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Brisken v. Unknown Griego

United States District Court, D. Arizona

March 18, 2019

Jhon Nigel Brisken, Plaintiff,
v.
Unknown Griego, et al., Defendants.

          ORDER

          Honorable John J. Tuchi United States District Judge.

         Plaintiff Jhon Nigel Brisken, who is currently confined in the Saguaro Correctional Center (“SCC”) in Eloy, Arizona, brought this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Magistrate Judge Eileen S. Willett's unopposed Report and Recommendation (“R&R”), recommending dismissal of Defendant Beard without prejudice (Doc. 86), and the following four Motions: (1) Defendants Thomas and Griego's Motion for Summary Judgment on Counts II and III (Doc. 91), (2) Defendant Gilreath's Motion for Summary Judgment on Count I (Doc. 93); (3) Plaintiff's “Motion to Have Copys (sic) Made of the Grievances Submitted to the Court and Forwarded to the Arizona Medical Board” (Doc. 165); and (4) Plaintiff's “Motion for an Extension of Time Before Any Judgment is Made on Summary Jud[g]ement” (Doc. 167). Plaintiff was informed of his rights and obligations to respond to the Motions for Summary Judgment pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Docs. 96, 97), and he opposes the Motions. (Docs. 101, 102, 103.)

         The Court will accept the R&R, grant the Motions for Summary Judgment, deny as moot Plaintiff's Motion for Copies and Motion for Extension, and dismiss this action.

         I. Background

         On screening of Plaintiff's Third Amended Complaint (“TAC”) under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment medical care claim in Count I against Defendant Doctors Beard and Gilreath, [1] an Eighth Amendment conditions of confinement claim in Count II against Defendants SCC Warden T. Thomas and Assistant Warden B. Griego, and a Fourteenth Amendment due process claim in Count III against Defendants Thomas and Griego and directed all Defendants to answer the claims against them. (Doc. 19.)

         II. R&R

         Magistrate Judge Willett issued an R&R recommending that Defendant Beard be dismissed without prejudice for failure to effect timely service pursuant to Rule 4(m). (Doc. 86.) No. objection has been filed in response, which relieves the Court of its obligation to review the R&R. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court will adopt the R&R and dismiss Defendant Beard without prejudice.

         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 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. 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. Plaintiff's Responses/Verified Complaint

         Plaintiff was informed of the requirements of a response to the Motions for Summary Judgment, and he filed multiple documents in which he appears to respond collectively to both Motions. (See Docs. 101, 101-1, 102, 103.) But Plaintiff failed to comply with the Court's instructions and the applicable Federal and Local Rules in responding to the Motions, including that he must (1) provide a separate statement of facts, containing numbered paragraphs corresponding to the numbered paragraphs in Defendants' statements of fact, stating whether he disputes the asserted facts, and (2) cite to “the specific admissible portion of the record” supporting his position. (See Docs. 96 & 97 at 2-3; LRCiv 56.1(b).)

         Although Plaintiff numbered his paragraphs, his numbering does not appear to correspond to the numbering in Defendants' Statements of Fact, and Plaintiff wholly failed to cite to any evidence in the record to support his position. Accordingly, where relevant, the Court will construe Plaintiff's verified Complaint as an affidavit in opposition to Defendants' Motions. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations in a pro se plaintiff's verified pleadings must be considered as evidence in opposition to summary judgment); 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). Where Defendants' facts are not clearly contradicted by Plaintiff's allegations in the TAC or other evidence in the record, the Court will consider the facts undisputed.

         V. Defendants Thomas and Griego's Motion for Summary Judgment

         A. Facts

          Plaintiff is part of a population of Hawaii Department of Public Safety (“HDPS”) inmates housed at SCC pursuant to a contract between CoreCivic, which operates SCC, and the HDPS. (Doc. 92 (Defs.' Statement of Facts) ¶¶ 1-3.) Plaintiff is a “mental health inmate” who suffers from various mental health issues.[2]

         Defendant Thomas has been the Warden at SCC since 2017, [3] and Defendant Griego has been the Assistant Warden at SCC since 2007. (Id. ¶¶ 4-5.)

         CoreCivic Policy 10-1, entitled Segregation/Restrictive Housing Unit Management, sets forth policies governing inmates assigned to disciplinary segregation at SCC. (Id. ¶ 10.) Inmates assigned to segregation are also subject to the disciplinary policies and procedures in Policies 15-1 and 15-2, which set forth SCC's offense and penal code and its disciplinary procedures. (Id. ¶ 11.)

         Policy 10-1, Section 4(A)(4), limits the amount of personal property inmates in segregation are permitted to have in their cells to the items on CoreCivic's Authorized In-Cell Property List. (Id. ¶ 12.) Items not on this list are placed in storage until the inmate is released from segregation into the general prison population. (Id.) Also, under Policy 10-1, Section 4(B)(1), a Shift Supervisor or someone with higher authority may impose additional restrictions on an inmate's personal property, if deemed necessary, based on an individual assessment of the inmate. (Id. ¶ 13.) The factors to consider before imposing these “special handling requirements” include, but are not limited to, the inmate's (a) security level, (b) past disciplinary history, and (c) continued disruptive behavior. (Id.)

