Weeks v. Espinda et al

Filing 45

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 41 - Signed by JUDGE J. MICHAEL SEABRIGHT on 7/29/11. ("The Clerk of the Court is directed to close the case file.") (emt, )CERTIF ICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Todd Brewer Weeks shall be served by First Class Mail at the address of record on August 1, 2011.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TODD BREWER WEEKS,
Plaintiff,
vs.
NOLAN ESPINDA, et al.,
Defendants.
____________________________

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CIVIL NO. 10-00305 JMS/KSC
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Pro se Plaintiff Todd Brewer Weeks (“Plaintiff”), a former inmate at
Halawa Correctional Facility (“HCF”), brings this action against Defendants HCF
Warden Nolan Espinda (“Warden Espinda”), HCF Medical Director J. Marc
Rosen, M.D. (“Rosen”), and HCF physician Sisar Paderes, M.D. (“Paderes”),
(collectively “Defendants”),1 pursuant to 42 U.S.C. § 1983. Plaintiff alleges that
during his incarceration at HCF, Defendants violated his Eighth Amendment rights
when they knowingly housed him with other inmates who were infected with

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In its initial screening order, the court overlooked that Plaintiff asserted that Warden
Espinda also violated Plaintiff’s Eighth Amendment right to a safe environment. Because
Defendants’ summary judgment arguments apply equally to Warden Espinda as they do to Rosen
and Paderes, the court addresses Plaintiff’s claims against Warden Espinda as well.

tuberculosis (“TB”), resulting in Plaintiff testing positive for TB exposure.
Currently before the court is Defendants’ Motion for Summary
Judgment in which they argue that there is no genuine issue of material fact that
Plaintiff was exposed to TB at HCF, that Defendants were personally involved in
any alleged constitutional violations or, to the extent they were involved, that they
were deliberately indifferent to Plaintiff’s serious medical needs. ECF. No. 41.
Based on the following, the court GRANTS Defendants’ Motion for Summary
Judgment.
II. BACKGROUND
A.

Factual Background
Because Plaintiff filed no Opposition to Defendants’ Motion for

Summary Judgment, the following facts are uncontested.
On December 1, 2009, Plaintiff was transferred to HCF from Saguaro
Correctional Center (“SCC”) in Arizona. Kaplan Decl. ¶ 8, ECF No. 42-5. On
February 7, 2010, Plaintiff was given his annual Mantoux Purified Protein
Derivative (“PPD”) TB skin test, which indicated he had been exposed to TB.
Rosen Decl. ¶ 14, ECF No. 42-1. This was Plaintiff’s first positive TB skin test -his previous annual PPD test, administered on February 18, 2009 at SCC, had been
negative for TB exposure. Id. ¶ 12.
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Prior to this positive TB skin test, Plaintiff visited the HCF clinic
three times. Specifically, on January 4, 2010, Paderes examined Plaintiff when he
complained of an upper respiratory infection, gastroesophageal reflux disease
(“GERD”), a cough, and rhinitis. Paderes Decl. ¶¶ 6-7, ECF No. 42-4. Paderes
treated Plaintiff by providing chlortrimeton antihistamine for his rhinitis and
congestion, Robitussin for his cough, Prilosec and Tums for his GERD, and
ointment for his dry skin. Id. ¶ 7. During Plaintiff’s next two visits to the medical
unit on January 20 and 30, 2010, Plaintiff complained of a stye in his eye, and
requested “medical recreation” so that he could jog at a time separate from the
other inmates. Rosen Decl. ¶¶ 41-42, ECF No. 42-1.
As a result of Plaintiff’s positive TB test, on March 9, 2010, Plaintiff
received a chest x-ray, which confirmed that he did not have active TB. Plaintiff
was instead diagnosed with and counseled regarding his Latent TB Infection
(“LTBI”). Id. ¶¶ 16, 18. To prevent Plaintiff’s LTBI from becoming active, prison
medical staff advised Plaintiff to take 300 mg. of isoniazid (“INH”) orally every
day for nine months, which Plaintiff began doing on March 24, 2010. Id.
¶ 18. Plaintiff continued to receive INH until his transfer to the Oahu Community
Correctional Center (“OCCC”) on August 10, 2010. Id. ¶ 19, Kaplan Decl. ¶ 11,
ECF No. 42-5.
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TB is spread only by a person with active, not latent, TB. Rosen Decl.
¶¶ 20, 27, 31, ECF No. 42-1. There were no known cases of prisoners with active
TB at either HCF or SCC from February 2009 (when Plaintiff last tested negative
for TB at SCC) to February 2010 (when Plaintiff tested positive for TB exposure at
HCF). Id. ¶ 49. Potential sources of Plaintiff’s exposure to active TB include
visitors to SCC or HCF who had active TB or anyone with active TB who came
into contact with Plaintiff during his transport to HCF from SCC. Id. ¶ 51.
Plaintiff never developed active TB while at HCF. Id. ¶ 47.
On November 23, 2010, Plaintiff was released on parole. Kaplan
Decl. ¶ 12, ECF No. 42-5.
B.

