ESTATE OF GONZALES v. HICKMAN

MARGARET MORROW, District Judge

On July 25, 2005, the Estate of Manuel A. Gonzales, Jr., by and through executor Manuel A. Gonzales, and decedent's minor (M.G. and G.G.) and adult sons (Mark Gonzales and Steven Gonzales) filed this action against defendants Roderick Q. Hickman, Jeanne S. Woodford, Suzan Hubbard, John Dovey, Wendy Still, Lori DiCarlo, Carol Roddy, Greg Mellott, and certain fictitious defendants. On February 24, 2006, the court consolidated the action with Case No. CV 06-143 MMM (RCx). That case, which was filed on February 8, 2006 by decedent's minor daughters (R.G. and J.G.), named the same individual defendants, as well as the California Department of Corrections and Rehabilitation ("CDCR"). In the lead action, the Estate contends that defendants deprived Gonzales of liberty without due process of law in violation of his rights under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. Specifically, the Estate contends that defendants improperly classified inmate Jon Christopher Blaylock at the California Institute for Men, where Gonzales served as a correctional officer and where he was murdered by Blaylock on January 10, 2005. In both of the actions, decedent's children assert that defendants' conduct violated their Fourteenth Amendment substantive due process right to familial association with their father. Plaintiffs seek compensatory damages of $50 million, punitive damages of $50 million, costs of suit, attorneys' fees, and other appropriate relief.

Although named as a defendant, the CDCR was apparently never served with summons and complaint. Any action against it in this court, of course, would be barred by Eleventh Amendment immunity. See, e.g., Palismo v. California Dept. of Corrections, 145 Fed. Appx. 215, 216 (9th Cir. Aug. 15, 2005) (Unpub. Disp.); Walker v. Clark, 53 Fed. Appx. 804, 805-06 (9th Cir. Dec. 10, 2002) (Unpub. Disp.).

On January 30, 2006, the court issued an order granting in part and denying in part two motions to dismiss filed by defendants. Specifically, the court dismissed claims against defendants in their official capacities with prejudice on the ground of Eleventh Amendment immunity. It also concluded that defendants could not be held liable under § 1983 on a state-created danger theory for certain failures to act or intervene, i.e., (1) their alleged failure to provide Gonzales with a protective vest; (2) their alleged failure to provide supervision, administration, and support to the correctional staff to make sure that Blaylock was not given authority as a "shot caller"; (3) their alleged failure to provide supervision, administration, and support to the correctional staff to ensure that security protocols and procedures were enforced; and (4) their alleged failure to equip the medical clinic and train the medical staff adequately. Conversely, the court held, that defendants could be held liable under § 1983 for improperly assigning Blaylock to a general population cell upon his arrival at the California Institute for Men, and for returning him to the general prison population after he was detained in administrative segregation for purportedly assaulting another inmate.

On October 2, 2006, defendants Hickman, Woodford, Hubbard, Dovey, and Still (the "State Defendants") moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The remaining defendants, Di Carlo, Roddy, and Mellott (the "Warden Defendants"), filed a separate Rule 56 motion the same day. On December 12, 2006, the court issued a minute order in which it concluded that resolution of defendants' motions would have to await decision of a motion to compel the production of documents filed by plaintiffs in the Eastern District of California against nonparty CDCR. As a result, the court took defendants' motions for summary judgment off calendar, and indicated that, following resolution of the motion to compel, it would set a new hearing date. After additional proceedings in this district and in the Eastern District regarding the disputed documents, plaintiffs filed supplemental opposition to defendants' motions, and the court placed them on calendar for hearing. In this order, the court addresses the merits of both the State Defendants' and the Warden Defendants' motions.

I. FACTUAL BACKGROUND

Until his death, Manuel A. Gonzales, Jr. was employed as a correctional officer at the California Institution for Men, Chino ("CIM"). He died on January 10, 2005 after CIM inmate Jon Christopher Blaylock stabbed him while the two men stood outside Blaylock's cell in Tier One of CIM's Sycamore Hall. Gonzales had released Blaylock from his prison cell, in contravention of CIM policy, because he believed that Blaylock was a "shot caller" (i.e., an inmate particularly influential with his peers) who could relieve the racial tensions that existed at CIM between African-American prisoners, on the one hand, and white and Latino prisoners, on the other. It was a common practice at CIM for correctional officers to release "shot callers" from their cells for this and other purposes.

Defendants Lori Di Carlo, Carol Roddy and Gregory Mellott's [Proposed] Statement of Uncontroverted Facts and Conclusions of Law ("Warden Defs.' Facts"), ¶ 1; Plaintiffs' Supplemental Responses to Uncontroverted Facts and Conclusions of Law [Local Defendants — Di Carlo, et al.] ("Pls.' Warden Response"), ¶ 1 (noting, for purposes of this motion only, that this proposed fact is not disputed).

Warden Defs.' Facts, ¶ 7; Pls.' Warden Response, ¶ 7 (noting, for purposes of this motion only, that this proposed fact is not disputed); see also, e.g., Plaintiffs' Appendix of Exhibits in Opposition to Summary Judgment Motions ("Pls.' Evid."), Exhibit A: Office of the Inspector General's Special Review into the Death of Correctional Officer Manual A. Gonzales, Jr. on January 10, 2005 at the California Institution for Men ("OIG Report") at 35-36. Defendants object to the admissibility of the OIG Report, contending that it is "hearsay without foundation and/or authentication; [that it] contains speculation, conclusion and opinion without sufficient foundation; and [that it] is irrelevant to the issues presented in this action." (See Objections to Plaintiffs' Appendix of Evidence in Reply to Plaintiffs' Supplemental Opposition to the Motion for Summary Judgment of Defendants Lori Di Carlo, Carol Roddy, and Gregory Mellott at 2; Evidentiary Objections to Plaintiffs' Appendix of Evidence Filed in Support of Plaintiffs' Supplemental Opposition to [State Defendants'] Motion for Summary Judgment at 2.)
These objections are overruled. First, the Report is not hearsay under Rule 803(8) of the Federal Rules of Evidence, which provides that "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . in civil actions and proceedings . . . factual findings resulting from an investigation made pursuant to authority granted by law" are "not excluded by the hearsay rule" "unless the sources of information or other circumstances indicate lack of trustworthiness." FED.R.EVID. 803(8)(C). The OIG Report is admissible under this rule, because it is a "report" containing "factual findings resulting from an investigation" made by a "public office or agenc[y]" (i.e., the California Office of the Inspector General) "pursuant to authority granted by law" (i.e., California Penal Code § 6126, which authorizes the Inspector General to "review departmental policy and procedures, conduct audits of investigatory practices and other audits, and conduct investigations of the Department of Corrections and Rehabilitation"). Such "evaluative reports" are presumptively admissible, i.e. the court must "assume [their] admissibility in the first instance." FED.R.EVID. 803(8)(C), Advisory Committee Notes, 1974 enactment. Defendants have not overcome this presumption, as they have not met their burden of demonstrating that the report is unreliable or not trustworthy. See Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999) ("A trial court may presume that public records are authentic and trustworthy. The burden of establishing otherwise falls on the opponent of the evidence, who must come `forward with enough negative factors to persuade a court that a report should not be admitted,'" quoting Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9th Cir. 1992)); see also In re Nautilus Motor Tanker Co., 85 F.3d 105, 113 (3d Cir. 1996) ("[P]ublic reports are presumed admissible in the first instance and the party opposing their introduction bears the burden of coming forward with enough `negative factors' to persuade a court that a report should not be admitted").
Second, the Report is self-authenticating under Rule 902. See FED.R.EVID. 902(5) ("Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to . . . [b]ooks, pamphlets, or other publications purporting to be issued by public authority"). The OIG Report "purports" to be authored by Matthew L. Cate, Inspector General of the State of California, and issued by his Office. Indeed, the OIG Report submitted by plaintiffs in opposition to defendants' motions for summary judgment is accessible to the public on the website of the Office of the Inspector General. See http://www.oig.ca.gov/reports/pdf/Review_03-17-05.pdf (last visited May 19, 2007). This is sufficient to authenticate the OIG Report under the Federal Rules of Evidence. See, e.g., Lorraine v. Markel American Ins. Co., ___ F.R.D. ___, 2007 WL 1300739, *19 (D. Md. May 4, 2007) ("Given the frequency with which official publications from government agencies are relevant to litigation and the increasing tendency for such agencies to have their own websites, Rule 902(5) provides a very useful method of authenticating these publications. When combined with the public records exception to the hearsay rule, Rule 803(8), these official publications posted on government agency websites should be admitted into evidence easily").
Third, the OIG Report does not contain speculation or unsubstantiated conclusion. Additionally, the report does not lack foundation. To the contrary, the OIG Report meticulously documents the investigative procedures that the Inspector General employed to arrive at his factual findings. (See OIG Report at 11.) This is sufficient under the Federal Rules to lay an adequate foundation. Cf., e.g., Combs v. Wilkinson, 315 F.3d 548, 555-56 (6th Cir. 2002) ("Defendants further argue that the report was properly excluded because the committee members lacked personal knowledge of DR-4 disturbance. . . . Under defendants' argument, an investigative report would never be admissible as such reports typically are not prepared by persons directly involved in the matter under investigation. Investigative reports `embody the results of investigation and accordingly are often not the product of the declarant's firsthand knowledge.' . . . Although the committee lacked personal knowledge of the DR-4 disturbance, the committee based its report on 123 interviews and numerous documents, including all staff and inmate incident reports, as well as the investigative report completed by the Ohio Highway State Patrol. Accordingly, we find that, as the record now stands, the Use of Force Committee Report is admissible under Fed.R.Evid. 803(8)," quoting 2 MCCORMICK ON EVIDENCE § 296 (5th ed. 1999)); Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986) (upholding the introduction of a Shooting Review Board Report issued by a five-member panel that based its conclusions on interviews of the defendant officers and their supervisors); Wilson v. Beebe, 770 F.2d 578, 589-90 (6th Cir. 1985) (upholding the admissibility of a report made by a police officer's supervisor regarding an incident in which the officer's revolver discharged while handcuffing an arrestee); Robbins v. Whelan, 653 F.2d 47, 50 (1st Cir. 1981) (holding that a Department of Transportation report should have been admitted despite the collection of the underlying facts by private auto manufacturers as opposed to the department itself, because the factual compilation was performed pursuant to regulations issued by the agency, indicating trustworthiness).
Fourth, the report is clearly relevant, as it is an investigation of "the circumstances surrounding the January 10, 2005 stabbing death of Correctional Officer Manuel A. Gonzales, Jr." — the central issue and focus of this case. (See OIG Report at 3.)
For the same reasons, the court overrules defendants' evidentiary objections to the Report of the California State Board of Corrections' Independent Operations and Incident Review Panel on the California Institution for Men (see Pls.' Evid., Exhibit T ("BOC Report")). This too is a presumptively admissible "evaluative report" prepared by an independent review panel commissioned by the Board of Corrections pursuant to California Penal Code §§ 6027 and 6028.

