Hurd v. Garcia

• Decision Date: 28 September 2006
• Docket Number: No. 02CV460-BEN.,02CV460-BEN.
• Citation: 454 F.Supp.2d 1032
• Parties: Dale HURD, Plaintiff, v. Sylvia, GARCIA, Warden, et al., Defendants.
• Court: U.S. District Court — Southern District of California

454 F.Supp.2d 1032

Dale HURD, Plaintiff, v. Sylvia, GARCIA, Warden, et al., Defendants.

No. 02CV460-BEN.

United States District Court, S.D. California.

September 28, 2006.

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DAle Hurd, Calipatria, CA, Pro se.

Deputy Attorney General G. Michael German, Department of Justice, San Diego, CA, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND TERMINATING CASE [Docket No. 131]

BENITEZ, District Judge.

Plaintiff Dale Hurd ("Hurd" or "Plaintiff'), a prisoner at Calipatria State Prison, has filed' a pro se Third Amended Complaint ("Complaint") under 42 U.S.C. § 1983 against prison officials Warden Garcia, Captain W.J. Price, Lieutenant R. Anti, Sergeant Richards, and Correctional Officers Does 1-10. Hurd claims that the conditions of his confinement at Calipatria during a lock down of the facility from December 2001 to March 2002 violated his rights to due process, equal protection and to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments, that the Defendants failed to protect him from assault by another inmate in violation of the Eighth Amendment, and that he was retaliated against for the exercise of his First Amendment rights. He seeks monetary damages and an injunction preventing any future long-term deprivations of outdoor exercise.

Defendants moved for summary judgment on all of the claims presented in Plaintiffs Complaint. The Honorable United States Magistrate Judge William McCurine Jr. issued a thorough Report and Recommendation ("Report"), recommending Defendants' Motion be granted, and allowed the parties until September 18, 2006 to file objections to the Report. To date, no objections to the Report have been filed. Nor has there been any request for additional time to file objections.¹

Title 28 U.S.C. § 636(b)(1)(C) provides: "A judge of the [district] court shall make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." Thus, the governing "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original); see also id ("Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.") (citation omitted)); Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005) ("Of course, de novo review of a [Report] is only required when an objection is made to the [Report].") (citation omitted)). Notwithstanding Hurd's failure to object, the Court has carefully reviewed the Report and the entire file. Judge McCurine's analysis is supported by the record, and is sound and well-reasoned. Accordingly the Report is ADOPTED IN FULL. For the reasons stated in the Report, Defendants' Motion is GRANTED. The case is terminated. The Clerk shall close the file.

SO ORDERED.

REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

MCCURINE, United States Magistrate Judge.

Defendants' summary judgment motion has been referred to Magistrate Judge McCurine pursuant to Local Civil Rule 72.3. This motion is appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1(d)(1).

I. PROCEDURAL BACKGROUND

Dale Hurd, (hereinafter "Plaintiff'), a state prisoner currently incarcerated at Calipatria State Prison in Calipatria, California, is proceeding pro se and in forma pauperis with a Complaint filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. In his Third Amended Complaint¹ ("TAC"), Plaintiff seeks injunctive relief, compensatory, and punitive damages against Warden Garcia, Captain W.J. Price, Lieutenant R. Anti, Sergeant Richards, and Correctional Officers Does 1-10, based upon the following claims:

Count 1: The conditions of his confinement at Calipatria during a lock down of the facility from December 2001 to March 2002 violated his rights to due process, equal protection and to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments;

Count 2: In violation of the Eighth Amendment Plaintiff was deprived of specific entitlements which imposed an atypical and significant hardship on Plaintiff "in relation to the ordinary incidents of life in prison." (TAC at p. 7.)

Count 3: In violation of the equal protection clause of the Fourteenth Amendment, Plaintiff was denied outdoor exercise based on his racial classification;

Count 4: In violation of the Eighth Amendment, Plaintiff suffered physical injury and loss of personal property due to Defendant's "callous indifference to Plaintiff's safety" and right to be protected from harm by fellow inmates. (TAC at p. 13.)

Count 5: In violation of the Eighth Amendment, "defendants acted recklessly in conscious disregard of that risk" which caused Plaintiff to be assaulted on May 4, 2002.

Count 6: In violation of the Eighth Amendment, Defendants "did act under color of law to create a special danger that caused harm to Plaintiff." (TAC at p. 23.)

