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concluding that inmates failed to state an Eighth Amendment violation where they "neither alleged nor provided evidence to establish that they suffered significant injury or illness—such as specific, repeated instances of food poisoning or malnutrition—directly resulting from their exposure to unsafe or unsanitary kitchen conditions"
Summary of this case from Monger v. CookOpinion
Civil No. 02-1662-HA.
September 17, 2004
DOUGLAS B. BENNETT, SID #14342185, Two Rivers Correctional Institution, Umatilla, OR, DAVID BELL, SID #4361176, Two Rivers Correctional Institution, Umatilla, OR, RUDY LUCERO, SID #13631611, Snake River Correctional Institution, Ontario, OR, Plaintiffs, Pro se.
HARDY MYERS, Attorney General, KATHRYN ANNE COTTRELL, Assistant Attorney General, Oregon Department of Justice, Salem, OR, Attorneys for Defendants.
OPINION AND ORDER
BACKGROUND
Plaintiffs, Douglas B. Bennett, Rudy Lucero, and David Bell, all of whom are incarcerated and proceeding pro se, bring this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs allege that defendants, Brian Misner, Jack Thompson, Mark O'Brian, Debra Davis, Trent Juif, Thaddius Estes and Nicolette Sundell, allegedly violated the Eighth Amendment prohibition against cruel and unusual punishment when they, acting either individually or in concert, deprived plaintiffs of their rights by compelling Two Rivers Correctional Institution ("TRCI") kitchen workers, including Bennett, to work in an unsafe and unsanitary kitchen environment (Claim One); by denying inmates, including Bennett, appropriate medical treatment (Claim Two); and by compelling inmates to eat unpalatable and unwholesome food that has exceeded its expiration date (Claim Three). (Complaint (#1) at 3-7.) Plaintiffs seek injunctive relief in the form of transfers from Oregon Department of Corrections ("ODOC") facilities to a federal detention center, as well as punitive damages. (Id. at 8.)
Currently before the court are the following twelve motions filed by plaintiffs: motion for leave to file an amended complaint of criminal charges and motion for order for arrest and report criminal acts to FBI and FDA (#22); motion for appointment of master (#23); motion for leave to file an amended complaint in response to defendants' answer to plaintiffs' complaint (#26); motion for temporary restraining order and preliminary injunction (#28); motion for access to records and obtain depositions from staff and inmates (#47); motion for writ of mandamus (#50); second motion for appointment of counsel (#51); motion for court ordered compassion (#54); motion for newly assigned assistant attorney general to carry out her sworn duty (#55); motion to add defendants to supplemental complaint (#56); motion to order ODOC to provide Advair (#58); and motion to accept more evidence (#65). Also before the court is the defendants' motion for summary judgment (#43). For the reasons set forth below, all twelve of plaintiffs' motions are denied, and defendants' motion for summary judgment is granted.
DISCUSSION
I. Procedural Matters
In a previous order, this court denied plaintiffs' motions for leave to file an amended complaint (#22 #26) and plaintiffs' motion for appointment of master (#23) on the basis that these motions were not signed by all three co-plaintiffs, and thus were not properly before the court. (Order (#27) dated Aug. 25, 2003, at 2-3.) However, plaintiffs were authorized to renew these three motions provided that the plaintiffs who had failed to sign the original documents filed a signed notice of endorsement with the court. (Id. at 3-4.) On October 24, 2003, plaintiff Bell filed an "affidavit of plaintiff for verification of reading each document and consent to each filing" (see #42), endorsing the above-mentioned motions as well as plaintiffs' motion for temporary restraining order and preliminary injunction (#28). On December 29, 2003, plaintiff Lucero filed a substantively similar endorsement. (See #49). Accordingly, the pending motions (#22, #23, #26 #28) referenced in Bell's and Lucero's endorsements are deemed properly before the court as of the date of Lucero's endorsement, and are addressed below in Part II of this opinion.
Six of plaintiffs' pending motions (#47, #50, #51, #54, #55 #56) were signed only by plaintiff Bennett, and have not been endorsed by the other co-plaintiffs using the procedure authorized by the court's prior order. (See Order, dated Aug. 25, 2003.) Pro se litigants have no authority to represent anyone other than themselves; therefore, plaintiff Bennett lacks the representative capacity to file motions and other documents on behalf of the other plaintiffs. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) ("[A] non-lawyer 'has no authority to appear as an attorney for others than himself.'" (quoting C.E. Pope, infra, at 697)); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) ("Although a non-attorney may appear in propria persona in his own behalf, that privilege is personal to him.") (citations omitted); see also Fed.R.Civ.P. 11(a) ("[I]f the party is not represented by an attorney, [every written motion and other paper] shall be signed by the party."); Local Rule 11.1. In addition, plaintiffs' motion to order ODOC to provide Advair (#58) and plaintiffs' motion to accept more evidence (#65) were not signed by any of the plaintiffs, as required by the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 11(a). Accordingly, the eight motions described above are not properly before the court, and are denied. II. Plaintiffs' Remaining Pretrial Motions A. Plaintiffs' Motions for Leave to File an Amended Complaint
Even if the six pending motions signed only by Bennett were construed to apply to him alone, so that they could be considered properly before the court, the motions are rendered moot by my dispositive ruling, set forth below, on defendants' motion for summary judgment.
Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." Courts are directed to apply the rule's "policy of favoring amendments with extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (internal quotation omitted). In determining whether to grant a motion to amend, the courts consider bad faith, undue delay, prejudice to the opposing party, futility of amendment, and prior amendments to the complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355-56 (9th Cir. 1996). The timing of a motion to amend following discovery, and with a pending summary judgment motion, weighs heavily against allowing leave.Schlacter-Jones v. General Telephone, 936 F.2d 435, 443 (9th Cir. 1991).
In a previous order, giving the benefit of the doubt to the pro se plaintiffs, I construed two of plaintiffs' filings titled "Amended Complaint," (#22 #26) as motions for leave to file an amended complaint. (Order, dated Aug. 25, 2003, at 2.) There is no evidence that the motions were filed in bad faith. As discussed above, on August 25, 2003, plaintiffs' motions to amend were denied; however, they were authorized to renew these motions provided that Lucero and Bell filed signed endorsements verifying that they read each document and consented to each filing. (Id. at 3-4.) The last of the plaintiffs' endorsements was not filed until December 29, 2003, more than a month after defendants filed their motion for summary judgment directed against the original complaint. Plaintiffs' undue delay in filing their endorsements, and the resulting timing of their renewed motions, weighs against granting them leave to amend. See Schlacter-Jones, 936 F.2d at 443.
Furthermore, permitting plaintiffs to substitute either of the proposed amended complaints for the original complaint would be futile. Plaintiffs' original complaint substantially conforms to the federal rules applicable to pleadings; it has a caption, gives the names of each plaintiff and defendant, sets forth three claims using short and plain statements to show that the pleaders are entitled to relief, and contains a demand for judgment. See Fed.R.Civ.P. 10 (form of pleadings) 8 (general rules of pleading).
By contrast, plaintiffs' two proposed amended complaints lack all of these pleading formalities. In both instances the "et al." designation is used in the abbreviated caption without naming or describing the parties in the body of the amended complaint, the allegations are rambling and not organized into separately numbered claims for relief, and there is no clear demand for judgment specifying the relief sought. In addition, essential factual elements supporting plaintiffs' original 42 U.S.C. § 1983 claims are missing from each of the proposed amended complaints, so that plaintiffs' claims, as amended, would be subject to dismissal as a matter of law.
Accordingly, because plaintiffs' proposed amendments are futile, and because defendants would be prejudiced by permitting such amendments considering the timing of their pending motion for summary judgment, plaintiffs' motions to amend (#22 #26) are denied. See Sisseton-Wahpeton Sioux Tribe, 90 F.3d at 355-56.
