-RBB Franklin v. Scribner et al, No. 3:2007cv00438 - Document 158 (S.D. Cal. 2010)
Court Description: ORDER granting 139 Defendants' Motion for Summary Judgment: The Clerk shall enter judgment for Defendants and close the file. Signed by Magistrate Judge William V. Gallo on 9/29/10. (All non-registered users served via U.S. Mail Service)(lmt)
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-RBB Franklin v. Scribner et al Doc. 158 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY A. FRANKLIN, 12 Plaintiff, 13 v. 14 L. E. SCRIBNER, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) Civil No. 07-0438-WVG ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. # 139) 17 18 On March 8, 2007, Plaintiff Gregory A. Franklin (hereafter 19 “Plaintiff”), 20 alleging his civil rights were violated. Following motions to 21 dismiss and amendments made to the Complaint, on June 24, 2008, 22 Plaintiff filed a Second Amended Complaint (hereafter “SAC”), which 23 is the operative pleading in this case. 24 filed Plaintiff’s a SAC Complaint names pursuant the to following 42 U.S.C. §1983, Defendants: L.E. 25 Scribner, G.J. Giurbino, J. Ochoa, R. Nelson, M.D. Greenwood, R. 26 Madden, R. Bass, P. Zill, J. Vargas, J. Ortiz, M.E. Bourland, G. 27 Haley, E. Trujillo, S.F. Arias, R. Davis, G. Hopper, and C. Maciel. 28 On March 16, 2009, the District Judge previously assigned to this 1 07cv0438 Dockets.Justia.com 1 case issued an Order that dismissed Defendants Madden, Zill, Vargas, 2 Ortiz, Bourland, Haley, Trujillo, Arias, Davis, Hopper and Maciel. 3 Therefore, the Defendants remaining in this action are: Scribner, 4 Giurbino, Ochoa, Nelson, Greenwood, and Bass (hereafter “March 16, 5 2009 Order”). 6 The SAC states several causes of action. The March 16, 2009 7 Order dismissed all of the causes of action in the SAC, except the 8 causes of action for (1) denial of outdoor exercise in violation of 9 the Eighth Amendment,1/ and, (2) inadequate medical care in violation 10 of the Eighth Amendment. 11 In the SAC, Plaintiff consented to have a Magistrate Judge 12 conduct any and all further proceedings in this case, including 13 trial and the entry of final judgment. (SAC at 28).2/ On May 8 and 14 October 29, 2009, Defendants similarly consented. (Doc. ## 111, 15 133). 16 Defendants Scribner, Giurbino, Ochoa, Nelson, Bass and 17 Greenwood filed a Motion for Summary Judgment. 18 Opposition and Supplemental Opposition to the Motion for Summary 19 Judgment. Defendants filed a Reply to Plaintiff’s Opposition. 20 Court, having reviewed the Motion for Summary Judgment, Opposition 21 and Supplemental Opposition to the Motion for Summary Judgment, the 22 Reply to the Opposition, and all the documents attached thereto, 23 hereby ORDERS that Defendants’ Motion for Summary Judgment is 24 GRANTED. Plaintiff filed an 25 26 27 28 1/ The March 16, 2009 Order limited this claim to the time period before July 13, 2006, but not thereafter. (March 16, 2009 Order at 6). 2/ References to page numbers of the SAC are to the ECF pagination. 2 07cv0438 The 1 I 2 FACTUAL BACKGROUND 3 A. Allegations in Second Amended Complaint 4 1. Denial of Fresh Air & Recreation 5 On August 18, 2005, a riot occurred at the C-Facility at 6 Calipatria State Prison (hereafter “CSP”). Defendant Warden G. 7 Giurbino 8 January 6, 2006. 9 was not involved in the riot. 10 (hereafter 2006, Plaintiff 11 “Giurbino”), placed CSP on lockdown until Plaintiff was housed in the A-Facility at CSP, and was From August 18, 2005 to January 6, denied fresh air and recreation. (SAC at 9). From January 6, 2006 to March 13, 2006, Defendant Warden L.E. 12 Scribner 13 (hereafter “Ochoa”), and Captain M. Greenwood (hereafter “Green- 14 wood”), continued to confine Plaintiff and all inmates to their 15 cells due to an assault on an officer by an inmate. (SAC at 9). 16 From March 13, 2006 to July 13, 2006, Scribner, Ochoa and Defendant 17 Captain R. N. Nelson (hereafter “Nelson”), implemented a policy that 18 allowed Plaintiff and other inmates in the A-Facility one-and-one- 19 half hours of fresh air per week. (hereafter “Scribner”), Chief Deputy Warden T. Ochoa 20 Plaintiff alleges that he was confined to his cell on May 15, 21 16, 18, 21, June 1, 2, 3, 4, 10, 11, 16, 17, 18, 24, 25, 30, July 2, 22 3, 4, 5, 6, 93/, 16, 23, 26, 29, 2006.4/ 23 24 25 26 3/ See footnote 1. 27 4/ Plaintiff also alleges that he was confined to his cell for numerous days in August, September, October, November, December 2006, April May, June, July, August, September, October, November, December 2007, January, February, March, and April 2008. However, see footnote 1. 28 3 07cv0438 1 2 2. Inadequate Medical Care in Violation of the Eighth Amendment On September 7, 2005, Defendant Officer R. Bass (hereafter 3 “Bass”), did not allow Plaintiff to wear his “soft shoes” when 4 Plaintiff was leaving his cell, despite the fact that Plaintiff had 5 a “soft shoe chrono.”5/ Plaintiff suffers from painful callouses on 6 his feet. 7 feet. 8 of his feet to alleviate the pain in his feet. (SAC at 12). 9 In February 2007, Plaintiff had surgery on one of his Plaintiff’s foot condition requires him to walk on the sides B. Uncontested Material Facts 10 On August 18, 2005, numerous Hispanic inmates at CSP were 11 involved in multiple assaults or attempted murders of correctional 12 staff, which resulted in a lockdown of the prison, and later, a 13 modified 14 hereafter “Giurbino Dec.” at 2). program at the prison. (Declaration of G. Giurbino, 15 The report of the August 18, 2005 incidents contains the 16 following information: (a) An inmate struck a correctional officer 17 on the head in the C-Facility of the prison; (b) ten to twenty 18 inmates then surrounded the officer and began to beat and kick him; 19 (c) four inmates chased another officer who had attempted to assist 20 the first officer. 21 second officer had to retreat for his own safety. (Declaration of J. 22 Builteman, 23 Crime/Incident Report, August 18, 2005). One inmate brandished a weapon. hereafter “Builteman Dec.”, Exh. Therefore, the A, Amended 24 About thirty minutes later, four inmates followed a correc- 25 tional officer from the dining area, struck her in the facial area, 26 27 28 5/ Plaintiff and Defendants do not define the meaning of the word “chrono.” However, it is the Court’s understanding that a “chrono” is a recommendation, usually related to an inmate’s medical condition or course of treatment, issued by a prison physician. 4 07cv0438 1 and picked her up and slammed her to the ground. 2 staff arrived to assist, the four inmates battered those staff 3 members. (Builteman Dec., Exh. A). 4 When correctional As this incident occurred, twenty to thirty inmates refused 5 to return to their cells in Facility-C. 6 in that housing unit noticed several inmates with broken broom 7 handles and activated his alarm. When officers responded to the 8 alarm, the twenty to thirty inmates attacked the responding officers 9 with the broken broom handles, other weapons and their hands and The Control Booth Officer 10 feet. 11 broom handle, was shot and killed by another correctional officer. 12 (Builteman Dec., Exh. A). The inmate was a known gang member. 13 (Giurbino Dec. at 6). One inmate, who was stabbing a defenseless officer with a 14 During the seven day period prior to the August 18, 2005 15 incidents, there were two assaults on staff, a battery of a peace 16 officer, a threat to a staff member, a discovery of a live round of 17 ammunition, two incidents of inmates possessing weapons, a battery 18 on an inmate, an attempted battery on an inmate and two mutual 19 combat incidents. (Builteman Dec., Exh. B, Incident Reports Logs). 