Garland v. Stanley, et al.

Filing 48

FINDINGS and RECOMMENDATION to Grant Defendants' 25 MOTION for SUMMARY JUDGMENT, signed by Magistrate Judge Michael J. Seng on 3/30/15. Referred to Judge Ishii; 14-Day Deadline. (Verduzco, M)

Download PDF
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 SHAUN DARNELL GARLAND , 13 Plaintiff, 14 15 v. C. STANLEY, et al., 16 CASE NO. 1:12-cv-01755-AWI-MJS (PC) FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 25) Defendants. 17 18 19 20 I. PROCEDURAL HISTORY Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 21 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against 22 Defendants Lindsey, Nickell, Stanley, and Doe on Plaintiff’s Eighth Amendment 23 conditions of confinement claim. (ECF Nos. 6 & 8.) Defendants Lindsey, Nickell, and 24 Stanley were served and have appeared in the action. (ECF Nos. 12 & 15.) Defendant 25 Doe has not been identified. 26 27 28 On August 5, 2014, Defendants filed a motion for summary judgment (ECF No. 25.). Plaintiff filed an opposition on March 5, 2015 (ECF No. 42). Defendants filed a reply 1 1 on March 19, 2015. (ECF No. 46.) 2 3 II. LEGAL STANDARD 4 Any party may move for summary judgment, and the Court shall grant summary 5 6 judgment if the movant shows that there is no genuine dispute as to any material fact 7 and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Wash. 8 Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 9 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to 10 11 particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not 12 13 14 establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed R. Civ. P. 56(c)(1). The 15 Court may consider other materials in the record not cited to by the parties, but it is not 16 required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 17 237 F.3d 1026, 1031 (9th Cir. 2001). 18 19 Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for 20 21 him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants 22 do not bear the burden of proof at trial and, in moving for summary judgment, they need 23 only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. 24 Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010). 25 26 In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984, 27 and it must draw all inferences in the light most favorable to the nonmoving party and 28 2 1 determine whether a genuine issue of material fact precludes entry of judgment, Comite 2 de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 3 4 2011). However, “conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Angle v. 5 6 7 Miller, 673 F.3d 1122, 1134 n.6 (9th Cir. 2012) (citing Soremekun, 509 F.3d at 984). III. FACTUAL SUMMARY 8 The Court finds that the following facts are undisputed: 9 On October 27, 2010, Plaintiff was transported from Calipatria State Prison to CCI 10 Tehachapi. (ECF No. 25-2, at 1.) 11 Plaintiff was given a “sack lunch” at 7:30 am and the bus left at around 8:05 am. 12 At some point during the bus ride, Plaintiff realized he had diarrhea. (ECF No. 25- 13 14 2, at 2.) 15 Plaintiff attempted to use the bus bathroom. (ECF No. 25-2, at 2.) 16 Plaintiff wore handcuffs, waist chains, and leg irons on the bus. (ECF No. 25-2, at 17 2.) 18 19 Upon arrival at CCI Tehachapi at around 6:00 pm, Plaintiff’s leg irons were removed and he and roughly ten other inmates were led into the facility, a process that 20 21 22 took between 30-45 minutes. He was then placed in an individual holding “cage” to await a strip search. (ECF No. 25-2, at 3.) As part of the strip search, Plaintiff had to “squat and cough.” (ECF No. 25-2, at 23 24 25 26 3.) Plaintiff did not defecate when he went through this stage of the strip search. (ECF No. 25-2, at 3.) 27 28 3 1 2 3 Plaintiff told Officer Nickell he needed to use the bathroom as soon as possible. (ECF No. 25-2, at 4). Officer Nickell made no response. (Id.) Approximately 10 minutes later, Plaintiff defecated in the holding cage. (ECF No. 4 25-2, at 4; ECF No. 25-7, at 19). 5 6 7 8 9 10 11 Defendant Lindsay gave Plaintiff paper towels and splashed disinfectant into the cell. (ECF No. 25-2, at 4.) Defendant Doe got a hose and sprayed cold water onto Plaintiff’s pelvic area and legs. (ECF No. 25-2, at 4). At this point, all Plaintiff was wearing was a T-shirt and his tennis shoes. (ECF No. 25-2, at 4). 