Labatad v. Corrections Corp. of America

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KEONE LABATAD , No. 12-15019
Plaintiff - Appellant,
D.C. No.
v. 2:10-cv-02619-
ROS
CORRECTIONS CORPORATION OF
AMERICA ; DAREN SWENSON ,
Regional Director of Operations at OPINION
Corrections Corporation of America;
TODD THOMAS, Warden at Saguaro
Correctional Center; BENJAMIN
GRIEGO , Assistant Warden at
Saguaro Correctional Center;
MARCO LOPEZ, Chief of Security at
Saguaro Correctional Center;
TIMOTHY DOBSON , Unit Manager at
Saguaro Correctional Center,
Defendants - Appellees.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding

Argued and Submitted
April 12, 2013—Pasadena, California

Filed May 1, 2013
2 LABATAD V . CORRECTIONS CORP . OF AMERICA

Before: Marsha S. Berzon and Richard C. Tallman,
Circuit Judges, and Lee H. Rosenthal, District Judge.*

Per Curiam Opinion

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s summary judgment
in a 42 U.S.C. § 1983 action in which a prison inmate sought
damages and injunctive relief based on an assault by a
member of a rival prison gang, with whom plaintiff was
temporarily assigned to share a cell.

The panel first held that the district court did not err
deciding the summary judgment motion despite the court’s
failure to send notice pursuant to Rand v. Rowland, 154 F.3d
952 (9th Cir. 1998) (en banc), until approximately one month
after the defendants filed their motion and a day after plaintiff
filed his response. The panel held that despite the late Rand
notice, plaintiff did not suffer a deprivation of substantial
rights when the district court decided the summary judgment
motion on the merits. Plaintiff’s response demonstrated that
he understood the nature of summary judgment and complied
with the requirements of Rule 56.

*
The Honorable Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 LABATAD V . CORRECTIONS CORP . OF AMERICA 3

The panel held that the undisputed evidence in the record
showed that the defendants were not deliberately indifferent
to a substantial risk of an attack if the two inmates were
placed in a cell together. The panel held that the district court
therefore properly granted the defendants’ motion for
summary judgment.

COUNSEL

Molly Lens (argued), Victor Jih, and Vartanoush
Defterderian, O’Melveny & Myers, LLP, Los Angeles,
California; Ella Hushagen (argued), UCLA School of Law
Ninth Circuit Clinic, Los Angeles, California, for Plaintiff-
Appellant.

Nicholas D. Acedo (argued), Daniel P. Struck, and David C.
Lewis, Struck, Wieneke & Love, PLC, Chandler, Arizona, for
Defendants-Appellees.

OPINION

PER CURIAM:

Keone Labatad appeals from the judgment dismissing his
42 U.S.C. § 1983 claim that actions taken by correctional
officials at the Saguaro Correctional Center (SCC) violated
his Eighth Amendment rights. Labatad sought damages and
injunctive relief based on an assault by a member of a rival
prison gang, with whom he was temporarily assigned to share
a cell. The District Court rejected Labatad’s claims that the
defendants were deliberately indifferent to the risk he faced
4 LABATAD V . CORRECTIONS CORP . OF AMERICA

from the cell assignment. We have jurisdiction under
8 U.S.C. § 1291, and we affirm.

I.

Keone Labatad was a State of Hawaii inmate incarcerated
at the SCC. Although the SCC tracks inmates’ gang
affiliations, it does not have a policy of separating rival gang
members in cell assignments. Instead, gang affiliation is one
factor in the case-by-case evaluations used to make such
assignments.

On July 23, 2009, Labatad had a fight with another
inmate, Howard Giddeons. Labatad was a member of the La
Familia gang, and Giddeons was a member of the USO
Family gang. The fight did not produce serious injuries. A
guard noticed that Labatad’s face was swollen and scratched,
and prison officials investigated. Both Labatad and Giddeons
told the investigators that the fight was not gang related.
Both said that they bumped against each other passing on the
stairs, took offense, arranged to meet in Labatad’s cell, and
fought. Both reported that after the fight, they shook hands
and had no further issues.