B. Plaintiffs' Motion for Appointment of a Master
Plaintiffs move the court to order that a special master be appointed to investigate the conditions at TRCI, "since no outside agency is allowed to oversee what is really happening inside prison walls." (Mot. for App't of Master (#23) at 1.) Although there is not an access to courts claim at issue in this case, plaintiffs apparently seek a special master to assist them in litigating their claims more effectively. Plaintiffs argue that the law library equipment at TRCI is inadequate; that library staff are unhelpful and untrained; that, as inmates, they have insufficient free time in their schedules to permit the necessary access to legal resources; and that they are not able to gather and present evidence effectively. (See Pls.' Brief (#24) at 2-4.)
Pursuant to the Prison Litigation Reform Act of 1996 (" PLRA"), "[i]n any civil action in a Federal court with respect to prison conditions, the court may appoint a special master . . . to conduct hearings on the record and prepare proposed findings of fact." 18 U.S.C. § 3626(f)(1)(A). The term "special master" is defined by the PLRA as "any person appointed by a Federal court pursuant to Rule 53 of the Federal Rules of Civil Procedure or pursuant to any inherent power of the court to exercise the powers of a master." 18 U.S.C. § 3626(g)(8).
The Ninth Circuit has not provided any guidance as to the factors a court should consider when applying § 3626(f) to appoint a special master; however, the plain language of § 3626(g)(8) suggests that courts should look to Rule 53 for guidance. See Benjamin v. Fraser, 343 F.3d 35, 45 (2nd Cir. 2003) (construing the PLRA together with Rule 53 to define the powers of special masters). Pursuant to Rule 53, "[t]he court in which any action is pending may appoint a special master. . . . [but a] reference to a master shall be the exception and not the rule." Fed.R.Civ.P. 53(a)-(b). Further, Rule 53 provides that "in actions to be tried without a jury . . . a reference shall be made only upon a showing that some exceptional condition requires it." Fed.R.Civ.P. 53(b). Under either the PLRA or Rule 53, the question of whether a special master should be appointed is left to the discretion of the trial court.
Neither party timely requested that the issues in this case be tried by a jury pursuant to Rule 38; therefore, the right is deemed waived.
Litigating a civil rights claim while incarcerated presents challenges that are unique to inmate plaintiffs because prison regulations legitimately prohibit the unfettered access to legal materials and potential witnesses. However, the Supreme Court has recognized that inmates must nevertheless accept these challenges. See Lewis v. Casey, 518 U.S. 343, 354-55 (1996) (holding that inmates only have a constitutional right to bring complaints in federal court, and not a right to discover such claims or to litigate them effectively once filed). Plaintiffs have not demonstrated that some exceptional condition in their case requires the appointment of a special master. My review of the record does not compel me to find that any aspect of plaintiffs' case is complex enough to justify the appointment of a special master to assist this court in resolving plaintiffs' claims. Accordingly, plaintiffs' motion is denied.
C. Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction
The record in this case shows that plaintiffs moved for preliminary injunctive relief on August 27, 2003. However, as discussed above in Part I.A of this opinion, plaintiff Lucero did not file his endorsement of plaintiffs' motion for a temporary restraining order and preliminary injunction until December 29, 2003. Because the delay caused by the three plaintiffs' failure to sign the original motion gave defendants the opportunity to present a detailed memorandum in opposition, I construe plaintiffs' motion as requesting a preliminary injunction, and note that the requirements of Rule 65(b) are inapplicable. See Fed.R.Civ.P. 65(b) (provisions pertaining to temporary restraining orders); see also Van Leeuwen v. Farm Credit Admin., 577 F.Supp. 264, 278 (D.Or. 1983) (converting request for a TRO into a request for a preliminary injunction); Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 2951, p. 254 (1995) ("When the opposing party actually receives notice of the application for a restraining order, the procedure that is followed does not differ functionally from that on an application for a preliminary injunction.").
In general, a preliminary injunction is appropriate if a plaintiff demonstrates either (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) the existence of serious questions going to the merits and the balance of hardship tips sharply in plaintiff's favor. Sony Computer Entertainment Am., Inc. v. Bleem, LLC, 214 F.3d 1022, 1025 (9th Cir. 2000); Prudential Real Estate Affiliates v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir. 2000). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Prudential Real Estate, 204 F.3d at 874. A request for a mandatory injunction, seeking relief well beyond the status quo, is disfavored and shall not be granted unless the facts and law clearly favor the moving party.Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994). Additionally, in any civil action involving prison conditions, the PLRA places additional standards and limitations for awarding prospective relief, and preliminary injunctive relief. See 18 U.S.C. § 3626.
In this case, plaintiffs seek the issuance of eleven separate orders requiring mandatory injunctive relief which extends well beyond the status quo, and which would significantly impact prison administration at TRCI in the areas of food service, canteen sales, medical records handling, law library services, cell assignments, and materials to be permitted in cells. (See Pls.' Mot. for TRO and Prelim. Inj. (#28) at pp. 1-10.) Federal courts must accord deference to the appropriate state prison authorities in matters of prison administration, and therefore are required to balance the state's interests against the need to protect an inmate's constitutional rights. See Turner v. Safley, 482 U.S. 78, 84-85 (1987) ("Prison administration is . . . a task that has been committed to the responsibility of . . . [the legislative and executive] branches, and separation of powers concerns counsel a policy of judicial restraint."). Additionally, the PLRA requires that "[t]he court shall give substantial weight to any adverse impact on public safety or the criminal justice system caused by the preliminary relief." 18 U.S.C. § 3626(2).
Plaintiffs' three underlying claims are based on allegations that defendants violated the Eighth Amendment by failing to maintain a safe and sanitary kitchen environment, by failing to provide plaintiffs with appropriate medical treatment, and by compelling inmates to eat unpalatable and unwholesome food. (Complaint at 3-7.) Upon thorough review of the materials filed by the parties relating to plaintiffs' request for a preliminary injunction, I find that plaintiffs have failed to provide sufficient evidence that they have sustained or are in immediate danger of sustaining injuries that would justify granting the relief requested. Furthermore, the system-wide preliminary injunctive relief requested by plaintiffs would adversely impact prison administration at TRCI because it would compel state officials to take actions which go beyond the requirements of the applicable state administrative rules and would require significant expenditures of state resources. (See Pls.' Mot. for TRO and Prelim. Inj. at pp. 1-10.)
Plaintiffs filed three supplemental documents which, based on their timing, appear to be in support of plaintiffs' motion for a preliminary injunction. I note that, despite being cautioned by this court to serve their motions on the attorneys for the defendants (see Order (#15), dated July 7, 2003), plaintiffs' "Brief No. Three" (#36) was not certified as served on counsel for defendants, and non-party inmate Michael Hayden's separately filed affidavit was also not certified as served (see #61). Because plaintiffs' Brief No. Three and inmate Hayden's affidavit were not served on defendants and are therefore not properly before the court, I did not consider them in this ruling. However, even if these documents were deemed admitted, the information they contain does not change the outcome of my analysis.
Non-party inmate Brian Hansen filed an affidavit "in support of plaintiffs," which was properly certified as served (see #35). Defendants did not object to the Hansen affidavit; accordingly, I have considered it in my ruling on plaintiffs' motion for a preliminary injunction.
Neither the facts nor the law clearly favor plaintiffs; therefore, this court will not issue a preliminary injunction changing the status quo regarding the operations at TRCI. See Stanley, 13 F.3d at 1319-20. Accordingly, plaintiffs' motion is denied both on its merits and on the basis that it is rendered moot by my dispositive ruling on defendants' motion for summary judgment.
