Thomas v. Celaya et al, No. 5:2006cv00489 - Document 121 (N.D. Cal. 2011)

Court Description: ORDER GRANTING MOTION TO DISMISS; GRANTING MOTION FOR SUMMARY JUDGMENT re 87 . Signed by Judge Jeremy Fogel on 3/29/11. (dlm, COURT STAFF) (Filed on 3/29/2011)

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Thomas v. Celaya et al Doc. 121 1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 LARRY DONNELL THOMAS, 13 Plaintiff, 14 vs. 15 16 J. CELAYA, et al., Defendants. 17 18 No. C 06-00489 JF (PR) ) ) ) ) ) ) ) ) ) ) ) ) ORDER GRANTING MOTION TO DISMISS; GRANTING MOTION FOR SUMMARY JUDGMENT (Docket No. 87) 19 Plaintiff, a state prisoner proceeding pro se, brought the instant civil rights action 20 21 pursuant to 42 U.S.C. § 1983. The Court found that Plaintiff’s second amended 22 complaint (“SAC”), (Docket No. 67), when liberally construed, stated cognizable claims, 23 and ordered service on Defendants Lieutenant J. Celaya, Lieutenant Ross, Correctional 24 Officer Kowalski, Correctional Officer J. Lopez, Sergeant J. Newton, Sergeant Locke, 25 and Sergeant J. Stevenson at Salinas Valley State Prison (“SVSP”).1 To date, Officer 26 Lopez has not yet been properly served. All other Defendants move to dismiss the claims 27 28 1 The Court dismissed all claims against Defendant Captain A. Hedgpeth for failure to state a claim. (See Docket No. 71.) Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 1 Dockets.Justia.com 1 against Celaya for failure to exhaust administrative remedies, and for summary judgment 2 with respect to the remaining claims. (Docket No. 87.) Plaintiff has filed opposition,2 3 and Defendants have filed a reply. 4 DISCUSSION 5 6 I. Statement of Facts The following facts are undisputed unless otherwise indicated. Plaintiff’s 7 8 allegations against the moving Defendants involve events that occurred at SVSP between 9 November 4 and November 7, 2002. On November 4, 2002, Plaintiff was housed in 10 Facility C at SVSP and was cleared to double cell. (SAC at 6.) Because Plaintiff was 11 beginning to experience “incompatibility issues” with his cellmate, it became necessary to 12 alter his housing arrangements. (Id.) Plaintiff himself made a request for a convenience 13 cell move, i.e., specifically to swap places with an inmate who was housed in a cell by 14 himself. (Id.) For unspecified reasons, Plaintiff’s desired move did not occur. (Id.) According to the declarations submitted in support of Defendants’ motion, cell 15 16 moves can be a difficult process depending on the amount of space available and the 17 particular inmate involved. (J. Stevenson Decl. at 2, Docket No. 94.) At that time, SVSP 18 was experiencing acute population pressures because of a heavy intake of inmates. (Id.; 19 J. Celaya Decl. at 2, Docket No. 88.) In particular during the week of November 4, 2002, 20 SVSP was scheduled to receive forty-nine additional inmates on seven buses, and six of 21 these buses were scheduled to arrive at SVSP on November 6, 2002. (T. Frye Decl. at 2. 22 Docket No. 89.) Double-celling was necessary to free-up bed space. (Celaya Decl. at 2.) Placing Plaintiff with a new cellmate presented various challenges, especially as 23 24 his placement ranked as an eight on a scale of one to ten, with ten being the most difficult. 25 (Stevenson Decl. at 2.) Factors that complicated Plaintiff’s placement included his 26 27 28 2 The Court notes that Plaintiff filed additional copies of his opposition and exhibits thereto on August 12, 2010, (Docket Nos. 115-17), which are in essence the same as the papers filed on July 16, 2010, (Docket Nos. 110-11). Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 2 1 security level, gang affiliation, ethnicity, and willingness to have a cellmate. (Id.) At the 2 time, it was customary for African-American inmates, such as Plaintiff, to be housed with 3 other African-American inmates. Moreover, Plaintiff himself admitted that although he 4 was unaffiliated with a prison gang, the fact that he has been housed with Crip gang 5 members precluded him from being housed with active members of other prison gangs. 6 (SAC at 6.) Additionally, the acute population pressures at SVSP further complicated 7 housing assignments because there were fewer inmates at the prison who were approved 8 to double cell and did not already have a cellmate. (Stevenson Decl. at 2.) 9 In an effort to find Plaintiff a compatible cellmate, prison officials brought 10 Plaintiff and four other inmates into the hobby shop of Facility C. (Id.) These individuals 11 were selected specifically because they were African-American and were unaffiliated 12 with a prison gang. (Id.) Stevenson informed the inmates that they needed to talk with 13 each other to determine whether they would be compatible cellmates. While two of the 14 inmates immediately agreed to be cellmates, Plaintiff and the remaining two inmates did 15 not agree to be cellmates with each other. (Id.) They were sent to SVSP’s Receiving and 16 Release (“R&R”) facility, as there were no available cells at Facility C. (Id.) 17 Plaintiff arrived at the R&R on the evening of November 4, 2002, and he remained 18 there for two nights until November 6, 2002, when the six buses of inmates arrived at 19 SVSP, which required that all R&R cells be made available. (Frye Decl. at 2.) A copy of 20 the R&R log book confirms the dates of Plaintiff’s time in the R&R, and that several 21 transports arrived at the prison on November 6, 2002. (Celaya Decl., Ex. B.) Plaintiff 22 was assigned back to a cell in Facility C. (SAC at 9.) 23 Plaintiff arrived back in Facility C at around 8:00 p.m. on November 6, 2002. (Id.) 24 He was assigned to a cell with another inmate who appeared to be compatible with him, 25 but for unknown reasons the arrangement did not work out. (Celaya Decl. at 3.) 