(PC) Buckley v. Alameida, et al, No. 1:2004cv05688 - Document 186 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Granting Defendants' Supplemental Motion for Summary Judgment 162 , signed by Magistrate Judge Gerald B. Cohn on 12/14/12. Referred to Judge O'Neill; Objections due within 14 days. (Verduzco, M)
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(PC) Buckley v. Alameida, et al Doc. 186 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANTONIO C. BUCKLEY, 10 Plaintiff, 11 12 CASE NO. 1:04-cv-05688-LJO-GBC PC FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANTS’ SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT v. ALAMEIDA, et al., (Doc. 162) 13 Defendants. OBJECTIONS DUE WITHIN FOURTEEN DAYS 14 / 15 16 17 FINDINGS and RECOMMENDATIONS I. Procedural History 18 Plaintiff Antonio Cortez Buckley (“Plaintiff”) is a state prisoner proceeding pro se in this 19 civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (the Religious Land Use 20 and Institutionalized Persons Act (“RLUIPA”)). At the times relevant to this complaint, Plaintiff 21 was incarcerated at California Correctional Institution (CCI), in Tehachapi, California. Doc. 126-2 22 at 12 (Def.’s Undisputed Facts). On September 29, 2003, Plaintiff filed the original complaint. Doc. 23 1. On March 23, 2007, Plaintiff filed the third amended complaint which the Court found to have 24 stated cognizable claims against the following defendants: Calderon; Vo; Meadors; Reed; Kordan; 25 Traynham; Papac; Winett; Woodley; Barker; Howard; Johnson; Mack; and Chappel (“Defendants”). 26 Doc. 42; Doc. 44. 27 The Court issued the first discovery and scheduling order on September 19, 2007, which 28 stated that the unenumerated 12(b) motion deadline was November 26, 2007, and the deadline for 1 Dockets.Justia.com 1 filing dispositive motions was August 7, 2008. Doc. 65. After Defendants failed to submit any 2 motions and the August 7, 2008, deadline has passed, the Court filed the second scheduling order 3 setting trial dates. Doc. 77. On August 21, 2008, Defendants motioned to vacate the discovery and 4 scheduling order and requested for the Court to reset the deadlines for dispositive motions. Doc. 80. 5 On September 24, 2008, the Court vacated the previous scheduling order and reset the dispositive 6 motion deadline for June 1, 2009. Doc. 84. 7 On May 27, 2010, Defendants filed a motion for a seventy-four day extension to file 8 dispositive motions and the Court granted the extension, setting the new deadline to August 9, 2010. 9 Doc. 120; Doc. 121. On August 9, 2010, Defendants motioned for a thirty day extension to file 10 dispositive motions which the Court granted, setting the new deadline for September 14, 2010. Doc. 11 122; Doc. 123. On September 13, 2010, Defendants filed a motion for summary judgment. Doc. 12 126. 13 On December 20, 2011, the Court issued findings and recommendations which recommended 14 granting in part Defendants’ motion for summary judgement and recommended that Defendants be 15 allowed to file a supplemental motion for summary judgement on the issue of whether Defendants 16 Howard, Winnett, Papac, Calderon and Kordan violated the Eighth Amendment by maliciously 17 implementing an unnecessary contraband search. Doc. 151. On January 25, 2012, the District Court 18 Judge adopted the findings and recommendations in full and dismissed Plaintiff’s retaliation claims 19 against Defendants Howard, Johnson, Barker, Chappel, Papac, Meadors, and Winnett for subjecting 20 Plaintiff to repeated, routine pat-down searches; dismissed Plaintiff’s Free Exercise and RLIUPA 21 claims against Defendants Winett, Meadors, Barker, and Woodley; dismissed Plaintiffs retaliation 22 claims against Defendants Calderon, Winett, Meadors, Papac, Howard, Johnson, Vo, and Kordan 23 for subjecting Plaintiff to an x-ray and placing him on contraband watch; dismissed Plaintiff’s Eighth 24 Amendment claims against Defendants Reed, Mack, and Traynham for implementing the contraband 25 watch procedures. Doc. 153. 26 The Court denied, in part, Defendants’ motion for summary judgment and the following 27 claims and defendants are to proceed to trial: Defendants Reed, Mack and Traynham for allegedly 28 placing Plaintiff in a cell that was covered in feces; Defendants Chappel and Barker for violation of 2 1 Plaintiff’s First Amendment rights by allegedly confiscating Plaintiff’s menorah and candles. Doc. 2 153. In its order to adopt, the District Court Judge required Defendants to either submit a 3 supplemental motion for summary judgment on the issue of whether Defendants Howard, Winnett, 4 Papac, Calderon and Kordan1 violated the Eighth amendment by maliciously implementing a 5 contraband search without a valid penological interest or to file notice of their desire to go to trial 6 on the issue. Doc. 153. On March 30, 2012, and May 14, 2012, the Court granted Defendants’ 7 motions for an extension of time to file a supplemental motion for summary judgement. Doc. 157; 8 Doc. 166. On May 10, 2012, Defendants filed the supplemental motion for summary judgment. 