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MULLEN v. WEBER

January 4, 1990

DEWEY MILES MULLEN, JR., Plaintiff
v.
UNIT MANAGER WEBER, et al., Defendants



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, UNITED STATES DISTRICT JUDGE.

 A. Background

 Plaintiff, an inmate at USP-Lompoc, California, filed the above-captioned Bivens1 action pursuant to 28 U.S.C. § 1331. Plaintiff alleged that he was assaulted at U.S.P.-Lewisburg by fellow inmates after making repeated requests of correctional officers to protect him from such an assault by at least being transferred to another unit.

 On June 6, 1989, defendants filed a motion to dismiss, or, in the alternative, for summary judgment. See document 16 of the record. Defendants supported their motion with a brief and other documentation, pursuant to Local Rule 401.5. See documents 17-18 of record. Plaintiff countered with a short brief, an affidavit, and other documentation of his own. See document 2 of record; see also Local Rule 401.6.

 Upon receipt of the proper documentation and briefs from all parties, the U.S. Magistrate considered the motion to dismiss or, in the alternative, for summary judgment. The Magistrate recommended to this court to dismiss, or, in the alternative, to grant summary judgment in favor of the defendants. While the court will not adopt the analysis of the Magistrate, it will grant defendants' motion for summary judgment for other reasons.

 The court accepts the factual representations of both parties in their briefs and affidavits as accurately reflected in the Magistrate's Report. See document 21 of record, Report of Magistrate, at 3-6. Therefore, it is unnecessary, for our purposes, to reiterate these pertinent facts, but the court will refer to them when it is relevant to the analysis.

 B. The Report of the Magistrate

 The Magistrate in his report recommended that defendants' motion to dismiss or in the alternative for summary judgment be granted. He explained that plaintiff observed two inmates stealing from his locker and allegedly advised defendant Smith of the incident. At that time, plaintiff contended that he had requested a transfer to another unit, but Smith failed to transfer him. The plaintiff again observed the same two inmates stealing from his locker, but this time, feared the two inmates had known that he observed them stealing. Plaintiff again informed Smith of the second incident and that he feared for his safety. He once again requested a transfer, but Smith did not act upon the request. Plaintiff further contended that he pleaded with defendant Weber to transfer him. Weber informed defendant Wells of the situation, but neither acted upon the request. On November 13, 1988, plaintiff was allegedly assaulted by the two inmates he observed. Document 21 of record, Report of Magistrate, at 3-4. The Magistrate noted that plaintiff asserted that defendant Campbell was aware of the situation, but also failed to act, and, in fact, assisted in a cover-up of the problem. Id. at 4.

 After considering the allegations of plaintiff, the Magistrate considered the affidavits and briefs submitted by both sides. See id. at 4-6. In defendants' brief and affidavits, they averred a quite different scenario of facts. They painted plaintiff's request to be transferred as a manipulative act to gain a more desirable housing unit. They indicated that plaintiff was housed in the F Block in the SAN-East unit, which was less desirable housing because it was comprised of only dormitories and, thereby offered little privacy. Plaintiff specifically requested a transfer to J Block in SAN-West unit, which was more desirable and very popular among the inmates. See document 17 of record, Brief at 2; Declarations of J. Weber, W. Smith, and W. Campbell. Defendants Smith and Campbell forwarded the request to defendant Weber. After learning that he could be transferred to J Block only by first being in another SAN-West Block, plaintiff approached defendant Weber and requested a transfer to I Block in the SAN-West unit claiming he had friends in I Block. Id., Brief at 3; Declarations of W. Smith, W. Campbell, and J. Weber at P 4. Weber informed plaintiff that he lacked authority to transfer him to a SAN-West Block, and that he should request such a transfer from a Unit Manager in the SAN-West unit. Id., Declaration of J. Weber at P 4.

 Plaintiff, once again, requested a transfer to I Block, explaining to Weber that he had witnessed an inmate(s) stealing from his locker and that he suspected the thief(s) were aware of the plaintiff's observation. Id., Brief at 3, Declaration of J. Weber at P 4. Weber offered him an immediate transfer to E Block, but plaintiff refused and again requested a transfer to I Block. Weber suggested to plaintiff that he should seek protective custody status in the Special Housing Unit, but plaintiff rejected this also. Id., Declarations of W. Smith and W. Campbell.

 In late September, 1988, the SAN-West Unit Manager informed Weber that plaintiff would be accepted temporarily into I Block before being assigned to H Dormitory, and finally J Block. When informed of this arrangement, plaintiff withdrew his request for an immediate transfer to I Block. Document 17 of record, Brief at 4, Declaration of J. Weber at para. 5.

 In November, 1988, plaintiff informed Weber that he "had a deal" for the SAN-East and SAN-West Unit Managers. Plaintiff proposed a transfer to I Block if his name was placed at the top of the inmate waiting list for the J Block. Both Unit Managers rejected this proposal as ...


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