JAMES A. TEILBORG, Senior District Judge.
Plaintiff is an inmate at the Arizona Department of Corrections. Plaintiff filed an amended complaint against Defendants, which this Court screened pursuant to 28 U.S.C. § 1915A(a). (Doc. 9). Following this Court's screening order (Doc. 9) one Count remained as follows: "Liberally construed, Plaintiff has adequately stated an Eighth Amendment conditions of confinement claim against Defendant Dorsey in Count Two for the denial of cleaning supplies." (Doc. 9 at 8).
Defendant Dorsey now moves for summary judgment on this Count. (Doc. 45).
Freemon v. Ryan, No. CV 09-1717-PHX-JAT, 2011 WL 5169342, at *5 (D. Ariz. Oct. 31, 2011).
Freemon, 2011 WL 5169342, at *15.
Freemon, 2011 WL 5169342, at *18. In other words,
Cockcroft v. Kirkland, 548 F.Supp.2d 767, 774-75 (N.D. Cal. 2008).
Defendant recounted the following facts, which Plaintiff does not appear to dispute:
(Doc. 45 at 2 (citations omitted)); see also (Doc. 57 at 2).
Plaintiff's claim in this case is focused on the fact that he was allegedly not given adequate cleaning supplies, or opportunities, to clean his cell. (Doc. 57 at 2-3). Defendant argues on summary judgment that in investigating Plaintiff's grievance regarding his lack of cleaning supplies, she concluded Defendant did receive cleaning supplies. (Doc. 45 at 2-3). Specifically, Defendant alleges that that:
(Doc. 45 at 2-3 (citations omitted)).
Conversely, Plaintiff alleges that not enough cleaning supplies were provided to clean both the common areas and the cells. (Doc. 57 at 2-3). Further, Plaintiff alleges that, "No [inmate] was ever allowed to clean his cell at any given time for the whole five years Plaintiff was housed at Buckley Unit. Any time an [inmate] would request to clean his cell the officer would not let him." (Doc. 57 at 3). Plaintiff also alleges that while he was working as a porter, if he asked to have his cell door open, his request would be denied by the officers. (Doc. 57 at 3). Plaintiff disputes CO II Rabadan's account of seeing Plaintiff walk into Plaintiff's cell while Plaintiff worked as a porter because Plaintiff claims that CO II Rabadan worked in another building and did not have the opportunity to observe Plaintiff. (Doc. 57 at 2-3). Finally, Plaintiff alleges "All [inmates] were forced to purchase shampoo and towels from the prison commissary if they wished to clean their cells because there was no other alternative." (Doc. 57 at 3).
The Court notes that Defendant disputes whether the Court can consider Plaintiff's allegations as evidence. Specifically, Defendant argues that Plaintiff did not present his evidence in the form of a sworn affidavit or declaration. (Doc. 62 at 3 (citing Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018), cert. den., 139 S.Ct. 480 (2018))). While it is true that in his opposition to the motion for summary judgment and his statement of facts Plaintiff did not present his personal testimony in the form of a sworn affidavit or declaration, Plaintiff did file his amended complaint under penalty of perjury. (Doc. 8 at 21). This Court may consider a verified complaint as "evidence" in opposition to a motion for summary judgment. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) Although the Court has cited Plaintiff's response because it is directly responsive to the motion for summary judgment, all of Plaintiff's allegations therein can be found in his verified complaint. (Doc. 8 at 15-19). Thus, the Court finds the record contains competent evidence.
On this record, the Court finds a disputed issue of fact that precludes summary judgment on the merits of the first prong
Defendant also seeks summary judgment claiming Plaintiff has failed to show he suffered an injury as a result of his alleged constitutional deprivation. (Doc. 45 at 14) (citing Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); see also Pierce v. County of Orange, 526 F.3d 1190, [1223-24] (9th Cir. 2008); Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003)). Plaintiff claims he has various a skin conditions, and specifically pruritus, that resulted from the unsanitary conditions. (Doc. 57 at 7).
Defendant does not dispute that Plaintiff has the skin condition in question. (Doc. 62 at 9-10). However, Defendant argues that, other than Plaintiff's personal beliefs about the cause of his condition, none of the medical evidence definitively concludes that the alleged unsanitary conditions caused his skin condition. Indeed, Plaintiff recounts his diagnosis as, "Plaintiff was finally diagnosed with having Pruritus which by studying the Lab Report he would find out how `persistent cases' such as the one he suffered from, could be caused by dry skin, mite infestation, allergic reactions, neurodermatosis, or organic disease." (Doc. 58 at 7).
