Olmos et al v. Ryan et al

Filing 208

ORDER the reference to the Magistrate Judge is withdrawn as to Plaintiff's motions re 116 , 163 , and 206 . Plaintiff's Motion for Summary Judgment 116 is denied and Plaintiff's Motion to Strike Arguments 206 is denied. Defendan ts' Motion for Summary Judgment 163 is granted in part and denied in part as follows: (a) granted as to the claims in Count III; the claims in Count VII, except for the claim regarding charges related to care and medication for allergies; the claim in Count IX regarding payment for work as an education aide; and the claim in Count XV; and (b) denied as to the remaining claims. Within 45 days of the date of entry of this Order, Defendants may file a new motion for summary judgment. Signed by Judge G Murray Snow on 8/29/13.(TLJ)

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1 WO SVK 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Timothy Olmos, 10 11 12 No. CV 10-2564-PHX-GMS (BSB) Plaintiff, vs. ORDER Charles Ryan, et al., 13 Defendants. 14 15 Plaintiff Timothy 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 moves for partial summary judgment, and the remaining Defendants—Director 18 Ryan and Allen Ortega—cross-move for summary judgment on all remaining claims.1 19 (Docs. 116, 163.) 20 Defendants’ Reply. (Doc. 206.) 21 Plaintiff also submits a Motion to Strike Arguments within The Court will deny Plaintiff’s motions and grant Defendants’ motion for 22 summary judgment in part and deny it in part. 23 I. Background 24 On screening of Plaintiff’s First Amended Complaint, the Court directed 25 Defendant Charles L. Ryan to answer several Counts and Defendant Allen Ortega to 26 answer one Count. (Doc. 27.) The remainder of the Defendants and claims were 27 28 1 The Court provided Plaintiff Notice pursuant Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) of Plaintiff’s obligation and requirements for responding. (Doc. 166.) 1 dismissed. (Id.) Defendants subsequently filed a Motion to Dismiss. (Doc. 132.) The 2 8 Court dismissed additional claims and determined that the remaining claims are:  Count III (violation of the Eighth Amendment regarding conditions of confinement, including insufficient necessities such as food, clothing, and hygiene products, and overcrowding);  Count VII (violation of due process for charging inmate accounts for photocopies, legal phone calls, legal supplies and legal mail postage, follow-up visits and prescription renewals for chronic diseases, and GED testing);  Count IX (violation of due process for violating state-law inmate-compensation statutes); and  Count XV (violation of the First Amendment by retaliation). 9 (Doc. 152 at 25.) 3 4 5 6 7 10 Plaintiff’s motion for partial summary judgment was filed before the Court issued 11 its Order dismissing additional claims, and his motion addresses several dismissed 12 claims.2 (Doc. 116.) Specifically, Plaintiff moves for summary judgment on Counts VII 13 through XI. (Id.) Thus, the only relevant arguments in Plaintiff’s motion are those 14 related to Counts VII and IX. Defendants respond and cross-move as to all remaining 15 claims. 16 Plaintiff submits his motion (Doc. 116) and numerous exhibits.3 Defendants 17 submit their response and cross-motion (Doc. 163), their Statement of Facts (Doc. 164 18 (DSOF)), and the declaration of Ortega, with attachments (id., Ex. A, Ortega Decl.), the 19 declaration of Linda Finchum, ADC Financial Services Bureau, with attachments (id., 20 Ex. B, Finchum Decl.), and the declaration of G. Denning, Correctional Officer IV, with 21 attachments (id., Ex. C, Denning Decl.). In opposition to Defendants’ motion, Plaintiff 22 23 24 25 26 2 In addition, Plaintiff’s motion, as with many of his other filings (See Docs. 12, 47), exceeds the page limit. 3 Plaintiff also cites to many improperly submitted documents, including Docs. 28, which the Court specifically directed not be filed (Doc. 11), a Memorandum in Support of his Amended Complaint (Doc. 47) with hundreds of pages of exhibits, and a Memorandum Establishing Conformance with 42 U.S.C. § 1997(e) (Doc. 52), which also has hundreds of pages of exhibits. 27 28 -2- 1 submits his Response/Reply (Doc. 195) and a statement of facts and exhibits (Doc. 200 2 (PSOF),4 and a Controverting Statement of Facts (Doc. 187 (PCSOF)). 3 II. Summary Judgment 4 A court “shall grant summary judgment if the movant shows that there is no 5 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 6 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 7 (1986). 8 responsibility of presenting the basis for its motion and identifying those portions of the 9 record, together with affidavits, which it believes demonstrate the absence of a genuine 10 Under summary judgment practice, the moving party bears the initial issue of material fact. Id. at 323. 11 If the moving party meets its initial responsibility, the burden then shifts to the 12 opposing party who must demonstrate the existence of a factual dispute and that the fact 13 in contention is material, i.e., a fact that might affect the outcome of the suit under the 14 governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the 15 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict 16 for the non-moving party. Id. at 250; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 17 Corp., 475 U.S. 574, 586-87 (1986). The opposing party need not establish a material 18 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be 19 shown to require a jury or judge to resolve the parties’ differing versions of the truth at 20 trial.” First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). 