9 Doc. 162; Doc. 163. On May 29, 2012, and July 3, 2012, the Court granted Plaintiff’s motions for 10 extension of time to file an opposition. Doc. 168; Doc. 170. On August 3, 2012, Plaintiff filed an 11 opposition and supporting materials. Doc. 172; Doc. 173; Doc. 174. Defendants did not file a reply. 12 II. Summary Judgment Standard 13 Summary judgment is appropriate when it is demonstrated that there exists no genuine issue 14 as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. 15 Civ. P. 56(c). Under summary judgment practice, the moving party: 16 18 [A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 19 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the 20 burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made 21 in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’” 22 Id. Summary judgment should be entered, after adequate time for discovery and upon motion, 23 against a party who fails to make a showing sufficient to establish the existence of an element 24 essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. 25 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 17 26 27 28 1 On March 28, 2012, in a motion for extension of time, Defendants stated that Defendant Kordan has died. Doc. 156. On August 24 2012, the Court ordered Defendants to submit a formal suggestion of the death of Defendant Kordan pursuant to Fed. R. Civ. P. 25(a)(1). Doc. 178. 3 1 necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment 2 should be granted, “so long as whatever is before the district court demonstrates that the standard 3 for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 4 If the moving party meets its initial responsibility, the burden then shifts to the opposing 5 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 6 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence 7 of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is 8 required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery 9 material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e); Matsushita, 475 10 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., 11 a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, 12 Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 13 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable 14 jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 15 1433, 1436 (9th Cir. 1987). 16 The parties bear the burden of supporting their motions and oppositions with the papers they 17 wish the Court to consider and by specifically referencing any other portions of the record they wish 18 the Court to consider. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 19 2001). The Court will not mine the record for triable issues of fact. Id. 20 III. 21 Eighth Amendment Claim Resulting from the X-ray and Contraband Watch A. Factual Background 22 Plaintiff Antonio Buckley is a state prisoner who was incarcerated at California Correctional 23 24 Institution (CCI), located in Tehachapi, California. Plaintiff was housed in Facility III, Unit 4. Doc. 25 162-2 at 12. At times relevant to this action, Defendants were employed by the California 26 Department of Corrections and Rehabilitation (CDCR), and held the following positions at CCI: 27 Defendant Calderon was the Warden; Defendant Winett was an Associate Warden; Defendant Papac 28 4 1 2 was a Correctional Lieutenant; Defendant Howard was a Correctional Sergeant; and Defendant Kordan was a Medical Doctor. Doc. 162 at 4. On December 6, 2002, at approximately 6:45 p.m., 3 staff in the Level IV Facility were conducting a controlled feeding. 163-1 at 2-3 (Def. Ex. A 4 5 (Incident Report). Following the evening meal, as the inmates entered the building, roughly 160 6 inmates refused to return to their cells. 163-1 at 2-3 (Def. Ex. A (Incident Report). The inmates 7 refused to comply with orders to return to their cell, so Sergeant Phillips instructed the control booth 8 officer to put the dayroom down. 163-1 at 3 (Def. Ex. A (Incident Report). The inmates in the 9 dayroom complied, and they were systematically locked back into their cells by section. 163-1 at 10 11 3 (Def. Ex. A (Incident Report). 12 Although most of the inmates returned to their cells, approximately fifty-five to sixty Black 13 inmates gathered together in C-Section, and grabbed mop handles and broomsticks. 