Opinion
No. C10-5032 BHS/KLS
08-12-2011
CHARLES S. TILLMAN, Plaintiff, v. CRYSTAL DIXON, SYLVIA WASHINGTON, FRANK SAN NICOLAS, KENNETH RICONOSCUITO, and TRUDY MILLER, Defendants.
REPORT AND RECOMMENDATION
Noted for: September 2, 2011
Presently before the Court is the Motion for Summary Judgment of Defendants Trudy Miller, Kenneth Riconoscuito, and Frank San Nicolas (referred to collectively as "the SCC Defendants"). ECF No. 44. Plaintiff has filed no response to Defendants' motion for summary judgment. His failure to file papers in opposition may be deemed as an admission that the Defendants' motion has merit. Local Rule 7(b)(2). Having reviewed the motion and supporting declarations and balance of the record, the Court recommends that Defendants' motion for summary judgment be granted.
SUMMARY INTRODUCTION
Plaintiff Charles Tillman is an adjudicated sexually violent predator in the custody of the Department of Social and Health Services' Special Commitment Center (SCC). The SCC is a total confinement treatment facility. Mr. Tillman brings this 42 U.S.C. § 1983 civil rights lawsuit alleging constitutional violations regarding his placement and the conditions in SCC's Intensive Management Unit (IMU). Mr. Tillman was placed in the IMU after an item thought to be a homemade sharp was found during a search of his room. It was later determined that the item was a tool from an ink cartridge refill kit and Mr. Tillman admitted that by possessing the item he violated SCC policy against contraband.
Mr. Tillman claims that his constitutional rights were violated during his 23 day stay in the IMU, because he was denied hygiene items, visitors, telephone access, and medical care (as to Defendant San Nicolas only). Defendants Kenneth Riconoscuito, Trudy Miller, and Frank San Nicolas are Residential Rehabilitation Counselors (RRCs) at the SCC, and were so employed in January of 2007.
STATEMENT OF FACTS
The SCC is a secure total confinement treatment facility for sexually violent predators (SVPs). The SCC's dual role is to: (1) provide sex offender treatment to its residents; and (2) protect the community from the risk of sexual violence. All persons residing at the SCC are detained or committed to the facility only after a court has found probable cause to believe, or a court or jury has found, that such persons represent a risk of sexual violence. ECF No. 45 (Declaration of Cathi D. Harris, Associate Superintendent of SCC), pp. 1-2.
Contraband at the SCC has been a continuing problem throughout the history of the facility. On December 26, 2006, an SCC staff member was assaulted by a resident who was apparently intoxicated. A search of the unit where the assault occurred produced several quarts of fermented liquid and handmade weapons. Following this assault, it was brought to the attention of then-Superintendent Henry Richards that there were numerous reports of potentially lethal weapons within the facility, as well as the continuing manufacture of intoxicants and the introduction of illegal drugs. Based on this pattern of security concerns, Superintendent Richards determined that a complete security sweep of the facility was necessary to ensure the safety and security of SCC residents, staff, and others who enter the facility. ECF No. 45 (Harris Decl.), p. 2.
On January 8, 2007, a room search of Mr. Tillman's quarters was conducted by RRCs Sylvia Washington and Rob Jenks, who discovered contraband items, including what looked to be a homemade sharp. Mr. Tillman received a Behavior Management Report (BMR) for a Category 1 violation of SCC policy against contraband and was placed in the Intensive Management Unit (IMU). ECF No. 45, p. 2.
Defendant Sylvia Washington has not been served and the Court has no jurisdiction over her. Claims against Ms. Washington are not the subject of the SCC Defendants' motion for summary judgment.
While Mr. Tillman was in the IMU, the SCC underwent a lockdown and thorough security sweep of the entire facility from January 23, 2007 to January 25, 2007. During this time, all SCC residents were confined to their bedrooms or living units and they received meals on their living units. Also during this time, all common areas of the facility (e.g., the gym) were closed. All operations returned to normal by January 29, 2007. ECF No. 45 (Harris Decl.), p. 2.
On January 30, 2007, an administrative review panel affirmed that the object found during the search of Mr. Tillman's room was an unauthorized sharp and upheld the Category 1 BMR. The sharp contraband item was determined to be a tool from an ink cartridge refill kit. During the hearing, Mr. Tillman admitted that by possessing the item he violated SCC policy against contraband. ECF No. 45 (Harris Decl.), p. 3.
