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Slowik v. Moreno

United States District Court, Ninth Circuit

December 5, 2013

Michael Slowik, Plaintiff,
Frank Moreno; Marshall Bliss; C. Smith; Cathy S. Grant; and DOES 1-10, Defendants.


NEIL V. WAKE, District Judge.

Before the Court is the Defendants' Motion to Dismiss/Motion for Summary Judgment (Doc. 39), Plaintiff's Response (Doc. 42), and the Reply (Doc. 47). For the following reasons, the Defendants' Motion for Summary Judgment will be granted.


Summary judgment is appropriate when the moving party carries its burden of demonstrating that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

Once the moving party has carried its burden under Rule 56, the party opposing summary judgment must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The fact are "viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).


Plaintiff Michael Slowik was incarcerated at Federal Correctional Institution ("FCI") Phoenix where he was assigned the job of electrician in the Facilities Department. (DSOF ¶¶ 3-5). Slowik was assigned the job of electrician because he held himself out has having experience splicing powered cable wires. (Doc. 40, Exb. 6). Before taking the job, Slowik signed a form acknowledging that he participated in a prison training which covered various safety topics pertinent to his position, but he claims he was told to sign the form without actually participating in any orientation. (Doc. 40, Exb. 6).

Slowik was initially assigned the job of Grade Four Electrician but quickly worked his way up to Grade One, the top level in the prison. (DSOF ¶ 4). As a Grade One Electrician, he worked on electrical problems in the kitchen affecting the dishwasher, ovens, steam kettle, and helped install new ovens under the oversight of the Electrical Foreman. (DSOF ¶ 5). His job duties included assisting the lead electrician in installing and repairing electrical wiring, fixtures, and equipment. (Doc. 40, Exb. 6). Slowik also served as the emergency electrician on-call during weekends. (Doc. 40, Exb. 6).

Defendant Fred Moreno is a Facilities Manager at FCI Phoenix and has supervisory responsibility for the Facilities Department and for all repairs performed at FCI Phoenix. (DSOF ¶ 1). Defendant Marshall Bliss is now retired, but worked at FCI Phoenix as a Maintenance Foreman whose duties included maintaining the food service equipment. (DSOF ¶ 2).

On Saturday September, 25, 2010, Slowik advised Moreno that he had attempted to reset circuit breakers in the kitchen area of food services but they would not reset. (Doc. 40, Exb. 6). Moreno told Slowik that Victor Martinez, the institution's electrician, would address the problem the following day. (DSOF ¶ 7). Maritinez was not available the next day and after Bliss approached Slowik about the broken electric panel, Slowik offered to see if he could figure out what was wrong. (Doc. 40, Exb. 6). Bliss escorted Slowik and another inmate to the power source behind the building. (DSOF ¶ 9). The main power feed to the electrical panel was shut off, and Slowik located two blown fuses. (DSOF ¶ 10). Slowik then returned to the food service area and took the front cover off the electrical panel to check for a short. (DSOF ¶ 12). Slowik found no shorts and turned off all the breakers. (DSOF ¶ 12).

Bliss then escorted the inmates back to the power source behind the building where Slowik replaced the blown fuses and turned the unit back on. (Doc. 40, Exb. 6). The group then returned to the kitchen so Slowik could flip the circuit breakers back on one at a time. (Doc. 40, Exb. 6). As Slowik flipped the last breaker, it flashed due to a ground short that Slowik had missed. (Doc. 40, Exb. 1). Later reports suggest Slowik forgot to put the cover back over the flash panel in the kitchens, but Slowik stated that mistake was not what caused the accident and that the explosion might have been much worse if the cover had been on. (Doc. 40, Exb. 6).

The explosion injured Slowik, the other inmate, and Officer Bliss. (Doc. 40-7, Pg. 58). When asked to describe the incident, Slowik said, "There's no way that anybody -it - it was just -there's no way that could have prevented from happening the way it happened." (Doc. 40, Exb. 6). The two injured inmates were immediately taken to the institution's Health Services Department for medical treatment and were later transferred to a local hospital. (DSOF ¶ 20). Slowik was then transferred to Maricopa County Burn Center. (DSOF ¶ 21). He returned to FCI Phoenix on October 13, 2010. (DSOF ¶ 20).

After returning to the prison, Slowik filed an administrative grievance, claiming he was forced to work on a high voltage electric panel by Officer Bliss and was not properly instructed on the job he was assigned to perform. (DSOF ¶ 22). He was awarded a monthly sum of $58.65, based on a 7% impairment to his whole body under the Inmate Accident Compensation Act. (DSOF ¶ 29). Slowik believed his monthly sum should have included more money to account for the overtime he worked before he was injured and that Officer Moreno lowered the award to spite him. (Doc. 40, Exb. 6). Slowik appealed his award but lost. (DSOF ¶ 29).

Slowik then filed this action under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that Defendants Frank Moreno and Marshal Bliss, among others, violated his constitutional rights when he suffered injuries from a work-related incident while incarcerated at FCI Phoenix. (Doc. 16 ¶¶ 40-50). He alleges violations of his Fifth Amendment right to due process and Eighth Amendment right to be free from serious risk of harm because he was injured while being forced to work on "energized circuits." ( Id. at ¶ ¶ 42-45). Slowik also alleges two named defendants, who have been dismissed from this action, and other John Doe defendants violated his Eighth Amendment rights when they chained, shackled and handcuffed him to his hospital bed after he was injured. ( Id. at ¶¶ 51-58). Finally, ...

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