Lerajjareanra-O-Kel-ly v. Zmuda et al

Filing 77

MEMORANDUM DECISION AND ORDER Defendants' Partial Motion to Dismiss (Dkt. 61 ) is DENIED. Defendants' Motion for Summary Judgment (Dkt. 62 ) is GRANTED. Plaintiffs' Motion in Opposition to Defendants' Motion for SummaryJudgment (Dkt. 70) is DENIED. Plaintiff's entire case is DISMISSED with prejudice. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LERAJJAREANRA-O-KEL-LY,
Case No. 1:10-cv-263-MHW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
JEFFREY ZMUDA; PAM SONNEN;
DEBBIE WEEDON; LORI BRISBIN;
JAMES LOUCK; KEVIN BUTLER;
JOHN HARDISON; MICHAEL
JOHNSON; KEITH YORDY;
JOHANNA SMITH; JEFFREY HENRY;
RODNEY SCHLIENZ; ALAN LEE;
TIMOTHY RICHARDSON; SARAH
LINK; GARTH LYONS; JAY
CHRISTENSEN; DAVID VEHLING;
BRENT REINKE; TODD MARTIN;
KIMBERLY JONES; L. YOUNG;
MARK AIELLO; VERNON
GREENLAND; LARISSA PFIEFER;
RANDY BLADES; SHANNON
NICHOLS; VICKY HANSEN; JIMMIE
CROSBY; SGT. OVERGAARD;
PSYCH. TECH. HEINRICH; and JOHN
AND JANE DOES 1-20, employees of
the State of Idaho Board of Correction
and Idaho Department of Correction;
Defendants.

Pending before the Court are Defendants’ Partial Motion to Dismiss (Dkt. 61),
Defendants’ Motion for Summary Judgment (Dkt. 62), and Plaintiffs’ Motion in
Opposition to Defendants’ Motion for Summary Judgment (Dkt. 70). All parties have

MEMORANDUM DECISION AND ORDER - 1

consented to the jurisdiction of a United States Magistrate Judge to enter final orders in
this case. (Dkt. 74.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having reviewed the record, the Court finds that the parties have adequately
presented the facts and legal arguments in the briefs and record and that the decisional
process would not be significantly aided by oral argument. Therefore, in the interest of
avoiding delay, the Court shall decide this matter on the written motions, briefs and
record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters
the following Order.
DEFENDANTS’ MOTION TO DISMISS FOR FAILURE
TO EXHAUST ADMINISTRATIVE REMEDIES
1.

Background
In 2006, Plaintiff was designated as a PREA (Prison Rape Elimination Act)

inmate. Prison officials justified this label because they had two reports that Plaintiff had
sexually assaulted other inmates, and because Plaintiff appeared to be grooming young
inmates (for example, ages 18, 19, and 20) for sexual relationships or abuse. As a result,
Plaintiff was placed in administrative segregation until his release in 2011, despite
Plaintiff’s allegations that the PREA designation was based upon false information. While
in segregation, Plaintiff complained that his cell was too cold from time to time.
After initial review of the Complaint, Plaintiff was permitted to proceed on the
following claims: (1) that Defendants violated Plaintiff’s First Amendment rights when
they acted out of retaliation for Plaintiff’s jailhouse lawyer activities when they refused to
remove his predator points, remove his PREA designation, or release him from ad-seg;
(2) that Defendants violated Plaintiff’s Fourteenth Amendment due process rights when
MEMORANDUM DECISION AND ORDER - 2

they refused to remove his predator points, remove his PREA designation, give him
meaningful housing reviews, or release him from ad-seg; (3) that Plaintiff’s Fourteenth
Amendment equal protection rights were violated because, among other reasons, other
inmates who engaged in sexual activity were not PREA-designated nor were they kept in
administrative segregation; and (4) that Defendants violated the Eighth Amendment by
housing Plaintiff in unreasonably cold temperatures. (Dkt. 18.)
Defendants now seek dismissal of Plaintiff’s Eighth Amendment Claims for failure
to exhaust administrative remedies. (Dkt. 61.)
2.