12 13 14 Plaintiff was able to dry himself with paper towels. (ECF No. 25-2, at 4). Ten minutes later, Plaintiff was escorted to the holding cell where he was to 15 spend the night. The rest of the inmates were taken to administrative segregation, in a 16 different part of the prison. (ECF No. 25-2, at 4.) 17 18 19 The holding cell where Plaintiff stayed had a toilet, sink, and bench. (ECF No. 252, at 5.) It also had running water. (ECF No. 25-7, at 32-33.) Plaintiff was only wearing tennis shoes and a T-shirt when he arrived at the 20 21 22 23 24 25 26 holding cell. Defendant Lindsey threw Plaintiff a pair of boxer shorts, but Plaintiff refused to wear them because they appeared to be soiled. (ECF No. 25-2, at 5.) When defendants’ shift ended, Plaintiff did not ask the next on-duty guard for clean shorts or a blanket. (ECF No. 42, at 9.) Plaintiff did not ask to see medical staff at CCI, but he asked a passing nurse for diarrhea medication, which the nurse said he did not have (ECF No. 25-2, at 5-6.) 27 Plaintiff left CCI the next morning at around 6 or 6:30 am. (ECF No. 25-2, at 6.) 28 4 1 2 3 Plaintiff was provided with clothing, including a new paper jumpsuit, prior to departure. (ECF No. 25-7, at 32). Plaintiff did not seek medical attention at Lancaster, the prison to which he was 4 being transported. (ECF No. 25-7, at 33.) 5 6 IV. LEGAL STANDARD – EIGHTH AMENDMENT 7 The Eighth Amendment protects prisoners from inhumane conditions of 8 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer 9 v. Brennan, 511 U.S. 825, 832 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 10 11 (1981)). Conditions of confinement may be, and often are, restrictive and harsh; however, they must not involve the wanton and unnecessary infliction of pain. Morgan, 12 13 14 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Conditions devoid of legitimate penological purpose or contrary to evolving standards of decency 15 violate the Eighth Amendment. Hope v. Pelzer, 536 U.S. 730, 737 (2002); Rhodes, 452 16 U.S. at 346; Morgan, 465 F.3d at 1045 (quotation marks and citations omitted). 17 18 19 Eighth Amendment claims have both subjective and objective components. An inmate must show that prison officials subjectively acted with deliberate indifference to his health and safety, thereby objectively depriving him of the minimal civilized measure 20 21 22 of life's necessities. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996)(citing Wilson v. Seiter, 501 U.S. 294, 303-303 (1991); Rhodes, 452 U.S. at 347). 23 A. Subjective Prong 24 To act with deliberate indifference, a prison official must know of and disregard an 25 excessive risk to inmate health or safety. Farmer, 511 U.S. at 837 (1994); Thomas v. 26 Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812- 27 14 (9th Cir. 2009); Johnson v. Lewis, 217 F.3d 726, 734 (9th Cir. 2000). Thus, to make 28 5 1 a cognizable conditions of confinement claim, a plaintiff must show that defendants “had 2 actual knowledge of plaintiff’s basic human needs and deliberately refused to meet those 3 4 needs. Whether an official possessed such knowledge ‘is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.’” 5 6 Johnson, 217 F.3d at 734 (citing Farmer, 511 U.S. at 842). 7 1. Verbal Harassment 8 Verbal harassment or insults can demonstrate the subjective state of mind of a 9 prison official. See Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997)(suggesting 10 that prison officials would act with a “sufficiently culpable state of mind” where they 11 intended to humiliate inmate). However, insults alone are not sufficient to meet the 12 13 14 objective prong of the Eighth Amendment test. Watison v. Carter, 668 F.3d 1108, 1113 (9th Cir. 2012)(citing Somers, 109 F.3d at 622)(disapproving of “the exchange of verbal 15 insults between inmates and guards,” but concluding it was “a constant, daily ritual 16 observed in this nation’s prisons” that did not violate the Eighth Amendment); cf. Hope v. 17 Pelzer, 536 U.S. at 738 (guards’ taunting and deprivation of bathroom breaks, which 18 19 heightened risk of humiliation, contributed to finding an Eighth Amendment violation). B. Objective