# Childs v. Gasca

> District Court, N.D. California · August 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10639255

## Case

- **Court:** District Court, N.D. California
- **Decided:** August 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 EARL CHILDS, Case No. 21-cv-09466-JSW

8 Plaintiff, ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT; GRANTING
9 v. EXTENSION OF TIME; DENYING
MOTIONS FOR APPOINTMENT OF
10 H. GASCA, et al., COUNSEL AND FOR REFERRAL
Defendants. Re: Dkt. Nos. 43, 44, 46, 50
11

12 INTRODUCTION
13 Plaintiff, a California prisoner at Salinas Valley State Prison (“SVSP”) proceeding pro se,
14 filed this civil rights action under 42 U.S.C. § 1983. The case was partially dismissed with leave
15 to amend and ordered served upon Defendants based upon the cognizable claim that Defendants
16 Gasca, Coronado-Rodriguez1, and Aragon were deliberately indifferent to his safety during a May
17 25, 2021, attack on him by another inmate. (ECF No. 10 at 12.) The other claims were dismissed
18 with leave to amend. (Id.) Plaintiff did not file an amended complaint, and accordingly, all claims
19 were dismissed except for the claim against Gasca, Coronado, and Aragon (“Defendants”)
20 deliberate indifference to his safety. (ECF No. 40.) Defendants filed a motion for summary
21 judgment, Plaintiff filed an opposition, and Defendants filed a reply. For the reasons discussed
22 below, the motion for summary judgment is GRANTED. The other motions are also addressed
23 below.
24 BACKGROUND
25 I. Plaintiff’s Account
26 The screening order summarized the allegations in the verified complaint pertaining to the
27
1 remaining claim –– that Defendants failed to protect him from another inmate –– as follows:

2 Plaintiff, who uses a cane and wears an ADA[] mobility
impaired vest, was housed at the mental health unit of SVSP during
3 May of 2021. Dkt. 1 at 8. On May 25, 2021, at around 11:30 AM,
Plaintiff walked out to the recreational yard (“rec yard”) with his
4 vest and cane as well as his “safety sunglasses to protect [his] eyes
due to . . . corneal transplant surgery performed on [his] right eye.”
5 Id. As Plaintiff walked through the first gate, he passed Defendant
Gasca, who was assigned to monitor and supervise the rec yard. Id.
6 Plaintiff then walked through the last gate and Defendant Gasca
said, “last one for yard.” Id.
7
Plaintiff walked to the yard tables, and as he was taking off
8 his sunglasses he saw another inmate he had never seen before, who
was initially standing several yards away, walk over to Plaintiff and
9 then start attacking him. Id. at 9. Plaintiff states the other inmate,
who he identified as “Inmate Brown - #BL3696,” “started swinging
10 at [Plaintiff] [and Inmate Brown] said, ‘This is for the C/O’s,”
before he punched Plaintiff two times in the face, and then in the
11 upper body. Id. Plaintiff claims that after Inmate Brown hit him,
Plaintiff “grabbed [Inmate Brown’s] arms to restrain him from
12 hitting [Plaintiff] in the face again.” Id. Plaintiff called for help,
saying as follows: “C/O help, help, I am being attacked, come and
13 get this guy.” Id. He called for help for “two minutes or longer,” but
“the officers did nothing to help [him].” Id. Another inmate, who
14 Plaintiff identified as “[Inmate] Nguyen - #BM0511,” ran to the gate
and started calling for help. Id. Plaintiff claims that he and Inmate
15 Brown started falling to the ground,” and Plaintiff “somehow got the
upper hand on (Brown) [and] [Plaintiff] got up and started
16 restraining Brown.” Id. at 10. It was at that moment that Plaintiff
noticed Defendant Gasca and the other officers at the yard gate. Id.
17 Plaintiff told the officers “Help, hit your alarm, he’s still trying to
attack me.” Id. Defendant Gasca told Plaintiff to “let go of Brown.”
18 Id. But Plaintiff refused because Inmate Brown was “attempting to
hit [Plaintiff] in the face,” and Plaintiff told Defendant Gasca, “If I
19 let him go he will keep attacking me.” Id. Plaintiff asked Defendant
Gasca to open the gate, but instead Defendant Gasca ordered all the
20 inmates in the yard to get down and told Plaintiff that he was “not
going to open the gate until [Plaintiff] let [Brown] go.” Id. Plaintiff
21 responded, “I’ve been calling for help for over 2 minutes, plus I
don’t hear no alarm.” Id. And then Plaintiff let Inmate Brown go and
22 walked by the yard restroom area. Id. Plaintiff heard the gate to the
yard open and the officers run into the yard. Id. Defendant Gasca ran
23 toward Plaintiff and threw an “O.C. can grenade” at him even
though he “wasn’t holding Inmate Brown [and] [Inmate Brown] was
24 no longer attacking [Plaintiff].” Id. at 10-11.