OIG Report at 34-35.

See Plaintiffs' Separate Statement of Additional Facts in Opposition to Motion for Summary Judgment of Defendants Di Carlo and Mellott ("Pls.' Facts"), ¶ 118 (citing Pls.' Evid., Exhibit H: Deposition of Gregory Mellott ("Mellott Depo.") at 145, and Declaration of Donald Stockman ("Stockman Decl."), ¶ 75); see also OIG Report at 29. The court need not rule on the evidentiary objections defendants have asserted to paragraph 75 of the Stockman Declaration, as the Mellott deposition and OIG Report sufficiently establish this proposed fact.

Blaylock first arrived at CIM on June 23, 2004 to undergo "reception center processing," after receiving a 75-year prison sentence for the August 2002 attempted murder of a police officer. Blaylock committed this crime shortly after he was released on parole from an earlier ten-year prison term. At the time of his release on parole, Blaylock was a maximum security Level IV inmate with a classification score of 376 points; he had been serving an indeterminate term in a single cell at Corcoran State Prison's security housing unit (or "SHU"). SHUs are utilized to house inmates who pose a threat to the safety and security of staff and inmates and who, given the severity of the threat they represent, cannot be placed in general population units. Secured housing may be assigned for either a determinate or indeterminate period. Inmates in SHUs are allowed out of their cells only one hour per day, and must be placed in full restraints when they come into contact with correctional staff. Blaylock had been placed in Corcoran's SHU because he had a history of fighting with other inmates and was believed to have numerous enemies. In fact, he was deemed such a serious security risk that he was placed in a single cell in the SHU, which, due to space constraints, are reserved for inmates with histories of in-cell violence and predatory behavior so severe that they cannot safely be housed in double cells with another prisoner. Blaylock was also on "walk-alone yard status."

Reception centers are short-term intake/processing prisons at which inmates are detained pending transfer to their permanent prison placement. California Department of Correction ("CDC") guidelines state that the transfer should take place within 60 days of intake. (See OIG Report at 14, 26.)

OIG Report at 13. Blaylock had served two earlier state prison sentences in 1990 and 1993 for attempted burglary, and a ten-year prison term for robbery. He was paroled in 2002. (Id.)

Id. at 13. As the OIG Report explains:

"Classification scores are used to determine inmate custody level and institution placement. Scores are based on such factors as prison sentence; stability indicators such as age, employment history, and education level; and behavior in prison, including physical assaults, possession of deadly weapons, and serious rules violations. Under California Code of Regulations, title 15, Section 3371.5, inmates are to be assigned to facilities with a classification level corresponding to the classification scope, as follows:

0-18 Level I 19-27 Level II 28-51 Level III 52 and Level IV." (Id. at 13 n. 1.)

See CAL. CODE REGS., tit. 15, § 3341.5(c).

See OIG Report at 13 n. 2.

Id. at 13. Pending his parole on April 23, 2002, Blaylock was held for four days in single cell in the administrative segregation unit at California State Prison, Los Angeles. (Id.)

Id. at 13 n. 2.

Id. at 13.

At the time that Blaylock arrived at CIM, the prison did not have a SHU. Sycamore and Madrone Halls were general population housing units; Cyprus and Palm Halls were administrative segregation units ("ASUs"). ASUs are short-term, high-security housing for inmates who pose a threat to the safety of correctional staff or other prisoners; they are staffed with additional correctional officers, who are provided with stab proof vests. At intake, Blaylock was not placed in one of the ASUs at CIM, but was instead placed in Sycamore Hall.

Id. at 14-15; see also Pls.' Facts, ¶¶ 13, 15. CIM's Birch Hall housed inmates with "sensitive needs . . . not compatible with other general population inmates." (OIG Report at 14.) Defendants, relying on the declaration of Gregory Mellott, contend that "Sycamore Hall at CIM is one of two housing units used to house inmates who are potentially violent or who have other disciplinary problems," and that Sycamore Hall is not a "general population" unit. (See, e.g., Warden Defs.' Facts, ¶¶ 11, 13 (citing Declaration of Gregory Mellott, ¶ 3).) This statement in Mellott's declaration is flatly contradicted by his deposition testimony, in which he admitted that Blaylock was in "general population," and was not in the "minimum support unit" (presumably Birch Hall). (See, e.g., Mellott Depo. at 83.) For purposes of this proceeding, however, the court need not formally decide whether Mellott has offered a "sham declaration." See generally Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991). This is because even if the court were to consider Mellott declaration, it is contradicted by the finding in the OIG Report that Blaylock was placed in general population in Sycamore Hall. This raises a triable issue of fact as to whether Sycamore Hall was a general population unit, which must be resolved in plaintiffs' favor.

See Pls.' Facts, ¶ 10 (citing Pls.' Evid., Exhibit I: Deposition of Lori Di Carlo ("Di Carlo Depo.") at 110, Tristan Decl., ¶ 12, and Stockman Decl., ¶ 60; see also OIG Rerpot at 13 n. 2. The court need not rule on the evidentiary objections defendants have asserted to paragraph 12 of the Tristan Declaration or paragraph 60 of the Stockman Declaration, as the Di Carlo deposition and OIG Report sufficiently establish this proposed fact.

Warden Defs.' Facts, ¶ 10; Pls.' Warden Response, ¶ 10 (not disputing this aspect of the defendants' proposed fact); see also OIG Report at 16.

It is unclear what information was available to the CIM official who made the initial placement decision; the identity of the official is equally unclear. Defendants concede, however, that prison officials knew that Blaylock was a Level IV inmate with a classification score of 376 either at the time of intake or shortly thereafter. In addition, defendants cannot reasonably dispute that by July 9, 2004, CIM officials had received CDC records on Blaylock, which revealed that he had been in and out of SHUs and ASUs since he was first incarcerated in 1990 due to more than twenty incidents of serious misconduct. These included several incidents involving violence toward staff and other inmates and possession and use of weapons.

Compare OIG Report at 15 (finding that, at the time of his arrival at CIM, Blaylock's records indicated that he paroled from the ASU of the California State Prison, Los Angeles following transfer from the SHU at the California State Prison, Concoran) with BOC Report at 7 (finding that, at the time of his arrival at CIM, the intake unit made its placement decision "based on limited information," i.e., the "Los Angeles Sheriff's Department statement that Blaylock would not voluntarily leave his jail cell [where he was held pending criminal prosecution] for transfer to CIM," the "[c]ommitment offense of attempted murder of a police officer," and "Blaylock's statements at CIM").

Warden Defs.' Facts, ¶ 10.

OIG Report at 16. This information was in Blaylock's "Central File," which the Warden Defendants concede CIM received on July 9, 2004. (See Warden Defs.' Facts, ¶ 12.) After a prolonged discovery battle with the CDCR, plaintiffs gained access to Blaylock's Central File in late April 2007. They then submitted the Central File to the court in opposition to defendants' motions for summary judgment, but failed to serve a copy on the Warden Defendants. They object to consideration of the Central File, asserting, inter alia, that the court's consideration of it would violate their procedural and substantive due process rights. (See Objection to Plaintiff's Ex Parte Application To Lodge Three Computer Discs in Support of Plaintiffs' Second Supplemental Opposition to Defendants' Motions for Summary Judgment, ¶ 2.) The court need not address defendants' objections because the resolution of the motions for summary judgment does not require the court to review the Central File. Any reference in this order to information contained in Blaylock's Central File is derived from the factual findings of the Inspector General, as documented in the OIG Report.

On July 31, 2004, Blaylock stabbed another inmate in the chest in the Sycamore Hall dining area; he was charged with a "rules violation" for assault, and placed in an ASU pending administrative review of the charge. Because of the charge, an "incident package" containing all pertinent information about Blaylock was, or should have been, forwarded to the CIM Warden. On August 4, 2004, the Institutional Classification Committee ("ICC") met with Blaylock and elected to retain him in the ASU pending completion of the disciplinary process; due to past violence, the committee also changed his custody level to "MAX-S," i.e., maximum security, single cell. On September 9, 2004, a senior hearing officer adjudicated Blaylock's rules violation and reduced the charge from assault to "mutual combat." On September 22, 2004, the ICC reconvened to consider whether Blaylock should remain in the ASU; citing the reduction in rules violation charge, the committee released him back into general population.