163-1 at 3 (Def. 14 Ex. A (Incident Report). The approximately sixty Black inmates then gathered together on the upper 15 tier of C-Section, armed with the wooden weapons. 163-1 at 3 (Def. Ex. A (Incident Report). 16 17 Because staff were outnumbered, staff were ordered to exit the building. Doc. 163-1 at 24 (Def. Ex. 18 B (Declaration of J. Lundy at ¶ 8). Lieutenant Dunlop then went to the control booth and spoke with 19 several of the Black inmates in an attempt to get them to return to their cells. 163-1 at 3 (Def. Ex. 20 A (Incident Report). Lieutenant Dunlop agreed to meet with three of the leaders of the group of 21 Black inmates, on the condition that the remaining Black inmates return to their cells. 163-1 at 3 22 23 24 (Def. Ex. A (Incident Report). The remainder of the Black inmates returned to their cells without further incident. 163-1 at 3 (Def. Ex. A (Incident Report). 25 Following the incident, the facility was placed on lockdown, and a state of emergency was 26 declared. Doc. 163-1 at 24 (Def. Ex. B (Declaration of J. Lundy at ¶ 10). Several inmates involved 27 in the incident were placed in administrative segregation. Doc. 163-1 at 25 (Def. Ex. B (Declaration 28 5 1 2 of J. Lundy at ¶ 14)). An investigation was conducted into the cause of the incident, and staff learned that there was a planned assault on staff, and that the inmates intended to continue with their 3 plans once the lockdown was lifted. Doc. 163-1 (Def. Ex. C (Confidential Memorandum dated 4 5 December 10, 2002, filed under seal)). Staff also found that several of the broomsticks and mop 6 handles were missing. Doc. 163-1 at 25 (Def. Ex. B (Declaration of J. Lundy at ¶ 15)). Because 7 these items were made of wood, they could not be discovered by using a metal detector. Doc. 163-1 8 at 25 (Def. Ex. B (Declaration of J. Lundy at ¶ 16)). 9 It is not uncommon for inmates to try to smuggle contraband such as weapons or notes into 10 11 administrative segregation, by staging an incident. Doc. 163-1 at 25 (Def. Ex. B (Declaration of J. 12 Lundy at ¶ 17)). According to a declaration provided by Defendants, all inmates placed into 13 administrative segregation following the events of December 6, 2002, were given the option of 14 submitting to an x-ray, or being placed on contraband watch. Doc. 163-1 at 25 (Def. Ex. B 15 (Declaration of J. Lundy at ¶¶ 15-17)); Doc. 163-1 at 29-30 (Def. Ex. D (Contraband Watch 16 17 18 Procedures)). If the x-ray was either positive for contraband, or was inconclusive, the inmate was placed on contraband watch. Doc. 163-1 at 25 (Def. Ex. B (Declaration of J. Lundy at ¶ 19)). 19 On December 11, 2002, Plaintiff and Defendant Calderon (Warden at CCI) got into an 20 argument concerning his grievance over the confiscation of his kosher food package. Doc. 146 21 (Plaintiff’s Exhibit 40); Doc. 126-7 (Defendants’ Ex. H, Gatling Decl., at ¶ 2, Ex. 24 at 132:9-14; 22 23 Doc. 126-8 (Ex. 25 (RVR)). Plaintiff was issued a disciplinary violation, and notified that he was 24 being placed into administrative segregation for engaging in conduct that could lead to violence, and 25 for disrespect. Doc. 163-2 at 28-36 (Ex. E (RVR). Plaintiff was given the option of submitting to 26 an x-ray. Doc. 163-1 at 25 (Def. Ex. B (Declaration of J. Lundy at ¶ 17)). The x-ray was taken, and 27 Defendant Kordan found that the x-ray showed “abnormal, noncalcified, foreign material . . . in the 28 6 1 2 rectal ampulla.” Doc. 163-2 at 42 (Def. Ex. F (Medical Report). Plaintiff was placed on contraband watch where he remained until December 13, 2002. Doc. 42 at 17-18; Doc. 44 at 8. 3 As a part of contraband watch procedure, Plaintiff: 1) was forced to remove his pants, shirt, 4 5 and shoes, and; 2) was placed in full mechanical restraints, a waist chain, handcuffs, and leg irons. 6 Doc. 42 at 16; Doc. 44 at 8; Doc. 163-1 at 29-30 (Def. Ex. D (Contraband Watch Procedures)). 7 Plaintiff was dressed only in a t-shirt, boxer shorts, and shower shoes, and was placed in a holding 8 cell the size of a telephone booth and made of metal mesh. Doc. 42 at 16; Doc. 44 at 8; Doc. 163-1 9 at 29-30 (Def. Ex. D (Contraband Watch Procedures)). 