Standard of Law
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA),1 a prisoner is

required to exhaust all administrative remedies within the prison system before he can
bring a civil rights lawsuit challenging the conditions of his confinement. 42 U.S.C. §
1997e(a). “There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007).
The Jones v. Bock Court noted that the important policy concern behind requiring
exhaustion is that it “allows prison officials an opportunity to resolve disputes concerning
the exercise of their responsibilities before being haled into court.” Id. at 204. In addition,
the Jones v. Bock Court cited with approval the observation that “the primary purpose of a
grievance is to alert prison officials to a problem, not to provide personal notice to a
particular official that he may be sued; the grievance is not a summons and complaint that
initiates adversarial litigation.” Id. at 219 (internal citation omitted).

1

110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e, et seq.

MEMORANDUM DECISION AND ORDER - 3

Where there is an “informal[]” and “relative[ly] simpl[e]” prison grievance system,
prisoners must take advantage of it before filing a civil rights complaint. Woodford v.
Ngo, 548 U.S. 81, 103 (2006). “Proper” exhaustion of administrative remedies is
required, meaning that “a prisoner must complete the administrative review process in
accordance with the applicable procedural rules, including deadlines, as a precondition to
bringing suit in federal court.” Id. at 85. Proper exhaustion is “defined not by the PLRA,
but by the prison grievance system itself.” Jones v. Bock, 549 U.S. at 218. Therefore, the
“level of detail necessary in a grievance to comply with the grievance procedures” will be
defined by the prison's own grievance policy. Id.
Failure to exhaust administrative remedies is an affirmative defense that should be
brought as an unenumerated 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.
2003). In deciding a motion to dismiss for failure to exhaust administrative remedies, a
court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20.
Defendants bear the burden of proving failure to exhaust. Brown v. Valoff, 422 F.3d 926
(9th Cir. 2005). The United States Court of Appeals for the Ninth Circuit has instructed
that “pro se claims are construed liberally for purposes of the exhaustion requirement.”
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008) (immigration context)
(relying on Agyeman v. INS, 296 F.3d 871, 878 (9th Cir. 2002) and Estelle v. Gamble,
429 U.S. 97, 106 (1976)).

MEMORANDUM DECISION AND ORDER - 4

3.

IDOC Grievance Policy
A prisoner held in custody of the Idaho Department of Correction (IDOC) must

attempt to resolve any “problem or action” related to his incarceration using the prison’s
internal grievance system. (Exhibit A to Affidavit of Christina Kearney, Technical
Records Specialist/Acting IMSI Grievance Coordinator, Standard Operating Procedure
Control Number 316.02.01.001, Docket No. 61-2.) IDOC has a relatively straightforward
three-step system, which requires the prisoner to submit an informal concern form
describing the problem, file a formal grievance, and submit an appeal of any adverse
decision. (Kearney Aff., ¶¶ 4-12.)
The prisoner begins this process by routing the concern form to the staff member
most capable of addressing the problem. (Id. at ¶¶ 4-5.) If the issue is not resolved, the
prisoner must complete a grievance form, attach a copy of the concern form, and file the
grievance within 30 days of the incident. (Id. at ¶ 6.) The “grievance coordinator” at the
prison will route a properly-completed grievance to the appropriate staff member, who
must respond within 10 days. (Id. at ¶ 9.)
After the staff member responds, the coordinator forwards the grievance to the
“reviewing authority,” who, after reviewing the prisoner’s complaint and the staff
member’s response, issues a decision. (Id.) If the prisoner is dissatisfied with the
reviewing authority’s decision, he may then appeal within 5 days to the “appellate
authority.” (Id. at ¶ 12.) The appellate authority has 14 days to issue a final decision,
whereupon the grievance is routed back to the inmate, thus concluding the administrative
review process. (Id. at ¶¶ 13-14.)

MEMORANDUM DECISION AND ORDER - 5

4.