Count 7: Plaintiffs First Amendment right to free speech was violated when all his writing materials were confiscated and when he was subject to retaliation for filing grievances. (TAC at p. 27.)

Count 8: Plaintiff seeks declaratory relief against Defendant Garcia based on his Eighth Amendment claims.

Count 9: Plaintiff seeks declaratory relief against Defendant Garcia based on his Fourteenth Amendment claims.

Count 10: Plaintiff seeks injunctive relief based upon the claims presented.

II. Factual Allegations

Counts 1-3:

Plaintiff alleges that on December 2, 2001, Defendant Garcia, the Warden of Calipatria, ordered Facility B, where Plaintiff was housed, to be placed on lock down status. (TAC at 3.) The lock down continued until approximately March 27, 2002, and for that entire period Plaintiff was locked in a six-foot by twelve-foot cell with one other inmate for twenty-four hours with the exception of a ten or fifteen-minute shower every three to five days. (Id.) Plaintiff states that he was denied any exercise time from December 2, 2001, until May 1, 2002. (Id. at 8.) He alleges that Defendant Garcia was aware that a total prohibition on exercise time for more than three months had been consistently held to violate the Eighth Amendment, that Garcia could have arranged for segregated yard time during that period but continued for longer than necessary a "modified program" which provided that Plaintiff, who is classified as Caucasian, continued to be restricted while inmates of other races were allowed to return to regular programs. (Id at 3-5, 12.) As a result, Plaintiff alleges Defendant Garcia violated his right to be free from cruel and unusual punishment under the Eighth Amendment (count 1), his right to due process of law under the Fourteenth Amendment (count 2), and his right to equal protection under the Fourteenth Amendment (count 3).

Counts 4-6:

Plaintiff alleges that since December 2, 2001, a prison gang controlled by Caucasian supremacists has operated at Calipatria. Further, they give orders and extort property from Caucasian inmates in exchange for protection from inmates of other races. (TAC at 13.) Plaintiff alleges that the Defendants use the gang to control and discipline Caucasian inmates, and that the gang operates with the knowledge and tacit approval of all the Defendants named in this action, who, in addition to Warden Garcia, are identified as Captain W.J. Price, Lietenant R. Anti, Sergeant S. Richards, and Correctional Officers Does 1-10. (TAC at 13-17.)

Defendants allegedly knew of and furthered the gang's plan to require all Caucasian inmates to attack any Black inmate any time they had the chance, a plan backed by the threat that the gang would assault any Caucasian inmate who failed to follow the plan. (Id.) The Defendants allegedly ignored requests by Caucasian inmates who sought protective custody after failing to assault Black inmates. (Id.) A program status report was issued on April 30, 2002, which stated that Plaintiff would continue to be housed with a Black inmate, and the entire Facility B population therefore knew that Plaintiff had the opportunity to attack a Black inmate. (Id. at 16-17.)

Plaintiff was transferred to Facility C on May 1, 2002, despite the fact that the Defendants allegedly knew that Facility C was not safe and that he might be attacked. (Id. at 16.) On May 4, 2002, Plaintiff was assaulted by another inmate, in retaliation for Plaintiffs failure to attack a Black inmate when he had the chance. (Id.) Plaintiff suffered bruises, lacerations, cracked ribs and partial loss of vision as a result of the assault, and his personal property was stolen from his cell during the assault. (Id. at 17.) Plaintiff claims Defendants' actions violated his Eighth Amendment rights (counts 4-6). (Id. at 13, 20, 23.)

Counts 7-10:

Plaintiff claims that Defendants retaliated against him in response to Plaintiffs free speech activities. (Id. at 27.) Plaintiff states that he is the Chairman of the Men's Advisory Counsel ("MAC") at Calipatria, and that he refuses requests from other inmates to file grievances in his capacity at MAC Chairman regarding the conditions at Calipatria because he fears retaliation from prison staff. (Id. at 32 check and cite Exhibit W). However, Plaintiff submitted an inmate grievance on December 18, 2002, complaining of the lock down conditions on Facility B. Additionally, on March 6, 2002, Plaintiff informed Warden Garcia in a letter of his intention to file a civil rights complaint regarding the lock down. (Id.) In response to his letter to the warden, Plaintiff alleges that on March 16, 2002, he was handcuffed and taken to Def...