CHARLES R. BREYER, District Judge.
Plaintiff, a prisoner at the Northern Nevada Correctional Center in Carson City, Nevada, seeks damages under 42 U.S.C. § 1983 based on allegations that, while he was at San Quentin State Prison (SQSP) in San Quentin, California, correctional officer B. Burpo intentionally poisoned his food and, when plaintiff reported the poisoning, correctional officers H. De Leon, H. Altunc and K. France retaliated against plaintiff by further poisoning him, verbally abusing him and otherwise harassing him. Plaintiff also alleges that then-warden Kevin R. Chappel and Sergeant L. Barnes were told that correctional officers were poisoning and harassing plaintiff, but neither took any steps to protect him.
Per orders filed on May 7, 2015 and January 12, 2016, the court found that: (1) plaintiff's allegations that Burpo, De Leon, Altunc and France intentionally poisoned plaintiff's food state a cognizable § 1983 claim for damages for deliberate indifference to plaintiff's health and safety against Burpo, De Leon, Altunc and France; (2) plaintiff's allegations that when plaintiff reported that Burpo was poisoning his food, De Leon, Altunc and France retaliated against plaintiff by further poisoning him, verbally assaulting him and otherwise harassing him state a cognizable § 1983 claim for damages for retaliation against De Leon, Altunc and France; and (3) plaintiff's allegations that Chappell and Barnes were told that correctional officers were poisoning and harassing plaintiff, but neither took any steps to protect him, state a cognizable § 1983 claim for damages for deliberate indifference to plaintiff's health and safety against Chappell and Barnes.
Defendants now move for summary judgment on the ground that there are no material facts in dispute and that they are entitled to judgment as a matter of law on plaintiff's three cognizable § 1983 claims against them. Defendants also argue that plaintiff did not exhaust available administrative remedies as to his claims against France and Chappell, as required by 42 U.S.C. § 1997e(a), and that Chappel and Barnes are entitled to qualified immunity. Plaintiff has filed an opposition and defendants have filed a reply. Plaintiff also has filed two cross-motions for summary judgment on both exhaustion and the merits of his claims. Defendants have filed oppositions and plaintiff has filed replies (and a surreply).
Plaintiff was incarcerated at SQSP "between May 2010 and December 2012." Second Am. Compl. (SAC) (ECF No. 78) at 7. He was initially housed in the Alpine section, a protective-custody unit, but in September 2010 had himself placed in administrative segregation (ad seg) "[t]o deal with severe mental illness," including "acute social phobia, panic attacks, and depression."
Plaintiff was housed in ad seg between "September 2010 and November 2011." SAC at 7. He was first placed on the second tier of Carson section, where defendant France worked as a tier officer. Plaintiff alleges that "[fr]om September 2010 to December 2010," France "misappropriated" his mail, "verbally abused" him and "otherwise harassed" him.
In December 2010, plaintiff was transferred to Donner section, another section in ad seg. Plaintiff testified that he continued to experience verbal harassment and "a lack of respect" by other correctional officers in Donner section. Pl's Depo. at 96.
In March 2011, plaintiff returned to Carson section, this time to the fourth tier, where defendant Burpo worked as a tier officer. Plaintiff alleges that "[f]rom March 2011 to May 20, 2011," Burpo "poisoned" his meals, "verbally abused" him and "otherwise harassed" him. SAC at 7.
On May 20, 2011, plaintiff alleges he became "violently sick" after eating the breakfast Burpo served him and "had to go to the emergency room because of the poisoning."
On May 21, 2011, plaintiff alleges that he told defendant Barnes that Burpo had poisoned his food on May 20, 2011 "requiring him to go to the SQSP emergency room."
In "[l]late May or early June of 2011,"
In June 2011, plaintiff was moved to the third tier of Carson section, where defendants De Leon and Altunc worked as tier officers. Plaintiff alleges that "[b]etween June 2011 and October 2011," De Leon and Altunc "poisoned" his meals and verbally abused him by calling him names. SAC at 10. Plaintiff claims De Leon and Altunc poisoned his meals and verbally abused him "in retaliation" for his submitting a grievance and letter reporting that "Burpo poisoned him."