III. Defendants' Motion for Summary Judgment A. Procedural Matters
Defendants move for summary judgment pursuant to Rule 56(b) based on the following grounds: 1) the plaintiffs failed to exhaust their administrative remedies prior to filing this civil rights action; 2) the Eleventh Amendment bars plaintiffs' claims against the state defendants, who were acting in their official capacities; 3) the defendants are entitled to qualified immunity from liability for damages because they did not violate plaintiffs' clearly established constitutional rights; and, 4) plaintiffs are not entitled to equitable relief because they have not shown that they have sustained an injury or are in real and immediate danger of being harmed in the future by any unconstitutional practices. (See Mem. in Supp. of Defs.' Mot. for Summ. J. (#45) at 2.)
Plaintiffs and other non-party inmates have filed a number of documents which have been entered into the record, and which appear to be intended to oppose defendants' motion for summary judgment. (See #46, #54, #57, #59, #60, #64 #67.) The document captioned,"Response to Second Attempt by Defense to Wear Down and Tire Plaintiffs with Motion for Summary Judgment and Affidavits Filled with Lies by Criminally Insane ODOC Workers" (#46), was the only memorandum in opposition that was timely filed by plaintiffs, and it was signed only by Bennett. Plaintiffs Bell and Lucero neither endorsed this filing using the procedure discussed above in Part I, nor filed their own responses.
However, I note that the plaintiffs commenced this action by filing a verified complaint, which was signed by each of them and certified as true under penalty of perjury. Therefore, the allegations in the complaint may be used as an opposing affidavit. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995); McElyea v. Babbit, 833 F.2d 196, 197-98 (9th Cir. 1987); see also 28 U.S.C. § 1746 (setting forth requirements for unsworn declarations). To function as an opposing affidavit, a verified complaint must be based on personal knowledge and set forth specific facts admissible in evidence. Fed.R.Civ.P. 56(e); Schroeder, 55 F.3d at 460 (citations omitted). Accordingly, I will consider those portions of plaintiffs' complaint which meet these requirements as part of their opposition to defendants' motion for summary judgment.
For the purposes of ruling on defendants' motion, I have considered only those documents submitted by plaintiffs which conformed sufficiently with the applicable Federal Rules of Civil Procedure and Local Rules to be considered properly filed. Although I am mindful of the of the court's obligation to construe pro se pleadings liberally, "[p]ro se litigants must follow the same rules of procedure that govern other litigants."King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citingUnited States v. Merrill, 746 F.2d 458, 465 (9th Cir. 1984),cert. denied, 469 U.S. 1165 (1985)). At a minimum, plaintiffs must have served the proffered document on counsel for defendants. To permit plaintiffs to oppose the defendants' motion for summary judgment with documents that were never served on defendants' counsel would be unjust.
Although non-party inmates Jesse Reigard and David Voss filed untimely affidavits separately from plaintiffs' first response to defendants' motion for summary judgment, both affidavits were certified as served on counsel for defendants. (See Aff. of Reigard (#67) Aff. of Voss (#60).) Defendants did not object to the inclusion of these two affidavits in the record, despite having the opportunity to do so. Therefore, I considered the Reigard and Voss affidavits together with plaintiff Bennett's timely first memorandum.
In contrast, plaintiff Bennett filed an untimely supplemental document captioned, "Continued Response to Second Attempt at Defendant's [sic] Motion for Summary Judgement [sic]" (#57), which was not certified as served on counsel for defendants; non-party inmate Anthony Wolfe filed a separate affidavit which also was untimely and was not certified as served (see #59); and non-party inmate Robert Heinz filed an untimely separate affidavit which also was not certified as served (see #64). Because these documents were not served on defendants and are therefore not properly before the court, I did not consider them as part of my ruling on defendants' motion for summary judgment. Even if I had considered the excluded second response as well as the Wolfe and Heinz affidavits, the information in these documents would not have changed the outcome of my analysis.
Finally, plaintiffs and non-party inmates have also mailed materials to the court that did not conform sufficiently with the Federal Rules of Civil Procedure and the Local Rules to be docketed and considered part of the record in this case. See Fed.R.Civ.P. 5 Local R. 5 (requirements for serving and filing documents); Fed.R.Civ.P. 7 Local R. 7 (form of motions and other papers); Fed.R.Civ.P. 11 (signature requirements); Fed.R.Civ.P. 56(e) (form of affidavits in defense of summary judgment); Local R. 56(b) (opposition and reply requirements). Accordingly, I did not consider unsworn letters submitted to the court from inmates who are not parties to this action; correspondence directed to the court from plaintiffs that was not captioned as a motion or response or certified as served on defendants; or documents styled as affidavits and exhibits which were not attached to or captioned as support for any of plaintiffs' motions or responses, and which were not certified as served on defendants. See King, 814 F.2d at 567 ( pro se plaintiffs must follow procedural rules). Even if I had considered these excluded materials, the information contained therein would not have changed the outcome of my analysis.
B. Summary Judgment Standards
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56©)). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56©)).
"If the moving party meets its initial burden of showing 'the absence of a material and triable issue of fact,' 'the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'"Intel Corp. v. Hartford Acc. Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). An opposing party may not simply show some metaphysical doubt as to the material facts.Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). If "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id. at 587; Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Reeves, 120 S.Ct. at 2110; Matsushita Elec. Indus. Co., 475 U.S. at 587.
C. Analysis 1. Exhaustion of administrative remedies
"No action shall be brought with respect to prison conditions under . . . [ 42 U.S.C. § 1983] or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is a mandatory prerequisite to the commencement of a § 1983 action. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (citing Booth v. Churner, 532 U.S. 731, 741 (2001)). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
In the Ninth Circuit, "§ 1997e(a) creates a defense — defendants have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.),cert. denied, Alameida v. Wyatt, 124 S.Ct. 50 (2003). In addition, "failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment." Id. (citations omitted). A motion for summary judgment is not the proper pretrial motion for establishing nonexhaustion because "summary judgment is on the merits, whereas dismissal of an action on the ground of failure to exhaust administrative remedies is not on the merits." Id. (internal quotations and citations omitted).
In this case, defendants have raised the nonexhaustion issue in a motion for summary judgment, which is not the appropriate pretrial motion. See id. Accordingly, defendants have not met their burden to properly raise this issue. See id. Therefore, even though defendants have provided evidence indicating that plaintiffs failed to exhaust their administrative remedies prior to filing this § 1983 action, I decline to grant their motion for summary judgment based on the application of 42 U.S.C. § 1997e(a).
2. Eleventh Amendment Immunity
Defendants next argue that the plaintiffs' claims are barred by the Eleventh Amendment. (Defs.' Mem. in Supp. (#45) at 2, 6-7.) Plaintiffs contend that the Eleventh Amendment is not a bar to this action because they seek prospective relief against state officers who allegedly violated the United States Constitution or federal law. (Pls.' Response (#46) at 3.)
In their complaint, plaintiffs did not specifically allege whether the claims involving the named defendants were brought against them in their individual capacities, or in their official capacities. (See Complaint at 1, 3.) Defendants contend that, because they are all ODOC employees and because they were all acting in their various official capacities, plaintiffs' claims amount to an "official capacity" action, which is equivalent to an action brought against the State of Oregon. (Defs.' Mem. in Supp. at 6-7.) Because the state has not consented to be sued in this action, defendants argue that plaintiffs' claims are barred by the Eleventh Amendment. (Id. at 7.)