25 …

26 The nurse documented Plaintiff’s injuries. Id. Plaintiff
suffered a black left eye and “had abrasions on [his] hands, knees
27 and forearms,” including “permanent scarring to [his] legs, face,
nightmares about the assault, and psychological traum[a].” Id. at 14.
1 After Plaintiff saw the nurse, Defendant Gasca took Plaintiff back to
his cell. Id. at 12.
2
3 (ECF No. 10 at 2:5 - 4:18.)
4 In a declaration submitted with his opposition, Plaintiff provides a similar account:

5 On May 25, 2021, I was out at the TC-2 yard around 11:30
a.m. . . . I saw another incarcerated person I’d never seen before
6 standing several yards away from me. He then walked over to me
and wound up his arm to hit me. As he started to swing at me, he
7 said, “This is for the C/Os.” He then punched me two times in the
face. After he hit me, I tried to grab his arms and restrain him from
8 hitting me again. My goal was to stop him from harming me
without fighting back and giving officers a reason to charge me with
9 an RVR[2], when I was the one being attacked. As I was restraining
him, I called for the officers on the yard to assist me. The officers
10 did nothing to assist. No one hit their alarm. I eventually was able
to restrain this person from hitting me more by locking his arms in
11 mine. Once I had him restrained, I asked him why he was doing
this. He said, “I was paid to get you.” I asked him who paid him,
12 and he said Gasca. Officer Gasca is one of the officers who
responded to the fire in my cell in TC-2. Shortly after I restrained
13 the other incarcerated person, Officer Gasca, who was on the yard at
the time, threw a pepper spray grenade at us to try to break up the
14 fight, even though we had already stopped fighting.
15 (ECF No. 45-2 at 43-44.)
16 In this declaration, Plaintiff further states he told Gasca he could not get down the ground
17 “because of my mobility issues.” (Id. at 44.) He states in his medical examination, a nurse found
18 he had a black eye and “abrasions on my knee and forearms.” (Id.) He also states when the nurses
19 asked Plaintiff and Brown why they fought, Plaintiff overheard Brown say, “No one else wanted
20 to step up to the plate and get paid.” (Id.) Plaintiff states when Gasca spoke to Plaintiff about the
21 incident later that day, Gasca’s “tone, the way he chuckled, and his repetition of the fact that my
22 attacker was ‘big,’” led Plaintiff to believe Gasca “knew exactly what happened and was taunting
23 me.” (Id. at 45.) Plaintiff states the next day he told a psychologist “what had happened.” (Id.)
24 Plaintiff asserts in his verified opposition Gasca “knew” Plaintiff was going to be attacked,
25 saw the attack “from the start,” and did not intervene. (Id. at 10.) Plaintiff states Gasca asked
26 Plaintiff to go out to the yard, and when Plaintiff entered the yard, Gasca called “last one for
27
1 yard.” (Id. at 11.) According to Plaintiff, this gave Brown “the green light to attack” him. (Id.)
2 Plaintiff further states Gasca went “back into the unit and knowingly le[ft] the yard unmonitored.”
3 (Id.) Plaintiff also asserts when Coronado-Rodriguez arrived, “he seen the attack still going on
4 and failed to intervene or do anything to stop” it, and that when Aragon arrived, “he seen what was
5 going on and he was on the other side of the gate with the other two defendants, Gasca and
6 Coronado, at which time Gasca opened the gate and the attack was over.” (Id. at 6-7.)
7 II. Defendants’ Account
8 Gasca and Coronado-Rodriguez were “floor officers” and Aragon was a supervisor
9 assigned to the yard where the altercation between Plaintiff and Brown took place. (ECF Nos. 44-
10 3 at 1; 44-4 at 1; 44-5 at 1.) A correctional officer monitors the yard from an adjacent fenced-in
11 breezeway, and Gasca was monitoring the yard from the breezeway at the time of the altercation.
12 (ECF No. 44-3 at 2.)
13 Gasca saw Brown hit Plaintiff in the upper torso, and Plaintiff put Brown in a “chokehold”
14 and brought him to a seated position. (Id.) Gasca ordered Plaintiff and Brown to get down, but
15 Plaintiff did not release Brown, who continued to “strike at [Plaintiff]’s facial area.” (Id.) Gasca
16 opened the door to the yard, “issued verbal orders,” and “deployed an OC Blast Grenade