Procedural Background
On May 24, 2010, Plaintiff filed this action, alleging that Defendants

knowingly and with deliberate indifference housed him in the HCF general
population with TB-infected inmates resulting in his exposure to TB. Compl. at 8,
ECF No. 1. Although not clear, it appears that Plaintiff makes supervisory liability
claims against Rosen and Espinda.
On May 31, 2011, Defendants filed their Motion for Summary
Judgment. On June 1, 2011, the court issued an entering order explaining that
Plaintiff’s Opposition was due on June 24, 2011 and provided a “Notice to Pro Se
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Litigants” to Plaintiff explaining his duties in responding to a motion for summary
judgment. ECF No. 43; see also ECF No. 30. Plaintiff failed to file an Opposition.
Pursuant to Local Rule 7.2(d), the court elects to decide this matter without a
hearing.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
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that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor” (citations omitted)).
IV. DISCUSSION
Plaintiff alleges that during his incarceration at HCF, Defendants
violated his Eighth Amendment rights when they knowingly housed him with TB6

infected inmates resulting in his testing positive for TB exposure. Defendants
argue that summary judgment should be granted because, among other reasons,
there is no genuine issue of material fact that: 1) Plaintiff was exposed to TB at
HCF, 2) Defendants were personally involved in the constitutional violations
alleged, or 3) to the extent they were involved, they were deliberately indifferent to
Plaintiff’s serious medical needs in any way.
“To sustain an action under [42 U.S.C. §] 1983, a plaintiff must show
‘(1) that the conduct complained of was committed by a person acting under color
of state law; and (2) that the conduct deprived the plaintiff of a federal
constitutional or statutory right.’” Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir.
2007) (citation omitted), vacated and remanded on other grounds, 129 S. Ct. 2431
(2009); West v. Atkins, 487 U.S. 42, 48 (1988).
The Supreme Court has recognized that exposure to contagious
diseases may violate the Eighth Amendment if prison officials, acting with
deliberate indifference, expose a prisoner to a sufficiently substantial “risk of
serious damage to his future health.” Helling v. McKinney, 509 U.S. 25, 35 (1993).
Thus, an Eighth Amendment infringement may occur if an inmate is confined with
a fellow prisoner known to have a serious contagious disease spread by airborne
particles, such as TB. See Bolton v. Goord, 992 F. Supp. 604, 628 (S.D.N.Y.
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1998).
Inadequate or negligent medical care does not constitute cruel and
unusual punishment cognizable under 42 U.S.C. § 1983 unless the mistreatment
rose to the level of “deliberate indifference to serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). The Ninth Circuit applies a two-part test for
deliberate indifference:
First, the plaintiff must show a serious medical need by
demonstrating that failure to treat a prisoner’s condition could
result in further significant injury or the unnecessary and
wanton infliction of pain. Second, the plaintiff must show the
defendant’s response to the need was deliberately indifferent.
This second prong -- defendant’s response to the need was
deliberately indifferent -- is satisfied by showing (a) a
purposeful act or failure to respond to a prisoner’s pain or
possible medical need and (b) harm caused by the indifference.
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations and
quotations omitted).
Deliberate indifference requires that a detention official must
“know[ ] of and disregard[ ] an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). The test is a subjective one because
“prison officials who lacked knowledge of a risk cannot be said to have inflicted
