Opinion
3:18-cv-00096-MK
07-26-2021
ANDREW GUY MORET, Plaintiff, v. T. MILLSAP, Defendant.
FINDINGS AND RECOMMENDATION
Mustafa T. Kasubhai United States Magistrate Judge
Plaintiff, appearing pro se, brings suit under 42 U.S.C. § 1983 and alleges that Washington County sheriff's deputy Millsap violated his rights under the Fourteenth Amendment by denying him clothing, a blanket, and a mattress while plaintiff was detained at the Washington County Jail. Before the Court is Deputy Millsap's Motion for Summary Judgment and plaintiff's cross Motions for Summary Judgment and Declaratory Relief. For the reasons explained below, Deputy Millsap's motions should be granted, and plaintiff's motions should be denied.
BACKGROUND
On September 16, 2015, plaintiff was booked into the Washington County Jail on charges of Murder and Unlawful Use of a Weapon. First Ashenfelter Decl. ¶ 3 (ECF No. 85).
Between September and December 2015, plaintiff was placed on suicide watch five times. Id. ¶ 4. By December of 2015, plaintiffs custody level had increased to “8 Max, ” the maximum custody level at the Washington County Jail, and he transferred to the jail's most restrictive housing unit. Id. ¶ 5.
On January 29, 2016, plaintiff flooded his cell after he apparently placed food items in his toilet and flushed repeatedly. Id. ¶ 16(c) & Ex. 5. Plaintiff had taken his mattress from his bunk and placed it on the floor, and the mattress became soaked with water and had to be destroyed. Id. Ex. 5. Plaintiff, who was wrapped only in a torn sheet, was removed from his cell and placed in a shower area for several hours. Id. ¶¶ 18-19 & Ex. 5.
Plaintiff eventually was given a “Ferguson” smock and blanket instead of regular-issue clothing and a mattress. Ferguson smocks and blankets are very thick and difficult to destroy, and jail officials provided plaintiff with only these items “in order to prevent further destruction of Jail-issued clothing and bedding items.” First Ashenfelter Decl. ¶ 22 & Ex. 6. As a disciplinary sanction, plaintiff was charged a $60 replacement fee for the mattress. Id. ¶ 16(c).
On February 16, 2016, plaintiff was given a regular-issue mattress. Id. ¶ 23.
On February 19, 2016, plaintiff was transferred to Oregon State Hospital (OSH) for a mental health evaluation, and on February 10, 2017, plaintiff returned to the Washington County Jail. Id. ¶¶ 7, 23.
On March 1, 2019, plaintiff was transferred to the custody of the Oregon Department of Corrections after he was convicted of the charged offenses. Id. ¶ 24.
On January 17, 2018, plaintiff filed this action and raised numerous claims arising from his initial confinement at the Washington County Jail. The defendants moved for judgment on the pleadings, and this Court granted the motion and dismissed plaintiff's Complaint. Plaintiff appealed.
The Ninth Circuit vacated, in part, with respect to plaintiff's conditions of confinement claim alleged in Claim III of his original Complaint. Specifically, the Ninth Circuit found:
The district court properly dismissed Moret's conditions-of-confinement claim (“Claim III”) because Moret failed to allege facts sufficient to show that he filed this claim within the applicable two-year statute of limitations…. However, dismissal without leave to amend was premature because it is not “absolutely clear” that the deficiencies in Claim III could not be cured by amendment. Although Moret alleged a relevant time period of November 28, 2015 to December 18, 2015 regarding provision of meals and running water, he separately alleged that he was denied a mattress, blankets and clothing during an unspecified time period. Accordingly, we vacate the judgment, and remand for the district court to provide Moret with an opportunity to amend his complaint.Mem. Op. at 2 (ECF No. 37). In other words, the Ninth Circuit held that plaintiff should be allowed to allege the relevant time period during which he was denied a mattress, a blanket, and clothing.
Upon remand, plaintiff was directed to file an amended complaint “regarding his allegations that he was denied a mattress, blankets, and clothing while detained at the Washington County jail” and to “specify the time period in which he was denied these items and how long he was deprived of these items.” Order dated March 4, 2020 (ECF No. 39).
In response to the Court's Order, plaintiff filed an Amended Complaint and alleged that from late January 2016 until February 19, 2016, Deputy Millsap violated his rights under the Fourteenth Amendment by denying plaintiff clothing, a blanket, and a mattress after he flooded his cell.
Plaintiff also sought to allege claims against several other defendants that were untimely and beyond the scope of the Ninth Circuit's order of remand, and his motion to amend was denied as to these claims.
DISCUSSION
Deputy Millsap moves for summary judgment on grounds that plaintiff failed to exhaust his administrative remedies and Deputy Millsap is entitled to qualified immunity. Plaintiff also moves for summary judgment on the merits of his claim.
