Opinion
2:20-cv-01876-RAJ-DWC
02-23-2022
MATTHEW JOSEPH METCALF, Plaintiff, v. STEPHEN SINCLAIR, et al., Defendants.
Noting Dated: March 11, 2022
REPORT AND RECOMMENDATION
David W. Christel United States Magistrate Judge
Plaintiff filed this case under 42 U.S.C. § 1983. Dkt. 6. Before the Court is Defendants' motion for summary judgment. Dkt. 39. As discussed below, this motion should be granted.
COMPLAINT'S ALLEGATIONS
Plaintiff is a convicted and sentenced state prisoner who, in March of 2020, was housed at Monroe Correctional Complex (“MCC”). See Dkt. 6 at 5; Dkt. 6-1 at 2. Plaintiff alleges that, on March 16, 2020, he “complained of stomach pain to medical.” Dkt. 6 at 5. Thereafter, plaintiff continues, he “was placed in the Punitive isolation unit at TRU E unit, with prisoners suffering with COVID 19.” Id. Allegedly, in E-Unit, plaintiff was exposed to the following conditions:
Cells were unclean; I was denied personal hygiene; there was only cold blackish water; No showers, clean clothes, No heat, No tv, radio . . ., [or] a Bible or other religious materials or any reading material . . . to exercise his mind. Plaintiff was not permitted out of his cell, not even for exercise. His cell was to[o] small . . . to exercise ....Id. at 5-6.
Plaintiff alleges that he was housed in the E unit from March 16, 2020 to April 2, 2020. Id. Plaintiff further alleges that, at some point, he “climbed up on the upper bunk . . . to distance himself from the” “cold radiating from the cement floors.” Id. at 11. Yet, according to plaintiff, the “guards” gave him a Negative Behavior Report (“BOE”) “for being in the wrong bed.” Id.
Plaintiff alleges that he “had a right to practice his religion while being kept in ‘E' unit.” Id. at 16. But Plaintiff adds that “Chaplain Fisher refused to provide [him] with a Bible so that he could practice[] his religion by studying scripture.” Id.
Plaintiff alleges that, while in E-Unit, he “filed several grievances that were either throw[n] away or lost.” Id. at 6. Yet Plaintiff alleges that an emergency grievance filed on March 17, 2020 was discovered after he left E-Unit. See id.; Dkt. 6-1 at 2. At some point, according to plaintiff, “staff” told him that “they did not want to see any more grievances being filed about the units['] condition.” Dkt. 6 at 17. Plaintiff adds that “his grievances were thrown away and or not properly processed . . . to prevent [him] from exposing the conditions of the ‘E' unit.” Id. at 18.
Plaintiff alleges that E-Unit's conditions were cruel and unusual in violation of the Eighth Amendment. Id. at 6. Plaintiff further alleges that E-Unit's conditions amounted to “Punitive Isolation” that violated due process. Id. at 12-14. Additionally, plaintiff alleges that E-Unit's conditions violated equal protection because they were “substantially harsher than other similar[ly] situated Medical isolations.” Id. at 15.
Plaintiff alleges various First Amendment violations based on separate theories. First, Plaintiff contends that his right to religious freedom was violated because “Bibles and other religious items [were not allowed] into ‘E-unit.'” Id. at 16. Second, plaintiff alleges that, after he tried to expose E-Unit's conditions, he experienced retaliation because his grievances were “thrown away and or not properly processed” and he received a negative BOE. Id. at 18. Plaintiff also alleges a First Amendment violation based on the denial of his right of access to the courts. Id. at 17. In support, Plaintiff alleges that he could not access the court “without . . . first being able to exhaust the grievance process/remedy.” Id.
Moreover, Plaintiff alleges a violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) based on the allegations underlying his First Amendment free exercise claim. Id. at 20. Plaintiff alleges a violation of Article 1, § 22 of the Washington State Constitution based on the same allegations. Id. at 21.
Plaintiff does not expressly allege the relief he seeks. See generally Dkt. 6. However, plaintiff alleges that these purported violations of federal and state law caused him depression, anxiety, stress, sleeplessness, and physical pain that aggravated his stomach pain. See, e.g., Dkt. 6 at 6, 13, 21. Therefore, liberally construed, Plaintiff's complaint seeks damages. Cf. Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002) (suggesting that a complaint may be “consistent with a claim” for damages even if they are not “expressly requested”).
Plaintiff sues the following Defendants in their individual and official capacities: (1) Stephen Sinclair, former Secretary of the Washington Department of Corrections (“DOC”); (2) HQ Incident Commander; (3) the DOC; (4) Scott Russell, DOC Deputy Director; (5) MCC/WSR; (6) Mike Obenland, former WSR Superintendent; (7) Eric Jackson, MCC Superintendent; (8) Michelle Wood, MCC Associate Superintendent; (9) Captain Frantz; and (10) Chaplain Fischer. See id. at 1, 3-4, 7.
“WSR” stands for “Washington State Reformatory.” Dkt. 6 at 2.
Plaintiff erroneously spelled Defendant Fischer's surname as “Fisher” in the complaint.
PROCEDURAL BACKGROUND
Defendants answered. Dkt. 16. The Court issued a scheduling order. Dkt. 17. On January 5, 2022, Defendants moved for summary judgment. Dkt. 39. In support, Defendants filed the declarations of Defendants Russell, Jackson, and Fischer. Dkts. 40-42.
On January 20, 2022, attorney Darryl Parker entered an appearance on behalf of Plaintiff. Dkt. 44. On January 31, 2022, through Mr. Parker, Plaintiff filed a response. Dkt. 45. Plaintiff submitted his own affidavit to support his response. Dkt. 47. Mr. Parker also submitted an affidavit, although it states counsel's opinion on the case's merits and is largely irrelevant to the issues before the Court. Dkt. 46. Defendants replied. Dkt. 48.
SUMMARY JUDGMENT STANDARD
Summary judgment is only proper where the materials in the record show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a), (c). “A ‘material' fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation omitted). A disputed material fact is genuine only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted).
When reviewing a motion for summary judgment, the court must believe the nonmoving party's evidence and draw all reasonable inferences in his or her favor. T.W. Elec. Serv., 809 F.2d at 630-31. Also, the court must avoid weighing conflicting evidence or making credibility determinations. Id. at 631.
“A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). “Likewise, mere . . . speculation do[es] not create a factual dispute for purposes of summary judgment.” Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (citation omitted). Moreover, “[a] mere scintilla of evidence supporting the non-moving party's position is insufficient[ to survive summary judgment].” Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citation omitted).
THE PARTIES' EVIDENCE
I. Defendants' Evidence
Defendants filed the declarations of Defendants Russell, Jackson, and Fisher. Dkts. 4042. Defendant Fischer's declaration is under penalty of perjury. Dkt. 42 at 1. Defendant Russell's and Jackson's declarations are not sworn to under penalty of perjury. Dkt. 40 at 5; Dkt. 41 at 5. However, Plaintiff, who is represented by counsel, did not object to the evidence. As Plaintiff has not objected to the validity of these two declarations, the Court will consider them as evidence.
A. Defendant Jackson
Defendant Jackson declares as follows:
Defendant Jackson is the Superintendent at MCC. Dkt. 41 ¶ 2. MCC consists of several separate incarcerated individual living units, including the MCC Twin Rivers Unit (“TRU”). Id. ¶ 4. Defendant Jackson's duties as Superintendent included planning, organizing, and directing all operations of TRU. Id. ¶ 2. In addition to his duties as Superintendent, Defendant Jackson served as Incident Commander for MCC in March 2020. Id. ¶ 3. “[A]s part of COVID-19 mitigation response, the incident commanders received direction from HQ Unified Command and insured those protocols [were] being implemented locally, while managing any additional issues that came up locally.” Id.