17 approximately ten feet” from where Plaintiff and Brown were fighting. (Id. at 2-3.) Plaintiff and
18 Brown “immediately stopped fighting, ran in opposite directions, and laid face down on the
19 ground.” (Id. at 3.)
20 Coronado-Rodriguez and Aragon state that in response to an alarm, they went to the yard
21 and saw Plaintiff and Brown prone on the ground “approximately forty feet” from each other.
22 (ECF Nos. 44-4 at 2; 44-5 at 2.) Coronado-Rodriguez ran to Gasca and “assisted in restraining”
23 Plaintiff. (ECF No. 44-4 at 2.) When Aragon arrived, the inmates had already been handcuffed.
24 (ECF No. 44-5 at 2.) Neither Coronado-Rodriguez nor Aragon saw the altercation. (ECF Nos.
25 44-4 at 3; 44-5 at 3.) Pursuant to an order by Aragon, Coronado-Rodriguez and Gasca escorted
26 Plaintiff to medical care and later back to his cell. (ECF Nos. 44-4 at 2; 44-5 at 2.) The medical
27 evaluation revealed “no visible injuries except a scratch on [Plaintiff’s] left knee.” (ECF No. 44-3
1 Defendants state that prior to the above altercation, they did not know of any history of
2 antipathy or conflict between Plaintiff and Brown. (ECF Nos. 44-3 at 2; 44-4 at 2; 44-5 at 2.)
3 Gasca states he “did not facilitate or encourage the altercation in any way.” (ECF No. 44-3 at 2.)
4 After the incident, Aragon interviewed Plaintiff and Brown, who both indicated they did not have
5 an “enemy situation” and could continue to safely live in the same unit. (ECF No. 44-5 at 3.)
6 DISCUSSION
7 I. Standard of Review
8 Summary judgment is proper where the pleadings, discovery and affidavits show that there
9 is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a
10 matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of
11 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute as to a material
12 fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the
13 nonmoving party. Id.
14 The moving party for summary judgment bears the initial burden of identifying those
15 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine
16 issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). When the moving
17 party has met this burden of production, the nonmoving party must go beyond the pleadings and,
18 by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for
19 trial. If the nonmoving party fails to produce enough evidence to show a genuine issue of material
20 fact, the moving party wins. Id. “[S]self-serving affidavits are cognizable to establish a genuine
21 issue of material fact so long as they state facts based on personal knowledge and are not too
22 conclusory.” Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001).
23 At summary judgment, the judge must view the evidence in the light most favorable to the
24 nonmoving party: if evidence produced by the moving party conflicts with evidence produced by
25 the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving
26 party with respect to that fact. Tolan v. Cotton, 570 U.S. 650, 656-57 (2014). A court may not
27 disregard direct evidence on the ground that no reasonable jury would believe it. Leslie v. Grupo
1 genuine issues of fact but is called into question by other unsworn testimony, district court may
2 not grant summary judgment to moving party on ground that direct evidence is unbelievable).
3 II. Analysis
4 When viewing the admissible evidence in a light most favorable to Plaintiff and also
5 resolving any disputed material facts in his favor, no reasonable fact-finder could conclude that
6 Defendants violated Plaintiff’s Eighth Amendment rights by failing to protect him from harm from
7 inmate Brown.
8 The Eighth Amendment requires that prison officials take “reasonable measures” to
9 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular,
10 prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Id.
11 at 833. The failure of prison officials to protect inmates from attacks by other inmates or from
12 dangerous conditions at the prison violates the Eighth Amendment when two requirements are
13 met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is,
14 subjectively, deliberately indifferent to inmate health or safety. Id. at 834.
15 The parties do not dispute that there is sufficient evidence to support a triable issue as to
