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Cepero v. High Desert State Prison

United States District Court, D. Nevada

March 24, 2015

HIGH DESERT STATE PRISON, et al., Defendants.


MIRANDA M. DU, District Judge.


Before the Court is Defendants' Motion for Summary Judgment ("Motion"). (Dkt. no. 143.) Plaintiff filed an opposition ("Opposition") (dkt. no. 170), and Defendants filed a reply (dkt. no. 177). For the reasons stated below, the Motion is granted in part and denied in part.


Billy Cepero ("Plaintiff") is an inmate in the custody of the Nevada Department of Corrections ("NDOC") at Southern Desert Correctional Center. The relevant events occurred while Plaintiff was incarcerated at High Desert State Prison ("HDSP") in Indian Springs, Nevada.

The Court derives the following background facts and allegations from the Second Amended Complaint ("SAC"), and supplements as necessary from the parties' briefs. In May 2010, Plaintiff began serving a lengthy sentence at HDSP for several sex offenses. Shortly following his arrival, Defendants evaluated his medical care needs. Plaintiff has preexisting problems with his right shoulder, and he alleges that, prior to his incarceration, medical providers recommended a course of physical therapy to decrease his pain and increase his range of motion. Upon their own medical intake evaluation, however, Defendants did not prescribe a physical therapy regimen. Thus, Plaintiff did not receive physical therapy treatments during his time at HDSP.

After his initial housing classification hearing in June 2010, Defendants assigned Plaintiff, who has no gang affiliation, a cellmate who is a member of a known security threat group ("STG"), the Sureños gang. In July 2010, Plaintiff received death threats and he and his cellmate had a physical altercation. When removing the two inmates from the cell, Defendants collected and held the inmates' personal belongings. Sometime thereafter, they allegedly lost Plaintiff's "miscellaneous items" and, specifically, several legal documents that contained his and his family members' personally identifying information.

As a result of the fight, Plaintiff received a short disciplinary segregation sentence. On September 21, 2010, Plaintiff was permitted to leave disciplinary segregation and return to general population housing. However, Plaintiff was housed with members of the Sureños gang, and two of the gang members stabbed Plaintiff with a weapon of sorts in the chow hall later that day. Prison officials immediately took Plaintiff to the University Medical Center ("UMC") in Las Vegas, where he received care for the wounds. Unrelated thereto, UMC clinicians also provided plaintiff with a Jewett back brace[1] for back problems that they discovered while treating his other injuries. Upon discharge from UMC, providers instructed Plaintiff to wear the brace for the next six weeks at any time he was out of bed. Upon his return to HDSP, officials placed Plaintiff in the infirmary, a secure area, and allowed him to keep the brace. However, upon his transfer to administrative segregation, where he was to be held for his safety due to the recent violence, officials removed the brace from his possession because it contained a substantial amount of metal. Two weeks later, they gave him a different brace.

Plaintiff remained in administrative segregation for twenty months, aside from one day in which he was held in protective custody. His transfer to protective custody status was quickly rescinded. During this time period, he awaited the availability of housing at Lovelock Correctional Center ("LCC"), to which he was transferred in late April 2012.

Based upon these allegations, and acting pro se, plaintiff asserts six civil rights claims under 42 U.S.C. § 1983 against numerous prison officials. (Dkt. no. 27 at 2-8.) First, Plaintiff alleges two counts under the Eighth Amendment for failure to protect: one for his initial housing placement, and the other for the chow hall stabbing. Second, he alleges two additional counts under the Eighth Amendment for inadequate medical care: one for the lack of physical therapy treatment, and the other for confiscation of the back brace. Finally, he brings two counts under the Fourteenth Amendment: one for lack of procedural due process in his administrative segregation placement, and the other for the loss of his legal papers and other items. ( Id. at 9-14.)


