Toevs v. Reid et al

Filing 93

Memorandum Opinion and ORDER: The State Defendants' 81 Motion to Dismiss or for Summary Judgment is denied in part to the extent that Mr. Toevs has stated a claim in Claim Five against Defendant Ortiz for violation of due process based on whet her he received meaningful reviews of his continued QLLP confinement and granted in part as to all other claims alleged and Defendants named in the Amended Complaint. A Preliminary Scheduling Conference is set for 4/30/2009 at 09:15 AM in Courtroom A 402 before Magistrate Judge Craig B Shaffer, by Magistrate Judge Craig B Shaffer on 03/06/09. (Attachments: # 1 Attachment 1 - Fiorentino, # 2 Attachment 2 - Blum, # 3 Attachment 3 - McCoy, # 4 Attachment 4 - Petway, # 5 Attachment 5 - Nelson, # 6 Attachment 6 - Jackson, # 7 Attachment 7 - Munoz)(wjc, )

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1 4 1 of 166 DOCUMENTS J o s e p h M u n o z , et al., Plaintiffs, v. Charles M a r s h a ll, et al., Defendants. N o . C-94-1839 M H P U N I T E D STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF C A L IF O R N IA 1 9 9 4 U.S. Dist. LEXIS 12755

S e p t e m b e r 8, 1994, Decided September 8, 1994, Filed, Entered JUDGES: [*1] Patel OPINION BY: MARILYN H. PATEL OPINION O r d e r of Dismissal W ith o u t Leave to Amend IN T R O D U C T IO N P l a i n t i f fs , inmates at the Security Housing Unit ( " S H U " ) of Pelican Bay State Prison ("PBSP"), have file d a pro se civil rights complaint under 42 U.S.C. § 1 9 8 3 . Plaintiffs also seek to proceed in forma pauperis. V e n u e is proper in this district as the defendants r e s i d e , and a substantial part of the events giving rise to t h e action occurred, in this district. 28 U.S.C. § 1391(b). BACKGROUND P la in tiffs , who seek classwide relief, claim that P B S P 's policy of prohibiting inmates in the SHU from w e a r i n g athletic and orthopedic shoes violates their c o n s titu tio n a l rights. Plaintiffs claim that the only shoes t h e y are permitted to wear are state-issued deck-style s l i p - o n s which provide insufficient heel and ankle s u p p o r t for inmates who wish to exercise vigorously on P B S P 's concrete exercise yards or who have pre-existing o r th o p e d ic injuries. Plaintiffs do not seek to have the d e fe n d a n ts provide them the athletic/orthopedic shoes th e y desire; rather, they wish to modify the defendants' p o lic y respecting footwear such that they are [*2] p e r m i tte d to receive the shoes of their choice from o u ts id e sources and to wear them. P l a i n t i f fs seek declaratory and injunctive relief. D IS C U S S IO N A . Standard of Review Title 28 U.S.C. § 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis prior to s e r v ic e "if the allegation is untrue, or if satisfied that the a c t i o n is frivolous or malicious." Under this standard, a d is tr i c t court may review the complaint and dismiss sua s p o n t e those claims premised on meritless legal theories o r that clearly lack any factual basis. Denton v. H e rn a n d e z, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1730-31 (1 9 9 2 ). Pro se pleadings must be liberally construed, h o w e v e r , especially where civil rights claims are i n v o l v e d . Balistreri v. Pacifica Police Dep't, 901 F.2d 6 9 6 , 699 (9th Cir. 1990). T o state a claim under 42 U.S.C. § 1983, a plaintiff m u s t allege two essential elements: (1) the violation of a r ig h t secured by the Constitution or laws of the United S t a te s , and (2) that the alleged deprivation was c o m m itte d by a person [*3] acting under the color of s t a t e law. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 4 0 , 108 S. Ct. 2250 (1988). B. Legal Claims E i g h th Amendment a . Necessities of Life P l a i n t i f fs claim that the failure to permit them to w e a r athletic/orthopedic shoes transgresses the Eighth A m e n d m e n t. W h i l e the Constitution does not mandate t h a t prisons be comfortable, Rhodes v. Chapman, 452 U .S . 337, 349, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981), n o r that they provide every amenity that one might find d e s i r a b l e , Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th C i r . 1982), neither does it permit inhumane ones. Farmer v . Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1976 (1 9 9 4 ). Prison officials must provide all prisoners with t h e basic necessities of life, i.e., food, clothing, shelter, s a n i t a t i o n , medical care and personal safety. Hoptowit,