Prong 20 21 The “minimal civilized measure of life’s necessities” includes adequate shelter, 22 food, clothing, sanitation, medical care, and personal safety, Johnson, 217 F.3d at 731 23 (quotation marks and citations omitted). An inmate’s right to sanitation includes a right to 24 personal hygiene supplies. Keenan, 83 F.3d 1083, at 1091. The time period during 25 which an inmate is deprived of a basic necessity is important in determining whether the 26 27 deprivation was unconstitutional. Chappell v. Mandeville, 706 F.3d 1052, 1060 (9th Cir. 2013) (citing Hutto v. Finney , 437 U.S. 678, 686-687 (1978) for the proposition that “a 28 6 1 condition of confinement which does not violate the Eighth Amendment when it exists for 2 just a few days may constitute a violation when it exists for ‘weeks or months’”); Hearns 3 4 v. Terhune, 413 F.3d 1036, 1043 (9th Cir. 2005). However, “the more basic the need, the shorter the time it can be withheld.” Johnson, 217 F.3d at 731(citations omitted); see 5 6 also Hope, 536 U.S. at 738 (finding “obvious” Eighth Amendment violation where plaintiff 7 was handcuffed to a hitching post in the Alabama sun for 7 hours, during which time he 8 was not given water or allowed to use the bathroom). “Minor deprivations suffered for 9 short periods of time will not rise to the level of an Eighth Amendment violation, but 10 ‘substantial deprivations of shelter, food, drinking water, and sanitation may meet the 11 standard despite their even shorter duration.’” Jacobs v. Quinones, No. 1:10-cv-02349 12 13 14 WL 144234, at *7 (E.D. Cal. Jan. 11, 2013)(citing Johnson, 217 F.3d at 729-730). 1. Exposure to Chemicals 15 A brief, one time exposure to disinfectant or other chemical does not amount to an 16 Eighth Amendment violation where there is no allegation that the exposure caused harm 17 or pain and no evidence to suggest that Defendants intended to cause pain. See 18 19 Clement v. Gomez, 298 F.3d 898, at 904 (9th Cir. 2002)(four hour-long exposure to pepper spray violated Eighth Amendment where inmates suffered pain and made 20 21 repeated requests for medical care); Harris v. Kim, 483 F. App’x 329 (9th Cir. 22 2012)(exposure to corrosive chemical gave rise to Eighth Amendment claim where 23 defendants knew of its dangerous properties and inmate was seriously injured); 24 McDaniels v. Elfo, No. C12-1289 2013 WL 7231585, at *6-*7 (W.D. Wash. Nov. 14, 25 2013)(refusal to give prisoner gloves with which to use disinfectant did not violate Eighth 26 Amendment where there was no evidence of intent to punish, and medical records did 27 not demonstrate any health effects). 28 7 1 2 3 2. Toilet Access 4 Temporary deprivation of access to a toilet can rise to the level of an Eighth 5 6 Amendment violation. Hope, 536 U.S. at 738 (preventing inmate from using toilet for 7 7 hours while handcuffed to hitching post contributed to Eighth Amendment violation); 8 Pollard v. GEO Grp., Inc., 607 F.3d 583, 598 (9th Cir. 2010)(“a prison inmate deprived of 9 access to a toilet for several days would have a strong case against prison officers under 10 Bivens”), rev’d on other grounds by Minneci v. Pollard, 132 S.Ct. 617 (2012); Johnson, 11 217 F. 3d at 730, 733 (complete absence of toilet facilities for inmates for one day could 12 13 14 violate the Eighth Amendment). Nonetheless, “toilets can be unavailable for some period of time without violating the Eighth Amendment.” Johnson, 217 F.3d at 733; accord 15 Gunn v. Tilton, No. CV 08-1039 2011 WL 1121949, at *3 (E.D. Cal. Mar. 23, 16 2011)(depriving inmate of access to a restroom for up to two hours did not violate the 17 Eighth Amendment). 18 19 3. Mattress and Sanitation Supplies Short-term deprivations of mattresses and some sanitary supplies generally do 20 21 not rise to the level of an Eighth Amendment violation. See Chappell, 706 F.3d at 1060- 22 1061 (one-day deprivation of a mattress does not violate the Eighth Amendment); 23 Hernandez v. Denton, 861 F,2d 1421, 1424 (9th Cir. 1988); vacated on other grounds by 24 493 U.S. 801 (1989)(same); Zavala v. Barnik, 545 F.Supp.2d 1051, 1059 (C.D. Cal. 25 2008)(“de minimis, apparently brief, one-time deprivation of toilet paper” did not violate 26 Eighth Amendment); Lopez v. Cate, No. 1:10-cv-01773 2013 WL 239097, at *8 (E.D. 27 28 8 1 Cal. Jan. 22, 2013)(deprivation of toilet paper, a toothbrush, and tooth powder for 7 days 2 does not violate the Eighth Amendment). 