The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Nw. Motorcycle Ass'n, 18 F.3d at 1472. "The amount of evidence necessary to raise a genuine issue of material fact is enough to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). Courts must also liberally construe documents filed by pro se litigants. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, " Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (citation and internal quotation marks omitted). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.


Plaintiff asserts claims under 42 U.S.C. § 1983. Section 1983 aims "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (quoting McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000)). The statute "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights[, ]" Conn v. Gabbert, 526 U.S. 286, 290 (1999), and is "merely... the procedural device for enforcing substantive provisions of the Constitution and federal statutes, " Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Claims under § 1983 require the plaintiff to allege (1) the violation of a federally-protected right by (2) a person or official who acts under the color of state law. Warner, 451 F.3d at 1067. To prevail, the plaintiff must allege and prove sufficient facts under each element of the underlying constitutional or statutory right.

In this case, Defendants are each state prison officials acting within their respective capacities under state law. Plaintiff alleges violations of his constitutional rights. Therefore, he has satisfied § 1983's threshold requirements and the Court will proceed to analyze each of his claims.

A. Failure to Protect Claims

1. Standard

The Eighth Amendment "embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency...'" by prohibiting imposition of cruel and unusual punishment by state actors. Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). The Constitution's stricture on the "unnecessary and wanton infliction of pain" encompasses deliberate indifference to the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Indeed, "having stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course." Id. Prison officials must "take reasonable measures to guarantee the safety of the inmates' and to protect prisoners from violence at the hands of other prisoners.'" United States v. Stoterau, 524 F.3d 988, 1013 (9th Cir. 2008) (quoting Farmer, 511 U.S. at 832-33).

Claims for failure to protect have two elements. Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005); see also Lemire v. Cal. Dep't of Corrs. and Rehab., 726 F.3d 1062, 1074-78 (9th Cir. 2013). First, the prisoner must establish that officials exposed him to an objectively substantial risk of serious harm. Lemire, 726 F.3d at 1075-76. Second, he must prove that the officials were deliberately indifferent - that is, that they disregarded their subjective awareness of the risk without reasonable justification. Id. at 1077-78. Accordingly, it is not enough that prison officials are aware of facts from which they could infer the presence of an excessive risk; instead, they must "draw the inference." Farmer, 511 U.S. at 837. The culpable state of mind is "something more than mere negligence..." but "something less" than purpose or intent. Hearns, 413 F.3d at 1040.

2. Analysis of Counts I and II

Because these claims turn on related factual contentions and identical legal standards, the Court examines them together. Although Defendant's Motion focuses mainly on the subjective element of the inquiry, see Lemire, 726 F.3d at 1075-76, the Court first considers whether Plaintiff faced an objectively substantial risk of harm before turning to Defendants' subjective states of mind.

a. Substantial Risk of Harm

In Count I, Plaintiff contends that Defendants Neven, Baca, Howell, Wickham, Morrow, Gerke, Garcia, and Vasquez "directed or approved [his] initial housing classification at HDSP[, ]" which led to his placement in general population with a gangmember cellmate, notwithstanding his "physical condition, ... criminal charges, [and]... non-affiliation to any gang or group." (Dkt. no. 27 at 9.) He brings Count II against the same defendants, except that he includes Daniels and excludes Vasquez. ( Id. at 10.) The SAC is somewhat ambiguous as to his Count II theory, but the Court construes from it and his Opposition that Plaintiff alleges that identical factors placed him at risk of attack in the same general population housing unit, to which he returned following his release from disciplinary segregation in September 2010.[2] ( See id.; see also dkt. no. 170 at 7-9.)

