Olmos et al v. Ryan et al

Filing 141

*ORDER that the reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion (Doc. 118). Denying 118 Plaintiff's Motion for an Order to Photograph Prison Conditions. Signed by Judge G Murray Snow on 11/13/12.(DMT) *Modified to add text on 11/13/2012 (DMT).

1

WO

SVK

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Timothy P. Olmos,
9

Plaintiff,
10

vs.
11
12

Charles Ryan, et al.,
Defendants.

13
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 10-2564-PHX-GMS (BSB)
ORDER

15

Plaintiff Timothy P. Olmos filed this civil rights action under 42 U.S.C. § 1983

16

against various officials of the Arizona Department of Corrections (ADC). (Doc. 21.)

17

Plaintiff has filed a Motion for an Order to Photograph Prison Conditions, which Defendants

18

oppose. (Docs. 118, 127.) The Court will deny the motion.

19

I.

Background

20

On screening of Plaintiff’s 15-count First Amended Complaint, the Court directed

21

Defendant Charles L. Ryan to answer Plaintiff’s due process claims in Counts VII (illegal

22

taking of money from his account), IX (violating state law inmate compensation statutes),

23

and X (required surrender, without compensation, of orange clothing purchased at the inmate

24

store); Eighth Amendment claims in Counts III (conditions of confinement, including

25

insufficient necessities such as food, clothing, and hygiene products and overcrowding);

26

Fourteenth Amendment claim in Count VIII (unconstitutional taking of money through

27

failure to pay interest on money in his prisoner account); and First Amendment claim in

28

Count XI (free-speech claim regarding an incoming-mail policy). (Doc. 27.) It also ordered

1

Defendant Allen Ortega to answer the retaliation claim in Count XV. The remainder of the

2

Defendants and claims were dismissed. (Id.)

3

II.

Motion for Photographs

4

A.

Parties’ Contentions

5

Plaintiff asserts that Count III claims unconstitutional conditions of confinement that

6

are primarily caused by overcrowding and he wants to preserve the current conditions at

7

ASPC-Eyman-Cook to enable the Court to make an informed decision on injunctive relief.

8

(Doc. 118 at 1.) Plaintiff cites to Brown v. Plata, 131 S. Ct 1910 (2011), which upheld the

9

decision of a three-judge court that entered a remedial order requiring the State of California

10

to reduce its prison population. Plaintiff asserts that another inmate who is also litigating

11

an overcrowding issue obtained a court order to have photographs take by ADC staff. (Doc.

12

118 at 2.)

13

Plaintiff alleges that he now lives in Cook Unit, Building 7D, which contains 24 single

14

living spaces converted to 48 spaces by installation of double bunks. (Id. at 3.) Building 7C

15

is set up the same as Building 6C, where Plaintiff previously lived with 26 single living

16

spaces converted to 52.

17

comparison “with Ryan’s physical-plant policy.” (Id.) He asks that the photographs be taken

18

on a work day during the morning or afternoon recreation periods to limit the number of

19

inmates photographed and to impose a price of $.50 per photograph, rather than the $2.00 per

20

photograph rate set in Department Order 911.05.1.10.2.4 because he anticipates 15-30

21

pictures. He also asks the Court not to order that the photographs be sent to the Court and

22

placed under seal. (Id. at 4.)

Photographs would document living conditions and enable

23

Defendants respond that Plaintiff’s First Amended Complaint claimed that the

24

institution where the alleged violations occurred were, “ASPC-Lewis-Morey (Morey),

25

Buckeye, AZ; ASPC-Tucson-Winchester (Winchester), Tucson, AZ; Central Arizona

26

Correctional Facility (CACF), Florence, AZ; ASPC-Florence-South (South), Florence, AZ.”

27

(Doc. 127 at 1; ref. Doc. 21 at 1.) They argue that although the Court in Karban v. Ryan,

28

CV-10-0406-TUC-DCB, ordered photographs taken of the conditions at issue, it denied a
-2-

1

later motion in which inmate Karban sought photographs of his current living environment,

2

stating that “the Cook Unit, which notably is a Florence facility, is not the subject of his

3

Complaint, which involves the Winchester Unit in Tucson.” (Doc. 127 at 2; citing Karban,

4

CV-10-0406-TUC-DCB (Doc. 172).) The Court in Karban also noted that the plaintiff had

5

not established why he needed the photographs of current conditions since he filed his

6

Complaint in 2010: “Pictures of the Cook Unit are not relevant to this case; ‘Plaintiff cannot

7

raise a new claim in a motion.’” (Doc. 127 at 2; citing Karban, CV-10-0406-TUC-DCB

8

(Doc. 172).) Defendants here argue that the current conditions at ASPC-Eyman have nothing

9

to do with Plaintiff’s claims in this action, which allegedly occurred two or more years ago,

10

at different prison facilities, and under the supervision of different prison personnel. (Doc.