20 On August 19, 2005, a State of Emergency6/ at CSP was 21 requested and granted by the California Department of Corrections 22 and Rehabilitation (hereafter “CDCR”). 23 which included no outdoor exercise. (Giurbino Dec. at 2). 24 same day, Giurbino was called to CSP and became the Interim Warden. 25 As the Interim Warden, Giurbino was to comprehensively evaluate 26 27 28 6/ A lockdown went into effect On the A State of Emergency is declared at a prison to safely control inmate movement, restrict potentially volatile inmates or groups, and afford time to evaluate overall operations in order to regain control of the prison and establish order for the safety of staff, inmates and visitors. (Declaration of Robert G. Borg in Support of Defendants’ Motion for Summary Judgment at 3). 5 07cv0438 1 CSP’s operations to restore safety and security. He was to stay at 2 CSP until the CDCR could recruit a warden to continue his tasks. 3 From August 19, 2005 to the first week of January 2006, Giurbino was 4 responsible for making decisions regarding programming at CSP, 5 including the framework for the modified program, as approved by the 6 Associate Director at CDCR. (Giurbino Dec. at 2). 7 In January 2006, Scribner became the Warden of CSP. (Declara- 8 tion of L.E. Scribner, hereafter “Scribner Dec.” at 2). At that 9 time, Scribner assumed the responsibility of comprehensively 10 evaluating and establishing prison programming with the purpose of 11 restoring long-term safety and security at CSP. (Scribner Dec. at 12 2). 13 Defendants Nelson, Bass, Greenwood, Ochoa, were subordinates 14 of Giurbino and Scribner. Nelson, Bass, Greenwood and Ochoa did not 15 have authority to deviate from the restrictions imposed as set forth 16 in the program status report matrices developed to restore control 17 over CSP. 18 population inmates or allow inmates to wear shoes not authorized by 19 the program status reports. (Giurbino Dec. at 2; Scribner Dec. at 2; 20 Nelson Dec. at 2; Greenwood Dec. at 2; Ochoa Dec. at 2; Bass Dec. at 21 2). They could not allow outdoor exercise for general 22 Bass denied Plaintiff’s request to wear tennis shoes when 23 Plaintiff was outside of his cell during a September 7, 2005 cell 24 search. Bass had asked his supervisor whether Plaintiff’s “Accommo- 25 dation Chrono” exempted him from the lockdown status report matrix, 26 which required all inmates to wear shower shoes (flip flops) when 27 they were outside their cells. 28 shower shoes while they were outside their cells was to minimize the The requirement that inmates wear 6 07cv0438 1 risk that inmates could hide weapons in their shoes and commit 2 violent acts with such weapons. (Bass Dec. at 2, Builteman Dec., 3 Exh. C). 4 Giurbino and Scribner made decisions regarding the lockdown 5 and modified program. When they made decisions, they considered the 6 August 18, 2005 incidents, the degree of organization that went into 7 the prison-wide assaults, the violence at CSP which had been ongoing 8 and escalating in the past two years unabated by previous efforts to 9 bring the prison population under control, intelligence gathered 10 from inmate interviews and outside influences which could affect the 11 prison population. (Giurbino Dec. at 2; Scribner Dec. at 2). 12 decisions regarding allowable inmate movement and programming were 13 focused on bringing immediate and long-lasting safety to inmates and 14 prison staff. 15 CSP’s facilities and procedures with continual dialogue with the 16 Associate Director of CDCR. (Giurbino Dec. at 3; Scribner Dec. at 17 3). 18 subsequent inmate interviews and further investigation of the August 19 18, 2005 assaults. This information included that some inmates were 20 planning future assaults on prison staff members. (Girbino Dec. at 21 3-4). Significant 22 Their Their decisions involved extensive evaluation of information was obtained during initial and The high level of violence at CSP prior to and on August 18, 23 2005 called for a drastic reestablishment of order. 24 level of violence would likely have continued to be more common and 25 more severe. (Declaration of Robert G. Borg, hereafter “Borg Dec.”, 26 at 2). Otherwise, the 27 28 The purpose of the State of Emergency, lockdown, and modified 7 07cv0438 1 program at a prison is to safely control inmate movement, restrict 2 potentially volatile inmates or groups, and afford time to evaluate 3 prison operations, in order to regain control of the prison and 4 establish 5 visitors. 6 yard and meals in dining rooms create the most severe threats to 7 safety because these activities allow large numbers of unrestrained 8 inmates to be in close proximity to each other and staff, in numbers 9 that far outweigh staff, and allow inmates far greater access to 10 items which could be used as weapons. These activities are the last 11 activities to be returned to normalcy. (Borg Dec. at 3, 5). 12 order for the safety of prison staff, inmates and Activities such as allowing inmates in an open prison Shortly after August 19, 2005, exhaustive searches of all 13 cells and all areas accessible to inmates were conducted. 14 September 12, 2005, the searches concluded. (Giurbino Dec. at 3). On 15 On September 16, 2005, Giurbino requested from the Director 16 of the Division of Adult Institutions to conclude the declared State 17 of Emergency. 18 Division of Adult Institutions that CSP would transition to a 19 modified program, which would initially exclude outdoor exercise. 20 The request was granted. (Giurbino Dec. at 3). At that time, Giurbino advised the Director of the 21 From August 19, 2005 through January 2006, Giurbino conducted 22 meetings on an almost daily basis to review the modified program, 23 and to evaluate intelligence gathered from cell searches, inmate 24 interviews and other investigative activities. 25 included briefings by facility and operations administrators and 26 intelligence officers who provided information regarding the status 27 of prison operations. During this time, Giurbino consulted with the 28 Associate Director of CDCR two to three times per week to discuss 8 The daily meetings 07cv0438 1 the status of prison operations and the modified program. (Giurbino 2 Dec. at 3; Builteman Dec., Exh. C, Program and Status Reports and 3 Minutes). 4 When Scribner assumed the position of Warden of CSP, he 5 continued 6 participants from January 2006 to at least July 13, 2006. 7 this time, Scribner continued to consult with the Associate Director 8 of the CDCR two to three times per week to discuss the status of 9 prison operations and the modified program. the meetings with the same regularity, purpose and During His goal was to bring 10 prison activities back to normal programming as soon as possible 11 without 12 Scribner’s decisions regarding prison programming were submitted to, 13 and approved by, the Associate Director of the CDCR. (Scribner Dec. 14 at 3). sacrificing the safety and security of the prison. 15 Giurbino believed that it would have been unsafe to expose 16 prison staff to unrestrained general population inmates until those 17 inmates who were planning future assaults were removed from the 18 prison. 19 violence “180 design inmates,”7/ who were housed in CSP’s general 20 population, 21 prisons. 