16 whether Brown attacked Plaintiff or that this was a sufficiently serious deprivation to satisfy the
17 objective component of an Eighth Amendment failure-to-protect claim. There is, however, no
18 triable issue as to whether Defendants were deliberately indifferent to Plaintiff’s safety needs.
19 A prison official is deliberately indifferent if he knows of and disregards an excessive risk
20 to inmate health or safety by failing to take reasonable steps to abate it. Id. at 837. Neither
21 negligence nor gross negligence will constitute deliberate indifference. Id. at 835-36 & n.4. A
22 prison official cannot be held liable under the Eighth Amendment for denying an inmate humane
23 conditions of confinement unless the standard for criminal recklessness is met, i.e., the official
24 knows of and disregards an excessive risk to inmate health or safety by failing to take reasonable
25 steps to abate it. Id. at 837. The official must both be aware of facts from which the inference
26 could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
27 Id. However, an Eighth Amendment claimant need not show that a prison official acted or failed
1 failed to act despite his knowledge of a substantial risk of serious harm. Id. at 842. A trier of fact
2 may conclude that a prison official knew of a substantial risk from the very fact that the risk was
3 obvious; a plaintiff therefore may meet his burden of showing awareness of a risk by presenting
4 evidence of very obvious and blatant circumstances indicating that the prison official knew the
5 risk existed. Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009). But while obviousness of risk
6 may be one factor in demonstrating subjective knowledge, a defendant’s liability must still be
7 based on actual awareness of the risk rather than constructive knowledge. Harrington v. Scribner,
8 785 F.3d 1299, 1304 (9th Cir. 2015).
9 While the deliberate indifference standard requires a finding of some degree of individual
10 culpability, it does not require an express intent to punish. Haygood v. Younger, 769 F.2d 1350,
11 1354-55 (9th Cir. 1985) (en banc). A prison official need not “believe to a moral certainty that
12 one inmate intends to attack another at a given place at a time certain before that officer is
13 obligated to take steps to prevent such an assault.” Berg, 794 F.2d at 459. Before being required
14 to take action he must, however, have more than a “mere suspicion” that an attack will occur. Id.
15 According to the admissible evidence presented by Plaintiff, no reasonable fact-finder
16 could conclude that Defendants failed to take “reasonable measures” to prevent harm to Plaintiff.
17 See Farmer, 511 U.S. at 832. It is undisputed that neither Plaintiff nor any Defendant had any
18 reason to know Brown posed a risk to Plaintiff before the altercation. It is also undisputed that
19 Gasca was the only Defendant on duty monitoring the yard when Brown attacked Plaintiff, and
20 Gasca broke up the fight by deploying the pepper-spray grenade, which separated Brown from
21 Plaintiff and ended the threat to Plaintiff. According to Plaintiff’s account, Gasca deployed the
22 grenade two minutes after Plaintiff alerted him to the altercation, after Brown had already struck
23 him three times. This is not an unreasonably long time, particularly given the undisputed evidence
24 that Plaintiff was restraining Brown in a chokehold, from which position Brown could not
25 continue to strike Plaintiff. In other words, this delay was not only brief but there is no evidence
26 that Brown continued to present a substantial risk of serious harm to Plaintiff while in the
27 chokehold. Although Gasca (according to Plaintiff) initially ordered Plaintiff to release Brown
1 two minutes Gasca entered the yard anyway while Brown was still in Plaintiff’s chokehold and
2 promptly ended the altercation. It is further undisputed that as soon as Brown and Plaintiff were
3 separated, Defendants restrained them, provided them medical attention, and offered them the
4 opportunity to be housed separately from that point (which they declined).
5 Defendants Coronado-Rodriguez and Aragon present evidence Gasca summoned them by
