Opinion
6:19-cv-00710-YY
10-19-2021
BRANDY MARIE SANDOVAL, Plaintiff, v. DOUGLAS COUNTY JAIL and STAFF; DEPUTY POE, DEPUTY CHILDERS, DEPUTY DWIGHT, DEPUTY EGGLESTON, OSBORNE, DEPUTY PIERCE, MCIRVIN, DEPUTY KELLY, SARGEANT TURNER, CCS-CORRECT CARE SOLUTIONS, and TRACY from CCS, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Pro se plaintiff Brandy Sandoval brings claims arising from her incarceration at Douglas County Jail. See Am. Compl., ECF 11. Defendants Douglas County Jail, Correct Care Solutions, and “Tracy from CCS, ” i.e., Tracy Simpson, were previously dismissed from the case. Order, ECF 7; Order, ECF 105.
Against the remaining individually-named defendants, plaintiff alleges Eighth and Fourteenth Amendment claims of “physical abuse, ” “brutality, ” and “unsanitary conditions” pursuant to 42 U.S.C. § 1983. Am. Compl. 3, 10, ECF 11. Plaintiff never served defendant Deputy Childers; therefore, he should be dismissed from this case. The remaining individually-named defendants (referred to hereafter as “defendants”) have filed a motion for summary judgment (ECF 63), which should be granted for the reasons discussed below.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing Fed.R.Civ.P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
II. Relevant Standard-Pretrial Detainees
Generally, “[t]he status of the detainee determines the appropriate constitutional standard for evaluating conditions of confinement.” Vazquez v. Cty. of Kern, 949 F.3d 1153, 1163 (9th Cir. 2020) (citation and quotation omitted). Fourteenth Amendment “[d]ue process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be ‘cruel and unusual' under the Eighth Amendment.” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 537 n.16 (1979) (quotation marks omitted); see also Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (“Inmates who sue prison officials for injuries suffered while in custody may do so under the Eighth Amendment's Cruel and Unusual Punishment Clause or, if not yet convicted, under the Fourteenth Amendment's Due Process Clause.”).
Here, the alleged incidents occurred while plaintiff was incarcerated in the Douglas County Jail before she was convicted and sent to Coffee Creek Correctional Facility to serve her sentence. Defendants argue that because plaintiff was also incarcerated on a post-conviction hold, the Eight Amendment applies. Mot. 12, ECF 63. Regardless, even assuming the less stringent Fourteenth Amendment standard for pre-trial detainees applies, defendants are entitled to summary judgment as a matter of law.
See Martinez v. Geo Grp., Inc., No. EDCV 18-1125-R, 2019 WL 3758026, at *3 (C.D. Cal. Apr. 30, 2019) (observing the Fourteenth Amendment contains a “less-stringent” objective test for deliberate indifference as opposed to the Eighth Amendment test, which requires a subjective and objective component).
III. April 2018 Incident
Plaintiff prepared her complaint with a form provided by the court. See Am. Compl., ECF 11. In response to the question, “What date and approximate time did the events giving rise to your claim(s) occur?, ” plaintiff wrote four dates: April 1, 2018, October 1, 2018, October 15, 2018, and October 31, 2018. Am. Compl. 5, ECF 11. Regarding April 1, 2018, plaintiff wrote that was the date on which she was “assaulted by inmate” and “assaulted by Jennifer Fields, ” but alleged no details regarding how defendants violated her constitutional rights in connection with this incident. Id. at 5, 7; see Fed.R.Civ.P. 8(a) (a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief”); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'”).
In her response to defendants' motion for summary judgment, plaintiff offers more details regarding the April 2018 incident. She describes that she was assaulted by inmate Fields for reporting to deputies that someone had brought methamphetamine into the jail. Pl.'s Decl. 2, ECF 79. Plaintiff concedes that when deputies came in to stop the fight, it ended. Id.