22 180-design inmates, hold hearings, and securing another prison able Therefore, he determined that inmates classified as higher needed to be identified and transferred to other Due to the time involved in reviewing files to identify 23 24 to accept the inmate, the transfer of all 180-design inmates to 25 other prisons was not complete in January 2006. (Giurbino Dec. at 26 27 28 7/ Generally, inmates who commit serious offenses while they are housed in lower security prisons become classified as 180-design inmates. Higher-violence 180-design inmates may be housed at lower security prisons if they have court appearances in a court near the lower security prison or while they are awaiting transfer to a higher security prison. 9 07cv0438 1 4). 2 As a result of the State of Emergency, 140 inmates had been 3 transferred to other prisons by November 14, 2005. 4 inmates were awaiting transfer. 5 had been transferred to other prisons. 6 total of 297 inmates had been transferred to other prisons. (Borg 7 Dec. at 4).8/ Another 140 By December 2, 2005, 236 inmates By December 29, 2005, a 8 In November and December 2005, Giurbino was concerned about 9 the potential for further violence due to the fact that the inmate 10 that was killed during the August 18, 2005 incidents was a known 11 gang member. 12 by the gang to which the inmate belonged might occur. 13 time, Giurbino was also concerned about the occurrence of further 14 violence in connection with the then upcoming and well-publicized 15 execution of Stanley “Tookie” Williams, the founder of the Crips 16 gang. 17 Dec. at 6). Therefore, Giurbino believed that violent retaliation During this The execution was conducted on December 13, 2005. (Giurbino 18 By November 8, 2005, Giurbino took steps toward normal 19 programming by allowing unrestrained interaction of prison staff 20 with inmates who had passed a risk assessment. He also allowed these 21 inmates greater access to canteen and vendor packages and limited 22 visitation. Additionally, medical personnel walked through the cell 23 blocks to identify and address inmates’ medical needs; inmates who 24 25 26 27 28 8/ Plaintiff disputes that only 180-design inmates were transferred to other prisons, and the actual number of inmates transferred to other prisons by the dates noted. However, Plaintiff does not appear to dispute that inmates were, in fact, transferred to other prisons. Nonetheless, he insists that some inmates were transferred to other prisons for improper reasons. The Court does not see how Plaintiff’s evaluations regarding whether an inmate was properly or improperly transferred to another prison is relevant to any issue presented by Defendants’ Motion for Summary Judgment. 10 07cv0438 1 required medical, dental, or mental health care were allowed to 2 attend appointments with doctors; inmates identified with legal 3 deadlines were allowed access to the law library and chaplains and 4 religious volunteers were allowed to walk “the tiers.” (Giurbino 5 Dec. at 5). 6 By December 2005, critical workers’ movement was unre- 7 strained. Immigration and Naturalization Services (hereafter “INS”) 8 inmates were allowed unrestrained movement, but only four inmates at 9 a time were permitted for INS interviews at designated tables. 10 Twelve unrestrained inmates escorted by two correctional officers 11 were allowed access to the law library. Eight unrestrained inmates 12 escorted by one correctional officer were allowed to attend medical 13 appointments. Facility D inmates’ movements were unrestrained, were 14 “control fed” in the dining room and had normal education programs 15 restored. (Plaintiff’s Exh. C, December 19, 2005 Program Status 16 Report, at 2-3). 17 From August 18, 2005 to July 13, 2006, 230 violent incidents 18 occurred 19 attempted murder of a Peace Officer, twenty-four incidents of 20 battery on a Peace Officer, five incidents of attempted battery on 21 a Peace Officer, forty-eight incidents of inmate possession of 22 weapons, and eighty incidents of inmate battery or mutual combat. 23 (Builteman Dec., Exh. B; Borg Dec. at 13).9/ at CSP. These incidents included three incidents 24 25 26 27 28 9/ Plaintiff disputes the actual number of violent incidents that reportedly occurred from August 18, 2005 to July 13, 2006. He asserts that 153 violent incidents occurred during that time frame. However, even if Plaintiff’s number of violent incidents were accepted, the Court finds that the number of (continued) (continued) violent incidents at CSP during the noted time period, was excessive. 11 07cv0438 of 1 On February 2, 2006, Scribner held a meeting to discuss a 2 comprehensive five-phase plan to discontinue the modified program 3 and to resume normal programs over a five-week period beginning on 4 February 6, 2006. 5 privileges and programs such as visitation, telephone use, canteen 6 purchases, recreation, and for the implementation of unrestrained 7 inmate movement within housing units. 8 Facilities A, B and C, including Plaintiff, were allowed to use the 9 prison exercise yard on a modified schedule. The plan called for the gradual restoration of Under this plan, inmates in The modified schedule 10 allowed each Facility a half-day of use of the prison exercise yard 11 one day per week. (Scribner Dec. at 3). 12 The provision of outdoor exercise to inmates in Administra- 13 tive Segregation involves prison personnel bringing out restrained 14 inmates one-by-one or in small groups, placing them in the prison 15 yard, prison personnel exiting the prison yard, and then removing 16 the inmates’ restraints through a port. 17 to the general prison population on this or a similar basis was not 18 appropriate under the circumstances noted above because, (1) there 19 were 2,500 to 3,000 inmates in Facilities A, B and C; (2) the prison 20 does not have available significant number of inmate restraints to 21 be used at the same time in Facilities A, B, and C; (3) the general 22 prison yard fencing does not have ports through which restraints can 23 be removed once an inmate is placed in the yard; (4) committee 24 meetings would have had to have been held for all inmates to 25 determine which inmates could be released into the prison yard 26 together, which would have taken a prohibitive amount of time; (5) 27 considering the number of prison personnel needed for feeding 28 inmates in their cells, providing canteen items to inmates in their 12 Providing outdoor exercise 07cv0438 1 cells, and escorting restrained inmates to showers, medical, dental 2 and mental health appointments, law library, visitation and any 3 other movement outside of the inmates’ cells, the prison did not 4 have the sufficient number of personnel to escort inmates to the 5 prison yard; and (6) projects to improve the security of the prison 6 yards were ongoing for at least a couple of months after the August 7 18, 2005 incidents. (Giurbino Dec. at 7, Scribner Dec. at 9-10). 8 The provision of outdoor exercise to only non-Hispanic 9 general population inmates in the way inmates in Administrative 10 Segregation were provided outdoor exercise was not appropriate under 11 the circumstances noted above due to the large number of non- 12 Hispanic inmates at the prison, and for the reasons noted above. 13 (Giurbino Dec. at 7, Scribner Dec. at 10). 14 The provision of outdoor exercise to Plaintiff, or a select 15 group of general prison population inmates was not appropriate 16 because approximately 50 new inmates were admitted to CSP every week 17 beginning on August 19, 2005. The process to allow outdoor exercise 18 to Plaintiff, or to a select group of the general prison population, 19 would have been logistically impossible. 20 have been the potential for more violence due to special treatment 21 afforded certain inmates, but not to others, or from pressure 22 applied on the new inmates by disruptive inmates to engage in 23 violence. (Giurbino Dec. at 7-8, Scribner Dec. at 10). 