Following usual practice, prison officials placed the
inmates involved in the fight in administrative segregation
during the investigation. Labatad was assigned to share a cell
with Shane Mara, who, like Giddeons, was a member of the
USO Family gang. Labatad and Mara had known each other
during the extended period both were in general population
at the SCC. There had been no difficulties between them.
Mara had not threatened Labatad and was not identified as
someone who should be kept separate from Labatad or was
likely to do him harm.
 LABATAD V . CORRECTIONS CORP . OF AMERICA 5

Three days later, Mara assaulted Labatad, punching him
in the head and back. The assault occurred just after Labatad
had been placed in hand restraints in preparation for being
escorted out of the cell. Guards waiting outside the cell door
to escort Labatad promptly intervened. The doctor who
treated Labatad testified that he had a welt on his back and a
bloody—but not broken—nose. Labatad asserts that his nose
was bent to the left and is still crooked.

Prison officials investigated the fight between Mara and
Labatad. Mara told the investigators that he assaulted
Labatad because he was a La Familia member and Mara
thought that Labatad would attack unless he did so first.

Labatad sued the Corrections Corporation of America
(CCA) and its regional operations director; the SCC warden,
assistant warden, and chief of security; and Labatad’s SCC
unit manager. Labatad alleged that the decision to house him
in the same cell with a member of a rival gang after he had
fought with another member of that same gang violated his
Eighth Amendment rights. Labatad challenged both the
general policy that allowed rival gang members to be housed
in the same cell and the specific decision to place him in the
cell with Mara. He sought $100,000 in damages and a
change in SCC policies to require separation of inmates by
gang affiliation.1

After discovery, on August 19, 2011, the defendants
moved for summary judgment on two grounds: (1) Labatad
had failed to exhaust his administrative remedies because he
had not filed a grievance for 15 months after the incident; and

1
Labatad has since been released, making his additional request for
transfer to a different facility moot.
6 LABATAD V . CORRECTIONS CORP . OF AMERICA

(2) the record showed that, as a matter of law, the defendants
had not acted with deliberate indifference in housing Labatad
with Mara. Labatad filed a detailed, thorough, and extensive
response on September 14, 2011.

On September 15, 2011, the District Court sent Labatad
the notice required under Rand v. Rowland, 154 F.3d 952 (9th
Cir. 1998) (en banc). The notice did not acknowledge that
Labatad had already responded to the summary judgment
motion. On October 3, 2011, the defendants filed a reply to
Labatad’s response.

On December 14, 2011, the District Court issued its
decision. It declined to grant the motion on the basis of
failure to exhaust, noting that the court had not provided
notice addressing the defendants’ exhaustion arguments. See
Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012)
(“[W]hen a district court will consider materials beyond the
pleadings in ruling upon a defendant’s motion to dismiss for
failure to exhaust administrative remedies, the pro se prisoner
plaintiff must receive a notice, similar to the notice described
in Rand.”). The District Court granted the defendants’
motion for summary judgment on the merits of the Eighth
Amendment claim. The court acknowledged that it had sent
the Rand notice after Labatad had already responded to the
summary judgment motion, but found that it was nonetheless
proper to decide the motion on the merits.

The District Court rejected Labatad’s claim that by
allowing rival gang members to be housed in a single cell, the
defendants committed a per se Eighth Amendment violation.
The District Court also found that the record evidence
showed that, as a matter of law, the defendants had not acted
with deliberate indifference in housing Labatad with Mara.
 LABATAD V . CORRECTIONS CORP . OF AMERICA 7

In reaching that conclusion, the District Court disregarded
four affidavits Labatad had submitted from other inmates
stating that there had been other violent incidents between
members of the La Familia and USO Family gangs housed in
shared cells at the SCC. The District Court based this
decision on its conclusion that the affidavits did not show that
the affiants had personal knowledge of the events they
described.

This timely appeal followed.

II.

The threshold issue is whether the District Court erred in
deciding the summary judgment motion despite its failure to
send the Rand notice until approximately a month after the
defendants filed their motion and a day after Labatad filed his
response.