3 4. Lack of Clothing 4 A denial of adequate clothing, even for a brief period, may violate the Eighth 5 6 Amendment, at least where the inmate is outside and weather conditions are extreme. 7 See Johnson, 217 F.3d at 731 (plaintiffs made to lie prone, exposed to 90-degree heat 8 for 4 days violated the Eighth Amendment); Walker v. Sumner, 14 F.3d 1415, 1421 (9th 9 Cir. 1994)(acknowledging that weather conditions could be such that “the deprivation of 10 11 a jacket [could] inflict pain of a constitutional magnitude”); Gordon v. Faber, 973 F.2d 686, 688 (8th Cir. 1992)(inmates made to stand outside in subzero temperatures with 12 13 14 significant wind chill in only denim jackets without hats or gloves for two hours stated Eighth Amendment claim); Chatman v. Tyner, at *7, *8 (E.D. Cal. Feb. 26, 2009)(citing 15 Walker to conclude that inmate who stood outside for over thirty minutes in inclement 16 weather without sufficient clothing withstood summary judgment); but see Gunn, No. CV- 17 08-1039 2011 WL 1121949, at *4 (inmate made to stand in the yard for five hours in 18 19 temperatures ranging from 52-79 degrees without water did not state claim). The unconstitutionality of a lack of clothing for inmates in cells, however, is less 20 21 clear: the Eighth Amendment mandates “adequate heating,” but not necessarily a 22 comfortable temperature. Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010); 23 Keenan, 83 F.3d at 1091. 24 uncomfortable, temperature is that it poses a ‘substantial risk of serious harm.’” Graves, 25 623 F.3d at 1049. Thus, temporarily depriving an inmate who remains inside of clothing 26 “One measure of an inadequate, as opposed to merely or blankets does not rise to the level of an Eighth Amendment violation if temperatures 27 are moderate. Compare Stevenson v. Adams, (E.D. Cal. Nov. 7, 2012)(where a building 28 9 1 was air-conditioned and left Plaintiff uncomfortable overnight was “the sort of short-term 2 discomfort that does not support an Eighth Amendment violation”); Gordon v. Cate, No. 3 11-cv-03593 2014 WL 848212, at *4-*5 (N.D. Cal. Feb. 28, 2014)(inmate with thin 4 clothing and a blanket housed for 7 days in a cell with broken window pane and 5 6 malfunctioning ventilation system did not state a claim where lowest outside temperature 7 was 53 degrees and inmate did not ask for warmer clothes); with Graves, 623 F.3d at 8 1049 (upholding lower court’s finding that housing detainees taking psychotropic 9 medications in temperatures above 85 degrees violated the Eighth Amendment); Saenz 10 11 v. Reeves, No. 1:09-cv-00557 2013 WL 4049975, at *15 (E.D. Cal. Sept. 13, 2012)(defendant not entitled to summary judgment where he denied Plaintiff’s requests 12 13 14 for blankets and clothing in a cell without functioning ventilation in the middle of winter); Maldonaldo v. Youngblood, at *4 (E.D. Cal. Jan. 28, 2013)(3-4 hour period of being 15 locked in a van with temperatures reaching upwards of 90 degrees in the vehicle met 16 objective prong of Eighth Amendment test). 17 V. PARTIES’ ARGUMENTS 18 19 Defendants argue they are entitled to summary judgment because the alleged deprivations Plaintiff suffered were de minimis and of too short a duration to constitute 20 21 an Eighth Amendment violation. Specifically, Defendants argue (1) that Plaintiff was not 22 unconstitutionally deprived of a toilet because only ten minutes elapsed between when 23 Plaintiff allegedly made Defendant Nickell aware of his urgent need to use a bathroom 24 and when Plaintiff defecated in the holding cage; (2) that even if Defendants did make 25 the offensive remarks Plaintiff attributes to them, verbal harassment alone does not 26 violate the Eighth Amendment; (3) splashing Plaintiff with cleaning solution and water did 27 not violate the Eighth Amendment; and (4) even if Plaintiff were placed in a cell overnight 28 10 1 without bedding, clothing, or toilet paper, this short period of deprivation does not 2 implicate the constitution. Defendants dispute, however, that the period of Plaintiff’s 3 deprivation even lasted all night: they point out that their shift ended at 10:00 p.m., and 4 that if they did fail to provide Plaintiff with a bed roll, clothing, and hygiene items, Plaintiff 5 6 could have asked the next officer on duty for these items. They argue therefore that the 7 period of deprivation was only a few hours. In the alternative, Defendants argue they 8 are entitled to qualified immunity because the unconstitutionality of such a brief 9 deprivation was not well-established. 