-GBC (PC) Lomako v. CSP Corcoran et al, No. 1:2007cv01877 - Document 48 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Granting Defendants' Motion for Summary Judgment 18 , 44 Objections Due Within Thirty Days, signed by Magistrate Judge Gerald B. Cohn on 10/6/11: Matter referred to Judge Ishii. (Hellings, J)
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-GBC (PC) Lomako v. CSP Corcoran et al Doc. 48 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JUSTIN LOMAKO, 11 CASE NO. Plaintiff, 12 v. 13 1:07-cv-01877-AWI-GBC (PC) FINDINGS AND RECOMMENDATION RECOMMENDING GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT CSP CORCORAN, et al., 14 (ECF No. 44) Defendants. 15 / OBJECTIONS DUE WITHIN THIRTY DAYS 16 FINDINGS AND RECOMMENDATION 17 18 19 I. PROCEDURAL HISTORY Plaintiff Justin Lomako (“Plaintiff”) is proceeding pro se and in forma pauperis in this 20 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 27, 21 22 2007 and it proceeds on Plaintiff’s Fourth Amended Complaint, filed April 7, 2009 against 23 Defendants Cano and Jones for deliberate indifference in violation of the Eighth 24 Amendment. (ECF Nos. 1, 18, 19, & 20.) Pending before the Court now is Defendants’ 25 Motion for Summary Judgment filed July 25, 2011. (ECF No. 44.) Plaintiff did not file an 26 opposition. 27 1 Dockets.Justia.com 1 II. 2 3 SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as 4 5 6 a matter of law. Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 10 [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. 11 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear 12 the burden of proof at trial on a dispositive issue, a summary judgment motion may 7 8 9 13 properly be made in reliance solely on the ‘pleadings, depositions, answers to 14 interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be 15 16 entered, after adequate time for discovery and upon motion, against a party who fails to 17 make a showing sufficient to establish the existence of an element essential to that party’s 18 case, and on which that party will bear the burden of proof at trial. Id. at 322. “[A] 19 complete failure of proof concerning an essential element of the nonmoving party’s case 20 21 necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates 22 23 24 that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 25 If the moving party meets its initial responsibility, the burden then shifts to the 26 opposing party to establish that a genuine issue as to any material fact actually does exist. 27 2 1 2 3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of 4 5 6 affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11. The opposing party must 7 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 8 of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 9 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 10 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury 11 12 13 could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 14 In the endeavor to establish the existence of a factual dispute, the opposing party 15 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 16 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 17 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of 18 summary judgment is to ‘pierce the pleadings and to assess the proof in order to see 19 20 21 whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). 22 In resolving the summary judgment motion, the Court examines the pleadings, 23 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 24 if any. Rule 56(c). The evidence of the opposing party is to be taken as true, Anderson, 25 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed 26 27 before the Court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 3 1 2 3 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. Richards 4 5 6 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). 7 Finally, to demonstrate a genuine issue, the opposing party “must do more than 8 simply show that there is some metaphysical doubt as to the material facts. Where the 9 record taken as a whole could not lead a rational trier of fact to find for the nonmoving 10 party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 11 12 III. SUMMARY OF COMPLAINT In 2006, Plaintiff was housed in a top tier where it was very hot. (ECF No. 18, p. 3.) 13 14 Prison staff refused to move Plaintiff or turn on the fans. (Id.) Plaintiff was on psychotropic 15 medication and passed out on several occasions. (Id.) On one of those occasions, 16 Plaintiff fell and injured his head, back, and neck. (Id.) Plaintiff then submitted a request 17 for accommodation. (Id.) Plaintiff alleges that his request was held for two weeks by 18 19 20 Defendants Cano and Jones, and then it was screened out as being untimely. (Id.) IV. ARGUMENTS 21 In their Motion, Defendants argue that Plaintiff failed to support his Eighth 22 Amendment cruel and unusual punishment argument and, in the alternative, Defendants 23 have qualified immunity. 