Defendants have produced an incident report showing that plaintiff and inmate Fields had an altercation on April 29, 2018. Root Decl., Ex 1, at 4, ECF 68-1. Witnesses, including plaintiff, reported that plaintiff flipped a food tray at another inmate and then plaintiff got into a fight with Fields. Id. Plaintiff admitted that she grabbed Fields by the hair and pulled her under a table, then got on top of Fields and started hitting her. Id.
Plaintiff does not contend that any of the individually-named defendants engaged in “physical abuse” or “brutality” during this incident. Rather, plaintiff claims the Douglas County Jail could not keep her or other inmates safe because the video cameras were not working and corrections officers did not perform regular safety checks. Pl.'s Decl. 3, ECF 79. She claims she would not have been assaulted if there had been video monitoring. Id.
Plaintiff offers an unsworn declaration by another inmate, Cheri King, who claims she can testify about the assault and lack of video surveillance. ECF 78.
Plaintiff never alleged a claim for failure to protect in her Amended Complaint. Nevertheless, there is no evidence to support such a claim.
The elements of a pretrial detainee's Fourteenth Amendment failure-to-protect claim against an individual officer are:
(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(2) Those conditions put the plaintiff at substantial risk of suffering serious harm;
(3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and
(4) By not taking such measures, the defendant caused the plaintiff's injuries.Castro, 833 F.3d at 1071. “With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily ‘turn[ ] on the ‘facts and circumstances of each particular case.'” Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)).
Plaintiff asserts she was “lodged in A East, a dorm with 9 other women, ” where deputies cannot protect inmates because there is no video camera and the deputies close the door that overlooks the inmate's cells. Pl.'s Decl. 3, ECF 79. But plaintiff offers no evidence that those conditions put her at substantial risk of suffering serious harm or how any conduct by the individual-named defendants was objectively unreasonable. In fact, plaintiff concedes that deputies came in to stop the fight, and indeed did stop it. Id. at 2.
Plaintiff also claims that Deputy Dwight asked her if she wanted to press charges but never helped her thereafter. Pl. Decl. 2, ECF 79. But plaintiff fails to explain how this constitutes a Fourteenth Amendment violation. See Bourguignon v. Lantz, No. 3:05CV245(SRU), 2006 WL 214009, at *7 (D. Conn. Jan. 25, 2006) (“The Constitution does not provide an individual a cause of action for the failure of the police to investigate a crime.”) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (holding that “in American jurisprudence . . . a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another”); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (holding that victims of a crime have no constitutional right to have the perpetrator criminally prosecuted); Langworthy v. Dean, 37 F.Supp.2d 417, 423 (D. Md. 1999) (“[A] right to compel the prosecuting of criminal activity does not exist.”)).
During her deposition, plaintiff testified that Deputy Dwight “didn't touch me or do anything physically or anything. He just failed to make the reports as far as getting injured and everything.” Pl.'s Dep. 133, ECF 69-1. However, plaintiff's injuries were indeed documented on the incident report, which states that plaintiff had a “scrape on her right elbow and an abrasion on her right shoulder consistent with falling onto the ground, ” and she “requested to see medical” who “evaluated her injuries and provided her with antibacterial cream for her scrapes.” Root Decl., Ex. 1, at 4, ECF 68-1.
Therefore, to the extent plaintiff makes any claim with respect to the April 2018 incident, that claim must be dismissed.
IV. October 1, 2018
In the Amended Complaint, plaintiff alleges that on October 1, 2018, she was “[p]hysically abused by Deputy Poe . . . [and] almost taized [sic] by Deputy Kelly and Deputy Wade over a tube of toothpaste.” Am. Compl. 5, ECF 11.
A. Relevant Law Regarding Excessive Force
To prove an excessive force claim under the Fourteenth Amendment, a pretrial detainee must show that “the force purposely or knowingly used against [her] was objectively unreasonable.” Kingsley, 576 U.S. at 397.
Considerations such as the following may bear on the reasonableness or unreasonableness of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Id. (citation omitted).