24 During the lockdown, Plaintiff In addition, there would exercised in his cell. 25 (Deposition of Gregory A. Franklin, attached to the Declaration of 26 Michelle Des Jardins, hereafter “Plaintiff Deposition,” at 27:5-10). 27 From March 13, 2006 to July 13, 2006, Plaintiff and other 28 inmates were allowed one and one-half hours of outdoor exercise per 13 07cv0438 1 week. (Plaintiff’s Points and Authorities in Support of Opposition 2 to Defendants’ Motion for Summary Judgment at 4; Declaration of 3 Anthony at 2; Declaration of D. Green at 2).10/ 4 Plaintiff has callouses on the bottom of his feet. He has had 5 this condition since childhood. (Plaintiff Deposition at 8:6-25 - 6 9:1). In September 2005, Plaintiff had a temporary “Accommodation 7 Chrono,” which allowed him to wear soft shoes. (Plaintiff Deposi- 8 tion, Exh. 1). Wearing soft shoes gives Plaintiff ankle support. In 9 order to alleviate the pain in Plaintiff’s feet, he has to walk on 10 the sides of his feet because his callouses are in the middle of his 11 feet. 12 Deposition at 11:21-25, 12:1-4). Plaintiff requested an “Accommoda- 13 tion Chrono” from a doctor which would have been valid during 14 lockdowns and modified programs. 15 (Plaintiff Deposition at 41:11-21). Plaintiff played basketball 16 until 2004 when he injured his knee. 17 prevent him from playing basketball. (Plaintiff Deposition at 9:22- 18 25, 10:1-12). Plaintiff no longer has the “Accommodation Chrono,” 19 which allowed him to wear soft shoes. (Plaintiff Deposition at 43:4- 20 17). Tennis shoes give Plaintiff ankle support. (Plaintiff Plaintiff’s request was denied. His callous condition did not 21 On September 7, 2005, during the lockdown, Defendant Bass 22 came to search Plaintiff’s cell. (SAC at 12). Plaintiff was required 23 to leave his cell for the cell search. (Bass Dec. at 2; Plaintiff 24 Deposition at 13:18-25 - 14:1-13). 25 Under the restrictions imposed by the lockdown program status 26 reports, all inmates were permitted to wear only shower shoes (flip 27 28 10/ Inmates Anthony and Green state that beginning in May 2006, they were allowed two hours of outdoor exercise for two months. 14 07cv0438 1 flops) when outside of their cells because of the risk that inmates 2 could secrete weapons in their shoes and commit violent acts. (Bass 3 Dec. at 2). Plaintiff asked Bass if he could wear his tennis shoes 4 outside his cell while the cell was being searched. Bass asked his 5 supervisor 6 exempted him from the lockdown restriction. Bass was instructed that 7 the Accommodation Chrono did not overrule custody issues and that 8 for security reasons, Plaintiff could not wear his tennis shoes when 9 he left his cell during the cell search. (Bass Dec. at 2).11/ 10 11 if Plaintiff’s Accommodation Chrono for soft shoes Plaintiff was required to wear his shower shoes when he left his cell for the cell search. He was required to walk to the day 12 13 14 room, which is no more than 150 feet away from any cell. (Bass Dec. 15 at 2).12/ 16 17 11/ 18 19 20 21 Plaintiff argues that if an inmate has a medical chrono to wear tennis shoes when he exits his cell, he could have worn tennis shoes after his shoes and feet were searched. Plaintiff cites to the supplemental interrogatory responses by Giurbino to support this assertion. However, Plaintiff misconstrues Giubino’s supplemental responses. Giurbino objected to responding to Plaintiff’s interrogatory seeking this information. After the objections were stated, Giurbino specifically stated: “At Calipatria State Prison, during times of modified program, all inmates are required to exit their cells wearing... shower shoes. However, regardless of the type of shoes an inmate is wearing, during searches, inmates are required to remove their shoes to allow inspection of the foot covering and the inmate’s feet, by custody staff.” (emphasis added)(Defendants’ Lodgment No. 1, Giurbino’s Supplemental Responses to Plaintiff’s First Set of Interrogatories, at 8). Plaintiff also cites to his own Declaration to posit the same argument. (Franklin Dec. at 1). 22 23 24 25 26 27 28 Plaintiff disputes that Bass’ supervisor told Bass that Plaintiff was not allowed to wear tennis shoes when he exited his cell so it could be searched. Plaintiff cites to the responses to interrogatories by Bass to support this assertion. However, the interrogatory responses to which Plaintiff refers do not support Plaintiff’s assertion. Further, Plaintiff admits that he believed that Bass asked his supervisor about allowing Plaintiff to wear tennis shoes when he had to exit his cell for the cell search. (Plaintiff Deposition at 14:23-25, 15:1). 12/ Plaintiff states that he had to walk 100 yards to the day room. (Plaintiff Deposition at 14:4-6). 15 07cv0438 1 Bass did not know that Plaintiff’s walking the short distance 2 from his cell to the day room in shower shoes would cause Plaintiff 3 to suffer cruel and unusual punishment. Bass did not intend to 4 subject 5 complying with his orders, which he had no discretion to disregard. 6 (Bass Dec. at 2). Plaintiff to cruel and unusual 7 Bass was II 8 punishment. ANALYSIS 9 A. Standard of Review for Motion for Summary Judgment 10 Summary judgment is properly granted when “there is no 11 genuine issue as to any material fact and ... the moving party is 12 entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Entry 13 of summary judgment is appropriate “against a party who fails to 14 make a showing sufficient to establish the existence of an element 15 essential to that party’s case, and on which that party will bear 16 the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 17 317, 322 (1986). The court shall consider all admissible affidavits 18 and 19 judgment. See Connick v. Teachers Ins. & Annuity Ass’n, 784 F.2d 20 1018, 1020 (9th Cir. 1986). The moving party has the initial burden 21 of demonstrating that summary judgment is proper. Adickes v. S. H. 22 Kress & Co., 398 U.S. 144, 152 (1970). However, to avoid summary 23 judgment, the nonmovant cannot rest solely on conclusory allega- 24 tions. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Rather, 25 he must present “specific facts showing there is a genuine issue for 26 trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). 27 The Court may not weigh evidence or make credibility determinations 28 on a motion for summary judgment. Quite the opposite, the inferences supplemental documents submitted 16 on a motion for summary 07cv0438 1 to be drawn from the underlying facts must be viewed in the light 2 most favorable to the nonmoving party. Id. at 255; United States v. 3 Diebold, Inc., 369 U.S. 654, 655 (1962). The nonmovant’s evidence 4 need only be such that a “fair minded jury could return a verdict 5 for [him] on the evidence presented.” Anderson, 477 U.S. at 255. 6 However, in determining whether the nonmovant has met his burden, 7 the Court must consider the evidentiary burden imposed upon him by 8 the applicable substantive law. Id. A verified complaint or motion 9 may be used as an opposing affidavit under Fed.R.Civ.P. 56 to the 10 extent it is based on personal knowledge and sets forth specific 11 facts admissible in evidence. McElyea v. Babbitt, 833 F.2d 196, 197- 12 98 (9th Cir. 1987); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 13 (9th Cir. 1998) (motion). To “verify” a complaint, the plaintiff 14 must swear or affirm that the facts in the complaint are true “under 15 the pains and penalties of perjury.” Schroeder v. McDonald, 55 F.3d 16 454, 460 n.10 (9th Cir. 1995). 