Finkle v. Ryan, CV 14-01343-PHX-DGC (JZB)

Decision Date30 March 2016
Docket NumberNo. CV 14-01343-PHX-DGC (JZB),CV 14-01343-PHX-DGC (JZB)
Parties Hunter Alan Finkle, Plaintiff, v. Charles L. Ryan, et al., Defendants.
CourtU.S. District Court — District of Arizona

Hunter Alan Finkle, Buckeye, AZ, pro se.

Joseph Edward Dylo, Neil Singh, Office of the Attorney General, Phoenix, AZ, for Defendants.


David G. Campbell

, United States District Judge

Plaintiff Hunter Alan Finkle, who is currently confined in Arizona State Prison Complex (ASPC)-Lewis, brought this civil rights case pursuant to 42 U.S.C. § 1983

. Doc. 1. Defendants have filed a motion for summary judgment (Doc. 29), and Plaintiff has not responded, although he was informed of his right and obligation to do so.1 Also pending before the Court are the following motions: (1) Defendants' motion for summary disposition (Doc. 36); (2) Plaintiff's “Motion to Sett[le] Out of Court with Defendants, Protect My Name to Keep Anonymous from Public Eyes” (Doc. 37); and (3) Defendants' motion to strike Plaintiff's motion to settle (Doc. 38). For the following reasons, the Court will deny Defendants' motion for summary disposition, Plaintiff's motion to settle, and Defendants' motion to strike. The Court will grant Defendants' motion for summary judgment and terminate this case.

I. Background.

In his Complaint, Plaintiff alleged that Defendants violated his Eighth Amendment rights by failing to place him in protective custody (“PC”). Plaintiff named as Defendants Arizona Department of Corrections (“ADC”) Director Charles Ryan, ADC Security Administrator Keith Smith, and the following individuals at ASPC-Florence: Warden Hetmer, Deputy Warden Fizer, Lieutenant Evans, Sergeant Brown, Sergeant Norris, Sergeant Parker, and Dr. French.

Plaintiff alleged the following relevant facts. In May or June 2007, while he was incarcerated at the Yavapai County Jail, Plaintiff was questioned by a supervising officer about another inmate, whom Plaintiff alleges bit the head off a bird and spit the head at a sergeant. Doc. 1 at 6, ¶ 4. Plaintiff's statements to the officer aided in the prosecution of that other inmate on animal cruelty charges. Id. After that, around June or July, Plaintiff's two cellmates were told by another inmate to assault Plaintiff for “snitching” on the other inmate. Id. , ¶ 5. Officers at the jail “realized that the Plaintiff was in further danger after being assaulted due to being a ‘snitch’ and placed the Plaintiff in protective custody.” Id.

Plaintiff was transferred later that year to ADC's custody. Id. at 6–7, ¶ 6. In June 2008, an inmate threatened to tell the Aryan Brotherhood prison gang that Plaintiff was a “snitch” unless Plaintiff paid the inmate $20 every two weeks. Id. Plaintiff requested PC a week later, but was denied. Id. at 7, ¶ 7. Between 2008 and June 17, 2014, when he filed this lawsuit, Plaintiff requested and went through the PC process ten different times, but was denied PC status each time. See id. at 7–16.

Plaintiff seeks damages and injunctive relief in the form of an order to Defendants “to cease and protect the Plaintiff...from further threats and physical violence.” Id. at 18. On screening under 28 U.S.C. § 1915A(a)

, the Court determined that Plaintiff stated an Eighth Amendment claim and directed Defendants Fizer, Norris, Parker, and Smith to answer the Complaint. Doc. 5 at 1. The Court dismissed the remaining claims and Defendants. Id.

Defendants Fizer, Norris, Parker, and Smith now move for summary judgment, arguing that: (1) Plaintiff's claims for events prior to June 17, 2012 are time barred; (2) Defendants were not deliberately indifferent to Plaintiff's safety; (3) Plaintiff did not exhaust his administrative remedies against Norris and Parker; and (4) Defendants are entitled to qualified immunity. See Doc. 29 at 9-16.