21 When considering a summary judgment motion, the court examines the pleadings, 22 depositions, answers to interrogatories, and admissions on file, together with the 23 affidavits or declarations, if any. See Fed. R. Civ. P. 56(c). At summary judgment, the 24 judge’s function is not to weigh the evidence and determine the truth but to determine 25 whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The evidence of 26 27 28 4 Defendants object to the Court’s consideration of PSOF, but the Court has already determined to admit it. (Doc. 199.) -3- 1 the non-movant is “to be believed, and all justifiable inferences are to be drawn in his 2 favor.” Id. at 255. But, if the evidence of the non-moving party is merely colorable or is 3 not significantly probative, summary judgment may be granted. 4 Conclusory allegations, unsupported by factual material, are insufficient to defeat a 5 motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). See 6 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“[c]onclusory, 7 speculative testimony in affidavits and moving papers is insufficient to raise genuine 8 issues of fact and defeat summary judgment”). 9 III. Id. at 248-49. Count III 10 Count III is against Ryan and asserts allegedly unconstitutional conditions of 11 confinement. Specifically, Plaintiff alleges that Ryan fails to provide Plaintiff with 12 “sufficient (a) nutrition that meets the U.S. Department of Agriculture’s latest Dietary 13 Guidelines for Americans, (b) clothing between launderings, (c) hygiene products. . . , (d) 14 cleaning/sanitation supplies, and (e) living facilities.” (Doc. 21 at 5.) Plaintiff also 15 alleges that Ryan houses inmates in overcrowded dorms and does not provide sufficient 16 numbers of security staff, which has led to increases in violence among inmates. (Id.) 17 The Court will grant summary judgment to Ryan on this Count because Plaintiff 18 fails to create a triable issue of fact that Ryan knew of unconstitutional conditions of 19 confinement and ignored them. 20 A. 21 As a minimum standard, the Eighth Amendment requires that prison officials 22 ensure that inmates receive adequate food, clothing, shelter, sanitation, and medical care, 23 and take reasonable measures to guarantee inmates’ safety. Farme v. Brennanr, 511 U.S. 24 822, 832 (1994); Helling v. McKinney, 509 U.S. 25, 32 (1993); Hoptowit v. Ray, 682 F.2d 25 1237, 1246 (9th Cir. 1982). Analysis 26 To demonstrate that a prison official has deprived an inmate of humane conditions 27 in violation of the Eighth Amendment, two requirements must be metCone objective and 28 -4- 1 one subjective. Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000). First, “the 2 prison official’s acts or omissions must deprive an inmate of the minimal civilized 3 measure of life’s necessities.” Id. (internal citation omitted). The subjective prong 4 requires the inmate to demonstrate that the deprivation was a product of “deliberate 5 indifference” by prison officials. Wilson v. Seiter, 501 U.S. 294, 303 (1991). Deliberate 6 indifference occurs only if a prison official “knows of and disregards an excessive risk to 7 inmate health or safety; the official must both be aware of facts from which the inference 8 could be drawn that a substantial risk of serious harm exits, and he must also draw the 9 inference.” Farmer, 511 U.S. at 837. In addition, a deprivation of a constitutional right 10 occurs if the person acting under color of state law “does an affirmative act, participates 11 in another’s affirmative acts, or omits to perform an act which he is legally required to do 12 that causes the deprivation of which [the plaintiff complains].” Leer v. Murphy, 844 F.2d 13 628, 633 (9th Cir. 1988) (alteration in original); see also King v. Atiyeh, 814 F.2d 565, 14 567, 568 (9th Cir. 1987) (to be liable under § 1983, government officials must play an 15 affirmative role in the constitutional deprivation alleged); Monell v. New York City Dep’t 16 of Soc. Servs., 436 U.S. 658, 690-95 (1978). But there is no respondeat superior liability 17 in a § 1983 action so a prison official is not liable merely because he is the supervisor of 18 others. 19 To the extent that Plaintiff objects to Defendant raising the exhaustion issue again, 20 Plaintiff misunderstands Defendant’s arguments. 21 Defendant is not arguing that the claim should be dismissed for failure to exhaust 22 administrative remedies. Rather, Defendant is claiming that Plaintiff cannot show that 23 Ryan was deliberately indifferent to Plaintiff’s conditions of confinement because 24 Plaintiff cannot show that Ryan was aware of them. (Doc. 203 at 3.) (See PSOF ¶ 5; Doc. 195 at 2.) 25 Although a written ADC policy regarding a condition of confinement, such as a 26 Department Order, would likely be sufficient to show that Ryan was aware of a particular 27 condition, the Court notes that Plaintiff does not point to any written policies regarding 28 -5- 1 laundering of clothing or nutrition or the other matters about which he complains.5 2 Because there is no respondeat superior liability in a § 1983 action, even if Plaintiff did 3 experience unconstitutional deprivations, Ryan cannot be liable unless he was aware of 4 the condition. 5 As to the conditions complained of in Count III, although Plaintiff complained in 6 an Informal Resolution about allegedly inadequate nutrition, Plaintiff did not appeal this 7 to the Director’s level. (DSOF ¶¶ 3-4; Doc. 132-1 at 114-15.) Therefore, Plaintiff cannot 8 show that Ryan was aware of the allegedly inadequate nutrition. And even if the Court 9 assumes that Ryan received the grievance about wearing dirty clothing, which alleged 10 that the longest interval between launderings is four days (DSOF ¶ 5), the Court finds 11 that this does not state a constitutional violation; there is no requirement that inmates 12 receive freshly laundered clothing with greater frequency. The Court notes that he is 13 permitted two pair of athletic shorts but also permitted three state-provided boxers and 14 may purchase four. (Doc. 144 at 19.) The Eighth Amendment requires only that inmates 15 be provided with minimum essentials such as adequate food, shelter, clothing, medical 16 care and safety. Helling, 509 U.S. at 32. In addition, Plaintiff admitted in response to the 17 Motion to Dismiss that he did not attempt to grieve any other Count III subclaim. (Doc. 18 132, Pl’s. May 2, 2012, Supp. Resp. to Defs’. First Set of Non-Uniform Interrogatories, at 19 2.) 