Brisken v. Griego et al

Filing 173

ORDER ADOPTING REPORT AND RECOMMENDATION - The reference to the Magistrate Judge is withdrawn as to Defendants Thomas and Griego's Motion for Summary Judgment on Counts II and III (Doc. 91 ), Defendant Gilreath's Motion for Summary Judgme nt on Count I (Doc. 93 ); Plaintiff's "Motion to Have Copys (sic) Made of the Grievances Submitted to the Court and Forwarded to the Arizona Medical Board (Doc. 165 ); and Plaintiff's "Motion for an Extension of Time Before A ny Judgment is Made on Summary Jud[g]ement" (Doc. 167 ). Magistrate Judge Eileen S. Willett's Report and Recommendation (Doc. 86 ) is adopted; Defendant Beard is dismissed without prejudice for lack of service. Defendants Thomas and Gri ego's Motion for Summary Judgment on Counts II and III (Doc. 91 ) is granted, and these claims and Defendants are dismissed with prejudice. Defendant Gilreath's Motion for Summary Judgment on Count I (Doc. 93 ) is granted, and Plaintiff 's claim in Count I and Defendant Gilreath are dismissed without prejudice for failure to exhaust available administrative remedies. Plaintiff's "Motion to Have Copys (sic) Made of the Grievances Submitted to the Court and Forwarded to the Arizona Medical Board" (Doc. 165 ) and "Motion for an Extension of Time Before Any Judgment is Made on Summary Jud[g]ement" (Doc. 167 ) are denied as moot. Defendants' Motion to Strike (Doc. 172 ) is denied as moot. There being no claims remaining, the Clerk of Court must enter judgment accordingly and terminate this action. (See document for complete details). Signed by Judge John J Tuchi on 3/18/19. (SLQ)

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SKC

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jhon Nigel Brisken,

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No. CV 16-02434-PHX-JJT (ESW)
Plaintiff,

v.

ORDER

Unknown Griego, et al.,
Defendants.

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Plaintiff Jhon Nigel Brisken, who is currently confined in the Saguaro Correctional

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Center (“SCC”) in Eloy, Arizona, brought this civil rights action pursuant to 42 U.S.C.

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§ 1983. Pending before the Court is Magistrate Judge Eileen S. Willett’s unopposed Report

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and Recommendation (“R&R”), recommending dismissal of Defendant Beard without

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prejudice (Doc. 86), and the following four Motions: (1) Defendants Thomas and Griego’s

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Motion for Summary Judgment on Counts II and III (Doc. 91), (2) Defendant Gilreath’s

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Motion for Summary Judgment on Count I (Doc. 93); (3) Plaintiff’s “Motion to Have

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Copys (sic) Made of the Grievances Submitted to the Court and Forwarded to the Arizona

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Medical Board” (Doc. 165); and (4) Plaintiff’s “Motion for an Extension of Time Before

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Any Judgment is Made on Summary Jud[g]ement” (Doc. 167). Plaintiff was informed of

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his rights and obligations to respond to the Motions for Summary Judgment pursuant to

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Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Docs. 96, 97), and he

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opposes the Motions. (Docs. 101, 102, 103.)

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The Court will accept the R&R, grant the Motions for Summary Judgment, deny as

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moot Plaintiff’s Motion for Copies and Motion for Extension, and dismiss this action.

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I.

Background

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On screening of Plaintiff’s Third Amended Complaint (“TAC”) under 28 U.S.C.

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§ 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment medical care

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claim in Count I against Defendant Doctors Beard and Gilreath,1 an Eighth Amendment

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conditions of confinement claim in Count II against Defendants SCC Warden T. Thomas

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and Assistant Warden B. Griego, and a Fourteenth Amendment due process claim in Count

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III against Defendants Thomas and Griego and directed all Defendants to answer the claims

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against them. (Doc. 19.)

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II.

R&R

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Magistrate Judge Willett issued an R&R recommending that Defendant Beard be

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dismissed without prejudice for failure to effect timely service pursuant to Rule 4(m).

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(Doc. 86.) No objection has been filed in response, which relieves the Court of its

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obligation to review the R&R. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Thomas

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v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003). The Court will adopt the R&R and dismiss Defendant Beard without prejudice.

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III.

Summary Judgment Standard

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A court must grant summary judgment “if the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

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movant bears the initial responsibility of presenting the basis for its motion and identifying

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those portions of the record, together with affidavits, if any, that it believes demonstrate

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the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

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This Defendant’s name is alternately spelled “Gilwrath” in the TAC and the
Court’s screening Order; the Court herein adopts the spelling used in Defendant Gilreath’s
Answer. (See Doc. 30.)
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If the movant fails to carry its initial burden of production, the nonmovant need not

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produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099,

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1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts

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to the nonmovant to demonstrate the existence of a factual dispute and that the fact in

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contention is material, i.e., a fact that might affect the outcome of the suit under the

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governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable

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jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th

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Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its

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favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however,

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it must “come forward with specific facts showing that there is a genuine issue for trial.”

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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal

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citation omitted); see Fed. R. Civ. P. 56(c)(1).

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At summary judgment, the judge’s function is not to weigh the evidence and

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determine the truth but to determine whether there is a genuine issue for trial. Anderson,

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477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw

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all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited

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materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

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IV.

Plaintiff’s Responses/Verified Complaint

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Plaintiff was informed of the requirements of a response to the Motions for

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Summary Judgment, and he filed multiple documents in which he appears to respond

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collectively to both Motions. (See Docs. 101, 101-1, 102, 103.) But Plaintiff failed to

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comply with the Court’s instructions and the applicable Federal and Local Rules in

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responding to the Motions, including that he must (1) provide a separate statement of facts,

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containing numbered paragraphs corresponding to the numbered paragraphs in

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Defendants’ statements of fact, stating whether he disputes the asserted facts, and (2) cite

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to “the specific admissible portion of the record” supporting his position. (See Docs. 96 &

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97 at 2−3; LRCiv 56.1(b).)

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Although Plaintiff numbered his paragraphs, his numbering does not appear to

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correspond to the numbering in Defendants’ Statements of Fact, and Plaintiff wholly failed

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to cite to any evidence in the record to support his position. Accordingly, where relevant,

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the Court will construe Plaintiff’s verified Complaint as an affidavit in opposition to

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Defendants’ Motions. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations

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in a pro se plaintiff’s verified pleadings must be considered as evidence in opposition to

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summary judgment); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified

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complaint may be used as an affidavit opposing summary judgment if it is based on

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personal knowledge and sets forth specific facts admissible in evidence). Where

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Defendants’ facts are not clearly contradicted by Plaintiff’s allegations in the TAC or other

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evidence in the record, the Court will consider the facts undisputed.

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V.

Defendants Thomas and Griego’s Motion for Summary Judgment

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A.

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Plaintiff is part of a population of Hawaii Department of Public Safety (“HDPS”)

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inmates housed at SCC pursuant to a contract between CoreCivic, which operates SCC,

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and the HDPS. (Doc. 92 (Defs.’ Statement of Facts) ¶¶ 1−3.) Plaintiff is a “mental health

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inmate” who suffers from various mental health issues.2

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Facts

Defendant Thomas has been the Warden at SCC since 2017,3 and Defendant Griego
has been the Assistant Warden at SCC since 2007. (Id. ¶¶ 4−5.)