In October 2011, plaintiff returned to the second tier of Carson section, where defendant France worked. Plaintiff alleges that "[f]rom October 2011 to November 2011," France "poisoned" his meals, "verbally abused" him and "otherwise harassed" him.
On November 4, 2011, plaintiff told defendant Barnes that "he was being subjected to various abuses and mistreatment," including "poisoning" and "verbal abuse," by defendants De Leon, Altunc and France.
On November 16, 2011, plaintiff was released from ad seg back to the "Alpine section" protective-custody unit. Pl.'s Depo. at 128-29. He remained there until April 2012, when correctional staff moved him back to "Donner Section" in ad seg while investigating him for possible involvement in a protective-custody prison gang.
Plaintiff alleges that defendant Chappell was "informed" multiple times by plaintiff, his mother and others that plaintiff was being "subjected to continuous and ongoing poisoning," "verbal abuse" and other "harassment and mistreatment," but Chappell "took no steps to protect plaintiff." SAC at 12-13.
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case.
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings to demonstrate the existence of a genuine dispute of material fact by "citing to specific parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed. R. Civ. P. 56(c). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law."
There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.
When the parties file cross-motions for summary judgment, the district court must consider all of the evidence submitted in support of both motions to evaluate whether a genuine issue of material fact exists precluding summary judgment for either party.
Defendants argue that they are entitled to summary judgment on plaintiff's three cognizable § 1983 claims for damages against them: (1) Burpo, De Leon, Altunc and France were deliberately indifferent to plaintiff's health and safety by intentionally poisoning plaintiff's food; (2) De Leon, Altunc and France retaliated against plaintiff for reporting that Burpo was poisoning his food, by further poisoning, verbally assaulting and otherwise harassing plaintiff; and (3) Chappell and Barnes were deliberately indifferent to plaintiff's health and safety by failing to protect him.
A prison official violates the Eighth Amendment only if two requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, and (2) the prison official possesses a sufficiently culpable state of mind.
A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it.
In order to establish a claim for damages against an individual prison official under § 1983, a plaintiff also must set forth evidence showing that the specific prison official's deliberate indifference was the "actual and proximate cause" of the deprivation of plaintiff's Eighth Amendment rights.
Defendants argue that they are entitled to summary judgment on plaintiff's claim that Burpo, De Leon, Altunc and France were deliberately indifferent to plaintiff's health and safety by poisoning his food because plaintiff has set forth no objective evidence that he was poisoned (and consequently suffered a serious harm brought on by being poisoned), or that Burpo, De Leon, Altunc or France caused the alleged poisoning. Defendants also argue that plaintiff's medical records contradict his claim that he was poisoned because the records instead show that plaintiff suffered only from indigestion and a possible ulcer, both of which were treated with medication. In support, defendants submit documentary evidence showing the following:
On June 14, 2011, plaintiff was seen by medical staff for multiple complaints, including "white growth on his tonsils, nasal congestion, ringworm on the abdomen[, and] increased flatulence the past two months. He denies any blood in the stools. . . . He has no nausea or vomiting." Van Loh Decl. Ex. B (ECF No. 120-2) at 3. He was diagnosed with dyspepsia (indigestion) with increased flatulence and prescribed "simethicone" to address it. His weight was 187 pounds, down four pounds since his last visit.
On July 15, 2011, plaintiff was seen by medical staff for allergies. He reported that the simethicone was helping improve his dyspepsia and that he had not experienced any nausea or vomited. Plaintiff "has been attempting to lose weight to help lower his blood pressure. He actually lost 11 pounds since his last visit."
On September 7 and 13, 2011, plaintiff reported to his dentist that his general health was good, and that he had not experienced any diarrhea, vomiting, nausea or stomach problems.
On September 19, 2011, plaintiff was seen by medical staff for follow-up on face lacerations and a small bone fracture on his jaw after an altercation with another inmate. He reported that dyspepsia was "not an issue" and that he "has no difficulty eating."
On October 21, 2011, plaintiff was seen by medical staff for a follow-up visit. He again expressed concern about a cyst on his tonsil, which the doctor did not believe required removal, and worried that he might have a kidney infection and/or an ulcer. He reported that he was "able to eat and has gained weight."
