Jarrett v. Ryan

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff is an inmate at the Arizona Department of Corrections. Plaintiff filed an amended complaint against Defendants, which this Court screened pursuant to 28 U.S.C. § 1915A(a). (Doc. 9). Following this Court’s screening order (Doc. 9) one Count remained as follows: “Liberally construed, Plaintiff has adequately stated an Eighth Amendment conditions of confinement claim against Defendant Dorsey in Count Two for the denial of cleaning supplies.” (Doc. 9 at 8).

         Defendant Dorsey now moves for summary judgment on this Count. (Doc. 45).^[1]Defendant Dorsey’s motion generally has four arguments: 1) Plaintiff cannot establish a constitutional depravation and Defendant’s conduct was not wanton; 2) Plaintiff cannot show the required injury; 3) she is entitled to qualified immunity; and 4) Plaintiff is not entitled to injunctive relief. (Doc. 45).

         I. Legal Standard for Summary Judgment

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). Under summary judgment practice, 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 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 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.

Freemon v. Ryan, No. CV 09-1717-PHX-JAT, 2011 WL 5169342, at *5 (D. Ariz. Oct. 31, 2011).

         II. Eighth Amendment

         A. Legal Standard

“[T]he unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “Among ‘unnecessary and wanton’ inflictions of pain are those that are totally without penological justification.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citation omitted). To demonstrate that a prison official has deprived an inmate of humane conditions in violation of the Eighth Amendment, two requirements must be met-one objective and one subjective. Lopez v. Smith, 203 F.3d 1122, 1132–33 (9th Cir. 2000). First, “the prison official’s acts or omissions must deprive an inmate of the minimal civilized measure of life’s necessities.” Id. (internal citation omitted). The subjective prong requires the inmate to demonstrate that the deprivation was a product of “deliberate indifference” by prison officials. Wilson v. Seiter, 501 U.S. 294, 303 (1991). …[D]eliberate indifference occurs only if a prison official “knows of and disregards 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.” Farmer, 511 U.S. at 837.

Freemon, 2011 WL 5169342, at *15.

…[S]ubjecting an inmate to lack of sanitation that is severe or prolonged can rise also to a constitutional deprivation. Anderson, 45 F.3d at 1314; see Hutto v. Finney, 437 U.S. 678, 686–87 (1978). Therefore, prison officials must provide inmates with adequate sanitation. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). If a prison official’s refusal to provide adequate cleaning supplies prohibits inmates from maintaining minimally sanitary cells and thereby threatens their health, it amounts to a constitutional violation. See Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985).

Freemon, 2011 WL 5169342, at *18. In other words,

The Eighth Amendment’s prohibition of cruel and unusual punishment imposes duties on prison officials to provide prisoners with the basic necessities of life such as food, clothing, shelter, sanitation, medical care and personal safety. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S. 25, 31 (1993). A prison official violates the Eighth Amendment when he acts with deliberate indifference to a known objectively serious risk to a prisoner’s health or safety. See Farmer, 511 U.S. at 834. “The circumstances, nature, and duration of a deprivation of [ ] necessities must be considered in determining whether a constitutional violation has occurred.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), cert. denied, 532 U.S. 1065 (2001). Usually, a more offensive condition will be of constitutional significance when it exists for even a short time, while a less offensive condition will be of constitutional significance only when it has existed for a much longer time. Long-term unsanitary conditions violate the Eighth Amendment, as do non-working toilets. See, e.g., Hearns v. Terhune, 413 F.3d 1036, 1041–42 (9th Cir. 2005) (allegations of serious health hazards in disciplinary segregation yard for a period of nine months, including toilets that did not work, sinks that were rusted and stagnant pools of water infested with insects, and a lack of cold water even though the temperature in the prison yard exceeded 100 degrees, enough to state a claim of unconstitutional prison conditions); Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir.) (“Unquestionably, subjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment.”), amended, 75 F.3d 448 (9th Cir.), cert. denied, 516 U.S. 916 (1995); id. at 1314–15 (placement of violent and mentally disturbed inmates in safety cell that was dirty and smelly with a pit toilet for short duration (up to one day) did not violate 8th Amendment).

Cockcroft v. Kirkland, 548 F.Supp.2d 767, 774–75 (N.D. Cal. 2008).

         B. Pending Motion

         1. Factual Background

         Defendant recounted the following facts, which Plaintiff does not appear to dispute:

Plaintiff was housed in a protective custody cell at ASPC-Lewis-Buckley Unit from September 6, 2013, through February 7, 2018. He worked as a building porter there from August 18, 2014, through September 27, 2016. He was transferred to an ADA cell at Buckley on January 15, 2018. On February 8, 2018, he was transferred to Barchey Unit, where he remains housed today.