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Plaintiff alleges that he suffers from Paranoid Schizophrenia and Bipolar Disorder,
but there is no evidence in the record showing he was diagnosed with these conditions,
what his symptoms are, if he is being treated or medicated for these conditions, or to what
extent his conditions/treatment affect his daily functioning.
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Defendants state, in reliance on CoreCivic’s publicly-accessible website, that
Defendant Thomas “return[ed] to SCC as Warden” in 2017. (Doc. 92 ¶ 4.) Defendants’
statement is vague as to what role Defendant Thomas had prior to “return[ing]” to SCC,
and the website information simply states that Thomas “was named warden at [SCC] in
2017”; although it provides lengthy additional facts about Thomas’ prior roles, it does not
state whether Thomas was already working at SCC in another role immediately prior to
becoming Warden or that he had worked at SCC at an earlier time, as Defendants’
statement implies. See CoreCivic “Facility Leader: Todd Thomas, Warden,”
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CoreCivic Policy 10-1, entitled Segregation/Restrictive Housing Unit Management,

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sets forth policies governing inmates assigned to disciplinary segregation at SCC. (Id.

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¶ 10.) Inmates assigned to segregation are also subject to the disciplinary policies and

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procedures in Policies 15-1 and 15-2, which set forth SCC’s offense and penal code and its

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disciplinary procedures. (Id. ¶ 11.)

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Policy 10-1, Section 4(A)(4), limits the amount of personal property inmates in

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segregation are permitted to have in their cells to the items on CoreCivic’s Authorized In-

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Cell Property List. (Id. ¶ 12.) Items not on this list are placed in storage until the inmate is

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released from segregation into the general prison population. (Id.) Also, under Policy 10-

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1, Section 4(B)(1), a Shift Supervisor or someone with higher authority may impose

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additional restrictions on an inmate’s personal property, if deemed necessary, based on an

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individual assessment of the inmate. (Id. ¶ 13.) The factors to consider before imposing

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these “special handling requirements” include, but are not limited to, the inmate’s

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(a) security level, (b) past disciplinary history, and (c) continued disruptive behavior. (Id.)

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Policy 10-1, Section 4(I)(3) provides that inmates may also be placed on temporary

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“property restriction” as necessary, meaning that certain personal items may be temporarily

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removed from an inmate’s cell if they are deemed a threat to inmate safety or facility

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security. (Id. ¶ 14.) Additional provisions allow staff to restrict inmates’ recreation,

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telephone privileges, visitation, and utility/cell furnishings, as the situation requires, for

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legitimate penological reasons. (Id. ¶¶ 15−18.) Policy 10-1 does not require a hearing prior

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to placing a restriction on an inmate in the segregation unit. (Id. ¶ 18.) When imposing a

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property restriction, SCC staff must complete a 10-1E Confinement Activity/Service

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Restriction form and forward it to the Chief of Security, Unit Management, and the Warden

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for approval and provide a copy to the inmate. (Id. ¶ 19.) Restrictions under Policy 10-1,

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Section 4(I), may only be imposed by an Administrative Duty Officer (“ADO”) unless

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http://www.corecivic.com/facilities/saguaro-correctional-center (last visited March 7,
2019).
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immediate action is warranted, in which case the Shift Supervisor may impose a restriction

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on a temporary basis, subject to final approval by an ADO. (Id. ¶ 20.)

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When an inmate is placed on property restriction, all items listed on the Authorized

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In-Cell Property List are removed from the cell, including the inmate’s mattress and bed

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linens, while the inmate typically retains his shirt and boxer shorts. (Id. ¶ 21.) Inmates on

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property restriction are typically provided toilet paper, which is only removed if an inmate

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is found using it in an inappropriate manner, such as for clogging an in-cell toilet, at which

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point it is only provided when needed. (Id. ¶ 24.) The inmate’s mattress and bed linens are

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typically returned from 11:00 p.m. until 5:00 a.m. daily, and the property restrictions

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typically last seven days, after which the Unit Manager or other authorized staff member

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reviews whether to remove or continue the restriction. (Id. ¶¶ 21−23.)

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On approximately November 4, 2014, Plaintiff was placed in disciplinary

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segregation after pleading guilty to C12-Hindering for delaying a face-to-photo count and

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to B9-Use of Vulgar, Abusive, or Obscene Language for using vulgar language toward an

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officer. (Id. ¶ 25; Doc. 92-1, Ex. A (Griego Decl.) ¶ 25.) Per policy, Plaintiff was permitted

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to keep with him the items delineated on the Authorized In-Cell Property List. (Id. ¶ 26.)

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Plaintiff was again placed in disciplinary segregation on February 8, 2015, pending a

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disciplinary hearing and guilty finding for threatening and hindering staff. (Id. ¶ 27.) He

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remained in segregation until April 9, 2015, after which he was returned to the general

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population. (Id.)

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Plaintiff was again sent to disciplinary segregation from November 3, 2015 to

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January 1, 2016, and from July 18, 2016 until at least 30 days after July 25, 2016, after

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being given hearings and found guilty of the following disciplinary offenses: (1) on

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November 3, 2015, threatening a staff member and sexual misconduct; (2) on July 18,

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2016, destruction of property; (3) on July 21, 2016, refusing to take down an obstruction

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from his bunk; and (4) on July 25, 2016, use of obscene language while refusing to uncover

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his head. (Id. ¶¶ 28−29, 34−36, 71.)

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During the periods that Plaintiff was in disciplinary segregation, he was additionally

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placed on property restriction for a total of 7 days from July 21 to 28, 2016. (Id. ¶¶ 35, 63.)4

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This restriction stemmed from Plaintiff’s refusal to take down an obstruction from his

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bunk. (Id. ¶ 36.) In the early morning hours of July 21, 2016, Lt. Burns reported to

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Defendant Griego that Plaintiff had refused to take down an obstruction from his bunk that

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was blocking the staff’s view of Plaintiff and compromising their ability to conduct inmate

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counts and welfare checks. (Griego Decl. ¶ 32.) Lt. Burns told Griego that he and other

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staff gave Plaintiff several verbal directives to take down or move the obstruction to keep

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the head portion of his bunk clear and unobstructed, but Plaintiff responded only by yelling

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obscenities at Lt. Burns. (Id. ¶¶ 33−34.) Based on this report and Plaintiff’s “long history

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of refusing orders, including refusing to uncover his head,” Griego placed Plaintiff on

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property restriction at 4:30 a.m. to prevent Plaintiff from causing further disruption. (Id. ¶¶

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34−36.) The Confinement Activity/Service Restriction Form issued by Griego shows that

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Plaintiff was “to not have any property in his cell. He can only be in a t-shirt and boxers.

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He can have his mattress, blanket and sheet from 11:00 p.m. to 5:00 a.m.” (Doc. 92-1 at

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17.) Plaintiff was not given a hearing prior to the restriction or a way to appeal the sanction.

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(Doc. 18 at 5.)