“With the onset of COVID-19 in March 2020, there became an urgent need to separate and isolate individuals suspected or confirmed to have COVID-19 and a means to isolate them from the rest of the population.” Id. ¶ 6. “This was important to mitigate any spread of the virus to the rest of the prison population as well as the staff.” Id. Therefore, Defendant Jackson “authorized opening E-Unit at [TRU] as a predetermined place . . . to house those individuals.” Id. ¶ 7. Because E-Unit “had not been an active, operating housing unit for some time, maintenance and custody staff were responsible [for] preparing the [it] for inmate use.” Id. Before the E-Unit opened, maintenance staff informed Defendant Jackson that it was operational. Id.
After E-Unit “began to receive incarcerated individuals who required COVID-19 isolation or quarantine, maintenance issues arose.” Id. ¶ 8. Once Defendant Jackson became aware of those issues, “maintenance staff were brought in immediately to provide any repairs,” with those “repairs occurring quickly.” See id. Also, accommodations were made until the maintenance issues could be resolved. Id. For instance, when “the heat went out, incarcerated individuals were provided with extra blankets until the heat could be repaired.” Id. “When the water coming out of the faucets required a system ‘flush' in order to remove discoloration due to no recent use of the plumbing prior to opening [E-Unit], incarcerated individuals were provided clean/potable water from alternate sources.” Id.
Prisoners in E-Unit were not provided shower use when it first opened. Id. ¶ 9. This was because protocols required that isolated individuals not receive “the opportunity to shower for a specific amount of time to reduce the spread of [] COVID-19.” See id. Instead, prisoners received “washbasins and toiletry items to maintain personal hygiene.” Id. Once medical staff informed Defendant Jackson that showering was safe, starting March 28, 2020, showers were offered to prisoners in E-Unit on a rotating basis.” See id.
Prisoners in E-Unit “were also restricted in out of cell recreation time as there was concern about the spread of [] COVID-19.” Id. ¶ 11. “All efforts were made to provide [prisoners] with playing cards, reading material, radios[,] and other items at no cost as they became available.” Id.
Medical staff determined which prisoners were to be placed in E-Unit “due to the need for isolation or quarantine.” Id. ¶ 14. “Medical and mental health staff also were responsible for performing regularly scheduled visits to [E-Unit] to attend to any necessary medical or mental health needs of the [prisoners].” Id.
B. Defendant Russell
Defendant Russell declares as follows:
Defendant Russell is the Deputy Director of the DOC's Health Services Division. Dkt. 40 ¶ 2. Defendant Russell has “been closely involved in the [DOC's] response to the COVID-19 pandemic.” Id.
In February 2020, DOC opened its Emergency Operations Center, partly to “oversee the [DOC's] own response to the pandemic.” Id. ¶ 6. “In consultation with [DOC] headquarters staff . . ., prison facilities made determinations on best practices to house inmates who required quarantine or isolation status to avoid the spread of the virus.” Id. ¶ 11. These efforts were “especially crucial at the early onset of the pandemic in March 2020.” Id. “The urgent need to remove inmates from their housing units that could require quarantine or isolation status was paramount to mitigate any spread of [COVID-19] to the rest of the prison and staff population.” Id. “Because at that time most prisons did not have a lot of ‘active' empty housing units, prison facilities were finding ways to create space that could house inmates on quarantine or isolation status.” Id. “This included re-opening housing units that had not been operational for some time.” Id.
In March 2020, MCC reopened E-Unit for prisoners who “were required to be quarantined.” Id. ¶ 12. “Nursing staff were present in [E-Unit] and inmates who requested additional medical [care] had the ability to submit medical kites.” Id. “A provider (Nurse Practitioner, Physician's Assistant or M.D.) rotated in [E-Unit] two to three days a week.” Id.
C. Defendant Fischer
Defendant declares as follows:
Defendant Fischer worked as MCC's chaplain at all relevant times. See Dkt. 42 ¶ 1.
When E-Unit was opened to house COVID-19 patients, not a lot “was . . . known about how the virus was spread.” Id. ¶ 3. Therefore, DOC medical staff “were responsible for making determinations based on inmate health and safety concerns related to particular housing needs.” Id. “Staff were instructed that paper needed to be destroyed to prevent spreading the virus to others.” Id. “If a bible was provided to an individual in isolation, the bible would have to be destroyed after the individual left isolation.” Id.
“Due to the limited number available, [Defendant Fischer] did not feel destroying a bible after a few weeks of use would be a wise stewardship of donated bibles.” Id. ¶ 4. Therefore, instead of giving prisoners in E-Unit bibles, Defendant Fischer “provided other religious materials that could be destroyed after the individual left isolation.” Id. “This included pamphlets or photocopies of religious readings.” Id.
When Plaintiff arrived at E-Unit, he requested a bible. Id. ¶ 5. Defendant Fischer did not give him one because it “would have been destroyed after he left isolation.” Id. Instead, Defendant Fischer provided Plaintiff with a copy of “the Gospel of John.” Id.; Dkt. 42-2 at 39. Defendant Fischer considering this “an adequate amount of religious material to sustain any Christian spiritually during the 17 days [Plaintiff] was in [i]solation.” Dkt. 42 ¶ 5.
II. Plaintiff's Evidence
A. Plaintiff's Declaration
Plaintiff declares as follows:
On March 16, 2020, Plaintiff informed DOC medical staff that he was experiencing abdominal pain. Dkt. 47 ¶ 3. The following morning, Physicians Assistant Phu Ngo and Nurse Darren, both nondefendants, took Plaintiff's temperature and blood pressure, which were normal. Id. ¶ 4. Shortly thereafter, an unnamed correctional officer told plaintiff that he would be placed in E-Unit. Id. ¶ 5. However, Plaintiff was not sick and was not tested for COVID-19 before this placement. Id.
Plaintiff refers to E-Unit as a “Punitive Isolation Unit (PIU).” Dkt. 47 ¶ 5. However, there is no evidence that any DOC officials referred to E-Unit as PIU. Rather, this designation reflects Plaintiff's argument that E-Unit was punitive. Therefore, the Court refers to E-Unit by its regular name, not Plaintiff's designation.
Upon entering E-Unit, Plaintiff “was forced to strip out of all of [his] clothes and [] ordered to put on clothes that were old, smelly[,] and appeared to have mold on them.” Id. ¶ 6. Plaintiff “was then taken to a cell that was cold and disgusting.” Id. ¶ 7. “It had mold[] [and] the temperature in the cell was 40 degrees.” Id. “There was pink ins[u]lation material that appeared to be asbestos.” Id. “There was no hot water at all, and the cold-water faucet was running black.” Id. “The toilet . . . was covered in mold.” Id. “There was an old lumpy mattress on the floor, and [Plaintiff was] given blankets to put on them.” Id. “There were no showers and after a few days [Plaintiff was] given a cold bucket of water if [he] want[ed] to wash [himself].” Id. ¶ 8. Two weeks went by before Plaintiff could shower, which was “just once.” Id.
On the fourteenth day in E-Unit, “staff managed to get the temperature above fifty degrees, but it was still bone-chillingly cold.” Id. ¶ 9. “Because of the cold and [his] abdominal pain, [Plaintiff] was hurting and physically suffering for 17 days.” Id.
Plaintiff was not tested for COVID-19 during his 17-day isolation. Id. ¶ 10. Nor was he “permitted time outside of [his] cell, as inmates in solitary confinement are normally allowed to have.” Id. ¶ 11. Furthermore, “DOC staff did not provide [Plaintiff] with any medical treatment for [his] pain [or] allow [him] basic human necessities to maintain [his] personal hygiene throughout [his] time in isolation.” Id. “During this time, [Plaintiff] filed an emergency grievance regarding the lack of medical care and necessities . . . and never received a response.” Id.
On April 2, 2020, Plaintiff was released from isolation.” Id. ¶ 12. He filed multiple grievances about his experiences in E-Unit and “each grievance was either thrown away or lost by DOC employees and staff.” Id. Plaintiff “filed a grievance with regards to [his] lost grievances and received a response stating that [he] had not filed any other grievances in the past.” Id.