Warden Defs.'s Facts, ¶ 14; Pls.' Warden Reponse, ¶ 14 (noting, for purposes of this motion only, that this proposed fact is not disputed); see also OIG Report at 16; BOC Report at 7.

Pls.' Facts, ¶ 43 (citing Mellott Depo. 130:4-132:18). It is unclear whether the "incident package" was in fact forwarded to the Warden.

OIG Report at 16.

Warden Defs.' Facts, ¶ 15; Pls.' Warden Response, ¶ 15 (noting, for purposes of this motion only, that this proposed fact in not disputed); see also OIG Report at 16.

OIG Report at 16.

From the time of Blaylock's arrival at CIM to the time of Gonzales's death, defendants Lori Di Carlo, Carol Roddy, and Greg Mellott were wardens at CIM; Di Carlo held the position of Warden, while Roddy and Mellott served as Chief Deputy Wardens. Roddy was on medical leave from August 24, 2004 until some point after January 10, 2005, however, and had no involvement in any decision concerning Blaylock's placement in general population at CIM. Indeed, is not clear that Roddy was aware Blaylock was incarcerated at CIM before her medical leave commenced. Di Carlo and Mellott, by contrast, both knew that Blaylock was at CIM before Gonzales's death, due to the considerable difficulty CIM experienced trying to transfer Blaylock to another corrections facility for permanent placement. Neither defendant, however, chaired or otherwise participated directly in the ICC that returned Blaylock to general population following his detention in the ASU for the rules violation charge

Warden Defs.' Facts, ¶¶ 4-6; Pls.' Warden Reponse, ¶¶ 4-6 (noting, for purposes of this motion only, that these proposed facts are not disputed).

Warden Defs.' Facts, ¶¶ 17-18; Pls.' Warden Reponse, ¶¶ 4-6 (noting, for purposes of this motion only, that these proposed facts are not disputed).

Blaylock's file was referred to Mellott in November 2004 because CIM officials had had difficulty finding a permanent placement for him. On December 6, 2004, Mellott, (on DiCarlo's behalf) forwarded a request to the CDC Department Review Board in Sacramento, asking that Blaylock be transferred from CIM to some other institution. (See Warden Defs.' Facts, ¶¶ 20-21; Pls.' Warden Response, ¶¶ 20-21 (noting, for purposes of this motion only, that these proposed facts are not disputed).) In her deposition, Di Carlo stated that she was aware of Blaylock's case, given the difficulty CIM had had finding an appropriate permanent placement for him. She also acknowledged that she knew of the various risk factors plaintiffs contend should have led to Blaylock being placed in the ASU. (See Di Carlo Depo. at 32.)

See OIG Report at 23-24.

Defendants Roderick Q. Hickman, Jeanne S. Woodford, Suzan Hubbard, John Dovey, and Wendy Still were high-ranking officers of the CDC, now known as the Department of Corrections and Rehabilitation, at the time of Gonzales's death. Hickman was Secretary of the California Youth and Adult Correctional Agency. Woodford was Director of the CDC, while Hubbard was the agency's Acting Assistant Deputy Director. Dovey was the CDC's Chief Deputy Director of Field Operations, and Wendy Still was Regional Administrator of the Southern Region. At no time prior to January 10, 2005 did any of these State Defendants know that Blaylock was housed at CIM. Nor did any State Defendant play a role in the classification, placement, or incarceration of Blaylock at the institution. Plaintiffs argue, however, that the State

[State] Defendants' Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment or Partial Summary Judgment ("State Defs.' Facts"), ¶ 14; Plaintiffs' Supplemental Responses to Uncontroverted Facts and Conclusions of Law [State Defendants — Hickman, et al.] ("Pls.' State Response"), ¶ 14 (noting, for purposes of this motion only, that this proposed fact is not disputed).

State Defs.' Facts, ¶ 14; Pls.' State Response, ¶ 14 (noting, for purposes of this motion only, that this proposed fact is not disputed).

State Defs.' Facts, ¶¶ 15-16; Pls.' State Response, ¶¶ 15-16 (noting, for purposes of this motion only, that these proposed facts are not disputed).

State Defs.' Facts, ¶ 16. Plaintiffs do not respond to this proposed statement of fact but allege this fact in their complaints. (See, e.g., Complaint for Violation of Civil Rights 42 U.S.C. § 1983, ¶ 22.)

State Defs.' Facts, ¶ 18; Pls.' State Response, ¶ 18 (noting, for purposes of this motion only, that this proposed facts are not disputed).

State Defs.' Facts, ¶¶ 20-21 (citing declarations of the State Defendants). Plaintiffs object to the admissibility of this evidence on the ground that the State Defendants' declarations are "conclusory" and "unsupported by any factual recitation." (See Plaintiffs' Supplemental Opposition to Motion for Summary Judgment [Hickman motion] ("Pls.' State Opp."), at 8 n. 1.) This objection is without merit. The State Defendants clearly have personal knowledge both of what they did and did not know prior to Gonzales's death, as well as whether they did or did not participate in any decisions concerning Blaylock's placement in general population at CIM. This provides adequate foundation for the admission of their testimony. Given that defendants deny knowledge or involvement, moreover, it is unclear exactly what additional "factual recitation" plaintiffs seek. To the extent plaintiffs suggest that defendants' denials are not credible, the court cannot make credibility determinations in deciding motions for summary judgment. Plaintiffs have adduced no deposition testimony by these defendants, or any other admissible evidence, that raises a triable issue of fact as to whether the denials are true. Plaintiffs offer only the conclusory legal opinion that "[t]hese defendants had supervisory responsibility for the housing decisions and were specifically aware that the staff reduction decisions in which they participated created a substantial risk of danger for correctional staff." (See Pls.' Warden Response, ¶¶ 20-21.) This legal argument, which the court finds unavailing, is addressed infra.
Citing the declaration of their expert witness, Donald Stockman, plaintiffs also assert that Woodford and Still "participated" in the decision to continue housing Blaylock in CIM's general population rather than in an ASU. Stockman bases his opinion that Woodford and Still "participated" in the housing decision, inter alia, on knowledge of the managerial positions of the defendants as well as the relevant practices and procedures of the CDCR. (See Pls.' Facts, ¶¶ 50-51 (citing Stockman Decl., ¶¶ 50-51).) He cites no specific facts in the record, however, which support the opinion, and the only available evidence contradicts it. Consequently, the court concludes the opinion is not admissible. See, e.g., United States v. Rushing, 388 F.3d 1153, 1156 (8th Cir. 2004) ("Expert testimony should not be admitted when it is speculative, it is not supported by sufficient facts, or the facts of the case contradict or otherwise render the opinion unreasonable"); Greenwell v. Boatwright, 184 F.3d 492, 497 (6th Cir. 1999) ("Expert testimony is not inadmissible simply because it contradicts eyewitness testimony. Expert testimony, however, is inadmissible when the facts upon which the expert bases his testimony contradict the evidence"); see also Elcock v. Kmart Corp., 233 F.3d 734, 756 n. 13 (3d Cir. 2000) (concluding that the district court should have excluded an expert opinion based on "empirical assumptions that were not supported by the record," and noting that an expert "who renders an opinion about a plaintiff's future economic harm based on economic assumptions not present in the plaintiff's case cannot be said to `assist the trier of fact,' as Rule 702 requires"); id. (noting that although Rule 703 does not "specifically address the exclusion of expert testimony based on assumptions lacking a foundation in the record, it is not a stretch from the requirement that other `experts in the particular field' would `reasonably rel[y]' on such data in `forming opinions . . . on the subject' . . . to suggest that an expert should not depend on fictional or random data when rendering an opinion about the quantum of economic harm in a particular plaintiff's case"); In re Rezulin ProductsLiabilityLitigation, 309 F.Supp.2d 531, 541 (S.D.N.Y. 2004) (the requirement in Rule 702 that an expert offer "`scientific, technical, or other specialized knowledge' . . . guards against the admission of subjective or speculative opinions").
Even were it not contradicted by undisputed evidence in the record, moreover, the court would exclude Stockman's opinion on the basis that it merely tells the trier of fact what verdict to reach, rather than helps the trier of fact interpret the evidence. There is no doubt that, in their common experience, jurors can determine whether or not a particular individual "participated" in making a decision. See United States v. Frazier, 387 F.3d 1244, 1262-63 (11th Cir. 2004) ("The final requirement for admissibility of expert testimony under Rule 702 is that it assist the trier of fact. By this requirement, expert testimony is admissible if it concerns matters that are beyond the understanding of the average lay person. . . . Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments"); United States v. Mulder, 273 F.3d 91, 101 (2d Cir. 2001) (district courts should not admit testimony "that is `directed solely to lay matters which a jury is capable of understanding and deciding without the expert's help'"); In re Rezulin Products Liability Litigation, 309 F.Supp.2d at 541 ("in requiring that expert testimony be directed to `scientific, technical or specialized' knowledge, Rule 702 ensures that expert witnesses will not testify about `lay matters which a jury is capable of understanding and deciding without the expert's help.' In other words, experts should not be permitted to `supplant the role of counsel in making argument at trial, and the role of the jury in interpreting the evidence.' Examples of `expert' testimony that courts have excluded on this basis include factual narratives and interpretations of conduct or views as to the motivation of parties"); see also Klaczak v. Consolidated Medical Transport Inc., No. 96 C 6502, 2005 WL 1564981, *2 (N.D. Ill. May 26, 2005) ("The Court also . . . excludes various purported expert testimony from Sparks and Nagorka as to what the Defendants purportedly knew or whether the Defendants intended to commit fraud. Such testimony is not helpful to the jury, as the jury is well positioned to make this type of assessment in the absence of a battle of expert testimony about what parties knew or did not know, or did or did not subjectively intend to do"). Consequently, the court accepts defendants' assertion that they did not know Blaylock was housed at CIM, and that they were not involved in the classification or placement of Blaylock within the facility as undisputed.