(Doc. 45 at 2 (citations omitted)); see also (Doc. 57 at 2).

         Plaintiff’s claim in this case is focused on the fact that he was allegedly not given adequate cleaning supplies, or opportunities, to clean his cell. (Doc. 57 at 2-3). Defendant argues on summary judgment that in investigating Plaintiff’s grievance regarding his lack of cleaning supplies, she concluded Defendant did receive cleaning supplies. (Doc. 45 at 2-3). Specifically, Defendant alleges that that:

CO II Jhiremy Rabadan worked at Buckley during the relevant time. His duties included providing inmate porters with cleaning supplies on a weekly basis for their use in cleaning Buckley Unit common areas; and for use by other inmates, upon request, to clean their individual cells.…

If, an inmate wanted to clean his cell using the cleaning supplies provided to the porters, he could either ask an officer to allow the porter to let him use the cleaning supplies, or have the porter ask an officer for permission to do so. When an officer was able to do so safely, he would have the control room officer open the cell of the inmate who wanted to clean and allow the porter to give cleaning supplies to the inmate.

A porter could also clean his cell by requesting that his cell be unlocked. Additionally, a porter could clean his cell whenever the cell door was open, including whenever his cellmate was out of the cell.

Rabadan saw Plaintiff walk into his own cell multiple times while he worked as a porter. He had the opportunity to clean his cell on any of those occasions.

If an inmate did not want to use the cleaning supplies given to the porters, he could purchase shampoo and towels from the prison commissary with which to clean his cell.

(Doc. 45 at 2-3 (citations omitted)).

         Conversely, Plaintiff alleges that not enough cleaning supplies were provided to clean both the common areas and the cells. (Doc. 57 at 2-3). Further, Plaintiff alleges that, “No [inmate] was ever allowed to clean his cell at any given time for the whole five years Plaintiff was housed at Buckley Unit. Any time an [inmate] would request to clean his cell the officer would not let him.” (Doc. 57 at 3). Plaintiff also alleges that while he was working as a porter, if he asked to have his cell door open, his request would be denied by the officers. (Doc. 57 at 3). Plaintiff disputes CO II Rabadan’s account of seeing Plaintiff walk into Plaintiff’s cell while Plaintiff worked as a porter because Plaintiff claims that CO II Rabadan worked in another building and did not have the opportunity to observe Plaintiff. (Doc. 57 at 2-3). Finally, Plaintiff alleges “All [inmates] were forced to purchase shampoo and towels from the prison commissary if they wished to clean their cells because there was no other alternative.” (Doc. 57 at 3).

         The Court notes that Defendant disputes whether the Court can consider Plaintiff’s allegations as evidence. Specifically, Defendant argues that Plaintiff did not present his evidence in the form of a sworn affidavit or declaration. (Doc. 62 at 3 (citing Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018), cert. den., 139 S. Ct. 480 (2018))). While it is true that in his opposition to the motion for summary judgment and his statement of facts Plaintiff did not present his personal testimony in the form of a sworn affidavit or declaration, Plaintiff did file his amended complaint under penalty of perjury. (Doc. 8 at 21). This Court may consider a verified complaint as “evidence” in opposition to a motion for summary judgment. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) Although the Court has cited Plaintiff’s response because it is directly responsive to the motion for summary judgment, all of Plaintiff’s allegations therein can be found in his verified complaint. (Doc. 8 at 15-19). Thus, the Court finds the record contains competent evidence.

         On this record, the Court finds a disputed issue of fact that precludes summary judgment on the merits of the first prong^[2] of Plaintiff’s claim, namely: whether the prison official’s acts or omissions deprived plaintiff of the minimal civilized measure of life’s necessities. Specifically, while Defendant avows that Plaintiff was given the opportunity to clean his cell, Plaintiff avows that the policy and provisions that would allow him to do so are, in reality, not followed or available. Further, Plaintiff directly contests CO II Rabadan’s account of him observing Plaintiff going into his cell while Plaintiff was working as a porter. Finally, Plaintiff claims that the condition persisted for five years, which is more than a single or temporary incident. (Doc. 57 at 3). On this record, there is a disputed issue of fact as to whether Plaintiff was permitted to clean his cell.^[3]

         III. Injury

         Defendant also seeks summary judgment claiming Plaintiff has failed to show he suffered an injury as a result of his alleged constitutional deprivation. (Doc. 45 at 14) (citing Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); see also Pierce v. County of Orange, 526 F.3d 1190');">526 F.3d 1190, [1223-24] (9th Cir. 2008); Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003)). Plaintiff claims he has ...