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Plaintiff testified in his Deposition that he was placed on property restriction “for

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just having a t-shirt hanging off the bunk.” (Doc. 92-1, Ex. B (Pl. Dep.) at 30:24−31:4.) He

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stated that he was upset with Lt. Burns because the t-shirt did not block the view of his

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In the TAC, Plaintiff alleges that he was placed on property restriction “a few times
in November 2016” after having verbal disputes with SCC staff. (Doc. 18 at 4.) This
assertion is too vague to show precisely when or how many times Plaintiff was placed on
property restriction, and it fails to create a question of fact as to the evidence Defendants
present showing only that Plaintiff was placed on property restriction for one 7-day period
in July 2016. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Soremekun v. Thrifty
Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“[c]onclusory, speculative testimony in
affidavits and moving papers is insufficient to raise genuine issues of fact and defeat
summary judgment”); Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2007).

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entire body, and he argued with Lt. Burns, saying “You can see me. Why are you making

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a big deal over a t-shirt draping off the top bunk?” (Id. at 31:12−24.)

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According to Griego, “staff must have an unobstructed view of all inmates when

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conducting their walks and welfare checks. They must be able to see a living, breathing

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person.” (Griego Decl. ¶ 37.) Therefore, when an inmate covers his head, “staff cannot

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properly observe the inmate and cannot complete the welfare checks without incident.”

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(Id.) Additionally, if the inmate continues to refuse to uncover, correctional officers (COs)

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may be required to make a forced entry into the cell, which requires them to physically

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subdue all occupants and compromises the safety and security of staff and inmates. (Id.

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¶ 38.) Griego opines that “[b]y placing [Plaintiff] on property restriction and removing the

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personal property items he was using to obstruct staff’s view, we were able to temporarily

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prevent [Plaintiff] from further disruptions and avoid conflicts with staff.” (Id. ¶ 39.)

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While Plaintiff was on property restriction, all his property listed on the Authorized

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In-Cell Property List, except for his t-shirt and boxer shorts, was removed during the day,

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but between 11:00 p.m. and 5:00 a.m., he was allowed a mattress, two sheets, and one

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blanket, giving him 6 hours access to these items during sleeping hours. (Id. ¶¶ 50−52.) On

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the first day, Plaintiff was given a roll of toilet paper by one of the COs, but this was later

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taken away, and Plaintiff “on occasions” had no toilet paper. (Doc. 92 ¶¶ 56−57; Doc. 18

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at 4.)5 In his Deposition testimony, Plaintiff states that he asked for toilet paper “a couple

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of times” but was told to wait because the COs were busy, and after they took his roll of

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toilet paper back he “cleaned [him]self with water.” (Doc. 29-1. Ex. B. (Pl. Dep.) at

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35:18−22; 36:9−19.) Plaintiff continued to receive all his meals, the opportunity to shave

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and shower at least three times per week, basic hygiene items, and recreation for one hour

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Defendant Griego testifies that Plaintiff had access to toilet paper, but his
testimony appears to be based solely on CoreCivic’s policy requiring that inmates be given
toilet paper, so long as they do not use it improperly, and not on personal knowledge about
what occurred in Plaintiff’s case. (See Griego Decl. ¶ 42.) A declaration used to support
summary judgment must be made on personal knowledge. Fed. R. Civ. P. 56(c)(4).

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a day, five days a week. (Doc. 92 ¶58.) Per policy, he was also able to have legal and social

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visits, receive library services, make telephone calls, and have access to legal materials

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upon request. (Id. ¶¶ 59−60.) He was also able to request and complete various request

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forms, including grievance forms, and to make sick calls. (Id. ¶ 61.)

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While in his cell, Plaintiff had access to a working toilet and was not in restraints.

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(Id. ¶ 62.) The temperature in the housing unit was kept at 70 degrees Fahrenheit. (Id. ¶ 65.)

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Plaintiff describes being in “cold ventilated air” and having “to go underneath the bunk to

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avoid the force of the vent,” which was at the “roof of the cell,” and that going underneath

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the bunk caused him to injure his tailbone. (Doc. 18 at 4.) He also “caught a terrible cold

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from attempting to remain warm and such cold air blowing.” (Id.)

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After Plaintiff’s property restriction was lifted on July 28, 2016, all of Plaintiff’s

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personal property was returned to his cell. (Id. ¶¶ 64−65.) Being placed on property

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restriction should not affect the duration of Plaintiff’s sentence. (Griego Decl. ¶ 48.)

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In addition to being placed on property restriction, Plaintiff received an Inmate

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Disciplinary Report on July 21, 2016 for Failure to Follow and Use of Obscene Language

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when he refused to uncover his head, and he was found guilty of these offenses on July 25,

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2016, at which time he received 30 days disciplinary segregation for his conduct. (Id. ¶ 50;

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Doc. 92-1 at 19−21.) Plaintiff admits that Defendant Thomas did not place him on property

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restriction or have any personal involvement in that decision on July 21, 2016. (Doc. 92-1

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at 43.)

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B.

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The Eighth Amendment’s prohibition against cruel and unusual punishment

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protects prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465

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F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and

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Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). While conditions of confinement may be,

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and often are, restrictive and harsh, they must not involve the wanton and unnecessary

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infliction of pain. Morgan, 465 F.3d at 1045. Prison officials have a duty to ensure that

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prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and

Eighth Amendment Conditions of Confinement Claim

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personal safety. See Farmer, 511 U.S. at 832; Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir.

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1996); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).

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To prevail on an Eighth Amendment conditions-of-confinement claim, plaintiffs

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must meet a two-part test. “First, the alleged constitutional deprivation must be,

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objectively, sufficiently serious” such that the “official’s act or omission must result in the

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denial of the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S.

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825, 834 (1994) (internal quotations omitted). Second, the prison official must have a

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“sufficiently culpable state of mind,” i.e., he must act with “deliberate indifference to

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inmate health or safety.” Id. (internal quotations omitted). Deliberate indifference is a

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higher standard than negligence or lack of ordinary due care for the prisoner’s safety. Id.

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at 835. To be found liable for denying a prisoner humane conditions under the Eighth

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Amendment, a prison official must both know of and disregard an excessive risk to inmate

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health and safety. Id. at 837. As to the knowledge component, “the official must both be

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aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference.” Id. (emphasis added).

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1.

Defendant Thomas

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Defendants argue that Plaintiff’s claim against Defendant Thomas fails at the outset

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because Defendant Thomas did not “return as Warden of SCC until 2017,” after Plaintiff’s

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7-day period of property restriction had already taken place, and Plaintiff admits that

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Defendant Thomas had no involvement in or knowledge of Plaintiff’s restrictions. (Doc. 91

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at 10.) As previously noted, Defendants facts are vague as to when Defendant Thomas

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worked at SCC. At most, the evidence they cite shows only that Defendant Thomas was

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appointed Warden of SCC in 2017, not whether he had any role at SCC immediately prior

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to that or was at SCC at some earlier time, which may have included the time of Plaintiff’s

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property restriction. Plaintiff’s admission that Defendant Thomas did not place him on

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property restriction or have any personal involvement in the decision to do so on July 21,

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2016 is also not competent evidence of Defendant Thomas’ lack of involvement because

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it is not clear that Plaintiff would have personal knowledge of whether Defendant Thomas

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participated in this decision.

