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Preayer v. Ryan

United States District Court, D. Arizona

September 22, 2016

Roger Wayne Preayer, Plaintiff,
Charles L. Ryan, et al. Defendants.


          David G. Campbell United States District Judge.

         Plaintiff Roger Wayne Preayer brought this pro se civil rights action under 42 U.S.C. § 1983 against seven Arizona Department of Corrections (ADC) employees: (1) Deputy Warden D. Schuster; (2) Lieutenant Maryellen Ohshita; (3) Lieutenant Cheryl Malysa; (4) Corrections Officer (CO) Maria Piller; (5) CO II Jaudiel Barajas; (6) CO II Eduardo Arreola; and (7) Nurse Practitioner Carey Tucker. (Doc. 61).[1] Before the Court are a Motion for Summary Judgment filed by Schuster, Ohshita, Malysa, and Piller (hereinafter “Defendants”) (Doc. 71); Preayer's Objection to the Motion for Summary Judgment as Premature (Doc. 73); and Preayer's Motion to Strike Portions of Defendants' Statement of Facts (Doc. 84.)[2]

         The Court will overrule Preayer's Objection, deny Preayer's Motion to Strike, and grant in part and deny in part Defendants' Motion for Summary Judgment.

         I. Background

         In Count I of his First Amended Complaint, Preayer alleges that he was subject to unconstitutional conditions of confinement for months when he was housed in an isolation cell at the Arizona State Prison Complex (ASPC)-Lewis, Morey Unit. (Doc. 61.) Preayer avers that he did not have a working toilet or sink, was denied cleaning supplies, was not allowed to wash his clothes, and was not allowed to shave or comb his hair. (Id.) Preayer states that he was forced to drink water from the staff restroom or the inmate shower using a one-gallon water bottle given to him by staff and, when he had to use the restroom, he had to push the cell's emergency call button to get staff's attention, but it sometimes took hours for staff to respond. (Id.) He also states that his meals were sometimes served hours late or not at all. (Id.) Preayer alleges that Barajas and Arreola failed to conduct welfare checks or respond to the emergency call button, and Malysa, Schuster, Pillar, and Ohshita were notified of the conditions of confinement either in person or via grievances but failed to remedy the situation. (Id.)

         In Count II, Preayer alleges that he received inadequate medical care when Tucker refused to renew Preayer's high blood pressure medication and Preayer subsequently lost consciousness due to extremely high blood pressure and required emergency treatment. (Id.)[3]

         The Motion for Summary Judgment pertains only to the claim in Count I. (Doc. 71.) Schuster, Ohshita, Malysa, and Piller argue that they are entitled to summary judgment because, although Preayer did not have a working toilet or sink, was denied a comb, and received late meals, the conditions did not rise to the level of an unconstitutional violation and Defendants did not act with deliberate indifference. (Id.)[4]

         Preayer filed an Objection to Defendants' Motion for Summary Judgment as Premature. (Doc. 73.) He then filed his opposition to Defendants' Motion and a “Motion to Strike Portions of Defendants' [Statement of Facts] and Motion for Summary Judgment and Request for Sanctions.” (Docs. 75, 84.) Preayer asserts that following his deposition, he timely completed the Changes and Corrections errata form and mailed it to defense counsel; however, Defendants did not incorporate the corrections into their subsequently filed Motion for Summary Judgment and purposely misstated facts to the Court. (Doc. 84 at 1-2.) Preayer requests that the Court strike those paragraphs in Defendants' Statement of Facts that rely on portions of his deposition that were supposed to be corrected and that the Court sanction defense counsel for its conduct. (Id.)

         Defendants oppose the Motion to Strike on the ground that Preayer made eleven corrections to his deposition testimony and only one of those corrections has any effect on Defendants' Motion for Summary Judgment, but that effect is not material. (Doc. 88.)

