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Alverto v. Gilbert

United States District Court, W.D. Washington, Tacoma

June 3, 2019

JEROME CEASAR ALVERTO, Plaintiff,
v.
MARGARET GILBERT, MELIDA FERRELL, BLUMBERG, Defendants.

          REPORT AND RECOMMENDATION

          David W. Christel United States Magistrate Judge

         The District Court referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. Presently pending before the Court is Defendants' Motion for Summary Judgment (“Motion”). Dkt. 18.

         After reviewing the relevant record, the Court finds Plaintiff Jerome Ceasar Alverto failed to overcome Defendants' summary judgment showing that there is no genuine issue of material fact regarding his Eighth Amendment failure to protect claims against Defendants Margaret Gilbert, Melida Ferrell, and Don Blumberg. Plaintiff has also failed to overcome Defendant Ferrell's summary judgment showing that there is no genuine issue of material fact on Plaintiff's First Amendment retaliation claim against her. Moreover, Plaintiff has failed to state any claim of violation of the Washington State Constitution. Therefore, the Court recommends Defendants' Motion (Dkt. 18) be granted and this case be closed.

         I. Background

         Plaintiff, an inmate currently housed at Monroe Correctional Complex, alleges Defendants violated his Eighth and First Amendment rights while he was housed at Stafford Creek Corrections Center (“SCCC”). Dkt. 6. Plaintiff contends Defendants Gilbert, Ferrell, and Blumberg failed to protect Plaintiff from a physical altercation with another inmate after he notified them that he received threats. Id. Plaintiff further maintains Defendant Ferrell retaliated against him for seeking medical documents related to the altercation. Id. In addition, Plaintiff makes brief statements that he is suing Defendants for violating his rights under the Washington State Constitution. Id.

         Defendants filed the Motion on March 18, 2019. Dkt. 18. Plaintiff filed a Response to the Motion on April 2, 2019. Dkt. 24. With the Response, Plaintiff filed a Motion to File Excess Pages. See Dkt. 24, p. 72. As Plaintiff's Response is within the page limits for briefs in opposition to motions for summary judgment, the Motion to File Excess Pages (Dkt. 24, p. 72) is denied as moot. See Local Civil Rule 7.

         On April 12, 2019, Defendants filed a Reply. Dkt. 27. After the Court granted-in-part Plaintiff's motions to supplement the record, the Motion came ready for consideration on May 10, 2019. See Dkt. 35.

         II. Standard of Review

         Summary judgment is proper only if the pleadings, discovery, and disclosure materials on file, and any affidavits, show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”); see also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         III. Discussion

         Plaintiff alleges Defendants' actions violated his Eighth and First Amendment rights. Dkt. 6. Defendants assert there is no genuine issue of material fact regarding Plaintiff's claims and, accordingly, summary judgment is appropriate. Dkt. 18. The Court agrees. In addition, the Court finds Plaintiff has failed to state any claim under the Washington State Constitution.

         A. Failure to Protect

         Defendants argue there is no genuine issue of material fact regarding whether they were deliberately indifferent to a substantial risk of harm to Plaintiff. Dkt. 18, pp. 7-10.

         The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Prison officials have a duty to protect prisoners from violence suffered at the hands of other prisoners. Id. at 833. However, not every injury suffered by a prisoner at the hands of another is a violation of a prisoner's constitutional rights. Id. at 834.

         In cases alleging an Eighth Amendment violation based on a failure to prevent harm, the plaintiff must first meet an objective component by showing “he is incarcerated under conditions posing a substantial risk of serious harm.” Id.; see Clouthier v. County of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010). The plaintiff must also meet a subjective component by showing the prison official acted with deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 33 (1993) (“[A] claim that a prisoner's confinement violate[s] the Eighth Amendment requires an inquiry into the prison officials' state of mind.”). “[A] prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 832; see Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). A prison “official's failure to alleviate a significant risk he should have perceived but did not, ” therefore, cannot “be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.

         1. Evidence

         On July 4, 2016, Plaintiff was involved in a physical altercation with another inmate in Plaintiff's living unit, the “H5 Unit, ” at SCCC. See Dkt. 6, [1] pp. 15-19, 37-38. Plaintiff maintains that prior to the altercation, he informed Defendants that other inmates were threatening to assault him if he sat at tables they had “saved.” The act of “saving” a table occurs when an inmate reserves a table for certain inmates and excludes others from sitting at it. See Dkt. 19, Gilbert Dec., ¶ 6; Dkt. 20, Blumberg Dec., ¶ 7; Dkt. 21, Ferrell Dec., ¶ 7; Dkt. 22-1, p. 26. Saving tables is common practice at Washington Department of Correction (“DOC”) facilities and is considered threatening, as it can lead to physical fights. See Dkt. 19, Gilbert Dec., ¶ 6; Dkt. 20, Blumberg Dec., ¶ ...


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