“Courts must evaluate the case from the perspective of a reasonable officer on the scene at the time of the event, and not with the 20/20 vision of hindsight.” Quiroga v. King, No. 1:15-cv-01697-AWI-MJS (PC), 2016 WL 2609805, at *3 (E.D. Cal. May 6, 2016) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). “Courts must also balance the state's legitimate interest in maintaining order in the facility in which the individual is detained, and, where appropriate, defer to the ‘policies and practices that in th[e] judgment' of jail officials ‘are needed to preserve internal order and discipline and to maintain institutional security.'” Id. (quoting Bell, 441 U.S. at 540). “[A]lthough reasonableness is normally a jury question, defendants can still win on summary judgment if the district court concludes after resolving all facts in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances.” Alexander v. Cty. of Los Angeles, 64 F.3d 1315, 1322 (9th Cir. 1995) (citation and quotation marks omitted).
B. Evidence in the Record
1.Plaintiff's Deposition Testimony
At her deposition, plaintiff admitted she wrote the words “I want to be a corrections deputy” and “Doug County” in toothpaste on the window of her cell. Pl.'s Dep. 103, ECF 69-1. Plaintiff also admitted the cells have windows so that 365 days a year, “24/7, ”deputies can regularly check for an inmate's safety, and that covering the cell window makes their job more difficult. Id. at 103-04. Plaintiff claimed she “left it on there just so they could see it, and then . . . wiped it right off.” Id. at 104.
Plaintiff testified that Deputy Poe said, “Let's have the toothpaste, Sandoval, ” and she responded, “No, ” “It's my property, I bought it, ” and “You can't have it.” Id. at 105-06. Deputy Poe told her, “You can do this the easy way or the hard way. Give me the toothpaste, ” to which she responded, “No, ” “That's my property.” Id. at 106.
Rather than giving the toothpaste to the deputies, plaintiff put it in the waistline of her underpants and pants. Id. at 107. Plaintiff claimed, “I put it in there because I knew he was going to be a jerk and ask for - me for my toothpaste.” Id. at 106. The toothpaste slipped into her underwear and was on her “left cheek.” Id. at 112. The toothpaste was not near plaintiff's genitals. Id. Plaintiff may have told the deputies, “It's slipped down to my butt.” Id. at 108.
According to plaintiff, Deputy Poe said, “Wrong choice, ” id. at 117, and stepped into her cell and grabbed her hair. Id. at 106. Plaintiff described that Deputy Poe “grinded my face with a lot of pressure on my head, ” and “grinded my face to the ground so hard” that it bruised around her cheek piercing. Id. at 108. Plaintiff claimed her hair “hurt a little bit” where Deputy Poe had pulled it, and her neck hurt. Id. at 124. Plaintiff stated, “I remember my neck snapping when he . . . grabbed me and . . . ripped me around. . . [M]y neck popped, and it hurt.” Id. at 125. Deputy Kelley also had a taser pointed at her. Id. at 110.
Deputy Poe called for Deputy Wade, who is a female. Id. at 110. According to plaintiff, Deputy Poe patted her buttocks to try to find the toothpaste, id. at 121, and Deputy Poe and Deputy Wade both put their hands down her pants, id. at 105, until Deputy Wade found the toothpaste. Id. at 112. Plaintiff clarified that Deputy Poe was “[n]ot feeling me up but trying to find the toothpaste is . . . what he was trying to do.” Id. When asked if the contact was sexual, plaintiff replied, “It was to find the toothpaste, ” but she claimed it was unwanted contact” and not “very professional, ” given “he's a guy, and I'm a girl.” Id. at 125.
Plaintiff claims Deputy Poe's actions “over a tube of toothpaste” were “pretty damn petty.” Id. at 105. Plaintiff maintains she had a right to resist because she bought the toothpaste. Id. at 112.