10 11 12 B. Defendants’ Supplemental Motion for Summary Judgment 1. Defendant Kordan’s Misreading of X-Ray 13 Defendants argue that Plaintiff has failed to allege facts to show that Defendant Kordan 14 engaged in a conspiracy to purposefully misread an x-ray and thus fails to establish an Eighth 15 Amendment violation. Doc. 162 at 7. Defendants assert that the essence of Plaintiff's claims against 16 17 Dr. Kordan is that he misread the x-ray films and, as a result, Plaintiff was placed on contraband 18 watch for two days. Doc. 162 at 8. Defendants argue that even accepting that Defendant Kordan 19 misread the films, such an allegation would, at best, indicate a claim for medical malpractice. Doc. 20 162 at 8. Defendants state that Defendant Kordan is also the radiologist who determined two days 21 later, that Plaintiff showed no sign or possessing gastrointestinal contraband. Doc. 163-2 at 42 22 23 (Defendants’ Exhibit (Def. Ex. F)). Further, Defendants state that Dr. Vo had previously explained 24 that an x-ray could show a foreign body even when no such body was present. Doc. 126-6 (Def. Ex. 25 C (Vo. Decl.)). Defendants argue that since Plaintiff has not provided any competent expert 26 evidence to dispute the Dr. Vo’s opinion, and Plaintiff is not himself qualified to dispute Dr. Vo’s 27 medical opinions, Plaintiff’s Eighth Amendment claim against Defendant Kordan should be 28 7 1 2 dismissed. Doc. 162 at 8. 2. Conspiracy 3 In response to Plaintiff claims that all Defendants’ actions were part of a concerted effort to 4 5 place him on contraband watch, Defendants argue that Plaintiff fails to produce any evidence of an 6 agreement between them to violate his constitutional rights. Doc. 162 at 9. Defendants argue that 7 Plaintiff’s conclusion that a conspiracy is evident because of the x-ray results and subsequent 8 contraband watch is insufficient to withstand a motion for summary judgment. Doc. 162 at 9. 9 3. Penological Interest 10 11 Defendants argue that the undisputed facts demonstrate that wooden weapons stock was 12 missing, and could not be detected with the use of a metal detector. Doc. 162 at 9; Doc. 163-1 at 25 13 (Def. Ex. B (Declaration of J. Lundy at ¶ 15)). According to Defendants, in order to prevent inmates 14 from smuggling contraband, such as wooden weapons stock, into administrative segregation, any 15 inmate who was sent to administrative segregation following the incident of December 6, 2002, was 16 17 required to submit to an x-ray, or be placed on contraband watch, for the valid penological reason 18 of preventing inmates from the smuggling contraband into administrative segregation. Doc. 162 at 19 9; Doc. 163-1 at 25 (Def. Ex. B (Declaration of J. Lundy at ¶¶ 15-17)). 20 21 4. Contraband Watch - Objectively Serious Defendants argue that Plaintiff's placement on contraband watch for two days was not long 22 23 enough to rise to the level of an Eighth Amendment violation; he was released and sent to 24 administrative segregation as soon as officials were satisfied that he had not hidden contraband in 25 his body. Doc. 162 at 11 (citing Meraz v. Reppond, 2009 WL 723841, *2 (N.D. Cal)). Defendants 26 argue that, the contraband watch is not the type of deprivation that is sufficiently serious to implicate 27 the Eighth Amendment. Doc. 162 at 11. Defendants argue that Plaintiff’s allegations that he was 28 8 1 2 placed on contraband watch for two days, in a cell that had feces on the floor because unnamed officers tossed fecal matter into the cell fail to connect any of the Defendants to intentionally placing 3 Plaintiff in a feces-covered cell. Doc. 162 at 12. 4 5. 5 Implementation of Contraband Watch - Subjective Mind Set 6 Defendants state that Plaintiff also appears to allege that his placement on contraband watch 7 was due to his religious beliefs. Doc. 162 at 12. Defendants argue that the undisputed facts establish 8 that all inmates who were placed into administrative segregation following the events of December 9 6, 2002, were required to either undergo an x-ray, or be placed on contraband watch. Doc. 162 at 10 11 12; Doc. 163-1 at 25 (Def. Ex. B (Declaration of J. Lundy at ¶¶ 15-17)). According to Defendants, 12 any inmate who had either a positive or inconclusive x-ray result was placed on contraband watch 13 for the sole purpose of preventing contraband from being smuggled into administrative segregation. 14 Doc. 162 at 12; (citing Doc. 163-1 at 25) (Def. Ex. B (Declaration of J. Lundy at ¶ 19). Defendants 15 argue that Plaintiff presents no evidence to create a dispute of fact that Defendants were motivated 16 17 by religious animus, or any other unlawful purpose. Doc. 162 at 12. Thus, even assuming that 18 Plaintiff could establish that he suffered a sufficiently serious deprivation as a result of his placement 19 on contraband watch, there is no evidence to support an argument that Defendants knew of and 20 disregarded any excessive risk to Plaintiff’s health or safety as a result of the contraband watch. 21 Doc. 162 at 12. Because the x-ray suggested that Plaintiff may have sought to conceal contraband 22 23 by “keistering” it, he was placed on contraband watch until he was cleared. Doc. 162 at 12. 24 Defendants argue that their actions were based on the valid penological interest of maintaining 25 institutional security and, accordingly, Plaintiff's Eighth Amendment rights were not violated. Doc. 26 162 at 12. 