Discussion
Defendants argue that the Eighth Amendment claim is subject to dismissal without

prejudice because Plaintiff did not file any grievance related to inadequately-heated living
quarters. (Id. at ¶ 18.) Of the 56 grievances Plaintiff submitted in the two years preceding
the filing of the Complaint in this action (April 22, 2008, to April 22, 2010), none
addressed temperatures in administrative segregation. (Id.)
Plaintiff argues that he filed a grievance regarding inadequate heating in his cell,
but his grievance was returned to him because he had more than three pending grievances
on other matters in the system. (Dkt. 67, citing Exhibits 1518, 1519.) Plaintiff also argues
that he filed another grievance on the condition after May 14, 2006. (Dkt. 67, citing
Exhibit 1507.)
Defendants do not disagree with Plaintiff’s characterization of the facts, but argue
that Plaintiff simply failed to follow the grievance procedure set forth by IDOC by
attempting to maintain more than three pending grievances at one time. (Dkt. 73.) The
Court disagrees, because the procedure effectively forecloses prisoners from filing
legitimate grievances. Prisoners are required to file grievances within a certain number of
days, or the grievances will not be accepted. Should a prisoner have four legitimate
grievances at roughly the same time, he will be able to pursue only three, and whether he
can file the fourth in time is wholly dependent upon whether prison officials process the
other three before the time for the filing of the fourth grievance expires. Here, the prison
has chosen to make the grievance system unavailable to any prisoner who already has
three pending grievances. See Nuñez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (If

MEMORANDUM DECISION AND ORDER - 6

prison officials have effectively prevented a prisoner from exhausting his complaints, or
if the prison has a grievance system in theory but not in practice, then the failure to
complete the system may be excused). Accordingly, Defendants’ Motion for Partial
Summary Dismissal will be denied.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants assert entitlement to summary judgment on all of Plaintiff’s claims.
1.

Standard of Law

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no
genuine dispute as to any material fact. “Material facts are those that may affect the
outcome of the case.” See id. at 248. The moving party is entitled to summary judgment
if that party shows that each material issue of fact cannot be disputed. To show that the
material facts are not in dispute, a party may cite to particular parts of materials in the
MEMORANDUM DECISION AND ORDER - 7

record, or show that the materials cited do not establish the presence of a genuine dispute,
or that the adverse party is unable to produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court
must consider “the cited materials,” but it may also consider “other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or opposition to a motion "must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence
must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted). If the moving party meets its initial
responsibility, the burden then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
The existence of a scintilla of evidence in support of the non-moving party’s
position is insufficient. Rather, “there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. Rule 56(e)(3)
authorizes the Court to grant summary judgment for the moving party “if the motion and
MEMORANDUM DECISION AND ORDER - 8

supporting materials– including the facts considered undisputed–show that the movant is
entitled to it.”
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To
maintain a claim under § 1983, a plaintiff must show the existence of four elements: “(1)
a violation of rights protected by the Constitution or created by federal statute (2)
proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.”
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Section 1983 is “‘not itself a
source of substantive rights,’ but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker
v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
2.

Official Capacity Claims
The United States Supreme Court has determined that the Eleventh Amendment

generally prohibits litigants from bring suits against states, state agencies, and state
officials acting in their official capacity. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139 (1993). Therefore, Plaintiff’s claims against Defendants in
their official capacity can be maintained for the remedy of prospective injunctive relief
only. Ex parte Young, 209 U.S. 123 (1908). However, an inmate’s transfer or release from
prison renders his injunctive relief claims moot. See Wiggins v. Rushen, 760 F.2d 1009,
1011 (9th Cir. 1985); Dilley v. Gunn, 64 F.3d 1365, 1369 (9th Cir. 1995).
Here, Plaintiff has been released from prison. Therefore, any official capacity
claims for prospective injunctive relief are moot, and Defendants are entitled to summary
judgment on any such claims.

MEMORANDUM DECISION AND ORDER - 9

3.

Res Judicata and Collateral Estoppel (Issue and Claim Preclusion)
In their Supplemental Briefing in Support of the Motion for Summary Judgment,

Defendants argue that Plaintiff’s claims (other than the Eighth Amendment claim) are
barred by the doctrines of claim and issue preclusion, based on Plaintiff’s prior state civil
rights action on the same subject matter. (Dkt. 76.) These defenses were first raised in
Defendants’ Answer (Dkt. 32, p. 5), and are more fully briefed in their Supplement. (Dkt.
76.) Plaintiff has not responded to the Supplemental Briefing, although the Court set out a
schedule for doing so. (Dkt. 75.) Accordingly, the Court considers Defendants’ factual
assertions supporting the supplemental Motion for Summary Judgment undisputed. See
Local Rule 7.1(e)(2).
A.