10 11 Plaintiff claims that inmates are not permitted to use the bus bathroom for defecation, and therefore he could not relieve himself prior to exiting the bus. He 12 13 14 concedes that only 10 minutes elapsed between his request for a bathroom and the loosening of his bowels. He alleges Defendants called him an “animal” to degrade and 15 humiliate him, and that other comments, including a threat to provide him with a “long, 16 cold, hard night” because of the diarrhea incident, and a menacing, “You better be glad 17 you’re leaving in the morning!” indicated their intent to cause suffering and pain. Plaintiff 18 19 is somewhat equivocal about the manner in which he was splashed with disinfectant - in his opposition, he writes that the disinfectant was sprayed at him directly, but in his 20 21 deposition, he only indicates that it “splashed up on him.” (ECF No. 25-7, at 23). Plaintiff 22 states that he asked once for toilet paper of an unidentified sergeant within earshot of 23 Defendants, but that no one responded. He concedes that he did not ask Defendants 24 again for toilet paper or a bedroll, and that he did not ask the next shift of guards for 25 these items, either. (ECF No. 25-7, at 30-31; ECF No. 42, at 9). He cites his concern 26 27 that because he was partially naked, the next officer, who was female, would write him up for sexual harassment if he tried to get her attention. Plaintiff alleges that he had “no 28 11 1 bedding or anything,” and that “it was very cold that night.” (ECF No. 25-7, at 31). 2 However, he never saw a thermometer. He alleges that the HVAC system at CCI is a 3 “swamp cooler,” which circulates air from the outdoors into the prison without heating it. 4 He has not explained his basis for concluding CCI uses a swamp cooler. 5 6 7 VI. ANALYSIS Considering the facts in the light most favorable to Plaintiff, Comite de Jornaleros, 8 657 F.3d at 942, Defendant has proven an absence of evidence to support Plaintiff’s 9 case, Oracle Corp., 627 F.3d at 387. Accordingly, for the reasons set forth below, the 10 11 Court will recommend that Defendant’s motion for summary judgment be granted. Here, Plaintiff’s claims do not satisfy both prongs of the Eighth Amendment test. 12 13 14 Defendants’ allegedly offensive and menacing comments arguably establish the subjective prong of the test; however, the very brief deprivation of a toilet, the spraying 15 with water and disinfectant, and the somewhat longer deprivation of clothing, toilet paper 16 and a bedroll fall short of the objective prong. 17 18 19 Plaintiff has not alleged that he suffered any health effects or pain from exposure to the disinfectant. Although his accounts are inconsistent about whether he was deliberately or inadvertently doused with disinfectant, he has not pleaded facts 20 21 suggesting that Defendants were trying to cause him pain, as opposed to disinfect him 22 after he had defecated in the cell. See Manriquez v. Huchins, No. 1:09-cv-00456 2010 23 WL 2791560 (E.D. Cal. July 14, 2010)(defendants’ efforts to prolong plaintiff’s exposure 24 to pepper-spray like chemical was evidence of malicious intent). Plaintiff was 25 immediately sprayed with water after coming into contact with the disinfectant. Under 26 these circumstances, Plaintiff’s exposure to disinfectant, even if deliberate, fails to give 27 rise to an Eighth Amendment claim. 28 12 1 While deprivation of access to a toilet for several hours may, under certain 2 circumstances, violate the Eighth Amendment, see Hope, 536 U.S. at 738, the Court has 3 4 identified no cases that state that a deprivation of a few minutes, even in the face of urgent need, reaches constitutional proportions.1 Likewise, while the lack of a bedroll 5 6 and toilet paper could, over a significant period of time, run afoul of the Eighth 7 Amendment, a deprivation for a few hours, or even overnight, does not violate the 8 constitution. See Chappell, 706 F.3d at 1060. 