27 6. Qualified Immunity 28 9 1 2 Defendants argue Plaintiff cannot show either that any of the Defendants violated his constitutional rights or, if they did violate such a right, that their conduct was unreasonable. Doc. 3 162 at 13. Defendants argue that Plaintiff cannot establish that any of the Defendants subjected 4 5 Plaintiff to an x-ray and contraband watch for any reason other than the valid penological interest 6 of maintaining institutional security. Doc. 162 at 13. Defendants argue that even if a constitutional 7 violation had occurred, in light of clearly established principles at the time of the incident, 8 Defendants could have reasonably believed that placing Plaintiff on contraband-watch for two days, 9 when wooden weapons stock was missing and Plaintiff’s x-ray revealed foreign matter in the rectal 10 11 ampulla, was lawful. Doc. 162 at 14. 12 C. 13 In his opposition Plaintiff reiterates much of the allegations he had made in his complaint. 14 Doc. 172. Plaintiff asserts that he was on contraband watch for three days where he was only 15 Plaintiff’s Opposition allowed a T-shirt, a pair of boxers and shower shoes while in a freezing cell. Doc. 172 at 6. 16 17 According to Plaintiff, he suffered pain from being placed in handcuffs with a “Chinese Black Box” 18 device that goes between the handcuffs and is attached to waist-chains in addition to ankle restraints 19 to restrict movement. Doc. 172 at 6. Plaintiff asserts that he was placed in a freezing cell covered 20 in feces. Doc. 172 at 6. Plaintiff asserts that Defendant Kordan intentionally falsified the December 21 11, 2002, x-ray report as part of a conspiracy to place Plaintiff on contraband watch. Doc. 172 at 7. 22 23 Plaintiff argues that in order to sustain a conspiracy claim, no formal agreement between the parties 24 in necessary, rather, it is sufficient that the minds of the parties met so as to bring about an intelligent 25 and deliberate agreement to do the act although such an agreement is not manifested by any formal 26 words. Doc. 172 at 9 (citing Telman v. United States, 67 T.2d 716 (10th Cir.); Lawlor v. Loewe, 209 27 F. 721, 725 (2d Cir.)). Plaintiff argues that the conspiracy can be established through inference from 28 10 1 2 the actions of the Defendants when Plaintiff was placed on contraband watch contrary to the established policy. Doc. 172 at 9-10 (citing Goode v. United States, 58 F.2d 205 (8th Cir.); Doc. 174 3 at 71 (Pltf’s Ex. 13 at 1 (Contraband Watch Procedure)). The contraband watch procedure for the 4 5 Quarantine Watch Officer states, in part, that: “When it becomes reasonable to suspect an inmate 6 is in possession of contraband, either ingested or secreted within any body orifice, a contraband 7 watch may be ordered.” Doc. 174 at 71 (Pltf’s Ex. 13 at 1). Plaintiff argues that Defendant 8 Calderon, Winett, Papac and Howard forced Plaintiff to take an x-ray for no penological reason. 9 Doc. 172 at 10. Plaintiff argues that it is relevant that although the x-ray interpretation concluded 10 11 that there was rectal contraband, after three days of contraband watch without having a bowel 12 movement and was x-rays on December 13, 2002, were interpreted as not showing evidence of 13 contraband. Doc. 172 at 11. 14 15 Plaintiff states that on December 11, 2002, after Plaintiff got into a heated argument with the warden, Defendant Calderon ordered Defendant Papac to place Plaintiff in Administrative 16 17 Segregation. Doc. 172 at (citing Doc. 174 at 177 (Pltf. Ex. 23 at 5)). Plaintiff argues that Defendants 18 have not produced any documentary evidence that any other prisoner was given an x-ray from 19 December 6, 2002, to December 11, 2002. Doc. 172 at 13. Plaintiff argues that Defendants 20 arbitrarily circumvented the established contraband watch policies and that Defendant Calderon 21 implemented a rogue contraband watch policy for the purpose of singling out Plaintiff for a 22 23 24 contraband watch without suspicion of having contraband. Doc. 172 at 13, 16. Plaintiff states that Defendants forced Plaintiff to take the x-ray. Doc. 172 at 14. 25 Plaintiff argues that Defendants have piled conjectures to justify their policies. Doc. 172 at 26 14-15. Plaintiff argues that: 1) although Defendants state that the x-ray/contraband search was 27 justified due to the incident in December 6, 2002, involving approximately 60 black inmates 28 11 1 2 obtaining broom and mop handles for weapons, Plaintiff was not housed in the unit where this incident took place; 2) although Defendants state that wood and metal was missing from the 3 December 6, 2002 incident, Defendants have not produced any official report regarding the missing 4 5 wood and metal; and 3) Defendants’ argument that Plaintiff staged an argument with the Warden in 6 order to smuggle contraband into Administrative Segregation is speculative. Doc. 172 at 15. 