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Folta v. Burke

United States District Court, D. Arizona

March 29, 2019

Shawn Michael Folta, Plaintiff,
Dustin Burke; Russel Contreras; Richard Basso; and Michelle Schiavo, Defendants.



         Plaintiff Shawn Folta, who is represented by counsel, brought this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. Defendants are current or former officers of the Arizona Department of Corrections (ADC). Defendants Russell Contreras, Richard Basso, and Michelle Schiavo move for summary judgment. (Doc. 192.) Defendant Dustin Burke, who is separately represented, joins the Motion in part. (Doc. 193.) Plaintiff moves to strike Burke's Joinder. (Doc. 200.) The Motions are fully briefed. (Docs. 211, 229.) No. party has requested oral argument. For reasons stated below, the Court will grant in part and deny in part the Motion for Summary Judgment and deny as moot the Motion to Strike.

         I. Background.

         Plaintiff is a prisoner in ADC custody. He filed this action pro se, claiming violations of his constitutional rights based on his alleged assault in the Arizona State Prison Complex (ASPC)-Eyman in Florence, Arizona. (Doc. 1.) Plaintiff alleges that on April 7, 2014, Correctional Officer (CO) Burke became angry with Plaintiff because Plaintiff quoted policy to him when he failed to give Plaintiff a proper dinner tray. (Id. at 3). Burke asked Sergeant Contreras to pull Plaintiff out of his cell, after which Burke restrained Plaintiff's hands behind his back and pulled him into a blind spot in the hallway. (Id.) Burke then attacked Plaintiff from behind, pulled him up by his handcuffs, kneed him in the face, threw him head-first into a steel dinner cart, and punched him while he was on the ground. (Id.) Contreras and CO Basso helped Burke restrain Plaintiff and take him into an unsupervised area, and both of them witnessed the attack and failed to intervene. (Id. at 4-5.) On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated Eighth Amendment claims against Contreras, Basso, and Burke, and directed them to answer the claims. (Doc. 13.) The Court dismissed the remaining claims and Defendants. (Id.)

         Plaintiff subsequently filed a Motion for Leave to Amend and a proposed First Amended Complaint (FAC), in which he sought to amend Count Three to add claims against CO Schiavo and Deputy Warden Jeffrey Van Winkle, who had been dismissed from the original Complaint. (Docs. 48, 60 at 8.) On screening of the FAC, Magistrate Judge Eileen S. Willet issued a Report and Recommendation (“R&R”) in which she found that Plaintiff stated an Eighth Amendment deliberate indifference claim against Schiavo based on his allegations that Schiavo opened Plaintiff's cell door to facilitate his assault, but that Plaintiff failed to state a claim against Van Winkle. (Doc. 85.) The Court accepted the R&R, required Burke, Basso, and Contreras to answer Counts One, Two, and Three, required Schiavo to answer Count Three, and dismissed Van Winkle. (Doc. 104.)

         Defendants move for summary judgment based on Plaintiff's failure to exhaust his administrative remedies before filing this action and on the merits of Plaintiff's Eighth Amendment claims.

         II. Summary Judgment Standard.

         A party seeking summary judgment “bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is warranted where the moving party “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). Summary judgment is also appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 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).

         Only disputes over facts that might affect the outcome of the suit will preclude summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence must be viewed in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and all justifiable inferences are drawn in that party's favor because “[c]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, ” Anderson, 477 U.S. at 255.

         III. Facts.

         The facts are taken from Defendants' Corrected Statement of Facts (Doc. 223-1), Plaintiff's Controverting Statement of Facts (Doc. 211-1), Plaintiff's Corrected Statement of Additional Facts (Doc. 234-1), and the relevant exhibits in the record.[1] Where the parties' versions of events differ, the Court takes Plaintiff's facts as true. See Anderson, 477 U.S. at 255.[2]

         A. Exhaustion of Administrative Remedies.

         ADC Department Order (DO) 802, Inmate Grievance Procedure, sets forth the steps inmates must follow to complete the administrative grievance process for medical and non-medical complaints. (Doc. 223-1 ¶ 1.) As the first step to resolving a non-medical issue, an inmate must attempt to resolve the issue informally by discussing it with appropriate staff or by submitting an Inmate Informal Complaint Resolution, Form 802-11. (Id. ¶ 4.) If the inmate is unable to resolve the issue with relevant staff through this means, he may submit an Inmate Informal Complaint Resolution to his Unit CO III within 10 workdays of the action that caused the issue. (Id. ¶ 5.) The CO III must then investigate and attempt to resolve the issue and provide a response to the inmate within 15 days. (Id.)

         If the inmate's issue is not resolved informally through these first two steps, the inmate may submit a formal Inmate Grievance to his Unit CO IV Grievance Coordinator within 5 workdays of receiving the CO III's response to his Informal Complaint. (Id. ¶ 6.) An inmate may only grieve one issue per grievance form. (Id.) Within 15 days following receipt of the Inmate Grievance, the Deputy Warden must issue a written response to the inmate. (Id.) If the inmate receives an unfavorable response, he may appeal to the Warden within 5 workdays, and the Warden or the Warden's designee has 20 workdays to issue a written response to the inmate. (Id. ¶ 7.)