II. Summary Judgment Standard.

A court must grant summary judgment “if 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 also

Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548


If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc. , 210 F.3d 1099, 1102–03 (9th Cir.2000)

. But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see

Triton Energy Corp. v. Square D. Co. , 68 F.3d 1216, 1221 (9th Cir.1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First National Bank of Arizona v. Cities Service Co. , 391 U.S. 253, 288–89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ; however, it must “come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation marks and citation omitted; emphasis in original); see Fed. R. Civ. P. 56(c)(1).

At summary judgment, the judge's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. Anderson , 477 U.S. at 249, 106 S.Ct. 2505

. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255, 106 S.Ct. 2505. The court need consider only the cited materials, but it may consider any other materials in the record.2 Fed. R. Civ. P. 56(c)(3).

III. Motion for Summary Disposition.

In their motion for summary disposition, Defendants ask the Court to summarily grant their pending motion for summary judgment because Plaintiff failed to respond to their motion for summary judgment. See Doc. 36. Defendants rely on Local Rule of Civil Procedure 7.2(i), which provides that the Court may deem a party's failure to respond to a motion as consent to the granting of the motion. Id. at 2.

In Heinemann v. Satterberg

, the Ninth Circuit clarified that a local rule permitting a district court to treat the lack of a response as consent to granting a motion does not apply to summary judgment motions. 731 F.3d 914, 917 (9th Cir.2013) (finding that Western District of Washington Local Rule 7(b)(2) conflicts with Federal Rule of Civil Procedure 56 and cannot provide a valid basis for granting a motion for summary judgment).3 If a summary judgment motion is unopposed, Rule 56“authorizes the court to consider a fact as undisputed,” but it does not permit the court to grant summary judgment by default. Id.

Indeed, under the summary judgment standard, if the moving party fails to meet its initial burden of production, the opposing party need not produce anything. Nissan , 210 F.3d at 1102–03.

The Court must therefore address Defendants' motion for summary judgment on the merits, and Defendants' motion for summary disposition will be denied.

IV. Relevant Facts.4
A. The Protective Custody Process.

ADC inmates who need protection from other inmates may seek PC under Department Order (“DO”) 805. Doc. 30 at 1, ¶ 1. PC status offers inmates the greatest degree of protection and inmates granted PC status are housed only with other PC inmates. Id. at 2, ¶ 2. An alternative to PC status is “alternate placement,” where an inmate may be housed in the general population but away from other inmates who may pose a threat. Id. , ¶ 3. Such alternate placement may include changes to cell block, bed assignments, or prison unit. Id. An inmate who poses a threat to another inmate is placed on a “Do Not House With” (“DNHW”) list, which is included in the inmate's computerized Adult Inmate Management System (“AIMS”) file. Id.

An inmate seeking voluntary PC segregation begins the process with a written or verbal request for protection, immediately after which the inmate is isolated in a safe, reasonably secure area. Id. , ¶ 4. The Shift Commander is notified and she or he conducts an initial inquiry to determine if the inmate requires PC review. Id. The Shift Commander interviews the inmate using PC Security Initial Interview Form and sends the PC packet to the Deputy Warden for informal review. Id. , ¶ 5. The Deputy Warden reviews the information and determines if the inmate could be moved to another general population location to resolve the problem or if the PC process should continue. Id. at 2–3, ¶ 6. If the PC process continues, the Deputy Warden documents the reasons why and sends the documents to the Corrections Officer (“CO”) IV. Id. The CO IV and the Special Security Unit (“SSU”) then review the case, gather facts, and document the results, which is then forwarded to the Deputy Warden. Id. at 3, ¶ 7. The Deputy Warden reviews the information, documents his findings on the Protective Custody Decision Worksheet, and makes a recommendation which is forwarded to the Protective Custody Administrator (“PCA”). Id. , ¶ 8. The PCA or the Protective Custody Committee (“PCC”) reviews the information and makes a final decision on whether a threat to the inmate exists.5 Id. , ¶ 9. The decision is documented if it differs from the Deputy Warden's recommendation. Id. The Deputy Warden notifies the inmate of the PCA's or PCC's decision. Id. at 3–4, ¶ 10. The inmate may appeal the decision by submitting an Inmate Letter, which is sent to the Protective Custody Unit. Id. The Security...

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