         Policy 10-1, Section 4(I)(3) provides that inmates may also be placed on temporary “property restriction” as necessary, meaning that certain personal items may be temporarily removed from an inmate's cell if they are deemed a threat to inmate safety or facility security. (Id. ¶ 14.) Additional provisions allow staff to restrict inmates' recreation, telephone privileges, visitation, and utility/cell furnishings, as the situation requires, for legitimate penological reasons. (Id. ¶¶ 15-18.) Policy 10-1 does not require a hearing prior to placing a restriction on an inmate in the segregation unit. (Id. ¶ 18.) When imposing a property restriction, SCC staff must complete a 10-1E Confinement Activity/Service Restriction form and forward it to the Chief of Security, Unit Management, and the Warden for approval and provide a copy to the inmate. (Id. ¶ 19.) Restrictions under Policy 10-1, Section 4(I), may only be imposed by an Administrative Duty Officer (“ADO”) unless immediate action is warranted, in which case the Shift Supervisor may impose a restriction on a temporary basis, subject to final approval by an ADO. (Id. ¶ 20.)

         When an inmate is placed on property restriction, all items listed on the Authorized In-Cell Property List are removed from the cell, including the inmate's mattress and bed linens, while the inmate typically retains his shirt and boxer shorts. (Id. ¶ 21.) Inmates on property restriction are typically provided toilet paper, which is only removed if an inmate is found using it in an inappropriate manner, such as for clogging an in-cell toilet, at which point it is only provided when needed. (Id. ¶ 24.) The inmate's mattress and bed linens are typically returned from 11:00 p.m. until 5:00 a.m. daily, and the property restrictions typically last seven days, after which the Unit Manager or other authorized staff member reviews whether to remove or continue the restriction. (Id. ¶¶ 21-23.)

         On approximately November 4, 2014, Plaintiff was placed in disciplinary segregation after pleading guilty to C12-Hindering for delaying a face-to-photo count and to B9-Use of Vulgar, Abusive, or Obscene Language for using vulgar language toward an officer. (Id. ¶ 25; Doc. 92-1, Ex. A (Griego Decl.) ¶ 25.) Per policy, Plaintiff was permitted to keep with him the items delineated on the Authorized In-Cell Property List. (Id. ¶ 26.) Plaintiff was again placed in disciplinary segregation on February 8, 2015, pending a disciplinary hearing and guilty finding for threatening and hindering staff. (Id. ¶ 27.) He remained in segregation until April 9, 2015, after which he was returned to the general population. (Id.)

         Plaintiff was again sent to disciplinary segregation from November 3, 2015 to January 1, 2016, and from July 18, 2016 until at least 30 days after July 25, 2016, after being given hearings and found guilty of the following disciplinary offenses: (1) on November 3, 2015, threatening a staff member and sexual misconduct; (2) on July 18, 2016, destruction of property; (3) on July 21, 2016, refusing to take down an obstruction from his bunk; and (4) on July 25, 2016, use of obscene language while refusing to uncover his head. (Id. ¶¶ 28-29, 34-36, 71.)

         During the periods that Plaintiff was in disciplinary segregation, he was additionally placed on property restriction for a total of 7 days from July 21 to 28, 2016. (Id. ¶¶ 35, 63.)[4]This restriction stemmed from Plaintiff's refusal to take down an obstruction from his bunk. (Id. ¶ 36.) In the early morning hours of July 21, 2016, Lt. Burns reported to Defendant Griego that Plaintiff had refused to take down an obstruction from his bunk that was blocking the staff's view of Plaintiff and compromising their ability to conduct inmate counts and welfare checks. (Griego Decl. ¶ 32.) Lt. Burns told Griego that he and other staff gave Plaintiff several verbal directives to take down or move the obstruction to keep the head portion of his bunk clear and unobstructed, but Plaintiff responded only by yelling obscenities at Lt. Burns. (Id. ¶¶ 33-34.) Based on this report and Plaintiff's “long history of refusing orders, including refusing to uncover his head, ” Griego placed Plaintiff on property restriction at 4:30 a.m. to prevent Plaintiff from causing further disruption. (Id. ¶¶ 34-36.) The Confinement Activity/Service Restriction Form issued by Griego shows that Plaintiff was “to not have any property in his cell. He can only be in a t-shirt and boxers. He can have his mattress, blanket and sheet from 11:00 p.m. to 5:00 a.m.” (Doc. 92-1 at 17.) Plaintiff was not given a hearing prior to the restriction or a way to appeal the sanction. (Doc. 18 at 5.)

         Plaintiff testified in his Deposition that he was placed on property restriction “for just having a t-shirt hanging off the bunk.” (Doc. 92-1, Ex. B (Pl. Dep.) at 30:24-31:4.) He stated that he was upset with Lt. Burns because the t-shirt did not block the view of his entire body, and he argued with Lt. Burns, saying “You can see me. Why are you making a big deal over a t-shirt draping off the top bunk?” (Id. at 31:12-24.)

