argue she was not deliberately indifferent because, on

23 the day of the ASP attack, “she was on leave and ASP’s Chief Deputy Warden P. Vera was the

24 acting warden during the relevant time period.” (Doc. 89 p. 12). However, Ndoh’s physical

25 location is not determinative of whether, for purposes of the deliberate indifference analysis, she

26 could be aware of facts from which she could infer that an impending attack at ASP presented a

27 substantial risk of serious harm to Plaintiffs. Farmer, 511 U.S. at 837. Indeed, Defendants

1 preceding the attack, informed her of the reported threat against the Fresno Bulldogs, and

2 reported implementation of a modified program at Facilities E and F. Ndoh Decl. ⁋5; Vera Decl.

3 ⁋6. In addition, Ndoh testified that, as a general matter, Vera sought her approval before

4 implementing decisions and that all decisions made by Vera were subject to her approval. Ndoh

5 Depo. p. 19-20; 21-22. Accordingly, given Vera’s report to Ndoh about the impending attack the

6 evening prior and Ndoh’s assertion that, in general, Vera required her approval prior to

7 implementing action, the undersigned finds there are disputed issues of material fact concerning

8 Defendant Ndoh’s awareness of circumstances posing a risk of serious harm to Plaintiffs.

9 But that is not enough for Plaintiffs to defeat Defendants’ motion for summary judgment.

10 In addition to demonstrating a prison official knows that inmates face a substantial risk of serious

11 harm, a plaintiff alleging deliberate indifference must also establish that the official

12 “disregard[ed] that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at

13 847. Here, while there is no dispute that prison staff responded to threat information received in

14 advance of and predicting the ASP attack by taking some prophylactic measures – such as placing

15 the targeted housing units in modified programing – the parties disagree about the sufficiency of

16 ASP officials’ protective measures, relying in part on their respective expert witnesses who come

17 to different conclusions. Cf. (Doc. 89 p. 12 and Doc. 96 pp. 8-9 with Doc. 95 pp. 10, 16).

18 However, as explained below, even if Warden Ndoh knew about and acted unreasonably in the

19 face of the risk of serious harm posed by the impending attack, she nevertheless would be entitled

20 to qualified immunity. See Hines v. Youseff, 914 F.3d 1218, 1239 (9th. Cir. 2019) (“The courts

21 below did not decide whether exposing inmates to a heightened risk of Valley Fever violates the

22 Eighth Amendment. Neither do we. Instead, we go straight to the second prong of the qualified

23 immunity analysis”).

24 3. Qualified Immunity

25 A. Standard of Law

26 “The doctrine of qualified immunity protects government officials ‘from liability for civil

27 damages insofar as their conduct does not violate clearly established or constitutional rights of

1 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two

2 important interests — the need to hold public official accountable when they exercise power

3 irresponsibly and the need to shield officials from harassment, distraction, and liability when they

4 perform their duties reasonably.” Id. The doctrine is intended to “give[] government officials

5 breathing room to make reasonable but mistaken judgments about open legal questions.”

6 Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

7 “The protection of qualified immunity applies regardless of whether the government

8 official’s error is ‘a mistake a law, a mistake of fact, or a mistake based on mixed questions of

9 law and fact.’” Pearson, 555 U.S. at 231 (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)

10 (Kennedy, J., dissenting)). “[T]he ‘clearly established’ inquiry is a question of law that only a

11 judge can decide.” Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017).

12 In determining whether a prison official is entitled to qualified immunity, the Court

13 decides (1) whether facts alleged or shown by plaintiff make out a violation of constitutional

14 right; and (2) whether that right was clearly established at the time of the officer’s alleged

15 misconduct. Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 553 U.S. 194, 201 (2001)). A

16 plaintiff must prove both steps of the inquiry to establish the official is not entitled to qualified

17 immunity. Felarca v. Birgeneau, 891 F.3d 809, 815 (9th Cir. 2018) (citation omitted).5 The

18 Court has discretion to decide which prong of qualified immunity to address first given the

19 circumstances of the case and, if one prong is dispositive, the Court need not examine the other

20 prong. Pearson, 555 U.S. at 236.

21 B. Discussion – “Clearly Established”

22 “To be clearly established, a legal principle must have a sufficiently clear foundation in

23 then-existing precedent,” as shown in “controlling authority or a robust consensus of cases of

24 persuasive authority.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (citations omitted);

25 see Sharp v. Cnty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (“Plaintiffs must point to prior

26 case law that articulates a constitutional rule specific enough to alert these deputies in this case

27

5 Thus, Plaintiffs are mistaken in arguing that “defendants’ [sic] have failed to meet their

1 that their particular conduct was unlawful”) (emphasis removed). The Supreme Court has held

2 that the law “does not require a case directly on point for a right to be clearly established, [but]

3 existing precedent must have placed the statutory or constitutional question beyond debate.”

4 White v. Pauly, 580 U.S. 73, 79 (2017) (quotations and citations omitted); accord Rico v. Ducart,

5 980 F.3d 1292, 1298 (9th Cir. 2020) (citing Ashcroft, 563 U.S. at 741).