24 As to the Eighth amendment violation, Defendants first contend that Plaintiff failed 25 26 to timely respond to a request for admission, which should result in automatic admission 27 4 1 2 3 of the matters requested. Defendants state that Plaintiff did not timely respond to their requests for admissions and thus, admitted that Defendants did not violate his constitutional rights, that he did not suffer any injury, that he did not have evidence to 4 5 6 support his claims that Defendants held his appeal for two weeks or that his appeal was returned to him after the time deadline had passed. 7 Defendants next contend that Plaintiff failed to demonstrate that he suffered a 8 sufficiently serious deprivation or any excessive risk to his health. Defendants state that 9 Plaintiff’s accommodation request stated that Plaintiff was housed on an upper tier where 10 it was really hot which caused him to have trouble breathing. Plaintiff requested that he 11 12 13 be moved when a different cell became available. Defendants argue that this does not indicate that Plaintiff was facing an excessive risk to his health. Defendants also contend 14 that Plaintiff was moved days later and told the nurse practitioner that the issue had been 15 resolved, which also demonstrates that Plaintiff did not face any sufficiently serious 16 deprivation. 17 Defendants next contend that Plaintiff failed to demonstrate that Defendants acted 18 with sufficiently culpable state of mind. Defendants state that there is no evidence that 19 20 they were aware of and disregarded an excessive risk to Plaintiff’s health or safety. 21 Instead, Defendants contend that the evidence shows that Defendants properly responded 22 to Plaintiff’s accommodation request. Pursuant to standard procedures, Defendants 23 referred Plaintiff’s accommodation request to the medical department because it raised 24 medical issues. This ensured that Plaintiff’s alleged needs were investigated by an 25 individual who had the ability to resolve them if necessary. 26 27 In the alternative, Defendants argue that they are entitled to qualified immunity. 5 1 2 V. EIGHTH AMENDMENT CLAIM A. Legal Standard 3 “[W]hile conditions of confinement may be, and often are, restrictive and harsh, they 4 5 ‘must not involve the wanton and unnecessary infliction of pain.’” Morgan v. Morgensen, 6 465 F.3d 1041, 1045 (9th Cir. 2006) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 7 (1981)). The Eighth Amendment, which protects prisoners from inhumane conditions of 8 confinement, Farmer v. Brennan, 511 U.S. 825, 833 (1994), is violated when prison 9 10 officials act with deliberate indifference to a substantial risk of harm to an inmate’s health or safety, e.g., Farmer, 511 U.S. at 828; Thomas v. Ponder, 611 F.3d 1144, 1151–52 (9th 11 12 13 Cir. 2010); Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010). Two requirements must be met to show an Eighth Amendment violation. Farmer, 14 511 U.S. at 834. First, the deprivation must be, objectively, sufficiently serious. Id. 15 (quotation marks and citation omitted). The objective component is contextual and 16 17 responsive to contemporary standards of decency. Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quotations marks and citation omitted). Extreme deprivations are required to make 18 19 20 out an Eighth Amendment conditions-of-confinement claim. Hudson, 503 U.S. at 9 (quotation marks and citation omitted). Because routine discomfort is part of the penalty 21 that criminal offenders pay for their offenses against society, only those deprivations 22 denying the minimal civilized measure of life’s necessities are sufficiently grave to form the 23 basis of an Eighth Amendment violation. Id. (quotation marks and citations omitted). 24 Second, prison officials must have a sufficiently culpable state of mind, which for 25 26 conditions-of-confinement claims is one of deliberate indifference. Farmer, 511 U.S. at 27 6 1 2 3 834 (quotation marks omitted). Prison officials act with deliberate indifference when they know of and disregard an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837 (quotation marks omitted). Thus, prison officials may be held liable under the Eighth 4 5 6 7 8 9 10 Amendment for denying humane conditions of confinement only if they know that inmates face a substantial risk of harm and they disregard that risk by failing to take reasonable measures to abate it. Id. at 847 (quotation marks omitted). B. Analysis It is undisputed that Plaintiff submitted an accommodation request which was withdrawn and then eventually screened out as being untimely. (ECF No. 44-4, pp. 7, 12, 11 12 13 & 15.) However, Defendants have demonstrated they were not deliberately indifferent to a serious risk to Plaintiff’s health or safety. 