On November 7, 2011, plaintiff was informed that he needed to "start antibiotics" for his upset stomach because the H. pylori test had come back "
On December 1, 2011, plaintiff was seen by medical staff following observation for "suicidal ideation."
On February 22, 2012, plaintiff reported "spasms in stomach."
On March 1, 2012, medical staff took biopsies of bumps on plaintiff's nose and abdomen for skin cancer screening, and both returned normal results.
On March 15, 2012, medical staff saw plaintiff for a follow-up visit on the biopsies. Medical staff noted that plaintiff "has been requesting screening laboratory studies after he had daily GI discomfort after the food delivered to him in Administrative Segregation []. Concerned that he may have been poisoned. He has had no further sequelae since leaving that unit. . . ."
On June 8, 2012, plaintiff was seen by medical staff for "bloating and flatulence after meals."
On June 22, 2012, plaintiff was seen by medical staff for a buttock lesion and weight loss. Medical staff noted that plaintiff "states he is eating a normal diet. He had laboratory studies done in February that showed normal CMP, vitamin D normal, hepatitis B immune."
On July 26, 2012, plaintiff reported that he was poisoned at the AC. He expressed concern that "he was given `caustic material' in his food" and requested a renal function panel.
On July 30, 2012, plaintiff was given a CMP, vitamin D, hemoglobin A1C and TSH tests, all of which were normal. On July 31, 2012, plaintiff submitted a stool sample for multiple tests, which revealed no abnormalities.
On August 17, 2012, plaintiff was seen by medical staff for laboratory review. Plaintiff had been concerned about having been poisoned at the AC. "He underwent a [CMP] which included renal functioning testing. He also had issues with perceived weight loss."
Defendants correctly argue that they are entitled to summary judgment on plaintiff's claim that Burpo, De Leon, Altunc and France were deliberately indifferent to plaintiff's health and safety by poisoning his food. Although plaintiff declares that he became ill after eating most meals starting in June 2011, he sets forth no significantly probative evidence that he suffered a substantial risk of serious harm brought on by poisoning.
Even if plaintiff had suffered a significant risk of serious harm brought on by poisoning, he has set forth no significantly probative evidence that Burpo, De Leon, Altunc or France actually and proximately caused the poisoning of which he complains.
Defendants are entitled to summary judgment on plaintiff's claim that Burpo, De Leon, Altunc and France were deliberately indifferent to plaintiff's health and safety by poisoning his food.
To prevail on a First Amendment retaliation claim, a prisoner must show: (1) that a state actor took some adverse action against a prisoner (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the prisoner's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.
The prisoner must prove all the elements of a retaliation claim, including the absence of legitimate correctional goals for the conduct of which he complains.
Retaliation claims brought by prisoners must be evaluated in light of concerns over "excessive judicial involvement in day-to-day prison management, which `often squander[s] judicial resources with little offsetting benefit to anyone.'"
Defendants argue that they are entitled to summary judgment on plaintiff's claim that De Leon, Altunc and France retaliated against plaintiff for reporting that Burpo was poisoning plaintiff's food, by further poisoning, verbally assaulting and otherwise harassing plaintiff, because plaintiff has set forth no evidence that De Leon, Altunc or France knew that plaintiff had reported Burpo or that they decided to punish him for it. The court agrees.
Plaintiff admitted at his deposition that he has no direct evidence that De Leon, Altunc or France acted against plaintiff because of plaintiff's reporting of Burpo: "I guess I would just have to say I drew an inference based on the proximity and time, the fact that [Burpo] got disciplined, fired, transferred, or whatever, and then the fact that the harassment and these comments like snitch and rat and other terms started — I don't know, there was never a direct statement like I'm calling you a rat right now because you filed a grievance against Correctional Officer [Burpo]. . . ." Pl's Depo. at 174-75. But plaintiff's "inference" is no more than speculation and not enough to defeat summary judgment.