It is well established that "[s]tate officers sued for damages in their official capacity are not 'persons' for purposes of . . . [a § 1983] suit because they assume the identity of the government that employs them." Hafer v. Melo, 502 U.S. 21, 27 (1991) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)). However, "[t]he phrase 'acting in their official capacities' is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury." Id. at 26. "[S]tate officials sued in their individual capacities are 'persons' for purposes of § 1983." Id. at 23. "The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the 'official' nature of their acts." Id. at 31. In addition, "a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because 'official-capacity actions for prospective relief are not treated as actions against the state.'" Will, 491 U.S. at 71 n. 10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985) and citing Ex Parte Young, 209 U.S. 123, 159-60 (1908)).
Plaintiffs' failure to allege in their complaint whether defendants are sued in their personal or official capacities is not fatal to plaintiffs' civil rights claims, particularly because this court construes pro se pleadings liberally and affords such litigants the benefit of any doubt. See McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1998) ( pro se pleadings construed liberally in civil rights cases); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (same). The Supreme Court recognized that, "[i]n many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both." Kentucky v. Graham, 473 U.S. 159, 167 n. 14. "'The course of proceedings' in such cases typically will indicate the nature of the liability sought to be imposed." Id. In the Ninth Circuit, it is well established that when a complaint in a § 1983 action seeking damages against a state official is silent as to capacity, it is presumed that the plaintiff is suing the official in his or her personal capacity, so that the Eleventh Amendment does not bar the action. Romano v. Bible, 196 F.3d 1182, 1185-86 (9th Cir.), cert. denied, 528 U.S. 816 (1999); Ashker v. California Dep't of Corrections, 112 F.3d 392, 395 (9th Cir. 1997); Shoshone-Bannock Tribes v. Fish Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994); Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 n. 16 (9th Cir. 1994); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990), cert. denied, 502 U.S. 967 (1991).
In this case, plaintiffs' complaint raises three § 1983 claims alleging that defendants, exercising their authority as ODOC employees, deprived plaintiffs of the rights to a safe and sanitary prison kitchen, to proper medical treatment, and to wholesome food — rights which may properly be asserted under the Eighth Amendment. (Complaint at 3-7.) Also, plaintiffs seek "punitive damages" as well as prospective relief in the form of transfers from state to federal custody. (Id. at 8.) Nothing more is required in order for plaintiffs to allege claims against defendants in their personal capacities, thereby avoiding an Eleventh Amendment bar. See Graham, 473 U.S. at 166 ("On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." (citation omitted)); and see Hafer, 502 U.S. at 25, 30-31 (same).
Defendants' Eleventh Amendment immunity argument confuses the capacity in which they are sued with the capacity in which the defendants were acting when they inflicted the alleged injuries. I construe plaintiffs' complaint, which is silent as to capacity, as suing defendants in their personal capacities.See Romano, 196 F.3d at 1185-86. Therefore, the Eleventh Amendment does not bar plaintiffs' claims, and defendants are not entitled to absolute immunity under the Eleventh Amendment simply because of the "official" nature of their actions. See id. at 31. Accordingly, I decline to grant defendants' motion for summary judgment based on the application of the Eleventh Amendment.
3. Qualified Immunity a. Legal Standard
"An official sued in his [or her] personal capacity, although deprived of Eleventh Amendment immunity, may assert a defense of qualified immunity." Pena v. Gardner, 976 F.2d 469, 473 (9th Cir. 1992) (citing Hafer, 502 U.S. at 25). This defense protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This rule "'provides ample protection to all but the plainly incompetent or those who knowingly violate the law.'" Burns v. Reed, 500 U.S. 478, 494-95 (1991) (quotingMalley v. Briggs, 475 U.S. 335, 341 (1986)). The purpose of qualified immunity is to "ensure that defendants 'reasonably can anticipate when their conduct may give rise to liability' by attaching liability only if '[t]he contours of the right . . . are sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" U.S. v. Lanier, 520 U.S. 259, 270 (1997) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The affirmative defense of qualified immunity does not extend to claims for declaratory or injunctive relief. American Fire, Theft Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991) (citations omitted); see also Wood v. Strickland, 420 U.S. 308, 314 n. 6 (1975) ("[I]mmunity from damages does not ordinarily bar equitable relief as well.").
Qualified immunity "is an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As such, "a defendant is entitled to a ruling on qualified immunity 'early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.'" Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001) (quoting Saucier v. Katz, 533 U.S. 194 (2001)).
The required first step in a qualified immunity analysis "is to consider the materials submitted in support of, and in opposition to, summary judgment, in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment." Jeffers, 267 F.3d at 909 (citing Saucier, 533 U.S. at 201). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201.
b. Analysis: Violation of a Constitutional Right I. Claim One: kitchen safety and sanitation
"[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994); Rhodes v. Chapman, 452 U.S. 337, 345 (1981). However, the Constitution "'does not mandate comfortable prisons,' and only deprivations of 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal citations omitted).
To be actionable under the Eighth Amendment, a conditionsof-confinement claim must satisfy two requirements. First, the alleged deprivation must be "sufficiently serious" in order to meet the objective component of the test; and second, the prison official who acted or failed to act must have done so with a "sufficiently culpable state of mind" in order to meet the subjective component of the test. Farmer, 511 U.S. at 834. "In prison-conditions cases that state of mind is one of 'deliberate indifference' to inmate health or safety," id., meaning that "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837.
In Claim One, plaintiffs allege that they were denied their rights to a safe and sanitary kitchen at TRCI because the kitchen staff coordinators failed to inspect inmate food service workers to ensure that the workers were free from diseases such as colds or flu, and that workers did not have any cuts or open wounds. (Complaint at 3, 5.) Plaintiffs further attest in their verified complaint that the kitchen staff ignores complaints of cold, flu, and cuts from inmate food service workers. (Id. at 5.) Specifically, plaintiffs attest that on or about November 18, 2002, plaintiff Bennett cut his thumb on the door of a food cart. (Id.) When he reported the injury to defendant Estes, a TRCI kitchen coordinator, the complaint was ignored, so that blood from Bennett's injury was not cleaned up properly, and neither the towel used by Bennett to clean the blood from his hand, nor the bloody glove worn by Bennett were disposed of properly. (Id.) Finally, plaintiffs attest that Bennett was compelled to work in the TRCI kitchen despite his history of a weakened immune system and other physical limitations, including asthma. (Id.; see also, Defs.' Mot. for Summ. J. (#43) at Ex. 107, Aff. of Greg Lytle, D.O. (hereafter "Lytle Aff."), p. 2 (noting that Bennett's chart indicated that he suffered from asthma).)
Defendants argue that, even if liberally construed as a claim for failure to protect inmates from kitchen hazards and unsanitary food handling practices, plaintiffs have failed to show that the conditions at TRCI are serious enough to satisfy the objective component of the Eighth Amendment test. (Mem. in Supp. of Defs.' Mot. for Summ. J. (#45) at 13-16.) Defendants have produced evidence that plaintiff Bennett began working in the TRCI kitchen on October 23, 2002, where he was assigned the task of "food server-06," a position which involved placing prepared food onto compartmentalized food trays. (Defs.' Mot. for Summ. J. at Ex. 103, Aff. of John G. Thompson (hereafter "Thompson Aff."), p. 2.) On November 9, 2002, Bennett was reassigned to a dish washing job, where he was responsible for cleaning pans, trays and food carts. (Id.) Bennett did not hold any other kitchen jobs, and ceased working for the TRCI Food Services Section on January 10, 2003. (Id.) Therefore, according to the record, on the date Bennett alleges that he cut his hand on a food cart, he was working as a dish washer. Plaintiffs have neither alleged nor offered any evidence to show that Bennett's blood was permitted to contaminate food that was served to inmates on or about November 18, 2002.
