G. MURRAY SNOW, District Judge.
Plaintiff Timothy Olmos filed this civil rights action under 42 U.S.C. § 1983 against various officials of the Arizona Department of Corrections (ADC). (Doc. 21.) Plaintiff moves for partial summary judgment, and the remaining Defendants-Director Ryan and Allen Ortega-cross-move for summary judgment on all remaining claims. (Docs. 116, 163.) Plaintiff also submits a Motion to Strike Arguments within Defendants' Reply. (Doc. 206.)
The Court will deny Plaintiff's motions and grant Defendants' motion for summary judgment in part and deny it in part.
On screening of Plaintiff's First Amended Complaint, the Court directed Defendant Charles L. Ryan to answer several Counts and Defendant Allen Ortega to answer one Count. (Doc. 27.) The remainder of the Defendants and claims were dismissed. ( Id. ) Defendants subsequently filed a Motion to Dismiss. (Doc. 132.) The Court dismissed additional claims and determined that the remaining claims are:
Count III (violation of the Eighth Amendment regarding conditions of confinement, including insufficient necessities such as food, clothing, and hygiene products, and overcrowding);
Count VII (violation of due process for charging inmate accounts for photocopies, legal phone calls, legal supplies and legal mail postage, follow-up visits and prescription renewals for chronic diseases, and GED testing);
Count IX (violation of due process for violating state-law inmate-compensation statutes); and
Count XV (violation of the First Amendment by retaliation).
(Doc. 152 at 25.)
Plaintiff's motion for partial summary judgment was filed before the Court issued its Order dismissing additional claims, and his motion addresses several dismissed claims. (Doc. 116.) Specifically, Plaintiff moves for summary judgment on Counts VII through XI. ( Id. ) Thus, the only relevant arguments in Plaintiff's motion are those related to Counts VII and IX. Defendants respond and cross-move as to all remaining claims.
Plaintiff submits his motion (Doc. 116) and numerous exhibits. Defendants submit their response and cross-motion (Doc. 163), their Statement of Facts (Doc. 164 (DSOF)), and the declaration of Ortega, with attachments ( id., Ex. A, Ortega Decl.), the declaration of Linda Finchum, ADC Financial Services Bureau, with attachments ( id., Ex. B, Finchum Decl.), and the declaration of G. Denning, Correctional Officer IV, with attachments ( id., Ex. C, Denning Decl.). In opposition to Defendants' motion, Plaintiff submits his Response/Reply (Doc. 195) and a statement of facts and exhibits (Doc. 200 (PSOF),  and a Controverting Statement of Facts (Doc. 187 (PCSOF)).
II. Summary Judgment
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party who must demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 250; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits or declarations, if any. See Fed.R.Civ.P. 56(c). At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But, if the evidence of the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 248-49. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) ("[c]onclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment").
III. Count III
Count III is against Ryan and asserts allegedly unconstitutional conditions of confinement. Specifically, Plaintiff alleges that Ryan fails to provide Plaintiff with "sufficient (a) nutrition that meets the U.S. Department of Agriculture's latest Dietary Guidelines for Americans, (b) clothing between launderings, (c) hygiene products..., (d) cleaning/sanitation supplies, and (e) living facilities." (Doc. 21 at 5.) Plaintiff also alleges that Ryan houses inmates in overcrowded dorms and does not provide sufficient numbers of security staff, which has led to increases in violence among inmates. ( Id. )
The Court will grant summary judgment to Ryan on this Count because Plaintiff fails to create a triable issue of fact that Ryan knew of unconstitutional conditions of confinement and ignored them.
As a minimum standard, the Eighth Amendment requires that prison officials ensure that inmates receive adequate food, clothing, shelter, sanitation, and medical care, and take reasonable measures to guarantee inmates' safety. Farme v. Brennanr, 511 U.S. 822, 832 (1994); Helling v. McKinney, 509 U.S. 25, 32 (1993); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).