17 B. Defendants’ Arguments 18 Defendants argue that they are entitled to judgment as a 19 matter of law pursuant to Fed.R.Civ.P. 56 because: 20 1) no genuine issues of material fact exist to show that the 21 restrictions on Plaintiff’s access to outdoor exercise deprived him 22 of his Eighth Amendment rights; 2) no genuine issues of material 23 fact exist to show that Defendants acted with deliberate indiffer- 24 25 ence to Plaintiff’s health or safety; and 3) Defendants are entitled 26 to qualified immunity. 27 28 1. 42 U.S.C. § 1983 Section 1983 authorizes a “suit in equity, or other proper 17 07cv0438 1 proceeding for redress” against any person who, under color of state 2 law, “subjects, or causes to be subjected, any citizen of the United 3 States... to the deprivation of any rights, privileges, or immuni- 4 ties secured by the Constitution.” Nelson v. Campbell, 541 U.S. 637 5 (2004). Here, there is no dispute that Giurbino and Scribner acted 6 under 7 lockdown procedures at CSP which limited Plaintiff’s access to 8 outdoor exercise from August 19, 2005 through March 13, 2006, and 9 for 22 days in May, June, and July 2006.13/ Thus, the resolution of 10 Defendants’ Motion for Summary Judgment turns on the second inquiry: 11 whether a genuine issue of material fact exists to show that 12 Defendants’ actions constituted cruel and unusual punishment in 13 violation of Plaintiff’s Eighth Amendment rights. 14 color of state law when they ordered implementation of 15 2. Eighth Amendment’s Cruel and Unusual Punishment Clause “Whatever rights one may lose at the prison gates,... the 16 full protections of the eighth amendment most certainly remain in 17 force. The whole point of the amendment is to protect persons 18 convicted of crimes.” Spain v. Procunier, 600 F.2d 189, 193-94 (9th 19 Cir. 1979). However, the Eighth Amendment is not a basis for broad 20 prison reform. It requires neither that prisons be comfortable nor 21 that they provide every amenity that one might find desirable. 22 Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981); Hoptowit v. Ray, 23 682 F.2d 1237, 1246 (9th Cir. 1982). Rather, the Eighth Amendment 24 proscribes the “unnecessary and wanton infliction of pain,” which 25 includes those sanctions that are “so totally without penological 26 justification that it results in the gratuitous infliction of 27 28 13/ The period from August 19, 2005 through March 13, 2006 is 6 months 23 days. Also, see footnote 1. 18 07cv0438 1 suffering.” Gregg v. Georgia, 428 U.S. 153, 173, 183 (1976); see 2 also Farmer v. Brennan, 511 U.S. 825, 834 (1994); Rhodes, 452 U.S. 3 at 347. This includes not only physical torture, but any punishment 4 incompatible with “the evolving standards of decency that mark the 5 progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 6 (1958); see also Estelle v. Gamble, 429 U.S. 97, 102 (1976). 7 Although prison administrators generally have broad discretion in 8 determining whether to declare emergencies and impose “lockdowns” to 9 control institutional disturbances, the conditions imposed during 10 the lockdown may constitute cruel and unusual punishment under the 11 Eighth Amendment. See Hayward v. Procunier, 629 F.2d 599, 603 (9th 12 Cir. 1980) (denial of outdoor exercise may give rise to Eighth 13 Amendment violation even in response to emergency conditions). To 14 assert an Eighth Amendment claim for deprivation of humane condi- 15 tions of confinement, a prisoner must satisfy two requirements: one 16 objective and one subjective. Farmer, 511 U.S. at 834; Allen v. 17 Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994). 18 “Under the objective requirement, the prison official’s acts 19 or omissions must deprive an inmate of the minimal civilized measure 20 of life’s necessities.” Farmer, 511 U.S. at 834. This objective 21 component 22 sentenced prisoners with adequate food, clothing, shelter, sanita- 23 tion, medical care, and personal safety.” Hoptowit, 682 F.2d at is satisfied so long as the institution “furnishes 24 25 1246; Farmer, 511 U.S. at 833; Wright v. Rushen, 642 F.2d 1129, 26 1132-33 (9th Cir.1981). 27 The subjective requirement, relating to the defendants’ state 28 of mind, requires “deliberate indifference.” Allen, 48 F.3d at 1087. 19 07cv0438 1 “Deliberate indifference” exists when a prison official “knows of 2 and disregards an excessive risk to inmate health and safety; the 3 official must be both aware of facts from which the inference could 4 be drawn that a substantial risk of serious harm exists, and he must 5 also draw the inference.” Farmer, 511 U.S. at 835. 6 a. Objective Requirement 7 Plaintiff alleges that the conditions resulting from 8 Giurbino’s and Scribner’s decision to implement a lockdown and 9 modified lockdown restrictions constituted cruel and unusual 10 punishment because, as a result of those restrictions, he was denied 11 outdoor exercise for over seven months.14/ The Ninth Circuit has 12 stated that “regular outdoor exercise is extremely important to the 13 psychological and physical well being of the inmates.” Spain, 600 14 F.2d at 199 (holding that prisoners in long-term and continuous 15 segregation 16 “inclement weather, unusual circumstances, or disciplinary needs” 17 make it impossible). However, as the Ninth Circuit further recog- 18 nized in Hayward, when a lockdown is instituted in response to a 19 genuine emergency, the decisions regarding when and how to provide 20 for outdoor exercise “are delicate ones, and those charged with them 21 must be given reasonable leeway.” Hayward, 629 F.2d at 603. must be provided regular outdoor exercise unless 22 23 When prison officials balance the obligation to provide 24 safety for inmates and prison staff against the duty to accord 25 inmates the rights and privileges to which they are entitled, prison 26 officials are afforded “wide-ranging deference.” Norwood v. Vance, 27 28 14/ See footnote 13. Six months 23 days plus an additional 22 days totals 7 months 15 days. 20 07cv0438 1 591 F. 3d 1062, 1069 (9th Cir. 2010), citing Bell v. Wolfish, 441 2 U.S. 520, 547 (1979). 3 ‘genuine 4 (officials) determine in view of the emergency, courts may not... 5 second-guess prison officials’ judgments about when outdoor exercise 6 could safely be restored.” Norwood, 591 F.3d at 1069. emergency,’ When a “lockdown (is) in response to a and restrictions (are) eased as prison 7 When prison officials have substantial reasons for imposing 8 a lockdown, for example, wide-spread violence and riots, they are 9 tasked with restoring order and safety in the prison. Under these 10 circumstances, the lockdown is not intended to be punitive. Norwood, 11 591 F.3d 1069. 12 Prison officials have the duties to keep inmates safe from 13 each other and to protect prison staff from being attacked. 14 officials must balance these duties against other obligations that 15 the law imposes, such as providing outdoor exercise. 16 at the prison rises to extremely high levels, “prison officials have 17 a right and a duty to take steps to reestablish order in a prison 18 when such order is lost. 19 as much as for the benefit of the prison officials.” Id., at 1069, 20 quoting Farmer, 511 U.S. at 832-833; LeMaire v. Maass, 12 F. 3d 21 1444, 1462 (9th Cir. 1993); Hoptowit, 682 F.2d at 1259. 22 23 Prison When violence This is for the benefit of the prisoners Prison officials may be faulted for erring on the side of caution by maintaining a lockdown for longer than necessary. “But 24 25 when it comes to matters of life and death, erring on the side of 26 caution is a virtue.” Norwood, 591 F.3d at 1069. 27 “Although exercise is ‘one of the basic human necessities 28 protected by the Eighth Amendment’ ... a temporary denial of outdoor 21 07cv0438 1 exercise with no medical effects is not a substantial deprivation.” 