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Mason v. Ryan

United States District Court, D. Arizona

March 4, 2019

Nathan Sterling Mason, Plaintiff,
Charles L Ryan, et al., Defendants.


          David G. Campbell Senior United States District Judge

         Plaintiff Nathan Sterling Mason, who is confined in the Arizona State Prison Complex-Lewis, Barchey Unit, in Buckeye, Arizona, brought this pro se civil rights action under 42 U.S.C. § 1983 against Arizona Department of Corrections (ADC) Director Charles L. Ryan; Correctional Officer Joshua Baese; Corizon, LLC; and Nurse Practitioner (NP) Andreas Thude. (Doc. 46.) Plaintiff alleged Eighth Amendment failure-to-protect and medical care claims. (Id.) There are multiple motions pending in this matter, including three separate summary judgment motions, a motion for injunctive relief, and various miscellaneous motions. This Order addresses Ryan and Baese's Motion for Summary Judgment, which relates to the failure-to-protect claims. (Doc. 225.) Mason's Motion for Partial Summary Judgment (Doc. 239), Corizon and Thude's Cross-Motion for Summary Judgment (Doc. 257), and Mason's Motion for Preliminary Injunction (Doc. 303), Motion for Expedited Ruling (Doc. 326), and February 13, 2019 Motion for Court Order (Doc. 329) all concern Mason's medical care claims and will be addressed separately. In this Order, the Court also addresses Mason's January 7, 2019 Motion for Court Order (Doc. 324).[1] The Court will grant in part and deny in part Ryan and Baese's Motion for Summary Judgment and will deny Mason's Motion for Court Order.

         I. Background

         In Counts One and Two of his First Amended Complaint, Mason set forth Eighth Amendment failure-to-protect claims against Ryan and Baese in their individual capacities. (Doc. 46 at 3.) Mason alleged that Baese failed to respond reasonably to a known risk of harm to Mason's safety and that Ryan implemented an unconstitutional policy governing protective custody (PC) and that the policy caused Mason injury. (Id. at 3-8.) Mason alleged that every time he requested PC placement for safety reasons, he was placed “in the hole” and subjected to unconstitutional conditions of confinement, and then he was repeatedly placed back on general population yards where he was subjected to a substantial risk of harm. (Id. at 6-8.) Mason also asserted an Eighth Amendment claim against Ryan in his official capacity based on the alleged unlawful PC policy. (Id. at 6.) In Count Three, Mason alleged Eighth Amendment medical care claims against Corizon and Thude for the delay and denial of adequate medical care to treat Mason's spinal/neck injury and chronic pain. (Id. at 9-13.)

         Ryan and Baese move for summary judgment as to the failure-to-protect claims in Counts One and Two on the grounds that (1) Baese acted reasonably to a potential threat to Mason's safety, (2) Ryan was not personally involved in any of Mason's PC reviews, (3) the PC policy is constitutional, (4) Mason lacks standing to seek injunctive relief, and (5) Baese is entitled to qualified immunity. (Doc. 225.)[2]

         II. Mason's Motion for Court Order

         This case is part of the Prisoner Electronic Filing Program. Mason's documents are filed electronically, and designated prison staff print and deliver to Mason Notices of Electronic Filing (NEFs) and Orders and documents filed in this case. (See Doc. 29, General Order 14-17.) On January 7, 2019, Mason filed his Motion for Court Order, which states that he has been receiving NEFs and Court Orders up to three weeks late, which may cause him to miss filing deadlines. (Doc. 324.) Mason requests that the Court issue an Order directing ADC to deliver NEFs and Court Orders within 48 hours of filing. (Id.)