To demonstrate that a prison official has deprived an inmate of humane conditions in violation of the Eighth Amendment, two requirements must be metCone objective and one subjective. Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000). First, "the prison official's acts or omissions must deprive an inmate of the minimal civilized measure of life's necessities." Id. (internal citation omitted). The subjective prong requires the inmate to demonstrate that the deprivation was a product of "deliberate indifference" by prison officials. Wilson v. Seiter, 501 U.S. 294, 303 (1991). Deliberate indifference occurs only if a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exits, and he must also draw the inference." Farmer, 511 U.S. at 837. In addition, a deprivation of a constitutional right occurs if the person acting under color of state law "does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (alteration in original); see also King v. Atiyeh, 814 F.2d 565, 567, 568 (9th Cir. 1987) (to be liable under § 1983, government officials must play an affirmative role in the constitutional deprivation alleged); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690-95 (1978). But there is no respondeat superior liability in a § 1983 action so a prison official is not liable merely because he is the supervisor of others.
To the extent that Plaintiff objects to Defendant raising the exhaustion issue again, Plaintiff misunderstands Defendant's arguments. ( See PSOF ¶ 5; Doc. 195 at 2.) Defendant is not arguing that the claim should be dismissed for failure to exhaust administrative remedies. Rather, Defendant is claiming that Plaintiff cannot show that Ryan was deliberately indifferent to Plaintiff's conditions of confinement because Plaintiff cannot show that Ryan was aware of them. (Doc. 203 at 3.)
Although a written ADC policy regarding a condition of confinement, such as a Department Order, would likely be sufficient to show that Ryan was aware of a particular condition, the Court notes that Plaintiff does not point to any written policies regarding laundering of clothing or nutrition or the other matters about which he complains. Because there is no respondeat superior liability in a § 1983 action, even if Plaintiff did experience unconstitutional deprivations, Ryan cannot be liable unless he was aware of the condition.
As to the conditions complained of in Count III, although Plaintiff complained in an Informal Resolution about allegedly inadequate nutrition, Plaintiff did not appeal this to the Director's level. (DSOF ¶¶ 3-4; Doc. 132-1 at 114-15.) Therefore, Plaintiff cannot show that Ryan was aware of the allegedly inadequate nutrition. And even if the Court assumes that Ryan received the grievance about wearing dirty clothing, which alleged that the longest interval between launderings is four days (DSOF ¶ 5), the Court finds that this does not state a constitutional violation; there is no requirement that inmates receive freshly laundered clothing with greater frequency. The Court notes that he is permitted two pair of athletic shorts but also permitted three state-provided boxers and may purchase four. (Doc. 144 at 19.) The Eighth Amendment requires only that inmates be provided with minimum essentials such as adequate food, shelter, clothing, medical care and safety. Helling, 509 U.S. at 32. In addition, Plaintiff admitted in response to the Motion to Dismiss that he did not attempt to grieve any other Count III subclaim. (Doc. 132, Pl's. May 2, 2012, Supp. Resp. to Defs'. First Set of Non-Uniform Interrogatories, at 2.) Therefore, there is nothing to show that Ryan was aware of the allegedly unconstitutional deprivation of hygiene products, or cleaning/sanitation supplies, or insufficient security staff.
Finally, even if the Court assumes that Ryan received Plaintiff's grievance about overcrowding (Doc. 132, at 114-115), overcrowding by itself is not a constitutional violation. See Hoptowit, 682 F.2d at 1249. Therefore, a grievance alleging overcrowding would not have made Ryan aware of unconstitutional conditions of confinement.
In addition, Ryan is entitled to qualified immunity. A defendant in a § 1983 action is entitled to qualified immunity from damages for civil liability if his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified-immunity inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier v. Katz, 533 U.S. 194, 201 (2001). "The relevant, dispositive inquiry... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. " Id. at 202 (emphasis added). The burden is on the plaintiff to show a clearly established right. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). There is no clearly established right to more clothing than is provided and no clearly established right to more frequent laundry service. And Ryan acted reasonably when he did not address the additional matters about which Plaintiff complains because there is no evidence that he was aware of unconstitutional conditions.
The Court will grant Ryan summary judgment on Count III.
IV. Count VII
In Count VII, Plaintiff alleges due process violations regarding ADC policies to charge inmates for various services; those claims for which the Court has determined he exhausted his administrative remedies relate to legal photocopies, legal phone calls, legal supplies, legal-mail postage, follow up doctor visits, prescription renewals, and GED testing ...