SCC Policy 406, Operation of the Intensive Management Unit (IMU) (Attachment B) governs the standard operating procedures of the IMU. The purpose of the IMU policy is to provide a controlled environment with limited external stimuli as part of a continuum of interventions to meet therapeutic safety and security needs as determined through professional assessment. ECF No. 45 (Harris Decl.), Attach B - Policy 406 (ECF No. 45-2, pp. 1-11). The standard operating procedures in the IMU include resident observation every 15 minutes by SCC staff, monitored showering by SCC staff, and escorted movement with restraints outside of the resident's room by SCC staff. Regarding medical care, IMU residents may submit daily written requests to the SCC Health Clinic to seek non-emergent services. When a resident feels that his medical problem is a life or death issue, he can request emergency medical care at any time. In accordance with policy, IMU residents are not allowed to make personal phone calls, but are allowed one daily legal call. A resident of the IMU is allowed to send and receive personal and legal mail each business day. Access to rolls of toilet paper is restricted in the IMU to prevent residents from using the rolls to stop up the toilets. IMU residents are provided 20 minutes each day to perform personal hygiene tasks, including showering, and are provided clothing, a basic supply kit, linen and bedding, and daily room cleanings. Id.
Each item is included in SCC Policy 406 in order to maintain order and safety within the facility. These policies were created based on the professional judgment of SCC officials. ECF No. 45 (Harris Decl.), p. 3. SCC uses administrative placement as a means to address institutional safety and security requirements, for example: to protect others when a resident willfully creates a serious risk of harm to others; when a resident has engaged in activity that is a threat to institutional safety or security; or when a resident has engaged in conduct that could be the subject of a criminal investigation. According to Ms. Harris, Mr. Tillman's stay in the IMU was authorized by then-Superintendent Henry Richards as one among other security precautions enacted in January of 2007. Mr. Tillman was not subjected to discipline for violation of SCC rules. Instead, he was placed on IMU status based on the professional judgment of SCC staff to preserve institutional security due to the potential threats posed. Placement of Plaintiff in the IMU was not done for punitive purposes, but rather as a security precaution. ECF No. 45, p. 4.
Ms. Harris states that during his time in IMU in January, 2007, Mr. Tillman was allowed to shower and recreate daily, as well as place telephone calls on the legal phone. ECF No. 45 (Harris Decl.), p. 3.
Mr. Tillman does not dispute that the item found in his room was a tool from an ink cartridge refill kit and he does not dispute that his possession of the tool violated SCC contraband rules. However, he disputes that Michelle Guyer from the "rec department" reported to Sylvia Washington that the item looked "homemade." ECF No. 20, pp. 8-9. He also alleges that he did not know why he was being held in the IMU and when he questioned Advocate Donna Waters, she said she did not know but that he was not being held as a sanction for any misbehavior. ECF No. 20, p. 5.
Mr. Tillman alleges that he was not given soap until after he had been in the IMU for 5 days. ECF No. 20, p. 5. Also, while housed in the IMU, Plaintiff alleges that he was not allowed to receive mail or contact his family for 10 days; he was allowed access to the legal phone only which did not allow out of state calls or long distance calls after 5:45 p.m. or on the weekends; he was forced to eat his meals after using the toilet without washing his hands with soap; he had to dry his hands on his blanket since he was not allowed a towel or washcloth; he could not brush his teeth except at shower times; he was observed approximately 2,200 times in 23 days even while using the toilet; he was not allowed to cut his nails; his bedding was not replaced and he was not allowed to clean his cell; he was given only a few squares of toilet paper per day until January 23, 2007, when he was given a full roll of toilet paper; he was cuffed and placed in a locked shower room while his cell was searched on January 24, 2007; and, he was forced to wear mechanical restraints and a leash if he wanted to take a shower. Id., p. 8. Mr. Tillman alleges that Defendants Miller, Riconoscuito, and San Nicolas ignored Dr. Sziebert's January 18, 2007 directive that physical restraints were not to be used on Mr. Tillman. Id. Mr. Tillman alleges that Dr. Sziebert signed "a slip for Current Conditions," and under Behavioral Contingencies, wrote the words: "physical restraints if uncooperative/ undirectable." Id., p. 5. Mr. Tillman interprets this language to mean that no restraints were to be used on him while he was in the IMU. The directive referred to by Mr. Tillman is not part of the Court's record.