2 May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (twenty-two days 3 insufficient 4 LeMaire, 12 F.3d at 1457). 5 to Here, the establish record Eighth is Amendment clear that violation) the initial (quoting and later 6 restrictions placed on Plaintiff’s ability to exercise outdoors 7 arose from violent incidents prior to August 18, 2005 and the riot 8 that occurred at CSP on that date. 9 violence and the riot, Giurbino, and later Scribner, implemented a As a result of the pre-riot 10 lockdown the day after the riot. 11 transfer out of the prison of inmates who were deemed to be a higher 12 risk for violence, in-cell feeding, controlled showers, and later, 13 unrestrained prison staff interaction with inmates under certain 14 circumstances, canteen access, library access for inmates with 15 verified court deadlines, limited visitation, and allowance of 16 inmates to attend medical, dental or mental heath care appointments 17 with doctors. The lockdown provided for the 18 Although Plaintiff claims he was denied outdoor exercise for 19 over seven months, Defendants argue that he was not denied exercise 20 altogether, but rather, only the opportunity to exercise outdoors. 21 Specifically, 22 confinement 23 component of an Eighth Amendment violation because Plaintiff was not Defendant during the claims the lockdown do conditions not satisfy of Plaintiff’s the objective 24 25 confined to his cell during the entire lockdown period and he 26 exercised in his cell during the lockdown period. 27 Under the circumstances of this case and Ninth Circuit 28 precedent, however, the Court finds evidence in the record suffi- 22 07cv0438 1 cient to create genuine issues of fact as to whether the denial 2 and/or limitations on Plaintiff’s outdoor exercise for a period of 3 over seven months meets the objective standard required to support 4 an Eighth Amendment violation.15/ See e.g., Lopez v. Smith, 203 F.3d 5 1122, 1133 (9th Cir. 2000) (finding six and one-half weeks depriva- 6 tion of “all access to outdoor exercise” sufficient to satisfy 7 Eighth Amendment’s objective requirements); Keenan v. Hall, 83 F.3d 8 1083, 1089 (9th Cir. 1996), as amended 135 F.3d 1318 (finding 9 triable issues of fact existed as to whether a six-month deprivation 10 of outdoor exercise due to Plaintiff’s placement in the Intensive 11 Management Unit violated the Eighth Amendment). 12 b. Subjective Requirement 13 However, in order to avoid summary judgment, Plaintiff must 14 also show there are triable issues as to the Eighth Amendment’s 15 subjective requirement. Farmer, 511 U.S. at 834. In this regard, the 16 Court finds no evidence in the record to support Plaintiff’s claim 17 that the denial of outdoor exercise, which began as a result of 18 violent incidents prior to, and the riot that occurred on, August 19 18, 2005, was the result of Defendant’s “deliberate indifference.” 20 Farmer, 511 U.S. at 835; Lopez, 203 F.3d at 1133. The evidence 21 before the Court shows that the suspension of outdoor exercise began 22 after a riot occurred on August 18, 2005, in which inmates at CSP 23 were involved in multiple assaults and attempted murders of CSP’s 24 correctional staff. One inmate was shot and killed during the riot. 25 15/ 26 27 28 Plaintiff argues that other inmates in the general population of CSP were afforded outdoor exercise beginning on August 19, 2005. Plaintiff cites to the Builteman Dec., and the responses to interrogatories by Giurbino, Scribner, Greenwood and Ochoa to support his assertion. However, the documents to which Plaintiff refers do not support Plaintiff’s assertion. None of these documents indicate that general population inmates were afforded outdoor exercise beginning on August 19, 2005. 23 07cv0438 1 Giurbino and Scribner indicate that the lockdown was imposed 2 so that they could comprehensively evaluate CSP’s operations to 3 restore safety and security at CSP. 4 decisions regarding the lockdown, and later, the modified program, 5 they 6 organization that went into the prison-wide assaults, the violence 7 at CSP which had been ongoing despite previous efforts to bring the 8 prison population under control, intelligence gathered from inmate 9 interviews, and outside influences which could affect the prison considered the August 18, When Giurbino and Scribner made 2005 incidents, the degree of 10 population. 11 interviews and investigation into the events of August 18, 2005. 12 This information included that some inmates were planning future 13 assaults on prison staff members. 14 evidence in the record to rebut Giurbino’s and Scribner’s explana- 15 tions for the lockdown, and later, the modified program. Significant information was obtained during inmate Plaintiff does not point to any 16 Thus, the record is replete with facts which reveal that 17 restrictions on outdoor exercise were instituted for the primary 18 purpose of preventing further violence, injuries and homicides. In 19 addition, all documentary evidence offered by both Plaintiff and 20 Defendants shows, that the lockdown and later, modified program, 21 were designed to restore safety and security at CSP as soon as 22 reasonably practical. There is simply no evidence before this Court 23 which supports Plaintiff’s claims that Defendants’ actions were the 24 product of any “deliberate indifference” on their part. Farmer, 511 25 U.S. at 837.16/ 26 As noted above, determinations such as how to best protect 27 inmates from violence “are delicate ones, and those charged with 28 16/ See footnote 15. 24 07cv0438 1 them must be given reasonable leeway.” Hayward, 629 F.2d at 602. 2 Therefore, prison officials are afforded wide-ranging deference in 3 making these determinations. Norwood, 591 F.3d at 1069. Defendants 4 have demonstrated as a matter of law that outdoor exercise restric- 5 tions at CSP were imposed as a result of a serious violent incidents 6 and a riot at CSP. 7 issues of material fact exist to show that Defendants deprived 8 Plaintiff of outdoor exercise with the “deliberate indifference” to 9 his health or safety necessary to support an Eighth Amendment 10 violation. See Farmer, 511 U.S. at 835. Rather, the uncontroverted 11 evidence establishes that the suspension of outdoor exercise was a 12 response to ongoing violence and the riot that occurred on August 13 18, 2005. Plaintiff has come forward with no evidence to support a 14 finding that the initial suspension or delay in restoration of 15 outdoor exercise amounted to a violation of his Eighth Amendment 16 rights. Thus, without more, this Court finds no genuine 17 Accordingly, Defendants are entitled to summary judgment as 18 a matter of law. Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 19 256; Berg, 794 F.2d at 459. 20 21 3. Defendants Ochoa, Greenwood, and Nelson Are Not Liable for an Eighth Amendment Violation Plaintiff contends that Defendants Ochoa and Greenwood denied 22 him outdoor exercise from January 6, 2006 to March 13, 2006 and from 23 March 20, 2006 to May 10, 2006. 24 March 13, 2006 to July 13, 2006, Defendants Ochoa and Nelson 25 implemented a policy that only allowed inmates in Plaintiff’s 26 facility one-and-one-half hours of outdoor exercise per week. (SAC 27 at 9-10). 28 Plaintiff also contends that from Respondeat Superior liability does not exist under § 1983. 25 07cv0438 1 Monell v. New York Dept. of Soc. Svcs., 436 U.S. 658, 691 (1978); 2 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “(A) plaintiff 3 must plead that each Government-official defendant, through the 4 official’s own individual actions, has violated the Constitution.” 5 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009). 