6 When examining whether the right at issue has been clearly established, the court may not

7 “define clearly established law at a high level of generality.” Kisela v. Hughes, 584 U.S. 100, 104

8 (2018) (quoting Ashcroft, 563 U.S. at 742). Instead, “the clearly established law at issue must be

9 particularized to the facts of the case.” White, 580 U.S. at 79 (quotations and citations omitted).

10 The plaintiff bears the burden of “proving that the right allegedly violated was clearly established

11 at the time of the official’s allegedly impermissible conduct.” Camarillo v. McCarthy, 998 F.2d

12 638, 639 (9th Cir. 1993); see p. 13 & n.5, supra. Officials are subject to suit only for actions that

13 they knew or should have known violated the law. Hope v. Pelzer, 536 U.S. 730, 741 (2002);

14 accord Hines, 914 F.3d at 1230-21 (to defeat qualified immunity, inmate-plaintiffs “must show

15 that no reasonable officer could have thought that free society tolerated that risk” resulting in the

16 plaintiffs’ injuries). The law is also “clearly established” for the purposes of qualified immunity

17 if “every reasonable official would have understood that what he is doing violates th[e] right” at

18 issue. Taylor v. Barkes, 575 U.S. 822, 825 (2015) (per curiam) (quotation marks omitted). Cf.

19 Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017) (right is clearly established

20 when case law has been “earlier developed in such a concrete and factually defined context to

21 make it obvious to all reasonable government actors, in the defendant’s place, that what he is

22 doing violates federal law”) (citing White, 580 U.S. at 79).

23 As applied here, the Court first defines the right(s) at issue. Plaintiffs make little attempt

24 to define for the Court the right relevant to the qualified immunity analysis other than to argue

25 generally that “the contours” of deliberate indifference law “were sufficiently clear that

26 Defendants knew that they had a duty to keep Plaintiffs safe from harm.” (Doc. 95 p. 15). But

27 that impermissibly casts the relevant law at too high a level of generality and without

1 79. Cf. Hamby v. Hammond, 821 F.3d 1085, 1090-91, 1094 (9th Cir. 2016) (clarifying that the

2 right at issue must not be defined “at too high a level of generality,” such as “the right not to be

3 treated with deliberate indifference to a serious medical need ....”).

4 In King v. Riley (76 F.4th 259 (4th Cir. 2023)), the Fourth Circuit addressed qualified

5 immunity in the context of a plaintiff-inmate’s failure to protect claim against a correctional

6 officer. In that case, the estate of a deceased inmate asserted that a correctional officer at the

7 facility housing the decedent and who was aware the decedent faced a risk of serious harm from

8 inmate violence in his cell was deliberately indifferent because, during his periodic security check

9 when the decedent was being attacked, the officer walked past plaintiff’s cell without looking

10 inside. Id. at 264. The Court explained that the inmate’s right at issue was “to have a

11 correctional officer look into the cell window while conducting a security check – given a known

12 and substantial risk of inmate-on-inmate violence in the Unit.” Id. at 266. The Court elaborated

13 that “even if the risk of inmate violence was substantial and [defendant] knew that – [the inmate]

14 needs precedent establishing that [defendant’s] efforts to mitigate that risk (i.e., security checks

15 without looking in cells) were constitutionally deficient.” Id. In other words, the correctional

16 officer was entitled to qualified immunity if there was no clearly established right to properly

17 conducted security checks. Id. at 264.

18 Similar to the plaintiff in King, Plaintiffs assert their failure to protect claims are

19 “grounded” in the “sufficiency of the specific measures taken and not taken [by Defendants]

20 when Plaintiffs suffered life-threatening injuries from a forewarned, identified, and credible

21 threat.” (Doc. 95 p. 11). They specifically challenge ASP prison officials’ failure to search for

22 and confiscate weapons (id. p. 15) and rely on a report of an expert witness challenging the

23 adequacy of protective measures implemented. Id. p. 10. The expert witness opined, among

24 other things, that ASP prison officials could have better protected inmates by restricting them to

25 their bunks and/or handcuffing them (Doc. 95-1 ⁋⁋38, 42, 44) and by manning a gun post (id.

26 ⁋44).

27 Based on Plaintiffs’ characterization of their claims and theory of liability, to defeat

1 established” authority that Defendants’ failure to take actions apart from implementation of a

2 modified program in the affected cell blocks – such as undertaking the protective measures

3 identified above – amounts to a deliberately indifferent failure to protect. E.g., Hamby, 821 F.3d

4 at 1091 (“existing precedent must have placed beyond debate the unconstitutionality of the

5 officials’ actions, as those actions unfolded in the specific context of the case at hand.”).

6 Plaintiffs have not identified any Supreme Court or Ninth Circuit decision holding officers (or a

7 warden) liable for conduct similar to the alleged actions and omissions of the Defendants here.