Plaintiff refers to January 18, 2009 in his complaint; however, it is clear from the context of Plaintiff's allegations that the conduct alleged occurred during the time he was in IMU in January of 2007.
Mr. Tillman also alleges that on January 25, 2007 he felt ill. However, when he requested Tylenol or aspirin to relieve his headache, RRCs T. France and RRC Romano (who are not parties to this suit), refused his request because Mr. Tillman did not have permission from medical to receive any medications. ECF No. 20, p. 7. When he asked to speak to a supervisor, Mr. Tillman alleges that Defendant San Nicolas told the desk staff that he would not speak with Plaintiff. Mr. Tillman states that he suffered a long night of chills with a pounding headache and when he again asked RRCs Alan Shaw and Tim Persons (who are not parties to this suit) for Tylenol and aspirin on January 26, 2007, he was told he needed a PRN from medical. Mr. Tillman claims that he could not obtain a PRN from medical while he was housed in the IMU. Id.
On January 30, 2007 at the administrative hearing for the BMR, Plaintiff was found guilty of possession of contraband. He was sanctioned and on the next day, January 31, 2007, he was released from IMU. ECF No. 20, p. 7.
Plaintiff refers here again to 2009, but the context suggests 2007 is the correct year.
Mr. Tillman alleges that he filed an abuse complaint on February 16, 2007 and a grievance on February 23, 2007, complaining that he was abused and mistreated while he was housed in the IMU. ECF No. 20, p. 9. On March 26, 2007, Crystal Dixon, a supervisor of the IMU, met with him to discuss his complaints of mistreatment by Defendants Miller, Riconoscuito, and San Nicolas, who were under Defendant Dixon's supervision. Ms. Dixon never got back to Mr. Tillman regarding his concerns or possible remedies. Id.
Defendant Crystal Dixon has not been served and the Court has no jurisdiction over her. Claims against Ms. Dixon are not the subject of the SCC Defendants' motion for summary judgment.
On June 24, 2007, Plaintiff requested a hearing from the DSHS Office of Administrative Hearings. Plaintiff alleges that on July 11, 2007, he received a communication from Dr. Richards stating that Plaintiff's extended stay in the IMU was the result of a security precaution because of the potential weapon and that although procedures used against Plaintiff were not altered or adapted quickly enough, it was unfortunate that Plaintiff endured such restrictions. Id., p. 10. This communication is not part of the Court's record.
See fn.3.
On August 13, 2007, Administrative Law Judge Robert C. Krabill dismissed Plaintiff's request for a DSHS administrative hearing for lack of jurisdiction. Id., p. 10.
STANDARD OF REVIEW
The 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. Fed. R. Civ. P. 56(a). The moving party has the initial burden of production to demonstrate the absence of any genuine issue of material fact. Playboy Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020, 1023-24 (9th Cir. 2004). A nonmoving party's failure to comply with local rules in opposing a motion for summary judgment does not relieve the moving party of its affirmative duty to demonstrate entitlement to judgment as a matter of law. Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003).
"If the moving party shows the absence of a genuine issue of material fact, the non-moving party must go beyond the pleadings and 'set forth specific facts' that show a genuine issue for trial." Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986)). The non-moving party may not rely upon mere allegations or denials in the pleadings but must set forth specific facts showing that there exists a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). A plaintiff must "produce at least some significant probative evidence tending to support" the allegations in the complaint. Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990). A court "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found." Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1031 (9th Cir. 2001). This is true even when a party appears pro se. Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007).
Where, as here, the nonmoving party is pro se, a court must consider as evidence in opposition to summary judgment all contentions "offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the party appearing pro se] attested under penalty of perjury that the contents of the motions or pleadings are true and correct." Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (citation omitted), cert. denied, 546 U.S. 820, 126 S. Ct. 351, 163 L.Ed.2d 61 (2005).