2. Defendants' Evidence
Deputy Poe has submitted a declaration in which he attests that plaintiff's use of the toothpaste for something other than its intended purpose was a rule violation. Poe Decl. ¶ 3, ECF 66. He also attests that plaintiff's writing on the window obscured part of the view to her cell, which creates safety and security issues. Id. Deputy Poe described that when the view is obscured, the only way to see into plaintiff's cell is to open the door, which he did not want to do because he had many prior interactions with plaintiff and she “talked incessantly about getting a deputy uniform or keys and constantly demanded to be released.” Id. Deputy Poe described that plaintiff “had a history of behavior that seemed calculated to require staff to enter her cell like causing the sinks and toilets to flood and covering her cell window.” Id. ¶ 7. He also knew that plaintiff had been in at least one violent encounter with another inmate and had threatened to assault staff members on multiple occasions. Id. ¶ 3.
Deputy Poe described that he and Deputy Kelley asked plaintiff several times to give them the toothpaste, but she refused, called them names, and stuck the toothpaste in her pants. Id. ¶ 4. They called for assistance from Deputy Wade, who is a female, and when Deputy Wade arrived, the three of them entered plaintiff's cell and tried to convince plaintiff to voluntarily relinquish the toothpaste. Id. Plaintiff refused and continued to argue with them. Id.
When the deputies attempted to take control of plaintiff, she stiffened up, tried to pull away, and started kicking at them, ending up on her back on the ground. Id. ¶ 5. To take control of the situation and prevent plaintiff from escaping or assaulting them, the deputies rolled plaintiff on her stomach and held her there while Deputy Wade retrieved the toothpaste. Id. Deputy Poe states that the time period between when the deputies tried to take control of plaintiff to when Deputy Wade retrieved the toothpaste from plaintiff's pants was “very quick. Id. Deputy Poe was able to retrieve the toothpaste in less than five seconds. Id. Deputy Poe denies that he put his hands in plaintiff's pants or underwear. Id. ¶ 6. Upon retrieving the toothpaste, the three deputies exited plaintiff's cell, and plaintiff yelled, “Wade, I am going to f**king kill you!” Id.
Deputy Wade also prepared a declaration in which she described that Deputy Poe and Deputy Kelley were outside plaintiff's cell trying to convince her to voluntarily turn over the toothpaste, but she refused. Wade Decl. ¶ 3, ECF 67. Deputy Wade tried ordering plaintiff to relinquish the toothpaste, but she did not comply. Id.
Deputy Wade describes that after the deputies entered the cell, plaintiff continued to verbally challenge them and clearly indicated with her posture that the only way the deputies would be able to retrieve the toothpaste was to physically take it from her. Id. ¶ 4. Plaintiff refused several commands to turn around and put her hands behind her back. Id. When Deputy Poe and Deputy Kelley attempted to take physical control of plaintiff, she began jerking away from them and it appeared as if she threw herself on the ground. Id. While plaintiff was on her back, she kicked at the deputies with her feet. Id. ¶ 5.
Deputy Poe and Deputy Kelley were able to roll plaintiff onto her stomach while Deputy Wade recovered the toothpaste from the rear of plaintiff's pants. Id. According to Deputy Wade, Deputy Poe did not put his hands in plaintiff's pants or underwear. Id. ¶ 6.
Deputy Wade contends that plaintiff tried to keep her from locking the door and said she was going to “f***king kill” her. Id. Deputy Wade described that plaintiff had a history of behavior that seemed calculated to require staff to enter her cell, like causing the sinks and toilets to flood and covering her cell window. Id. ¶ 7. She also described having many prior interactions with plaintiff in which plaintiff appeared obsessed with being released. Id. This made Deputy Wade concerned that plaintiff was acting out as part of an escape plan. Id. ¶ 7.
Defendants have corroborated plaintiff's history of problematic behavior with records showing plaintiff had numerous write ups in 2018. See ECF 68-1, at 15 (as of September 14, 2018, plaintiff had 15 write ups since being incarcerated in April 2018). There are too many incidents to describe in detail, but they include plaintiff repeatedly flooding her cell (ECF 68-1, at 8, 10, 14, 15, 19, 22, 27), striking and threatening officers and other inmates (ECF 68-1, at 4, 6, 9, 25), ripping up her mattress (ECF 68-1, at 12), damaging other property (ECF 68-1, at 1, 26), and at least two prior attempts to cover her cell window (ECF 68-1, at 12, 20); see also Id. at 18 “Inmate Sandoval's conduct has been ongoing for the entirety of her incarceration and still continues.”); id. at 20 (“Sandoval continues to display insolence towards staff on a daily basis.”).
