Lipsey v. Schwarzenegger et al
Filing
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ORDER Granting Defendant's Motion For Summary Judgment (Doc. 29 ), signed by Magistrate Judge Jennifer L. Thurston on 6/3/2011. CASE CLOSED. (Fahrney, E)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RODERICK LIPSEY,
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Plaintiff,
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vs.
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ARNOLD SCHWARZENEGGER, et al.,
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Defendants.
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______________________________________ )
Case No. 1:08-cv-01726 JLT (PC)
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
(Doc. 29)
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C.
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§ 1983. Plaintiff’s sole remaining claim is that on one occasion, Defendant Edward Granillo served him
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“a plate of contaminated food with what appeared to be dirt, rocks, and other substances.” (Doc. 12 at
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8)
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Defendant filed his motion for summary judgment on March 14, 2011. (Doc. 29) Plaintiff has
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failed to respond to motion in any fashion despite the Court’s order issued on April 18, 2011, requiring
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Plaintiff to file an opposition to the motion or a notice of non-opposition. (Doc. 33)
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For the reasons set forth below, the Court GRANTS Defendant’s motion for summary judgment.
I.
BACKGROUND
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A.
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Plaintiff alleges that Defendant Granillo is a correctional officer at CCI which is the prison where
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Plaintiff was housed on July 9, 2006. (Doc. 12 at 5, 8) On this day, Plaintiff alleges, “C/O Grannillo
Factual Background
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[sic], served plaintiff’s dinner at about 5:00 PM. As plaintiff was eating he became very ill with a
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swollen throat, and sick att he stomach. I discovered that C/O Granillo, gave me a plate of contaminated
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food with what appeared to be dirt, rocks, and other substances.” Id. at 8.
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Granillo’s evidence demonstrates that at CCI, the food is prepared by inmates in a central kitchen
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under the supervision of CCI staff. (UFM1 4, 5, 6) Once the food is prepared, inmates transport it in bulk
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to the various housing units. (UFM 7, 8, 9) Correctional officers meet the inmates and take the bulk
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food into the dining halls. (UFM 10, 71) Seven correctional officers form an assembly line, known as
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a “steam line,” and begin assembling the trays of food with each officer placing one portion of one food
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item on each tray. (UFM 13, 14, 17, 18, 21) During this time, if any contaminated, spoiled or
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improperly prepared food is found or items of contraband are found in the food, an officer contacts the
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kitchen immediately and obtains substitute food. (UFM 15, 16)
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As the trays are filled, each is covered with a lid and placed on one of four food carts. (UFM 19,
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22, 23) No trays of food are prepared for any particular inmate, the trays are not labeled for any particular
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inmate or housing unit and they are not placed on any particular food cart. (UFM 20, 22, 23, 51) Once
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all four food carts are full of trays, each three-man team of housing unit correctional officers takes two
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food carts to their housing unit. (UFM 24) There, each of the housing unit correctional officers begins
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distributing the food trays to the inmates by removing six to ten trays at a time from the food cart and
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carrying them to the cells. (UFM 24, 25, 71)
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At each cell, the housing unit officer, provides one or two trays of food, depending upon whether
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the cell houses one or two inmates. (UFM 26, 28, 29, 30) The trays are passed to the inmates through
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the “food port” located in the cell door. Id. Once the food port is opened, the officer removes the lid
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from each tray of food and passes the tray through the port. (UFM 27) In a two-man cell, the inmates
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decide which tray of food each will eat. (UFM 52)
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While handling the food and food trays, officers are required to wear plastic gloves and to cover
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their hair. (UFM 33, 34) Likewise, they are required to wash their hands before beginning these tasks.
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(UFM 32)
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On July 9, 2006, Defendant Granillo was a housing officer in the unit where Plaintiff was housed.