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Nonetheless, the lack of any specific allegations about Defendant Thomas’ actions

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in the TAC—or any other evidence in the record that Defendant Thomas knew of and

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disregarded Plaintiff’s alleged injuries—is fatal to Plaintiff’s Eighth Amendment claim,

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which requires a showing that Defendant Thomas both knew of and deliberately

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disregarded substantial threats to Plaintiff’s health or safety. Plaintiff also admits in his

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Response that Defendant Thomas was not at SCC at the time Plaintiff was on property

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restriction. (Doc. 101-1 at 6.) He then argues that Defendant Thomas should still be held

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liable for Plaintiff’s alleged injuries because Defendant Thomas “oversees the prison,” and

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he should be “held accountable for Griego’s actions.” (Id.) But this also is not a basis to

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hold Defendant Thomas liable. There is no respondeat superior liability under § 1983, and

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therefore, a defendant’ s position as the supervisor of persons who allegedly violated

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Plaintiff’s constitutional rights does not impose liability. Monell v. New York City Dep’t of

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Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th

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Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious liability

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is inapplicable to § 1983 suits, a plaintiff must plead that each Government-official

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defendant, through the official’s own individual actions, has violated the Constitution.”

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Iqbal, 556 U.S. at 676. “A plaintiff must allege facts, not simply conclusions, that show

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that an individual was personally involved in the deprivation of his civil rights.” Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

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Absent any facts showing that Plaintiff can satisfy the subjective component of his

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Eighth Amendment claim against Defendant Thomas, this claim fails as a matter of law.

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Accordingly, the Court will grant Defendants’ Motion for Summary Judgment as to

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Defendant Thomas and dismiss Defendant Thomas with prejudice.

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2.

Defendant Griego

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Defendants argue that Plaintiff cannot meet the objective component of his

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deliberate indifference claim against remaining Defendant Griego because none of the

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conditions Plaintiff endured while on property restriction were “sufficiently serious” that

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he was deprived of “the minimal civilized measure of life’s necessities,” and Plaintiff’s

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property restriction was imposed for the legitimate governmental objective of maintaining

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security and order, not unnecessarily to cause pain. (Doc. 91 at 6−7.) They also argue that

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Plaintiff cannot establish the subjective component of this claim because there is no

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evidence Defendant Griego was aware that Plaintiff suffered serious harm and was

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deliberately indifferent to such suffering. (Id. at 9−10.)

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a.

Cold Temperature/Lack of Clothing, Blankets

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The Eighth Amendment guarantees prisoners “adequate heating,” but not

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necessarily a “comfortable” temperature. Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir.

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2010) (quoting Keenan, 83 F.3d at 1091). “One measure of an inadequate, as opposed to

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merely uncomfortable, temperature is that it poses ‘a substantial risk of serious harm.’”

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Graves, 623 F.3d at 1049 (quoting Farmer, 511 US. at 834)).

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Defendants argue that being in a 70-degree climate-controlled environment in only

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boxer shorts and a t-shirt for 7 days did not violate Plaintiff’s Eighth Amendment rights

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because Plaintiff was not stripped of all clothing, the deprivation was only temporary, and

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70 degrees is a reasonable temperature. (Doc. 91 at 7) (citing Garland v. Stanley, No. 1:12-

18

CV-01755-AWI, 2015 WL 1513635, at *5 (E.D. Cal. Mar. 30, 2015) (“[T]emporarily

19

depriving an inmate who remains inside of clothing or blankets does not rise to the level

20

of an Eighth Amendment violation if temperatures are moderate.”)).

21

Given the evidence that the temperature in Plaintiff’s housing unit was climate-

22

controlled at 70 degrees, Plaintiff’s bald reference to the “cold ventilated air” in his cell

23

suggests only that the temperature was uncomfortable to Plaintiff, not that it was so cold

24

that it posed a substantial threat to his health. Plaintiff’s claim that he caught a terrible cold

25

from the temperature is also merely speculative and too conclusory to show that the

26

temperature caused him harm. Absent more specific facts or medical evidence to support

27

this assertion, Plaintiff fails to create a genuine issue of material fact that the temperature

28

- 12 -

1

in his cell was objectively sufficiently serious to give rise to an Eighth Amendment

2

violation.

3

Plaintiff’s related contentions about the forcefulness of the cold air coming out of

4

the ceiling vent—which he claims compelled him to retreat under his steel bunk to escape,

5

whereby he injured his tailbone—create a genuine issue of material fact that the blowing

6

air, compounded by Plaintiff’s lack of full clothing and only semi-available bedding, was

7

objectively sufficiently serious to support an Eighth Amendment claim, at least during the

8

times the air was blowing and Plaintiff had no blankets or other means to cover himself.

9

But even inferring in Plaintiff’s favor that the force of the cold air from the ceiling vent

10

was inhumane, and taking as true that Plaintiff at some point injured his tailbone from

11

crawling underneath his steel bunk to escape the blowing air, Plaintiff provides no evidence

12

that he ever complained to Defendant Griego or any other prison staff about the cold,

13

blowing air in his cell. Thus, even if a reasonable jury could find in Plaintiff’s favor on the

14

objective component of his deliberate indifference claim on this issue, absent any evidence

15

that Defendant Griego was aware of the blowing air issue, these facts are insufficient to

16

support the subjective component of that claim.

17

b.

Limited Mattress/Bedding

18

The Ninth Circuit has held that being made to sleep “without a mattress for only one

19

night is insufficient to state an Eighth Amendment violation.” Hernandez v. Denton, 861

20

F.2d 1421, 1424 (9th Cir. 1988), cert. granted, judgment vacated on other grounds, 493

21

U.S. 801, 110 S. Ct. 37, 107 L. Ed. 2d 7 (1989). This Court has also found that requiring a

22

prisoner to sleep on a cold, hard floor without a mattress or blanket for 7 days, resulting in

23

muscle-aches and difficulty sleeping, was insufficient to constitute an Eighth Amendment

24

violation where the prisoner was under contraband surveillance watch (CSW) for

25

purportedly hiding drugs in his anus, but he continued to receive adequate shelter, food,

26

clothing, and medical care. See Centeno v. Wilson, No. 1:08-CV-1435-FJM, 2011 WL

27

836747, at *1−*3 (E.D. Cal. Mar. 4, 2011), aff’d, 479 F. App’x 101 (“9th Cir. 2012) (“The

28

- 13 -

1

limited deprivation of a mattress, blanket, and shower under the circumstances of this case

2

is insufficient to state an Eighth Amendment violation”).

3

Here, the undisputed evidence shows that, unlike in the above cases, Plaintiff was

4

not deprived of his bed and bedding entirely; rather, he had a steel bunk during the day and

5

access to a mattress, two sheets, and a blanket for 6 hours a night during regular sleeping

6

hours. (Doc. 92 ¶¶ 50−52.) In addition, as in Centeno, Plaintiff’s property restrictions were

7

only for a limited duration that was designed to preserve prison safety and security after

8

Plaintiff repeatedly failed to follow prison rules, not for the wanton and unnecessary

9

infliction of pain. See Centeno, 2011 WL 836747, at *3 (finding no showing “that

10

defendants acted for any purpose other than to follow CSW prison procedure and protocol

11

in order to ensure the recovery of the hidden contraband”). Plaintiff has not shown that

12

having access to a mattress and bedding for only 6 hours a night as part of a temporary, 7-

13

day disciplinary sanction, when he continued to have access to showers, food, basic

14

hygiene supplies, and medical care, was “so extreme as to violate contemporary standards

15

of decency and rise to the level of a constitutional deprivation.” Id. (See Doc. 92 ¶¶ 58−61.)