Plaintiff told deputies, “I was mad because you would not let me out of jail to go to work so I ripped the mattress to pieces.” ECF 68-1, at 23.
C. Analysis
Certain important facts are undisputed: Plaintiff admits it is necessary to keep cell windows clear for inmate safety. It is uncontroverted that plaintiff's use of toothpaste for something other than its intended purpose was a rule violation rule. Plaintiff also admits she refused to give the deputies the toothpaste and intentionally put it in her pants. Plaintiff does not dispute she had a history of behavior that seemed calculated to require staff to enter her cell, like causing the sinks and toilets to flood and covering her cell window, and that she had threatened to assault staff members on multiple occasions and had been in at least one violent encounter with another inmate.
Even viewing the facts in the light most favorable to plaintiff, the deputies' use of force was objectively reasonable under the circumstances. If the deputies did not immediately retrieve the toothpaste, plaintiff could have blocked the entire cell window with it. By quickly gaining control of the situation, the deputies prevented a security hazard. Upon retrieving the toothpaste, the deputies immediately left plaintiff's cell. The amount of force used was objectively reasonable, especially given plaintiff refused to cooperate and had a history of threats toward deputies and violent behavior.
Moreover, even assuming there was a cross-gender search, as plaintiff claims, such a search is allowed under exigent or emergency circumstances. See Byrd v. Maricopa Cty. Sheriff's Dep't, 629 F.3d 1135, 1143 (9th Cir. 2011) (“Courts throughout the country have universally frowned upon cross-gender strip searches in the absence of an emergency or exigent circumstances.”). Again, here, plaintiff engaged in activity that posed a security risk and had a history of behavior that jeopardized the safety of the deputies. Retrieving the toothpaste as quickly as possible, even if it meant a male officer briefly assisted, was not objectively unreasonable under the circumstances.
V. October 15, 2018
In the amended complaint, plaintiff alleges that “around noon” on October 15, 2018, she was “[a]ttacked by 4 deputies Eggleston, Osborne, McIrvin, + Childers in my cell and made to go to court[.] [T]hey physically drug me there.” Am. Compl. 5, ECF 11.
At her deposition, plaintiff testified that she was sleeping in her cell when the deputies “came in and said, ‘You got court, Sandoval. You got court.'” Pl.'s Dep. 57, ECF 69-1. Plaintiff contends Deputy Eggleston then “put his knee in my back, ” handcuffed her, and “drug me to court.” Id. at 58, 59.
Plaintiff claims she told the deputies, “I'm not going to court without an attorney.” Id. at 58-59. Plaintiff explained that she had been “trying to get” attorney Ethan Levi, who “sues jails and prison, ” to be her lawyer and believed that without him, she “had a right not to go to court.” Id. at 59-60. Plaintiff admits that Levi never actually represented her. Id. at 60. Moreover, the October 15, 2018 proceeding related to a criminal charge not a civil suit. Id. Plaintiff explained that for this criminal case, she had “appointed counsel that I fired, and he didn't seem to get the point. . . His name was Daniel Bouck, . . . And even though I fired him, he still showed up to court.” Id. at 60-61. Plaintiff claimed she was representing herself in the criminal matter. Id. After her court appearance, plaintiff returned to her cell without incident. Id. at 63.
Again, even viewing the evidence in the light most favorable to plaintiff, the deputies' use of force was not objectively unreasonable under the circumstances. Plaintiff admits she refused to go to court voluntarily, and the deputies used a reasonable amount of force to handcuff plaintiff and take her to her court appearance that day.
VI. October 31, 2018
In her Amended Complaint, plaintiff alleges that Deputy Eggleston and Deputy Pierce lied to her and then physically forced her to go inside Oregon State Hospital (“OSH”) where she was confined. Am. Compl. 4, 5, ECF 11.