DISCUSSION
To state a claim under 42 U.S.C. § 1983, at least two elements must be met: (1) the defendant must be a person acting under color of state law; and (2) his conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Implicit in the second element is a third element of causation. See Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 286-87 (1977); Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir. 1980), cert. denied, 449 U.S. 875 (1980). When a plaintiff fails to allege or establish one of the three elements, his complaint must be dismissed. The Civil Rights Act, 42 U.S.C. § 1983, is not merely a "font of tort law." Parratt, 451 U.S. at 532. The plaintiff may have suffered harm, even due to another's negligent conduct, but that does not in itself necessarily demonstrate an abridgement of constitutional protections. Davidson v. Cannon, 474 U.S. 344 (1986).
Here, Mr. Tillman's claims that Defendants Miller, Riconoscuito, and San Nicolas violated his constitutional rights by failing to provide him with a safe, sanitary, and humane environment free of abuse and that they employed excessive restraints. He also claims that he was denied medical treatment (as to Defendant San Nicolas only). Id., p. 11. Defendants argue that: (1) Mr. Tillman's allegations against Defendants Miller and Riconoscuito are time barred; (2) the Eleventh Amendment bars claims against them in their official capacities; (3) there are no allegations that they personally participated in any constitutional deprivation; (4) Mr. Tillman's placement in the IMU and policies governing his stay were based on professional judgment; (5) Mr. Tillman's placement in the IMU did not violate his due process rights.
A. Statute of Limitations - Claims Against Miller and Riconoscuito
Defendants Miller and Riconoscuito argue that the claims against them should be dismissed because they fall outside the statute of limitations. Mr. Tillman alleges injuries occurring from January 8, 2007 through January 31, 2007. ECF No. 20, pp. 4-7. He filed his original complaint on January 7, 2010. ECF No. 1-5 (docketed at ECF No. 4 after Order Granting Motion for Leave to Proceed In Forma Pauperis (ECF No. 3)). He did not name Trudy Miller or Kenneth Riconoscuito as defendants and he did not raise any allegations against them. Id.
In his original complaint, Plaintiff named as defendants Crystal Dixon, Sylvia Washington, and Frank San Nicolas, all of whom were employed at the Stafford Corrections Center (SCC) during the time of Plaintiff's allegations. ECF No. 4. After an unsuccessful attempt to serve these defendants, the Court directed Plaintiff to provide current addresses for them. ECF No. 13, p. 2. On May 24, 2010, Plaintiff sought leave to amend his complaint to add defendants still working at the SCC so that the suit could continue forward until it was decided how the other defendants would be served. ECF No. 16. That motion was granted on June 14, 2010 (ECF No. 18), and Mr. Tillman's Amended Complaint adding Defendants Miller and Riconoscuito was docketed. ECF Nos. 16 at 2; ECF No. 20 at 12-13.
For actions under 42 U.S.C. § 1983, federal courts generally apply the forum state's statute of limitations for personal injury actions. Canatella v.Van de Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007). In Washington, actions for personal injury must be commenced within three years of the date the claim accrues. Wash. Rev. Code 4.16.080(2). An action accrues "when the plaintiff knows or has reason to know of the injury which is the basis of the action." Canatella, 486 F.3d at 1133 (quoting TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)).
As noted above, Mr. Tillman alleges injuries occurring from January 8, 2007 through January 31, 2007. ECF No. 20, pp. 4-7. His Amended Complaint naming Miller and Riconoscuito was not submitted until May 24, 2010. ECF No. 16. Thus, the claims against Defendants Miller and Riconoscuito were commenced beyond three years of the date Mr. Tillman's claims accrued.
Under the Federal Rules of Civil Procedure, an amendment to a pleading relates back to the date of the original pleading when:
"(A) the law that provides the applicable statute of limitations allows relation back;Fed. R. Civ. P. 15(c)(1).
"(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or
"(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
"(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
"(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity."
Rule 15(c) governs when an amended pleading "relates back" to the date of a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations. Where an amended pleading changes a party or a party's name, the rule requires, among other things, that "the party to be brought in by amendment . . . knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485, 2489 (2010), quoting Fed. R. Civ. P. 15(c)(1)(C). Relation back under Rule 15(c)(1)(C) does not depend on the amending party's knowledge or timeliness in seeking to amend the pleadings. The rule asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing the original complaint. Id. at 2493.
