United States District Court, D. Arizona
Randee R. Vensor, Plaintiff,
Central Arizona Correctional Facility, et al., Defendants.
STEVEN P. LOGAN, District Judge.
Plaintiff Randy R. Vensor brought this pro se civil rights actions under 42 U.S.C. § 1983 against Arizona Department of Corrections (ADC) General Counsel Karen Klausner and three employees at the Central Arizona Correctional Facility (CACF): Nurse Tanya Schell, and Correctional Officers (CO) Patrick Cervantes and Robert Velasquez (Doc. 7). Defendants have filed three separate Motions for Summary Judgment (Docs. 113, 118-119). Vensor opposes all motions and cross-moves for summary judgment (Docs. 131-133).
The Court will deny Vensor's cross-motions for summary judgment, grant Defendants' motions, and terminate the action.
Vensor's claims arose during his confinement at the CACF facility in Florence, Arizona (Doc. 7). In Count I of his First Amended Complaint, he states that in December 2010, he was seen by Dr. Haleem for a large tumor on the right side of his ribs that caused significant pain ( id. at 3). Vensor requested the tumor be removed, but Dr. Haleem told him that the Medical Review Committee (MRC) and Klausner "denied and prolonged" the surgery ( id. ). After he filed numerous health requests, Vensor was finally sent to the Maricopa Medical Center (MMC) in March 2011, at which time an oncologist and bone specialist examined him and recommended immediate removal of the tumor ( id. ). According to Vensor, he was not sent to the hospital for another seven months, and only after a prisoner advocate threatened Klausner with legal action ( id. ). Vensor had surgery on October 5, 2011; however, by that time, the tumor had attached to his ribs, which caused serious complications ( id. ). Vensor alleged that Klausner was deliberately indifferent to his serous medical needs in violation of the Eighth Amendment when she failed to take action to ensure timely, necessary surgery ( id. ).
In Count II, Vensor alleged that when Velasquez and Cervantes transported him to the hospital on August 30, 2011, the air conditioning was not working and when Vensor informed them, they failed to remedy the problem ( id. at 4). Vensor claimed that it was 114 degrees that day; the transport van became so hot that he could not breathe or see correctly; and when he exited the van upon arrival back at the prison, he collapsed and was taken to the medical unit ( id. ). He stated that the nurse informed him he had suffered severe heat stroke ( id. ). Vensor alleged that Velasquez and Cervantes' actions constituted a threat to Vensor's safety in violation of the Eighth Amendment ( id. ).
And in Count III, Vensor asserted that in December 2010, when he initially requested surgery to remove the tumor near his ribs, Dr. Haleem informed him that surgery had to be approved by Schell and the MRC ( id. at 5). Vensor stated that thereafter, he was told his surgery requests had been denied by Schell and the MRC on the ground that the tumor was not life threatening, despite recommendations for surgery ( id. ). As stated, Vensor waited seven months before surgery was finally approved after intervention by an outside advocate ( id. ). Vensor alleged that Schell's role in failing to timely approve surgery constituted deliberate indifference to his serious medical needs in violation of the Eighth Amendment ( id. ).
The parties now move for summary judgment. Schell filed her separate Motion for Summary Judgment (Doc. 113), followed by Velasquez and Cervantes' Motion for Summary Judgment (Doc. 118), and Klausner's Motion for Summary Judgment (Doc. 119). In his separate response to each motion, Vensor moves for "counter summary judgment" (Docs. 131-133).
II. Vensor's Motions for Counter Summary Judgment
The Court initially set the dispositive-motions deadline for September 11, 2013 (Doc. 23). After granting two of Defendants' requests for an extension, the final dispositive-motions deadline was January 17, 2014 (Doc. 112).
Vensor's requests for counter summary judgment are set forth in his response filings, which were all filed on February 14, 2014 (Docs. 131-133). Vensor did not seek an extension or move for leave to file summary judgment motions after the January 17, 2014 deadline. As such, to the extent that Vensor cross-moves for summary judgment, his counter motions are untimely and will be denied. Vensor's response filings will be considered, however, as opposition to Defendants' motions.
III. Summary Judgment Standard
A court must 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). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to 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, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed.R.Civ.P. 56(c)(1).
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. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255.
IV. Velasquez and Cervantes' Motion for Summary Judgment
A. Governing Standard
The Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). While conditions of confinement may be, and often are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045. Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety; however, not every injury that a prisoner sustains while in prison represents a constitutional violation. Id. (quotation marks omitted); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations omitted).