26 According to Plaintiff, the inmate refused to be housed with him because Plaintiff was not 27 a “Bay Area Cat[].” (SAC at 9.) There being no other cells available, Plaintiff was 28 temporarily placed in Facility C’s sallyport, a vestibule that connects the housing portion Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 3 1 of Facility C to its recreation yard. (Celaya Decl. at 3.) According to Plaintiff, Locke 2 placed him in the sallyport and left him there overnight. (SAC at 9-10.) The sallyport 3 typically serves as a temporary storage or inmate holding area, but occasionally it is used 4 as a temporary housing area. (Celaya Decl. at 3.) According to Defendants, the sallyport 5 is appropriate for temporarily housing an inmate because it is completely enclosed, is 6 slightly smaller in size to a cell, and has access to the recreation yard’s restroom. (Id.) 7 When he was placed in the sallyport, Plaintiff was provided with a mattress and 8 blanket. (SAC at 10.) Plaintiff alleges that he should have been provided with a second 9 blanket and that he got “drenched” by a rain storm and had to endure cold weather 10 conditions when he had to use the recreation yard restroom. (Id.) Defendants ask that the 11 Court take judicial notice of the official climatological data showing that no precipitation 12 was recorded in the area surrounding SVSP on November 6, 2002. (Req. for Jud. Not., 13 Docket No. 96.) Defendants assert that Plaintiff made no complaints about the conditions 14 until the following morning, on November 7, 2002. (Mot. at 5; SAC at 10.) 15 On the morning of November 7, 2002, Plaintiff reported to the Facility C’s 16 program office. (SAC at 10.) The program office is divided into offices for various 17 prison personnel with a portion serving as a workspace for inmate clerks. (J. Hughes 18 Decl. at 2, Docket No. 90.) On this particular morning, there were approximately four to 19 six inmates working as clerks in the program office. (Id.) Plaintiff approached Sergeant 20 Hughes and “verbally described the entire saga of events that had transpired” over the last 21 few days. (SAC at 10.) According to Hughes, Plaintiff was “increasingly aggressive and 22 agitated.” (Hughes Decl. at 2.) Plaintiff alleges that while he was speaking with a prison 23 official, Celaya came and “intervened”in the conversation. (SAC at 11.) Celaya states 24 the he was concerned that Plaintiff, who appeared to be extremely agitated, might assault 25 him or the other staff members within the immediate vicinity. (Celaya Decl. at 3.) 26 Celaya instructed Plaintiff to return to the sallyport, but Plaintiff refused. (Id.; SAC at 27 11.) Meanwhile, Hughes went to secure the location where the inmate clerks were 28 working to prevent them from being involved in the event an altercation arose. (Hughes Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 4 1 Decl. at 2.) Hughes was still able to hear and observe Plaintiff’s interaction with Celaya. 2 (Id.) According to both Celaya and Hughes, Celaya instructed Plaintiff that he needed to 3 “cuff up” immediately. (Id.; Celaya Decl. at 2.) Plaintiff complied only after he was 4 warned that Celaya would have no choice but to use force to obtain his compliance. (Id.) 5 According to Celaya and Hughes, Plaintiff thereafter was escorted out of the program 6 office without incident. (Id.) 7 Plaintiff admits that he initially refused Celaya’s order to return to the sallyport. 8 (SAC at 11.) However, Plaintiff alleges that he had “five cannisters [sic] of pepperspray 9 [sic] aimed mennacingly [sic] at [his] face” in response to his refusal by correctional staff 10 members. (Id.) Plaintiff also claims that he was cuffed without any warning. (Id.) 11 Plaintiff alleges that after he complied with Celaya’s order, one of the correctional staff 12 members began to remove Plaintiff’s right shoe, which caused him to cringe his right leg 13 upwards. (Id.) Plaintiff alleges that Celaya then put his knee on Plaintiff’s face and 14 applied his entire body weight, smashing Plaintiff’s face into the floor. (Id.) Plaintiff 15 alleges that the excessive force by Celaya left a large knot and a bruise on his face. (Id.) 16 Plaintiff also claims that during the incident pepper spray actually was released and 17 contaminated him. (Id. at 12.) Plaintiff alleges that when escorting staff members were 18 about to take him to the medical clinic, Celaya intervened and directed them to take 19 Plaintiff back to the sallyport. (Id.) 20 Plaintiff states that shortly after he was returned to the sallyport, he asked 21 Kowalski for some toilet paper and to be allowed to use the recreation yard restroom. 22 (SAC at 12.) Plaintiff claims that he also requested that a nurse be contacted to provide 23 care for the alleged injury to his face and pain, among other medical needs. (Id.) Plaintiff 24 alleges that Kowalski denied all of his requests, violating his rights under the Eighth 25 Amendment. In response to these allegations, Kowalski has submitted a declaration 26 stating that he did not work at SVSP’s Facility C during November 2002. (M. Kowalski 27 Decl. at 1-2, Docket No. 91.) Defendants also have submitted the declaration of a non- 28 party, Medical Technical Assistant (“MTA”) G. Lauber, who states that she examined Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 5 1 Plaintiff at 9:15 a.m. on November 7, 2002, in the Facility C sallyport. (G. Lauber Decl. 2 at 2, Docket No. 92.) MTA Lauber recalls that she conducted an unclothed body 3 assessment of Plaintiff, during which she did not detect any injury or trauma. (Id.) MTA 4 Lauber also does not recall Plaintiff complaining of being exposed to OC pepper spray, a 5 complaint that she would have documented on the medical report. (Id., Ex A.) 6 According to the medical report, Plaintiff refused to have his blood pressure and other 7 vital signs taken. (Id.) Plaintiff was transferred to Facility B to double cell with another inmate during the 8 9 evening of November 7, 2002. (SAC at 13, 16.) Defendants state that in sum, Plaintiff 10 spent less than twenty-four hours in Facility C’s sallyport. Defendants contend that the 11 remaining allegations in the SAC are irrelevant to them or the claims at issue. Plaintiff alleges the following claims as grounds for relief: 1) all Defendants 12 13 retaliated against him for exercising his First Amendment rights, (SAC at 20); 2) Celaya 14 violated his First Amendment right of access to courts, (id. at 21, 22); 3) Celaya used 15 excessive force against him in violation of the Eighth Amendment prohibition against 16 cruel and unusual punishment, (id. at 22); 4) Plaintiff suffered inhumane conditions in 17 violation of the Eighth Amendment while he was housed in the Facility C sallyport, (id. at 18 23-24); and 5) Celaya and Kowalski failed to provide adequate care for his serious 19 medical needs, (id. at 25). (Mot. at 2-3.) 