Page 2 1 9 9 4 U.S. Dist. LEXIS 12755, * 6 8 2 F.2d at 1246; accord DeShaney v. Winnebago C o u n t y Dep't of Social Servs., 489 U.S. 189, 199-200, 1 0 3 L. Ed. 2d 249, 109 S. Ct. 998 (1989) [*4] (failure to p r o v i d e basic human needs transgresses substantive l i m i t s on state action set by Eighth Amendment). The tr e a tm e n t a prisoner receives in prison and the conditions u n d e r which he is confined are subject to scrutiny under th e Eighth Amendment. Helling v. M c K in n e y , 125 L. Ed. 2 d 22, 113 S. Ct. 2475, 2480 (1993). A prison official v io l a te s the Eighth Amendment when two requirements a r e met: (1) the deprivation alleged must be, objectively, s u f fi c i e n t l y serious, Farmer, 114 S. Ct. at 1977 (citing W i l s o n v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 1 1 1 S. Ct. 2321 (1991)), and (2) the prison official p o s s e s s e s a sufficiently culpable state of mind, id. at 1 9 7 7 (citing Wilson, 501 U.S. at 297). In prisonc o n d itio n s cases the necessary state of mind is one of " d e lib e ra te indifference." Wilson, 501 U.S. at 302-03 ( g e n e r a l conditions of confinement); Helling, 113 S. Ct. a t 2480 [*5] (inmate health); Estelle v. Gamble, 429 U .S . 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) ( i n m a t e health); cf. Hudson v. McMillian, 117 L. Ed. 2d 1 5 6 , 112 S. Ct. 995, 998-99 (1992) (claims of excessive fo r c e require Eighth Amendment claimant to show o ffic ia ls applied force maliciously and sadistically for v e r y purpose of causing harm). N e i t h e r negligence nor gross negligence will c o n s t i t u t e deliberate indifference. See Farmer, 114 S. Ct. a t 1978 & n.4; see also Estelle, 429 U.S. at 106 ( e s ta b lis h in g that deliberate indifference requires more t h a n negligence). A prison official cannot be held liable u n d e r the Eighth Amendment for denying an inmate h u m a n e conditions of confinement unless the standard fo r criminal recklessness is met, i.e., the official knows o f and disregards an excessive risk to inmate health or s a f e t y . Farmer, 114 S. Ct. at 1979. The official must both b e aware of facts from which the inference could be d r a w n [*6] that a substantial risk of serious harm exists, a n d he must also draw the inference. Id. An Eighth A m e n d m e n t claimant need not show, however, that a p r is o n official acted or failed to act believing that harm a c t u a l ly would befall an inmate; it is enough that the o f f i c i a l acted or failed to act despite his knowledge of a s u b s t a n t i a l risk of serious harm. Id. at 1981. This is a q u e s t i o n of fact. Id. A lth o u g h the Eighth Amendment protects against c r u e l and unusual punishment, this does not mean that fe d e r a l courts can or should interfere whenever prisoners a r e inconvenienced or suffer de minimis injuries. H e r n a n d e z v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1 9 8 8 ) (allegation that inmate slept without a mattress for o n e night is insufficient to state Eighth Amendment v io la t io n and no amendment can alter that deficiency), v a c a t e d on other grounds sub nom. Denton v. H e rn a n d e z , 118 L. Ed. 2d 340, 112 S. Ct. 1728 (1992); s e e , e.g., DeMallory v. Cullen, 855 F.2d 442, 445 (7th C i r . 1988) (correctional officer spitting upon prisoner d o e s not rise to level of constitutional [*7] violation); H o llo w a y v. G u n n e l l, 685 F.2d 150 (5th Cir. 1985) (no c l a i m stated where prisoner forced to spend two days in h o t dirty cell with no water); Miles v. Konvalenka, 791 F. S u p p . 212 (N.D. Ill. 1992) (single instance of finding m o u s e in food not actionable); Vega v. Parsley, 700 F. S u p p . 879 (W.D. Tex. 1988) (burned out light bulb, p r o m p tly replaced, does not violate Eighth Amendment); E v a n s v. Fogg, 466 F. Supp. 949 (S.D.N.Y. 1979) (no c l a i m stated by prisoner confined for 24 hours in refuse s tr e w n cell and for two days in flooded cell). Federal c o u r ts should avoid enmeshing themselves in the m i n u tia e of prison operations in the name of the Eighth A m e n d m e n t. Wright v. Rushen, 642 F.2d 1129, 1132 (9th C i r . 1981). P la i n tiffs ' claim fails to meet the first requirement f o r claims worthy of Eighth Amendment scrutiny: that the a l l e g e d deprivation be sufficiently serious. W h i l e p l a in tiffs claim that orthopedic injury eventually may r e s u lt from vigorous exercise in their state-issued fo o tw e a r , such injury is preventable. Inmates [*8] can e a s ily modify their exercise routines so as to decrease the i m p a c t of their feet on the concrete exercise yards. I n m a t e s who claim that the state-issued footwear helps to e x a c e r b a t e pre-existing orthopedic injuries may request t o see a physician who, if he or she deems it medically in d ic a te d , may prescribe therapy or alternative footwear a s needed. W h ile there is no doubt that athletic footwear m a y be more comfortable than the state-issued footwear, th e failure to permit inmates to wear the most c o m f o r t a b l e apparel does not rise to a violation of the E i g h th Amendment. b. D eliberate indifference m e d ic a l/p s y c h ia tr ic needs to serious