As noted by the United States Supreme Court, the "typical case" of Rule 15(c)(1)(C)'s applicability is the circumstance of a plaintiff filing an amended complaint seeking to bring in a new defendant. Krupski, 130 S.Ct. at 2493 fn3.
A prospective defendant who legitimately believed that the limitations period had passed without any attempt to sue him has a strong interest in repose. But repose would be a windfall for a prospective defendant who understood, or who should have understood, that he escaped suit during the limitations period only because the plaintiff misunderstood a crucial fact about his identity. Krupski, p. 2494.
Here, there is nothing in the initial pleading suggesting that Defendants Miller and/or Riconoscuito were intended parties. There is also nothing in the record (of which either of these Defendants should have been aware) that Mr. Tillman would seek to add them after learning that other SCC employees originally named in his complaint were no longer employed at the SCC. Thus, Rule 15(c)(1) is not satisfied, Mr. Tillman's allegations against Defendants Miller and Riconoscuito do not relate back to his original complaint, and the allegations are beyond the three-year statute of limitations.
Further, there is no showing of bad faith, deception, or false assurances by the Defendants, from which it may be inferred that equitable tolling may apply. ("The predicates for equitable tolling are bad faith, deception, or false assurances by the defendant and the exercise of diligence by the plaintiff." (Millay v. Cam, 135 Wn.2d 193, 955 P.2d 791 (1988); See also Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 811, 818 P.2d 1362 (1991); State v. Duvall, 86 Wn.App. 871, 940 P.2d 671 (1997)).
It is recommended that Defendants Miller and Riconoscuito be granted summary judgment on Plaintiff's claims against them because they are time-barred.
B. Eleventh Amendment Bars Official Capacity Claims
Absent a waiver of sovereign immunity, neither states nor state officials in their official capacities are subject to suit in federal court under 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). The limited exception to this rule is found in Ex parte Edward T. Young, 209 U.S. 123 (1908). In Young, the court held that if the suit involves an injunction seeking a prospective remedy for a continuing violation of federal law, a federal court may enjoin state officials from continuing such activities. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 281 (1997) (citing Young).
Here, Mr. Tillman requests money damages from the SCC Defendants based on their roles as supervisors of SCC program areas. See, e.g., ECF No. 20 at 8 ¶ 30. To the extent these allegations can be understood as claims against the SCC defendants in their official capacities, it is recommended that the official capacity claims be dismissed because liability for money damages is not permitted under the Eleventh Amendment of the Constitution. Will, 491 U.S. at 71.
C. Personal Participation of the SCC Defendants
To sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (1) that he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) that the violation was caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, or omitted to perform an act which he was legally required to do that caused the alleged deprivation. Arnold v. International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).
Supervisory personnel are generally not liable under § 1983 for the actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no respondeat superior liability under § 1983). A supervisor is liable only for the constitutional violations of subordinates if the supervisor participated in or directed the violations. See id. Knowledge and acquiescence in a subordinate's unconstitutional conduct is insufficient; government officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
When a defendant holds a supervisory position the causal link between such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1979). Vague and conclusory allegations concerning the involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents of University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S. Ct. at 1948.
In his Amended Complaint, Mr. Tillman makes no allegation from which it may be inferred that any of the SCC Defendants personally participated in a deprivation of his constitutional rights. For example, Mr. Tillman complained to RRC Modlin about the lack of soap in the IMU. ECF No. 20 at 5 ¶ 18. Mr. Tillman complained to RRC T. Smith that he was not given a nail clipper and had to bite his nails. ECF No. 20 at 6 ¶ 21. Mr. Tillman complained to RRCs T. France, Romano, Alan Shaw and Tim Persons when he was not given aspirin for a headache. ECF No. 20 at 6-7 ¶¶ 25-27. Mr. Tillman alleges that RRC Sylvia Washington was responsible for his placement in the IMU because she discovered the item appearing to be a homemade sharp during his room search and wrote the BMR. ECF No. 20 at 4-5 ¶ 17. None of the individuals named above (with the exception of Sylvia Washington who has not been served) are parties to this lawsuit.