20 II. 21 Exhaustion Defendants move to dismiss Plaintiff’s second and fifth claims against Defendant 22 Celaya on the grounds that Plaintiff failed to exhaust his administrative remedies with 23 respect to these claims. (Mot. at 7.) The Prison Litigation Reform Act of 1995 (“PLRA”) 24 amended 42 U.S.C. § 1997e provides that “[n]o action shall be brought with respect to 25 prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 26 confined in any jail, prison, or other correctional facility until such administrative 27 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is 28 mandatory and no longer left to the discretion of the district court. Woodford v. Ngo, Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 6 1 548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). “Prisoners 2 must now exhaust all ‘available’ remedies, not just those that meet federal standards.” Id. 3 Even when the relief sought cannot be granted by the administrative process, i.e., 4 monetary damages, a prisoner must still exhaust administrative remedies. Id. at 85-86 5 (citing Booth, 532 U.S. at 734). 6 The PLRA requires “proper exhaustion” of available administrative remedies. Id. 7 at 93. This requirement cannot be satisfied “by filing an untimely or otherwise 8 procedurally defective administrative grievance or appeal.” Id. at 84. “The text of 42 9 U.S.C. § 1997e(a) strongly suggests that the PLRA uses the term ‘exhausted’ to mean 10 what the term means in administrative law, where exhaustion means proper exhaustion.” 11 Id. at 92. “Proper exhaustion demands compliance with an agency’s deadlines and other 12 critical procedural rules because no adjudicative system can function effectively without 13 imposing some orderly structure on the course of its proceedings.” Id. at 90-91 (footnote 14 omitted). A prisoner must complete the administrative review process in accordance with 15 the applicable procedural rules, including deadlines, as a precondition to bringing suit in 16 federal court. See id. at 87; see also Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 17 2005) (holding that, to exhaust remedies, a prisoner must file appeals in the place, and at 18 the time, the prison’s administrative rules require); Ross v. County of Bernalillo, 365 F.3d 19 1181, 1185-86 (10th Cir. 2005) (same). 20 The State of California provides its inmates and parolees the right to appeal 21 administratively “any departmental decision, action, condition, or policy which they can 22 demonstrate as having an adverse effect upon their welfare.” Cal. Code Regs. tit. 15, 23 § 3084.1(a). It also provides its inmates the right to file administrative appeals alleging 24 misconduct by correctional officers. See id. § 3084.1(e). In order to exhaust available 25 administrative remedies within this system, a prisoner must proceed through several 26 levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate 27 appeal form, (3) second level appeal to the institution head or designee, and (4) third level 28 appeal to the Director of the California Department of Corrections and Rehabilitation. Id. Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 7 1 § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the 2 administrative remedies exhaustion requirement under § 1997e(a). Id. at 1237-38. 3 Nonexhaustion under § 1997e(a) is an affirmative defense. Jones v. Bock, 4 127 S. Ct. 910, 922-23 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 5 Defendants have the burden of raising and proving the absence of exhaustion, and 6 inmates are not required to specifically plead or demonstrate exhaustion in their 7 complaints. Jones, 127 S. Ct. at 921-22. As there can be no absence of exhaustion unless 8 some relief remains available, a movant claiming lack of exhaustion must demonstrate 9 that pertinent relief remained available, whether at unexhausted levels or through 10 awaiting the results of the relief already granted as a result of that process. Brown v. 11 Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). 12 A nonexhaustion claim should be raised in an unenumerated Rule 12(b) motion 13 rather than in a motion for summary judgment. Wyatt, 315 F.3d at 1119. In deciding 14 such a Rule 12(b) motion, the court may look beyond the pleadings and decide disputed 15 issues of fact. Id. at 1119-20. If the court concludes that the prisoner has not exhausted 16 nonjudicial remedies, the proper remedy is dismissal without prejudice. Id. at 1120. 17 Defendants argue that while Plaintiff exhausted the majority of the claims 18 contained in the SAC, he failed to exhaust his claims that Celaya interfered with his 19 access to the courts and was deliberately indifferent to his medical needs. Defendants 20 identify inmate appeal no. SVSP D-03-01410 as the relevant appeal to the SAC. 21 According to the declaration of E. Medina, the Appeals Coordinator at SVSP, this appeal 22 was received on April 15, 2003. (E. Medina Decl. at 2.) The appeal appears to relate to 23 the “group employee misconduct complaint” that Plaintiff alleges he filed on April 15, 24 2003, claiming violations of his constitutional rights by Celaya, Ross, Newton, 25 Stevenson, Locke and Kolwoski. (SAC at 15.) According to Medina’s declaration and 26 the documents in support thereof, the appeal was partially granted at the second level of 27 review and denied at the third level of review. (Medina Decl. at 2, Ex. A at 5.) Medina 28 states and would testify if called to do so, that Plaintiff did not submit an inmate appeal Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 8 1 concerning his allegations that Celaya interfered with his access to the courts and was 2 deliberately indifferent to his medical needs during November 2002. (Id. at 3.) In his opposition paper, Plaintiff admits that appeal no. SVSP D-03-01410 is the 3 4 appropriate and only relevant appeal with respect to the SAC, but he contends that the 5 appeal is sufficient to exhaust his claims against Celaya. (Oppo. at 5.) Plaintiff claims 6 that he clearly stated in the appeal that “[a]s a result I didn’t get my medication for four 7 days; I couldn’t address my legal issues; and the majority of my property was lost.” (Id.; 8 Ex. B.) Plaintiff argues that these allegations were specific enough to give Defendant 9 Celaya “fair notice” of the claims against him and thereby sufficient for exhaustion. 