Defendants are responsible for Gonzales's death, because Hickman advised prison wardens and deputy wardens that they need not routinely chair ICC meetings, in contravention of a previously announced CDC policy, and because all of the State Defendants "participated" in various budgetary decisions that purportedly "created an excessive and foreseeable danger to [CDC] staff, including correctional officers," e.g., decisions not to create additional ASUs at CIM.

Pls.' Facts, ¶ 54 (citing Stockman Decl., ¶ 20); see also Mellott Depo. at 140-42. The court need not rule on the evidentiary objections defendants have asserted to paragraph 20 of Stockman's declaration as Mellott's deposition testimony sufficiently establishes this proposed fact.

See, e.g., Pls.' Facts, ¶¶ 57-61 (citing Stockman Decl., ¶¶ 23-27) (concerning the creation of additional ASUs at CIM). Plaintiffs' expert does not explain the basis for this opinion, and neither party has directed the court's attention to evidence in the voluminous record supporting it. The court nonetheless considers these proposed facts to be undisputed for purposes of this proceeding, because it concludes that, even if true, they do not raise triable issues of fact regarding the State Defendants' liability.

II. DISCUSSION

A. Legal Standard Governing Motions for Summary Judgment

A motion for summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.PROC. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case. See id. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T. W. Electric Service, Inc. v. Pacific Electric Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). The evidence presented by the parties must be admissible. FED.R.CIV.PROC. 56(e). In addition, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979); see also Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 56 (2d Cir. 1985).

B. The Bases of Defendants' Motions

In their motion for summary judgment, the State Defendants argue, inter alia, that judgment must be entered in their favor because they were not personally involved in any actions or decisions that caused Gonzales's death, and thus cannot be liable under § 1983. Defendant Roddy makes a similar argument in the Warden Defendants' motion. Defendants Di Carlo and Mellott argue that judgment must be entered in their favor because (1) their placement of Blaylock in general population in Sycamore Hall was, under the circumstances, appropriate and/or at most merely negligent, and (2) Gonzales's own actions were the proximate and superseding cause of his death. Di Carlo and Mellott also assert that they are entitled to qualified immunity because any constitutional right of Gonzales's that was violated by placing Blaylock in general population was not clearly established at the time of his death. The court addresses each of these arguments in turn.

Memorandum of Points and Authorities in Support of [State Defendants'] Motion for Summary Judgment ("State Defs.' Mem.") at 16-18.

Memorandum of Points and Authorities in Support of [Warden Defendants'] Motion for Summary Judgment ("Warden Defs.' Mem.") at 12.

Id. at 8-12. Defendants also argue that the ICC's decision to release Blaylock from the ASU to general population was mandatory under the applicable regulations after the senior hearing officer reduced the rules violation with which Blaylock had been charged to mutual combat, and that Di Carlo and Mellott were powerless to override the hearing officer's determination. (Id. at 9-10.) This argument is not well-taken. It is clear that the hearing officer's decision on the assault charge was separate and distinct from the ICC's decision to release Blaylock to general population, and that the ICC could have retained Blaylock in the ASU irrespective of the hearing officer's ruling on the disciplinary charge. Under the regulations cited by defendants, an inmate can be retained in an ASU following the conclusion of a period of disciplinary segregation if a new segregation order is written that explains the reasons for retaining the inmate in that placement and the inmate is given a hearing on the matter. See CAL. CODE REG., tit. 15, § 3339(b). (See also OIG Report at 23 ("In making the September 22, 2004 decision about whether to return Blaylock to the general population, the [ICC] had the opportunity . . . to thoroughly review his central file, note his violent tendencies and previous segregated housing placement, and retain him in administrative segregation, regardless of the outcome of the rules violation"); BOC Report at 8 ("On September 22, 2004, the [ICC] again reviewed Inmate Blaylock's case based on the 30-day Administrative Segregation review. The Committee noted the reduction in the discipline charge and released the inmate back to Sycamore Hall. . . . Although the [ICC] did not change the Hearing Lieutenant's decision to reduce the disciplinary finding, it is the Panel's opinion that Blaylock should have been retained in Administrative Segregation based on his well-documented history of violence").)

Warden Defs.' Mem. at 13-14.

Id. at 12-13.

C. Whether the State Defendants and Roddy Were Sufficiently Involved in Decisions Concerning Blaylock's Placement To Be Subject to § 1983 Liability

"To establish that a state official is personally liable in an action under 42 U.S.C. § 1983, a plaintiff must show that the official, acting under color of state law, caused the deprivation of a federal right." See, e.g., Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir. 2005) (internal quotations omitted). An official deprives a plaintiff "of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); see also Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Applying this rule, "[s]upervisors can be held liable [under § 1983] for: 1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous indifference to the rights of others." Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (citing Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)); accord Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005).

"[A] supervisory official cannot be held liable under [§ 1983 on] the theory of respondeat superior." Lindgren v. Curry, 451 F.Supp.2d 1073, 1075 (C.D. Cal. 2006) (stating that a supervisor "may be liable for constitutional claims [only] if he or she was personally involved in the constitutional deprivation, or if there was a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation," and citing Redman v. Warden of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991) (en banc)); see also Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) ("[S]upervisory officials are not liable for the actions of subordinates on any theory of vicarious liability under 42 U.S.C. § 1983"); Hunt v. DentalDep `t, 865 F.2d 198, 200 (9th Cir. 1989) (holding that the doctrine of respondeat superior was not applicable in a prisoner's claim against the director of the state Department of Corrections); Bonner v. Lewis, 857 F.2d 559, 565 (9th Cir. 1988) (same); McClain v. Arnold, No. C 06-3834, 2007 WL 640941, *3 (N.D. Cal. Feb. 27, 2007) ("Plaintiff is cautioned that there is no respondeat superior liability under Section 1983, i.e. no liability under the theory that one is responsible for the actions or omissions of an employee. Liability under Section 1983 arises only upon a showing of personal participation by the defendant"). In other words, supervisors cannot "be held personally responsible [under § 1983] simply because [they were] in a high position of authority." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).

Given this standard, the court concludes that summary judgment must be entered in favor of defendants Hickman, Woodford, Hubbard, Dovey, Still, and Roddy because there is no evidence that they had any involvement in decisions concerning Blaylock's placement in the general population at CIM. Each of these defendants has provided a declaration stating that he or she played no role in the classification, placement, or incarceration of Blaylock at CIM; each of the State Defendants has also declared that he or she did not even know that Blaylock was housed at the institution. Plaintiffs cannot avoid the force of this evidence or defeat summary judgment simply by citing the allegations in their complaint or asserting, in conclusory fashion and without evidentiary support, that each defendant had "supervisory responsibility for Officer Gonzales's death."

In arguing against this result, plaintiffs misapprehend the parties' respective burdens on a motion for summary judgment. Plaintiffs assert that "[a] defendant moving for summary judgment . . . has a critically important initial burden" of "affirmatively demonstrating, with admissible evidence," that "there is a lack of any genuine issue of material fact as to each of plaintiffs' claims." (See Pls.' State Opp. at 6-7.) This is incorrect; a defendant moving for summary judgment on the ground that plaintiffs have no evidence to support their claims has no burden of production at all. See, e.g., Celotex, 477 U.S. at 323 ("[W]e find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c), which refers to `the affidavits, if any' (emphasis added), suggests the absence of such a requirement. And if there were any doubt about the meaning of Rule 56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that claimants and defendants, respectively, may move for summary judgment 'with or without supporting affidavits' (emphasis added)"); id. at 324 ("[A] motion for summary judgment may be made pursuant to Rule 56 `with or without supporting affidavits.' In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.' Such a motion, whether or not accompanied by affidavits, will be `made and supported as provided in this rule,' and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial'"). In other words, under Rule 56, a defendant is not required to prove a negative — i.e., the absence of genuine issues of material fact — to establish his or her entitlement to summary judgment. Rather, the party may simply assert that there is no evidence to substantiate the material allegations of the complaint. To defeat the motion, plaintiffs must adduce evidence contradicting defendant's claim.

Pls.' State Opp. at 8.

Nor can plaintiffs defeat summary judgment by asserting that the State Defendants "participated" in various budgetary decisions, such as a purported decision not to fund additional ASUs at CIM, that allegedly created an "excessive and foreseeable danger" to CIM staff. This is because "participation" in these types of decisions is not actionable under § 1983. As the Supreme Court has observed,

"the administration of government programs is based on a rational decisionmaking process that takes account of competing social, political, and economic forces. Decisions concerning the allocation of resources to individual programs . . . and to particular aspects of those programs . . . involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country." Collins v. City of Harker Heights, 503 U.S. 115, 128-29 (1992).