In fact, there are no allegations that any of the SCC Defendants personally participated in any of these alleged constitutional violations of his rights (except arguably, as to Defendant San Nicolas with regard to the denial of medical care, which is addressed more fully below). In his allegations, Mr. Tillman either refers to a non-SCC defendant, or an individual who is not named as a defendant, as violating his rights. The SCC Defendants are mentioned only in the amended complaint as supervisors of the program area who failed to ensure staff followed an alleged recommendation against mechanical restraints when Mr. Tillman left his room. ECF 20 at 8 ¶ 30.
According to Associate Superintendent Harris and SCC Policy 406, all residents residing in the IMU are to be moved between "activities such as room to recreation, shower stall to room, room to medical clinic, etc. in handcuffs under escort. See ECF No. 45, p. 3; ECF No. 45-2, p. 5. Policy 406 also provides that the only restraints that may be used in IMU are handcuffs or as necessary flex-cuffs, unless otherwise directed by the authorizing entity in writing in the form of a flow-sheet or Current Conditions document. ECF No. 45-2, p. 5. Mr. Tillman however, states that Dr. Sziebert signed a Current Conditions document stating "there should be no restraints." ECF No. 20, p. 8. There is no evidence independent of Mr. Tillman's allegation that such a directive was given. The directive is not part of the Court's record and therefore, it is impossible to test whether Mr. Tillman's interpretation of the quoted language is reasonable. Assuming, for purposes of this summary judgment motion only that Dr. Sziebert directed that no restraints were to be used on Mr. Tillman while he was in the IMU, there is no evidence that the SCC Defendants ever restrained Mr. Tillman or that they were even aware that such a directive, which would have run counter to stated policies governing IMU detention, existed.
As Mr. Tillman names the SCC Defendants solely in their roles as supervisory RRCs (except as to Defendant San Nicolas with regard to the denial of medical care), it is recommended that the SCC Defendants dismissed from this lawsuit on the grounds that Mr. Tillman has failed to prove their individual participation in any constitutional deprivation.
D. Eighth Amendment - Medical Treatment
A prisoner's claim of inadequate medical care does not constitute cruel and unusual punishment unless the mistreatment rises to the level of "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The rights of one who is civilly committed are analyzed using the same standards that apply to pretrial detainees. Jones v. Blanas, 393 F.3d 918, 931-32 (9th Cir. 2004). The Eighth and Fourteenth Amendments both guarantee that inmates and detainees receive constitutionally protected medical care. Conn v. City of Reno, 572 F.3d 1047, 1054 (9th Cir. 2009). An officer's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment, and a fortiori, the Fourteenth. Id. at 1054-55.
The "deliberate indifference" standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). Second, the prison official must act with a "sufficiently culpable state of mind," which entails more than mere negligence, but less than conduct undertaken for the very purpose of causing harm. Farmer v. Brennan, 511 U.S. at 837. A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Id.
In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980), citing Estelle, 429 U.S. at 105-06. "[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir.1995); McGuckin v. Smith, 974 F.2d 1050, 1050 (9th Cir.1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997) (en banc). Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.1990). A prisoner's mere disagreement with diagnosis or treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989).
Thus, to prevail in his Eighth Amendment claim, Mr. Tillman must show that the SCC Defendants were deliberately indifferent to his serious medical needs. He has not done so. Mr. Tillman alleges here that on January 25 and January 26, 2007, he suffered a headache and chills. His requests for Tylenol or aspirin to relieve his symptoms were refused by RRC T. France, RRC Romano, RRC Alan Shaw, and RRC Tim Persons, because he had no "PRN from medical" for the dispensing of any medication. Mr. Tillman claims that he could not obtain a PRN from medical while he was housed in the IMU. None of these individuals are defendants in this case. The only SCC Defendant named in regard to this claim is Defendant San Nicolas, whom Mr. Tillman alleges refused to speak with him when Mr. Tillman asked that he be allowed to speak with a supervisor.