6 established by showing acts and omissions of each defendant. See 7 Rizzo v. Goode, 423 U.S. 362, 370-371 (1976); Leer v. Murphy, 844 8 F.2d 628, 633 (9th Cir. 1988). “The inquiry into causation must be 9 individualized and focus on the duties and responsibilities of each 10 defendant whose acts or omissions are alleged to have set forth a 11 constitutional deprivation.” Id. at 633. Causation must be 12 Here, the undisputed facts presented to the Court show that 13 only the warden had the authority to institute the lockdown and 14 modified program at the prison. 15 the lockdown and modified program were subject to the approval of 16 the CDCR. Ochoa, Greenwood, and Nelson did not have authority to 17 allow Plaintiff or other inmates outdoor exercise when this activity 18 was not authorized by the warden. Since Ochoa, Greenwood, and Nelson 19 did not have the duties, responsibilities, or authority to institute 20 the lockdown or modified program, nor the restrictions attendant 21 therewith, they can not be held liable for an Eighth Amendment 22 violation under the circumstances presented. The warden’s decisions regarding 23 As a result, Defendants Ochoa, Greenwood, and Nelson are 24 entitled to summary judgment as a matter of law. Celotex, 477 U.S. 25 at 322-324; Anderson, 477 U.S. at 256; Berg, 794 F.2d at 459. 26 27 4. Defendant Bass Did Not Violate Plaintiff’s Eighth Amendment Rights Plaintiff contends that on September 7, 2010, Defendant Bass 28 did not allow Plaintiff to wear his “soft shoes” when Plaintiff was 26 07cv0438 1 exiting his cell so his cell could be searched. Therefore, Plaintiff 2 asserts that Bass violated his Eighth Amendment right to be free 3 from cruel and unusual punishment. 4 he prohibited Plaintiff from wearing “soft shoes,” he was following 5 the orders of his superiors and did not intend to cause Plaintiff to 6 suffer in violation of Plaintiff’s Eighth Amendment rights. Defendant Bass argues that when 7 As previously noted, Plaintiff has callouses on the bottom of 8 his feet. In September 2005, Plaintiff had a temporary “Accommoda- 9 tion Chrono,” which allowed him to wear soft shoes. Wearing soft 10 shoes gives Plaintiff ankle support. In order to alleviate the pain 11 in Plaintiff’s feet, he has to walk on the sides of his feet because 12 his callouses are in the middle of his feet. Tennis shoes give 13 Plaintiff an 14 Chrono” from a doctor which would have been valid during lockdowns 15 and modified programs. Plaintiff’s request was denied. Plaintiff 16 played basketball until 2004 when he injured his knee. His callous 17 condition did not prevent him from playing basketball. Plaintiff no 18 longer has the “Accommodation Chrono,” which allowed him to wear 19 soft shoes. (Plaintiff Deposition at 43:4-17). ankle support. Plaintiff requested “Accommodation 20 On September 7, 2005, during the lockdown, Defendant Bass 21 came to search Plaintiff’s cell. Plaintiff was required to leave his 22 cell for the cell search. 23 Under the restrictions imposed by the lockdown program status 24 reports, all inmates were permitted to wear only shower shoes (flip 25 flops) when outside of their cells because of the risk that inmates 26 could secrete weapons in their shoes and commit violent acts. (Bass 27 Dec. at 2). Plaintiff asked Bass if he could wear his tennis shoes 28 when he exited his cell while it was being searched. Bass asked his 27 07cv0438 1 supervisor 2 exempted him from the lockdown restriction. Bass was instructed that 3 the Accommodation Chrono did not overrule custody issues and that 4 for security reasons, Plaintiff could not wear his tennis shoes when 5 he left his cell during the cell search. 6 if Plaintiff’s Accommodation Chrono for soft shoes Plaintiff was required to wear his shower shoes when he left 7 his cell for the cell search. 8 room, which is no more than 150 feet or 100 yards away from any 9 cell. He was required to walk to the day 10 Bass did not know that Plaintiff’s walking the short distance 11 from his cell to the day room in shower shoes would cause Plaintiff 12 to suffer cruel and unusual punishment. Bass did not intend to 13 subject 14 complying with his orders, which he had no discretion to disregard. 15 16 a. Eighth Amendment’s Cruel and Unusual Punishment Clause As previously noted, the Eighth Amendment proscribes the 17 “unnecessary and wanton infliction of pain,” which includes those 18 sanctions that are “so totally without penalogical justification 19 that it results in the gratuitous infliction of suffering.” Gregg, 20 428 U.S. at 173, 183; see also Farmer, 511 U.S. at 834; Rhodes, 452 21 U.S. at 347. Although prison administrators generally have broad 22 discretion in determining whether to declare emergencies and impose 23 “lockdowns” to control institutional disturbances, the conditions 24 imposed 25 punishment under the Eighth Amendment. See Hayward v. Procunier, 629 26 F.2d at 603. Deliberate indifference to serious medical needs may 27 support a claim for violation of the Eighth Amendment. Estelle, 429 28 U.S. at 104. Plaintiff during the to cruel lockdown and may 28 unusual punishment. constitute cruel Bass and was unusual 07cv0438 1 Deliberate indifference must be analyzed in the context of 2 the specific case. In applying the deliberate indifference standard, 3 the trier of fact “must consider whether, in allegedly exposing the 4 prisoner to danger, the defendant prison official was guided by 5 consideration of safety to other inmates... More generally, the 6 legal standard must not be applied to an idealized vision of prison 7 life, but to the prison as it exists, and as prison official(s) are 8 realistically capable of influencing.” Berg, 794 F.2d at 462. An 9 analysis of the context in which prison officials act requires the 10 trier of fact to recognize the turbulent environment of a prison. 11 “Prisons by definition, are places of involuntary confinement of 12 persons who have a demonstrated proclivity for antisocial, criminal 13 and often violent conduct.” Hudson v. Palmer, 468 U.S. 517, 526 14 (1984). 15 Also, as previously noted, an Eighth Amendment violation 16 requires proof of an objective and subjective requirement. “Under 17 the objective requirement, the prison official’s acts or omissions 18 must deprive an inmate of the minimal civilized measure of life’s 19 necessities.” Farmer, 511 U.S. at 834. This objective component is 20 satisfied so long as the institution “furnishes sentenced prisoners 21 with adequate food, clothing, shelter, sanitation, medical care, and 22 23 personal safety.” Hoptowit, 682 F.2d at 1246; Farmer, 511 U.S. at 24 833; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.1981). 25 The subjective requirement, relating to the defendants’ state 26 of mind, requires “deliberate indifference.” Allen, 48 F.3d at 1087. 27 “Deliberate indifference” exists when a prison official “knows of 28 and disregards an excessive risk to inmate health and safety; the 29 07cv0438 1 official must be both aware of facts from which the inference could 2 be drawn that a substantial risk of serious harm exists, and he must 3 also draw the inference.” Farmer, 511 U.S. at 835. 