To survive summary judgment, Plaintiff must raise a genuine issue of material fact as to whether the unsanitary conditions caused his injury. See Whittington v. King Cty. Dep't Of Corr., 308 F. App'x 218 (9th Cir. 2009) (affirming a grant of summary judgment to defendant when, "[Plaintiff] failed to raise a genuine issue of material fact as to whether unsanitary conditions in the jail caused the staph infections he contracted."). However, there are multiple kinds of damages.
The Seventh Circuit explained,
Gray v. Hardy, 826 F.3d 1000, 1006-08 (7th Cir. 2016).
If this were the Seventh Circuit, the injuries alleged in this case are similar enough to the injuries alleged in Gray that the Court would be confident this case should survive summary judgment on this point. However, the Court must now determine whether the cases from the Ninth Circuit relied on by Defendant create a more onerous burden on Plaintiff to show damages than in the Seventh Circuit.
Although Defendant relies on Oliver, Oliver does not really speak to the issue Defendant raises. Specifically, Oliver holds that § 1997e(e) bars claims for mental and emotional damages that are not premised on a physical injury that is more than de minimis. Oliver v. Keller, 289 F.3d 623, 626-627 (9th Cir. 2002). The Court has also reviewed Pierce and Jackson, the only other cases cited by Defendant. Like Oliver they discuss what is a more than de minimis injury, not what evidence is required to prove the cause of the injury.
Thus, the Court finds all three cases to be inapposite because, here, Defendant does not argue that Plaintiff's skin condition is so de minimis that it is not a qualifying "injury." Instead, Defendant is arguing Plaintiff cannot prove that the physical injury resulted from the unconstitutional condition. This causation issue has two components.
The first is issue whether certain kinds of damages can proceed without any physical injury notwithstanding § 1997e(e). In this circuit, the answer is yes. In Oliver, after the Court concluded that Plaintiff had only de minimis injury that would not withstand the bar of § 1997e(e), the Court held:
Oliver, 289 F.3d at 630. Further, the Oliver Court noted:
Oliver, 289 F.3d at 627 n. 5.
Thus, the Court concludes that the injuries alleged by Plaintiff are sufficient to sustain a claim for nominal damages, compensatory damages, or punitive damages under Oliver or judicial relief under Canell regardless of his physical injury. (The Court has not undertaken to determine which of these various damages Plaintiff is seeking).
The second issue is whether, for Plaintiff's claim of emotional or mental damages which must be premised on a more than de minimis physical injury, Plaintiff is required to have a medical expert who will testify that his skin condition is a result of his conditions of confinement. The parties seem to agree that the medical records show that it is possible that Plaintiff's skin condition is a product of unsanitary conditions; however, the medical records also suggest several possible other causes of Plaintiff's skin condition.
In the context of an excessive force claim under § 1983, courts have held that a medical expert to establish causation as to the injuries is not required:
Morrison v. Prentice, No. 2:09-CV-1544 MCE DAD, 2014 WL 2565976, at *15 (E.D. Cal. June 6, 2014), report and recommendation adopted, No. 2:09-CV-1544 MCE DAD, 2014 WL 3689288 (E.D. Cal. July 23, 2014).
In this case, the Court finds there is a question of fact for the jury as to whether Plaintiff's skin condition was caused by the alleged unsanitary conditions. Plaintiff has his own testimony as evidence, the temporal proximity, and evidence from a doctor that is not inconsistent with Plaintiff's theory of causation. Accordingly, Defendants are not entitled to summary judgment on the theory that Plaintiff cannot establish that the alleged cell condition caused his skin condition. Further, there is no dispute in this record that Plaintiff's physical injury is more than de minimis.
In some cases, a prison official may be entitled to qualified immunity, which protects the official from both civil damages and the burdens of litigation. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Schwenk v. Hartford, 204 F.3d 1187, 1195-96 (9th Cir. 2000); Saucier v. Katz, 533 U.S. 223, 233-36 (2009). The Ninth Circuit Court of Appeals recently summarize the test for qualified immunity as:
Emmons v. City of Escondido, No. 16-55771, 2019 WL 1810765, at *2 (9th Cir. Apr. 25, 2019).