         II. Procedural Issues

         A. Preayer's Objection to Defendants' Motion for Summary Judgment

         This action was initiated in January 2015, and a Scheduling Order was issued that set an October 5, 2015 discovery deadline and a December 4, 2015 dispositive motion deadline. (Docs. 1, 5, 16.) The Court granted extensions to discovery and reset the dispositive motion deadline for January 19, 2016. (Doc. 41.) In December 2015, Preayer moved for a temporary stay of proceedings so that he could amend his pleading. (Doc. 58.) On January 8, 2016, the Court granted his request for a stay, stayed all deadlines, and provided time for Preayer to file a First Amended Complaint. (Doc. 60.) In its Order, the Court indicated that it would issue a separate revised Scheduling Order. (Id.) Preayer filed his First Amended Complaint on January 22, 2016; he set forth the same claims against Defendants and added three new defendants. (Doc. 61.) On February 11, 2016, Schuster, Ohshita, Malysa, and Pillar filed their Answer and their pending Motion for Summary Judgment. (Docs. 66, 71.) On May 23, 2016, the Court issued an Amended Scheduling Order, which set a new discovery deadline of August 23, 2016, and a new dispositive deadline of October 22, 2016. (Doc. 91.)

         In his Objection to Defendants' Motion for Summary Judgment, Preayer asserts that he added three new defendants in his First Amended Complaint-defendants who had not yet been served when Defendants filed their Motion for Summary Judgment. (Doc. 73 at 2.) Preayer contends that discovery as to these new defendants may yield evidence that corroborates his claims, and, until that discovery is completed, he is unable to adequately respond to the pending Motion for Summary Judgment. (Id. at 2-3.) He therefore requests that the Court deny the Motion for Summary Judgment as premature. (Id. at 3.)

         The allegations in Preayer's First Amended Complaint against Schuster, Ohshita, Malysa, and Pillar are identical to the allegations against them in the original Complaint. (See Docs. 1, 61.) From July to December 2015, the parties engaged in discovery as to the claims against Schuster, Ohshita, Malysa, and Pillar. (See Docs. 23, 33, 40, 45, 52.) Certainly, Defendants could have waited to file a summary judgment motion in accordance with the new deadlines, but they chose not to, and nothing in the Federal Rules of Civil Procedure precluded them from filing a summary judgment motion when they did. See Fed. R. Civ. P. 56(b) (“[u]nless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery”). Preayer does not identify any specific reasons why he cannot present facts in opposition to Defendants' Motion for Summary Judgment; he merely speculates that there may be additional evidence uncovered during discovery as to the newly added defendants. This is insufficient to stay a ruling on the Motion or deny it as premature. See Fed. R. Civ. P. 56(d).

         Accordingly, Preayer's Objection is overruled, and his request that the Court deny the Motion for Summary Judgment as premature will be denied.

         B. Preayer's Motion to Strike

         Under Federal Rule of Civil Procedure 30(e), a deponent must be provided 30 days after notice that a deposition transcript is available to review the transcript and sign a statement listing any changes in form or substance. On January 14, 2016, within the 30-day period, Preayer signed and dated a Change/Correction errata form and returned it to Defendants. (Doc. 84 at 6-9). It is troubling that Defendants subsequently failed to incorporate the corrections to Preayer's deposition transcript in their Statement of Facts. Preayer does not, however, specify the specific portions of Defendants' Statement of Facts that he believes should be stricken in light of the corrections to his deposition transcript. (See Doc. 84.) Defendants submit that the only erratum relevant to the Motion for Summary Judgment is Preayer's correction that he lost weight while housed at the Morey Unit, and Defendants stipulate to this fact. (Doc. 88 at 2.)[5]

         The Court will deny Preayer's Motion to Strike. See Johnson v. Cal. Medical Facility Health Servs., 2015 WL 4508734, at *6 (E.D. Cal. July 24, 2015) (motions to strike are generally disfavored and “should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation”) (quoting Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D. Cal. 2005)). But the Court will consider Preayer's corrections set forth in the Change/Correction errata form, which is attached to the Motion to Strike. (Doc. 84, Attach.) Also, to avoid unnecessary disputes over interpretations of the evidence, when possible, the Court will rely directly on the deposition transcript, the errata form, and other documentary evidence when ascertaining the relevant facts.