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“UMF” refers to the separate statement of undisputed facts submitted by Defendant. (Doc. 29, Ex 1)
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(UFM 35) Along with six other officers, Granillo assisted on the steam line to prepare the food trays and
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then distributed the trays to the inmates. (UFM 36, 43, 50) At no time did he see any contamination,
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including rocks, dirt or other substances in the food, he did not place any rocks, dirt or other substances
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in the food and he did not see anyone else contaminate the food. (UFM 37, 38, 39, 40, 41, 42, 46, 47,
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48, 49) After the inmates were finished eating, Granillo assisted in retrieving the food trays. (UFM 53,
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54) At no time during this process did any inmate complain to Granillo that his food was contaminated
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or that he needed medical attention. Id.
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Inmate Juan Thornton was Plaintiff’s cellmate on from April 2006 through January 2007. (UFM
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56) Thornton testified that on one occasion, Plaintiff found a rock, the size of a fingernail in his meal.
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(UFM 57, 58, 59, 63) Thornton testified that Plaintiff complained about the rock in his food to a staff
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member. (UFM 66)
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B.
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Plaintiff filed his original complaint on November 10, 2008. (Doc. 1.) On February 12, 2009,
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the Court screened the complaint and found it did not state a cognizable claim. (Doc. 9.) The Court
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granted Plaintiff leave to amend his complaint and on April 28, 2009, Plaintiff filed his First Amended
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Complaint. (Doc. 12)
Procedural History
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Once again, the Court screened the complaint and found that the only cognizable claim was the
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one described above against Defendant Granillo. (Doc. 13) The Court dismissed all other claims and
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defendants. (Doc. 13, 14.) Defendant filed his answer to the First Amended Complaint on April 30,
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2010. (Doc. 53.)
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On March 14, 2011, Defendant filed the instant motion for summary judgment. (Doc. 29) When
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Plaintiff failed to file any response to the motion, on April 18, 2011, the Court ordered Plaintiff to file
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his opposition or notice of non-opposition within 30 days. (Doc. 33) Nonetheless, Plaintiff has failed
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to take either action.
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II.
LEGAL STANDARDS
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A.
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Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials
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on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant
Summary Judgment
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is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A material fact is one which may
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affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
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regarding a material fact is genuine if the evidence is such that a reasonable trier of fact could return a
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verdict in favor of the nonmoving party. Id.
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A party seeking summary judgment “always bears the initial responsibility of informing the
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district court of the basis for its motion, and identifying those portions of the pleadings, depositions,
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answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes
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demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
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323 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an
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issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for
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the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). “On an issue
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as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely
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by pointing out that there is an absence of evidence to support the nonmoving party’s case.” Id. (citing
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Celotex, 477 U.S. at 323).
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If the movant has sustained its burden, the nonmoving party must “show a genuine issue of
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material fact by presenting affirmative evidence from which a jury could find in [its] favor.” FTC v.
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Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (citing Anderson, 477 U.S. at 257 (1986)) (emphasis in
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the original). Although the nonmoving party need not establish a material issue of fact conclusively in
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its favor, it may not simply rely on “bald assertions or a mere scintilla of evidence in [its] favor” to
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withstand summary judgment. Stefanchik, 559 F.3d at 929. Indeed, “[w]here the record taken as a
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whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue
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for trial.’” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation
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omitted).
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In resolving a summary judgment motion, “the court does not make credibility determinations
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or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Rather, “the evidence of the [nonmoving
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party] is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Anderson, 477 U.S.
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at 255. See T.W. Electric Service, Inc. v. Pacific Electric Contractors Ass’n, 809 F.2d 626, 630-31 (9th
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Cir. 1987). Inferences, however, are not drawn out of the air; it is the nonmoving party’s obligation to
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produce a factual predicate from which the inference may justifiably be drawn. Richards v. Nielsen
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Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985).
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B.