Defendant Estes attests that, in his capacity as a Food Service Coordinator at TRCI, he supervised plaintiffs Bennett and Lucero while they were working as food cart cleaners. (Id. at Ex. 104, Aff. of Thaddius Estes (hereafter "Estes Aff."), pp. 1-2.) Estes further attests that since September 10, 2001, when he began working in TRCI Food Services, he has "never encountered any inmate cuts that couldn't be treated with a Band Aid." (Id. at p. 2, ¶ 8.) Estes does not recall that either Bennett or Lucero reported an injury to him. He further attests that he routinely carries Band Aids in his shirt pocket to treat small cuts, that it is standard procedure at TRCI to call a trained inmate decontamination crew to clean up any blood spills, that memos documenting the incident would have to be prepared, that any contaminated towels or gloves would be sealed in a plastic bag disposed of properly, and that he "certainly would not have 'done nothing,'" as plaintiffs alleged. (Id. at p. 2, ¶¶ 5-9.) Applicable state administrative rules require TRCI staff supervisors to visually inspect all inmates before they are permitted to work in food services, and to refer inmates who exhibit symptoms of colds or flu, or have cuts, abrasions, or skin rashes to TRCI Health Services, where the inmate must be examined and cleared for work. See Or. Admin. R. 291-061-0061.
After reviewing the sworn statements in plaintiffs' verified complaint, together with the arguments and evidence in the record and properly before the court in opposition to defendants' motion for summary judgment, I find that even if the facts are viewed in a light most favorable to plaintiffs, the deprivations about which they complain in Claim One are not sufficiently serious to satisfy the objective element of the Eighth Amendment analysis. Furthermore, plaintiffs have failed to satisfy the subjective component of the Eighth Amendment analysis, which requires them to demonstrate that the defendant prison officials involved knew of and disregarded an excessive risk to inmate health or safety.See Farmer, 511 U.S. at 834.
First, plaintiffs have not set forth sufficient evidence to prove their general allegations that the defendants failed to protect the health or safety of inmates by ignoring kitchen workers' illnesses and injuries to an extent that food service at TRCI can be deemed so unsanitary that plaintiffs were subjected to conditions posing a substantial risk of serious harm. See Farmer, 511 U.S. at 834. Although non-party inmate Jesse Reigard attests that he has been compelled to serve food at TRCI while ill on "several different occasions," that he observed an instance where "inmates cut themselves and bleed on the food product," and that "the coordinater [sic] . . . replied: 'There's not that much blood, it'll cook out,'" he did not attest that any of the named defendants personally participated in these actions, or that plaintiffs or other inmates suffered any illness as a direct result of consuming tainted food. (Aff. of Jesse Reigard (#67) at 2, ¶¶ 5-7.) "Liability under section 1983 arises only upon a showing of personal participation by the defendant" in the alleged constitutional deprivation. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Arnold v. Int'l. Business Machines, Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). In addition, plaintiffs have neither alleged nor provided evidence to establish that they suffered significant injury or illness — such as specific, repeated instances of food poisoning or malnutrition — directly resulting from their exposure to unsafe or unsanitary kitchen conditions. See Hudson v. McMillian, 503 U.S. 1, 8-10 (1992) (to state an Eighth Amendment conditions-of-confinement claim, the harm suffered from the alleged violation must be more than de minimus).
Second, plaintiffs have failed to show that the specific lapse in sanitation resulting from Bennett's cut was anything other than temporary or that any harmful contamination occurred. Therefore, plaintiffs did not suffer a deprivation of constitutional magnitude. See id.; and see Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995) (Although subjecting a prisoner to "lack of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment," confining inmates to a smelly, dirty safety cell for short periods of time did not violate the Eighth Amendment);Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) ("Not every deprivation from ideally safe conditions amounts to a constitutional violation.").
Third, although Bennett attests that he suffered from health conditions which should have excluded him from kitchen work for personal reasons (see Complaint at 5 Attach. 1), the record shows that he was examined by TRCI Health Services staff on a regular basis, that his asthma was being treated and controlled adequately, and that Health Services staff found no medical restrictions limiting Bennett's ability to work in the TRCI kitchen. (Defs.' Mot. for Summ. J. at Ex. 105, Aff. of Brian Misner (hereafter "Misner Aff."), p. 2, ¶ 5 Ex. 107, Lytle Aff., pp. 2-3. ¶¶ 4-10.) The record shows that on September 4, 2002, Bennett reported to a TRCI Health Services staff member that he qualified for Social Security disability prior to his incarceration, and asked what he needed to do to limit his prison work assignments. (Id. at Ex. 107, Lytle Aff., p. 2, ¶ 5 Attach. 1, p. 22.) Thereafter, Bennett complained repeatedly to TRCI Health Services personnel that his prior disability determination should prevent him from being assigned to work in the TRCI kitchen; however, on each occasion he was evaluated by a health care provider and found to be medically fit for kitchen work. (See id. at pp. 3-4, ¶¶ 8-11 Attach. 1, pp. 18-20.) Plaintiffs have not demonstrated that defendants were deliberately indifferent to Bennett's serious medical needs when they found that there was no medical restriction preventing him from working in the TRCI kitchen; therefore, plaintiffs have not presented a cognizable claim for a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.See Estelle v. Gamble, 429 U.S. 97, 104 (1976); and see supra, discussion of Claim Two, pp. 35-43.
Finally, although non-party inmate Jesse Reigard attests that he was "injured by 460 volts when forced to use a food processing machine in disrepair, . . . [that] urinals in the kitchen bathrooms have a problem violently 'spitting' back into the inmates['] faces when flushed. . . . [and that] [i]nmates place their hands in large machines and staff will not take the time to lock-out the machines," (Aff. of Jesse Reigard at 3, ¶ 10), plaintiffs have not demonstrated that the conditions in the TRCI kitchen were routinely so unsafe or unsanitary that they suffered objectively sufficiently serious deprivations of basic human needs merely by working in that environment. See Hudson, 503 U.S. at 9 ("[E]xtreme deprivations are required to make out a conditions-of-confinement claim."); see also Osolinski v. Kane, 92 F.3d 934, 938-39 (9th Cir. 1996) (failure to repair malfunctioning kitchen equipment which causes injury is not sufficient to establish an Eighth Amendment claim).
Because plaintiffs have not proved that any lapses in safety and sanitation in the TRCI kitchen were objectively sufficiently serious, and because plaintiffs have not shown that the named defendants exhibited deliberate indifference to excessive risks to inmate health or safety with respect to working conditions or sanitation in the TRCI kitchen, plaintiffs have failed to establish that defendants violated the Eighth Amendment. See Farmer, 511 U.S. at 834. Therefore, further analysis concerning qualified immunity is unnecessary. See Saucier, 533 U.S. at 201 (no necessity for further inquiry if no constitutional right would have been violated). Defendants' motion for summary judgment is granted with respect to Claim One, because they are entitled to qualified immunity.
ii. Claim Two: proper medical treatment
Generally, deliberate indifference to a serious medical need presents a cognizable claim for a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.Estelle, 429 at 104; Toussiant v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987);McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1998). Specifically, "deliberate indifference" to a serious medical need exists "if [the prison official] knows that [the] inmate face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847. The deliberate indifference standard "is less stringent in cases involving a prisoner's medical needs than in other cases involving harm to incarcerated individuals because 'the State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.'" McGuckin, 974 F.2d at 1060 (quoting Hudson, 503 U.S. at 6).
A determination of "deliberate indifference" involves two elements: (1) the seriousness of the prisoner's medical needs; and (2) the nature of the defendant's responses to those needs.McGuckin, 974 F.2d at 1059. First, a "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. (citing Estelle, 429 U.S. at 104). Examples of instances where a prisoner has a "serious" need for medical attention include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. Id. at 1059-1060 (citing Wood v. Housewright, 90 F.2d 1332, 1337-41 (9th Cir. 1990); Hunt v. Dental Dep't., 865 F.2d 198, 200-01 (9th Cir. 1989). Second, the nature of a defendant's responses must be such that the defendant purposefully ignores or fails to respond to a prisoner's pain or possible medical need.McGuckin, 974 F.2d at 1060.