16

c.

Personal Hygiene/Sanitation

17

A complete denial of personal hygiene items violates the Eighth Amendment. See

18

Keenan, 83 F.3d at 1089-91 (finding disputed issues of fact where the plaintiff alleged the

19

defendants gave him personal hygiene items only when he could pay for them and that his

20

indigency forced him to choose between hygiene items and legal supplies). And subjecting

21

an inmate to lack of sanitation that is severe or prolonged can rise to a constitutional

22

deprivation. Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995) (no Eighth

23

Amendment violation where inmates were shackled to a grate over a pit toilet for a matter

24

of hours); see Hutto v. Finney, 437 U.S. 678, 686-87 (1978) (deprivations that may be

25

tolerable for a few days might become cruel and unusual over longer periods).

26

Here, there is no dispute that Plaintiff had the opportunity to shave and shower at

27

least three times per week, and he had access to a working toilet. (See Doc. 92 ¶¶ 58, 62.)

28

For the first time in his Response, Plaintiff argues in conclusory fashion that he never got

- 14 -

1

toothpaste or soap; he “didn’t brush [his] teeth or use soap the entire week;” and he didn’t

2

think “staff was going to go out of their way to get [him] some e[i]ther.” (Doc. 101 at 6.)

3

In addition to going beyond the allegations in the TAC or Plaintiff’s deposition testimony,

4

these statements are too vague and speculative as to what staff would have provided, if

5

asked, to create a question of material that Plaintiff was deliberately deprived of these basic

6

hygiene supplies.

7

The only genuine dispute of material fact as to hygiene supplies is whether Plaintiff

8

had access to toilet paper. Taking Plaintiff’s assertions in his Deposition testimony as true

9

and construing them in a light most favorable to Plaintiff, Plaintiff only had a partial roll

10

of toilet paper for half a day out of the 7-day period; the COs he spoke to refused to give

11

him toilet paper when he asked, saying they were too busy; and Plaintiff had to clean

12

himself with water. (Doc. 29-1. Ex. B. (Pl. Dep.) at 35:18−22; 36:9−19.)

13

Based on the relatively short duration of this deprivation and Plaintiff’s ability to

14

shower, shave, and clean himself with water, the lack of toilet paper was not a sufficiently

15

prolonged or severe deprivation to constitute a constitutional violation. Additionally, as

16

with Plaintiff’s other complaints, even if a reasonable jury could find that the deprivation

17

of toilet paper over 6 1/2 days was sufficiently serious to satisfy the objective component

18

of Plaintiff’s claim, there is no evidence that Defendant Griego was aware that Plaintiff

19

lacked toilet paper and thereby acted with deliberate indifference by failing to ensure that

20

the COs provided it to Plaintiff. According to Defendant Griego, SCC policy requires that

21

prisoners on property restriction have access to toilet paper and, even if the toilet paper is

22

taken away due to misuse, they may obtain toilet paper “when necessary.” (Griego Decl.

23

¶ 21.) There is no evidence Defendant Griego was told or had reason to believe that these

24

policies were not being followed in Plaintiff’s case from which to infer that Defendant

25

Griego was deliberately indifferent to Plaintiff’s need for toilet paper.

26

d.

Other Conditions

27

Plaintiff does not allege any other specific deprivations in the TAC, and Defendants

28

have produced evidence to show that, even though his access to most of his property was

- 15 -

1

temporarily curtailed, Plaintiff was still given regular meals and access to recreation,

2

medical care, phone calls, library time, visitation, and grievance forms during his 7-day

3

property restriction. Plaintiff once again makes new and vague claims for the first time in

4

his Response that he did not receive “visitation rights phone calls legal or personal or access

5

to (illegible) grievances.” (Doc. 101-1 at 1.) Absent any specific facts showing Plaintiff

6

asked for and was denied these things, however, these new assertions fail to raise a triable

7

issue of fact that Plaintiff was deliberately deprived of any remaining non-property related

8

privileges. Moreover, even if Plaintiff could produce additional facts of other deprivations

9

that a reasonable jury would find severe enough to satisfy the objective component of his

10

Eighth Amendment Claim, there is no evidence Defendant Griego was aware of and

11

deliberately disregarded any additional, non-property related deprivations.6

12

In summary, Defendants have carried their initial burden on summary judgment of

13

showing that Plaintiff was not subjected to sufficiently serious deprivations to satisfy the

14

objective component of his Eighth Amendment claim and that, even if he was, Defendant

15

Griego did not know of and deliberately disregard any substantial risks to Plaintiff’s health

16

and safety. Although Plaintiff’s assertions based on personal knowledge raise some

17

questions of fact bearing on the objective component of his claim, Plaintiff fails to create

18

a genuine issue of material fact that Defendant Griego was aware of any objectively serious

19

deprivations and deliberately disregarded them from which to satisfy the subjective

20

component of his Eighth Amendment claim. Accordingly, the Court will grant Defendants’

21

Motion for Summary Judgment as to Plaintiff’s Eighth Amendment claim against

22

Defendant Griego and will dismiss that claim with prejudice.

23

....

24
25
26
27
28

6

To the extent Plaintiff also appears to claim that being placed on property
restriction was excessively harsh or punitive to him because of his mental health issues
(Doc. 18 at 4), Plaintiff has not put forth any non-conclusory facts or evidence about his
mental health that would allow a jury to make this assessment. Absent such evidence, the
Court cannot conclude that Plaintiff has raised a genuine issue for trial that his treatment
was inhumane due to his mental health.
- 16 -

1
2

C.

Fourteenth Amendment Due Process
1.

Legal Standard

3

In the due process analysis, the Court must first determine whether Plaintiff was

4

entitled to any process, and if so, whether he was denied any constitutionally-required

5

procedural safeguards. Due process is required in the prison context where impositions

6

exceed a prisoner’s sentence in such an unexpected manner that the Due Process Clause is

7

directly implicated. Sandin v. Conner, 515 U.S. 472, 484 (1995) (citing Vitek v. Jones, 445

8

U.S. 480, 491, (1980) (direct liberty interest in avoiding transfer to a mental hospital);

9

Washington v. Harper, 494 U.S. 210, 221-22 (1990) (same for involuntary administration

10

of psychotropic drugs)). But a prisoner may also be entitled to due process protections

11

where the conditions of his confinement “impose[] atypical and significant hardship on the

12

inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484; Mujahid

13

v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995).

14

To determine whether sanctions are atypical and a significant hardship, courts look

15

to (1) the prisoner’s conditions of confinement, (2) the duration of the sanction, and

16

(3) whether the sanction will affect the duration of the prisoner’s sentence. See Keenan, 83

17

F.3d at 1089. “Atypicality” requires not merely an empirical comparison but turns on the

18

importance of the right taken away from the prisoner. See, e.g., Sandin, 515 U.S. at 472

19

(30 days disciplinary segregation not atypical and significant); but see Serrano v. Francis,

20

345 F.3d 1071, 1078-79 (9th Cir. 2003) (placement of a paralyzed inmate in administrative

21

segregation for two months without access to his wheelchair, a proper shower or toilet,

22

exercise equipment, or other accommodations “worked an atypical and significant hardship

23

on [him] in relation to the ordinary incidents of prison life”).