“Because of [his] prolonged isolation, [Plaintiff] suffered from anxiety, depression, mental distress, and humiliation.” Id. ¶ 13. Plaintiff also “suffered from a loss of sleep and severe discomfort due to the anxiety of being housed with other individuals who had tested positive for” COVID-19. Id.
“DOC employees possessed prior knowledge of the inhumane conditions within [E-Unit] and ultimately chose to move [Plaintiff there] despite [his] lack of a positive” COVID-19 test. Id. ¶ 14.
The Court does not consider the allegations in Plaintiff's complaint as evidence on summary judgment because Plaintiff has submitted a declaration under penalty of perjury and the Court is considering that evidence. Plaintiff, whom counsel represents, has not asked the Court to consider the allegations in his unsworn complaint as evidence for summary judgment purposes.
B. Plaintiff's Grievances
On March 17, 2020, Plaintiff filed an emergency grievance (Log ID number 20700107) complaining about the conditions in E-Unit, including cold temperatures and no hot water. Dkt. 6-1 at 2. A note on the grievance states that this grievance “was discovered” on April 1, 2020 and “picked up” on April 3, 2020. Id. On April 9, 2020, nondefendant B. Blair, a grievance coordinator, responded to this grievance. Id. Coordinator Blair stated that Plaintiff grieved “2 complains on [the] same issue” and thus instructed him to rewrite his grievance into “1 compla[i]nt” and return in by April 16, 2020. Id.
On May 15, 2020, Plaintiff filed an appeal of Log ID number 20700107. Id. at 4. On June 26, 2020, Defendant Jackson responded to Plaintiff's appeal. Id. Defendant Jackson stated that “[d]ecisions regarding the operation of [E-Unit] for COVID 19 were made by the facility Captain, facility Superintendent, local Incident Commander[,] and the HQ Incident Commander.” Id. Further, Defendant Jackson stated that “Captain Frantz went to [E-Unit] daily to speak to [prisoners] and staff in an attempt to address and resolve issues.” Id. Additionally, Defendant Jackson stated:
Initially, the heat and water temperature were not consistent and were colder than average. Items allowed in were restricted, to include religious material. Items were not allowed to leave the unit and were destroyed, this included commissary items and some personal property. Showers were delayed, and so was clothing exchange.Id.
Defendant Jackson also stated that Plaintiff's complaint had merit, “as stated in the Level I.” Defendant Jackson added that most of the changes made to address “these issues” “occurred after [his] release” from E-Unit. Id.
Plaintiff's Level I response, assuming one exists, is not in the record.
On July 2, 2020, Plaintiff filed an appeal to the third level. Id. at 6. On August 4, 2020, DOC Administrator Tim Thrasher, a nondefendant, issued a response noting that Plaintiff's grievance had merit and stating that he agreed with the Level I and II responses.
LEGAL ANALYSIS
I. Defendants DOC and MCC/WSR
Plaintiff sues DOC and MCC/WSR. See supra pp. 3-4. However, states and state agencies are not “persons” under § 1983. See Pittman v. Oregon, Emp. Dep't, 509 F.3d 1065, 1071-72 (9th Cir. 2007) (citations omitted). Therefore, § 1983 actions do not lie against states or their agencies. See id.; see also Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 69-70 (1997); Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70 (1989)). Accordingly, summary judgment should be granted to Defendants on Plaintiff's claims against Defendants DOC and MCC/WSR.
II. Official-Capacity Claims
Plaintiff sues all Defendants in their official capacities and seeks only damages. See supra pp. 3-4. “States, state agencies, and state officers sued in their official capacities are absolutely immune from damage actions in federal court pursuant to the Eleventh Amendment, unless the state consents to suit.” Lojas v. Washington, No. CV-07-0140-JLQ, 2008 WL 1837337, at *7 (E.D. Wash. Apr. 22, 2008). And the state of Washington has not waived this “immunity in the federal courts.” Hanson v. Washington State Patrol, No. 13-CV-0166-TOR, 2013 WL 4518594, at *2 (E.D. Wash. Aug. 26, 2013) (citations omitted). Therefore, the Eleventh Amendment bars Plaintiff's official-capacity claims. Accordingly, summary judgment should be granted to Defendants on these claims.
III. Personal Involvement and Causation
“Section 1983 has a causation requirement, with liability extending to those state officials who subject, or cause to be subjected an individual to a deprivation of his federal rights.” Lacey v. Maricopa Cty., 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (alterations adopted) (internal quotation marks omitted). “A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Id. (citing Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “Moreover, personal participation is not the only predicate for section 1983 liability.” Id. (citing Duffy, 588 F.2d at 743). “Anyone who ‘causes' any citizen to be subjected to a constitutional deprivation is also liable.” Id. (quoting Duffy, 588 F.2d at 743). “The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Id. (citing Duffy, 588 F.2d at 743). “The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citations omitted).
Here, no evidence suggests that Defendant Sinclair, Obenland, or Wood personally participated in the alleged constitutional violations or otherwise caused them. True, Defendant Jackson states in his response to Plaintiff's appeal that “[d]ecisions regarding the operation of [EUnit] for COVID 19 were made by the facility Captain, facility Superintendent, local Incident Commander[,] and the HQ Incident Commander.” Dkt. 6-1 at 4. Potentially, this statement could support an inference that these unnamed DOC officials were involved in the operation of E-Unit and, hence, involved in the alleged constitutional violations. However, no evidence suggests that, in mentioning these unnamed officials, Defendant Jackson was referring to Defendant Sinclair, Obenland, or Wood. Rather, the only evidence is that Defendant Frantz is the “facility Captain” and that Defendant Jackson himself is the “local Incident Commander.” See id.; Dkt. 41 ¶ 3. Furthermore, there is no evidence that any specifically named Defendant is the “HQ Incident Commander.” See Dkt. 41 ¶ 3. Indeed, Plaintiff sues the “HQ Incident Commander” as a doe defendant. Dkt. 6 at 1. Therefore, Defendant Jackson's response to Plaintiff's appeal does not support a reasonable inference that Defendants Sinclair, Obenland, and Wood were personally or causally involved in the alleged constitutional violations.
Similarly, Defendants contend in their motion for summary judgment that Plaintiff has failed to show that Defendants Sinclair, Obenland, and Wood participated in the alleged constitutional violations. See Dkt. 39 at 12-13. In his response, Plaintiff did not meaningfully dispute Defendants' assertion. See Dkt. 45 at 6. This observation strengthens the conclusion that no evidence supports a reasonable finding that Defendants Sinclair, Obenland, and Wood were personally or causally involved in the alleged violations of federal law.
For these reasons, the Court should grant summary judgment to Defendants on Plaintiff's individual-capacity claims against Defendants Sinclair, Obenland, and Wood.
Defendant Wood participated in the investigation of Plaintiff's grievance. Dkt. 6-1 at 4. However, this investigation occurred after Plaintiff left E-Unit. Furthermore, prisoners do not have a due process right to a “specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citation omitted). Therefore, Plaintiff's allegations against Defendant Wood present no genuine issues for trial.
IV. Eighth Amendment
Plaintiff alleges that E-Unit's conditions were cruel and unusual in violation of the Eighth Amendment. Dkt. 6 at 6.
The Eighth Amendment protects prisoners from inhumane methods of punishment and inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Where the plaintiff challenges his conditions of confinement, he must make two showings. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “First, the plaintiff must make an ‘objective' showing that the deprivation was ‘sufficiently serious' to form the basis for an Eighth Amendment violation.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “Second, the plaintiff must make a ‘subjective' showing that the prison official acted ‘with a sufficiently culpable state of mind.'” Id. (quoting Wilson, 501 U.S. at 298).