         Defendants filed a Response in which they explain that the ADC policy is to deliver NEFs and Court Orders within 48 hours, but the Correctional Officer who normally delivers these filings was on leave for the last two weeks in December 2018, and that Officer's replacement was unable to access the filings. (Doc. 325 at 1-2.) The Response notes that only two Orders were entered in this action during that time frame, both were delivered to Mason upon the Officer's return to work, and neither imposed any deadline or obligation. (Id. at 2.) Defendants state that the delay in deliveries was unintentional, steps have been taken to correct the problem, and Mason's ability to litigate this action was not impeded. (Id.)

         There is no sworn statement attached to Defendants' Response to support the factual contentions. (See id.) Specifically, there is no declaration from an ADC official with personal knowledge of the prison's NEF delivery procedure, the reasons for delays, and the prison's response to the problem. Counsel's assertions are not evidence. Nonetheless, in failing to file a reply memorandum in support of his Motion for Court Order, Mason does not refute that the delay in delivery of NEFs was temporary or that the delay in receiving two Court Orders did not cause him to miss any deadlines. Mason has not filed any subsequent notices regarding further problems or delays with deliveries of NEFs and Court Orders. Accordingly, his Motion for Court Order will be denied without prejudice.

         Any delays in the delivery of NEFs and Court documents is concerning, and Defendants are reminded of ADC's obligation to comply with General Order 14-17 and its requirements governing service of documents on prisoners.

         III. Summary Judgment

         A. Governing 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, 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, 477 U.S. at 250; 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 does not make credibility determinations; it must believe 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). Further, where the nonmovant is pro se, the court must consider as evidence in opposition to summary judgment all of the pro se litigant's contentions that are based on personal knowledge and that are set forth in verified pleadings and motions. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); see Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified complaint may be used as an affidavit opposing summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence).

         B. Evidentiary Issues

         1. Defendants' Motion for Summary Judgment

         In support of their Motion, Defendants cite to the declaration of Marlene Coffey, an Associate Deputy Warden and the PC Administrator. (Doc. 226 ¶ 1, citing Doc. 161, Ex. A, Coffey Decl. ¶ 1 (Doc. 161-1 at 1).) Coffey avers that her declaration is based on her personal knowledge and a review of Mason's PC file and computerized Adult Inmate Management System (AIMS) file. (Doc. 161, Ex. 1, Coffey Decl. ¶ 2.) The PC review process is outlined in Department Order 805, Protective Custody, and it requires that for each PC request and review, there must be documentation in the prisoner's AIMS file and numerous PC forms completed at each step in the process. These PC documents are kept in the prisoner's PC file. (Id., Attach. 1, DO §§ 805.02, 1.1.4, 805.04, 1.4.1 (Doc. 161-1 at 13, 16).)[3] According to Coffey, Mason requested PC placement and has gone through the PC process seven times since 2010. (Id., Ex. 1, Coffey Decl. ¶¶ 29-33.) But there are no documents from Mason's AIMS file or PC file attached to Coffey's declaration, nor do Defendants cite to where in the record the relevant documents can be found. (See id.; Doc. 226.)

         Defendants also cite to the declaration of Baese, who was involved in Mason's PC reviews initiated on December 21 and 23, 2015. (Doc. 226 ¶¶ 47-86, citing Doc. 226, Ex. B, Baese Decl. (Doc. 226-1 at 4).) Baese avers that his declaration is based on his personal knowledge and a review of ADC's records pertaining to Mason. (Id., Ex. B, Baese Decl. ¶ 2.) There are only a few PC forms attached to Baese's declaration. (See Doc. 226-1 at 10-17; Doc. 228 at 2, 7.) Defendants do not cite to where in the record relevant AIMS documentation or the other PC forms may be found.

         Defendants' failure to submit the PC documents supporting Coffey and Baese's declarations is troubling because the information provided in those documents relates directly to the elements of Mason's failure-to-protect claim. More importantly, the Court expressly reminded Defendants that they were required to submit unredacted copies of the relevant PC file documents in support of a summary judgment motion. (Doc. 167 at 8.) In failing to attach the relevant documents or otherwise cite to that part of the record where the documents may be found, Defendants fail to comply with Rule 56(c)(1)(A). Under this Rule, “[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by[ ] citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A). “Materials that are not yet in the record—including materials referred to in an affidavit or declaration—must be placed in the record.” Fed.R.Civ.P. 56, advisory comm. note to 2010 amendments.