10 (Oppo. at 5.) The Court has examined the inmate appeal at issue, and finds that the allegations 11 12 therein were not sufficient to give fair notice to Celaya of Plaintiff’s claims of 13 interference of access to courts or deliberate indifference to serious medical needs. The 14 allegations are similar to those asserted in the SAC with respect to Plaintiff’s claims of 15 retaliation, excessive force and inhumane conditions. However, nowhere in the appeal 16 does Plaintiff mention access to the courts or make any allegation that Celaya wrongfully 17 interfered with Plaintiff’s ability to obtain medical attention. Accordingly, the Court 18 finds that Plaintiff has failed to administratively exhaust his claims of right of access to 19 the courts and deliberate indifference to serious medical needs against Celaya. 20 Defendants’ motion to dismiss these two claims against Celaya on this basis is 21 GRANTED. 22 III. 23 24 25 Summary Judgment Defendants move for summary judgment with respect to the remaining claims against them. (Mot. at 9.) Summary judgment is proper where the pleadings, discovery and affidavits show 26 that there is ‘no genuine issue as to any material fact and [that] the moving party is 27 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court will grant 28 summary judgment “against a party who fails to make a showing sufficient to establish Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 9 1 the existence of an element essential to that party’s case, and on which that party will bear 2 the burden of proof at trial . . . since a complete failure of proof concerning an essential 3 element of the nonmoving party’s case necessarily renders all other facts immaterial.” 4 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect 5 the outcome of the lawsuit under governing law, and a dispute about such a material fact 6 is genuine “if the evidence is such that a reasonable jury could return a verdict for the 7 nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 8 9 Generally, the moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. See 10 Celotex Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on 11 an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could 12 find other than for the moving party. But on an issue for which the opposing party will 13 have the burden of proof at trial, the moving party need only point out “that there is an 14 absence of evidence to support the nonmoving party’s case.” Id. at 325. If the evidence 15 in opposition to the motion is merely colorable, or is not significantly probative, summary 16 judgment may be granted. See Liberty Lobby, 477 U.S. at 249-50. 17 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 18 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 19 file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex 20 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 21 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 22 The court’s function on a summary judgment motion is not to make credibility 23 determinations or weigh conflicting evidence with respect to a disputed material fact. See 24 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 25 1987). The evidence must be viewed in the light most favorable to the nonmoving party, 26 and the inferences to be drawn from the facts must be viewed in a light most favorable to 27 the nonmoving party. See id. at 631. It is not the task of the district court to scour the 28 record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 10 1 (9th Cir. 1996). The nonmoving party has the burden of identifying with reasonable 2 particularity the evidence that precludes summary judgment. Id. If the nonmoving party 3 fails to do so, the district court may grant summary judgment in favor of the moving 4 party. See id.; see, e.g., Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 5 1028-29 (9th Cir. 2001). 6 A. Claims against Kowalski 7 Plaintiff’s claims against Kowalski are for deliberate indifference to his physical 8 well-being and serious medical needs based on Kowalski’s alleged actions on November 9 7, 2002. See supra at 5. Kowalski asserts that Plaintiff’s claims against him fail as a 10 matter of law because he was not working in Facility C of SVSP at the time. (Kowalski 11 Decl. at 1.) 12 According to his payroll records and recollection, Kowalski was the third watch 13 yard officer for Facility E at SVSP from April 29, 2002 to December 2, 2002. (Id.) 14 Kowalski’s “employee attendance record” also indicates that he was nowhere near 15 Facility C on November 7, 2002. (Id., Ex. A.) In opposition, Plaintiff insists that he has 16 the proper defendant with a “a confusing name.” (Oppo. at 7.) Plaintiff also indicates 17 that the intended defendant may have another name, i.e., “Sztukowski” or”Ski.” (Oppo. 18 at 7.) However, these allegations are insufficient to raise a genuine issue of fact as to 19 whether Kowalski was in the vicinity of Facility C on November 7, 2002. At most, 20 Plaintiff’s opposition only tends to show that Plaintiff may have sued the wrong 21 defendant. 