In Claim Two, plaintiffs allege generally that TRCI Health Services personnel refuse to believe inmates' statements concerning their health, and that TRCI health care providers make medical determinations without reviewing inmates' prior medical history. (Complaint at 5.) Specifically, plaintiffs attest that defendant Sundell, a Physician's Assistant at TRCI, could not find medical records sent from plaintiff Bennett's non-prison doctors and would not order records from the Social Security Administration, which showed that prior to his incarceration Bennett suffered from a disability that limited his ability to work. (See Id. at 5-6.) Plaintiffs further attest that, without reviewing Bennett's medical history, Sundell determined that Bennett did not suffer from a medical condition that restricted his ability to work, and refused to disqualify him from working in the TRCI kitchen even though she observed that Bennett was suffering from shortness of breath and an elevated heart rate as a reaction to airborne cooking gases and detergents. (See id.)
Defendants have demonstrated that Bennett received a physical assessment from Health Services personnel at another institution on or about August 12, 2002, and that even though he suffered from asthma, his state of general health was found to be "good." (Defs.' Mot. for Summ. J. at Ex. 107, Lytle Aff., p. 4, ¶ 9 Attach. 1, p. 22.) Because of his asthma, Bennett was characterized as a "special needs" inmate at TRCI, so that he has received health assessments for that condition every four months. (Id. at p. 2, ¶ 4 Attach. 1, pp. 1, 21-22.)
The record further shows that Bennett's asthma is being treated with Qvar and Albuterol, a combination of medications which together are equivalent to Advair, the medication that was prescribed to plaintiff prior to his incarceration. (Id. at pp. 2-3, ¶ 7 Attach. 1, p. 21.) Dr. Lytle, who is one of Bennett's treating physicians at TRCI, attests that the ODOC does not routinely stock Advair in its readily available inventory of medications. (Id. at pp. 2-3, ¶ 7.) Nevertheless, Bennett's medical progress notes show that his asthma remains stable using the regimen of Qvar and Albuterol (id. at p. 3, ¶ 9 Attach. 1, pp. 10-21), and that the acute asthma flare-up he suffered in March and April of 2003 was promptly and effectively treated with additional medications. (Id. at Attach. 1, pp. 6, 15-17.) Defendants have demonstrated that Bennett's assignment in the TRCI kitchen ended on January 10, 2003, so that this acute asthma flare-up could not be directly attributed to his exposure to unsafe or unsanitary working conditions in the TRCI kitchen. (See Ex. 107, Lytle Aff. at p. 2, ¶ 6 Attach. 2.)
Although plaintiffs' complaint did not provide a specific date, the record shows that the incident described by plaintiffs, and involving defendant Sundell, occurred on December 5, 2002, when plaintiff Bennett contacted TRCI health services to complain that he was suffering from an elevated heart rate while performing his work assignment in the kitchen. (Id. at p. 3, ¶ 10 Attach. 1, p. 19.) Bennett was promptly examined by a TRCI health services nurse, who noted that his vital signs were within a normal range, his oxygen saturation was 98%, his lungs were clear, his respiration was normal, and that he was not in any distress despite his complaints that the smoke in the kitchen aggravated his asthma. (Id. at Attach. 1, p. 19.) After conferring with Dr. Lytle and defendant Sundell, the nurse who examined Bennett informed him that there was no medical reason preventing him from working in the kitchen, and told him to return to work. (Id.)
On December 18, 2002, in response to complaints that his asthma was getting worse from working in the TRCI kitchen, plaintiff Bennett was examined by Dr. Lytle, who noted that his oxygen saturation was 97%, and there were "few wheezes" in his lungs. (Id.) Dr. Lytle found no medical reason to alter Bennett's work assignment on that date. (See id.) On December 30, 2002, Bennett visited TRCI health services with complaints of numbness in his face and arm, headache, and dizziness, and requested that he be permitted to discontinue working. (Ex. 107, Lytle Aff. at Attach. 1, p. 18.) The nursing staff member who examined Bennett found that his vital signs were within normal limits, his oxygen saturation was 97%, he was not in acute distress; she also noted that there was no medical reason to alter Bennett's work status. (Id.) On January 8, 2003, Bennett returned to TRCI health services with similar complaints, and was again examined by a nursing staff member who found that his vital signs were normal, and scheduled him for a follow-up appointment with a staff physician. (Id.) The nurse who examined Bennett found no medical reason to alter his work status on that date. (See id.)
Regarding plaintiff Bennett's claim that Sundell did not review his medical records prior to making health care decisions, or assist him in obtaining the records, defendants have demonstrated that on September 4, 2002, a TRCI Health Services staff member (the signature on the progress notes is illegible) noted that Bennett asked how to get a disability restriction for work, and apparently advised him to "kyte Ms. Herrara for old records." (Id. at p. 22.) On September 17, 2002, Bennett was asked by Dr. Lytle to sign a release form to obtain his medical records from previous doctors. (Id. at p. 21.) Because neither plaintiff Bennett nor defendants submitted a complete copy of Bennett's medical records from TRCI, the date on which defendants received Bennett's pre-incarceration medical records has not been established.
However, on November 7, 2003, Dr. Lytle attested to the following facts:
I have reviewed Mr. Bennett's previous medical records including medical records from the U.S. Social Security Administration and previous providers as he requested, to aid in my determination of his fitness to work at TRCI. In my opinion based on my physical examination of Mr. Bennett and my review of these records, there is nothing indicating that he cannot work during his incarceration. He is free from communicable disease and physically capable of performing the required work in the TRCI Food Services Section or any other inmate work assignment.
(Ex. 107, Lytle Aff. at p. 4, ¶ 14.) Even if it can be said that defendant Sundell did not review Bennett's pre-incarceration medical history prior to her December 5, 2002 determination that he was fit to work in the TRCI kitchen, her medical decision was made in concert with Dr. Lytle, and she made her determination based on a contemporaneous physical examination of Bennett on that date.
Viewing the facts in a light most favorable to plaintiffs, to the extent that plaintiff Bennett has shown that defendant Sundell behaved negligently by failing to review his preincarceration medical records prior to determining that he was medically fit to work in the TRCI kitchen, such negligence does not constitute a violation of the Eighth Amendment. "[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because a victim is a prisoner." Estelle, 429 U.S. at 106;and see McGuckin, 974 F.2d at 1059; Toussaint, 801 F.2d 1113.
Again viewing the facts in a light most favorable to plaintiffs, to the extent that plaintiff Bennett has shown that doctors treated his asthma with Advair prior to his incarceration, and alleges that the equivalent combination of medications prescribed by doctors at TRCI is not as effective at controlling his condition, he has simply demonstrated that there is a difference of medical opinion about the appropriate course of his treatment. Similarly, plaintiff Bennett's claim that doctors determined that he qualified for Social Security disability prior to his incarceration, so that he should be precluded from kitchen work at TRCI for medical reasons, amounts at most to a difference of medical opinion regarding Bennett's physical fitness for work. Such differences of opinion between medical professionals regarding the appropriate course of an inmate's medical treatment generally do not amount to deliberate indifference to serious medical needs. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); see also Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), cert. denied, 519 U.S. 1029 (1996) (a difference of opinion between a physician and an inmate concerning the appropriate course of treatment does not constitute deliberate indifference to serious medical needs).