20 unconstitutional deprivation of hygiene products, or cleaning/sanitation supplies, or 21 insufficient security staff. Therefore, there is nothing to show that Ryan was aware of the allegedly 22 Finally, even if the Court assumes that Ryan received Plaintiff’s grievance about 23 overcrowding (Doc. 132, at 114-115), overcrowding by itself is not a constitutional 24 25 26 27 28 5 Plaintiff submits only a list of permissible clothing and a holiday laundry scheduled for a period not at issue here. (Doc. 144 at 19; Doc. 200, Ex. B (Doc 200-3 at 18.) ) -6- 1 violation. See Hoptowit, 682 F.2d at 1249. Therefore, a grievance alleging overcrowding 2 would not have made Ryan aware of unconstitutional conditions of confinement. 3 In addition, Ryan is entitled to qualified immunity. A defendant in a § 1983 action 4 is entitled to qualified immunity from damages for civil liability if his or her conduct 5 does not violate clearly established statutory or constitutional rights of which a 6 reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 7 The qualified-immunity inquiry “must be undertaken in light of the specific context of 8 the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). 9 “The relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer 10 that his conduct was unlawful in the situation he confronted.” Id. at 202 (emphasis 11 added). The burden is on the plaintiff to show a clearly established right. See Sorrels v. 12 McKee, 290 F.3d 965, 969 (9th Cir. 2002). There is no clearly established right to more 13 clothing than is provided and no clearly established right to more frequent laundry 14 service. And Ryan acted reasonably when he did not address the additional matters about 15 which Plaintiff complains because there is no evidence that he was aware of 16 unconstitutional conditions. 17 18 The Court will grant Ryan summary judgment on Count III. IV. Count VII 19 In Count VII, Plaintiff alleges due process violations regarding ADC policies to 20 charge inmates for various services; those claims for which the Court has determined he 21 exhausted his administrative remedies relate to legal photocopies, legal phone calls, legal 22 supplies, legal-mail postage, follow up doctor visits, prescription renewals, and GED 23 testing costs. Plaintiff also claims that he is improperly charged for chronic care visits 24 and medications. 25 The Court will deny Plaintiff’s Motion for Summary Judgment and deny Ryan’s 26 Motion for Summary Judgment insofar as Plaintiff may have been charged for allergy 27 28 -7- 1 visits and medications. 2 Summary Judgment on Count VII. 3 A. 4 6 7 Analysis 1. 5 The Court will grant the remainder of Ryan’s Motion for Postage, photocopies, telephone calls, and legal supplies (a) No forfeiture As to the claim regarding postage, photocopies, telephone calls, and legal supplies, Plaintiff relies first on Ariz. Rev. Stat. § 13-904(D), which provides that: 8 10 The conviction of a person for any offense shall not work forfeiture of any property, except if a forfeiture is expressly imposed by law. All forfeitures to the state, unless expressly imposed by law, are abolished. 11 (Doc. 116 at 7.) But charging inmates for services provided is not forfeiture. The act of 12 forfeiting is defined as “the loss of property or money because of a breach of a legal 13 obligation.”6 (See e.g., Doc. 164, Ex. B, Attach. 1, DO 905.06 Forfeit of Inmate Earnings 14 Upon Escape.) Plaintiff is not being charged for stamps or legal telephone calls merely 15 because of his status as an inmate but, rather, because he used the services. 9 16 The cases on which Plaintiff relies are inapplicable and do not support his claim of 17 a forfeiture. (See Doc. 195 at 3-4, 14.) In Blum v. State, 829 P.2d 1247 (Ariz. App. 18 1992), inmates challenged an ADC policy regarding disposal of excess property, alleging 19 that it violated a statutory provision requiring return of property upon the prisoner’s 20 parole or discharge—Ariz. Re Rev. Stat. § 31-228(A). 829 P. 2d 1247, 1248. The policy 21 provided that the an inmate was to be notified if any personal property in his or her 22 possession or received while in prison was deemed to be unauthorized property and the 23 inmate would have 90 days in which to notify the property officer of the desired 24 disposition of the unauthorized property; if the inmate failed to designate a disposition of 25 the property, the property would be processed as unclaimed and then disposed of. Id. at 26 27 28 6 Merriam-Webster, http://www.merriam-webster.com/dictionary/forfeiture (last visited June 3, 2013.) -8- 1 1248. The Arizona Court of Appeals held that the prison regulation conflicted with the 2 statute requiring return of property; it noted that the regulation, therefore, caused a 3 forfeiture of the property in violation of Ariz. Rev. Stat. § 13-904(D) because there would 4 be situations where inmates had no means of disposing of the property to safeguard it. Id. 5 at 1251-52. In the present case, charging for stamps and photocopying actually used does 6 not violate a specific statute. 7 Ill. Dep’t of Corrs. v. Hawkins, 952 N.E. 2d 624 (Ill. 2011) is also inapposite. In 8 Hawkins, the Illinois Supreme Court considered an Illinois statute that provided that the 9 assets of a committed person could be subject to a claim for reimbursement by the Illinois 10 Department of Corrections. Id. at 632. The Illinois Court concluded that under the 11 relevant Illinois statutory scheme, a portion of the wages earned in prison programs was 12 exempt from collection. Id. at 634-35. Likewise, Nelson v. Heiss, 271 F. 3d 891, 896 13 (9th Cir. 2001) does not apply. There, the Ninth Circuit held that funds in an inmate 14 account that came from payments of Veteran’s Disability Benefits could not be used by 15 the prison to reimburse itself for copying costs or dental appliances because 38 U.S.C. § 16 5301(a) specifically exempted such funds from claims of creditors and provided that the 17 funds were not subject to attachment, levy, or seizure. 