24

2.

Discussion

25

Defendants argue that the conditions of confinement Plaintiff was subjected to

26

during the 7 days he was on property restriction did not implicate due process protections

27

because they were not sufficiently different from the conditions imposed on segregation

28

inmates not on property restriction. (Doc. 91 at 12.) They argue that Plaintiff still received

- 17 -

1

regular meals, some clothing, bedding to sleep on, and toilet paper as needed; he also had

2

access to a toilet, sink, and running water; opportunities to shower and shave and

3

participate in recreation; legal, telephone, and visitation access; access to the grievance

4

process; and medical care. (Id.) Additionally, the restrictions were only for a short duration

5

and did not result in any actual, measurable physical harm; nor did they lengthen the time

6

of Plaintiff’s sentence. (Id. at 12−13.)

7

As to the conditions, the Court has already found that, with the possible exception

8

of the cold, forceful air-flow from the ceiling vent that caused Plaintiff to go under his steel

9

bunk for cover, Plaintiff’s deprivations while on property restriction were not objectively

10

sufficiently serious to pose a substantial threat to his health and safety.7 By the same token,

11

these same conditions—whereby Plaintiff had some clothing; a steel bunk with access to a

12

mattress and bedding for up to six hours a night; access to a working toilet, running water,

13

regular showers, regular meals; and was given the same opportunities for recreation,

14

visitation, library, phone calls, medical, legal, and grievances as all other segregation

15

inmates—do not rise to the level of an “atypical and significant hardship” in the prison

16

context. Sandin, 515 U.S. at 484

17

The duration of this sanction does not call for a different conclusion. Absent more

18

extreme deprivations, the 7-day period of Plaintiff’s property restriction was not excessive.

19

See Hutto, 437 U.S. at 686–87 (“A filthy, overcrowded cell and a diet of ‘grue’ might be

20

tolerable for a few days and intolerably cruel for weeks or months.”) It is also much less

21
22
23
24
25
26
27
28

7

To the extent a reasonable jury could find that the cold air-flow, combined with
having only minimal clothing and semi-available bedding, posed a serious threat to
Plaintiff’s health or safety, there are no facts showing that the inordinately strong air flow
that Plaintiff’s allegations imply was a regular and intended component of the property
restriction sanction, rather than a separate and inadvertent harm in Plaintiff’s particular
case. Additionally, the evidence that Plaintiff’s entire housing unit was climate controlled
at 70 degrees belies that segregation prisoners on property restriction are subjected to
severe climate conditions or are treated differently in this respect to other segregation
prisoners not on property restriction.
- 18 -

1

than the 30 days in disciplinary segregation that the Ninth Circuit in Sandin found did not

2

implicate due process protections. 515 U.S. at 472.

3

Finally, Plaintiff does not allege, and there is no evidence from which to conclude,

4

that being placed on property restriction for 7 days will have any bearing on the overall

5

length of Plaintiff’s sentence.

6

Based on these factors, the 7-day sanction Plaintiff received for rule violations did

7

not impose an “atypical and significant hardship on [Plaintiff] in relation to the ordinary

8

incidents of prison life” such that he was entitled to due process protections. Sandin, 515

9

U.S. at 484, 485. (“Discipline by prison officials in response to a wide range of misconduct

10

falls within the expected perimeters (sic) of the sentence imposed by a court of law.”).

11

Accordingly, Plaintiff cannot show that he was deprived of any constitutionally-

12

required procedural safeguards, and the Court will grant Defendants’ Motion for Summary

13

Judgment on Plaintiff’s Fourteenth Amendment due process claim.

14

VI.

Defendant Gilreath’s Motion for Summary Judgment

15

Defendant Gilreath moves for summary judgment based on Plaintiff’s failure to

16

exhaust his available administrative remedies before filing suit and on the merits of

17

Plaintiff’s Eighth Amendment medical care claims. The Court will address the exhaustion

18

defense before turning to the merits of Plaintiff’s claim. See Albino v. Baca, 747 F.3d 1162,

19

1169, 1171 (9th Cir. 2014) (exhaustion should be decided as early as feasible).

20

A.

21

Under the Prison Litigation Reform Act, a prisoner must exhaust “available”

22

administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a);

23

Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926,

24

934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in

25

accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006).

26

Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523

27

(2002), regardless of the type of relief offered through the administrative process, Booth v.

28

Churner, 532 U.S. 731, 741 (2001).

Legal Standard

- 19 -

1

The defendant bears the initial burden to show that there was an available

2

administrative remedy and that the prisoner did not exhaust it. Albino, 747 F.3d at 1172;

3

see Brown, 422 F.3d at 936-37 (a defendant must demonstrate that applicable relief

4

remained available in the grievance process). Once that showing is made, the burden shifts

5

to the prisoner, who must either demonstrate that he, in fact, exhausted administrative

6

remedies or “come forward with evidence showing that there is something in his particular

7

case that made the existing and generally available administrative remedies effectively

8

unavailable to him.” Albino, 747 F.3d at 1172. The ultimate burden, however, rests with

9

the defendant. Id. Summary judgment is appropriate if the undisputed evidence, viewed in

10

the light most favorable to the prisoner, shows a failure to exhaust. Id. at 1166, 1168; see

11

Fed. R. Civ. P. 56(a).

12

If the defendants move for summary judgment for failure to exhaust and the

13

evidence shows that the plaintiff did, in fact, exhaust all available administrative remedies,

14

it is appropriate for the court to grant summary judgment sua sponte for the nonmovant on

15

the issue. See Albino, 747 F.3d at 1176 (pro se prisoner did not cross-move for summary

16

judgment on issue of exhaustion, but because he would have succeeded had he made such

17

a motion, sua sponte grant of summary judgment was appropriate).

18
19

B.

Facts Relevant to Exhaustion
1.

Plaintiff’s Claim

20

Plaintiff is a Hawaii inmate who has been incarcerated at SCC, which is owned and

21

operated by CoreCivic, since January 22, 2014. (Doc. 94 (Def.’s Statement of Facts)

22

¶¶ 1−3.) Defendant V. Gilreath, D.O. is a physician employed by CoreCivic who is

23

licensed to practice medicine in Arizona and who was assigned to work at SCC from

24

January 2016 to January 2018. (Id. ¶¶ 5−6.)

25

On June 7, 2016, Defendant Gilreath examined Plaintiff and reviewed x-rays of

26

Plaintiff’s right hand, following Plaintiff’s complaints that pins placed to treat an injury to

27

his hand in 2008 needed to be removed, and Defendant Gilreath determined that removal

28

was not medically necessary. (Id. ¶¶ 50−53.) Plaintiff’s claim against Defendant Gilreath

- 20 -

1

in Count I stems from Defendant Gilreath’s failure to remove the pins, refer Plaintiff to a

2

specialist, or provide any therapy for his hand, even though Plaintiff had only 35 per cent

3

use of his hand, and Defendant Gilreath “was aware of the condition of [Plaintiff’s] hand

4

and that [his] hand was becoming worse.” (Doc. 18 at 6.)