As to the first prong, "[t]he threshold inquiry in a qualified immunity analysis is whether the plaintiff's allegations, if true, establish a constitutional violation." Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003) (citations omitted). Defendant does not dispute in a broad sense (Doc. 45 at 17)) that allowing Plaintiff some cell cleaning opportunity over a five-year period was a clearly established right. Thus, the Court finds that if the facts are as Plaintiff alleges — that he was never allowed to clean his cell in a five-year period (Doc. 57 at 3) — then Plaintiff has alleged a constitutional violation. See Anderson, 45 F.3d at 1314.
Under the second prong of the qualified immunity analysis, an officer is entitled to qualified immunity if it would not have been clear to a reasonable officer that her conduct was unlawful in the situation. Saucier, 533 U.S. at 202. An officer may still receive qualified immunity if she makes a reasonable, but mistaken judgment. Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011). In other words, even if an officer violated a clearly established right by making a mistake in applying the relevant legal doctrine, the officer is still entitled to qualified immunity if the mistake as to what the law required was reasonable. Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006).
As discussed above as to the merits of Plaintiff's claim, the second prong of the claim is a subjective one. Specifically, whether the prison official knew of and disregarded an excessive risk to inmate health or safety; the official must have been aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and she must draw the inference. Farmer, 511 U.S. at 837.
In the section of her motion for summary judgment discussing this second prong of the merits of Plaintiff's claim, Defendant concludes by arguing that she should be entitled to summary judgment because she acted reasonably. (Doc. 45 at 13). Defendant argues under Farmer that if she responded to the risk reasonably, then there is no liability even if the harm was not averted. (Doc. 45 at 12).
Consistent with the law discussed above, both the deliberate indifference standard and the second prong of the qualified immunity analysis focus on the reasonableness of the officer's behavior. The following facts are undisputed unless otherwise noted.
Defendant received Plaintiff's grievance about the lack of cleaning supplies for the cells. (Doc. 45 at 13). Defendant alleges that she reviewed and investigated the grievance. (Doc. 45 at 14). She further alleges that she called DW Roan to investigate Plaintiff's grievance. (Doc. 45 at 7). She alleges that she learned from DW Roan that Plaintiff was a porter. (Doc. 45 at 7). She alleges that she knew porters had access to cleaning supplies. (Id.). She alleges she knew porters had sufficient cleaning supplies to clean the common areas and their own cells. (Doc. 45 at 7).
Further, Defendant notes that Plaintiff admits that CO II Rabadan delivered additional cleaning supplies to Plaintiff when he requested them. (Doc. 45 at 7). Defendant did not find credible Plaintiff's claim in his grievance that no inmate has ever been allowed by any officer to clean the inside of his cell at any time. (Doc. 45 at 7). Plaintiff's grievance about the lack of opportunity to clean his cell is the only grievance Defendant received about this issue. (Doc. 45 at 9).
The issue as to the reasonableness of Defendant's response turns on whether it was reasonable for her to rely on her knowledge of what was supposed to be transpiring versus whether she had a duty to more thoroughly investigate what was actually transpiring. Specifically, Plaintiff admits that he was a porter, and that as a porter he was regularly given cleaning supplies. (Doc. 57 at 2-3). However, Plaintiff claims that during his work, while he was allowed access to the cleaning supplies, he was never, in 5 years, also allowed access to his cell. (Id.). Plaintiff claims that when he left his cell to work, the cell would be locked. (Id.) Plaintiff claims that when he would ask the officers to open the door to clean the cell, that request was always denied due to staffing shortages. (Id.). More particularly, Plaintiff states,
(Doc. 8 at 15-16).
Thus, Plaintiff does not dispute Defendant's account of what she knew was supposed to occur; namely, that Plaintiff could request that his cell be opened for cleaning while he was acting as a porter. What Plaintiff claims is that despite the fact Defendant knew this was supposed to occur, it never actually occurred.
Thus, the Court must determine whether Defendant's reliance on what she "knew" was reasonable. First, Defendant was presented with Plaintiff's grievance that explicitly stated that he was never permitted to clean his cell. (Doc. 46-3 at 26). In his grievance appeal, Plaintiff explains that he is never given the opportunity to clean his cell with the cleaning supplies provided. (Id.). Further, Defendant had Plaintiff's grievance supplement in which Plaintiff stated, "I have been the Pod Porter for two years now and whenever I have brought to the officer[`]s attention an inmate[`]s request to clean his cell he always says no and he won't open any door." (Doc. 46-3 at 27).