As a result, defendants here cannot be held personally liable under § 1983 for "incorrect or ill-advised decisions" that failed to "guarantee [state] employees a workplace that is free of unreasonable risks of harm." Id. at 129 (internal quotation marks omitted); Chase v. County of Nevada, 81 Fed.Appx. 92, 93-94 (9th Cir. Nov. 4, 2003) (Unpub. Disp.) (dismissing a § 1983 action brought by employees of a state mental institution against the county and certain supervisors, alleging that the supervisors implemented policies "designed to conserve resources," and that those policies created a danger that ultimately resulted in a "mental patient's deadly attack," because "resource allocation decisions, though they occasionally result in harm to individuals, do not rise to the level of a constitutional violation"); see also Lombardi v. Whitman, _ F.3d _, 2007 WL 1148709, *10 (2d Cir. Apr. 19, 2007) ("[S]ubstantive due process liability should not be allowed to inhibit or control policy decisions of government agencies, even if some decisions could be made to seem gravely erroneous in retrospect"); Fraternal Order of Police Dept. of Corrections Labor Committee v. Williams, 375 F.3d 1141 (D.C. Cir. 2004) (affirming the dismissal of a substantive due process claim brought by correctional officers against, inter alia, the mayor and director of the department of corrections, which alleged that defendants laid off a number of correctional officers at the same time that they added a number of inmates to the District's cental detention facility, and thereby increased the likelihood of inmate assaults, because "[t]he challenged acts of the Mayor and the DOC Director — implementing RIFs and relocating prisoners to another detention facility in response to congressional appropriations and mandates — in no way approach the `cognizable level of executive abuse of power as that which shocks the conscience.' . . . It is a `stringent requirement' that `exists to differentiate substantive due process . . . from local tort law, . . . and recognizes the `presumption that the administration of government programs' and `[d]ecisions concerning the allocation of resources' are `based on a rational decisionmaking process that takes account of competing social, political, and economic forces.' It is `conduct intended to injure in some way unjustifiable by any government interest' — and not such large-scale personnel and program decisions as relocation of inmates and reallocation of correctional officers resulting therefrom, made by officials at the highest level of the District government in response to congressional directives and appropriations — that `is the sort of official action most likely to rise to the conscience-shocking level'" (citations omitted)); White v. Lemacks, 183 F.3d 1253, 1258 (11th Cir. 1999) ("[W]e are told in the Collins opinion that when governmental action or inaction reflects policy decisions about resource allocation (as is often the case), those decisions are better made `by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.' . . . [W]hen someone not in custody is harmed because too few resources were devoted to their safety and protection, that harm will seldom, if ever, be cognizable under the Due Process Clause"); Uhlrig v. Harder, 64 F.3d 567, 576 (10th Cir. 1995) (affirming summary judgment in favor of state mental health administrators who closed a special unit in a mental hospital for the criminally insane, resulting in the transfer of a patient to general population who killed a therapist, because, inter alia, "we must be careful not to second guess Defendants' decisions based on the benefit of hindsight, especially where their decision stemmed from a balancing of `competing social, political, and economic forces.' . . . As noted by the Supreme Court, decisions concerning the allocation of resources `involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.' . . . Here, Defendants faced difficult allocational decisions precipitated by budgetary constraints, and even if their decisions created certain risks, we view them as within the province of policymakers who must balance competing concerns," quoting Collins, 503 U.S. at 576); Lewellen v. Metropolitan Government of Nashville and Davidson County, 34 F.3d 345, 351 (6th Cir. 1994) (holding, in an action against, inter alia, against a school board by a worker who was injured on a school construction project and who alleged that the board had violated his substantive due process rights by acting with deliberate indifference to his safety, that although "defendants acted intentionally in delaying the planned move of the power line [and in refusing to pay $600-$1,000 to have the line moved on a weekend], . . . the Harker Heights defendants acted intentionally in sending Mr. Collins down the manhole without warning him of the known hazard from sewer gas and without providing him proper safety equipment," and that, "[i]f the defendants in the present case were guilty of `deliberate indifference' to `unreasonable risks of harm,' . . . that was assumed to be the case in Harker Heights as well. What the defendants in this case clearly did not do was engage in arbitrary conduct intentionally designed to punish someone — e.g., giving a worker `a particularly dangerous assignment in retaliation for a political speech . . . or because of his or her gender. . . .' That kind of deliberate misconduct, Harker Heights suggests, may result in liability under § 1983, But the injuries suffered by plaintiff Lewellen, like the death of Mr. Collins, resulted from what at worst was gross negligence. Gross negligence is not actionable under § 1983, because it is not `arbitrary in the constitutional sense'"); Walker v. Rowe, 791 F.2d 507, 510 (7th Cir. 1986) ("Governments regularly sacrifice safety for other things. . . . The level of safety to be provided by the police to the people — like the level of safety to be provided to the police and prison guards — is determined by political and economic forces, not by juries implementing the due process clause. People through the democratic process may choose more or less `crime in the streets' by altering their support of the police, the courts, social welfare programs, and economic policies stimulating growth; so too they may alter their support of safety programs for prison guards. And they may choose how to deal with the risks that inhere in prisons — they may choose to provide greater safety through designing new prisons and doubling the number of guards, or they may choose to afford remedies such as workers' compensation, insurance, and special payments to injured guards").

Even if "participation" in budgetary decisions were actionable under § 1983, the court would still be compelled to enter judgment for defendants on this aspect of plaintiffs' claim, as there is no evidence in the record that the State Defendants acted with deliberate indifference to a known or obvious danger that their resource allocation decisions might subject Gonzales to any harm. See L. W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996) ("Grubbs II").

For the same reason, the court rejects plaintiffs' contention that Hickman can be held liable for Gonzales's death on a state-created danger theory because he advised wardens and deputy wardens that associate wardens could replace them as chairs of ICC meetings. Like the budgetary allocation of resources, this type of high-level policy decision is generally not actionable under § 1983. See Collins, 503 U.S. at 129 ("The Due Process Clause `is not a guarantee against incorrect or ill-advised personnel decisions,'" quoting Bishop v. Wood, 426 U.S. 341, 350 (1976)); Pahler v. City of Wilkes-Barre, 31 Fed.Appx. 69, 71-72 (3d Cir. 2002) (Unpub. Disp.) (affirming summary adjudication of a state-created danger claim brought by police officer against a city, its mayor, and its chief of police, based upon defendants' failure to deploy a specially trained unit to conduct a drug raid in which defendant was ordered to participate, because this failure could "hardly be described as `deliberately indifferent' behavior that shocks the conscience constituting a substantive due process violation," citing Collins); Roberts v. City of Troy, 773 F.2d 720, 725 (6th Cir. 1985) (holding that there was no deliberate indifference where a police chief's "allocation of resources — time, personnel, and money" at the city jail was based on "a legitimate governmental purpose"); Williams v. O'Brien, No. CV 06-675 GEC, 2007 WL 1112701, *11 (W.D. Va. Apr. 12, 2007) ("[T]he court is not positioned to second-guess the prison's staffing decisions. Functions of prison management must be left to the broad discretion of prison administrators to enable them to manage prisons safely and effectively," citing Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991)).

See Pls.' State Opp. at 13 ("As of 1998, [CDC] policy mandated that Wardens or Deputy Wardens act as chair of all Institutional Classification Committee (ICC) meetings in order to assure that housing classification decisions were properly made and implemented. Roderick [Q.] Hickman verbally countermanded that written [CDC] policy, thereby creating a foreseeable and excessive danger to staff from erroneous housing classification decision[s] . . .").

Even were this not the case, Hickman would be entitled to summary judgment in this case because there is no evidence that he made this policy decision with knowledge that it would increase the likelihood that correctional staff would be harmed by inmates. There is no evidence, for example, that Hickman advised wardens and deputy wardens that they could delegate their responsibility to chair the ICC with knowledge that associate wardens were more likely to make improper classification decisions than wardens or deputy wardens. Indeed, the only evidence in the record indicates that Hickman made this decision after careful consideration, because he believed that associate wardens could competently chair ICC meetings and that wardens and deputy wardens could more effectively spend their time fulfilling other duties. Similarly, there is no evidence that after Hickman failed to countermand the advisal after learning that ICCs chaired by associate wardens tended improperly to classify inmates. In sum, there is no evidence to support a finding that (1) allowing associate wardens to chair ICCs led to a greater number of inappropriate classification decisions or more incidents of inmate attacks on correctional staff, or (2) that Hickman was deliberately indifferent to the fact that he was placing correctional officers in a dangerous situation by stating that wardens and deputy wardens could delegate responsibility for chairing ICCs to their subordinates. As a result, the court concludes that Hickman's advisal does not expose him to supervisory liability under § 1983.

See Mellott Depo. at 140-42.

For the foregoing reasons, the State Defendants' motion for summary judgment is granted. As respects Roddy's motion, it too is granted, because she was on medical leave for a majority of the time Blaylock was incarcerated at CIM, and there is no evidence that she participated in any decision regarding his classification or placement at the facility. Consequently, she cannot be said to have been personally involved, by action, inaction, or acquiescence, in any activity that caused Gonzales's death. See Cunningham, 229 F.3d at 1292.