SCC Policy 406 provides that IMU residents may submit daily written requests to the SCC Health Clinic to seek non-emergent services, or where a resident feels that his medical problem is a life or death issue, he can request emergency medical care at any time. ECF No. 45 (Declaration of Harris), Attach. B (ECF No. 45-2), at 6 ¶ 13. There is no evidence that the SCC Defendants personally participated in any denial of medical care for Mr. Tillman's headache. Even assuming that Defendant San Nicolas was aware that Mr. Tillman was suffering from a headache and that he refused to speak with Mr. Tillman in the face of this knowledge, this is insufficient to show that Defendant San Nicolas deliberately ignored an excessive risk to Mr. Tillman's health or safety. There is no evidence that Mr. Tillman submitted any written requests to the SCC Health Clinic to seek non-emergent services nor does he allege that his headache was a life or death medical problem requiring emergency medical care.
Accordingly, it is recommended that the SCC Defendants' motion for summary judgment on this claim be granted.
E. Placement and Conditions in IMU
1. Initial Placement in IMU
Mr. Tillman alleges that his placement in the IMU, and that the conditions of his confinement while in IMU (i.e., the use of restraints, lack of access to the phone and mail, and inadequate personal hygiene items) violated his constitutional rights.
Courts have long recognized that the constitutional rights of pretrial detainees and inmates alike may be limited in the interest of jail security and order. Bell v. Wolfish, 441 U.S. 520, 547 (1979). This recognition includes the difficulty of operating a detention facility safely, the seriousness of the risk of smuggled weapons and contraband, and the deference owed jail officials' exercise of judgment in adopting and executing policies necessary to maintain institutional security. Id., 441 U.S. at 546-47. Government interests generally considered non-punitive include "maintaining jail security, and effective management of a detention facility." Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004).
The reasonable standards enunciated by the Supreme Court in Youngberg v. Romeo governs a determination of the constitutional rights of a person who is the subject of involuntary civil commitment:
'The Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.' Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. At the same time, this standard is lower than the 'compelling' or 'substantial' necessity tests the Court of Appeals would require a State to meet to justify use of restraints or conditions of less than absolute safety. We think this requirement would
place an undue burden on the administration of institutions . . . and also would restrict unnecessarily the exercise of professional judgment as to the needs of residents.Youngberg, 457 U.S. at 321-23 (internal citations omitted).
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For these reasons, the decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.
According to Associate Superintendent Harris, contraband at the SCC has been a continuing problem throughout the history of the facility. ECF No. 45, p. 2, ¶ 3. On December 26, 2006, an SCC staff member was assaulted by a resident who was apparently intoxicated. A search of the unit where the assault occurred produced several quarts of fermented liquid and handmade weapons. Id. Following this assault, it was brought to the attention of then-Superintendent Henry Richards that there were numerous reports of potentially lethal weapons within the facility, as well as the continuing manufacture of intoxicants and the introduction of illegal drugs. Id. Based on this pattern of security concerns, Superintendent Richards determined that a complete security sweep of the facility was necessary to ensure the safety and security of SCC residents, staff, and others who enter the facility. The presence of contraband and access to contraband by SCC residents is a legitimate security concern faced by the SCC. Id.
The record reflects that Mr. Tillman possessed a contraband sharp during a period of heightened security at the SCC and he was, therefore, placed in the IMU as a safety precaution. The contraband item was thought to resemble a homemade sharp and was later discovered to be a piece of ink cartridge refill kit. ECF No. 45 (Harris Decl.), p. 3. Mr. Tillman does not dispute that he possessed the item and that by possessing it, he violated SCC policy against contraband. The discovery of this item in Mr. Tillman's room occurred during a time when multiple threats of assault and actual assaults on staff had been made by residents. Id. After the discovery, Mr. Tillman was moved to the IMU on January 8, 2007 and remained in the IMU until his BMR administrative panel review on January 30, 2007, confirmed that the item appeared to be a homemade sharp and the Category 1 BMR was upheld. Id.
It is undisputed that SCC has an interest in maintaining security and that its policies against contraband and the use of the IMU as a safety precaution is reasonably related to that interest. It is also undisputed that Mr. Tillman was placed on IMU status based on the professional judgment of SCC staff that his placement was necessary to preserve institutional security due to the potential threats posed and the heightened security concerns existing at SCC at that time.
Viewing the summary judgment evidence in the light most favorable to Mr. Tillman, the Court concludes that Mr. Tillman's placement in the IMU did not violate his constitutional rights.