Defendant responded to Plaintiff's grievance appeal by saying, "Inmates may contact any staff member, at any time, to request cleaning supplies to clean their cells.... Your alleged statement that inmates have ever [sic] never been allowed to clean the inside of their cell is unfounded." (Doc. 46-3 at 32). The Court has reviewed Defendant's affidavit regarding how she reached her conclusion that Plaintiff's claim was unfounded. In paragraphs 49-56, Defendant states she knew that as a porter, Plaintiff was allowed to clean his cell. (Doc. 46-3 at 9-10). Notably, she does not say that during her investigation anyone told her that cleaning was actually happening. Nor does she say that she asked anyone whether cell cleaning was being permitted by the guards. She merely states that she knows this to be true, even though she admits that "Speaking with deputy wardens about the response they signed was my standard practice because, unlike me, they had a nearly daily presence in their unit and so were more familiar with day-to-day operations and events at their units, and could provide me with information relevant to the particular issue at hand." (Doc. 46-3 at 9). She further admits, "Because I was not assigned to any specific unit, I had to rely on the deputy wardens who were in the units on a daily basis when reviewing an inmate grievance." (Doc. 46-3 at 5).
There is no affidavit in the record of Deputy Warden Roan, the only person Defendant claims to have spoken to about this grievance. The only documentation from Deputy Warden Roan is his response to Plaintiff's grievance, in which he states that Plaintiff was given cleaning supplies to be used in the pod and the cells. (Doc. 46-3 at 24). Notably, it does not say that Plaintiff was ever physically permitted to clean his cell.
Thus, the only evidence in this record from someone with personal knowledge who claims that Plaintiff was permitted to clean his cell comes from Correction Officer II Jhiremy Rabadan. As recounted above, CO II Rabadan has avowed that "If an inmate wanted to clean his cell using the cleaning supplies provided to the porters, he could either ask an officer to allow the porter to let him use the cleaning supplies, or have the porter ask an officer for permission to do so." (Doc. 46-1 at 4). He also avowed, "When an officer could do so safely, he would have the control room officer open the cell of the inmate who wanted to clean the cell and allow the porter to give cleaning supplies to the inmate." (Id.). He continued "A porter could also clean his cell by requesting that it be unlocked." (Id.) He further avowed that "a porter could freely walk into his cell to clean it whenever the cell door was open...." (Id.).
Up to this point, it does not appear that Plaintiff disputes any of CO II Rabadan's avowals that all of these things were supposed to be available. Instead, Plaintiff claims that due to staffing shortages or other reasons, no request to unlock the cell door was ever granted. (Doc. 57 at 3).
Conversely, CO II Rabadan avows, "I saw [Plaintiff] walk into his cell multiple times while he worked as a porter. He had the opportunity to clean his cell on any of those occasions." (Doc. 46-1 at 4). As noted above, Plaintiff disputes this fact. However, the issue is whether Defendant acted reasonably in concluding Plaintiff was being given the opportunity to clean his cell. Nowhere in Defendant's affidavit does she claim she spoke to CO II Rabadan or that CO II Rabadan told her that he personally witnessed Plaintiff having the opportunity to clean his cell. Thus, CO II Rabadan's testimony cannot be considered as information Defendant had knowledge of at the time of her investigation and decision.
As already stated above,
Salvi v. Cty. of San Diego, No. 18CV1936 DMS (MDD), 2019 WL 1671001, at *3 (S.D. Cal. Apr. 17, 2019).
As to the second prong, the Court must determine whether it would have been clear to a reasonable officer that Defendant's failure to ensure Plaintiff was receiving an opportunity to clean his cell violated Plaintiff's rights. In the context of probable cause, officers have been granted qualified immunity if they conducted a reasonable investigation prior to arresting someone. See Griego v. Cty. of Maui, No. CV 15-00122 SOM-KJM, 2017 WL 1173912, at *17 (D. Haw. Mar. 29, 2017), reconsideration denied, No. CV 15-00122 SOM-KJM, 2017 WL 2882695 (D. Haw. July 6, 2017), and appeal dismissed, No. 17-15643, 2017 WL 4843015 (9th Cir. Oct. 2, 2017) ("Similar to the officer in Peng, the officers conducted a reasonable investigation before concluding they had probable cause to arrest. The officers are therefore entitled to qualified immunity.").
