Placing Rival Gang Members in Same Cell Not Per Se Unconstitutional
The Ninth Circuit Court of Appeals applied the harmless error test in finding that a district court’s late Rand summary judgment notice did not deprive a prisoner of substantial rights. Additionally, the appellate court held prison officials were not deliberately indifferent to a substantial risk of violence by placing two rival gang members in the same cell.
This case involved the appeal of a Hawaii federal district court’s grant of summary judgment to Corrections Corporation of America and CCA guards at the Saguaro Correctional Center (SCC) in Arizona. The suit was brought by Hawaii state prisoner Keone Labatad, who was housed at SCC and assaulted by another prisoner on July 23, 2009.
Three days earlier, Labatad, a member of the La Familia gang, got into a fight with Howard Giddeons, a member of the USO Family gang. Both told guards that the fight was not gang-related and they had shook hands afterwards. Following procedure, both were placed in administrative segregation.
Labatad was put in a cell with Shane Mara, a USO Family gang member. On the day of the assault, Mara waited until Labatad was in hand restraints in preparation for leaving the cell; he then hit Labatad in the head and back, causing a welt and a bloody nose.
Labatad filed a civil rights action alleging his Eighth Amendment rights were violated by a general policy at SCC that allowed rival gang members to be housed in the same cell, as well as the specific decision to place him in a cell with Mara. He sought damages and injunctive relief, and the defendants moved for summary judgment.
The day after Labatad filed a detailed response to the motion, the district court sent him the summary judgment notice required under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) [PLN, April 1999, p.19]. The purpose of the Rand notice is to provide a pro se prisoner litigant “fair notice” of his “rights and obligations under Rule 56,” his “right to file counter-affidavits or other responsive evidentiary materials and be alerted to the fact that failure to do so might result in the entry of summary judgment against” him, and “the effect of losing on summary judgment.” The court granted the defendants’ motion and Labatad appealed.
The Ninth Circuit held the district court’s delay in sending the Rand notice was error, but held this was “one of the unusual cases” where the error was harmless because “the record, viewed objectively, shows that Labatad knew and understood the information in the Rand notice before he received it.”
The district court found that SCC’s policy of permitting members of different gangs to be housed together in the same cell was not itself an Eighth Amendment violation. At oral argument, Labatad clarified he was not asserting a per se constitutional violation; instead, he was alleging the defendants were deliberately indifferent to the risk of harm resulting from his cell assignment with Mara, a rival gang member.
Viewing the record objectively and subjectively, the Ninth Circuit found the evidence was insufficient to preclude summary judgment on that claim. Mara and Labatad had been in general population for an extended period of time without threats or problems between them, they were not listed as “separatees,” and prison officials had been assured the fight between Labatad and Giddeons was resolved and not gang-related. In sum, there were no facts to suggest that Labatad was at substantial risk of harm when he was housed with Mara.
The district court’s order granting summary judgment to the defendants was affirmed. See: Labatad v. CCA, 714 F.3d 1155 (9th Cir. 2013).