Objectively, “only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citation omitted). “This requires the inmate to demonstrate ‘conditions posing a substantial risk of serious harm' that present an ‘excessive risk to his health or safety.'” Norbert v. City & Cty. of San Francisco, 10 F.4th 918, 927 (9th Cir. 2021) (alteration adopted) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety. Johnson, 217 F.3d at 731 (citations omitted); see also Norbert, 10 F.4th at 928-29 (“We have recognized that exercise is one of the basic human necessities protected by the Eighth Amendment.” (citation and internal quotation marks omitted)). “The circumstances, nature, and duration of a deprivation of these necessities must be considered in determining whether a constitutional violation has occurred.” Johnson, 217 F.3d at 731. “Some conditions of confinement may establish an Eighth Amendment violation ‘in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise-for example, a low cell temperature at night combined with a failure to issue blankets.” Wilson, 501 U.S. at 304 (emphasis omitted).
Subjectively, “an Eighth Amendment violation requires a showing that the subjective state of mind of the prison officials was culpable.” Johnson, 217 F.3d at 733 (citing Wilson, 501 U.S. at 298-99). For this to be so, the official must have acted with “deliberate indifference.” Id. (citing Wilson, 501 U.S. at 303). “The deliberate indifference standard requires the plaintiff to prove that ‘the official knows of and disregards an excessive risk to inmate health or safety .... '” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “[T]he 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. “Whether an official possessed such knowledge ‘is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.'” Johnson, 217 F.3d at 734 (quoting Farmer, 511 at 842).
“In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844. “A prison official's duty under the Eighth Amendment is to ensure reasonable safety, a standard that incorporates due regard for prison officials' unenviable task of keeping dangerous men in safe custody under humane conditions.” Id. at 844-45 (citations and internal quotation marks omitted).
Here, Plaintiff states that, for 17 days, he was housed in a moldy cell whose temperatures were in the 40s and 50s. Supra p. 10. Furthermore, Plaintiff states that he was forced to wear “old, smelly” clothes not allowed out of his cell to exercise the entire time he was in E-Unit. See supra p. 10; Dkt. 6-1 at 6. Plaintiff also states that, because of the cold and his abdominal pain, he “was hurting and physically suffering for 17 days.” Dkt. 47 ¶ 9. The Court assumes arguendo that, in combination, these conditions posed a substantial risk of serious harm to Plaintiff. See Dixon v. Godinez, 114 F.3d 640, 643 (7th Cir. 1997) (“It is true that most successful Eighth Amendment claims often involve allegations of cold in conjunction with other serious problems.” (citations omitted)); LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (“Exercise has been determined to be one of the basic human necessities protected by the Eighth Amendment.”).
A reasonable juror could not conclude that Plaintiff was exposed to asbestos in E-Unit. He states, without further factual support, that there “was pink ins[u]lation material that appeared to be asbestos.” Dkt. 47 ¶ 7 (emphasis added). Such “sweeping conclusory allegations” are insufficient to create a genuine dispute of material fact. See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (citation omitted). Plaintiff's allegations that he was exposed to mold in his cell, though no model of specificity, are more detailed than the isolated allegation that his cell had insulation that appeared to contain asbestos. See supra p. 10.
The question, then, is whether a reasonable juror could conclude that any remaining Defendant-Fischer, Russell, Jackson, Frantz, or HQ Incident Commander-was deliberately indifferent to the risk these conditions posed.
Regarding Defendant Fischer, no reasonable juror could so conclude. There is no evidence that Defendant Fischer, as MCC's Chaplain, knew about the conditions in E-Unit. The fact that Defendant Fischer provided Plaintiff a copy of the Gospel of John does not, without more, support a reasonable inference that he knew about the conditions in Plaintiff's cell. And, even if Defendant Fischer knew about the conditions, there is no evidence that he was “responsible for” addressing them. See McGuckin v. Smith, 974 F.2d 1050, 1062 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). So summary judgment should be granted to Defendants on Plaintiff's Eighth Amendment claim against Defendant Fischer.
Likewise, no reasonable juror could conclude that Defendant Russell was aware of EUnit's conditions. Defendant Russell declares that he was involved in the DOC's response to the COVID-19 pandemic, including the implementation of a policy to isolate prisoners suspected of having the virus. See supra p. 8. However, without more, this fact does not support a reasonable inference that Defendant Russell was aware of the conditions at issue. Plaintiff's conclusory allegation that “DOC employees possessed prior knowledge of the inhumane conditions within the isolation unit and chose to move [him there]” fails to show otherwise. Dkt. 47 ¶ 14. Plaintiff does not specify these individuals or explain on what factual basis they possessed such knowledge. See Cafasso, 637 F.3d at 1061. In short, no facts support a reasonable inference that Defendant Russell knew of E-Unit's subject conditions. So summary judgment should be granted to Defendants on Plaintiff's Eighth Amendment claim against him.
Now the Court must address Defendants Jackson, Frantz, and HQ Incident Commander. Drawing all reasonable inferences in Plaintiff's favor, the evidence supports a reasonable inference that these Defendants knew of E-Unit's conditions. Defendant Jackson declares that he opened E-Unit and became aware of the maintenance issues that arose there. Dkt. 41 ¶ 8. Furthermore, in his response to Plaintiff's appeal, Defendant Jackson stated that “[d]ecisions regarding the operation of [E-Unit] for COVID 19 were made by the [Captain Frantz], [himself][,] and the HQ Incident Commander.” See Dkt. 6-1 at 4. Because Defendant Jackson was responding to Plaintiff's grievance about these conditions, this remark supports a reasonable inference that these Defendants knew of the subject conditions. Indeed, Defendant Jackson states that “Captain Frantz went to the unit daily to speak to incarcerated individuals and staff in an attempt to address and resolve issues [i]n E unit.” Id.
That a reasonable juror could conclude these Defendants knew of E-Unit's conditions does not end the Eighth Amendment inquiry. As noted, “[t]he deliberate indifference standard requires the plaintiff to prove that the official knows of and disregards an excessive risk to inmate health or safety.” Johnson, 217 F.3d at 733 (emphasis added) (citation and internal quotation marks omitted). And, again, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
Here, no reasonable juror could conclude that the subject Defendants disregarded EUnit's conditions. For similar reasons, a reasonable juror could only conclude that they reasonably responded to these conditions.
Regarding cold temperatures, Defendant Jackson contends that, when “the heat went out, incarcerated individuals were provided with extra blankets until the heat could be repaired.” Dkt. 41 ¶ 8. Plaintiff does not dispute this assertion and admits that he received “blankets.” Dkt. 47 ¶ 7. Therefore, a reasonable juror could only conclude that Plaintiff received extra blankets to cope with his cell's cold temperatures. This measure reflects concern, not indifference, to this condition. Cf. Wilson, 501 U.S. at 304 (suggesting that blankets are an appropriate response to cold cell temperatures at night); Johnson, 217 F.3d at 732 (suggesting that blankets may provide adequate projection from subfreezing temperatures). Likewise, Plaintiff admits that prison officials were working to fix the lack of heat in E-Unit during his isolation. See Dkt. 6-1 at 2 (grievance stating that prison officials took the temperature in Plaintiff's cell one day after his placement in E-Unit); Dkt. 47 ¶ 9 (Plaintiff's declaring that “staff managed to get the temperature [higher]” after two weeks).
Regarding water access, Plaintiff declares that “[t]here was no hot water at all, and the cold-water faucet was running black.” Dkt. 47 ¶ 7. He further declares that “[t]here were no showers and after a few days [he was] given a cold bucket of water if [he] want[ed] to wash [himself].” Id. ¶ 8.