Here, the Court cannot conclude Defendant conducted a reasonable investigation. Defendant avows that her investigation revealed that Plaintiff was a porter and that Plaintiff was being given cleaning supplies. The remainder of her affidavit says she knew porters were allowed to clean their cells. Nonetheless she disclaimed personal knowledge of the daily operations of Plaintiff's unit; thus her affidavit is not based on her personal knowledge or observation that Plaintiff was being allowed to clean his cell.
Because Defendant made no effort to determine whether Plaintiff's grievance claiming that the policy that his door be unlocked for cell cleaning was not being honored was true before finding his claim to be unfounded, Defendant did not act reasonably. In other words, Defendant concluding that Plaintiff was making unfounded accusations in the face of no contrary evidence was not reasonable. And, as discussed above, a reasonable officer would have known that if Plaintiff was telling the truth — that he was not allowed to access his cell for cleaning for two years as of the grievance and five years as of the amended complaint — Plaintiff's rights were being violated. Thus, based on this record, Defendant is not entitled to qualified immunity.
As discussed above, as to the second prong of the merits of his claim, Plaintiff must show that Defendant acted with deliberate indifference. Specifically, deliberate indifference occurred if Defendant knew of and disregarded an excessive risk to Plaintiff's health or safety; Defendant must both have been aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and she must also have drawn the inference. Farmer, 511 U.S. at 837.
Here, Defendant makes two arguments regarding Plaintiff's grievance that he was never permitted to clean his cell. Specifically, she argues, "[Defendant] evaluated [Plaintiff's] statement that "[n]o Inmate has ever been allowed by any officer to clean the inside of his cell at any times" as not credible (id. ¶ 87), and as failing to comply with DO 802.01(1.1)'s requirement that an inmate grieve a matter which directly and personally affects the inmate grievant" (id. ¶ 105). (Doc. 45 at 13) (emphasis in original).
Regarding Defendant's conclusion that she did not find Plaintiff credible, a reasonable investigation is a basis to find a defendant did not act with deliberate indifference. Toscano v. Lewis, No. C-12-5893 EMC (PR), 2015 WL 4940832, at *16 (N.D. Cal. Aug. 19, 2015) ("On the evidence in the record, no reasonable juror could find that defendants were deliberately indifferent to a substantial risk of harm to Mr. Toscano in their housing decisions because they conducted a reasonable investigation into his circumstances before deciding to release Mr. Toscano to the general population in March 2011."); see also Norwood v. Cate, No. 1:09-CV-00330-AWI, 2014 WL 37241, at *9 (E.D. Cal. Jan. 6, 2014), subsequently aff'd, 676 F. App'x 649 (9th Cir. 2017).
Here, however, for the reasons discussed above, the Court has concluded that Defendant's investigation, wherein on this record it does not appear she ever looked into Plaintiff's grievance that his cell was never unlocked for cleaning, was not reasonable. Additionally, the Court does not find Defendant's argument that because Plaintiff claimed that "no inmate" was ever allowed to clean his cell, Defendant was relieved of her obligation to determine whether Plaintiff was allowed to clean his cell. Plaintiff, undisputedly, is an inmate. Thus, the statement "no inmate" would include himself. Accordingly, he was grieving a matter that directly and personally impacted him. The fact that he mentioned other people too does not make the grievance not apply to him personally.
Thus, Defendant was aware of alleged facts, specifically prolonged unsanitary conditions, that could pose an excessive risk to Plaintiff's health and safety. Further, on this record there is evidence that she disregarded this risk by not investigating whether Plaintiff's allegations that the policy Defendant knew of (which permitted inmates to clean their cells upon request) was not being followed. Accordingly, Defendant's motion for summary judgment on the basis that she was not deliberately indifferent is denied.
Plaintiff seeks injunctive relief regarding being permitting to clean at Buckley Unit (among other things). (Doc. 57 at 13). It is undisputed that Plaintiff is no longer housed at Buckley Unit. (Doc. 45 at 15; Doc. 57 at 2). As a result, the Court finds this request to be moot. The Court notes that Plaintiff disputes this finding arguing that he could be transferred back to Buckley Unit at any time. (Doc. 57 at 13). The Court nonetheless finds this issue to be moot at this time; but denies Plaintiff's request without prejudice to him renewing it if he is transferred back to Buckley Unit.
Based on the foregoing,