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Plaintiff may proceed under 42 U.S.C. § 1983 against a person acting under color of state law
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who has violated rights guaranteed by the United States Constitution. Buckley v. City of Redding, 66
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F.3d 188, 190 (9th Cir. 1995); Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir. 1984). To prevail
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on such a claim, Plaintiff must prove that he suffered a specific injury as a result of Defendant’s specific
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conduct. See Rizzo v. Goode, 423 U.S. 362, 371-372 (1976).
Eighth Amendment
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To state a claim against a prison official under the Eighth Amendment, a plaintiff must establish
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that the deprivation at issue, according to an objective standard, is sufficiently serious and the defendant,
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subjectively, had a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
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The Court will find an objectively sufficiently serious deprivation if it resulted in “the denial of the
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minimal civilized measure of life’s necessities.” Id. “[E]xtreme deprivations are required to make out
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a conditions-of-confinement claim . . . [R]outine discomfort is ‘part of the penalty that criminal
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offenders pay for their offenses against society . . .’” Hudson v. McMillian, 112 S. Ct. 995, 1000 (1992)
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quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
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“The Eighth Amendment requires only that prisoners receive food that is adequate to maintain
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health; it need not be tasty or aesthetically pleasing.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir.
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1993). “The fact that the food occasionally contains foreign objects or sometimes is served cold, while
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unpleasant, does not amount to a constitutional deprivation.” Id. See also George v. King, 837 F.2d 705,
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707 (5th Cir. 1988) (“[A] single incident of unintended food poisoning, whether suffered by one or many
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prisoners at an institution, does not constitute a violation of the constitutional rights of the affected
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prisoners.”); Islam v. Jackson, 782 F.Supp. 1111, 1114-15 (E.D. VA 1992) (serving one meal
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contaminated with maggots and meals under unsanitary conditions for thirteen days was not cruel and
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unusual punishment, even though inmate suffered symptoms of food poisoning on one occasion);
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Bennett v. Misner, 2004 U.S. Dist. LEXIS 19568* at 63 (D. Or., Sept. 17, 2004) (“Neither isolated
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instances of food poisoning, temporary lapses in sanitary food service, nor service of meals contaminated
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with maggots are sufficiently serious to constitute an Eighth Amendment violation.”)
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The defendant acts with a sufficiently culpable state of mind under the subjective standard when
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he displays deliberate indifference to the plaintiff’s health or safety. Farmer, 511 U.S. at 834. Thus, a
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defendant acts with deliberate indifference when he “knows of and disregards an excessive risk to inmate
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health or safety; the official must both be aware of facts from which the inference could be drawn that
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a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
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III.
DISCUSSION
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Though Plaintiff alleges that Granillo gave him a tray of food that was contaminated and made
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him sick on one occasion, he provides no evidence that Granillo contaminated the food or was aware
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that the food was contaminated. (Doc. 12 at 8) In fact, Plaintiff does not even allege that Granillo was
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the source of the contamination or was aware of it. Id.
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To the contrary, Granillo provides evidence that he did not contaminate Plaintiff’s food and was
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never aware of any contamination in Plaintiff’s food. (UFM 36, 37, 38, 39, 40, 41, 42, 43, 46, 47, 48,
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49, 50, 53, 54) Moreover, the evidence demonstrates that it is nearly impossible for an officer to
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purposely contaminate the food of a particular inmate when the inmate shares a cell. (UFM 19, 20, 22,
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23, 24, 25, 26, 27, 28, 29, 30, 51, 52, 71)
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Accordingly, because the undisputed evidence before the Court establishes that Plaintiff did not
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suffer a constitutional deprivation and Defendant did not act with deliberate indifference, the Court
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concludes that Defendant is entitled to summary judgment in his favor.
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IV.
CONCLUSION
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For all the reasons set forth above, it is HEREBY ORDERED that:
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1.
Defendant’s March 14, 2011, motion for summary judgment (Doc. 29) is GRANTED.
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2.
The Clerk of the Court SHALL enter judgment and close this case.
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IT IS SO ORDERED.
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Dated: June 3, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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