A reasonable juror could not conclude that Defendants disregarded these conditions. Defendant Jackson declares that, “[w]hen the water coming out of the faucets required a system ‘flush' in order to remove discoloration due to no recent use of the plumbing prior to opening [EUnit], incarcerated individuals were provided clean/potable water from alternate sources.” Dkt. 47 ¶ 8. Plaintiff has not disputed that DOC officials flushed the faucets. Furthermore, he basically concedes that he received clean water from alternate sources. See Dkt. 47 ¶ 8. Plaintiff counters that the water was cold. But the mere fact that Plaintiff received clean yet cold water on a temporary basis does not support a reasonable finding that Defendants disregarded his alleged right to hot water. See Hopkins v. Klindworth, 556 Fed.Appx. 497, 499 (7th Cir. 2014) (Generally, “[p]risoners do not have a constitutional right to hot water under the Eighth Amendment.” (citation omitted)); Adcock v. Burton, No. 2:20-CV-0035 KJN P, 2020 WL 3073334, at *3 (E.D. Cal. June 10, 2020) (“Generally, the short-term failure to provide hot water does not violate the Eighth Amendment.”).
Similarly, Plaintiff declares that he lacked shower access while in E-Unit. According to Defendant Jackson, when E-Unit first opened, protocols precluded isolated prisoners from receiving “the opportunity to shower for a specific amount of time to reduce the spread of [] COVID-19.” Dkt. 41 ¶ 9. But Plaintiff does not meaningfully dispute Defendant Jackson's assertion that prisoners received “washbasins and toiletry items to maintain personal hygiene.” Id. As noted, Plaintiff admits that he received a “bucket” of cold water for “wash[ing himself].” Dkt. 47 ¶ 8. Furthermore, although Plaintiff declares that he did not receive “basic human necessities to maintain [his] personal hygiene throughout [his] time in isolation,” Id. ¶ 11, this statement is conclusory. Plaintiff does not explain what items Defendants failed to provide or how he could not maintain personal hygiene. Additionally, Plaintiff admits that he was able to shower once after about two weeks. Id. ¶ 8. This statement supports Defendant Jackson's assertion that E-Unit's prisoners started receiving showers on March 28, 2020, after medical staff informed him showering was safe. See Dkt. 41 ¶ 9. These facts do not support a reasonable inference that the subject Defendants were disregarding Plaintiff's right to shower. Cf. McFarland v. Kullojka, No. C18-457-JCC-JPD, 2019 WL 937237, at *5 (W.D. Wash. Jan. 30, 2019) (8-day deprivation of showers “w[as] not sufficiently serious to implicate Eighth Amendment concerns”), report and recommendation adopted, 2019 WL 934948 (W.D. Wash. Feb. 26, 2019); Pamer v. Schwarzenegger, No. CIV S-07-1902-MCE, 2010 WL 5418867, at *5 (E.D. Cal. Dec. 23, 2010) (“[A] one time denial of a shower for 15 days is insufficient [to violate the Eighth Amendment].”), report and recommendation adopted, 2011 WL 1221198 (E.D. Cal. Mar. 29, 2011).
It is undisputed that Plaintiff was not allowed to leave his cell for exercise. But it is also undisputed that, after the pandemic started, Plaintiff told medical staff that he had abdominal pain and that he was sent to E-Unit. See Dkt. 47 ¶¶ 3, 5. Likewise, Plaintiff does not meaningfully dispute the assertions of Defendants Jackson and Russell that: (1) DOC officials created E-Unit to house prisoners suspected or confirmed to have COVID-19 to isolate them from the rest of the prison population by way of mitigating the spread of the virus; and (2) medical staff determined which prisoners would be placed in E-Unit. See Dkt. 40 ¶¶ 11-12; Dkt. 41 ¶¶ 3, 6, 14. Therefore, a reasonable juror could only conclude that medical staff decided that Plaintiff should be placed into E-Unit. Plaintiff disputes the propriety of this decision, stating that he was not sick or tested for COVID-19 beforehand. Dkt. 47 ¶ 5. However, the subject Defendants reasonably could have deferred to this medical determination. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (“If a prisoner is under the care of medical experts . . ., a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.”); cf. Peralta v. Dillard, 744 F.3d 1076, 1086-87 (9th Cir. 2014) (medical official with “largely administrative” role in a prisoner's medical care could rely on the medical opinions of treating medical staff). And letting Plaintiff out of his cell for exercise, outdoor or indoor, would have thwarted the very purpose of his isolation. See Dkt. 41 ¶ 11.
Furthermore, Defendant Jackson declares that, despite the restrictions on out-of-cell recreation, “[a]ll efforts were made to provide [prisoners] with playing cards, reading material, radios[,] and other items at no cost as they became available.” Id. Similarly, Defendant Fischer declares that he provided Plaintiff with a copy of the Gospel of John. Dkt. 42 ¶ 5. Plaintiff has not disputed these averments. Thus, the evidence shows that DOC officials sought to provide Plaintiff with ways to exercise his mind despite his 17-day isolation.
In sum, the evidence shows that DOC medical staff decided to isolate Plaintiff to try to control the spread of COVID-19 at MCC. It is also beyond dispute that “COVID-19 presented a public health crisis unlike any that we have encountered in our time.” Fraihat v. U.S. Immigr. & Customs Enf't, 16 F.4th 613, 639 (9th Cir. 2021) (citation omitted). Additionally, the evidence shows that DOC officials provided Plaintiff with means of exercising his mind while in isolation. On these facts, no juror reasonable could conclude that the subject Defendants deliberately disregarded Plaintiff's need for exercise. And, for the same essential reasons, a reasonable juror could only conclude that the subject Defendants took reasonable efforts to remedy Plaintiff's deprivation of indoor and outdoor physical exercise.
Plaintiff alleges that his cell had mold. Dkt. 47 ¶¶ 6-7. There is no evidence that the subject Defendants made any efforts to remedy this alleged condition. However, plaintiff's allegations regarding mold are quite general. See id. Plaintiff does not describe the appearance or smell of the alleged mold or provide any other allegations explaining the factual basis for his determination that the cell had mold. Furthermore, Plaintiff has not alleged that the purported mold caused him any physical injury. Rather, he alleges that, “[b]ecause of the cold and [his] abdominal pain, [Plaintiff] was hurting and physically suffering for 17 days.” Dkt. 47 ¶ 9 (emphasis added). That is, Plaintiff attributes the physical pain he experienced in E-Unit to cold temperatures and his preexisting abdominal pain. See id. In short, Plaintiff's allegations of mold in his cell lack factual support and do not support a reasonable inference that the purported mold caused Plaintiff any physical injury. Therefore, even if the subject Defendants knew about the alleged mold, the evidence does not support a reasonable finding that they actually drew the inference it posed a substantial risk of serious harm to Plaintiff. See Farmer, 511 U.S. at 837; see also Shrader v. White, 761 F.2d 975, 984 (4th Cir. 1985) (allegations of mold in showers did not violate Eighth Amendment, partly because there was “no evidence of disease resulting from mold”); Smith v. Roosevelt Cty. Jail, No. CV 05-120 GFSEH, 2007 WL 30272, at *3 (D. Mont. Jan. 3, 2007) (allegation of mold on bathroom ceiling did not “rise to the level necessary to establish an Eighth Amendment violation” where the plaintiff did not allege that the mold “injured him or caused other problems”); cf. Thurmond v. Andrews, 972 F.3d 1007, 1012-13 (8th Cir. 2020) (noting a “death of . . . authority” nationally regarding a prisoner's right to be free from mold).
Plaintiff also declares that he was forced to wear “old, smelly” clothes that “appeared to have mold on them.” Dkt. 47 ¶ 6. No reasonable juror could conclude that the alleged presence of mold on Plaintiff's clothes violated the Eighth Amendment for the reasons in the previous paragraph. Furthermore, the unadorned allegation that Plaintiff wore “old, smelly” clothes for 17 days does not, without more, support a reasonable finding that the subject Defendants deliberately disregarded Plaintiff's rights to clothing and adequate hygiene. See Cafasso, 637 F.3d at 1061; see also McGlothin v. Harrington, No. 1:10CV00247 AWI, 2013 WL 5466629, at *6 (E.D. Cal. Sept. 30, 2013) (citing case for proposition that “2 week stay” in cell with “no clean clothes” did not violate the Eighth Amendment (citation omitted)).
