(PC) Gibson v. Wong et al, No. 2:2009cv02388 - Document 45 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 08/05/11 ORDERING plaintiff's 03/21/11 discovery motion 42 is denied. Plaintiff's 04/05/11 motion for appointment of counsel 44 is denied. Also, RECOMMENDING that defendants' 02/08/11 motion for summary judgment be granted. MOTION for SUMMARY JUDGMENT 40 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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(PC) Gibson v. Wong et al Doc. 45 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DEAREL GIBSON, 11 Plaintiff, 12 13 No. 2:09-cv-2388 GEB DAD (PC) vs. R. K. WONG, et al., 14 ORDER AND Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. This action is proceeding plaintiff’s claim, raised in his original complaint, 18 that defendants Wong, Peck and Fox violated his rights under the Eighth Amendment by 19 ventilating his cell in administrative segregation with “ice cold air.” Order and Findings and 20 Recommendations filed June 11, 2010, at 9. This matter is before the court on defendants’ 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 1 Dockets.Justia.com 1 motion for summary judgment.1 2 SUMMARY JUDGMENT STANDARDS UNDER RULE 56 3 Summary judgment is appropriate when it is demonstrated that there exists “no 4 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 5 matter of law.” Fed. R. Civ. P. 56(c). 6 Under summary judgment practice, the moving party 7 9 always 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. 10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the 11 nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary 12 judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers 13 to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered, 14 after adequate time for discovery and upon motion, against a party who fails to make a showing 15 sufficient to establish the existence of an element essential to that party’s case, and on which that 16 party will bear the burden of proof at trial. See id. at 322. “[A] complete failure of proof 17 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 18 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 19 whatever is before the district court demonstrates that the standard for entry of summary 20 judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 8 21 1 22 23 24 25 26 Defendants’ motion for summary judgment was filed on February 8, 2011. Plaintiff did not timely file an opposition to the motion. By order filed March 10, 2011, plaintiff filed was ordered to file his opposition, if any, to defendants’ motion within twenty-one days. On March 21, 2011, plaintiff filed a document styled “Motion for Injunction to Proceed to Trial or Settle, and Pitchess Motion for Officer’s Background.” It is not entirely clear whether plaintiff intended this document to be considered as his opposition to the pending motion for summary judgment. The documents filed by plaintiff appears to be a discovery motion and a request to proceed to trial. However, discovery closed in this action on November 19, 2010. See Discovery and Scheduling Order filed July 29, 2010, at 6. Accordingly, plaintiff’s discovery motion will be denied. 2 1 If the moving party meets its initial responsibility, the burden then shifts to the 2 opposing party to establish that a genuine issue as to any material fact actually does exist. See 3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 4 establish the existence of this factual dispute, the opposing party may not rely upon the 5 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 6 form of affidavits, and/or admissible discovery material, in support of its contention that the 7 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party 8 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 9 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 10 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 11 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 12 return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 13 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 summary 18 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 19 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 20 committee’s note on 1963 amendments). 21 In resolving the summary judgment motion, the court examines the pleadings, 22 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 23 any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 24 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the 25 court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 26 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 3 1 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 2 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 3 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 4 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 5 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 6 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 7 On October 26, 2009, the court advised plaintiff of the requirements for opposing 8 a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 