At her deposition, plaintiff testified that Deputy Eggleston and Deputy Pierce lied to her and did not tell her where she was going. Pl. Dep. 44, ECF 69-1. She also claimed they “forced me to go in” to OSH. Id. at 45. Plaintiff admitted that a judge had signed an order for her to be evaluated at OSH, but claimed, “I still have rights. I'm not mentally retarded, and I'm not stupid, ” and “I didn't need to go to the Oregon State Hospital . . . not even to be evaluated.” Id. Plaintiff claimed, “[T]hey shouldn't have put their hands on me. They shouldn't have tried to rip me out of the car and force me down to the ground.” Id. at 46. Plaintiff claimed Deputy Pierce “put her hands on me, and she threw me down to the ground, ” and Deputy Eggleston “did the same thing.” Id. at 46. She testified she suffered bruising on her left arm and cheek. Id. at 47, 51.
Plaintiff also admitted, however, that she was not going to OSH voluntarily. Id. at 46. Plaintiff admitted that she refused to get out of the car and said, “No. I'm not going in there.” Id. Plaintiff testified that she was “trying to finagle, ” i.e., “tried to get out from underneath of them, to get back up, to try and sit back up, ” but “they basically threw me down to the ground, and I was just trying to get up, you know, and, like, leave. I wanted to get out of there.” Id. at 51. She stated, “All I was trying to do was get out from underneath of them and get away, like be free and not be touched.” Id. at 55. Plaintiff asserted, “I don't want to be physically touched or physically forced to do something I don't want to do.” Id. at 46.
The deputies' actions were not objectively unreasonable under the circumstances. Their use of force was not excessive, particularly in light of the fact that plaintiff, by her own admission, was “actively resisting.” See Kingsley, 576 U.S. at 397.
VII. Qualified Immunity
Defendants ask the court to find that they are entitled to qualified immunity. Mot. 19, ECF 63. It is unnecessary to reach that issue because there is no constitutional violation. See Saucier v. Katz, 533 U.S.194, 201 (2001) (observing that “the initial inquiry” in the qualified immunity analysis is whether “the facts alleged show the officer's conduct violated a constitutional right”).
VIII. Claims Against Sergeant Turner
In her Amended Complaint, plaintiff vaguely contends that “several incidences happened at the jail . . . under Sargeant Turner+ all other staff's supervision.” Am. Compl. 5, ECF 11. At her deposition, plaintiff admitted that Sergeant Turner was not present at any of the four incidents discussed above. Pl.'s Dep. 135, ECF 69-1. As Sergeant Turner correctly contends, “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Id. Therefore, plaintiff's claims against Sergeant Turner fail on that ground.
Plaintiff also alleges: “Sargeant Turner denied me! He was one of the ones that got a thrill out of seeing me in pain, + crying. He was emotionally badgering me, negligent to me, mentally abusive.” Am. Compl. 8, ECF 11. In her declaration, plaintiff claims Deputy Turner yelled at her that she was “never getting out.” Pl.'s Decl. 5, ECF 79. In her deposition, plaintiff testified that Sgt. Turner “emotionally damaged me . . . He would yell at me. He refused - when I wanted a shower, I was refused to get showers. I was refused mean - abuse, I guess. Emotional abuse is what I could call it.” Pl.'s Dep. 135-36, ECF 69-1.
These actions do not rise to a constitutional violation. See Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997) (“We are mindful of the realities of prison life, and while we do not approve, we are ‘fully aware that the exchange of verbal insults between inmates and guards is a constant, daily ritual observed in this nation's prisons.'”) (quoting Morgan v. Ward, 699 F.Supp. 1025, 1055 (N.D.N.Y. 1988)); Watison v. Carter, 668 F.3d 1108, 1112-13 (9th Cir. 1997) (finding plaintiff's “humiliation” not enough to constitute an objectively serious injury and dismissing Eighth Amendment claim on objective prong); see also 42 U.S.C. § 1997e (“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).”). Therefore, all claims against Sergeant Turner must be dismissed.