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punishment.” Id. at 844. “[A]n official’s failure to alleviate a significant risk that
he should have perceived but did not, while no cause for commendation, cannot
under our cases be condemned as the infliction of punishment.” Id. at 838.
Plaintiff alleges that while at HCF, Defendants knowingly housed
“confirmed cases of TB infected inmates among general population,” resulting in
his positive TB skin test. Compl. at 5, ECF No. 1. In other words, he claims that
Defendants demonstrated deliberate indifference to the transmission of TB within
HCF when they exposed inmates without TB to inmates with it. This claim
presupposes two facts -- that Plaintiff was exposed to an inmate at HCF with active
TB (because only active, not latent, TB is communicable) and that the Defendants
knew Plaintiff was exposed to inmates with active TB. If true, this would certainly
amount to exposing Plaintiff to a sufficiently substantial “risk of serious damage to
his future health,” to constitute an Eighth Amendment violation. Helling, 509 U.S.
at 35.
Defendants have proven (without any response by Plaintiff), however,
that Plaintiff’s allegations lack any evidentiary support. Viewing the facts in the
light most favorable to Plaintiff, there is no evidence that there were any inmates
infected with active TB while Plaintiff was housed at HCF. Rosen Decl. ¶ 49, ECF
No. 42-1. And that means there is necessarily no evidence that Defendants housed
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Plaintiff with any active TB-infected inmates. On this basis alone, Plaintiff’s claim
that he was exposed to inmates with “communicable” TB at HCF fails and
Defendants are entitled to summary judgment.
Even if Plaintiff could prove that he was exposed to an HCF inmate
with active TB, there is no evidence that prison officials acted with deliberate
indifference. There is simply no evidence in the record that Rosen, Paderes, or
Espinda knew of a risk to Plaintiff; that is, without knowledge that any HCF
inmate carried an active TB virus, Defendants could not have disregarded an
excessive risk to Plaintiff’s health or safety. In short, they had no subjective
knowledge of a risk, and thus could not have inflicted punishment on Plaintiff.
Further, without any underlying constitutional violation there is no
supervisory liability as to Espinda or Rosen. Section 1983 supervisory liability is
premised on “culpable action, or inaction, [] directly attribut[able] to them.” Starr
v. Baca, --- F.3d ----, 2011 WL 2988827, at *2 (9th Cir. July 25, 2011) . The
supervisor’s participation could include his “own culpable action or inaction in the
training, supervision, or control of his subordinates,” “his acquiescence in the
constitutional deprivations of which the complaint is made,” or “conduct that
showed a reckless or callous indifference to the rights of others.” Id.
(internal citations, quotation marks, and alterations omitted).
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No such showing has been made in this case. Even reviewing
Espinda’s and Rosen’s own practices, however, the court finds no Eighth
Amendment violations. Although Plaintiff claims that HCF allowed a “practice”
of housing active-TB infected inmates with healthy inmates to exist, the record is
devoid of any such evidence. Further, the State of Hawaii Department of Public
Safety TB Control Policy states multiple times that inmates shall be isolated if they
have symptoms consistent with active TB or they refuse to take a TB test. Rosen
Decl. Exs. A, B. ECF No. 42-2.
V. CONCLUSION
Based on the above, the court GRANTS Defendants’ Motion for
Summary Judgment. The Clerk of the Court is directed to close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 29, 2011.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Weeks v. Espinda et al., Civ. No. 10-00305 JMS/KSC, Order Granting Defendants’ Motion for
Summary Judgment

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