         According to Griego, “staff must have an unobstructed view of all inmates when conducting their walks and welfare checks. They must be able to see a living, breathing person.” (Griego Decl. ¶ 37.) Therefore, when an inmate covers his head, “staff cannot properly observe the inmate and cannot complete the welfare checks without incident.” (Id.) Additionally, if the inmate continues to refuse to uncover, correctional officers (COs) may be required to make a forced entry into the cell, which requires them to physically subdue all occupants and compromises the safety and security of staff and inmates. (Id. ¶ 38.) Griego opines that “[b]y placing [Plaintiff] on property restriction and removing the personal property items he was using to obstruct staff's view, we were able to temporarily prevent [Plaintiff] from further disruptions and avoid conflicts with staff.” (Id. ¶ 39.)

         While Plaintiff was on property restriction, all his property listed on the Authorized In-Cell Property List, except for his t-shirt and boxer shorts, was removed during the day, but between 11:00 p.m. and 5:00 a.m., he was allowed a mattress, two sheets, and one blanket, giving him 6 hours access to these items during sleeping hours. (Id. ¶¶ 50-52.) On the first day, Plaintiff was given a roll of toilet paper by one of the COs, but this was later taken away, and Plaintiff “on occasions” had no toilet paper. (Doc. 92 ¶¶ 56-57; Doc. 18 at 4.)[5] In his Deposition testimony, Plaintiff states that he asked for toilet paper “a couple of times” but was told to wait because the COs were busy, and after they took his roll of toilet paper back he “cleaned [him]self with water.” (Doc. 29-1. Ex. B. (Pl. Dep.) at 35:18-22; 36:9-19.) Plaintiff continued to receive all his meals, the opportunity to shave and shower at least three times per week, basic hygiene items, and recreation for one hour a day, five days a week. (Doc. 92 ¶58.) Per policy, he was also able to have legal and social visits, receive library services, make telephone calls, and have access to legal materials upon request. (Id. ¶¶ 59-60.) He was also able to request and complete various request forms, including grievance forms, and to make sick calls. (Id. ¶ 61.)

         While in his cell, Plaintiff had access to a working toilet and was not in restraints. (Id. ¶ 62.) The temperature in the housing unit was kept at 70 degrees Fahrenheit. (Id. ¶ 65.) Plaintiff describes being in “cold ventilated air” and having “to go underneath the bunk to avoid the force of the vent, ” which was at the “roof of the cell, ” and that going underneath the bunk caused him to injure his tailbone. (Doc. 18 at 4.) He also “caught a terrible cold from attempting to remain warm and such cold air blowing.” (Id.)

         After Plaintiff's property restriction was lifted on July 28, 2016, all of Plaintiff's personal property was returned to his cell. (Id. ¶¶ 64-65.) Being placed on property restriction should not affect the duration of Plaintiff's sentence. (Griego Decl. ¶ 48.)

         In addition to being placed on property restriction, Plaintiff received an Inmate Disciplinary Report on July 21, 2016 for Failure to Follow and Use of Obscene Language when he refused to uncover his head, and he was found guilty of these offenses on July 25, 2016, at which time he received 30 days disciplinary segregation for his conduct. (Id. ¶ 50; Doc. 92-1 at 19-21.) Plaintiff admits that Defendant Thomas did not place him on property restriction or have any personal involvement in that decision on July 21, 2016. (Doc. 92-1 at 43.)

         B. Eighth Amendment Conditions of Confinement Claim

          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. See Farmer, 511 U.S. at 832; Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).

         To prevail on an Eighth Amendment conditions-of-confinement claim, plaintiffs must meet a two-part test. “First, the alleged constitutional deprivation must be, objectively, sufficiently serious” such that the “official's act or omission must result in the denial of the minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted). Second, the prison official must have a “sufficiently culpable state of mind, ” i.e., he must act with “deliberate indifference to inmate health or safety.” Id. (internal quotations omitted). Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Id. at 835. To be found liable for denying a prisoner humane conditions under the Eighth Amendment, a prison official must both know of and disregard an excessive risk to inmate health and safety. Id. at 837. As to the knowledge component, “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. (emphasis added).

         1. Defendant Thomas

         Defendants argue that Plaintiff's claim against Defendant Thomas fails at the outset because Defendant Thomas did not “return as Warden of SCC until 2017, ” after Plaintiff's 7-day period of property restriction had already taken place, and Plaintiff admits that Defendant Thomas had no involvement in or knowledge of Plaintiff's restrictions. (Doc. 91 at 10.) As previously noted, Defendants facts are vague as to when Defendant Thomas worked at SCC. At most, the evidence they cite shows only that Defendant Thomas was appointed Warden of SCC in 2017, not whether he had any role at SCC immediately prior to that or was at SCC at some earlier time, which may have included the time of Plaintiff's property restriction. Plaintiff's admission that Defendant Thomas did not place him on property restriction or have any personal involvement in the ...


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