IX. Solitary Confinement, Showers, and Unsanitary Conditions
Plaintiff alleges, “They left me in ISO for 2 mos.” and she had “[n]o shower for 5 days.”Am. Compl. 5, ECF 11. In her declaration, plaintiff attests that between April 6 and May 29, 2018, she was kept in an isolation cell for 54 days with no exercise or fresh air. Pl.'s Decl. 1, ECF 79. She claims she was unable to shower for five days at a time and “fed through a food slot that had poop (fecal matter) on the food slot and was in no way sanitary.” Id. She claims “[t]here was also blood, poop, and spit on the walls as well as the ISO cell smelling of urine and it had toilet paper stuck to the walls and ceiling.” Id. She claims she asked for cleaner and was denied. Id.
Plaintiff also alleges she “was denied grievances, phone calls, letters, mail, attorney.” Id. However, in her Amended Complaint, plaintiff did not allege a claim for denial of access to courts. Even if she had, she would have to “demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded, ” which she has not done. Lewis v. Casey, 518 U.S. 343, 352-53 (1996). Therefore, the court does not address this argument any further.
Jail records show that during the “sixtythree (63) days Ms. Sandoval was housed in an area without free access to a shower between August 22, 2018 to October 31, 2018 she was offered access to the shower fifty-seven (57) times, despite exhibiting behavior issues during some of these trips to the shower area. Ms. Sandoval accepted and took a shower on thirty-three of these occasions and refused or declined to go on the other twenty-four (24) occasions.” Root Decl. ¶ 2(a), ECF 82.
In response to these allegations, defendants have offered evidence that cells are cleaned every time a new individual is housed in a cell, and the cells are “cleaned regularly, usually every couple of days when an individual leaves to take a shower” and “when an individual makes a mess that requires additional cleaning.” Root Decl. ¶ 2(c), ECF 82. Records show plaintiff was moved to a new cell 48 times and never maintained a single location for more than eight days in a row, and that she was moved because she had flooded her cell or was in a fight, or the cell had to receive a fresh coat of paint due to her misbehavior. Id.
Plaintiff does not allege how the individual defendants named violated her rights in this regard. Nevertheless, she fails to establish a claim for relief.
A. Solitary Confinement
Under the Fourteenth Amendment, pretrial detainees have “no constitutional right to a particular classification status.” Hernandez v. Johnson, 833 F.2d 1316, 1318 (9th Cir. 1987). However, a pretrial detainee may establish that she was punished for purposes of the Fourteenth Amendment by showing that the governmental action (1) caused her “to suffer some harm or ‘disability, '” and (2) the “purpose” of the classification was “to punish.” Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004). It is not necessary that the harm “be independently cognizable as a separate constitutional violation.” Id. However, “the harm or disability caused by the government's action must either significantly exceed, or be independent of, the inherent discomforts of confinement.” Id.
The test for identifying unconstitutional punishment at the pretrial state of a criminal proceeding “asks whether there was an express intent to punish, or ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].'” Id. at 1028 (quoting Bell, 441 U.S. at 538). While “[r]etribution and deterrence are not legitimate nonpunitive governmental objectives, ” Bell, 441 U.S. at 539 n.20, “maintain[ing] security and order” at the facility is, id. at 540.
Here, the reasons for plaintiff's placement in ISO are well documented. Plaintiff was placed in, or kept in, ISO for numerous behavioral problems, including repeatedly flooding her cell and damaging property. See supra, Sect. IV.B. On this record, there is no evidence of an express intent to punish plaintiff or that the confinement in ISO was for reasons other than to maintain security and order, given plaintiff's repeatedly disruptive and damaging behavior.