D. Whether Plaintiffs Have Raised Triable Issues of Fact as to Whether Defendants Di Carlo and Mellott Violated Gonzales's Constitutional Rights

Generally, state officers have no constitutional duty to protect members of the general public from violent crimes perpetrated by private parties, and cannot be held liable for a failure to do so. See generally DeShaney v. Winnebago Warden Dep't of Social Services, 489 U.S. 189, 195 (1989) ("[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. . . . [I]ts language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means").

See also, e.g., Piotrowski v. City of Houston, 237 F.3d 567, 582 (5th Cir. 2001) ("The DeShaney decision absolves public officials of individual section 1983 liability for failure to protect citizens"); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) ("Grubbs I") ("As a general rule, members of the public have no constitutional right to sue state employees who fail to protect them against harm inflicted by third parties" (citations omitted)).

The Ninth Circuit, however, has recognized two exceptions to the DeShaney rule. Only the second exception — the "state-created danger" doctrine — is potentially applicable here. Under this theory, a plaintiff can recover when a state actor has "`affirmatively place[d] [the] individual in danger,' . . . by acting with `deliberate indifference to [a] known or obvious danger in subjecting the plaintiff to it.'" Kennedy v. City of Ridgefield, 439 1055, 1062 (9th Cir. 2006) (citations omitted)); see also, e.g., Munger v. City of Glasgow, 227 F.3d 1082, 1087 (9th Cir. 2000) (holding that police officers could be held liable under the state-created danger doctrine for the death by hypothermia of a visibly drunk patron, wearing only a T-shirt and jeans, whom they ejected from a bar on a bitterly cold night); Grubbs I, 974 F.2d at 120 (holding that state employees could be liable for the rape of a registered nurse assigned to work alone in the medical clinic of a medium-security custodial institution that housed a violent sex offender); Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989) (holding that there was a genuine issue of fact as to whether a state trooper "acted with deliberate indifference to Wood's interest in personal security under the Fourteenth Amendment" when he left her stranded late at night in a high-crime area, and she was raped after accepting a ride from a passing car). To establish that an officer is liable for harm done by a third person under the state-created danger theory, a plaintiff must show: (1) that the officer "affirmatively place[d] [him or her] in danger"; and (2) that the officer acted with "deliberate indifference to [a] known or obvious danger" in doing so. Kennedy, 439 F.3d at 1062; Grubbs II, 92 F.3d at 896 ("We have not deviated from the principle that deliberate indifference on the part of the responsible official, to the safety of employees in the presence of known danger, created by official conduct, is sufficient to establish a due process violation under Section 1983 for injury caused in part by a state created danger").

The first exception, the "special relationship" doctrine, provides that "the state can be held liable for a third party's harm "stemming from a custodial relationship between the state and the victim." Kennedy, 439 F.3d at 1070. Under this exception, "when the State takes a person into its custody and holds him there against his will, the Constitution imposes some responsibility for [that person's] safety and general well-being." Wang v. Reno, 81 F.3d 808, 818 (9th Cir. 1996)); see also DeShaney, 489 U.S. at 199-200. In its order on defendants' motions to dismiss, the court concluded that this exception did not apply in this case, as Gonzales — although killed in prison — was not himself in the state's custody. See, e.g., Waller v. Trippett, 49 Fed.Appx. 45, 49 (6th Cir. Oct. 10, 2002) (Unpub. Disp.) (holding that the "special relationship" exception did not apply where a food service steward was stabbed and killed by an inmate, because the decedent "was simply an employee of the state working at [the correctional facility], and an employment relationship is consensual"). Plaintiffs concede this point in their opposition to the pending motions. (See Plaintiffs' Supplemental Opposition to Motion for Summary Judgment [Di Carlo motion] ("Pls.' Warden Opp.") at 8).

Defendants contend that plaintiffs must additionally establish that their conduct "shocks the conscience" to prevail on a § 1983 state-created danger claim. (See Warden Defs.' Mem. at 11-12.) This incorrect. See Grubbs II, 92 F.3d at 898 (disapproving of the Tenth Circuit's "troubling, subjective `shocks the conscience' [addition] to the deliberate indifference inquiry" used to determine whether state actors violated an individual's due process rights by exposing him or her to a state-created danger).

Defendants Di Carlo and Mellott argue that Blaylock's placement in general population in Sycamore Hall was, under the circumstances, appropriate and/or at most merely negligent. After reviewing the evidence in the record, the court concludes that plaintiffs have raised triable issues of fact as to whether the decision to place Blaylock in general population affirmatively place Gonzales and other correctional officers in danger. It also concludes that the evidence raises triable issues of fact as to whether Di Carlo's and Mellott's conduct could be said to have been deliberately indifferent.

Id. at 8-12.

First, given the evidence adduced by plaintiffs, e.g., the OIG Report ("Finding 1: The Office of the Inspector General found that the [CIM] inappropriately housed Blaylock in a general population unit despite his recent parole from a security housing unit and his demonstrated violence toward other inmates"), the BOC Report ("Inmate Blaylock should have been placed in Administrative Segregation when he was first received by CIM — and numerous times afterward"), and the opinion of plaintiffs' qualified expert, there are clearly factual disputes regarding the propriety of the decision to place Blaylock in general population.

OIG Report at 4.

BOC Report at 16.

See Tristan Decl., ¶¶ 44-51.

Second, whether defendants acted with the state of mind required to impose liability under a state-created danger theory has been described as a "classic issue for the fact finder." Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998); see also Gibson v. Warden of Washoe, Nevada, 290 F.3d 1175, 1194-95 (9th Cir. 2002) ("Whether a local government has displayed a policy of deliberate indifference to the constitutional rights of its citizens is generally a jury question"); Wood, 879 F.2d at 588 n. 4 (reversing a grant of summary judgment because defendant's conduct could be construed as having been deliberately indifferent; "a jury presented with these facts might find Ostrander's conduct to have been `deliberately indifferent,' `reckless,' `grossly negligent,' or merely `negligent'"); Fargo v. City of San Juan Bautista, 857 F.2d 638, 641 (9th Cir. 1988) ("When reasonable persons may disagree as to whether particular conduct constitutes negligence, gross negligence or recklessness, the question is one of fact to be decided by a jury" (footnote omitted)).

To prove that defendants had the requisite state of mind — i.e., that they acted with deliberate indifference — plaintiffs must show that each defendant acted in conscious disregard of the consequences of his or her actions. See Kennedy, 439 F.3d at 1064 ("`Deliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his actions,'" quoting Bryan Warden v. Brown, 520 U.S. 397, 410 (1997)); Grubbs II, 92 F.3d at 899 (approving, without expressly adopting, the Tenth Circuit's deliberate indifference standard, which requires that defendant have `act[ed] recklessly in conscience disregard' of a `substantial risk of serious, immediate and proximate harm,'" quoting Uhlrig, 64 F.3d at 574 (alteration original)).

Here, whether Di Carlo and Mellott acted with deliberate indifference presents a clear jury question. The record contains evidence that would permit a reasonable jury to find that defendants recklessly disregarded a substantial risk of serious harm to Gonzales by permitting Blaylock to be placed in general population at CIM, because Blaylock was a violent, maximum security criminal offender with a classification score of 376 and a long history of serious misconduct while imprisoned, including several incidents of violence toward staff and other inmates and possession and use of weapons. Accordingly, the court concludes that defendants are not entitled to summary judgment on the ground that it was appropriate to place Blaylock in general population as a matter or law, or on the basis that their conduct constituted mere negligence. Cf. Kennedy, 439 F.3d at 1065 (holding that there was sufficient evidence of deliberate indifference where defendant (1) told plaintiff's neighbor that she alleged he had sexually molested her daughter before notifying plaintiff that he was going to do so, in contravention of his promise to plaintiff, and (2) reassured plaintiff that she would receive increased security that either was never provided or that was ineffective); Wood, 879 F.2d at 588 ("[T]he facts put in issue by [plaintiff] — that [the defendant officer] arrested the driver, impounded the car, and left [plaintiff] by the side of the road at night in a high-crime area [-] show an assertion of government power which, according to [plaintiff's] version of the case, tends to show a disregard for [plaintiff's] safety amounting to deliberate indifference"); Rutledge v. Springborn, 836 F.Supp. 531, 538 (N.D. Ill. 1993) (inmate's evidence that prison officials placed him in protective custody to reveal his identity as an informant and subject him to increased danger was sufficient to create a triable issue of fact respecting deliberate indifference).