"In the First Amendment context, a plaintiff creates a genuine issue of material fact on the question of retaliatory motive when he or she produces,
Defendants are entitled to summary judgment on plaintiff's claim that De Leon, Altunc and France retaliated against plaintiff for reporting Burpo by poisoning, verbally assaulting and otherwise harassing plaintiff, because plaintiff has set forth no evidence that De Leon, Altunc or France knew that plaintiff had reported Burpo or that their alleged actions were in retaliation for plaintiff's grievance/letter reporting Burpo.
Defendants argue that they are entitled to summary judgment and qualified immunity on plaintiff's claim that Barnes and Chappell were deliberately indifferent to plaintiff's health and safety by failing to protect plaintiff after they were told that correctional officers were poisoning and harassing him. Under
If the court determines that the conduct did violate a constitutional right, it then moves to the second step and asks "whether the right was clearly established" such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."
The Eighth Amendment requires that prison officials take reasonable measures to guarantee the safety of prisoners.
A prison official is deliberately indifferent if he knows of and disregards an excessive risk to inmate health or safety by failing to take reasonable steps to abate it.
Defendants argue that they are entitled to summary judgment on plaintiff's claim that Barnes and Chappell were deliberately indifferent to plaintiff's health and safety by failing to protect him from correctional officers poisoning and harassing him because plaintiff has set forth no evidence that either Barnes or Chappell was aware of and disregarded a substantial risk of serious harm to plaintiff. Defendants specifically argue that plaintiff has not shown either that he suffered a substantial risk of serious harm, or that Barnes or Chappell believed plaintiff suffered a substantial risk of serious harm and consciously disregarded the risk.
The court concluded earlier in this order that plaintiff has set forth no significantly probative evidence that he suffered a substantial risk of serious harm brought on by poisoning. And it also concluded that plaintiff's allegations that correctional officers verbally abused and harassed him, although troubling, do not state a cognizable claim for damages under § 1983. Nor do they amount to a showing of substantial risk of serious harm. But even if plaintiff had suffered a substantial risk of serious harm, Barnes and Chappell are entitled to summary judgment because plaintiff has set forth no significantly probative evidence that either Barnes or Chappell knew that plaintiff suffered a substantial risk of serious harm and disregarded that risk by failing to take reasonable steps to abate it.
The undisputed facts in the record show that after plaintiff told Barnes on May 21, 2011 that Burpo had poisoned plaintiff's food on May 20, 2011, Barnes transferred plaintiff to another section in ad seg. And after plaintiff told Barnes on November 4, 2011 that De Leon, Altunc and France had subjected him to food poisoning and harassment, Barnes allowed plaintiff to transfer to any tier and section in ad seg that he wanted. Plaintiff nonetheless argues that Barnes should have done more. But all Barnes was required to do was take reasonable steps to abate a substantial risk of serious harm.
At minimum, Barnes is entitled to qualified immunity from damages on plaintiff's claim that Barnes failed to protect plaintiff from correctional officers poisoning his food in violation of the Eighth Amendment because a reasonable correctional officer could have believed that his conduct was lawful under the circumstances.
Plaintiff has submitted declarations and documentary evidence in support of his claim that Chappell was "informed" by his mother and others that plaintiff was being "subjected to continuous and ongoing poisoning," "verbal abuse" and other "harassment and mistreatment," and yet "took no steps to protect plaintiff." SAC at 12-13. But plaintiff's own evidence shows that Chappell did not disregard the complaint of staff misconduct towards plaintiff; instead, Chappell "referred" it to "E. Melton, San Quentin Investigative Services Unit Lieutenant for appropriate action/review." Pl.'s Req. for Judicial Notice (ECF No. 150) Ex. D at 1. Plaintiff argues that Chappell should have done more, but there is no indication that any of the investigations into the matter revealed any wrongdoing and, like Barnes, all Chappell was required to do was take reasonable steps to abate a substantial risk of serious harm.
At minimum, Chappell is entitled to qualified immunity from damages on plaintiff's claim that Chappell failed to protect plaintiff in violation of the Eighth Amendment because a reasonable prison official could have believed that his conduct was lawful under the circumstances.
For the foregoing reasons, defendants' motion for summary judgment (ECF No. 114) is GRANTED, and plaintiff's cross-motions for summary judgment (ECF Nos. 94 & 125) are DENIED.
The clerk shall enter judgment in favor of defendants and close the file.
SO ORDERED.