4 1. Objective Requirement 5 Plaintiff alleges that on one occasion, Bass did not allow 6 him to wear his “soft shoes,” when he had to exit his cell for a 7 cell search. Plaintiff claims that he needed to wear his tennis 8 shoes instead of his shower shoes so that he could walk on the sides 9 of his feet instead of on the bottoms of his feet because his 10 callouses were on the center-bottoms of his feet. 11 that shower shoes did not provide him with enough ankle support to 12 walk on the sides of his feet. 13 times when the prison was on lockdown or modified program, and his 14 cell was searched, he was allowed to wear tennis shoes after a 15 correctional officer searched his tennis shoes. (Dec. of Franklin at 16 1). Plaintiff also offers the Declaration of Darryl Douglas, a 17 fellow inmate, which generally states that Douglas has been subject 18 to lockdowns and modified programs, has a medical chrono, and has 19 been allowed to wear his soft shoes and take other medical equipment 20 with him when a search of his cell was conducted. Plaintiff claims Further, Plaintiff states that many 21 When prison officials balance the obligation to provide 22 safety for inmates and prison staff against the duty to accord 23 inmates the rights and privileges to which they are entitled, prison 24 official are afforded “wide-ranging deference.” Norwood, 591 F. 3d 25 at 1069. 26 When prison officials have substantial reasons for imposing 27 a lockdown, for example, wide-spread violence and riots, they are 28 tasked with restoring order and safety in the prison. 30 Under these 07cv0438 1 circumstances, the lockdown is not intended to be punitive. Norwood, 2 591 F.3d 1069. 3 Prison officials have the duties to keep inmates safe from 4 each other and to protect prison staff from being attacked. 5 officials must balance these duties against other obligations that 6 the law imposes, such as providing outdoor exercise. 7 at the prison rises to extremely high levels, “prison officials have 8 a right and a duty to take steps to reestablish order in a prison 9 when such order is lost. Prison When violence This is for the benefit of the prisoners 10 as much as for the benefit of the prison officials.” Id., at 1069, 11 quoting Farmer, 511 U.S. at 832-833; LeMaire, 12 F. 3d at 1462; 12 Hoptowit, 682 F.2d at 1259. 13 Prison officials may be faulted for erring on the side of 14 caution by maintaining a lockdown for longer than necessary. “But 15 when it comes to matters of life and death, erring on the side of 16 caution is a virtue.” Norwood, 591 F.3d at 1069. 17 Here, the record is clear that on September 7, 2005, 18 Plaintiff had a temporary “Accommodation Chrono,” which allowed him 19 to wear soft shoes, due to his callous condition. It is also clear 20 that under the restrictions imposed by the lockdown, Plaintiff was 21 only permitted to wear shower shoes when he was outside of his cell. 22 This restriction was imposed because inmates could secrete weapons 23 in their shoes. When Plaintiff asked Bass if he could wear his 24 tennis shoes when he exited his cell, Bass asked his supervisor if 25 Plaintiff’s Accommodation Chrono exempted him from the lockdown 26 restriction. Bass was told that the Accommodation Chrono did not 27 overrule the lockdown restriction and that for security reasons, 28 Plaintiff could not wear his tennis shoes. 31 Further, the record is 07cv0438 1 clear that on other occasions, Plaintiff and at least one other 2 inmate with an Accommodation Chrono which allowed them to wear soft 3 shoes, were allowed to exit their cells wearing soft shoes, after 4 their shoes were searched. 5 Although Plaintiff claims that he suffered cruel and unusual 6 punishment and deliberate indifference to his medical needs in being 7 prohibited from wearing his soft shoes on one particular day, 8 September 7, 2005, Bass argues that Plaintiff’s callous condition 9 was not so severe nor was Plaintiff required to perform activities 10 in which he had to place significant pressure on the center-bottoms 11 of his feet. Specifically, Bass claims that preventing Plaintiff to 12 wear soft shoes on one occasion does not satisfy the objective 13 component of an Eighth Amendment violation. 14 However, under the circumstances of this case and Ninth 15 Circuit precedent, the Court finds evidence in the record sufficient 16 to create genuine issues of fact as to whether disallowing Plaintiff 17 to wear soft shoes during the lockdown, when he had an Accommodation 18 Chrono for soft shoes, and had been allowed to wear soft shoes 19 during other times when the prison was on lockdown, meets the 20 objective standard required to support an Eighth Amendment viola- 21 tion. 22 September 7, 2005, while Plaintiff’s cell was searched, he could not 23 wear his tennis shoes after the shoes were searched by a correc- 24 tional officer. 25 The Court has not been presented with any explanation why, on 2. Subjective Requirement 26 However, in order to avoid summary judgment, Plaintiff must 27 also show there are triable issues as to the Eighth Amendment’s 28 subjective requirement. Farmer, 511 U.S. at 834. In this regard, the 32 07cv0438 1 Court finds no evidence in the record to support Plaintiff’s claim 2 that Bass’ refusal to allow Plaintiff to wear his soft shoes while 3 his cell was searched was the result of Bass’ “deliberate indiffer- 4 ence.” Farmer, 511 U.S. at 835; Lopez, 203 F.3d at 1133. The 5 evidence 6 Plaintiff’s walking the short distance from his cell to the dayroom 7 would cause Plaintiff to suffer an excessive risk to his health. 8 Further, Bass did not disregard any risk to Plaintiff’s health. 9 Instead, the contrary is true. He asked his supervisor whether before the Court shows that Bass did not know that 10 Plaintiff’s 11 lockdown restriction that Plaintiff wear shower shoes when he exited 12 his cell. 13 shoes when he exited his cell. Bass complied with his orders, which 14 he had no discretion to disregard. Accommodation Chrono exempted Plaintiff from the He was instructed that Plaintiff had to wear his shower 15 As noted above, determinations such as how to best protect 16 inmates from violence “are delicate ones, and those charged with 17 them must be given reasonable leeway.” Hayward, 629 F.2d at 602. 18 Therefore, prison officials are afforded wide-ranging deference in 19 making these determinations. Norwood, 591 F.3d at 1069. 20 Defendants have demonstrated as a matter of law that Bass did 21 not violate Plaintiff’s Eighth Amendment rights. Therefore, the 22 Court finds no genuine issue of material fact to show that Bass 23 acted 24 disallowing Plaintiff to wear soft shoes, necessary to support an 25 Eighth Amendment violation. 26 429 U.S. at 104. with “deliberate indifference” to Plaintiff’s health in See Farmer, 511 U.S. at 835; Estelle, 27 Accordingly, Bass is entitled to summary judgment as a matter 28 of law. Celotex, 477 U.S. at 322-324; Anderson, 477 U.S. at 256; 33 07cv0438 1 Berg, 794 F.2d at 459. 2 5. Qualified Immunity 3 Since the Court has found no violation of Plaintiff’s Eighth 4 Amendment rights, the Court need not reach any issues regarding 5 qualified immunity. “The better approach to resolving cases in which 6 the defense of qualified immunity is raised is to determine first 7 whether the plaintiff has alleged the deprivation of a constitu- 8 tional right at all.” See County of Sacramento v. Lewis, 523 U.S. 9 833, 841, n. 5 (1998). “If no constitutional right would have been 10 violated were the allegations established, there is no necessity for 11 further inquiries concerning qualified immunity.” Saucier v. Katz, 12 533 U.S. 194, 201 (2001). 13 III 14 CONCLUSION AND ORDER 15 For the reasons set forth in this Order, the Court hereby 16 GRANTS Defendants’ Motion for Summary Judgment pursuant to Fed. R. 17 18 19 20 21 22 23 Civ. P. 56. 24 The Clerk shall enter judgment for Defendants and close the 25 file. 26 IT IS SO ORDERED. 27 28 DATED: September 29, 2010 34 07cv0438 1 2 Hon. William V. Gallo U.S. Magistrate Judge 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35 07cv0438
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