To support his Motion for Declaratory Judgment and arguments presented in his Motion for Summary Judgment, plaintiff submits video evidence arising from his cell extraction on February 19, 2016 when he was being transferred from the Washington County Jail to OSH. See, e.g., Motion for Declaratory Judgment & Evidence Submission (ECF Nos. 88, 90). Plaintiff did not allege claims of excessive force against Washington County Jail officials arising from his extraction on February 19 in his original or amended complaints, and such claims are untimely and any supporting argument or evidence is not properly before the Court.
To prevail on their respective motions for summary judgment, the parties must show there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (“If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.”). Cross motions for summary judgment are evaluated separately, with the non-moving party for each motion given “the benefit of all reasonable inferences.” Am. Civil Liberties Union of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
A. Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act (PLRA), inmates must exhaust all available administrative remedies before filing a federal action to redress prison conditions or incidents. See 42 U.S.C § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of the prison administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 90 (2006). Inmates must exhaust all available grievance remedies before filing a § 1983 action, including appealing grievance decisions to the highest level. Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017).
If the defendant shows that the inmate did not exhaust an available administrative remedy, “the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172; see also Ross v. Blake, 136 S.Ct. 1850, 1859 (2016) (“[A]n inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'”) (citation omitted). This burden is met when the prisoner shows that he or she took “reasonable and appropriate steps” to pursue administrative remedies, but prison officials nonetheless interfered with the prisoner's attempts to exhaust or failed to follow correct grievance protocol. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010).
Inmates at the Washington County Jail must file a grievance within thirty days of the event or incident giving rise to the grievance. First Ashenfelter Decl. Ex. 2 at 2. Inmates may appeal grievance responses within seven days and they are afforded three levels of appeal. Id. Ex. 2 at 2-3.
Plaintiff did not file a grievance about the January 29, 2016 incident until December 28, 2017. In his grievance and subsequent appeals, plaintiff alleged that he had been denied clothing, a blanket, and a mattress for several weeks after he flooded his cell, and he requested reimbursement of the $60 replacement fee for the mattress. Second Ashenfelter Decl. Ex. 3 at 1-2 (ECF No. 97-1). Deputy Millsap maintains that plaintiff's grievance was untimely and that he failed to exhaust the grievance process as a result. I disagree.
Although Washington County Jail officials informed plaintiff that his grievance was not timely, they nonetheless responded to the substance of his grievance and his subsequent appeals and informed plaintiff that he had “exhausted the process in this matter.” Id. Ex. 3 at 1. “[W]hen prison officials address the merits of a prisoner's grievance instead of enforcing a procedural bar, the state's interests in administrative exhaustion have been served.” Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016). Accordingly, an inmate exhausts available administrative remedies if, “despite failing to comply with a procedural rule, ” “prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process.” Id. at 658 (citation and internal quotation marks omitted). Here, jail officials allowed plaintiff's grievance appeals and responded to the merits of his complaints. Second Ashenfelter Decl. Ex. 3.
Accordingly, I find that plaintiff exhausted the available grievance process, and summary judgment on this ground should be denied.
B. Fourteenth Amendment Claim and Qualified Immunity
Plaintiff's Fourteenth Amendment claims arise from the denial of regular-issue clothing from January 29, 2016 until his transfer to OSH on February 19, 2016 and the denial of a mattress from January 29, 2016 until February 16, 2016.
The Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eighth Amendment, protects pretrial detainees against jail conditions constituting punishment. Kingsley v. Hendrickson, 576 U.S. 389, 397-98 (2015); Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). Unlike claims brought by prisoners under the Eighth Amendment, a pretrial detainee need not establish “proof of intent (or motive)” to establish a due process violation; rather, “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Kingsley, 576 U.S. at 398.
The record rebuts plaintiff's assertion that he was left “naked” for several weeks after January 29, 2016. Rather, the record reflects that plaintiff was wearing a Ferguson Smock several hours after the January 29, 2016 incident and on February 1, 2016, three days later. Second Ashenfelter Decl. ¶¶ 5-6 & Exs. 1-2. Further, plaintiff does not dispute that he was placed on suicide watch five times prior to January 29, 2016 and had torn up a sheet on that date. First Ashenfelter Decl. ¶ 4. Given these facts, plaintiff cannot show that the denial of regular-issue clothing and bedding was not rationally related to a legitimate governmental objective. Id. ¶ 19 (explaining that torn bedding and clothing can present safety and security risks).
Deputy Millsap does not dispute that plaintiff was denied a mattress from January 29, 2016 to February 16, 2016 and provided with only a Ferguson blanket for part of that time. The Ninth Circuit has held that a pretrial detainee's “uncontroverted allegation that he was provided with neither a bed nor even a mattress unquestionably constitutes a cognizable Fourteenth Amendment claim.” Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989), overruled on other grounds by Bull v. City & Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc); see also Thomas v. Cty. of Los Angeles, 703 Fed. App'x 508, 511 (9th Cir. 2017) (recognizing a Fourteenth Amendment claim arising from the failure to provide pretrial detainees with mattresses).