         Courts have routinely held that “that when a party refers to documentary evidence as the source of a factual allegation in an affidavit or declaration, the party must attach the relevant documents to the affidavit or declaration.” Sapiano v. Millenium Entm't, LLC, CV 12-8122 PSG (MAN), 2013 WL 12120262, at *4 (C.D. Cal. Nov. 14, 2013) (citing Ninth Circuit cases and district court cases within the Ninth Circuit); see Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1261 (9th Cir. 1993) (upholding the district court's exclusion of affidavits that failed to attached contract documents that were referred to within the affidavits). Because the party moving for summary judgment must satisfy its initial burden by citing to evidence in the record in support of its factual assertions, the nonmovant's failure to specifically object to a declaration statement or asserted fact is of no moment. See Fed. R. Civ. P. 56(c)(1)(A); Celotex, 477 U.S. at 323.

         The Court will consider only those statements in Coffey and Baese's declarations that are made on personal knowledge or that are properly supported by PC forms and AIMS documentation cited to in the record.

         2. Mason's Response

         Mason argues that Defendants' Motion for Summary Judgment must be denied because Ryan failed to comply with the Court's prior Order directing Defendants to allow Mason access to 18 seized documents and, consequently, he cannot present facts essential to oppose the Motion. (Doc. 236.) Mason supports his Response with a declaration in which he avers that Defendants provided him access to only 8 of the 18 documents, and that Defendants have redacted or altered material information in numerous documents. (Id.) In their Reply, Defendants contend that Mason fails to specify in his declaration how any redacted information would preclude summary judgment in this matter. (Doc. 239 at 5.)

         Mason's response is construed as a request under Federal Rule of Civil Procedure 56(d) to deny Defendant's Motion. Rule 56(d) provides a device for litigants to avoid summary judgment when they cannot present facts or they require additional time to obtain evidence. The Rule empowers the Court to deny a pending motion for summary judgment if “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition[.]” Fed.R.Civ.P. 56(d). A Rule 56(d) affidavit or declaration must identify “the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment.” Tatum v. City and Cnty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).

         As set forth below, in failing to submit the relevant PC documents, Defendants fail to demonstrate the absence of a genuine issue of material fact regarding their liability for Eighth Amendment violations. Thus, Mason's Rule 56(d) request to deny summary judgment will be denied as moot.

         IV. Relevant Facts[4]

         A. Protective Custody Review Process

         PC status provides housing that is segregated from the general prison population to safeguard prisoners with legitimate protection needs. (Doc. 161-1, Attach. 1, Department Order (DO) 805, Protective Custody (Doc. 161-1 at 11).) Under DO 805, the policy governing PC, a request for PC placement initiates a PC review process, which is comprised of seven stages: (1) identification; (2) initial PC review by the Shift Commander; (3) informal review by the Deputy Warden or designee; (4) formal review; (5) recommendation by the Deputy Warden or designee; (6) review and final decision by the PC Administrator or PC Committee; and (7) prisoner appeal and review by the Security Operations Administrator or designee. (Doc. 226 ¶ 9.) Each step of the PC review process is documented. (Doc. 161-1, Attach. 1, DO §§ 805.02, 1.1.4 (Doc. 161-1 at 13).) The policy identifies seven forms that must be completed in each PC review process, and the policy also requires that any other relevant documentation be included in the PC file. (Id., DO §§ 805.04, 1.4.1 (Doc. 161-1 at 16); see supra n.3.)