9 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 10 11 ANALYSIS I. Undisputed Facts2 12 At all times relevant to this action plaintiff was a state prisoner housed at 13 California State Prison-Solano. Ex. A to Declaration of William J. Douglas, Deposition of 14 Dearel Gibson (Pl.’s Dep.), 9:21-23. Plaintiff was held in Administrative Segregation Unit 15 Building 10 (Building 10) at that institution from November 10, 2008 to January 16, 2009 and 16 from February 7, 2009 to February 28, 2009. Pl’s Dep. 13:20-15:5; Declaration of C. Pesci in 17 Support of Defendants’ Motion for Summary Judgment. From November 10, 2008 to January 18 16, 1009, plaintiff was housed in a cell by himself. Pl.’s Dep. 13:20-14:10. During that period, 19 plaintiff had at least the following in his cell: a mattress, two sheets, two wool blankets, tennis 20 shoes, two towels, a jumpsuit, three pairs of socks, three boxer briefs, and three t-shirts. Pl.s’ 21 Dep. 27:2-33:25; 51:14-52:14. Plaintiff also had hot tap water in his cell and received three 22 meals a day. (Id.) 23 2 24 25 26 All of these undisputed facts are tendered by defendants. Plaintiff has tendered no evidence in opposition to defendants’ motion, and his complaint is not signed under penalty of perjury, so it cannot serve as an affidavit in opposition to the motion. Cf. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified complaint based on personal knowledge of admissible evidence can constitute an affidavit in opposition to motion for summary judgment). Accordingly, the evidence tendered by defendants in support of their motion is undisputed. 4 1 In Building 10, the air is supplied to both cells and the dayroom from a central 2 HVAC system comprised of three air handling units located on the roof of the building. 3 Declaration of J. Beath in Support of Defendants’ Motion for Summary Judgment, at ¶ 7. 4 Because the same units supply heat and air conditioning to the cells and the dayroom, the 5 temperatures in both the cells and the dayroom are substantially similar. Id. at ¶¶ 7-9. 6 On December 1, 2008, temperatures were recorded in Building 10 at 72 degrees 7 and 69 degrees. Id. at ¶ 15. On December 23, 2008, the dayroom temperature was recorded at 8 72 degrees. Id. at ¶ 17. 9 During the period that plaintiff was housed in administrative segregation, several 10 work orders were issued due to a lack of heat in Building 10. Id. passim. The first was issued on 11 December 9, 2008. Id. at ¶ 16. On that day, a stationary engineer spent two hours investigating 12 the problem of a lack of heat in Building 10 and found that the heating system appeared to be 13 working. Id. On December 23, 2008, the same engineer spent six hours troubleshooting the 14 heating system. Id. at ¶ 17. Again, no problem was discovered at that time. Id. On December 15 31, 2008, the same engineer spent three hours troubleshooting an apparent lack of heat in 16 Building 10. Id. at ¶ 19. Once again, the engineer found that the system appeared to be working. 17 Id. On January 5, 2009 and January 6, 2009, the same engineer spent one hour each day 18 troubleshooting the heating system, which continued to appear to be working. Id. at ¶¶ 20-21. 19 On January 8, 2009, the engineer and another individual spent three hours 20 troubleshooting and at that time determined that the three strainers for the heat-exchanger supply 21 pipes were clogged with debris. Id. at ¶ 22. The next day, three individuals spent the entire day 22 cleaning and flushing the system. Id. Troubleshooting was repeated for one hour each day on 23 January 12, 2009 and January 14, 2009. Id. at ¶¶ 23-24. On January 16, 2009, the engineer again 24 spent seven hours troubleshooting and cleaning the system. Id. at ¶ 25. On February 10 and 11, 25 2009, the engineer spent four hours each day troubleshooting and cleaning the strainers. Id. at ¶¶ 26 27-28. On February 17, 2009, the engineer spent two hours troubleshooting the heating system. 5 1 Id. at ¶ 29. At that time the system was found to be operating to specifications and the dayroom 2 temperature was 74.1 degrees. Id. No further work orders were issued for the heating system in 3 Building 10. Id. 4 Plaintiff testified at his deposition that he was in good health while housed in 5 Building 10. Pl.’s Dep. 76:6-8. He further testified that his hand gets numb when it is cold 6 because his hand had previously been broken, and that sometimes he couldn’t sleep due to the 7 cold, but otherwise he had suffered no problems attributable to the cold during that period. Pl.’s 8 Dep. 76:8-77:21. 9 II. Legal Standards 10 Defendants seeks summary judgment on the grounds that (1) plaintiff was not 11 housed in conditions that posed a substantial risk of serious harm to him; (2) defendants were not 12 deliberately indifferent to the heating problems in Building 10 at CSP-Solano; and (3) the 13 defendants are, in any event, entitled to qualified immunity. 