As noted in the court's recitation of the undisputed material facts, neither Di Carlo nor Mellott chaired the ICC that released Blaylock into general population from the ASU following the reduction of his rules violation charge from assault to mutual combat. This does not necessarily absolve defendants of liability, however. At the time of Gonzales's death, California Penal Code § 2079 provided that "it [was] the duty of the wardens to supervise the government, discipline and policy of the prisons, and to enforce all orders and regulations." CAL. PENAL CODE § 2079 (West 2004). CDC regulations, in turn, imposed a non-delegable duty on either the warden or deputy warden to chair meetings of the ICC. See CAL. CODE REG., tit. 15, § 3376(c)(2). By improperly delegating this duty and failing to chair meetings of the ICC, defendants can be held accountable, under a supervisory theory of § 1983 liability, for decisions of the ICC, such as the committee's decision to release Blaylock into general population, if they knew about that decision and acquiesced in it. See, e.g., Redman, 942 F.2d at 1446-48 (concluding that plaintiff had raised a triable issue of fact over whether county sheriff, who was "required by statute to take charge of and keep the county jail and the prisoners in it," was liable as a supervisor under § 1983 for acquiescing in "deficient" housing policies that were implemented because of overcrowding at the prison); see also Taylor v. Michigan Dep't of Corrections, 69 F.3d 76, 81 (6th Cir. 1995) (reversing summary judgment entered in a warden's favor on an inmate's § 1983 claim, where inmate alleged that he had been improperly placed in general population at a state prison, and "charged [the warden] with abandoning the specific duties of his position . . . in the face of actual knowledge of a breakdown in the proper workings of the department," and noting that "[a] jury could find on the facts that [the warden] personally had a job to do, and that he did not do it"); Agrawal v. Briley, No. C 02-6807, 2004 WL 1977581, * 10-13 (N.D. Ill. Aug. 25, 2004).
This is true whether or not Hickman advised wardens and deputy wardens that they could allow associate wardens to chair the ICC. First, the regulation directing wardens or deputy wardens to chair the ICC, see CAL. CODE REG., tit. 15, § 3376(c)(2), was never amended or deleted, and Di Carlo and Mellott are charged with knowledge of its requirements. Second, at a minimum, Di Carlo and Mellott had a duty to ensure that those to whom they delegated responsibility for the ICC performed the task in an appropriate way. See Taylor, 69 F.3d at 80 (holding that there was a jury question regarding a warden's § 1983 liability for a third party attack on an inmate because although "[r]egulations allowed Foltz to delegate the authority to sign his name on the transfers[,] . . . Foltz's testimony from his own deposition reveals that he was aware that his direct designees were redelegating his authority over transfers to lower echelon prison staff without any explicit authorization to do so, that he was not even sure of the procedures for approval of transfers, and that he had no review procedures to determine whether his authority was being abused"). While Hickman may have advised Di Carlo and Mellott that they could delegate the responsibility to chair the ICC to an associate warden, he did not relieve them of ultimate responsibility for the classification decisions made at CIM. See Lupo v. Voinovich, 235 F.Supp.2d 782, 796 (S.D. Ohio 2002) ("[A] supervisor most likely cannot `insulate himself from liability for violating [a plaintiff's] First Amendment rights merely by showing that he did not know the [plaintiff] personally.' Consequently, a supervisor cannot take solace from the mere fact that he had delegated responsibility for the challenged action to lower echelon employees" (citation omitted)); cf. Jantz v. Muci, 976 F.2d 623, 631 (10th Cir. 1992) ("Delegation must be absolute to give rise to the `final authority.' If the board retains the authority to review, even though it may not exercise such review or investigate the basis of the decision, delegation of final authority does not occur"). Stated differently, Di Carlo's and Mellott's failure to supervise those to whom they delegated the responsibility to chair the ICC was a form of culpable inaction in overseeing their subordinates and/or an acquiescence in the decisions they reached, sufficient to subject the two defendants to supervisory liability. See Larez, 946 F.2d at 646. This is particularly true since Di Carlo and Mellott knew both that Blaylock was a dangerous, violent inmate and that he was housed in general population at CIM. (See Warden Defs.' Facts, ¶¶ 20-21; Pls.' Warden Response, ¶¶ 20-21; Di Carlo Depo. at 32.)

E. Whether Gonzales's Actions Broke the Chain of Causation

Defendants argue that, by releasing Blaylock from his cell in violation of CIM policy, Gonzales created an "unforeseen and abnormal intervention" that "[broke] the chain of causa[tion]," effectively "shielding the defendant[s] from . . . liability" for placing Blaylock in general population rather than an ASU. The court does not agree.

Warden Defs.' Mem. at 14 (quoting Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989), quoted in Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996)).

To establish § 1983 liability under a state-created danger theory, plaintiff must prove that the defendant placed plaintiff in the harmful path of a third party not liable under § 1983. See Kennedy, 439 F.3d at 1062 n. 2. To make the requisite showing, plaintiff must demonstrate that it was foreseeable to defendant that injury to plaintiff might result from his or her actions. Id. at 1064 n. 5; see generally Tahoe-Sierra Preservation Council, 216 F.3d at 783 n. 34 (noting that "foreseeability analysis" is "widely accepted by both federal and state [courts] as a conventional method of assessing proximate [i.e., legal] cause"); Sundance Land Corp. v. Community First Fed. Sav. Loan Ass'n, 840 F.2d 653, 663 (9th Cir. 1988) ("Proximate causation requires that the wrongful conduct be the legal cause of the injury. This inquiry essentially depends upon whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred. The scope of liability should ordinarily extend to but not beyond the scope of the `forseeable risks.'" (citations and some internal quotation marks omitted)); Hines v. United States, 60 F.3d 1442, 1450 (9th Cir. 1995) ("The question of proximate cause is usually defined with reference to the scope of the foreseeable risks of the actor's conduct"); see also Van Ort, 92 F.3d at 837 (applying foreseeability test to question of proximate cause in section 1983 action);

Even where some risk is foreseeable, however, a defendant cannot be held liable where "injury was actually brought about by a later cause of independent origin that was not foreseeable." Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837 (1996) (emphasis added); see also RESTATEMENT (2D) OF TORTS § 440 cmt. b (1965) ("[S]uperseding cause relieves the actor of liability, irrespective of whether his antecedent negligence was or was not a substantial factor in bringing about the harm"). The presence of a superseding cause has been held to prevent the direct causal connection required for liability in § 1983 cases. See Van Ort, 92 F.3d at 837 (holding that, in § 1983 actions, the Ninth Circuit has looked to "[t]raditional tort law" to define "intervening causes that break the chain of proximate causation"); White v. Roper, 901 F.2d 1501, 1506 (9th Cir. 1990) (observing that a defendant's "conduct is not the proximate cause of [plaintiffs] alleged injuries if another cause supersedes his liability for the subsequent events").

Here, Gonzales let Blaylock out of his cell, in contravention of official CIM policy, because he believed Blaylock was a "shot caller" who could relieve racial tensions at CIM. Although this act substantially contributed to Gonzales's death, it is not a "superseding" cause of his death — such that it breaks the causal chain and shields defendants from liability for exposing Gonzales to danger by placing Blaylock in general population at CIM — because it was foreseeable to Di Carlo and Mellott that this might happen. Cf., e.g., White, 901 F.2d at 1506 (observing that, even if plaintiff's own actions, which contributed to the harm he suffered, might be an intervening cause, his actions would not be a superseding cause if they were foreseeable to the defendant). As a result, Gonzales's own culpability in causing his death does not shield Di Carlo and Mellott from liability for placing Blaylock in general population at CIM.

The evidence shows that it was a common practice for CIM correctional officers to release "shot callers" from their cells to help control groups of inmates over whom they exercised influence. (See Mellott Depo. at 145; see also OIG Report at 29.) In this regard, it is not necessary that defendants have specifically foreseen that Blaylock would be considered a "shot caller" and be routinely released from his cell by CIM correctional officers. Rather, it is enough that they could have foreseen that dangerous inmates generally might be released.

F. Whether Defendants Di Carlo and Mellott Are Entitled to Qualified Immunity

Qualified immunity shields government officials from § 1983 liability for "performing discretionary functions . . . [so long] as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective reasonableness of the action . . . assessed in light of the legal rules that were clearly established at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987); see also Pierce v. Multnomah Warden, 76 F.3d 1032, 1038 (9th Cir. 1996).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court established a framework for courts to use in determining whether officials are entitled to qualified immunity. It directed that the court first ask a threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201; see also Doe v. Lebbos, 348 F.3d 820, 826 (9th Cir. 2003) ("Under [Saucier], we must ask whether, viewed in the light most favorable to the [plaintiffs], the facts alleged show that [defendant's] actions violated a constitutional right," quoting Saucier, 533 U.S. at 200-02); Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001) ("[T]he [Saucier] Court held that the required first step in the analysis is to consider the materials submitted in support of, and in opposition to, summary judgment, in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment").

The second question under Saucier is whether the right at issue was clearly established. See Saucier, 533 U.S. at 201 ("[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established"). The third and final step of the Saucier analysis requires that the court ask whether the defendant could have reasonably but mistakenly believed that her conduct did not violate a clearly established constitutional right. See id. at 205; see also Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003) (stating that this aspect of the Saucier test examines "the reasonableness of [the defendant's] belief in the legality of his actions"). The overarching, and dispositive inquiry for qualified immunity purposes is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202.

The Ninth Circuit has variously referred to the Saucier framework as a two-part test or a three-part test. Compare Lebbos, 348 F.3d at 826 (two-part test), and Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001) (same), with Skoog v. Warden of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006) (three-part test), and Hydrick v. Hunter, 466 F.3d 676, 690 (9th Cir. 2006) (same). The difference is immaterial, however, as those cases that have employed a two-prong formulation have collapsed the second and third steps into a single inquiry.

Di Carlo and Mellott argue that, even if plaintiffs have adduced sufficient evidence to raise a triable issue of fact regarding their violation of Gonzales's constitutional rights, such that the first prong of the Saucier analysis is satisfied, they have failed to show that the law was clearly established at the time of Gonzales's death. Consequently, they assert, judgment should be entered in their favor on Saucier's second prong. Plaintiffs counter that Grubbs I, which the Ninth Circuit decided in 1992, clearly put defendants on notice of their constitutional obligation to Gonzales. The court agrees.

Warden Defs.' Mem. at 12-13 (arguing that defendants were required by regulation to place Blaylock in general population following the reduction in the rules violation charge to mutual combat, and that no clearly established law put defendants on notice that such regulatory compliance violated federal law). The court has already found defendants' argument that the Code of Regulations compelled Blaylock's release into general population after the rules violation charge against him was reduced to mutual combat meritless. See supra note 39. As a result, any qualified immunity defense that relies on this argument is equally unavailing.

