United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
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).
Dorsey now moves for summary judgment on this Count. (Doc.
45).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).
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
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.
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.
Freemon v. Ryan, No. CV 09-1717-PHX-JAT, 2011 WL
5169342, at *5 (D. Ariz. Oct. 31, 2011).
“[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
Cockcroft v. Kirkland, 548 F.Supp.2d 767,
774–75 (N.D. Cal. 2008).
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).
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
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)).
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).
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
record, the Court finds a disputed issue of fact that
precludes summary judgment on the merits of the first
prong 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
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