9 10 11 Being left without adequate clothing in cold temperatures can potentially violate the Constitution even over a short period of time, but the Court finds that two circumstances defeat Plaintiff’s claim on these grounds. First, Plaintiff has not 12 13 14 established that the temperature of his cell put him at a substantial risk of harm, as opposed to mere discomfort. See Graves, 623 F.3d at 1049. Although Plaintiff claims 15 that temperatures inside the facility were “very cold” and “freezing,” he provides no 16 objective indication, or even estimate, of the actual temperature in or outside of the 17 institution on that date. The court need not accept his unsupported hypothesis that CCI 18 uses a “swamp cooler” that merely pipes in unheated air from the outdoors. “Mere 19 allegation and speculation do not create a factual dispute for purposes of summary 20 21 judgment”. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 22 2007)(citing Nelson v. Pima Community College, 83 F.3d 1075, 1081-1082 (9th Cir. 23 1996); see also Angle, 673 F.3d 1122, 1134 n.6. Nor does Plaintiff explain any adverse 24 effects from the low temperature. The absence of more specific information about the 25 temperature or its effects on Plaintiff prevents this court from finding that a deprivation of 26 27 28 blankets and adequate clothing overnight amounts to an Eighth Amendment violation. 1 Plaintiff has not argued, nor does it appear that any facts would support the argument, that Defendants were responsible for Plaintiff’s inability to use the toilet on the bus. 13 1 2 3 Next, Plaintiff has conceded that once defendants left duty, he did not ask again for either a bedroll or new boxer shorts. His asserted fear that he might have been written up if he had requested blankets and/or clothing from the guard does not give rise 4 to a constitutional claim based on a failure to recognize an unspoken need. Failing to 5 6 request a remedy for a deprivation is an important factor in determining whether the 7 deprivation was unconstitutional. Compare Gordon, No. 11-cv-03593 2014 WL 848212, 8 at *4-*5 (inmate who did not request extra clothing failed to state a claim on the basis of 9 his deprivation, even though he was housed in a cell with no heat and a broken window 10 11 for multiple days) with Saenz, No. 1:09-cv-00557 2013 WL 4049975, at *15 (defendant not entitled to summary judgment where he denied Plaintiff’s requests for blankets and 12 13 14 clothing in a cell without functioning ventilation in the middle of winter). Here, Plaintiff’s failure to try to remedy his situation, combined with the lack of indication that the 15 temperature in the facility posed a substantial risk of harm, supports the conclusion that 16 the temporary discomfort Plaintiff suffered was not unconstitutional. 17 18 19 Defendants have shown an absence of evidence to support an Eighth Amendment claim against them. VI. CONCLUSION AND RECOMMENDATION 20 The Court finds that Plaintiff has not met his burden of putting forth sufficient 21 22 evidence to raise a triable issue of fact.2 Based on the foregoing, the Court HEREBY 23 RECOMMENDS that Defendants’ motion for summary judgment (ECF No. 25) be 24 GRANTED, thus concluding this action in its entirety. 25 26 27 28 These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 2 Because the court resolves Defendants’ motion for summary judgment in their favor on other grounds, it does not their qualified immunity argument. 14 1 fourteen (14) days after being served with these Findings and Recommendations, any 2 party may file written objections with the Court and serve a copy on all parties. Such a 3 4 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed within fourteen 5 6 (14) days after service of the objections. The parties are advised that failure to file 7 objections within the specified time may result in the waiver of rights on appeal. 8 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 9 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 IT IS SO ORDERED. 12 13 14 Dated: March 30, 2015 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?