Pls.' Warden Opp. at 15-17.

In Grubbs I, the Ninth Circuit held that prison officials who allegedly exposed a prison employee to a dangerous inmate who injured her could be held liable for their conduct under a state-created danger theory if they acted with deliberate indifference. This decision was more than adequate to have placed defendant's on notice of their constitutional obligation to Gonzales. Cf. Kennedy, 439 F.3d at 1066-67 (concluding that Grubbs I was sufficiently clear to defeat a qualified immunity defense asserted under the second Saucier prong where plaintiff's state-created danger claim against a police officer was based on allegations that he unreasonably imbued her with a false sense of security by agreeing to give her advance notice before he advised a neighboring family of the sexual molestation allegations her daughter had made against their son, and by assuring plaintiff that a neighborhood patrol would provide protection). Accordingly, the court concludes that plaintiffs are not entitled to qualified immunity on the ground that the law was not clearly established at the time of Gonzales's death.

G. The § 1983 Familial Association Claims of Decedent's Children

It is well established that a parent has a "fundamental liberty interest" in "the companionship and society of his or her child," and that "[t]he state's interference with that liberty interest without due process of law is remediable under [ 42 U.S.C. §] 1983." Kelson v. City of Springfield, 767 F.2d 651, 654-55 (9th Cir. 1985) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). "[T]his constitutional interest in familial companionship and society logically extends to protect children from unwarranted state interference with their relationships with their parents." Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987) overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999).

As a result, the Ninth Circuit has recognized — in the context of § 1983 claims asserting a Fourth Amendment violation of a decedent's constitutional rights — that the decedent's family members have independent standing to sue for violation of their Fourteenth Amendment substantive due process right to familial association. See, e.g., Moreland v. Las Vegas Metropolitan Police Dep't, 159 F.3d 365, 371 (9th Cir. 1998) ("Regardless of whether Appellants have standing to assert a Fourth Amendment claim based on [decedent's] death, they each may assert a Fourteenth Amendment claim based on the related deprivation of their liberty interest arising out of their relationship with [decedent]. This substantive due process claim may be asserted by both the parents and children of a person killed by law enforcement officers" (citation omitted)); Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) ("While the person who claims excessive force was directed at him or her can only raise a fourth amendment claim, a parent who claims loss of the companionship and society of his or her child, or vice versa, raises a different constitutional claim. The Ninth Circuit recognizes that a parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child, and that a `child's interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interest,'" quoting Smith, 818 F.2d at 1419).

The Ninth Circuit has also permitted family members to assert claims for violation of their Fourteenth Amendment familial association rights based on predicate violations of a decedent's Eighth Amendment right to be free from cruel and unusual punishment (i.e., where their decedent's death in prison was constitutionally attributable to the state). See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004); see also, e.g., Wilson v. Maricopa County, 463 F.Supp.2d 987, 998-99 (D. Ariz. 2006); Rentz v. Spokane County, 438 F.Supp.2d 1252, 1264-66 (E.D. Wash. 2006); Estate of Torres v. Terhune, No. CV S 98-2211, WBS GGH, 2002 WL 32107950, *10 (E.D. Cal. 2002) (describing the family members' rights as "deriv[ative]" of the decedents' constitutional rights); see also Irwin v. City of Hemet, 22 Cal.App.4th 507, 520-23 (1994) (surveying the conflicting standards of culpability adopted by various federal appellate courts and ultimately choosing the Ninth Circuit standard as superior); cf. Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (permitting parents to assert a familial association claim where their decedent, a pre-trial detainee, committed suicide while in prison).

Although the court has found no authority in this Circuit permitting a familial association claim to go forward in an action where the decedent's underlying § 1983 claim is based on a state-created danger theory, the court concludes that the Ninth Circuit would, given the authorities cited above, hold that such a claim is viable under § 1983. Just as "the state has no legitimate interest in interfering with [an individual's] liberty interest through the use of excessive force by police officers," Smith, 818 F.2d at 1420, the state has no legitimate interest in affirmatively placing its correctional officers in danger by making placement decisions for prisoners with deliberate indifference to the obvious and known risk of harm they represent. Consequently, the court concludes that, if the Estate is able to prevail on its state-created danger theory, the individual plaintiffs will also be able to prevail on their familial association claims. Cf. id. ("[The excessive use of force by police officers] constitutes the very sort of affirmative abuse of government power which the substantive protections of the due process clause are designed to prevent. Therefore, the same allegation of excessive force giving rise to [decedent's] substantive due process claim based on his loss of life also gives the children a substantive due process claim based on their loss of his companionship"). These claims are derivative of the Estate's claim and are consequently governed by the same substantive standard.

See Estate of Imrie v. Golden Gate Bridge Highway and Transp. Dist., 282 F.Supp.2d 1145, 1149-50 (N.D. Cal. 2003) (holding that, because defendants took no affirmative action that placed the decedent in danger, her estate's due process claim failed, and also that because "[d]efendants in the instant action were under no constitutional duty to protect Imrie from taking her own life[, they could not] be held liable for depriving her mother of her companionship," and thus that the mother had "failed to state a claim for deprivation of familial association under section 1983"); see also Rogers v. City of Port Huron, 833 F.Supp. 1212, 1223 (E.D. Mich. 1993) ("Since this Court has concluded that defendants are not liable for any violation of plaintiffs' Decedent's constitutional rights, there can be no claim for loss of consortium/familial association").
The court declines to require Gonzales's children to prove, as a separate element of their familial association claims, any specific intent on the part of defendants to interfere with their particular relationship with their father. Although this requirement has been adopted by some courts, see, e.g., Phillips v. Grady Warden Bd. of Warden Comm'rs, 92 Fed.Appx. 692, 698 (10th Cir. Mar. 2, 2004) (Unpub. Disp.) (relying, inter alia, on Trujillo v. Bd. of Warden Comm'rs, 768 F.2d 1186, 1190 (10th Cir. 1985)), the Ninth Circuit has squarely rejected the necessity of proving independent intent to establish a familial association claim predicated on an underlying violation of a decedent's Fourth Amendment rights, see Smith, 818 F.2d at 1420 n. 12 (rejecting Trujillo's specific-intent requirement), and district courts have consequently concluded that plaintiffs are not required to prove independent specific intent in the context of familial association claims predicated on underlying violations of a decedent's Eighth Amendment rights, see, e.g., Wilson, 463 F.Supp.2d at 998-99.

In their motions for summary judgment, defendants simply seek judgment on all claims; they do not separately argue, however, that they are entitled to judgment on the § 1983 familial association claims brought by decedent's six children. Nor do plaintiffs argue in their opposition that, even if the court grants defendants' motions for summary judgment on the Estate's claims, these familial association claims are independently viable. Both parties, it appears, simply assume that resolution of these claims is dependent on resolution of the Estate's state-created danger claim. Because the elements of plaintiffs' familial association claims are equivalent to the elements of the Estate's claim, the court will enter judgment on decedent's children's claims to the same extent that it enters judgment on the Estate's claim.

This appears to have resulted, in part, from plaintiffs' choice not to denominate the claims separately in their complaint.

Normally, a party seeking summary judgment must inform the court of the basis for its motion by identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The court, however, possesses the power to enter summary judgment sua sponte under certain circumstances. See id. at 326. Specifically, the sua sponte entry of summary judgment is appropriate when "the losing party was on notice that she had to come forward with all of her evidence," yet failed to raise a triable issue of fact on one or more of her claims. Id.; see also Verizon Delaware, Inc. v. Covad Communications Co., 377 F.3d 1081, 1092 (9th Cir. 2004) ("Before a court makes a sua sponte grant of summary judgment, `a litigant must be given reasonable notice that the sufficiency of his or her claim will be in issue,'" quoting Buckingham v. United States, 998 F.2d 735, 742 (9th Cir. 1993)); Sauter v. State of Nevada, 142 F.3d 445, 1998 WL 196630, *2 (9th Cir. Apr. 23, 1998) (Unpub. Disp.) ("Sauter contends on appeal that Rule 56 does not allow the district court to raise arguments and enter summary judgment sua sponte, but it does, Celotex Corp. v. Catrett, 477 U.S. 317, 326 . . . (1986), so long as Sauter was on notice that he must come forward with all his evidence, id., which he was"). Here, as the evidence supporting the children's familial association claims is the same evidence that supports the Estate's substantive due process claim, the court concludes it is appropriate to enter judgment sua sponte in favor of the State Defendants and Roddy on the familial association claims.

III. CONCLUSION

For the reasons stated, the court grants the State Defendants' motion for summary judgment, and grants in part and denies in part the Warden Defendants' motion for summary judgment. Defendants Hickman, Woodford, Hubbard, Dovey, Still, and Roddy are dismissed with prejudice. Plaintiffs' claims against defendants Di Carlo and Mellott, on the other hand, must proceed to trial.

The parties are reminded that the pretrial conference is currently on calendar for June 18, 2007. Under the Local Rules of this district, the parties should have filed motions in limine by May 29, 2007. No such motions have been filed; consequently, if plaintiffs and the remaining defendants wish to file such motions, they must do so by June 4, 2007. Opposition must be filed by June 11, 2007. No replies will be permitted. The court directs the parties to deliver confirmed courtesy copies of any such filings to chambers in the Roybal Building on the date of filing.