7 Plaintiff also argues that Defendants purposefully destroyed all of the contraband records and it is 8 evidenced by their responses to discovery and declaration from the litigation coordinator which state 9 that they were unable to locate the daily log book, inmate segregation records and tape-recorded 10 11 interviews for December 2002. Doc. 172 at 19 (citing to Doc. 174 at 96-97, 135). Plaintiff argues 12 that a conspiracy to cover-up the contraband watch is evident from the fact that Plaintiff’s 13 Administrative Segregation medical report omitted Plaintiff’s contraband watch. Doc. 174 at 170 14 (citing Pltf’s Ex. 14 at 7; Pltf’s Ex. 28). 15 Plaintiff also points out that although Defendants obfuscate the issue by stating he was not 16 17 arbitrarily placed on contraband watch as a result of his religion, Plaintiff argues that the arbitrary 18 contraband watch had nothing to do with his religious beliefs. Doc. 172 at 20. Plaintiff also argues 19 that Defendants have not produced any official reports to demonstrate that other prisoners transferred 20 to Administrative Segregation after December 6, 2002, had taken an x-ray pursuant to Defendant 21 Calderon’s new contraband policy and not just Plaintiff. Doc. 172 at 20 (citing Doc. 174 at 163-164, 22 23 170) (Plaintiff’s Declaration); Doc. 172 at 21. Plaintiff argues that Defendants Calderon, Winnet, 24 Papac and Howard committed perjury when they responded to interrogatories that they had no 25 personal knowledge as to why Plaintiff was given an x-ray on December 11, 2002. Doc. 174 at 168- 26 169. 27 Finally, Plaintiff argues that if an Eighth Amendment violation is found, there is defense of 28 12 1 2 qualified immunity is not available. Doc. 172 at 22. 3 D. Legal Standard and Analysis: Eighth Amendment 4 5 "The Eighth Amendment's prohibition against cruel and unusual punishment protects 6 prisoners not only from inhumane methods of punishment but also from inhumane conditions of 7 confinement." Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prison officials have 8 a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, 9 and personal safety. See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Hudson v. Palmer, 468 U.S. 10 11 517, 526-27 (1984); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982); Wright v. Rushen, 12 13 14 642 F.2d 1129, 1132-33 (9th Cir.1981); Wolfish v. Levi, 573 F.2d 118, 125 (2nd Cir.1978). "[W]hile conditions of confinement may be, and often are, restrictive and harsh, they ‘must not involve the 15 wanton and unnecessary infliction of pain.'" Morgensen, 465 F.3d at 1045 (quoting Rhodes v. 16 Chapman, 452 U.S. 337, 347 (1981)). Where a prisoner alleges an Eighth Amendment violation 17 stemming from inhumane conditions of confinement, prison officials may be held liable only if they 18 19 acted with "deliberate indifference to a substantial risk of serious harm." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference standard involves an objective and a 20 subjective requirement. First, the alleged deprivation must be, in objective terms, "sufficiently 21 22 serious . . . ." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 23 298 (1991)). Second, the prison official must "know[] of and disregard[] an excessive risk to inmate 24 health or safety . . . ." Farmer, 511 U.S. at 837. 25 For the objective requirement, "[w]hat is necessary to show sufficient harm for purposes of 26 the Cruel and Unusual Punishment Clause depends upon the claim at issue . . . ." Hudson v. 27 McMillian, 503 U.S. 1, 8 (1992). "[E]xtreme deprivations are required to make out a[n] [Eighth 28 13 1 Amendment] conditions-of-confinement claim." Id. at 9 (citation omitted). With respect to this type 2 of claim, "[b]ecause routine discomfort is part of the penalty that criminal offenders pay for their 3 4 offenses against society, only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Id. 5 6 7 (quotations and citations omitted). In determining whether a deprivation of a basic necessity is sufficiently serious to satisfy the objective component of an Eighth Amendment claim, a court must 8 consider the circumstances, nature, and duration of the deprivation. The more basic the need, the 9 shorter the time it can be withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). 