271 F.3d at 893-94, 896. Again, 18 in the present case, charging for stamps and photocopying used does not violate a specific 19 statute. 20 (b) No need for express statutory authority 21 Plaintiff also relies on the absence of express authority for the ADC Director to 22 charge inmates for these services. (Doc. 116 at 7.) But Arizona does not require express 23 authorization from the legislature for agency action. 24 As to Ryan’s authority, the issue is not whether there is express authorization from 25 the legislature to charge inmates for postage, photocopies, and the other items but 26 whether the regulations, or in this case the policies, as adopted “may be reasonably 27 implied from a consideration of the statutory scheme as [a] whole to carry out the 28 -9- 1 purposes and intent of the legislative mandate.” Longbridge Inv. Co., v. Moore, 533 P.2d 2 564, 567 (Ariz. App. 1975), quoting State of Arizona v. Arizona Mines Supply Co., 107 3 Ariz. 199, 484 P.2d 619 (1971). Legislative authority need not be set out in express 4 terms; “it is the law of this state that an agency may promulgate regulations which may 5 be reasonably implied from ‘a consideration of the statutory scheme as a whole.’” Id; see 6 Ethridge v. Ariz. State Board of Nursing, 796 P.2d 899, 906-07 (App. Ariz. 1990). The 7 court in Longbridge found that the very nature of the liquor industry and its effect upon 8 the health and welfare of the public subjects it to strict regulation and reasoned that under 9 the mandates of State v. Arizona Mines Supply, a delegation of rule-making power to the 10 Superintendent and the Board of the Department of Liquor Licenses should be liberally 11 construed. 12 “unprofessional conduct” is sufficient to guide the Board in its exercise of delegated 13 discretion where the purpose of the statute authorizing the Board to adopt rules and 14 regulations was to protect the public health, safety and welfare. 796 P.2d at 906-07. 15 533 P.2d at 568. Likewise, the court in Ethridge held that the term Thus, Plaintiff’s reliance on Smith v. Dep’t. of Corrs., 920 So. 2d 638 (Fl. 1 Dist. 16 App. 2003), is misplaced. 17 allowing the Florida Department of Corrections to charge inmates for photocopying was 18 invalid because it exceeded the legislature’s grant of rulemaking authority. Id. at 643. 19 But the Florida court relied on the language of a Florida statute—and Florida case law 20 interpreting that statute—that required an express statutory grant of authority to validate 21 any agency rule-making. Id. at 641. That is not the law in Arizona. In Smith the Florida state court found that a regulation 22 As Defendant asserts, under Ariz. Rev. Stat. § 41-1604(A), the Director possesses 23 broad powers and wide discretion with respect to his responsibility “for the overall 24 operations and policies of the department” and to “[m]aintain and administer all 25 institutions and programs within the department.” (Doc. 163 at 3.) Ariz. Rev. Stat. §41- 26 1604(B) provides Ryan with authority to “[a]dopt rules to implement the purposes of the 27 department and the duties and powers of the director” and “[t]ake any administrative 28 - 10 - 1 action to improve the efficiency of the department.” (Id.) In addition, Ariz. Rev. Stat. 2 § 31-230(B) states that “[t]he Director shall adopt rules and regulations for the 3 disbursement of monies from prisoner spendable accounts.” In Ward v. Ryan, 623 F. 3d 4 807, 811(9th Cir. 2010), the Ninth Circuit held that statutes creating a property interest in 5 prison wages did not give inmates full and unfettered right to their property, the inmate 6 did not have a property right in wages withheld in a dedicated discharge account, and the 7 Director had authority to regulate inmate usage of funds in the prisoner spendable 8 accounts, citing § 31-230(B). 9 The Court holds that as with Longbridge and the liquor industry, the nature of 10 corrections and its effect on employees, inmates, and the public subject it to strict 11 regulation and that delegation of rule-making power should be liberally construed. The 12 Court finds that the policies in question can be reasonably implied from “a consideration 13 of the statutory scheme as a whole” because they relate to the operations of ADC and 14 administration of programs within ADC. 15 (c) No state-created right 16 In addition, Plaintiff’s claim fails because he cannot demonstrate a state-created 17 right to postage, photocopies, telephone calls and legal supplies at state expense. In Piatt 18 v. MacDougall, the plaintiff inmate sued the Director of ADC alleging that the former 19 version of Ariz. Rev. Stat. § 31-254 created a property right to wages from his workshop 20 job—wages that he had not received.7 773 F.2d 1032, 1036 (9th Cir. 1985). The former 21 version of § 31-254 provided that 22 A. Each prisoner who is engaged in productive work in any state prison or institution under the jurisdiction of the department of corrections as a part of the prison industries program shall receive for his work such compensation as the director of the department of corrections shall determine. Such compensation shall be in accordance with a graduated schedule based on quantity and quality of work performed and skill 23 24 25 26 27 28 7 254. Count IX raises wage issues under the current version of Ariz. Rev. Stat. § 31- 11 - 1 2 3 required for its performance, but in no event shall such compensation exceed fifty cents per hour unless, pursuant to § 41–1624.01, the director enters into a contract with a private person, firm, corporation or association in which case such compensation shall be as prescribed by the person, firm, corporation or association, but shall not be below the minimum wage. 4 Ariz. Rev. Stat. § 41–1624.01(A) stated that the director shall compensate prisoners for 5 their services pursuant to § 31–254. In