14 Defendants have demonstrated that referring Plaintiff’s accommodation request to 15 the medical department was proper. (ECF No. 44-4, p. 2.) Plaintiff’s request stated that 16 he was having trouble breathing, had passed out, fallen and injured himself. (ECF No. 17 44-4, p. 13.) This was deemed a medical issue so the appeal was referred to the medical 18 19 20 department for investigation pursuant to prison regulations. (ECF No. 44-4, p. 7.) During an interview by a nurse practitioner, Plaintiff stated that he had been moved to a different 21 cell resolving his issue, so he withdrew his appeal, which was returned to him on August 22 9, 2006. (ECF No. 44-4, p. 12; Jones & Cano Decls., p. 3.) Plaintiff’s withdrawal was 23 noted on the grievance form and signed by both he and the nurse. (Id.) 24 Plaintiff, apparently, became dissatisfied and submitted his appeal on August 31, 25 2006 for a second level review. (ECF No. 44-4, p. 4.) Defendant Jones could have 26 27 screened out the appeal as untimely. Instead, he screened it out because Plaintiff failed 7 1 2 3 to complete the section explaining why he was seeking review. (Jones Decl. p. 4.) The appeal was then returned to Plaintiff with instructions to complete the appropriate section. (Id.) Plaintiff was also informed that he had fifteen days to resubmit the form. (Id.) Plaintiff 4 5 6 resubmitted his appeal on September 7, 2006. On that date, Defendant Cano screened out the appeal as untimely. (Cano Decl. p. 4.) 7 The Court assumes, without deciding, that the deprivation suffered by Plaintiff was 8 sufficiently serious. However, the Court finds that at no time were Defendants Jones and 9 Cano deliberately indifferent to Plaintiff’s accommodation request/appeal. Each responded 10 properly according to prison regulations. The Court also notes that both Defendants would 11 12 13 have been aware that the grievance had been withdrawn at the first level as this is clearly stated on the appeal and signed by both Plaintiff and the nurse. They would have been 14 aware that it was withdrawn because Plaintiff had been moved to a different cell. They 15 would have been aware that, according to Plaintiff’s statement on the grievance form, the 16 issues had been resolved. Thus, Defendants could properly conclude that any risk to 17 Plaintiff’s safety or health was no longer sufficiently serious and did not warrant an 18 immediate response. 19 20 Plaintiff has submitted nothing which would indicate that he was still in some kind 21 of danger even though he had been moved to a different cell. Furthermore, Plaintiff has 22 submitted nothing to indicate that Defendants Jones or Cano would have been aware that 23 the alleged risk remained regardless of the transfer. 24 Accordingly, the Court finds that Defendants have demonstrated that they lacked 25 the requisite culpable mental state. As Plaintiff did not file an opposition, the Court also 26 27 finds that there exists no genuine issue as to any material fact. 8 1 VI. 2 3 Qualified Immunity Defendants’ Motion for Summary Judgment claims that even if Plaintiff met the burden of demonstrating a prima facie case, each Defendant is still entitled to qualified 4 5 immunity. Qualified immunity protects a defendant unless: (1) the defendant’s action 6 violated a federal constitutional right; and (2) the right was clearly established at the time 7 of the conduct at issue. See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). 8 9 10 As discussed above, this Court does not find that either Defendant violated a federal constitutional right. Although the rights Plaintiff claims were violated are clearly established, he presents no evidence that they were actually violated. See Farmer, 511 11 12 13 U .S. at 833 (reasonably safe conditions of confinement); Lewis, 518 U.S. at 350 (access to the Courts); Estelle, 429 U.S. at 104–5 (proper medical care). Accordingly, the Court 14 need not address Defendants’ qualified immunity defense. See Pearson v. Callahan, 555 15 U.S. 223, 236 (2009). 16 VII. 17 CONCLUSION AND RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ Motion 18 19 20 21 22 23 24 for Summary Judgment, filed July 25, 2011, be GRANTED. As these are the only claims proceeding in this action, the Court further RECOMMENDS that JUDGMENT be entered in favor of Defendant Jones and Defendant Cano and the CASE be DISMISSED. These Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendation, the 25 26 parties may file written objections with the court. The document should be captioned 27 9 1 2 3 “Objections to Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 IT IS SO ORDERED. 5 6 7 Dated: 1j0bbc October 6, 2011 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 10
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