5

2.

CoreCivic’s Grievance Policy

6

CoreCivic Policy 14-5 sets forth the inmate grievance procedures at SCC, which

7

have been in effect since Plaintiff first arrived at SCC on January 22, 2014. (Id. ¶¶ 64−65.)

8

Upon arrival at the facility, SCC provides each inmate a copy of the Inmate Handbook,

9

which contains a summary of the grievance policies and procedures in Policy 14-5. (Id.

10

¶ I66; Doc. 94-1 at 13−14.) Inmates also receive verbal instruction on how to use the inmate

11

grievance process from SCC staff during orientation, and copies of SCC’s grievance policy

12

and summaries are available to inmates in the library and housing units. (Doc. 94

13

¶¶ 68−69.) On January 30, 2014, Plaintiff signed a checklist showing he had received a

14

copy of the Inmate Handbook and verbal instruction on the grievance policy. (Doc. 94

15

¶¶ 67, 70; Doc. 94-1 at 16.)

16

The Inmate Handbook provides that inmates will not be harassed, punished, or

17

disciplined for seeking resolution of legitimate complaints in good faith. (Doc. 94 ¶ 73.)

18

But if an inmate demonstrates a pattern of abuse of the grievance system that causes

19

unnecessary burdens at the expense of legitimate complaints, the Warden or a designee

20

may limit the number of grievances an inmate may file. (Id. ¶ 74.) Improperly filed

21

grievances may also be returned without staff review. (Id. ¶ 75.)

22

Pursuant to Policy 14-5, inmates must first attempt to resolve any issues informally

23

by submitting a request for service to the appropriate staff member. (Doc. 94 ¶ 79.) For

24

health care related issues, inmates must submit a Medical Request Form to the Case/Unit

25

Manager, who forwards it to the appropriate staff for a response. (Id.) If the inmate is not

26

satisfied with the response, the next step is to submit an Informal Resolution Form (Form

27

14-5A) with a copy of the Medical Request Form attached. (Id. ¶ 80.) Segregation Inmates

28

may submit Form 14-5A to any staff member in their assigned units, and the staff member

- 21 -

1

then places the form in the grievance box located in the inmate’s housing pod in plain view

2

of the inmate. (Id.)

3

All Informal Resolution Forms are directed to the Grievance Coordinator, who

4

assigns each form a number and a case manager to investigate the inmate’s claims. (Id.

5

¶ 82.) The Case Manager has 7 days to investigate and another 8 days to return a response

6

to the inmate. (Id. ¶ 83.) If the inmate is dissatisfied with the Case Manager’s response, he

7

may file a formal grievance by submitting an Inmate/Resident Grievance Form (Form

8

14-5B) to the Grievance Coordinator within 5 days of the response, and he must attach a

9

copy of the Medical Request Form. (Id. ¶¶ 84−86.) These items are placed in a sealed

10

envelope marked “Grievance” and may be placed in the grievance mail box or forwarded

11

to the Grievance Coordinator by a staff member. (Id. ¶ 87.)

12

The Grievance Coordinator checks grievance mailboxes daily, except for weekends

13

and holidays, and staff must give grievances to the Grievance Coordinator. (Id. ¶ 88.) The

14

Grievance Coordinator date-stamps and initials all Informal Resolutions and

15

Inmate/Resident Grievances upon receipt. (Id. ¶ 89.) All valid Informal Resolutions and

16

Grievances are also assigned a number and logged into the Inmate Grievance Log, and

17

copies are placed in the inmate’s grievance file and given to the inmate for his records. (Id.

18

¶ 90.)

19

The Grievance Coordinator or a designee must investigate and render a decision on

20

the Inmate/Resident Grievance within 15 days of receipt, and if the inmate is unsatisfied

21

with the decision, he has 5 days to submit an appeal to the Warden, after which the Warden

22

or a designee will have 15 days to respond to the appeal. (Id. ¶¶ 91−93.) The Warden’s

23

decision is final and marks the completion of the grievance process. (Id. ¶ 93.)

24

3.

Plaintiff’s Grievances

25

Defendant submits copies of Plaintiff’s relevant grievances and the declaration of

26

SCC Grievance Coordinator, J. Valenzuela, who searched Plaintiff’s grievance file and

27

determined that Plaintiff filed the following grievances about his hand since his arrival at

28

SCC. (See Doc. 94-1, Ex. A (Valenzuela Decl.) ¶¶ 1, 46; Doc. 94-1, Ex. 1-D.)

- 22 -

1

On March 10, 2016 Plaintiff submitted a Medical Request, in which he stated that

2

he was in pain and had to have the pins in his hand taken out, to which staff responded on

3

March 11, 2016 that an appointment had been made with the Nurse. (Doc. 94-1 at 25.)

4

On April 3, 2016, Plaintiff filed another Medical Request, stating that he had to have

5

pins taken out of his hand and his hand was hurting. (Id. at 22.) The staff response to this

6

request, dated April 4, 2016, states “you have an appt (illegible) with Doctor for physical.”

7

(Id.)

8

On April 25, 2016, Plaintiff filed an Informal Resolution, No. 16-04-13, in which

9

he stated that he was “not happy” with this response and “I need to get these pins taken out

10

of my hand[.] They took my x Ray.” (Id. at 20.) The “Staff Response” portion of this

11

Informal Resolution, dated May 2, 2016, states, in part, “Your recent x ray shows wires in

12

place. You have been evaluated multiple times by different providers. Ortho consult was

13

denied by Hawaii in Feb last year. Provider reports no loss of grasping ability” and “Per

14

provider ‘even if hardware removed, bump on top of wrist will not go away.’” (Id. at 21.)

15

On April 29, 2016, 4 days prior to the above response, Plaintiff filed another

16

Informal Resolution, No. 16-04-20, dated January 1, 2016,8 in which he stated that he had

17

four pins in his hand from an operation before he got arrested on his charges, and he had

18

tried to live with them, “but the pain is to[o] great” to believe what the prison medical unit

19

doctor told him, which was that “the pins have been there for to[o] long” and removing

20

them would require a “trip to the ER which has been denied.” (Doc. 94-1 at 24.) Plaintiff

21

stated that the pins had to be removed and he “can[‘]t do push up ect (sic) without feeling

22

sharp pain in [his] hand.” (Id.) This Informal Resolution was marked as a “duplicate” and

23

the “Staff Response” section states “this issue was addressed on informal resolution

24

received 4-25-16.” (Id. at 26.)

25
26
27
28

8

Defendant does not state whether this Informal Resolution had been previously
filed or otherwise explain why it was dated January 1, 2016.
- 23 -

1

Plaintiff did not submit any Inmate/Resident Grievances related to Informal

2

Resolutions 16-04-13 and 16-04-20; Plaintiff only submitted one Formal Grievance since

3

his arrival at SCC, and it was not related to the pins in his hand. (Valenzuela Decl. ¶ 48.)