11

127 at 2.)

12

Plaintiff replies that although it is true that Plaintiff’s Complaint specifies that the

13

constitutional violations were at Eyman-Cook, ADC has admitted that overcrowding is a

14

“statewide problem” which Plaintiff argues “feeds into his use of Brown v. Plata” because

15

it is his position that an overloaded prison prevents Ryan from having available resources.

16

(Doc. 129 at 1.) Therefore, Plaintiff must produce sufficient evidence for the injunctive relief

17

he seeks. The Supreme Court included pictures in the Appendix of Brown. (Id. at 2.) He

18

claims that Ryan’s overcrowding strategy of double bunking is found at every level 3

19

dormitory that Plaintiff has lived in. He asserts that Defendants are simply afraid to have

20

evidence before the Court. (Id.)

21

Plaintiff also asks the Court, as a compromise, to make two copies available of a video

22

made by ADC Public Information Officer Bill Lamareaux of Winchester on August 12,

23

2009; unseal the photographs in Karban; or order Ryan to transport Plaintiff to the housing

24

units to take the photographs at the cost of $.50 per photograph. (Id. at 3.)

25

B.

Analysis

26

The Court will deny the motion. First, Plaintiff’s motion is essentially a motion for

27

additional discovery. But the discovery deadline was August 31, 2012, so Plaintiff’s motion,

28

which was not made until October 4, 2012, is untimely. (Doc. 100.) But more important,
-3-

1

the Court finds that Plaintiff fails to establish that the unspecified pictures he seeks are

2

relevant. As the Court recently noted in Karban, without a showing of a constitutional

3

violation as to inmates’ basic needs, overcrowding is not a cognizable claim.
Without more, a claim of overcrowding is not cognizable under § 1983.
Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984), citing Rhodes [v.
Chapman,] 452 U.S. 337[, 346 (1981)]. Only if overcrowding is combined
with other factors, such as violence or inadequate staffing does it rise to an
Eighth Amendment violation. Balla v. Idaho State Bd. Of Corr., 869 F.2d 461,
471 (9th Cir. 1989); Hoptowit v. Ray, 682 F.2d 1237, 1246–49 (9th Cir.
1982). Moreover, there is no Eighth Amendment violation if inmates’ basic
needs are separately met; in other words, conditions that satisfy Eighth
Amendment requirements cannot in combination amount to an Eighth
Amendment violation. Id. at 1247.

4
5
6
7
8
9

Karban, CV-10-0406-TUC-DCB (Doc. 157 at 24-5.) Brown v. Plata did not change that;
10

there the plaintiffs alleged that they received inadequate health and mental health care due
11

to overcrowding. Brown, 131 S. Ct. at 1924-26. Moreover, the Supreme Court has held that
12

double bunking does not violate the constitution. Bell v. Wolfish, 441 U.S. 520, 541 (1979).
13

And as Defendants note, the Complaint does not challenge the conditions at Plaintiff’s
14

current place of housing. In addition, here, Plaintiff alleges in Count III that ADC
15

(1) provides meals with insufficient nutrition, (2) insufficient clothing between laundering,
16

(3) insufficient hygiene products, (4) insufficient cleaning products, (5) insufficient living
17

facilities, (7) insufficient staff, leading to a delay in escort to the medical unit and increased
18

violence, and (8) no system to notify staff of emergencies. (Doc. 21, Count III.) It is unclear
19

why the Court would require pictures of the physical plant to determine these matters. To
20

the extent that overcrowding is even relevant, Plaintiff can establish that through other
21

evidence.
22

IT IS ORDERED:
23

(1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion for an
24

Order to Photograph Prison Conditions (Doc. 118).
25

///
26

///
27

///
28
-4-

1
2
3

(2) Plaintiff’s Motion for an Order to Photograph Prison Conditions (Doc. 118) is
denied.
DATED this 13th day of November, 2012.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-