To establish that a difference of medical opinion amounts to deliberate indifference, an inmate must "show that the course of treatment the doctors chose was medically unacceptable under the circumstances . . . [and] that they chose this course in conscious disregard of an excessive risk to [the inmate's] health." Jackson, 90 F.3d at 332. The record in this case shows that, far from being disregarded, Bennett's medical condition was monitored regularly by TRCI nurses, physicians, and physicians' assistants — including defendant Sundell. At each visit to TRCI Health Services, Bennett's physical condition was evaluated and health care professionals verified that he was physically capable of performing prison work — including work in the TRCI kitchen. Defendants have provided evidence showing that Bennett has consistently received treatments to control his asthma.
Because plaintiff Bennett has not shown that the named defendants, in particular defendant Sundell, exhibited deliberate indifference to his serious medical conditions, he has failed to establish that an Eighth Amendment violation occurred. See Estelle, 429 U.S. at 104. Accordingly, further analysis concerning qualified immunity is unnecessary. See Saucier, 533 U.S. at 201. Defendants' motion for summary judgment is granted with respect to Claim Two, because they are entitled to qualified immunity.
iii. Claim Three: unwholesome food
As discussed above in Claim One, to prove that the conditions under which inmates are confined amounts to a violation of the Eighth Amendment, plaintiffs must show that the alleged deprivation is both objectively "sufficiently serious," and that the defendants were deliberately indifferent to inmate health or safety. See Farmer, 511 U.S. at 834. While prison conditions may, consistent with the Constitution, be "restrictive and harsh," Rhodes v. Chapman, 452 U.S. 337, 347 (1981), prison officials must provide inmates with "food, clothing, shelter, sanitation, medical care, and personal safety." Toussaint, 801 F.2d at 1107. However, with respect to claims regarding prison food, "[t]he Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing." LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); see also Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996, amended by 135 F.3d 1318 (9th Cir. 1998).
In Claim Three, plaintiffs allege generally that "[f]or as long as Plaintiffs are aware the [TRCI] kitchen has been serving out-dated food to the inmates." (Complaint at 7.) Specifically, plaintiffs attest that on or about September 10, 2002, they were served fish that "was so hard that it could not be chewed." (Id.) Plaintiffs attest that the packages containing the fish were marked "not for human consumption." (Id.) Furthermore, plaintiffs claim, "some other foods are dated 10 to 20 years old." (Id.) Specifically, plaintiffs attest that they were served ketchup packets marked for use one year ago, and that items listed as available for purchase from the inmate canteen are outdated. (Id.) Finally, plaintiffs claim, serving such out-dated food is causing malnutrition, that a resulting increase in related disease is "covered up by the medical staff," and that such increased disease threatens the health of the entire inmate population at TRCI. (Complaint at 7.)
Defendants argue that the food products utilized at TRCI are purchased from reputable vendors, and that the food is screened for quality. Fred Monem, the Food Services Administrator for the ODOC, attests that he utilizes the state's approximately eleven million dollar budget to personally purchase all food products for the state's prisons. (Defs.' Mot. for Summ. J. at Ex. 102, Monem Aff., p. 2, ¶¶ 4-6.) Monem, who is not a defendant in this action, attests that he personally inspects each delivery of meat and fish to insure that the products conform to the same packing and quality standards as the samples from which the food was ordered. (Id. at p. 2, ¶ 4.) Monem attests further that he purchases food from national vendors, including Nestle, Tyson, Stouffers, Foster Farms, Universal Fish of Boston, and Mrs. Smith. (Id. at p. 2, ¶ 5.) All fish and meats are then shipped from the ODOC's central distribution warehouse located in Salem, Oregon, to the fourteen institutions around the state, including TRCI. (Id. at p. 2, ¶ 7; see also Ex. 103, Thompson Aff., pp. 2-3, ¶ 8.) All of the institutions serve the same meal on the same day. (Id.) Finally, Monem attests that "ODOC currently serves over 45,000 meals each day . . . [and] [i]n the four years that I have served as the ODOC Food Services Administrator, I have received no complaints regarding fish (or other foods) being 'unfit for human consumption' other than Inmate Bennett's." (Ex. 102, Monem Aff., p. 2, ¶ 7.)
Defendant Thompson, the Food Services Manager at TRCI, attests that "[t]he ODOC food distribution system does not serve outdated food products or food products that are not intended for human consumption." (Ex. 103, Thompson Aff., p. 3, ¶ 9.) In addition, Thompson attests, both inmates and staff in all of the ODOC institutions eat the same food. (Id. at p. 3, ¶ 8.) Thompson attests further that inmates are sometimes upset or confused about the various dates on the packages of food products, so that they mistake a "production date" stamped by the manufacturer for an "expiration date." (Id. at p. 4, ¶ 13.) For example, Thompson attests that "[a] canned product could possibly have a ten year old production date and still contain wholesome product if the can has not been compromised." (Id.)
Further, Thompson attests that the "portion control" plastic condiment packets used at TRCI — such as the ketchup about which plaintiffs complain — do not have a set expiration date; instead, the dates stamped on the packets are a "best if used by" or a "use by" date stamped by the manufacturer as a quality control date before which the product can be expected to have "optimal color and flavor qualities." (Id. at p. 4, ¶¶ 14-15.) Finally, Thompson attests, "[w]e could use the product until our visual or flavor testing told us that the product may no longer be suitable." (Ex. 103, Thompson Aff., p. 4, ¶ 15.)
With respect to plaintiffs' claims that the TRCI canteen sells outdated products, defendants admit that items which have exceeded their "use by" or "sell by" dates marked on the packaging are sometimes offered to inmates at a discounted price. (See Ex. 106, Reid Aff. at p. 2, ¶ 6.) However, Deena Reid, a TRCI Canteen Worker who is not a defendant in this action, attests that an inmate has the option to refuse delivery of a canteen item and choose to have his account credited, and that if an inmate inadvertently receives an outdated product, the canteen will take the product back and credit the inmate's account. (Id. at p. 2, ¶ 7.) Reid attests further that plaintiff Bennett purchased a package of Ultrex vitamin supplements on August 11, 2003, and misinterpreted the "sell by" date of "05-05" as May, 2003. (Id. at pp. 2-3, ¶ 8 Attach. 1.)
Plaintiffs have provided little admissible evidence that can be used to oppose defendants' motion for summary judgment. In support of their motion for a preliminary injunction, plaintiffs attached a copy of a label from a container of strawberry jam marked "Made In U.S.A. By H.J. Heinz Co." with a date stamp of "4/02/01," and claim that this product was served on or about August 15, 2003. (Pls.' Mot. for TRO and Prelim. Inj. at p. 3 Ex. 3.) Plaintiffs did not authenticate the label or otherwise attest to its source or its accuracy using an affidavit based on personal knowledge. Plaintiffs neither argued nor attested that the jam was rancid or otherwise unfit for consumption on the date that it was served at TRCI, or that they consumed the jam and suffered some illness or other injury as a direct result. Similarly, plaintiffs attached a copy of a partial label from a box marked "HCF TURKEY" with the inscription "SELL/FREEZE BY 10/18/02." (Id.) Again, although plaintiffs claim that this product was served on August 22, 2002, the label was not authenticated using an appropriate affidavit, and plaintiffs neither argued nor attested that the food was unfit or that eating it caused them some type of damage.
Plaintiffs' best evidence in opposition to summary judgment was provided in two affidavits submitted by non-party inmates Jesse Reigard and David Voss. Voss attests that he witnessed a conversation on January 24, 2004, between plaintiff Bennett and "a man who works as a Baker in the kitchen of TRCI," in which the baker stated that the bagels served at breakfast were hard because they had been stored for seven months. (Voss Aff. (#60) at p. 1, ¶ 2.) Voss attests further that the baker refused to attest to his statements because he feared that he would lose his job. (Id. at p. 1, ¶ 1.) Finally, Voss attests that "[h]undreds of men show signs of malnutrition," but does not attest that either he or any of the plaintiffs suffered such damages. (Id. at p. 3.) None of Voss's statements were based on personal experience or personal knowledge of the events asserted.