8 In their opposition brief addressing Defendants’ arguments on qualified immunity,

9 Plaintiffs’ only serious attempt to identify and analogize to binding precedent implicating

10 purportedly “clearly established” authority governing failure-to-protect claims involves a single

11 Ninth Circuit case (Castro v. Cnty. of Los Angeles, discussed infra). See (Doc. 95 pp. 11-16).

12 The undersigned declines to address the lower court or out-of-Circuit authorities cited by

13 Plaintiffs, which in any event are plainly inapplicable to the qualified immunity analysis here.

14 See id. (citing inter alia Castillo v. Solano Cnty. Jail, No. 2:08-cv-3080 GEB KJN P, 2011 WL

15 3584318, at *13 (E.D. Cal. Aug. 12, 2022), report and recommendation adopted, 2011 WL

16 3911043 (E.D. Cal. Sept. 6, 2011) (involving claims of deliberate indifference to plaintiff’s

17 contraction of scabies and staph infection)).

18 In Castro, a pretrial detainee claimed that defendant-correctional officers and others were

19 deliberately indifferent to the substantial risk of harm created by housing plaintiff in the same

20 sobering cell as another arrestee and failing to maintain appropriate supervision of his cell. 797

21 F.3d 654, 664 (9th Cir. 2015), aff’d in rel. part en banc, 833 F.3d 1060 (9th Cir. 2016). Shortly

22 after the arrestee was placed in the sobering cell, the plaintiff pounded on a window for a full

23 minute to get correctional staff’s attention. 20 minutes later, a community volunteer notified the

24 supervising correctional officer that the arrestee was inappropriately touching the plaintiff, but the

25 supervisor did not investigate. Shortly afterwards, the arrestee violently attacked and injured the

26 plaintiff. The district court rejected the officers’ qualified immunity defense, reasoning that

27 “a jury could find that placing an actively belligerent inmate in an unmonitored cell with [the

1 Circuit affirmed, noting that “Farmer sets forth the contours of the right to be free from violence

2 at the hands of other inmates with sufficient clarity to guide a reasonable officer.” Id. at 664.

3 The facts and circumstances of Castro are starkly distinct from the instant case. There,

4 officers created the circumstances leading to the plaintiff’s ultimate injuries and failed to take any

5 action when alerted to the possibility of danger by the plaintiff. Here, after corrections staff

6 learned of a possible threat from rival gang inmates against Bulldog inmates at ASP, they placed

7 the facilities housing Bulldog inmates on a modified program, limiting inmate movement and

8 confining the inmates to their housing units. CSUF Nos. 21, 22. Unlike the plaintiff in Castro

9 who attempted to alert corrections staff to the danger he perceived, neither Plaintiff Mendoza nor

10 Plaintiff Salazar had advanced notice of the impending attack aside from the information shared

11 with them by corrections officers – thus, they did not unsuccessfully solicit assistance from

12 corrections officers like the plaintiff in Castro. (Doc. 95-2 “Mendoza Depo” p. 59; Doc. 89-3 pp.

13 19-20, 67-68).6

14 At bottom, Plaintiffs fail to cite binding authority that the actions taken by ASP’s

15 corrections staff to protect Bulldog inmates in light of the threat information received was

16 unreasonable or amounted to deliberate indifference. Because they have not shown Defendants

17 failed to “take reasonable measures,” Defendants are entitled to qualified immunity. Farmer, 511

18 U.S. at 847. See Leonard v. Peters, No. 21-35471, 2023 WL 387035, at *3 (9th Cir. Jan. 10,

19 2023) (granting summary judgment to correctional officer on plaintiff’s failure-to-protect claim

20 based on qualified immunity grounds) (citing Castro, 833 F.3d at 1067).

21 Finding Defendants entitled to qualified immunity is consistent with the Supreme Court’s

22 general guidance that prison administrators “should be accorded wide-ranging deference in the

23 adoption and execution of policies and practices that in their judgment are needed to preserve

24 internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520,

25 547 (1979). “That deference extends to a prison security measure taken in response to an actual

26 confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended

27 to reduce the incidence of these or any other breaches of prison discipline.” Whitley v. Albers,

1 | 475 U.S. 312, 322 (1986). As set forth above, while a corrections officer may not be entitled to

2 | qualified immunity for affirmatively placing an inmate at risk of harm and failing to investigate

3 | the inmate’s reporting of danger (see Castro, supra), those are not the circumstances present here.

4 | Because Plaintiffs fail to carry their burden of identifying binding precedent making it “obvious”

5 | to “all reasonable government actors, in the defendant’s place, that what he is doing violates

6 | federal law,” Defendants are entitled to qualified immunity. Shafer, 868 F.3d at 1117.

7 | IV. Conclusion and Recommendations

8 For the foregoing reasons, the undersigned HEREBY RECOMMENDS that Defendants’

9 | Motion for Summary Judgment (Doc. 89) be granted.

10 These findings and recommendations are submitted to the district judge assigned to this

11 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen

12 | (14) days of service of this recommendation, any party may file written objections to these

13 | findings and recommendations with the Court and serve a copy on all parties. Such a document

14 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

15 | district judge will review the magistrate judge’s findings and recommendations pursuant to 28

16 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified

17 | time may waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d

18 | 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

19 | IT IS SO ORDERED.

Dated: _ July 2, 2024 | Wr Pr

21 UNITED STATES MAGISTRATE JUDGE

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