22 B. Retaliation 23 Plaintiff claims that all Defendants retaliated against him for exercising his First 24 Amendment rights. (SAC at 20.) Defendants contend that Plaintiff fails to satisfy the 25 necessary elements of a retaliation claim. (Mot. at 10.) “Within the prison context, a 26 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion 27 that a state actor took some adverse action against an inmate (2) because of (3) that 28 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 11 1 First Amendment rights, and (5) the action did not reasonably advance a legitimate 2 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote 3 omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing 4 prison officials under § 1983 for retaliation must allege that he was retaliated against for 5 exercising his constitutional rights and that the retaliatory action did not advance 6 legitimate penological goals, such as preserving institutional order and discipline); 7 Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (same); Rizzo v. 8 Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (contention that actions “arbitrary and 9 capricious” sufficient to allege retaliation). 10 Defendants assert that the SAC only contains conclusory and speculative 11 allegations about their conduct, particularly with respect to Plaintiff’s allegations that they 12 acted adversely to his seeking single cell status. (Mot. at 10-11.) Defendants argue that 13 Plaintiff’s seeking single cell status and repeated refusals of a cellmate do not constitute 14 constitutionally protected conduct. Defendants also contend that Plaintiff has failed to 15 show that their actions did not reasonably advance a legitimate correctional goal. 16 Defendants have submitted undisputed evidence showing that SVSP was experiencing 17 acute population pressures during November 2002 that required all appropriate inmates to 18 be double-celled. (Celaya Decl.; Stevenson Decl.; Frye Decl.) It also is undisputed that 19 Plaintiff was one of those inmates who was cleared to double cell. (SAC at 6.) 20 Defendants contend that in light of the lack of space and Plaintiff’s own refusal of a 21 compatible cellmate, they acted appropriately in placing Plaintiff temporarily in the R&R 22 and the Facility C sallyport. 23 In his opposition brief, Plaintiff asserts that Defendants were aware that he desired 24 single cell status, and that there was an “absence of a legitimate penological interest for 25 the Defendants repeated reference to Operation Procedure #36.” (Oppo. at 8.) In support, 26 Plaintiff submits a letter from the Office of the Inspector General, addressing his 27 complaint about his housing status at SVSP. (Oppo., Ex. F.) However, contrary to 28 Plaintiff’s assertion, this letter provides no factual evidence with respect to the absence of Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 12 1 legitimate penological interest. In fact, the letter states that after reviewing the matter, the 2 Inspector General found that SVSP staff acted in compliance with the prison’s procedures 3 applicable to Plaintiff’s temporary housing placement and that the related disciplinary 4 action against Plaintiff was justified. (Id.) 5 The Court concludes that Plaintiff has failed to show that Defendants’ actions with 6 respect to his housing situation were retaliatory or violated his constitutional rights. 7 Plaintiff fails to show that Defendants took adverse action against him that prevented him 8 from obtaining the cell switch he sought. It is undisputed that in fact Defendants 9 attempted to allow Plaintiff to choose a preferred cellmate among a pool of suitable 10 inmates, but that Plaintiff did not agree to any of them. Plaintiff also fails to show that 11 single cell status is a constitutionally protected right. Finally, there is no evidence that 12 Defendants’ actions in placing Plaintiff in temporary housing in the R&R for two days 13 and then in the Facility C sallyport for one evening did not reasonably advance a 14 legitimate penological goal, i.e., preserving institutional order and discipline. Barnett, 31 15 F.3d at 816. It is true that Plaintiff’s desired cell switch did not occur, but Plaintiff cannot 16 show that the failed switch was due to any unconstitutional action by Defendants. 17 Because Plaintiff has failed to meet his burden of designating “‘specific facts showing 18 that there is a genuine issue for trial,’” Defendants are entitled to judgment as a matter of 19 law on Plaintiff’s retaliation claim. Celotex Corp., 477 U.S. at 323-24 (citations omitted). 20 C. Excessive Force 21 Plaintiff next claims that Celaya used excessive force on the morning of November 22 7, 2002, when he was directing Plaintiff to leave the Facility C program office and return 23 to the sallyport. See supra at 4-5. When prison officials stand accused of using excessive 24 force in violation of the Eighth Amendment, the core judicial inquiry is whether force 25 was applied in a good-faith effort to maintain or restore discipline, or maliciously and 26 sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Whitley v. 27 Albers, 475 U.S. 312, 320-21 (1986). In making this assessment, a court may evaluate 28 the need for application of force, the relationship between that need and the amount of Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 13 1 force used, the extent of any injury inflicted, the threat reasonably perceived by the 2 responsible officials, and any efforts made to temper the severity of a forceful response. 3 Hudson, 503 U.S. at 7; LeMaire v. Maass, 12 F.3d 1444, 1454 (9th Cir. 1993); see also 4 Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979) (guards may use force only in 5 proportion to need in each situation); see, e.g., Watts v. McKinney, 394 F.3d 710, 712-13 6 (9th Cir. 2005) (finding that kicking the genitals of a prisoner who was on the ground and 7 in handcuffs during an interrogation was “near the top of the list” of acts taken with cruel 8 and sadistic purpose to harm another); Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 9 2002) (pepper-spraying fighting inmates a second time after hearing coughing and 10 gagging from prior spray was not malicious and sadistic for purpose of causing harm, 11 where initial shot of spray had been blocked by inmates’ bodies). 