Piatt, the court held that the language of the 6 statute was unambiguous and, accepting the plaintiff’s assertions as true that he engaged 7 in productive work as a prisoner, he was entitled to compensation; further, if his work 8 was done as part of a contract with a private entity, he was is entitled to pay at least equal 9 to the minimum wage. 773 F.2d at 1032. In addition, because Arizona provided a right to 10 compensation for work performed for private parties, the right could not be denied 11 without due process. Id. 12 The court then determined that the failure to compensate was not random and 13 because statutes mandated compensation, failure to compensate was unauthorized. The 14 court concluded that the state was under a constitutional obligation not to deny the inmate 15 his wages without affording him a meaningful opportunity to be heard at the time the 16 wages were due; that is, a post-deprivation remedy was not sufficient. Id. at 1037. 17 Thus, in Piatt, the inmate was able to identify specific state statutory language 18 creating an unambiguous property right. 19 creating a right to stamps, photocopies, etc. at state expense. In Piatt, the court reasoned 20 that the inmate’s federal due process claim would “succeed or fail in part depending upon 21 whether he had a property right to wages from his workshop work.” 22 Because Plaintiff has no property right to stamps, photocopies, etc. at state expense, his 23 due process claim fails. But here, Plaintiff points to no language Id. at 1035. 24 The Court also finds that Ryan is entitled to qualified immunity on this claim. 25 There is no clearly established right for an inmate to receive the services and items in 26 question free of charge. See Harlow, 457 U.S. at 818. 27 28 - 12 - 1 2. 2 3 Charges for “chronic care” Plaintiff’s claim that Ryan improperly charges for chronic care has more merit but it, too, ultimately fails, except for his claim regarding allergies. 4 Under Ariz. Rev. Stat. § 31-201.01 (I), the director is to exempt certain inmates or 5 medical visits by inmates from payment of medical and health services fees and fees for 6 prescriptions, medication or prosthetic devices, including “inmates who are undergoing 7 follow-up medical treatment for chronic diseases.” DO 1101 provides for health care 8 fees to be deducted from inmate accounts and that “no one shall waive the payment of 9 health care fees, except in the following situations: . . . Inmates who undergo follow-up 10 health treatment specifically for their chronic conditions per provider request.” (Doc. 11 164, Ex. B, Attach. 3, DO 1101 at 21-22 (164-1 at 105-06.)) The DO also states the 12 following: 13 [c]hronic conditions requiring regular examinations and/or treatment: cancer, diabetes, hypertention, seizure disorder, heart disease, respiratory disease, tuberculosis, HIV/AIDs, serious mental illness (and other mental illnesses of inpatients at the Alhambra Special Psychiatric Hospital and the Flamenco mental Health Center,) or any condition requiring regular examinations and or treatment that are directly related to a qualifying disability, as defined by 42 U.S.C. [§] 12102(2) of the Americans with Disabilities Act. Arizona Department of Corrections health care providers shall determine whether regular examinations and or treatment are directly related to a qualifying disability. There is no health care fee for these conditions. 14 15 16 17 18 19 20 21 22 (Id. at 21-22.) But the definitions state that chronic conditions include allergies and 23 developmental disabilities, as well as the conditions listed in the material quoted above. 24 (Id.) 25 The Court is not persuaded by Ryan’s argument that the determination as to 26 whether a condition is chronic is made by the provider (DSOF ¶ 10); that language 27 appears to apply only to conditions that may qualify under the ADA. In fact, the DO 28 - 13 - 1 contains a list of specific chronic conditions. But Plaintiff has the burden to show a state- 2 created property interest, and he cannot establish an unambiguous right to most of the 3 free chronic care he seeks. The statute on which Plaintiff relies contains no definition of 4 “chronic diseases”; it certainly does not specify the conditions to which Plaintiff asserts a 5 right to free care. Compare Piatt, 733 F.2d at 1036 (the language of the Arizona inmate 6 wage statute is unambiguous). Although Plaintiff argues that Ryan should be bound by 7 the “the common and approved” use of the term, Plaintiff does not explain what that is. 8 In fact, the Centers for Disease Control have recently noted the lack of consistency in the 9 definition of chronic diseases and conditions.8 The Court finds that Ryan had authority to 10 promulgate DO 1101 and that it does not conflict with the language of Ariz. Rev. Stat. § 11 31-201.01(I). Because Plaintiff cannot establish a property right to free medical care for 12 most of the conditions about which he complains, Plaintiff has no property right protected 13 by due process. See Piatt, 773 F.2d at 1035. 14 However, the policy itself defines allergies as a chronic condition. (Doc. 164, Ex. 15 B, Attach. 3, DO 1101 at 21 (164-1 at 105.)) 16 prescriptions, and medications for chronic diseases should be exempted from fees. 17 Plaintiff asserts that he has been charged for these items, although he does not submit 18 proof of this claim. His charts at Doc. 47-2, 37G-38G, list only medical visits and 19 medications but do not specify what these were for. Therefore, the Court will deny 20 summary judgment to Plaintiff. But because it appears that Plaintiff may have been 21 improperly charged for allergy treatments and visits because the policy is contradictory or 22 inconsistent, the Court will deny summary judgment to Ryan. 23 treatment of a chronic condition violates state law. 24 constitutional obligation not to deny Plaintiff free care without affording him a Under § 31-201.01(I), treatment, Charging fees for In addition, the state had a 25 26 27 28 8 http://www.cdc.gov/pcd/issues/2013/12_0239.htm (last visited August 20, 2013). - 14 - 1 meaningful pre-deprivation opportunity to be heard, which the state apparently did not 2 do. See Piatt, 773 F.2d at 1036. 