         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, if any, 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 then shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material (a fact that might affect the outcome of the suit under the governing law) and that the dispute is genuine (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); but 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 does not make credibility determinations; it must accept the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).

         IV. Relevant Facts

         On January 7, 2014, Preayer was transferred from the Arizona State Prison Complex (ASPC)-Lewis, Stiner Unit, to an isolation cell in the Transitory Unit, which is within the Lewis, Morey Unit. (Doc. 69, Defs.' Statement of Facts ¶ 7.) At the relevant time, there were 16 inmates housed in the Transitory Unit. (Id. ¶ 11.) Inmates are housed in the Transitory Unit due to disciplinary problems, a need for protection from other inmates, or to await other housing. (Id. ¶ 13.) Preayer was placed in the Transitory Unit because he had turned over another inmate's contraband weapons, thereby compromising his own safety. (Id. ¶ 7.) Preayer was housed in an isolation cell for about 17 weeks-from January 7 to May 8, 2014. (Id. ¶ 9.)

         The toilet/sink, which was a single, combined apparatus, did not work when Preayer was placed in the cell, and there was no running water. (Id. ¶¶ 17, 21.) On January 9, 2014, a repair order to fix the toilet/sink was submitted. (Id. ¶ 22.) The toilet/sink did not work for the first 8 weeks that Preayer was housed in the cell. (Id. ¶ 21.) Defendants state that corrections staff and Preayer “worked out a system” that when Preayer needed to use the bathroom, he would notify staff by pushing the call button in his cell and staff would respond and take him to the bathroom. (Id. ¶ 24.)

         Preayer denies that he ever worked out a system with corrections staff. (Doc. 76, Pl.'s Statement of Facts ¶ 1;[6] Doc. 77, Pl.'s Disputed Facts ¶ 1.) Preayer states that when he was placed in the cell, a CO handed him a one-gallon water bottle and told him that the sink and toilet in the cell did not work and Preayer had to use the bottle for water. (Doc. 76 at 2.) The CO also told him if he needed water or to use the bathroom, to push the emergency button and someone would assist him. (Id.) Preayer states that he objected to being housed in a cell without running water or an operable toilet, but he was forced to remain in the cell. (Doc. 76, Ex. A, Preayer Decl. ¶¶ 9-10 (Doc. 76 at 14).) Preayer avers that when he needed to empty his bowels, he would push the emergency button, but no one would respond. (Id. ¶ 14.) He states he would have to resort to banging and kicking the cell door for a long time before an officer would show up. (Id. ¶ 15.) Preayer testifies that he never soiled his pants because he could not get to the bathroom on time. (Doc. 69, Ex. A, Preayer Dep. 52:23-25 (Doc. 69-1 at 36).)

         Preayer further avers that without running water he was unable to wash his hands or face, brush his teeth, or flush the toilet-which accumulated with urine and created a stench. (Doc. 76, Ex. A, Preayer Decl. ¶ 17.) Preayer explains that he took the cellophane wrapping that came with his sack lunch and placed it over the toilet to try to cover the stink, removing the cellophane when he had to urinate. (Doc. 69, Ex. A, Preayer Dep. 51:25-52:14 (Doc. 69-1 at 35-36).)

         Preayer states that he was never provided cleaning supplies to sanitize his sink or toilet or to sweep or mop his cell. (Doc. 76, Ex. A, Preayer Decl. ¶¶ 64-65 (Doc. 76 at 17).) And he testifies that no one ever entered his cell to clean it. (Doc. 69, Ex. A, Preayer Dep. 52:22-53:3 (Doc. 69-1 at 36-37).)