         During the first stage—the identification process—a prisoner makes a written or verbal request for PC, and a staff member immediately isolates the prisoner in a safe area and notifies the Shift Commander. (Doc. 161-1, Attach. 1 DO §§ 805.011.1, 1.2.) The Shift Commander documents the PC request on an Information Report, and the prisoner completes a PC Inmate Statement to identify information concerning his request. (Id., DO §§ 805.01, 1.3.) The Shift Commander attempts to resolve the prisoner's concerns, which may involve changing cell block or bed assignments, adding prisoners to a Do Not House With (DNHW) list, or mediation. (Id., DO §§ 805.01, 1.3.2.) At this stage, prison officials must take steps to protect a prisoner even if the prisoner does not acknowledge that a threat exists. Thus, when officials have information suggesting there may be a threat to a prisoner's safety, the prisoner must be isolated as provided for in this section of DO 805. (Id., DO §§ 805.01, 1.4.)

         If there is no resolution, the PC process moves to the second stage—the initial PC review. (Id., DO §§ 805.01, In this stage, the Shift Commander moves the prisoner to a Detention Unit, immediately refers the prisoner to Mental Health Services for evaluation, and places a hold on the prisoner's AIMS file. (Id., DO §§ 805.02 1.1, 1.1.1, 1.1.2, 1.1.3.) The Shift Commander must document each of these steps in AIMS. (Id., DO §§ 805.02, 1.1.4.) The Shift Commander interviews the prisoner using the PC Security Initial Interview form, and then places the Information Report form, the Inmate Statement form, and the PC Placement/Review Request and PC Security Initial Interview forms with the PC packet and forwards all of the material to the Deputy Warden for the third stage. (Id., DO §§ 805.2 1.1.5, 1.1.6.)

         During the third stage—informal review—the Deputy Warden or designee examines the documentation to determine if transfer to another general population location would resolve the issue or if the PC review process needs to continue. (Id., DO §§ 805.03, 1.1.) If it is determined that a complete PC review is required, or if the prisoner is unwilling to agree that movement to another general population yard would resolve the issue, the Deputy Warden documents the reasons on the Unit Administrator PC Review form and forwards all documents to the Correctional Officer IV. (Id., DO §§ 805.03, 1.3.)

         In the fourth stage—the formal review—the Correctional Officer IV must track the entire PC process using the PC Tracking forms. (Id., DO §§ 805.04, 1.1.) When a prisoner is formally placed in the PC review process, mental health staff must be notified immediately and the prisoner is evaluated within 24 hours. (Id., DO §§ 805.04 1.2, 1.2.1.) The Correctional Officer IV and the Special Security Unit review the case and gather pertinent facts to determine if any specific circumstances are present. (Id., DO § 805.04.)[5] The results are documented on the PC Interview Assessment form and the PC Investigative Summary Report, and all information is forwarded to the Deputy Warden or designee for review and evaluation. (Id., DO §§ 805.04, 1.4.)

         If at any time the prisoner requests to terminate the PC process and return to the unit, a PC Inmate Statement form must be completed, the Deputy Warden or designee must review the prisoner's request and determine if the prisoner should return to the unit, and, if the prisoner can return, the Deputy Warden must ensure the PC Inmate Statement form and the Unit Administrator PC Review form are completed and placed in the PC file. (Id., DO §§ 805.04, 1.8.)

         The fifth stage involves the Deputy Warden's recommendation for PC placement, alternative placement to another unit, or denial. (Id., DO §§ 805.04, 1.4-1.5.1.) This recommendation is made on the PC Decision Worksheet and PC Placement Review Request form, which are then forwarded to the PC Administrator or PC Committee for review. (Id., DO §§ 805.05, 1.1.)

         During the sixth stage of the PC process—review and final decision—the case is reviewed, and a final decision is made by the PC Administrator or the PC Committee. (Id., DO ยงยง 805.06 1.2, 1.2.2.) If this decision is different from the Deputy Warden's recommendation, there ...

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