B. Showers
Denying showers for a pretrial detainee could constitute impermissible punishment under the Fourteenth Amendment. However, courts have held that the denial of showers for a week or longer does not rise to the level of an objective deprivation. See Jaros v. Illinois Dep't of Corr., 684 F.3d 667, 671 (7th Cir. 2012) (“limiting inmates to weekly showers does not violate the Eighth Amendment”); Centeno v. Wilson, No. 1:08-CV-1435-FJM, 2011 WL 836747 (E.D. Cal. March 4, 2011) (holding that the denial of showers for seven days did not amount to an Eighth Amendment violation); Pamer v. Schwarzenegger, No. CIV S-07-1902-MCE, 2010 WL 5418867, at *5 (E.D. Cal. Dec. 23, 2010), report and recommendation adopted, 2011 WL 1221198 (E.D. Cal. Mar. 29, 2011) (same for denial of showers for 15 days). “While the Ninth Circuit has not made any definitive determination as to how many showers are required per week for inmates, it has certainly not held that daily showers are required.” Hernandez v. Olmos, No. 1:11CV01495 LJO DLB, 2013 WL 5718566, at *3 (E.D. Cal. Oct. 18, 2013), report and recommendation adopted, 2013 WL 6230269 (E.D. Cal. Dec. 2, 2013).
Therefore, plaintiff's claim that she was deprived of showers for five days does not rise to a constitutional violation.
C. Unsanitary Conditions
“Although excessively or prolonged unsanitary conditions in a prison have been found to be unconstitutional, . . . [c]onditions of an unsanitary cell are not unconstitutional where there is no showing of a risk of physical harm caused by the unsanitary conditions, and where the alleged unsanitary conditions were not severe and prolonged.” Adcock v. Burton, No. 2:20-CV-0035 KJN P, 2020 WL 3073334, at *3 (E.D. Cal. June 10, 2020) (citing Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995), opinion amended on denial of reh'g, 75 F.3d 448 (9th Cir. 1995) (“lack of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment”). Here, the record contains no evidence that plaintiff suffered a risk of physical harm or that the unsanitary conditions were severe and prolonged.
Any claim that plaintiff makes against these defendants for denial of medical treatment lack merit for the reasons discussed in the June 9, 2021 Findings and Recommendations (ECF 103) that were adopted by Order on July 15, 2021. ECF 105.
X. Claims Against Anthony McIrvin, Mark Osborne, Kelly Dwight, Larissa Pierce, and Lonnie Kelley
Plaintiff testified during her deposition that defendants Anthony McIrvin, Mark Osborne, Kelly Dwight, and Lonnie Kelley were “not the ones I am actually suing” and that she was “willing to dismiss them.” Hisel Decl., Ex. 1, Tr. 133, ECF 69-1. Additionally, during conferral on the motion for summary judgment, plaintiff “informed [defense counsel] that she was voluntarily dismissing defendants Lonnie Kelley, Kelly Dwight, Anthony McIrvin, Mark Osborne and Larissa Pierce from this lawsuit.” Hisel Decl., ¶ 2, ECF 69.
Plaintiff's allegations against Deputy Dwight are also discussed in Section III, supra.
In plaintiff's response to the motion for summary judgment, she makes no mention of McIrvin or Osborne. Plaintiff claims that Kelley “is also guilty of threatening to cause harm over a tube of toothpaste.” Pl.'s Decl. 9, ECF 79. However, plaintiff testified during her deposition that Kelley “didn't touch me - he didn't do anything, ” and that he should be dismissed from this lawsuit because “he didn't do anything.” Pl.'s Dep. 132-33, ECF No. 69-1.
Thus, it appears plaintiff has abandoned her claims against these individuals. Regardless, there is no constitutional violation for the reasons discussed herein.
XI. Claims Against Deputy Childers
Deputy Childers' sole involvement in this case is related to the October 15, 2018 incident where he helped handcuff plaintiff to take her to court. Pl.'s Dep. 92, ECF 69-1. On June 8, 2021, the court ordered plaintiff to, within 30 days, provide documents to the Clerk of Court for service on defendant Deputy Childers or he would be dismissed from the case. ECF 100. More than 30 days has passed, and plaintiff has failed to comply with that order. Therefore, the claims against Deputy Childers should be dismissed.
RECOMMENDATIONS
The Motion for Summary Judgment (ECF 63) should be GRANTED and this case should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, September 13, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.