3 Further, as to as to the conditions other than allergies, the Court finds that Ryan is 4 entitled to qualified immunity because there was no clearly established right to have the 5 conditions about which Plaintiff complains deemed chronic. 6 allergies, the Court finds that Defendant is not entitled to qualified immunity because the 7 DO 1101 defines allergies as a chronic condition but excludes them from the list of 8 conditions for which no fee will be charged. 9 prohibiting fees for follow-up chronic care and the lack of a pre-deprivation opportunity 10 to be heard, the Court cannot find that Ryan acted reasonably as to any charges for 11 allergy care and medication. As to treatment for In view of the statutory language 12 The Court will grant Defendant’s motion for summary judgment on Count VII 13 except for the issue regarding charges for chronic care for allergies and will deny 14 Plaintiff’s motion. The remaining issues for determination are whether Plaintiff has 15 allergies, whether he was charged for follow-up visits and treatment, and if so, how 16 much. See id. at 1037. Plaintiff also seeks injunctive relief. (Doc. 21 at 6.) 17 V. Count IX 18 Plaintiff asserts that he was undercompensated for his work performed for ADC’s 19 food service contractor and for his work as an education aide. He also asserts that he was 20 not paid a $.05 per hour raise to which he was entitled. 21 The Court will deny summary judgment, without prejudice, to both parties 22 regarding the kitchen work. The Court will grant summary judgment to Ryan and deny 23 summary judgment to Plaintiff regarding the downgrade of the education aide position. 24 The Court finds that the claim for a $.05 per-hour raise based on performance is beyond 25 the scope of the First Amended Complaint. 26 /// 27 /// 28 - 15 - 1 1. Kitchen worker 2 Regarding Plaintiff’s claim for under-compensation as a kitchen worker, Plaintiff 3 relies on two state statutes, including Ariz. Rev. Stat. § 31-254. (Doc. 116 at 10, 21.) As 4 noted in the discussion of Count VII, the Ninth Circuit addressed a prior version of § 31- 5 254 in Piatt. 6 unambiguously created a right to compensation at the minimum wage for work 7 performed for private parties and that the right could not be denied without due process. 8 Id. at 1036. 9 773 F.2d at 1034, n. 2. There, the court found that the statute But Ariz. Rev. Stat. § 31-254 has been revised since Piatt. It now provides that: 10 11 12 13 14 15 16 17 18 19 A. Each prisoner who is engaged in productive work in any state prison or institution under the jurisdiction of the department or a private prison under contract with the department as a part of the prison industries program shall receive for the prisoner’s work the compensation that the director determines. The compensation shall be in accordance with a graduated schedule based on quantity and quality of work performed and skill required for its performance but shall not exceed fifty cents per hour unless the prisoner is employed in an Arizona correctional industries program pursuant to title 41, chapter 11, article 3. If the director enters into a contract pursuant to § 41-1624.01 with a private person, firm, corporation or association the director shall prescribe prisoner compensation of at least two dollars per hour. Compensation shall not be paid to prisoners for attendance at educational training or treatment programs, but compensation may be paid for work training programs. 20 21 (Emphasis added.) 22 (ACI), which is a program pursuant to Ariz. Rev. Stat. § 41-1622(B). Ariz. Rev. Stat. § 23 41-1624.01 provides that: 24 25 26 27 28 Section § 41-1624.01 relates to Arizona Correctional Industries A. The director shall compensate prisoners for their services pursuant to § 31-254. B. The director or his designee may contract with any state agency, political subdivision or state department or any private person, firm, corporation or association to provide services or labor rendered by prisoners. - 16 - 1 2 C. All monies derived from contract services provided pursuant to subsection B of this section shall be deposited in the fund established pursuant to § 41-1624.9 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Reading the relevant provisions of § 31-254 and § 41-1624.01 together, it is apparent that the $2.00 per hour minimum compensation is not triggered by just any contract between the Director or his designee and a private person, firm, corporation or association. Rather such a contract must be one pursuant to § 41-1624.01 (ACI), and it must be to provide services or labor rendered by prisoners. Plaintiff alleges that if the Director enters into a contract with an outside contractor that provides for the contractor’s use of labor and services by inmates the $2.00 per hour minimum applies. (Doc. 116 at 10, 21.) But that is not what the statute says. Moreover, Plaintiff does not allege or provide evidence that the contract with Canteen is one in which ADC contracts to provide services or labor rendered by prisoners; it is more likely that the contract is one for Canteen to provide food services to ADC. Defendant appears to argue that if Plaintiff was paid at a certain amount under the WIPP program, the contract must not have been one requiring the higher wage (DSOF ¶¶ 23, 32, 34); the Court cannot grant summary based on this circular argument. Neither party provides a copy of the contract. determination on this claim without reviewing the contract or contracts in question and other necessary documentation to determine if the director entered into a contract pursuant to § 41-1624.01 with a private person, firm, corporation or association to provide services or labor rendered by prisoners. 2. 