10 11 12 In Tribble v. Gardner, the Ninth Circuit noted in dicta that it may be possible for a contraband search to fall under the constitutional protections of the Eighth Amendment “[i]f the search were conducted for purposes unrelated to security considerations.” Tribble v. Gardner, 860 13 14 15 F.2d 321, 324-25 & n.6 (9th Cir. 1988); accord Del Raine v. Williford, 32 F.3d 1024, 1029 (7th Cir. 1994) (citing Tribble v. Gardner, 860 F.2d 321, 324-25 & n.6). A contraband search in the absence 16 of security reasons warrants an inference of an intent to punish. See Tribble v. Gardner, 860 F.2d 17 321, 325 n.6 (9th Cir. 1988); see also Meriwether v. Faulkner, 821 F.2d 408, 418 (7th Cir. 1987) 18 (“The Eighth Amendment’s prohibition against cruel and unusual punishment stands as a protection 19 from bodily searches which are maliciously motivated, unrelated to institutional security, and hence 20 ‘totally without penological justification.’”). In Bell v. Wolfish, the Supreme Court observed that a 21 search conducted in an abusive fashion “cannot be condoned . . . . [and therefore,] . . . must be 22 23 24 25 26 27 28 conducted in a reasonable manner." Bell v. Wolfish, 441 U.S. 520, 560 (1979). In applying Bell v. Wolfish, the Seventh Circuit reasons: An Eighth Amendment application of this precept requires this court to focus on the words "abusive" and "reasonable." These words must be grafted onto the objective and subjective components of the Eighth Amendment. An application of reasonableness in this area often invokes a medical evaluation of the process. Abusiveness occurs when there is evidence of some palpable malevolence attributable to a prison official exacerbated by the lack of a justifiable penological 14 1 objective for the search. 2 3 Del Raine v. Williford, 32 F.3d 1024, 1040. “A detention facility is a unique place fraught with 4 serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too 5 common an occurrence.” Bell v.Wolfish, 441 U.S. 520, 559 (1979). As the United Supreme Court 6 observes, “attempts to introduce drugs and other contraband into [prison] premises . . . is one of the 7 8 most perplexing problems of prisons.” Hudson v.Palmer, 468 U.S. 517, 527 (1984); see Overton v. Bazzetta, 539 U.S. 126, 134 (2003) (“Drug smuggling and drug use in prison are intractable 9 10 11 problems.”); Block v. Rutherford, 468 U.S. 576, 588-89 (1984) (“We can take judicial notice that the unauthorized use of narcotics is a problem that plagues virtually every penal and detention center 12 in the country.”); Bull v. City and County of San Francisco, 595 F.3d 964, 966-67 (9th Cir. 2010); 13 Del Raine v. Williford, 32 F.3d 1024, 1039-42 (‘The fact that prisoners are willing to place such 14 dangerous objects into body cavities that most people rarely display to others demonstrates as much 15 about the guile and bravado of certain prisoners as it does about the government's need to search, 16 both visually and physically, such private areas of the body’). A prison policy to routinely conduct 17 contraband searches without individualized reasonable suspicion due to heightened security concerns 18 19 20 21 22 23 24 is sufficient to demonstrate the existence of a valid penological interest. Cf. Bull v. City & Cty. of San Francisco, 595 F.3d 964, 975-981 (9th Cir. 2010) (en banc). 1. Analysis The remaining issue was whether the contraband search was done without a valid penological interest but rather as a means to punish Plaintiff for disrespecting the warden of the prison. Defendants submit a declaration from J. Lundy who was a correctional Lieutenant during December 25 2002, who detailed the details surrounding approximately sixty inmates armed with wooden weapons 26 27 28 and refusing to return to their cells which led to prison staff being ordered to exit the building for their own protection. 163-1 at 3 (Def. Ex. A (Incident Report); Doc. 163-1 at 24 (Def. Ex. B 15 1 (Declaration of J. Lundy at ¶ 8). Officer Lundy stated that due to the severe threats to security the 2 facility was placed on lockdown, and a state of emergency was declared. Doc. 163-1 at 24 (Def. Ex. 3 B (Declaration of J. Lundy at ¶ 10). Defendants presented evidence that several inmates involved 4 in the serious security violations were placed in administrative segregation and that a policy was in 5 6 7 place that all inmates who were sent to administrative segregation had to chose between getting an x-ray or undergoing a contraband watch. Doc. 163-1 at 25 (Def. Ex. B (Declaration of J. Lundy at 8 ¶ 14-17)). If the x-ray was either positive for contraband, or was inconclusive, the inmate was placed 9 on contraband watch. Doc. 163-1 at 25 (Def. Ex. B (Declaration of J. Lundy at ¶ 19)). 