14 Plaintiff’s claim arises from the Eighth Amendment proscription against cruel and 15 unusual punishment. To prevail on his claim, “plaintiff must prove a denial of ‘the minimal 16 civilized measure of life’s necessities,’ Rhodes v. Chapman, 452 U.S. 337, 347 (1981), occurring 17 through ‘deliberate indifference’” by defendants. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 18 1996) (quoting Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). “The Eighth Amendment 19 guarantees adequate heating.” Keenan, 83 F.3d at 1091 (citing Gillespie v. Civiletti, 629 F.2d 20 637, 642 (9th Cir. 1980)). However, uncomfortable temperatures, without more, do not violate 21 the Eighth Amendment. Id. Deliberate indifference is shown by proof that a defendant “‘acted 22 or failed to act despite his knowledge of a substantial risk of serious harm.’” Solis v. County of 23 Los Angeles, 514 F.3d 946, 957 (9th Cir. 2008) (quoting Farmer v. Brennan, 511 U.S. 825, 841 24 (1994)). 25 26 Plaintiff’s allegations against the defendants are that on December 4, 2008, plaintiff brought to the defendants’ attention that “ice cold air” was being pumped through the 6 1 ventilation system into the administrative segregation unit in Building 10, and that defendants 2 Wong and Fox responded that there was nothing wrong with the air, while defendant Peck 3 responded that he didn’t have time for the complaints. Complaint (Doc. No. 1) at 3-6. 4 The evidence before the court on summary judgment reflects that the lowest 5 recorded temperature in Building 10 was that of 69 degrees on December 1, 2008, in the 6 dayroom. Moreover, the undisputed evidence before the court is that the temperature in the cells 7 of Building 10 would not have been more than two to three degrees lower than that. The 8 evidence also establishes that plaintiff had clothing, two wool blankets, and two sheets in his cell 9 for the entire relevant period of time. This court finds no evidence that the temperatures in 10 Building 10 were more than uncomfortable or caused the conditions of plaintiff’s confinement to 11 fall below “the minimal civilized measure of life’s necessities,” Rhodes, 452 U.S. at 347, or that 12 the temperatures in the Building where plaintiff was housed posed a substantial risk of serious 13 harm to him. 14 The undisputed evidence also shows that the first work order on the heating 15 system was issued five days after plaintiff alleges he first complained to defendants, on 16 December 9, 2008, that an engineer worked for two hours that day troubleshooting the system, 17 and that workers spent several more days in the months of December 2008 and January and 18 February 2009, until the problem was diagnosed and fixed. As noted above, there is no evidence 19 that the temperature in Building 10 during that process posed a substantial risk of serious harm to 20 plaintiff. A fortiori, there is no evidence that any defendant in this action was deliberately 21 indifferent to a substantial risk of harm to plaintiff.3 22 23 For the foregoing reasons, defendants’ motion for summary judgment should be granted. 24 3 25 26 As noted above, plaintiff’s complaint is not signed under penalty of perjury and therefore does not serve as evidence in connection with the pending motion for summary judgment. Notwithstanding, there is no evidence that any delay in responding to plaintiff’s complaint caused him to suffer cognizable harm. 7 1 On April 5, 2011, plaintiff filed a motion for appointment of counsel. The United 2 States Supreme Court has ruled that district courts lack authority to require counsel to represent 3 indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 4 (1989). In certain exceptional circumstances, the district court may request the voluntary 5 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 6 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 7 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 8 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 9 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 10 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 11 common to most prisoners, such as lack of legal education and limited law library access, do not 12 establish exceptional circumstances that would warrant a request for voluntary assistance of 13 counsel. In the present case, the court does not find the required exceptional circumstances. 14 Accordingly, plaintiff’s motion for appointment of counsel will be denied. 15 CONCLUSION 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s March 21, 2011 discovery motion is denied; 18 2. Plaintiff’s April 5, 2011 motion for appointment of counsel is denied; and 19 IT IS HEREBY RECOMMENDED that defendants’ February 8, 2011 motion for 20 21 summary judgment be granted. These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 23 days after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26 objections shall be filed and served within fourteen days after service of the objections. The 8 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: August 5, 2011. 4 5 6 7 8 DAD:12 gibs2388.msj 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9
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