23 24 25 26 The Court finds that it cannot make a Education aide Turning to the issue of Plaintiff’s compensation as an education aide, as noted, Ariz. Rev. Stat. § 31-254 provides that prisoners are to receive compensation as 9 Section 41-1624 relates to the ACI revolving fund. 27 28 - 17 - 1 determined by the Director based a graduated schedule that accounts for quantity and 2 quality of work performed and skill required for its performance. To the extent that 3 Plaintiff is arguing that any revisions Ryan makes to the compensation schedule must be 4 applied to all jobs equally or that he cannot reduce the skill level of a particular job (Doc. 5 195 at 16), the Court disagrees. Plaintiff does not like how Ryan has implemented the 6 graduated scale, but the statute creates no right to have the job of education aide 7 designated as the same skill level as tutor or to have pay reductions applied equally; the 8 statute does not refer to particular jobs. Compare Piatt, 733 F.2d at 1036 (the language 9 of the Arizona statute is unambiguous). The Court finds that Ryan has the authority to 10 reduce the skill level of the education aide position to semi-skilled. See Ariz. Rev. Stat. 11 § 41-1604(A) (2) and § 31-254. Because Plaintiff has no state-created right to have his 12 position as education aide classified as skilled or as the equivalent to a tutor position, he 13 has no property right protected by due process. See Piatt, 773 F. 3d at 1036. 14 Alternatively, the Court finds that Ryan is entitled to qualified immunity on this 15 claim because there is no clearly established right to have the job of education aide 16 designated to be a particular skill level. The Court will deny Plaintiff summary judgment 17 on this claim and grant summary judgment to Defendant. 18 3. $.05 per-hour raise 19 Plaintiff has made the issue of the raise needlessly confusing. It appears from a 20 careful reading of his pleadings that Plaintiff is claiming that he is entitled (1) to a $.05 21 per hour raise because his job as an education aide was improperly downgraded from 22 skilled to semi-skilled (Doc. 21) and that he is entitled (2) to a second $.05 per hour raise 23 as a semi-skilled education aide because he has received “overall exceeds” work 24 evaluations for 6 consecutive months while receiving no unsatisfactory ratings in the past 25 12 months (Doc. 116 at 13-14; PCSOF ¶ 30). That is, he claims a second $.05 per hour 26 raise based on work performance. 27 28 The WIPP Pay Scale, which Plaintiff includes in one of his improper filings, - 18 - 1 shows that semi-skilled Phase III inmates earn a base pay of $.30 and maximum pay of 2 $.45. The skilled Phase III inmate has a base pay of $.35 and a maximum pay of $.50. 3 (Doc. 47-3 at 12.) Plaintiff asserts that he is a Phase III semi-skilled inmate, has a GED, 4 which entitles him to $.35 per hour, received one merit increase of $.05 per hour, and 5 now earns $.40 per hour. A second $.05 per-hour raise based on work performance 6 would bring him the maximum Phase III semi-skilled wage of $.45 per hour. 7 In his First Amended Complaint, Count IX, Plaintiff complained about 8 downgrading the skill level of education aides from “skilled to semi-skilled when an 9 automated system (called TOSS) was rolled out without changing any of the duties of the 10 position to reflect the lowered skill level, resulting in a [$.0]5 per hour decrease in 11 compensation.” (Doc. 21 at 5-G.) The Court has disposed of that claim, finding that 12 Ryan had the authority to reduce the skill level of the education-aide position. 13 The second issue—the pay increase based on work performance—was not raised 14 in the First Amended Complaint. (Id.) There is no mention of denial of a merit raise, so 15 Plaintiff=s First Amended Complaint gave no notice of the factual allegations presented 16 for the first time in Plaintiff=s motion for summary judgment. Pickern v. Pier 1 Imports 17 (U.S.), Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (citing Swierkiewicz v. Sorema N.A., 18 534 U.S. 506, 512 (2002)). The Court notes that Plaintiff does not state what period he is 19 referring to so it is not possible to determine if any claim for a second merit pay increase 20 had even accrued at the time of filing the First Amended Complaint or if such a claim 21 was exhausted. The Court will not consider the claim regarding the second merit raise. 22 VI. Count XV 23 Count XV asserts a claim of retaliation by Ortega stemming from Plaintiff sending 24 a letter to the Kansas Department of Corrections (KDC) seeking information about the 25 library. The Court will grant summary judgment to Ortega as to the disciplinary charge 26 and the cell search. 27 /// 28 - 19 - 1 A. 2 A viable claim of First Amendment retaliation contains five basic elements: (1) an 3 assertion that a state actor took some adverse action against an inmate (2) because of 4 (3) that prisoner’s protected conduct and that such action (4) chilled the inmate’s 5 exercise of his First Amendment rights (or that the inmate suffered more than minimal 6 harm) and (5) the action did not reasonably advance a legitimate correctional goal. 7 Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005); see also Hines v. Gomez, 108 8 F.3d 265, 267 (9th Cir. 1997) (retaliation claims require an inmate to show that (1) the 9 prison official acted in retaliation for the exercise of a constitutionally-protected right and 10 (2) the action “advanced no legitimate penological interest”). Retaliation claims must be 11 evaluated in light of the concerns of excessive judicial involvement in day-to-day prison 12 management, and courts must therefore “afford appropriate deference and flexibility” to 13 prison officials in the evaluation of proffered legitimate penological reasons for conduct 14 alleged to be retaliatory. Pratt v. Rowland, 65 F3d 802, 807 (9th Cir. 1995.) Analysis 15 The evidence shows that Department Order 914 at 914.05 § 1.1 requires outgoing 16 inmate mail to include an inmate’s ADC inmate number and full return address, including 17 the name of the complex, unit, and bed location. (Doc. 203 at 8; Doc. 164, Ex. A, Attach. 