United States District Court, D. Arizona
G, CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.)
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.
Summary Judgment Standard.
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).
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.
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. Where the parties' versions of events
differ, the Court takes Plaintiff's facts as true.
See Anderson, 477 U.S. at 255.
Exhaustion of Administrative Remedies.
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.
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. ¶
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.)
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.)
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.) ¶¶
April 7, 2014 Incident.
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.)
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.
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 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.)
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.)
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.)
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.) 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.)
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 ...