         If the inmate does not receive a favorable resolution to his issue after completing these steps at the unit and institution levels, he may appeal to the Director within 5 days of receiving the Warden's response. (Id. ¶ 8.) Upon receipt of an appeal to the Director, the Central Office Appeals Officer has 30 calendar days to prepare a response and submit it to the Director or the Director's designee for a signature. (Id. ¶ 9.) The Director's response is final and ends the administrative grievance process. (Id. ¶ 10.)

         If, at any time in the administrative grievance process, an inmate does not receive a response within the appropriate timeframe, he may proceed to the next step in the process the day after the response was due. (Id. ¶ 11.)

         The ADC Central Office maintains a computerized log of all non-medical Inmate Grievance Appeals to the Director. (Id. ¶ 12.) As part of this litigation, Officer Kepney searched this log for any grievances from Plaintiff regarding his allegations against Defendants. (Id.) Officer Kepney found that Plaintiff had fully grieved one non-medical grievance (Grievance #A30-131-014) against Burke for his alleged April 7, 2014 assault. (Id. ¶ 13; Doc. 191-2 at 28-35.) Officer Kepney claims that he did not find that Plaintiff had appealed any grievances to the Director's level regarding Contreras, Basso, or Schiavo's alleged actions in connection with the assault. (Doc. 223-1 ¶ 14; Doc. 191-2 (Kepney Decl.) ¶¶ 20-22.)

         B. April 7, 2014 Incident.

         On April 7, 2014, Plaintiff and his cellmate were housed in the ASPC-Eyman Special Management Unit, which is a maximum custody unit. (Doc. 223-1 ¶ 18.) Maximum custody inmates are considered the highest risk to staff and the public, and they are subject to controlled movement within the institution, whereby they are escorted in restraints by either one or two officers, depending on the circumstances. (Id.) These inmates also have limited work opportunities, require frequent monitoring, and eat their meals in their cells. (Id.)

         When two maximum custody inmates are housed together in the same cell, one officer must be present at the cell-front before the trap door may be opened, and two officers must be present at the cell-front before the cell door may be opened. (Id. ¶ 20; Doc. 191-5 (Basso Decl.) ¶ 5.) When removing a double-celled maximum custody inmate, the inmate is positively identified, and restraints are applied to both inmates in the cell before opening the cell door. (Id.) After both inmates are secured, the officer removing the inmate communicates to the Control Room Officer to unlock the cell door, the cell door is unlocked and opened, and the designated inmate is removed. (Id.) The cell door is then closed and locked, and the restraints are removed from the inmate remaining in the cell, while the escort of the removed inmate remains “hands on, ” meaning the officer maintains the ability to quickly take control of an aggressive or non-compliant inmate by pulling up on the inmate's secured arms, hands, or cuffs. (Id. ¶¶ 5-6.) Doing so puts pressure on the inmate's shoulder joints and allows the officer to redirect the inmate to the ground or wall to re-establish control of the inmate. (Id. ¶ 6.) This method of responding to an aggressive or non-compliant inmate is standard and accepted procedure within the ADC. (Id.)

         On April 7, 2014, at approximately 7:08 p.m., Burke and CO Queen began feeding inmates in the unit where Plaintiff and his cellmate were housed. (Doc. 223-1 ¶¶ 18, 32-33.) Burke wrote in a subsequent Use of Force/Incident Command Report[3] that he gave Plaintiff his dinner tray, and Plaintiff became irate about the portion of broccoli, yelled profanities, threatened to go on a hunger strike, became even more irate when Burke replied that he was not responsible for preparing the food trays but only for delivering them, and asked to speak to a sergeant. (Doc. 234-1 (Pl. Statement of Additional Facts) ¶ 7; Doc. 191-4 at 14.)

         After the inmate kitchen workers were returned to their cells or taken to the showers, Burke went to Contreras's office, located in the yard office where all the supervisors' offices were located, and informed Contreras that Plaintiff was upset about a food portion, had threatened to go on a hunger strike, and had asked to speak to a supervisor. (Doc. 223-1 ¶¶ 34, 36-37.)

         Contreras thought it would be prudent to remove Plaintiff from his cell so he could talk to Plaintiff one-on-one to resolve the situation and/or find out the reason for the hunger strike. (Id. ¶¶ 37; Doc. 191-4 (Contreras Decl.) ¶ 10.) Contreras opines that removing an inmate from the presence of other inmates to resolve an issue prevents other inmates from overhearing, interjecting, or interfering, and it facilitates resolution to have the inmate away from the pressure to perform a certain way in front of other inmates. (Contreras Decl. ¶ 10.) Consequently, Contreras advised Burke to take Plaintiff to the west yard holding cell so he could talk to Plaintiff there. (Id. ¶ 9.)

         Contreras was aware that Plaintiff had engaged in a hunger strike the week before, and he intended to interview Plaintiff, take him to medical to obtain his vitals, and place him on hunger strike status. (Id. ¶ 9.)[4] As a matter of practice, Contreras asked Burke if the issue was personal between him and Plaintiff, and Burke purportedly replied, “No, he's just upset about the food portion.” (Id. ¶ 8.)

         Following Contreras's directive, Burke proceeded back to Plaintiff's cell. (Doc. 223-1 ¶ 41.) At some point, while Burke was away, Basso asked Plaintiff: “What's up with you and Burke? Why is he so pissed?” (Doc. 234-1 ¶ 11; Doc. 192-2, Ex. B at 59-60 (Pl. Dep. at 74:19-75:6).) Another inmate returning from the kitchen also yelled to Plaintiff that Burke and Contreras were in the hallway discussing a plan to assault Plaintiff and they were going to ...

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