18 2.) Plaintiff was found guilty of a misdemeanor violation and reprimanded because, 19 although the information he sought from KDC was public and he was enrolled in college 20 at the time as he represented, the return address he used on his envelope did not 21 accurately reflect his status as an ADC inmate. (DSOF ¶¶ 49, 50.) 22 Turning to the disciplinary charge, the Court finds that the undisputed evidence 23 shows that Plaintiff cannot establish a claim of retaliation against Ortega. Alternatively, 24 Ortega is entitled to qualified immunity. 25 First, Plaintiff has no constitutional right to send mail that does not comply with 26 prison rules. Plaintiff does not dispute the validity of the rule, and courts have upheld 27 prison rules requiring identifying information on mail. See Riggins v. Clark, 403 Fed. 28 - 20 - 1 Appx. 292 (9th Cir. 2010); Morrison v. Hall, 261 F.3d 896, 907 (9th Cir. 2001). Second, 2 the Court holds that Plaintiff has not established that Ortega’s conduct constituted a 3 sufficiently “adverse action” to prevail on a claim of retaliation; the undisputed evidence 4 shows that although Ortega wrote Plaintiff up, the charges were later changed by another 5 officer, and Plaintiff was found guilty on the revised charges. (PSOF ¶¶ 31, 34, 36; 6 DSOF ¶¶ 46-50.) Thus, Ortega’s charges were not the basis of the disciplinary action 7 against Plaintiff. See Stoot v. City of Everett, 582 F. 3d 910, 926 (9th Cir. 2009) (the 8 harm to the plaintiff can be traced more directly to an intervening actor). 9 defendants are generally responsible for the reasonably foreseeable consequences of their 10 actions, “liability may not attach if ‘an intervening decision of an informed, neutral 11 decision-maker breaks the chain of causation,’ meaning that the harm to the plaintiff can 12 be traced more directly to an intervening actor.” Id. (quoting Murray v. Earle, 405 F.3d 13 278, 292 (5th Cir. 2005).) Thus, Ortega’s conduct caused no harm. Moreover, Plaintiff 14 concedes that he was found guilty of the revised charges, and the Court found on 15 screening the First Amended Complaint that Plaintiff failed to state a due process claim 16 regarding the disciplinary charges. (Doc. 27 at 22.) Therefore, whether the finding of 17 guilt was correct is not an issue before the Court. While 18 The Court also finds that there was a legitimate penological justification for the 19 charges. Even if the charges as written by Ortega were revised, the new charges also 20 dealt with the same letter to KDC. (PSOF ¶ 34.) Those charges were sustained. Thus, it 21 is beyond dispute that there was a legitimate penological justification for charges against 22 Plaintiff based on the letter to KDC. 23 The Court also finds that Ortega is entitled to qualified immunity on this claim 24 because it would not have been clear to a reasonable officer that he was violating a 25 clearly established right. Ortega charged Plaintiff with fraud for posing as a college 26 student regarding the letter, which did not have the proper identifying information. 27 (DSOF ¶ 46.) Although Plaintiff claims he showed Ortega a text book, Ortega asserts 28 - 21 - 1 that he did not know that Plaintiff was a college student. “A plaintiff=s belief that a 2 defendant acted from an unlawful motive, without evidence supporting that belief, is no 3 more than speculation or unfounded accusation about whether the defendant really did act 4 from an unlawful motive.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 5 1028 (9th Cir. 2001). The Court finds that it would not have been clear to Ortega that his 6 conduct was unlawful in the situation he confronted. 7 In addition, although Ortega did not brief the issue regarding the alleged 8 retaliatory cell search, the Court will dismiss the claim. The Court has found that 9 Plaintiff had no constitutional right to send mail that did not comply with prison rules; 10 therefore, he cannot establish a claim for a retaliatory cell search based on sending the 11 letter to KDC. 12 IT IS ORDERED: 13 (1) The reference to the Magistrate is withdrawn as to the Plaintiff’s Motion 14 for Summary Judgment (Doc. 116), Defendants’ Motion for Summary Judgment (Doc. 15 163), and Plaintiff’s Motion to Strike Arguments within Defendants’ Reply (Doc. 206). 16 17 18 (2) Plaintiff’s Motion for Summary Judgment (Doc. 116) is denied and Plaintiff’s Motion to Strike Arguments within Defendants’ Reply (Doc. 206) is denied. (3) Defendants’ Motion for Summary Judgment (Doc. 163) is granted in part 19 and denied in part as follows: 20 (a) granted as to the claims in Count III; the claims in Count VII, 21 except for the claim regarding charges related to care and medication for allergies; the 22 claim in Count IX regarding payment for work as an education aide; and the claim in 23 Count XV; and 24 25 (b) (4) denied as to the remaining claims. Within 45 days of the date of entry of this Order, Defendants may file a 26 new motion for summary judgment, with appropriate documentation, on the claim in 27 Count IX regarding compensation for work in the kitchen. Plaintiff may file a response 28 - 22 - 1 and cross-motion within 30 days of the date of filing of Defendants’ new motion. 2 Plaintiff’s response and cross-motion, if any, must not exceed a total of 17 pages 3 together, and he must not file any documents independent of his response and cross- 4 motion, if any. The Court will strike any filings submitted by Plaintiff that do not 5 comply with these directions. 6 (5) The remaining claims are the claim in Count VII regarding fees for 7 treatment of allergies, including damages and injunctive relief, and, pending the 8 second motion for summary judgment, the claim in Count IX for compensation as a 9 kitchen worker. 10 Dated this 29th day of August, 2013. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 23 -

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