Plaintiff's Opposition provides further insight to the nature of the purported risks that he faced. He states that his "physical condition" is limited use of his right arm and that the "criminal charges" are sex offenses. (Dkt. no. 170 at 5.) Because he "stand[s] alone" among the inmates due to his lack of gang affiliation ( Id. ), these factors rendered him vulnerable to violence by fellow prisoners at HDSP: Plaintiff asserts that HDSP inmates obtain presentence reports and other information about new inmates' criminal offenses, and those who do not "check out" are targeted for physical abuse. ( Id. at 4.) The connection is not express, but the plain allusion is that Plaintiff's status as a sex offender presented a serious risk of harm. The risk, Plaintiff argues, was heightened with members of the Sureños gang. They have a disruptive and violent "modus operandi" and a "Code" under which, Plaintiff intimates, they purposively attack sex offenders. ( See id. at 4.)

The Court concludes that neither Plaintiff's physical limitation nor his nonaffiliation with a gang constituted objectively excessive risks of harm. The record before the Court is devoid of any evidence from which a jury might determine that these factors constituted anything more than de minimis risks beyond inherent risks found in a prison environment. First, beyond Plaintiff's sweeping contentions, nothing in the record would permit a reasonable jury to conclude that plaintiff's physical condition subjected him to an excessive risk of harm by the mere fact of housing among other inmates, whether or not some of these inmates are gang members. Second, Defendants have offered undisputed evidence that Plaintiff's lack of gang membership worked to enhance his safety, rather than detract from it. HDSP Associate Warden Tim Filson attests that "[t]here is no known risk to a prisoner... to be housed in a unit in which there are known gang members so long as the prisoner is not a member of a competing or enemy gang, and has no conflict with the gang or any of its members." ( Id. at ¶ 8.) Plaintiff's contrary assertion is entirely uncorroborated and speculative and is, therefore, insufficient to demonstrate a genuine factual dispute.

As to his sex offender status, the Court will assume, without deciding, that it presented an objectively serious risk of harm. Defendants do not contest Plaintiff's specific position that sex offenders face heightened violence at NDOC institutions. Instead, they seemingly suggest that an inmate's criminal history never constitutes a substantial risk of harm; after all, every inmate at an NDOC institution is a convicted felon. (Dkt. no. 143 at 12.) However, the Court can easily envision scenarios where certain criminal histories would subject an inmate to considerable risks of violence - whether from particular inmates, or from the prison population more generally. The notion that sex offenders face greater risks of violence within Nevada prisons is neither new nor farfetched. See, e.g., Romero v. Nev. Dep't of Corrs., No. 2:08-cv-00808-JAD-VCF, 2013 WL 6206705, at *14 (D. Nev. Nov. 27, 2013) (quoting the plaintiff's argument that "it is common knowledge within the prison environment that any inmates known to have been convicted of sexual offenses will be assaulted and will be killed by gang members'"). Accordingly, for the purpose of analysis, the Court accepts that the risk to Plaintiff based upon his history of sex offenses was objectively substantial.

b. Deliberate Indifference

In their Motion, Defendants argue that undisputed evidence establishes that they did not subjectively disregard a substantial risk to Plaintiff. (Dkt. nos. 143 at 12-13, 177 at 5-8.) In contrast, Plaintiff argues that they had knowledge of the risk posed by Sureños members. In support of their Motion, Defendants produce an affidavit and Plaintiff's case notes log, the latter of which documents events and information pertaining to his incarceration, such as classification hearings and housing placements. Although the log suggests that Defendants knew of Plaintiff's sex offender status at the time of his initial classification hearing ( see dkt. no. 143-4 at 2) (describing, in an entry titled "Class/Initial, " that Plaintiff is a "36 year old 2nd termer serving" several sentences for "statutory sexual seduction"), both the log and affidavit evidence that Plaintiff repeatedly affirmed that he was not a member of a gang and "had no issues with STG groups" such as the Sureños. (Dkt. nos. 143-1 at ¶ 4, 143-4 at 2.) Plaintiff so stated during his initial classification hearing on June 24, 2010, and also on September 21, 2010, prior to his return to general population. (Dkt. no. 143-1 at ¶¶ 7-9). The log further shows that Plaintiff represented that he had "no problems" with his former cellmate, and also that he did not know why he was stabbed in September 2010. Plaintiff ...

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