The purpose of the Rand notice is to give a pro se prisoner
litigant “fair notice” of the requirements and consequences of
the summary judgment rule because of the “complexity of
[that] rule combined with the lack of legal sophistication of
the pro se prisoner.” Rand, 154 F.3d at 960. The notice must
“apprise an unsophisticated prisoner of his . . . rights and
obligations under Rule 56”; inform the prisoner of his “right
to file counter-affidavits or other responsive evidentiary
materials and be alerted to the fact that the failure to do so
might result in the entry of summary judgment against the
prisoner”; and inform the prisoner of “the effect of losing on
summary judgment.” Id. (citations omitted). Our cases have
emphasized the importance of having the notice sent at a time
when it will effectively serve these purposes. In Woods v.
Carey, 684 F.3d 934, 935 (9th Cir. 2012), we found that a
8 LABATAD V . CORRECTIONS CORP . OF AMERICA

Rand notice sent too early in the litigation—in that case, over
a year before the Rule 56 motion was filed—was insufficient.
We emphasized that “the only satisfactory practice to ensure
that prisoners receive adequate notice pursuant to Rand . . . is
to provide such notice at the time the relevant motions are
filed.” Id. at 940. The premature Rand notice was inadequate
because it was “apt to be lost, forgotten, or rendered
inaccessible by the time it becomes necessary for the litigant
to marshal a response.” Id.

In this case, the notice was not sent too long before the
summary judgment motion was filed, but too long after. By
the time he received his Rand notice from the District Court,
Labatad had already filed his response. The requirement that
the Rand notice be filed “at the time the relevant motions are
filed” means just that. The Rand notice must issue so that the
litigant will receive the motion and the notice reasonably
contemporaneously.

The delay in sending the Rand notice to Labatad was
error. The question is whether the District Court’s decision
to decide the summary judgment motion despite that error
requires reversal and remand. We conclude it does not.

This court has held that “harmless error review is
inappropriate in most cases” involving a failure to send a
timely Rand notice. Rand, 154 F.3d at 961. Such review
often requires courts to engage in the “burdensome task of
assessing each particular litigant’s sophistication in legal
matters,” including the “impossible task of attempting to
divine whether an individual inmate understood what was at
stake if he failed to put all of his evidence before the court.”
Id. But in the “unusual case where the harmlessness of the
failure to give the required notice may be established on the
 LABATAD V . CORRECTIONS CORP . OF AMERICA 9

record or by judicial notice,” harmless error review is
appropriate. Id. at 961. In Rand, the court described an
example of such an unusual case as one in which an
“objective examination of the record” discloses that the
litigant has a “complete understanding of Rule 56’s
requirements.” Id.

This is one of the unusual cases in which the record,
objectively examined, demonstrates the “harmlessness of the
failure to give the required notice.” Id. Labatad’s response
to the summary judgment motion included his own detailed
declaration thoroughly setting out his knowledge of the facts.
It included citations to, and quotes from, legal authorities,
including Rule 56, and stated the Rule’s legal standard for
summary judgment. The response complied with the local-
rule requirements by including a separate statement of
disputed facts identified to correspond to the defendants’
statement of facts supporting summary judgment. Labatad
attached as exhibits, and cited from, materials the defendants
had provided in discovery, including excerpts from the
defendants’ responses to requests for admission and a CCA
memo on the limited role of gang affiliation in making inmate
housing assignments. Labatad also attached sworn affidavits
by four inmates describing other instances of violence from
rival gang members sharing a cell. Labatad’s response to the
defendants’ summary judgment motion fully complied with
the instructions in the Rand notice. The record, objectively
viewed, shows that Labatad knew and understood the
information in the Rand notice before he received it.

Labatad suggests that had he received an earlier Rand
notice or a later clear instruction that he could have
supplemented his response, he could have added to the
affidavits from the four inmates. The District Court found
10 LABATAD V . CORRECTIONS CORP . OF AMERICA

those affidavits incompetent as summary judgment evidence
because they did not show the affiants’ personal knowledge.
But nothing in the Rand notice or in a statement of a right to
supplement would have given Labatad specific instructions
on what more the affidavits needed to make them competent
evidence. The affidavits already stated that the affiants had
personal knowledge of what was described, showing
Labatad’s prior awareness of the personal knowledge
requirement. And, as explained below, even if the affidavits
are considered part of the summary judgment evidence, the
outcome is unchanged.