Reigard attests that he has worked in the TRCI kitchen and that his affidavit is based on personal knowledge. (Reigard Aff. (#67) at p. 1, ¶ 1.) Reigard attests further that "sour milk is served nearly every day"; that ingredients used to prepare meals for TRCI staff members are not the same as those used for inmate meals; that perishable items are placed on serving carts to be distributed to the inmates and left for hours without appropriate heat or refrigeration; that fish was prepared which had packing dates of 1987 and 1992 and when notified the staff took away the labels; and that on one occasion he ground up hamburger that was "visibly rancid," but was ordered by Mr. Hall (who is not named as a defendant) to "serve it anyway." (Id. at pp. 1-2.)
Although plaintiffs have presented some evidence showing that the food prepared and served at TRCI is less than ideal, they have nevertheless failed to establish all of the elements necessary to support a § 1983 claim for violations of the Eighth Amendment. In general, to survive summary judgment and establish a claim under § 1983, plaintiffs must prove that defendants, acting under color of state law, deprived plaintiffs of their rights, privileges or immunities secured by the Constitution or federal law. See American Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.), cert. denied, 522 U.S. 996 (1997). The affidavits and other evidence submitted by plaintiffs does not establish that any of the named defendants personally participated in the alleged Eighth Amendment violations, a deficiency that by itself is fatal to Claim Three. See Taylor, 880 F.2d at 1045);Arnold, 637 F.2d at 1355.
In addition, because Claim Thee is a "failure to protect" from contaminated food claim, to survive summary judgment plaintiffs must demonstrate that the food service at TRCI constitutes a condition which poses "a substantial risk of serious harm." See Farmer, 511 U.S. at 834. Plaintiffs have neither alleged nor provided evidence, such as their own medical records, to establish that they suffered significant injury or illness directly resulting from their consumption of unfit food at TRCI, such as repeated symptoms of food poisoning, serious malnutrition, or drastic weight loss. See Hudson, 503 U.S. at 8-10 (harm suffered from an alleged Eighth Amendment violation must be more than de minimus).
The Eighth Amendment requires only that the food provided to inmates be adequate to maintain their health. LeMaire, 12 F.3d at 1456. "The fact that food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional violation." Id. (citation and internal quotations omitted). Neither isolated instances of food poisoning, temporary lapses in sanitary food service, nor service of meals contaminated with maggots are sufficiently serious to constitute an Eighth Amendment violation. See Islam v. Jackson, 782 F.Supp. 1111, 1114-15 (E.D. Virginia 1992) (serving one meal contaminated with maggots and meals under unsanitary conditions for thirteen days was not cruel and unusual punishment, even though inmate suffered symptoms of food poisoning on one occasion); see also Wishon v. Gammon, 978 F.2d 466, 449 (8th Cir. 1992) (inmates routinely being served cold food contaminated with foreign objects does not amount to an Eight Amendment violation).
Because plaintiffs have not demonstrated that the food served at TRCI was so unpalatable or contaminated that it was "inadequate to maintain health," they have failed to satisfy the objective element of the Eighth Amendment analysis. Furthermore, because plaintiffs have provided no evidence to show that the named defendants were deliberately indifferent to plaintiffs' basic nutritional needs, they have failed to satisfy the subjective element of the Eighth Amendment analysis. Accordingly, plaintiffs have failed to establish that defendants violated the Eighth Amendment, see Farmer, 511 U.S. at 834; and further analysis concerning qualified immunity is unnecessary. See Saucier, 533 U.S. at 201. Defendants' motion for summary judgment is granted with respect to Claim Three, because they are entitled to qualified immunity.
IV. Equitable Relief: Merits of Plaintiff's Claims
Because all of the defendants are entitled to qualified immunity from liability for damages for each of plaintiffs' three § 1983 claims, the only remedies remaining for plaintiffs are those of injunctive relief. Plaintiffs ask this court to remove them and an unspecified number of witnesses from the custody of the ODOC and house them in a federal detention center until the issues in this case are resolved. (Complaint at 8.)
As discussed in great detail in Part III, above, plaintiffs' three claims are based on allegations that defendants violated the Eighth Amendment by failing to maintain a safe and sanitary kitchen environment (Claim One), by failing to provide plaintiffs with appropriate medical treatment (Claim Two), and by compelling plaintiffs to eat unpalatable and unwholesome food (Claim Three). (Complaint at 3-7.) Claims One and Three are conditions-of-confinement claims in which plaintiffs allege violations of the Eighth Amendment; therefore, in order to prevail on their claim for equitable relief, plaintiffs must demonstrate that the alleged deprivations are objectively "sufficiently serious," and that defendants acted or failed to act with "'deliberate indifference' to inmate health or safety," in order to meet the subjective component of the test. Farmer, 511 U.S. at 834. Because Claim Two is a claim involving medical care, to prevail on this claim for equitable relief a slightly different analysis applies; plaintiffs must show that defendants were deliberately indifferent to their serious medical needs.See Toussiant, 801 F.2d at 1111 (citing Estelle, 429 U.S. at 106).
After conducting a thorough review of the evidence in the record, as summarized in detail above, I find that plaintiffs failed to demonstrate that the conditions in the TRCI kitchen were objectively so unsafe and unsanitary that they amount to an Eighth Amendment violation; that plaintiffs failed to demonstrate that defendants were deliberately indifferent to their serious medical conditions; that plaintiffs failed to demonstrate both that the food served to them at TRCI was so unpalatable or contaminated that it was inadequate to maintain their health, and that defendants were deliberately indifferent to plaintiffs' basic nutritional needs; and that plaintiffs failed to demonstrate that they suffered any injury of constitutional magnitude as a result of the alleged Eighth Amendment violations. Therefore, plaintiffs' three § 1983 claims fail as a matter of law.
In addition, plaintiffs have not demonstrated that there is an ongoing "likelihood of substantial and immediate irreparable injury." City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Because plaintiffs have not suffered any violations of the Eighth Amendment — the federal constitutional right at issue in this case — they have failed as a matter of law to demonstrate a "real or immediate threat that [they] will be wronged again" and thus are not entitled to the equitable relief sought. Id. (quotingO'Shea v. Littleton, 414 U.S. 488, 502 (1974)).
Furthermore, plaintiffs have provided no substantive reasons or legal authority in support of the requested transfer from state to federal custody. "Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose."Meachum v. Fano, 427 U.S. 215, 225 (1976); see also United States v. Brown, 59 F.3d 102, 105 (9th Cir. 1991) (per curiam) (quoting Meachum, 427 U.S. at 225.) Finally, because plaintiffs' claims were not resolved in their favor, there is no equitable reason, such as prevention of an ongoing injury to plaintiffs' constitutional rights or potential retaliation by TRCI staff, to merit transferring them to federal custody.
Accordingly, because plaintiffs have failed to establish that any Eighth Amendment violations occurred, and because their § 1983 claims fails as a matter of law, defendant's motion for summary judgment is granted with respect to plaintiffs' claim for equitable relief.
CONCLUSION
IT IS ORDERED that, based on the foregoing, defendants' Motion for Summary Judgment (#43) is GRANTED; and plaintiffs' twelve pending motions (#22, #23, #26, #28, #47, #50, #51, #54, #55, #56, #58 #65) are DENIED.
IT IS FURTHER ORDERED that, because defendants Brian Misner, Jack Thompson, Mark O'Brian, Debra Davis, Trent Juif, Thaddius Estes and Nicolette Sundell are entitled to qualified immunity from liability for damages on all of the plaintiffs' claims, and because plaintiffs are not entitled, on the merits, to the equitable relief sought, plaintiffs' claims are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.