         When Preayer entered the isolation cell, he had only the clothes he was wearing, and he did not purchase any clothes during the time he was housed in the Morey Unit. (Doc. 76 ¶¶ 3-4 (Doc. 76 at 2).) Preayer states that he was not allowed to wash his single set of clothes-a t-shirt, long pants, a sweatshirt, a pair of socks, and underwear- because the sink in his cell did not work, and officers would not let inmates in isolation take clothes to the laundry. (Id. ¶ 53; Doc. 69, Ex. A, Preayer Dep. 48:6-11, 49:3-8 (Doc. 69-1 at 32-33).) Preayer testifies that he asked for a second set of clothes, which he had in the property room, but he was told he could only have one set of clothes. (Doc. 69, Ex. A, Preayer Dep. 48:15-21 (Doc. 69-1 at 32).) Defendants state that inmates routinely wash their own clothes in the sinks in their cells or when they get a shower, and that Preayer had the opportunity to wash his clothes in his sink after it was repaired on March 3, 2014. (Doc. 69 ¶¶ 23, 44-45.)

         When he was placed in the isolation cell, Preayer was given a “bedroll” consisting of toilet paper, a little bag of toothpaste and a toothbrush, a little bar of soap, a small tube of shampoo, a blanket and sheet, and a towel. (Doc. 69, Ex. A, Preayer Dep. 40:15-22 (Doc. 69-1 at 27).) Defendants state that Preayer had soap, shampoo, toothpaste, a tooth brush, and a towel in his cell. (Doc. 69 ¶ 28.) On January 14 and 22, and February 4, 2014, Preayer purchased soap from the prison store. (Doc. 69, Ex. F-1 (Doc. 69-3 at 13-15).)[7]

         Preayer testifies that he was offered recreation out of his cell about every other day. (Doc. 69, Ex. A, Preayer Dep. 39:1-8 (Doc. 69-1 at 26).) Recreation for those in the isolation cells was offered late at night; non-detention inmates went to recreation during the day. (Id. 38:5-7.) When Preayer was offered recreation, he could either go to recreation or take a shower. (Id. 38:10-18.) Preayer most often chose a shower; he went to recreation just 3 or 4 times during the 17 weeks that he was housed at the Morey Unit. (Id. 38:19-23.) When he took a shower, he was not provided soap or shampoo. (Id. 39:9-13.) He was provided toothpaste and a toothbrush so he would brush his teeth when he took a shower every other day. (Id. 39:19-40:7.)

         Preayer states that he asked officers almost daily to let him shave, but they told him that razors were not permitted. (Doc. 76 ¶ 3.) Defendants confirm that razors are not allowed in cells in the Transitory Unit, and that Preayer did not shave during the 17 weeks he was housed at the Morey Unit. (Doc. 69 ¶¶ 39-40.) Defendants state that inmates could ask the officer on duty to use the electric shaver that was stored in the control room, but the shaver was not always functional. (Id. ¶¶ 41-42.) When Preayer was escorted to the shower, often around 1:00 a.m., he would ask for a barber, but was told that the inmates who worked as barbers were asleep or was given other excuses. (Doc. 69, Ex. A, Preayer Dep. 46:6-15 (Doc. 69-1 at 30).) Consequently, Preayer's beard grew to 5 or 6 inches long. (Id. 42:5-7.)

         Preayer testifies that he asked for comb, but was told he could not have one in the isolation cell. (Id. 41:15-17, 41:22-23 (Doc. 69-1 at 30).) He states that because he was never given a comb, he had to put his hair in plats to keep it from knotting up. (Id. 42:1- 4.) Defendants state that a comb was not part of the hygiene kit provided to Preayer, but ADC policy did not prohibit combs in isolation cells. (Doc. 69 ΒΆ 32.) Defendants note that Preayer ...

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