12 There is a factual dispute in the record with respect to whether Celaya actually 13 used the force alleged by Plaintiff – that Celaya put his knee on Plaintiff’s face and 14 applied his entire body weight, smashing Plaintiff’s face into the floor. (SAC at 11.) 15 Plaintiff alleges that Celay’s actions left a large knot and a bruise on his face. (Id.) 16 However, both Celaya and Hughes state that Plaintiff was escorted from the program 17 office without incident. (Celaya Decl. at 2; Hughes Decl. at 2.) 18 Defendants argue that this factual dispute is immaterial because even under 19 Plaintiff’s version of the facts, Celaya would have been authorized to use force. Plaintiff 20 alleges in the SAC that he was eager to describe the “entire saga of events that had 21 transpired... over the past few days” to someone at the program office. (SAC at 10-11.) 22 Defendants describe Plaintiff as a large inmate known for having a temper. (Celaya Decl. 23 at 2; Hughes Decl. at 2; Stevenson Decl. at 2.) Plaintiff does not dispute that he initially 24 refused Celaya’s order to return to the sallyport. (SAC at 11.) It is undisputed that there 25 were several bystanders, including inmates and correctional officers. Defendants were 26 concerned that if the situation between Celaya and Plaintiff continued to escalate, these 27 bystander inmates would become involved and cause a breach in security at the prison 28 with serious injuries to officials and inmates. (Celaya Decl. at 2; Hughes Decl. at 2.) Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 14 1 Defendants contend that by his own admissions, Plaintiff “began acting erratically by 2 diving to the floor, covering his face with his hands, and kicking his right leg upward.” 3 (Mot. at 12-13, citing SAC 11.) Plaintiff claims that he did so because an unidentified 4 officer began to take off Plaintiff’s right shoe. (SAC at 11.) Defendants assert that under 5 these circumstances, it was necessary to subdue Plaintiff quickly and escort him away 6 from the program office. (Mot. at 13.) With respect to his injuries, Plaintiff makes no 7 effort to refute MTA Lauber’s report other than to state condemningly that the report is 8 “completely bogus.” (Opp. at 10.) 9 Based on the entire record, the Court concludes that there is no genuine issue as to 10 any material fact and that Defendants are entitled to judgment as a matter of law on 11 Plaintiff’s excessive force claim. Fed. R. Civ. P. 56(c). Notwithstanding the dispute over 12 the extent of Celaya’s use of force, Defendants have shown that the dispute is immaterial, 13 because even under Plaintiff’s version of the facts, the force used would have been 14 appropriate. Hudson, 503 U.S. at 7. By his own admission, Plaintiff initially resisted 15 Celaya’s orders to leave the program office. Defendants had a legitimate concern about 16 maintaining discipline as well as the safety and security of the program office where both 17 correctional officers and inmates were present. If Plaintiff was behaving erratically, even 18 if an unidentified officer was attempting to remove his shoe, it does not appear that 19 Celaya responded unreasonably to subdue Plaintiff quickly and avoid further physical 20 altercation. The amount of force used was no more than was necessary to stop Plaintiff’s 21 erratic flailing; Celaya forced Plaintiff to the floor and did nothing further. 22 Plaintiff claims that he suffered a large knot and bruise on his face. The extent of 23 injury suffered by an inmate is one factor that may suggest whether the use of force could 24 possibly have been thought necessary in a particular situation. Hudson, 503 U.S. at 7. 25 The extent of injury also may provide some indication of the amount of force applied. 26 Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010). However, not every malevolent touch 27 by a prison guard gives rise to a federal claim for relief. Hudson, 503 U.S. at 9. The 28 Eighth Amendment’s prohibition of cruel and unusual punishment necessarily excludes Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 15 1 from constitutional recognition de minimis uses of physical force, provided that the use of 2 force is not of a sort repugnant to the conscience of mankind. Id. An inmate who 3 complains of a push or shove that causes no discernable injury almost certainly fails to 4 state a valid excessive force claim. Id. Here, MTA Lauber examined Plaintiff 5 approximately one hour after the incident and found no discernable physical injury or 6 trauma. See supra at 6. Even if Plaintiff suffered the alleged injuries to his face, they 7 were not the result of such an amount of force to indicate an intent maliciously and 8 sadistically to cause harm. Hudson, 503 U.S. at 9. 9 D. Inhumane Conditions 10 Plaintiff claims that Defendants acted with deliberate indifference to his physical 11 needs during the course of his temporary housing in the R&R and then in the Facility C 12 sallyport. The Constitution does not mandate comfortable prisons, but neither does it 13 permit inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment 14 a prisoner receives in prison and the conditions under which he is confined are subject to 15 scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 16 (1993). The Eighth Amendment imposes duties on prison officials, who must provide all 17 inmates with the basic necessities of life such as food, clothing, shelter, sanitation, 18 medical care and personal safety. See Farmer, 511 U.S. at 832; DeShaney v. Winnebago 19 County Dep't of Social Servs., 489 U.S. 189, 199-200 (1989); Hoptowit v. Ray, 682 F.2d 20 1237, 1246 (9th Cir. 1982). 21 A prison official violates the Eighth Amendment when two requirements are met: 22 (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer v. Brennan, 23 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the 24 prison official possesses a sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. 25 at 297). 