Furthermore, Defendant Jackson stated in his response to Plaintiff's appeal that “clothing exchange” “was delayed” during the early stages of E-Unit but that “[c]hanges were made to address [this] issue[.]” See Dkt. 6-1 at 4. And Plaintiff does not dispute Defendant Jackson's assertion that he was “among the first occupants of” E-Unit. Id. Therefore, even if Plaintiff did not receive a change of clothes during his entire stay in E-Unit, the evidence does not support a reasonable finding that the subject Defendants deliberately disregarded the prisoners' need for clean clothes, much less that they actually inferred that the delays in clothing exchange posed a substantial risk of serious harm to Plaintiff. That Plaintiff has not alleged any physical injury or pain resulting from his use of “old, smelly” clothes supports this conclusion.
Lastly, Plaintiff states that being housed with prisoners who had tested positive for COVID-19 caused him anxiety which, in turn, caused sleep deprivation and “severe discomfort.” Dkt. 47 ¶¶ 5, 13. This allegation is conclusory. Plaintiff had his own cell in E-Unit and could not, with a minor exception, leave it. This fact impels the inference that, consistent with guidelines of the Center for Disease Control and Prevention, Plaintiff was physically distanced from prisoners and staff by “at least 6 feet.” See https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html; cf. Dkt. 40 ¶ 9 (“[D]roplet precaution procedures are put in place, ensuring that staff wears appropriate personal protective equipment when within 6 feet of the isolation cell.”). Plaintiff has not provided any additional allegations supporting a reasonable inference that placement in E-Unit increased his exposure to COVID-19 or the likelihood that he would contract it. See Nelson, 83 F.3d at 108182 (“[M]ere . . . speculation do[es] not create a factual dispute for purposes of summary judgment.”). Nor has Plaintiff described any physical symptoms that would have given the subject Defendants reason to believe that housing him with COVID-19-positive prisoners in EUnit posed a substantial risk of serious harm to his health. Rather, as noted, Plaintiff simply alleges that the anxiety of being housed with prisoners who had tested positive for the virus caused him “loss of sleep and severe discomfort.” Dkt. 47 ¶ 13. In short, no evidence supports a reasonable finding that housing prisoners suspected of having COVID-19 in the same unit as those confirmed to have it posed a substantial risk of serious harm to the prisoners only suspected of having the virus. Thus, there is no reasonable basis on which to infer that the decision of Defendants Jackson and Russell-in conjunction with other DOC officials-to open E-Unit and house prisoners requiring isolation or quarantine was an unreasonable method to mitigate the spread of the virus in MCC. Likewise, no evidence supports a reasonable inference that the subject Defendants actually inferred that this housing assignment substantially exposed Plaintiff to the risk of contracting COVID-19.
Plaintiff presumably left his cell when he showered. However, there is no evidence that he was with other prisoners who had tested positive for COVID-19 or that this event increased his exposure to the same.
See Gabertan v. Walmart, Inc., 523 F.Supp.3d 1254, 1258 n.4 (W.D. Wash. 2021) (taking judicial notice of the CDC's COVID-19 guidelines).
In sum, no reasonable juror could conclude that the subject Defendants disregarded the conditions in Plaintiff's cell. Furthermore, a reasonable juror could only conclude that these Defendants reasonably responded to those conditions. Accordingly, summary judgment should be granted to Defendants on Plaintiff's Eighth Amendment claim against Defendants Jackson, Frantz, and HQ Incident Commander.
Plaintiff declares that “DOC staff did not provide him with any medical treatment for [his] pain” while he was in E-Unit. Dkt. 47 ¶ 11. However, there is no evidence that any Defendant was aware of Plaintiff's pain. Although a reasonable juror could conclude that the subject Defendants were aware of E-Unit's conditions, absent more, it does not follow that they would have known about Plaintiff's pain. Furthermore, there is no evidence that any Defendant was “responsible for” Plaintiff's medical care, either before or during his stay in E-Unit. See McGuckin, 974 F.2d at 1062; see also Dkt. 40 ¶ 12; Dkt. 41 ¶ 14; Dkt. 47 ¶¶ 3-5. Accordingly, no reasonable juror could conclude that Defendants were deliberately indifferent to this medical need.
V. Due Process
Plaintiff alleges that E-Unit's conditions amounted to “Punitive Isolation” that violated due process. Dkt. 6 at 12-14. However, as the analysis of his Eighth Amendment claim shows, no evidence supports a reasonable finding that DOC officials isolated Plaintiff to punish him. Rather, the evidence compels the conclusion that medical staff placed Plaintiff in E-Unit based on a suspicion that he could have COVID-19 following his complains of abdominal pain. See, e.g., Dkt. 41 ¶ 14; Dkt. 47 ¶¶ 3-5. And, despite the adverse conditions in E-Unit, there is no evidence that DOC officials opened E-Unit to punish prisoners. Rather, the uncontradicted evidence is that E-Unit was for medical isolation and quarantine. See, e.g., Dkt. 40 ¶¶ 11-12; Dkt. 41 ¶ 6. Therefore, when analyzing Plaintiff's due process claim, the Court considers his segregation as administrative, not punitive or disciplinary. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) (“administration segregation” is a “catchall” phrase that includes segregation to “protect the prisoner's safety” or “protect other inmates from a particular prisoner” but is “nonpunitive”), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 480-84 (1995).
“It is well-established that[] [t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (citation and internal quotation marks omitted). Under Sandin, “a prisoner possesses a liberty interest under the federal constitution when a change occurs in confinement that imposes an atypical and significant hardship in relation to the ordinary incidents of prison life.” Id. (alteration adopted) (citation and internal quotation marks omitted).
“There is no single standard for determining whether a prison hardship is atypical and significant, and the condition or combination of conditions or factors requires case by case, fact by fact consideration.” Ramirez, 334 F.3d at 861 (alteration adopted) (citation and internal quotation marks omitted). Courts may consider: (1) the duration of the confinement; (2) whether the conditions of the confinement were significantly harsher than those of prisoners in the general population or confined prisoners; (3) whether the confinement will invariably affect the duration of the prisoner's sentence; and (4) whether the prisoner is confined for emergency reasons. See Brown v. Oregon Dep't of Corr., 751 F.3d 983, 987 (9th Cir. 2014); Richardson v. Runnels, 594 F.3d 666, 672-73 (9th Cir. 2010); Ramirez, 334 F.3d at 861; Jackson, 353 F.3d at 755; Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000); Hayward v. Procunier, 629 F.2d 599, 601-03 (9th Cir. 1980). “If a protected liberty interest is at stake, then the court must determine whether the procedures used to deprive the prisoner of that liberty violate due process.” Brown, 751 F.3d at 987 (citation omitted).
Here, no reasonable juror could conclude that Plaintiff's administrative confinement created a liberty interest. Regarding the first factor, the duration of Plaintiff's stay in E-Unit, 17 days, weights heavily against the creation of a liberty interest. See Richardson, 594 F.3d at 672673 (15-day administration segregation “did not constitute atypical and significant hardship in relation to the ordinary incidents of prison life” (citations omitted)). Regarding the second factor, the Court recognizes that the conditions in E-Unit were unpleasant. However, Plaintiff has not provided any evidence of the conditions that other prisoners in other units or areas of MCC routinely faced. Plaintiff only alleges that he was not “permitted time outside of [his] cell, as inmates in solitary confinement are normally allowed to have.” Dkt. 47 ¶ 3. Absent more, this unadorned allegation does not support a reasonable inference that “the State's actions in placing him there for [17] days . . . work[ed] a major disruption in his environment.” See Sandin, 515 U.S. at 486. The third factor strongly disfavors Plaintiff because he does not allege that his 17-day stay in E-Unit will invariably affect the duration of his sentence.