N o r have plaintiffs alleged a violation of the Eighth A m e n d m e n t's proscription of deliberate indifference to s e r io u s medical need. Deliberate indifference to serious m e d i c a l needs presents a cognizable claim for violation o f the Eighth Amendment proscription of cruel and u n u s u a l punishment. Estelle, 429 U.S. 97, 104, 50 L. Ed. 2 d 251, 97 S. Ct. 285 (1976); McGuckin v. Smith, 974 F .2 d 1050, 1059 (9th Cir. 1992); Jones v. Johnson, 781 F . 2 d 769, 771 (9th Cir. 1986). [*9] A determination of " d e lib e r a te indifference" involves an examination of two e le m e n ts : the seriousness of the prisoner's medical need a n d the nature of the defendant's response to that need. M c G u c k in , 974 F.2d at 1059. A "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant i n j u r y or the "unnecessary and wanton infliction of pain." M c G u c k in , 974 F.2d at 1059 (citing Estelle, 429 U.S. at 1 0 4 ) . The existence of an injury that a reasonable doctor o r patient would find important and worthy of comment o r treatment; the presence of a medical condition that

Page 3 1 9 9 4 U.S. Dist. LEXIS 12755, * s ig n ific a n t ly affects an individual's daily activities; or the e x i s te n c e of chronic and substantial pain are examples of in d ic a tio n s that a prisoner has a "serious" need for m e d i c a l treatment. McGuckin, 974 F.2d at 1059-60 ( c itin g Wood v. Housewright, 900 F.2d 1332, 1337-41 (9 th Cir. 1990); Hunt v. Dental Dept., 865 F.2d 198, 1 0 0 - 0 1 (9th Cir. 1989). In order for deliberate [*10] in d iffe r e n c e to be established, there must be a purposeful a c t or failure to act on the part of the defendant. M c G u c k in , 974 F.2d at 1060. Second, a prisoner can m a k e no claim for deliberate medical indifference unless t h e denial was harmful. M c G u c k i n , 974 F.2d at 1060; S h a p le y v. Nevada Board of State Prison Commissioners, 7 6 6 F.2d 404, 407 (9th Cir. 1985). P l a i n t iffs do not claim that they, or any of them, b r o u g h t a serious medical condition to defendants' a t t e n t i o n and that defendants were deliberately in d iffe r e n t to that condition. Thus plaintiffs have stated n o claim for deliberate indifference to serious medical ne ed . c . Denial of exercise P la i n tiffs allege that defendants' policy prohibiting p l a in tiffs from wearing athletic/orthopedic shoes denies t h e m the opportunity to exercise and thus amounts to c r u e l and unusual punishment remediable under the E i g h th Amendment. The denial of exercise is cognizable a s a violation of civil rights. Spain v. Procunier, 600 F . 2 d 189, 190 (9th Cir. 1979). Prisoners may not be d e p r i v e d of all exercise, Toussaint v. McCarthy, 597 F. S u p p . 1388, 1393 (N.D. Cal. 1984), [*11] aff'd in part, r e v 'd in part on other grounds, 801 F.2d 1080 (1986), c e r t . denied, 481 U.S. 1069 (1987). A short term denial o f exercise to an inmate for disciplinary or security r e a s o n s , however, does not violate the Eighth A m e n d m e n t. Toussaint, 597 F. Supp. at 1412. P l a i n t i f fs here have not been denied the opportunity t o exercise. They may continue to engage in non-aerobic a n d low-impact aerobic exercise free from injury. Thus p l a in tiffs have failed to state a claim for unconstitutional d e n ia l of exercise under the Eighth Amendment. C O N C L U S IO N F o r the foregoing reasons, plaintiffs' complaint is d i s m i s s e d with prejudice to filing another unpaid c o m p la int. I T IS SO ORDERED. M a r ily n H. Patel U .S . DISTRICT JUDGE S E P 8 - 1994