26 27 28 1. Objective Prong In determining whether a deprivation of a basic necessity is sufficiently serious to satisfy the objective component of an Eighth Amendment claim, a court must consider the Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 16 1 circumstances, nature, and duration of the deprivation. The more basic the need, the 2 shorter the time it can be withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 3 2000). Substantial deprivations of shelter, food, drinking water or sanitation for four 4 days, for example, are sufficiently serious to satisfy the objective component of an Eighth 5 Amendment claim. See id. at 732-733; see, e.g., Hearns v. Terhune, 413 F.3d 1036, 6 1041-42 (9th Cir. 2005) (allegations of serious health hazards in disciplinary segregation 7 yard for a period of nine months, including toilets that did not work, sinks that were 8 rusted and stagnant pools of water infested with insects, and a lack of cold water even 9 though the temperature in the prison yard exceeded 100 degrees, enough to state a claim 10 of unconstitutional prison conditions); Anderson v. County of Kern, 45 F.3d 1310, 1314 11 (9th Cir.) (“[A] lack of sanitation that is severe or prolonged can constitute an infliction of 12 pain within the meaning of the Eighth Amendment.”), amended, 75 F.3d 448 (9th Cir.), 13 cert. denied, 516 U.S. 916 (1995). 14 Plaintiff claims that Newton, Ross and Stevenson were deliberately indifferent to 15 his physical needs by placing him in the R&R, where he was subjected to inhumane 16 conditions. (SAC at 23.) Defendants argue that the SAC does not contain any factual 17 allegations regarding the allegedly inhumane conditions in the R&R. Defendants also 18 argue that there is no evidence that Locke acted with deliberate indifference to Plaintiff’s 19 physical needs by placing him in the Facility C sallyport overnight; Plaintiff admits that 20 he received a mattress and blanket for the night. (SAC at 10.) Defendants contend that 21 Plaintiff’s allegations that he was subjected to damp conditions are “farfetched” because 22 the sallyport is a completely enclosed room and it did not rain on November 6, 2002. 23 (Req. for Jud. Not., Ex. A; Celaya Decl. at 2.) 24 Plaintiff claims that being forced to sleep on the floor in the R&R and being left in 25 the sallyport overnight where he was subjected to “extreme cold weather and rain” 26 without appropriate clothing and bedding “evinces the deprivation of a basic human 27 need.” (Oppo. at 11-12.) Plaintiff insists that the Defendants’ claim that it did not rain on 28 the night of November 6, 2002, is false. (Oppo. at 12.) Plaintiff submits the declaration Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 17 1 of a fellow inmate who states that on the evening of November 6, 2002, Plaintiff was 2 “exposed to the cold wind by way of space under the doors, and it was very damp due to 3 rainy conditions.” (Oppo., Ex. C. at 3.) In addition to pointing out the lack of factual 4 support for Plaintiff’s claims, Defendants also point out that Plaintiff did not complain 5 about these allegedly inhumane conditions until November 7, 2002, at which time he was 6 transferred to a suitable double-cell in Facility B. (Id.) 7 Viewing the evidence in the light most favorable to Plaintiff, the Court concludes 8 that Plaintiff has not raised a genuine issue of fact as to whether he was subjected to 9 inhumane conditions that were either substantial or severe as alleged in the SAC. At 10 worst Plaintiff was subjected to two nights of sleeping on the floor. There is no legal 11 authority holding that being forced to sleep on the floor in an otherwise safe and secure 12 area, with adequate shelter, food, drinking water and sanitation, constitutes a substantial 13 deprivation of Eighth Amendment protections. See Johnson, 217 F.3d at 732-733. 14 Plaintiff does not allege that he was subjected to serious health hazards during the two 15 days he was at R&R. See Hearns, 413 F.3d at 1041-42. The same is true with respect to 16 the single night Plaintiff spent in the sallyport, even assuming the presence of cold and 17 damp conditions, where Plaintiff otherwise was provided with shelter, food, water and 18 access to a restroom. 19 20 2. Subjective Prong The requisite state of mind to establish an Eighth Amendment violation depends 21 on the nature of the claim. In prison-conditions cases, the necessary state of mind is one 22 of “deliberate indifference.” See, e.g., Farmer, 511 U.S. at 834 (inmate safety); Helling, 23 509 U.S. at 32-33 (inmate health); Wilson, 501 U.S. at 302-03 (general conditions of 24 confinement); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (inmate health). 25 Neither negligence nor gross negligence will constitute deliberate indifference. 26 See Farmer, 511 U.S. at 835-36 & n.4; see also Estelle, 429 U.S. at 106 (establishing that 27 deliberate indifference requires more than negligence). A prison official cannot be held 28 liable under the Eighth Amendment for denying an inmate humane conditions of Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 18 1 confinement unless the standard for criminal recklessness is met, i.e., the official knows 2 of and disregards an excessive risk to inmate health or safety. See Farmer, 511 U.S. at 3 837. The official must both be aware of facts from which the inference could be drawn 4 that a substantial risk of serious harm exists, and he must also draw the inference. See id. 5 An Eighth Amendment claimant need not show, however, that a prison official acted or 6 failed to act believing that harm actually would befall an inmate; it is enough that the 7 official acted or failed to act despite his knowledge of a substantial risk of serious harm. 8 See id. at 842; see also Robins v. Meecham, 60 F.3d 1436, 1439-40 (9th Cir. 1995) 9 (bystander-inmate injured when guards allegedly used excessive force on another inmate 10 need not show that guards intended to harm bystander-inmate). This is a question of fact. 11 See Farmer, 511 U.S. at 842. A trier of fact may conclude that a prison official knew of a 12 substantial risk from the very fact that the risk was obvious; a plaintiff therefore may meet 13 his burden of showing awareness of a risk by presenting evidence of very obvious and 14 blatant circumstances indicating that the prison official knew the risk existed. Foster v. 15 Runnels, 554 F.3d 807, 814 (9th Cir. 2009) (“risk that an inmate might suffer harm as a 16 result of the repeated denial of meals is obvious”). 