Despite the late Rand notice, Labatad did not suffer a
deprivation of substantial rights when the District Court
decided the summary judgment motion on the merits. See
Fed. R. Civ. P. 61. His response demonstrates that he
understood the nature of summary judgment and complied
with the requirements of Rule 56. Thus, reversal and remand
of the District Court decision is not required.

III.

The Eighth Amendment requires prison officials to take
reasonable measures to guarantee the safety of inmates,
which has been interpreted to include a duty to protect
prisoners. Farmer v. Brennan, 511 U.S. 825, 832–33 (1994);
Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A
prisoner seeking relief for an Eighth Amendment violation
must show that the officials acted with deliberate indifference
to the threat of serious harm or injury to an inmate. Gibson
v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).
“Deliberate indifference” has both subjective and objective
components. A prison official must “be aware of facts from
which the inference could be drawn that a substantial risk of
 LABATAD V . CORRECTIONS CORP . OF AMERICA 11

serious harm exists, and . . . must also draw the inference.”
Farmer, 511 U.S. at 837. Liability may follow only if a
prison official “knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Id. at 847.

The District Court found that the SCC’s policy of
permitting members of different gangs to be housed together
was not itself an Eighth Amendment violation. As the
Seventh Circuit observed in a similar case, among other
problems, “[t]he number of gang members housed . . . and the
high representation of certain gangs would place an
unmanageable burden on prison administrators were they
required to separate inmates by gangs.” Mayoral v. Sheahan,
245 F.3d 934, 939 (7th Cir. 2001). At argument, Labatad’s
counsel clarified that he was not asserting a per se Eighth
Amendment violation. Instead, he alleged that the defendants
were deliberately indifferent to the risk of harm from the cell
assignment with Mara.

The record, viewed objectively and subjectively, is
insufficient to preclude summary judgment on the claim that
SCC prison officials were deliberately indifferent to a
substantial risk that Mara would assault Labatad if the two
were housed in the same cell. Mara and Labatad had been in
general population together for an extended period with no
record of any threats or problems between them. Mara was
not listed as a “separatee” for Labatad. The added fact that
Labatad had fought three days earlier with a member of
Mara’s gang is not a basis to find deliberate indifference.
Prison officials had been assured by both Labatad and
Giddeons that their fight was not gang related and that there
were no further issues between them. Labatad argues that
the record supports an inference of subjective awareness of
12 LABATAD V . CORRECTIONS CORP . OF AMERICA

the risk because of his evidence that he told an SCC officer
that he should not be housed with Mara. But Labatad
provided no specifics about this conversation. Without more,
such as information about who Labatad spoke to or what he
said, we cannot infer that any of the defendants or officials
responsible for making the assignment were aware that
Labatad faced a substantial risk of harm. See Wood v.
Beauclair, 692 F.3d 1041, 1051 (9th Cir. 2012) (concluding
that prison supervisors lacked knowledge of the risk in part
because the prisoner “never disclosed [the sexual abuser’s]
actions to prison officials until long after the incidents at
issue in this case occurred”). While the failure to give
advance notice of a specific threat is not dispositive, there is
no other evidence in the record showing that the defendants
knew of facts supporting an inference and drew the inference
of a substantial risk to Labatad if he was placed in a cell with
Mara.

Moreover, consideration of the four inmate affidavits
excluded by the District Court would not have altered the
outcome of this case. One of the affiants, a USO Family
member, states that he has been housed in administrative
segregation with La Familia members, but he does not say
whether those housing assignments resulted in violent
incidents. Two of the affidavits describe an assault that
occurred after Labatad was attacked by Mara, making them
irrelevant to show the defendants’ awareness of a substantial
risk of housing Labatad with Mara. Although the affidavits
mention two assaults before Labatad’s incident with Mara,
without context and with no apparent connection to Labatad
and Mara aside from the gang affiliations of the respective
participants, they, too, are insufficient to show deliberate
indifference.
 LABATAD V . CORRECTIONS CORP . OF AMERICA 13

IV.

The undisputed evidence in the record shows that the
defendants were not deliberately indifferent to a substantial
risk of an attack if Mara and Labatad were placed in a cell
together. The District Court properly granted the defendants’
motion for summary judgment.

We AFFIRM.