6 radio, and they arrived at the scene after the altercation was over and Brown and Plaintiff were
7 separated, at which point there was no longer any threat of harm to Plaintiff. Plaintiff disputes this
8 account insofar as he asserts these Defendants saw the altercation take place from behind the fence
9 with Gasca, but Plaintiff offers no evidence as to when they arrived at the scene, which part of the
10 altercation they saw, or whether they were in a position to prevent any of the three strikes Brown
11 inflicted on Plaintiff before Plaintiff had restrained Brown. Under these circumstances, no rational
12 trier of fact could conclude Gasca or the other Defendants failed to take reasonable measures to
13 end the substantial risk of harm Brown posed to Plaintiff.
14 Plaintiff argues Defendant Gasca instigated and set up Brown’s attack on Plaintiff.
15 Plaintiff presents no admissible evidence in support of this theory, however. He points to alleged
16 statements by Brown claiming to be paid for attacking Plaintiff, but these are hearsay statements
17 insofar as they are offered for their truth –– that Brown was in fact being paid. Plaintiff does not
18 present a declaration by Brown or other non-hearsay evidence that Brown was offered payment for
19 attacking Plaintiff. In addition, Brown’s alleged statements do not tie any of the Defendants to an
20 alleged scheme to pay Brown. Plaintiff also asserts Gasca’s announcing Plaintiff was the last
21 inmate on the yard signaled to Brown to attack Plaintiff, but there is no evidence that this
22 statement –– which does not on its face relate to any attack –– was a signal or a code as opposed to
23 an ordinary end to the process when inmates arrived at the yard. Consequently, there is no
24 admissible evidence from which a rational fact-finder could conclude Gasca or any other
25 Defendant orchestrated the altercation.
26 Plaintiff also argues Gasca was not watching the yard when the fight started. Plaintiff
27 contradicts this argument, however, when he argues Gasca saw the attack “from the start” and did
1 follows: first Brown punched Plaintiff twice in the face, then Brown punched Plaintiff in the torso,
2 || then Plaintiff put Brown in a chokehold during which Brown attempted (unsuccessfully) to punch
3 Plaintiff further, then the fight started when Brown punched him in the face, then fight ended
4 || when Gasca deployed the pepper-spray grenade. Gasca states he saw Brown strike Plaintiff in the
5 || torso and then Plaintiff put Brown in chokehold, which would mean he missed only the very
6 || beginning of the fight, i.e. the two punches to Plaintiffs face. There is no evidence explaining
7 why Gasca did not see the first two punches, i.e. whether it was because Gasca was inside’, was
8 looking away, or was observing another part of the yard at the time. Moreover, the evidence that
9 Gasca missed the first two punches, without more, supports a reasonable inference of, at worst,
10 || mere negligence. There is certainly no evidence supporting a reasonable inference he deliberately
11 avoided seeing the beginning of the fight, and as the evidence is undisputed that Brown had no
12 || history of conflict with Plaintiff, no reasonable fact-finder could conclude that any failure by
5 13 Gasca to watch Brown closely before he started the fight was a knowing disregard of a substantial
14 |) risk of harm to Plaintiff.
3 15 For these reasons, the Court finds no triable issue as to whether Defendants were
a 16 || deliberately indifferent to Plaintiff's safety needs in violation of his Eighth Amendment rights.
CONCLUSION
18 Defendants’ summary judgment motion is GRANTED. In light of this conclusion, the
19 motions for appointment of counsel and for re-referral of the case for mediation are DENIED.
20 || The motion to an extend time to file a reply brief is GRANTED.
21 The Clerk shall enter judgment and close the file.
22 IT IS SO ORDERED.
23 Dated: August 23, 2024
24 fo }

JEFFREY $. WHITE
United/States istrict Judge
27

28 8 Plaintiff asserts Gasca was “inside” but there is no evidence Plaintiff, who was on the yard, saw
him inside or otherwise could have known he was inside.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10639255. Public record. Not legal advice.