4

Plaintiff was placed on Grievance Restriction from July 6, 2016 to December 7,

5

2016 for filing duplicative and frivolous grievances that hindered the Grievance and

6

Medical Departments. (Doc. 94 ¶ 114.) These included, but were not limited to, Informal

7

Resolutions 16-04-13 and 16-04-20. (Id.) During his period on Grievance Restriction,

8

Plaintiff was still permitted to submit two grievances at a time. (Valenzuela Decl. ¶ 53.)

9

4.

Discussion

10

Defendant Gilreath argues that Plaintiff failed to exhaust his administrative

11

remedies as to his medical care claim because, during the time Plaintiff was at SCC, he

12

only submitted two Informal Resolutions related to the pins in his right hand on April 25

13

and 29, 2016, neither of which was related to the care he received from Defendant Gilreath

14

on June 7, 2016, and Plaintiff never submitted any Inmate/Resident Grievances regarding

15

the pins in his hand or Defendant Gilreath’s treatment of Plaintiff.

16

Based on these facts and the additional facts regarding the availability of SCC’s

17

grievance process to Plaintiff, Defendant Gilreath has met his initial burden of showing

18

that SCC had a grievance process that was available to Plaintiff at the relevant time of his

19

alleged injuries and Plaintiff failed to exhaust his administrative remedies with respect to

20

his medical care claim against Defendant Gilreath. Plaintiff must therefore produce

21

evidence to show either that he did, in fact, exhaust his administrative remedies or that he

22

was effectively prevented from doing so.

23

Plaintiff admits that he did not exhaust his administrative remedies. On the form

24

Complaint, Plaintiff marked that (1) administrative remedies were available at SCC, (2) he

25

submitted a request for administrative relief as to his claim against Defendant Gilreath in

26

Count I, and (3) he did not appeal his request for relief to the highest level. (Doc. 18 at 3.)

27

In explanation, Plaintiff wrote “I was placed on grievance restriction a policy in

28

place at [SCC].” (Id.) Plaintiff does not explain in his Response, however, how being on

- 24 -

1

grievance restriction prevented him from completing the grievance process with respect to

2

his claim against Defendant Gilreath, particularly where the evidence shows that, while on

3

grievance restriction, Plaintiff was still permitted to file two grievances at a time. (See

4

Valenzuela Decl. ¶ 53.) Absent additional facts showing how this restriction effectively

5

prevented Plaintiff from grieving his medical care complaints against Defendant Gilreath,

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Plaintiff has not shown that the grievance process was effectively unavailable to him such

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that his failure to exhaust his administrative remedies should be excused.

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Plaintiff also argues in his Response, in contrast to his assertions in the TAC, that

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he did, in fact, exhaust his administrative remedies as to his claim against Defendant

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Gilreath in Count I. (Doc. 102 at 4.) But he makes only vague claims about what he

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“bel[i]eve[s]” he filed and the answers he received. (Id.) He states that “the final faze (sic)

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of the grievance was answered by Warden Taylor . . . before Warden Thomas came back

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from Texas and replaced Taylor sometime in Sept 2016.” (Id.) These unsupported

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assertions are both in conflict with Plaintiff’s representations in the TAC and too vague to

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show what issue(s) Plaintiff grieved and when to show that he exhausted his administrative

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grievances with respect to his medical care claim against Defendant Gilreath.

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Plaintiff also claims that he submitted copies of the grievances he completed to the

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highest level when he filed his original Complaint, so these grievances “should already be

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in the Court’s possession.” (Id. at 6.) It is not the Court’s role to pour through the record to

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find evidence to oppose summary judgment; rather, as explained in the Court’s Rand

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Notices to Plaintiff, Plaintiff must cite to “the specific admissible portion of the record

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supporting [his] position. (Docs. 96 & 98 at 2 (citing LRCiv 56.1(b)).

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Due to Plaintiff’s pro se status, the Court has, nonetheless, made an attempt to

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identify any final grievances in the more than 60 pages of statements and other documents

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Plaintiff appended—without citation—to his original Complaint. This evidence shows that

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Plaintiff filed numerous and frequent Medical Requests; three Inmate/Resident Grievances

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and an Appeal regarding wanting to see the eye doctor (Doc. 1 at 40, 45, 49; Doc. 1-1 at

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15.); one undated Inmate/Resident Grievance regarding wanting the “hardware” removed

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from his hand (Doc. 1-1 at 11−12); and on June 6, 2016, he was issued an Excessive Filing

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Restriction, limiting him to submitting only two Grievances/Informal Resolutions at a time,

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and stating that “[o]nce the issues have been completed you may file another two (2) more.”

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(Doc. 1-1 at 20.) There is no evidence in these attachments, as Plaintiff suggests, that he

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appealed any grievances related to the treatment of his hand to the highest level.

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Because Defendant Gilreath has met his burden of showing that SCC had an

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administrative grievance process available to Plaintiff and Plaintiff failed to exhaust his

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administrative remedies, and Plaintiff fails to create a genuine issue of material fact either

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that he, in fact, exhausted those remedies or the grievance process was effectively

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unavailable to him, the Court will grant Defendant Gilreath’s Motion for Summary

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Judgment on non-exhaustion grounds and will dismiss Count I.

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Due to this dismissal, the Court need not discuss the merits of Plaintiff’s medical

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care claim against Defendant Gilreath. The Court will also dismiss as moot Plaintiff’s

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Motion for Copies and Motion for Extension, both of which pertain solely to requests to

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help Plaintiff more fully develop the merits of this claim. (See Doc. 165 ¶¶ 2−5; Doc. 167

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¶¶ 4−5.)

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IT IS ORDERED:

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(1)

The reference to the Magistrate Judge is withdrawn as to Defendants

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Thomas and Griego’s Motion for Summary Judgment on Counts II and III (Doc. 91),

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Defendant Gilreath’s Motion for Summary Judgment on Count I (Doc. 93); Plaintiff’s

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“Motion to Have Copys (sic) Made of the Grievances Submitted to the Court and

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Forwarded to the Arizona Medical Board” (Doc. 165); and Plaintiff’s “Motion for an

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Extension of Time Before Any Judgment is Made on Summary Jud[g]ement” (Doc. 167).

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(2)

Magistrate Judge Eileen S. Willett’s Report and Recommendation (Doc. 86)

is adopted; Defendant Beard is dismissed without prejudice for lack of service.
(3)

Defendants Thomas and Griego’s Motion for Summary Judgment on Counts

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II and III (Doc. 91) is granted, and these claims and Defendants are dismissed with

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prejudice.

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(4)

Defendant Gilreath’s Motion for Summary Judgment on Count I (Doc. 93)

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is granted, and Plaintiff’s claim in Count I and Defendant Gilreath are dismissed without

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prejudice for failure to exhaust available administrative remedies.

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(5)

Plaintiff’s “Motion to Have Copys (sic) Made of the Grievances Submitted

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to the Court and Forwarded to the Arizona Medical Board” (Doc. 165) and “Motion for an

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Extension of Time Before Any Judgment is Made on Summary Jud[g]ement” (Doc. 167)

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are denied as moot.

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(6)

Defendants’ Motion to Strike (Doc. 172) is denied as moot.

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(7)

There being no claims remaining, the Clerk of Court must enter judgment

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accordingly and terminate this action.
Dated this 18th day of March, 2019.

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Honorable John J. Tuchi
United States District Judge

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