However, Millsap contends that he did not participate in the decision to deny plaintiff a mattress and was not personally involved in the alleged deprivation of plaintiff's rights. Deputy Millsap relies on the declaration of Sgt. Ashenfelter, who states that “Deputy Tom Millsap did not make the decision to remove plaintiff's mattress on January 29, 2016. Deputies do not have authority to make that decision…. [T]he decision would have been made by myself or the jail commander Mike Lenahan.” First Ashenfelter Decl. ¶ 20.
Plaintiff does not dispute Deputy Millsap's lack of involvement in the decision to deny him a mattress, and Deputy Millsap cannot be held liable for an alleged constitutional deprivation in which he did not participate. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Accordingly, summary judgment should be granted in his favor.
However, Sgt. Ashenfelter admits that either he or Commander Lenahan made the decision to remove plaintiff's mattress, raising the question of whether plaintiff should be allowed to amend and add Fourteenth Amendment claims against them. Ultimately, I find that amendment would be futile because Sgt. Ashenfelter and Commander Lenahan would be entitled to qualified immunity. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (“Futility alone can justify the denial of a motion for leave to amend.”).
The statute of limitations would not necessarily bar claims against Sgt. Ashenfelter or Commander Lenahan if plaintiff was unable to discover Sgt. Ashenfelter's or Commander Lenahan's role in denying a mattress before this case proceeded to discovery in July of 2020. See Scheduling Order (ECF No. 56); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (in § 1983 actions, “courts apply the forum state's the statute of limitations for personal injury actions, along with the forum state's law regarding tolling”); see also T.R. v. Boy Scouts of Am., 344 Or. 282, 292, 181 P.3d 758 (2008) (in Oregon, “the limitations period begins to run as to each defendant when the plaintiff discovers, or a reasonable person should have discovered, that defendant's causal role”).
“Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam) (internal quotation marks and citation omitted). The Supreme Court has emphasized that the asserted constitutional right “must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (brackets and internal quotation marks omitted). While qualified immunity does not require “a case directly on point, [] existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Further, “the clearly established right must be defined with specificity” City of Escondido v. Emmons, 139 S.Ct. 500, 503 (2019) (per curiam), and not “at a high level of generality.” al-Kidd, 563 U.S. at 742.
While the Ninth Circuit has recognized a Fourteenth Amendment claim arising from the failure to provide detainees with beds or mattresses, it has done so in circumstances where jail officials forced pretrial detainees to sleep without mattresses or bunks because of unstated reasons, jail overcrowding, or issues related to population management. See, e.g., Thompson, 885 F.2d at 1442, 1448; see also Doe v. Kelly, 878 F.3d 710, 720-21 (9th Cir. 2017); Thomas v. Baca, 514 F.Supp.2d 1201, 1215-18 (C.D. Cal. 2007) (holding that “the practice of requiring inmates to sleep on the floor of LASD jails violates the Eighth Amendment”). The circumstances of this case are vastly different.
Here, plaintiff was denied a regular-issue mattress after he had destroyed two mattresses and damaged other property. In November 2015, plaintiff admittedly destroyed a mattress by ripping it apart and crawling inside of it. See Second Ashenfelter Decl. Ex. 3 at 2 (plaintiff's grievance appeal explaining that he was not “seeking reimbursement for the mattress I crawled inside”). Between January 18, 2016 and February 19, 2016, plaintiff was found guilty of five alleged rule violations. First Ashenfelter Decl. ¶ 16. Plaintiff's violations arose from tearing an Inmate Manual belonging to a hearings officer, attempting to cut a staff member with a broken spoon, kicking a correctional officer, and flooding his cell and destroying his mattress. Id. ¶ 16 & Exs. 3-5. The undersigned is aware of no case finding the denial of a mattress unconstitutional and unrelated to a legitimate government interest when the inmate had previously destroyed other mattresses and had disciplinary violations for damaging jail property.
Based on the particular circumstances of this case, existing caselaw would not place reasonable jail officials on notice that failing to provide a mattress for seventeen days would amount to punishment and violate plaintiff's rights to due process. Thus, any amendment alleging Fourteenth Amendment claims against Sgt. Ashenfelter and Commander Lenahan would be futile.
CONCLUSION
Defendant's Motion for Summary Judgment (ECF No. 84) should be GRANTED, and plaintiff's cross Motions for Summary Judgment and Declaratory Judgment (ECF Nos. 88, 89) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of this recommendation within which to file specific written objections with the court. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed. R. Civ. P. 72. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).