10 11 12 Defendants had met their initial burden to demonstrate that there exists valid penological interests to have a policy in place where all inmates entering administrative segregation had to either have an x-ray or undergo a contraband watch. Cf. Bull v. City & Cty. of San Francisco, 595 F.3d 13 14 15 964, 975-981 (9th Cir. 2010) (en banc). However, in Plaintiff’s opposition and declaration Plaintiff asserts that: 1) the policy to do contraband searches on all inmates entering administrative 16 segregation was a “rogue” policy; 2) there is no evidence that any other inmate going into 17 administrative segregation following the December 6 incident had to undergo this contraband 18 procedure; 3) Plaintiff was housed in Plaintiff was housed in Facility III when the December 6 19 incident happened in Facility IV; and 4) if there was such a policy in place, that contradicts 20 Defendants’ interrogatory responses that they did not know why Plaintiff had to undergo a 21 contraband search. Doc. 172 at 20 (citing Doc. 174 at 163-64, 168-70) (Plaintiff’s Declaration); 22 23 Doc. 172 at 21. Given that Defendants have not submitted any reply, Plaintiff has sufficiently met 24 his burden that there remains a disputed issue of material fact as to whether there existed a policy 25 to require all inmates entering administrative segregation to undergo a contraband search. 26 However, Plaintiff has not submitted any admissible medical or other competent evidence 27 that shows there is a triable issue that not only was the x-ray interpretation incorrect, but that the x- 28 16 1 ray interpretation was so grossly misinterpreted that it would warrant an inference that Defendant 2 Kordan was a part of a conspiracy with Defendants Howard, Winnett, Papac and Calderon to 3 intentionally misread the x-rays in order for Plaintiff to undergo an unnecessary contraband watch. 4 Furthermore, Plaintiff fails to offer evidence to establish that he is qualified to interpret medical 5 6 7 records. Fed. R. Evid. 702. Even if Plaintiff could connect Defendants Howard, Winnett, Papac and Calderon to requiring Plaintiff to undergo an x-ray, Plaintiff fails to connect Defendants Howard, 8 Winnett, Papac and Calderon to the interpretation of the x-ray that contraband existed which gave 9 legitimate reason to implement the contraband watch. Thus, even assuming that Defendants 10 Howard, Winnett, Papac and Calderon singled out Plaintiff to take an x-ray, an x-ray alone does not 11 12 satisfy the objective component to demonstrate an Eighth Amendment violation. See Sanchez v. Pereira-Castillo, 590 F.3d 31, 44-48 (1st Cir. 2009) (“An x-ray-a much simpler, less invasive 13 14 15 procedure-could have confirmed [the contraband results].”); Sital v. Burgio, 592 F.Supp.2d 355, 359 (W.D.N.Y. 2009) (finding that a contraband watch of six days was not particularly severe or 16 jeopardize the health or safety of the prisoner). Based on the above, Defendants’ summary 17 judgement motion should be granted. Moreover, given that Plaintiff fails to meet his burden to move 18 forward on the Eighth Amendment Claim, the Court finds it unnecessary to reach the issue of 19 whether Defendants are entitled to qualified immunity. 20 IV. Conclusion and Recommendation 21 Summary judgment is appropriate against a party who "fails to make a showing sufficient to 22 23 establish the existence of an element essential to that party's case, and on which that party will bear 24 the burden of proof at trial." Celotex, 477 U.S. at 322. Plaintiff has the burden of showing that 25 Defendants violated his rights. See Helling v. McKinney, 509 U.S. 25, 35 (1993); Thomas v. Ponder, 26 611 F.3d 1144, 1150-51 (9th Cir. 2010). 27 For the reasons set forth herein, it is HEREBY RECOMMENDED that: 28 17 1 1. 2 Defendants’ motion for summary judgment filed on May 10, 2012, be GRANTED (Doc. 162); and 3 2. Defendants Howard, Winnett, Papac, Calderon and Kordan be dismissed.2 4 These Findings and Recommendations will be submitted to the United States District Judge 5 6 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these Findings and Recommendations, parties may file written 8 objections with the court. The document should be captioned “Objections to Magistrate Judge's 9 Findings and Recommendations.” Parties are advised that failure to file objections within the 10 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 11 1153 (9th Cir.1991). 12 13 IT IS SO ORDERED. 14 15 16 Dated: 0jh02o December 14, 2012 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2 The following claims and defendants are to proceed to trial: Defendants Reed, Mack and Traynham for allegedly placing Plaintiff in a cell that was covered in feces; Defendants Chappel and Barker for violation of Plaintiff’s First Amendment rights by allegedly confiscating Plaintiff’s menorah and candles. Doc. 153. 18
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