To maintain an Eighth Amendment conditions-of-confinement claim, a prisoner must make two showings. First, the prisoner must make an "objective" showing that the alleged deprivation is "sufficiently serious." Farmer, 511 U.S. at 834. To be sufficiently serious to form the basis of an Eighth Amendment violation, "a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities.'" Id., citing Rhodes, 452 U.S. at 347. Second, the prisoner must make a "subjective" showing that the prison official acted with a "sufficiently culpable state of mind"; that is, that the defendant acted with deliberate indifference to the prisoner's health or safety. Farmer, 511 U.S. at 834. To show deliberate indifference, the prisoner must establish that the defendant knew of and disregarded 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 exists, and he must also draw the inference." Id. at 837.
Prison officials may avoid Eighth Amendment liability for the harm suffered by an inmate if they show that: (1) "they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger"; (2) "they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent"; or (3) they responded reasonably to the risk. Id. at 844.
B. Relevant Facts
The relevant facts are taken from the parties' separate Statements of Facts (Doc. 117, Velasquez and Cervantes' Statement of Facts (VCSOF); Doc. 133 at 7-10, Vensor's Statement of Facts (VSOF1)), and from Vensor's sworn declaration (Doc. 130). The Court notes that in support of some of their asserted facts, Velasquez and Cervantes simply cite to "Exhibit A" or "Exhibit B" ( see VCSOF ¶¶ 1-6). Exhibits A and B are declarations from CO Christopher Horen and Velasquez (Doc. 117, Exs. A-B). Defendants fail to cite to the page number or specific paragraph within each declaration that supports each asserted fact. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003) (in summary judgment briefing "[g]eneral references without page or line numbers are not sufficiently specific"). Similarly, in response to many of Velasquez and Cervantes' asserted facts, Vensor states that he opposes the asserted fact and cites only to "Exhibit B" or other attachments ( see e.g. Doc. 133, VSOF1 ¶¶ 1-5). Vensor does not provide any page numbers or specific citations to the portions of his exhibits that support his opposition. Notably, his Exhibit B consists of 28 pages of medical records (Doc. 133 at 26-54).
A party must support an assertion by citing to particular parts of the materials in the record. Fed.R.Civ.P. 56(c)(1)(A); see LRCiv 56.1(a) (separate statement of facts must include a reference to the specific admissible portion of the record where the asserted fact finds support). In its summary judgment analysis, the court is "not required to comb the record" to find supporting evidence. See Carmen v. S.F. United Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001); see also Orr v. Bank of Am., 285 F.3d 764, 775 (9th Cir. 2002) ("[j]udges need not paw over the files without assistance from the parties'") (quoting Huey v. UPS, Inc., 165 F.3d 1084, 1085 (7th Cir. 1999)). Although neither party strictly adhered to the rules governing summary judgment briefing, the Court has reviewed VCSOF and VSOF1 and the evidence to try to determine the disputed facts and if evidentiary support exists for the respective asserted facts. That said, to the extent the Court may have failed to locate specific supporting evidence, it is due to the parties' insufficient citations or briefing. See Fed.R.Civ.P. 56(c)(3) ("[t]he court need consider only the cited materials, but it may consider other materials in the record").
On August 30, 2011, Vensor was transported from the prison to the MMC for an appointment (VCSOF ¶ 2 (in part); Doc. 130, Vensor Decl. ¶ 8). Vensor states that it was 114 degrees that day, the transport to MMC took about an hour, and the air conditioning in the van was not working (Doc. 130, Vensor Decl. ¶¶ 9, 11). He states that he informed Velasquez and Cervantes immediately of the inoperative air conditioning ( id. ¶ 10). Defendants state that when Vensor complained about being hot, they closed the vents in the front to increase airflow to the back of the van (VCSOF ¶ 4 (in part)).
Vensor states that when they arrived at the MMC, he again informed them that the air conditioning was not working and only hot air was blowing out through the vents in the back (Doc. 130, Vensor Decl. ¶ 12). Vensor felt dizzy and nauseous and had a bad headache ( id. ¶ 11; VCSOF ¶ 9). Velasquez and Cervantes advised Vensor that he could get a drink of cold water after his appointment (Doc. 130, Vensor Decl. ¶ 13; VCSOF ¶ 9). Vensor also told the medical provider that he did not feel well and was sick due to the airflow in the van during transport; the provider recommended that Vensor drink water (Doc. 130, Vensor Decl. ¶ 14 (in part); VCSOF ¶ 10). ...