2. Conditions During Stay in IMU
SCC Policy 406 governed Mr. Tillman's treatment during his stay in the IMU. For example, Mr. Tillman complains that he was observed approximately 2,200 times in 23 days. ECF No. 20, p. 8, ¶ 29. However, SCC Policy 406 requires IMU staff to observe residents every 15 minutes to ensure their safety. ECF No. 45 (Harris Decl.), Attach. B, p. 4, ¶ 7. Mr. Tillman complains that he was not allowed to contact his family, and was only allowed to use the legal phone. ECF No. 20, p. 5, ¶ 20. However, SCC Policy 406 provides that IMU residents may not make personal phone calls, but do have access to the legal phone daily. ECF No. 45 (Harris Decl.), Attach. B, p. 9, ¶ 18. Mr. Tillman complains that he was required to wear restraints when moving outside of his room. ECF No. 20 at 6 ¶ 24. However, SCC Policy 406 requires the use of restraints anytime an IMU resident is escorted outside his room. ECF No. 45 (Harris Decl.), Attach. B, p. 5, ¶ 12. Mr. Tillman also complains that he was denied access to items such as nail clippers or hand soap. ECF No. 20, p. 8, ¶ 29. However, IMU residents (including Mr. Tillman) are provided 20 minutes each day to perform personal hygiene tasks, including showering, and are provided clothing, a basic supply kit, linen and bedding, and daily room cleanings. ECF No. 45, (Harris Decl.), p. 3, ¶ 7 and Attach. B, pp. 7-9, ¶ 17. Access to rolls of toilet paper is restricted in the IMU to prevent residents from using the rolls to stop up the toilets. ECF No. 45 (Harris Decl.), p. 3, ¶ 7 and Attach. B, pp. 7-9 ¶ 17.
According to Associate Superintendent Harris, each of the above-mentioned items is included in SCC Policy 406 in order to maintain order and safety within the facility and the governing policies were created based on the professional judgment of SCC officials. ECF No. 45 (Harris Decl.), p. 3, ¶ 8.
Viewing the evidence in the light most favorable to Mr. Tillman, the Court concludes that he has failed to assert a material issue of fact or right that rises to the level of a violation of his constitutional rights while he was in the SCC IMU in 2007. Mr. Tillman acknowledges in his complaint that the "SCC has the authority to take whatever measures they deem necessary to maintain a safe environment." ECF No. 20, p. 10, ¶ 39. As noted above, the heightened security measures taken during the time period at issue were legitimate, non-punitive actions in response to resident assaults and threats of assault on staff. Likewise, Mr. Tillman's placement in the IMU and the SCC policies governing his access to certain items, observation of his movements, and the use of restraints were legitimate, non-punitive actions in response to his possession of contraband during this period of heightened security. Accordingly, it is recommended that the SCC Defendants' motion for summary judgment on these issues be granted.
F. Due Process
Mr. Tillman argues that while the material discovered in his room was "contraband" under SCC Policy 401, the ink cartridge was not a "homemade" sharp. ECF No. 20, pp. 5-6, ¶ 20. To the extent Mr. Tillman is alleging that he should not have been placed in the IMU at all, there is no evidence that the SCC Defendants were involved in the confiscation of the item, the determination that it was a sharp or the recommendation that Mr. Tillman be placed in the IMU. Thus, and to the extent Mr. Tillman intended a claim that his due process rights were violated when he was placed in the IMU, there is no evidence that the SCC Defendants were involved in the alleged violation. Accordingly, it is recommended that the SCC Defendants' motion for summary judgment be granted on this issue.
To the extent Mr. Tillman is challenging that his placement in the IMU or the length of time he was kept in the IMU violated his due process rights, this claim also fails as his placement in the IMU was non-punitive. See e.g., Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ("maintaining jail security, and effective management of a detention facility" identified as government interests generally considered non-punitive). Id. at 932.
CONCLUSION
For the reasons stated above, the undersigned recommends that the motion for summary judgment of Defendants Trudy Miller, Kenneth Riconoscuito, and Frank San Nicolas (ECF No. 44) be GRANTED.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.), the parties shall have fourteen (14) days from service of this Report and Recommendation 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 appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on September 2, 2011, as noted in the caption.
DATED this 12th day of August, 2011.
/s/_________
Karen L. Strombom
United States Magistrate Judge