Regarding the fourth factor, the record supports a reasonable finding that Plaintiff was housed in E-Unit for emergency reasons. As stated, “COVID-19 presented a public health crisis unlike any that we have encountered in our time.” Fraihat, 16 F.4th at 639. Furthermore, as discussed above, the evidence compels the conclusion that DOC officials opened E-Unit to try to mitigate the spread of the virus. True, Plaintiff disputes that he should have been placed in EUnit because he “was not sick . . . [or] . . . having any . . . respiratory symptoms . . . associated with Covid-19” and was not “tested . . . for Covid” before being placed in E-Unit. See Dkt. 47 ¶ 5. However, even if there was no valid medical basis to place Plaintiff in E-Unit, DOC officials nevertheless had a good reason to open E-Unit. And, again, Defendants could have reasonably deferred to medical staff's decision to place Plaintiff in E-Unit. Consequently, the fourth factor disfavors Plaintiff.
In sum, no reasonable juror could conclude that Plaintiff's administrative confinement created a liberty interest. Accordingly, summary judgment should be granted to Defendants on his due process claim.
VI. Equal Protection
Plaintiff alleges that E-Unit's conditions violated equal protection because they were “substantially harsher than other similar[ly] situated Medical isolations.” Dkt. 6 at 15.
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citation and internal quotation marks omitted). “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (citation omitted).
Furthermore, “[w]here . . . state action does not implicate a fundamental right or a suspect classification, the plaintiff can establish a ‘class of one' equal protection claim by demonstrating that it ‘has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'” Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
Here, Plaintiff has not provided any evidence that he is a member of a protected class. Furthermore, there is no evidence that any Defendant discriminated against him based on membership in a protected class. Nor is there any evidence that any Defendant intentionally treated Plaintiff differently than similarly situated persons and that there was no rational basis for the difference in treatment. The only conceivably relevant evidence is Plaintiff's sworn statement that he was not allowed outside his cell like “inmates in solitary confinement are normally allowed to have.” Dkt. 47 ¶ 10. However, Plaintiff provides no evidence that inmates in solitary confinement are similarly situated to Plaintiff. Moreover, no evidence supports Plaintiff's unsworn, conclusory allegation that the conditions in E-Unit were “substantially harsher than other similar[ly] situated Medical isolations.” Dkt. 6 at 15. Thus, no reasonable juror could conclude that Plaintiff's stay in E-Unit violated equal protection. Consequently, summary judgment should be granted to Defendants on Plaintiff's equal protection claim.
VII. Free Exercise of Religion
Plaintiff alleges that his right to religious freedom was violated because “Bibles and other religious items [were not allowed] into ‘E-unit.'” Dkt. 6 at 16.
“Inmates retain the protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion.” Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008) (citation and internal quotation marks omitted). “When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 884.
Here, Plaintiff only challenges Defendant Fischer's decision to deny him a bible while he was in E-Unit. See Dkt. 6 at 16. Contrary to Plaintiff's allegation, see id., Plaintiff does not declare that Defendants denied him “other religious items” while in E-Unit. See Dkt. 47.
Here, Defendant Fischer declares that paper given to prisoners in E-Unit would have to be destroyed to prevent spreading the virus to others. Dkt. 42 ¶ 3. Defendant Fischer further declares that, although Plaintiff asked for a bible, he would have had to destroy it when Plaintiff left isolation. Id. ¶ 5. Additionally, Defendant Fischer declares that he did not believe that “destroying a bible after a few weeks of use would be a wise stewardship of donated bibles.” Id. ¶ 4. Instead, Defendant Fischer provided Plaintiff with a copy of the Gospel of John. Id. ¶ 5; Dkt. 42-2 at 39. Plaintiff does not dispute these averments. See Dkt. 45 at 6; Dkt. 47.
On this record, a reasonable juror could only conclude that Defendant Fischer's actions were reasonably related to legitimate penological interests. Indisputably, MCC had legitimate interests in preserving its donated bibles (e.g., providing prisoners with religious materials, conserving resources, and encouraging donations). The “valid, rational connection” between these interests and his decision to preserve the bibles is manifest. See Shakur, 514 F.3d at 884 (citation and internal quotation marks omitted). Furthermore, Plaintiff had an “alternative means of exercising [his religious] right[s]” because Defendant Fischer gave him a copy of the Gospel of John. See id. (citation and internal quotation marks omitted). Plaintiff has not stated otherwise.
Furthermore, Defendant Fischer's uncontradicted statements impel the inference that accommodating Plaintiff's wish for a bible would have “impact[ed] . . . the allocation of prison resources generally.” See id. (citation and internal quotation marks omitted). Again, had Defendant Fischer given Plaintiff a bible, he would have had to destroy it. This would have reduced the prison's supply of bibles and/or required DOC officials to obtain new bibles. Moreover, the record reflects an “absence of ready alternatives versus the existence of obvious, easy alternatives.” See id. (citation and internal quotation marks omitted).
In sum, the evidence shows that Defendant Fischer's decision to give Plaintiff a copy of the Gospel of John versus a bible while he was in E-Unit was reasonably related to legitimate penological interests. Accordingly, summary judgment should be granted to Defendants on Plaintiff's free exercise claim.
VIII. Retaliation
Plaintiff alleges that, after he tried to expose E-Unit's conditions, he experienced retaliation because his grievances were “thrown away and or not properly processed” and he received a negative BOE. Dkt. 6 at 18. However, there is no evidence that Plaintiff received a negative BOE. See Dkt. 6-1 at 2, 4, 6; Dkt. 47.
Plaintiff does declare that “DOC employees and staff” “thr[ew] away or lost” his grievances. Dkt. 47 ¶ 12. Likewise, in his emergency grievance, Plaintiff stated that a “guard denied taking [his] grievances.” Dkt. 6-1 at 2. Similarly, in his appeal, Plaintiff complains about “disappearing grievances [he] wrote” while in E-Unit without attributing this conduct to any individual. Id. at 6.
In short, Plaintiff does not identify which DOC official(s) participated in the refusal to accept or the disappearance of his grievances. Furthermore, no evidence supports a reasonable inference that any named Defendant was personally or causally involved in this conduct.
The mere fact that Defendants Wood and Jackson were involved in responding to Plaintiff's appeal does not, without more, support a reasonable inference that they destroyed any grievance. See Dkt. 6-1 at 4. Notably, in his emergency grievance and appeal, Plaintiff contends that his grievances disappeared when he was in or, at best, immediately after he left E-Unit on April 2, 2020. See id. at 2, 6. There is no evidence that any Defendant knew about Plaintiff's grievances during this period. It is unclear whether Plaintiff alleges that he filed additional grievances after that time. See Dkt. 47 ¶ 12 (“On April 2, 2020, I was released from isolation . . . . I filed multiple grievances regarding my experiences in the PIU and each grievance was either thrown away or lost by DOC employees and staff.”). Absent more, this unadorned, equivocal allegation does not support a reasonable inference that Defendants Wood and Jackson participated in the destruction of any grievance purportedly filed when they were investigating and responding to Plaintiff's emergency grievance and appeal.
Plaintiff also alleges that his grievances were not properly processed. But, as noted, prisoners have no due process right to a “specific prison grievance procedure.” Ramirez, 334 F.3d at 860. Moreover, it is unclear what Plaintiff's allegation that his grievances were not “properly processed” means. Dkt. 6 at 18. If Plaintiff means that DOC officials refused to accept or caused the disappearance of his grievances, the Court has already explained how these allegations fail to create a genuine factual dispute. If Plaintiff means something else, Plaintiff did not flesh out this vague allegation with any evidence. So it still fails to create a genuine factual dispute. See, e.g., Taylor, 880 F.2d at 1045.
Accordingly, no reasonable juror could conclude that Defendants retaliated against Plaintiff. Summary judgment should be granted to Defendants on this claim.