17 As discussed above, the Court has determined that the conditions Plaintiff 18 allegedly faced in the R&R and the sallyport were neither substantial nor severe enough 19 to rise to the level of an Eighth Amendment violation. Accordingly, it cannot be said that 20 Defendants’ acted with deliberate indifference to his Plaintiff’s physical needs in placing 21 him there. Nevertheless, even assuming that Plaintiff did experience inhumane 22 conditions, there is no evidence that Defendants acted with deliberate indifference to 23 Plaintiff’s basic needs. 24 There is no evidence in the record that Defendants knew of and disregarded an 25 excessive risk to Plaintiff’s health or safety by forcing Plaintiff to sleep on the ground for 26 two nights, particularly given Plaintiff’s admission that he was provided with a mattress 27 and a pillow. See Farmer, 511 U.S. at 837. There is no evidence that Defendants were 28 aware of facts permitting an inference that a substantial risk of serious harm existed, or Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 19 1 that Defendants in fact drew the inference, or that they nevertheless failed to act. See id. As to the night Plaintiff spent in the sallyport, there is no evidence that Locke, or 2 3 any other Defendant, acted with deliberate indifference to Plaintiff’s needs. Plaintiff 4 alleges that Defendants “neglected to give Plaintiff a second blanket and/or appropriate 5 clothing [and] bedding for the extreme cold.” (SAC at 10.) However, neither negligence 6 nor gross negligence will constitute deliberate indifference. See Farmer, 511 U.S. at 835- 7 36 & n.4. Defendants have introduced climatological data showing that there was no rain 8 on November 6, 2002, and in any event, the sallyport is a completely enclosed room that 9 is not exposed to outdoor conditions. Moreover, there is no evidence that Defendants 10 knew that Plaintiff actually was experiencing cold and damp conditions at the time, as he 11 did not voice his complaints until the following morning. 12 IV. 13 Unserved Defendant J. Lopez The Court ordered service of the SAC upon Defendant J. Lopez, along with other 14 Defendants, on April 21, 2010. (See Docket No. 71.) The Attorney General’s office filed 15 a notice of errata and request for correction regarding service of the SAC on Defendant J. 16 Lopez on June 4, 2010, (Docket No. 86), contesting the execution of the summons on this 17 defendant, (Docket No. 80). According to the letter submitted in support of this notice, 18 SVSP notified the U.S. Marshal’s Service on May 5, 2010, that it would not accept 19 service of the SAC on Lopez because there are five correctional officers with the same 20 first initial and last names. (Docket No. 86 at 1.) To complete service, SVSP requested 21 that additional information be provided, such as a complete first name. (Id.) 22 On June 15, 2010, the clerk of the Court notified Plaintiff that he would need to 23 provide Lopez’s name to insure service. (Docket No. 99.) Plaintiff filed a response 24 stating that he had no further information to provide. (Docket No. 104.) Accordingly, 25 Defendant J. Lopez has not yet been served. Although a plaintiff who is incarcerated and 26 proceeding in forma pauperis may rely on service by the Marshal, such plaintiff “may not 27 remain silent and do nothing to effectuate such service”; rather, “[a]t a minimum, a 28 plaintiff should request service upon the appropriate defendant and attempt to remedy any Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 20 1 apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 2 (5th Cir. 1987). Here, Plaintiff’s complaint has been pending for more than 120 days, and 3 thus, absent a showing of “good cause,” is subject to dismissal without prejudice. See 4 Fed. R. Civ. P. 4(m). Because Plaintiff has been unable to provide sufficient information 5 to allow the Marshal to locate and serve Lopez, the Court has no choice but to dismiss the 6 claims against Lopez without prejudice under Rule 4(m). See Walker v. Sumner, 14 F.3d 7 at 1421-22 (holding prisoner failed to show cause why prison official should not be 8 dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal with 9 sufficient information to effectuate service). 10 CONCLUSION 11 12 For the foregoing reasons, 13 Celaya’s motion to dismiss is GRANTED. Plaintiff’s claims against Celaya with 14 respect to access to the courts and deliberate indifference to serious medical needs are 15 DISMISSED without prejudice to refiling after all available administrative remedies have 16 been properly exhausted. Wyatt, 315 F.3d at 1120. 17 18 19 20 21 Defendants’ motion for summary judgment otherwise is GRANTED. All claims against Ross, Kowalski, Newton, Locke, and Stevenson are DISMISSED with prejudice. All claims against Lopez are DISMISSED without prejudice under Federal Rule of Civil Procedure Rule 4(m). Defendants B. Rankin, D. Mantel, Martinez, Van Huss, Navarro, T. M. Selby, B. 22 Jiminez, Chavez, E. Perez, and Espinoza also are DISMISSED from this action, as 23 Plaintiff made no claims against them in his Second Amended Complaint. 24 This order terminates Docket No. 87. 25 IT IS SO ORDERED. 26 DATED: 3/29/11 JEREMY FOGEL United States District Judge 27 28 Order Granting MTD & MSJ P:\PRO-SE\SJ.JF\CR.06\Thomas489_grant-mtd&msj.wpd 21 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA LARRY D. THOMAS, Case Number: CV06-00489 JF Plaintiff, CERTIFICATE OF SERVICE v. J. CELAYA, et al., Defendants. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on 3/29/11 , I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Larry Donnell Thomas H-79847 California State Prison - Corcoran PO Box 3476 4A 3D 10 Corcoran, CA 93212 Dated: 3/29/11 Richard W. Wieking, Clerk

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