IX. Right to Access the Courts
Plaintiff alleges a violation of his right to access the courts. Dkt. 6 at 17. In support, Plaintiff alleges that he could not access the court “without . . . first being able to exhaust the grievance process/remedy.” Id.
To establish a right-of-access claim, the prisoner “must show . . . actual injury-that is, actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim.” Lewis v. Casey, 518 U.S. 343, 348 (1996) (citation and internal quotation marks omitted). The frustrated or impeded claim must be a nonfrivolous direct criminal appeal, habeas petition, or civil rights action. See id. at 353-54 & n.3.
Here, Plaintiff's own evidence shows that he exhausted administrative remedies regarding the claims at issue. Dkt. 6-1 at 2, 4, 6. Furthermore, Plaintiff does not allege that any Defendant frustrated or impeded any other claims. So no reasonable juror could conclude that Defendants violated his right to access the court. Accordingly, summary judgment should be granted to Defendants on Plaintiff's right-of-access claim.
X. RLUIPA
Plaintiff alleges a violation of RLUIPA. Dkt. 6 at 20. Defendants are entitled to judgment on this claim as a matter of law. See Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (“RLUIPA does not authorize suits for damages against state officials in their individual capacities ....” (citation omitted)).
XI. State-Law Claim
Plaintiff alleges a violation of Article 1, § 22 of the Washington State Constitution based on the allegations underlying his free exercise claim. See Dkt. 6 at 21. Because this claim has a “common nucleus of operative fact with the federal claims and the state and federal claims would normally be tried together,” the Court has supplemental jurisdiction over the state-law claim. See Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (citation and internal quotation marks omitted).
However, the Court should decline to exercise supplemental jurisdiction over this claim. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”); Trustees of Constr. Indus. & Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 926 (9th Cir. 2003) (“[O]ur cases upholding the exercise of discretion under [28 U.S.C.] § 1367(c)(3) have all involved dismissals for failure to state a claim or a grant of summary judgment to the defendant on the federal claim.” (citations omitted)). The Court has dismissed all of Plaintiff's § 1983 claims and recognizes the policy of avoiding “[n]eedless decisions of state law.” See Gibbs, 383 U.S. at 726. Likewise, counsel for Plaintiff represents that he has “filed a tort claim on [Plaintiff's] behalf.” Dkt. 46 ¶ 2. Because Plaintiff's state-law claim may relate to his tort claim, the Court should extend “comity” to the Washington courts and avoid issuing a decision that could potentially interfere with the state courts' consideration of Plaintiff's tort claim. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
REMAINING MATTER
In his response to Defendants' motion for summary judgment, Plaintiff, through counsel, asks for a 90-day continuance pursuant to Fed.R.Civ.P. 56(d). Dkt. 45 at 1, 6-7. Alternatively, counsel asks the Court to dismiss this case without prejudice. Id. at 1, 7.
One of the bases for counsel's request for a continuance is so counsel can pursue “his recently filed tort claim.” Id. at 1. However, counsel declares that he already filed the tort claim and it is unclear how granting a continuance or dismissing the case without prejudice would further that objective. So this argument is unpersuasive.
Counsel also seeks a continuance or dismissal without prejudice so that Plaintiff can “pursue his damage claim against the correct responsible parties” and “bring proper claims before this Court.” Id. 1, 4. In support, counsel states that he believes Plaintiff “has Eighth Amendment claims against the officials that ordered that he be placed in the isolation unit . . . and the reason for that placement and the persons involved in it were never explored by plaintiff.” Dkt. 46 ¶ 5. However, Rule 56(d) provides that the Court may defer considering a motion for summary when the Plaintiff “cannot present facts essential to justify its opposition.” Here, Plaintiff seeks a continuance to develop new claims and add new defendants, which is an improper use of Rule 56(d). And the Court will not construe this request as a motion to amend because Plaintiff did not file a separate motion to amend containing “a copy of the proposed amended pleading.” LCR 15.
Likewise, the Court will not construe counsel's request for dismissal without prejudice as a motion or request for voluntary dismissal under Fed.R.Civ.P. 41(a)(2). The request is conclusory. See Dkt. 45 at 1, 7; Dkt. 46 ¶ 7. Apart from the reasons counsel provides to support his request for a continuance, none of which is persuasive, counsel does not clearly state a basis for dismissal without prejudice. Furthermore, counsel did not cite Rule 41 or characterize his conclusory request for dismissal without prejudice as a motion or request for voluntary dismissal.
Additionally, even if it were proper to treat counsel's conclusory request for dismissal without prejudice as a motion or request for voluntary dismissal under Rule 41(a)(2), granting it would be improper. Defendants would suffer “some plain legal prejudice as a result of the dismissal.” See Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996) (citations omitted). In the Rule 41(a)(2) context, plain legal prejudice includes undue delay. See Cent. Montana Rail v. BNSF Ry. Co., 422 Fed.Appx. 636, 638 (9th Cir. 2011) (citing Westlands, 100 F.3d at 97). Counsel has not explained why Plaintiff waited until after defendants filed a motion for summary judgment to request dismissal without prejudice. See id. (affirming district court's denial of Rule 41(a)(2) motion where the plaintiff gave “no explanation for why it delayed so long in requesting voluntary dismissal”). Also, Plaintiff did not seek dismissal without prejudice until faced with a meritorious motion for summary judgment, which further weighs against the propriety of dismissal without prejudice. See Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996) (“We agree with the district court that a party should not be permitted to avoid an adverse decision on a dispositive motion by dismissing a claim without prejudice.” (citation omitted)); cf. Terrovona v. Kincheloe, 852 F.2d 424, 426, 428-29 (9th Cir. 1988) (district court did not abuse discretion in denying Rule 41(a)(2) motion when the plaintiff filed it in response to a magistrate judge's report and recommendation finding his petition meritless).
Moreover, counsel represents that Plaintiff has “limited access” to him due to a recent COVID-19 lockdown. Dkt. 46 at 6. Therefore, Plaintiff “is unable to properly respond” to Defendants' motion for summary judgment “without a continuance.” Id. The record contradicts counsel's contention. Plaintiff filed a declaration in opposition to the motion for summary judgment, Dkt. 47, and the declaration is largely consistent with the complaint's allegations. Furthermore, Plaintiff submitted grievances relevant to his claims. Dkt. 6-1 at 2, 4, 6. Notably, counsel has not identified what essential evidence a continuance would allow Plaintiff to develop or explained why Plaintiff could not have developed this putative evidence sooner. Therefore, this argument is unavailing. Similarly, any contention by counsel that he has not had enough “time to prepare . . . does not justify a voluntary dismissal.” See Kern Oil & Ref. Co. v. Tenneco Oil Co., 792 F.2d 1380, 1390 (9th Cir. 1986)
In sum, Plaintiff's request for a 90-day continuance or, in the alternative, dismissal without prejudice should be denied.
IN FORMA PAUPERIS (“IFP”) STATUS ON APPEAL
Plaintiff should be granted IFP status for purposes of an appeal of this matter as described below. IFP status on appeal shall not be granted if the district court certifies “before or after the notice of appeal is filed” “that the appeal is not taken in good faith[.]” See Fed. R. App. P. 24(a)(3)(A). “The good faith requirement is satisfied if the petitioner seeks review of any issue that is not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (citation and internal quotation marks omitted). Generally, an issue is not frivolous if it has an “arguable basis either in law or in facts.” See Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Here, Plaintiff's Eighth Amendment claim is not frivolous. Therefore, IFP status should be granted for purposes of an appeal of this claim only.
CONCLUSION
As discussed above, it is recommended that Defendants' motion for summary judgment (Dkt. 39) be GRANTED, with the result that the Court should grant summary judgment for Defendants on Plaintiff's federal claims and dismiss without prejudice Plaintiff's state-law claim.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the Parties shall have fourteen (14) days from service of this report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on March 11, 2022 as noted in the caption.