Background

Plaintiff previously filed and pursued to a conclusion on the merits a civil rights
complaint in the Second Judicial District Court, in Clearwater County, Idaho. The case
was entitled O-Kel-ly v. Jones, et al. (O-Kel-ly I) (Affidavit of Attorney Megan
Goicoechea, Exhibit A, Dkt. 76-1.) The complaint was filed on April 16, 2009, and the
case was eventually changed to an Ada County venue, where Judge Richard D.
Greenwood presided over the matter (Id.)
In an amended complaint filed in that action, Plaintiff alleged that, while in
custody of the IDOC, he was improperly classified as a sexual predator and wrongfully
placed and kept in administrative segregation for over three years. (Goicoechea Affidavit,
Exhibit C, p. 5, Dkt. 76-2.) He alleged violations of the First Amendment, the Due
Process Clause, and the Equal Protection Clause. (Id., Exhibit B.)

MEMORANDUM DECISION AND ORDER - 10

The case terminated when Judge Greenwood granted summary judgment to
Defendants on, among other claims, Plaintiff’s claim that his procedural due process
rights were violated by being placed in long-term administrative segregation. Judge
Greenwood found that Plaintiff was not deprived of a liberty interest such that due
process protections were required. (Id., Exhibit D.) Judgment was entered on July 1,
2011, dismissing Plaintiff’s case. (Id., Exhibit E.)
B.

Applicability Between State and Federal Courts

Claim preclusion and issue preclusion prevent parties and their privies from
bringing or having to defend a claim or re-litigate an issue arising from the transaction
that gave rise to the first suit. Both claim and issue preclusion are affirmative defenses
that may be asserted in federal courts, regardless of where the original facts were tried,
including, as is the case here, state courts. See 28 U.S.C. § 1738 (federal courts must
afford full faith and credit to state judicial proceedings); Migra v. Warren City Sch. Dist.
Bd. of Educ., 465 U.S. 75 (1984) (federal courts hearing § 1983 actions must give res
judicata preclusive effect to state court judgments); Allen v. McCurry, 449 U.S. 90 (1980)
(federal courts hearing § 1983 actions must give collateral estoppel preclusive effect to
state court judgments). To determine whether a state court case should have preclusive
effect on a federal action, federal courts apply the state’s rules governing preclusion. See
Migra, 465 U.S. at 83-85.
C.

Claim Preclusion

Idaho law provides that the party asserting claim preclusion as an affirmative
defense bears the burden of establishing all of its essential elements by a preponderance

MEMORANDUM DECISION AND ORDER - 11

of the evidence. Foster v. City of St. Anthony, 841 P.2d 413, 420 (Idaho 1992). For claim
preclusion to bar a subsequent action there are three requirements: (1) the same parties or
privies; (2) the same claim; and (3) a final judgment. Ticor Title Co. v. Stanion, 157 P.3d
613 (Idaho 2007) (citing Hindmarsh v. Mock, 57 P.3d 803,10-263 805 (Idaho 2002));
Farmers Nat'l Bank v. Shirey, 878 P.2d 762, 767 (1994)).
Idaho has adopted the “transactional” approach to claim preclusion, which means
that, “[i]n an action between the same parties upon the same claim or demand, the former
adjudication concludes parties and privies not only as to every matter offered and
received to sustain or defeat the claim but also as to every matter which might and should
have been litigated in the first suit.” Weldon v. Bonner County Tax Coalition, 855 P.2d
868, 872 (Idaho 1993), overruled on other grounds, City of Boise City v. Keep the
Commandments Coalition, 141 P.3d 1123 (Idaho 2006). Accordingly, “[t]he finality of
judgment element does not require that the precise point or question in the present action
be finally resolved in the prior proceeding.” Ticor Title, 157 P.3d at 126 (citing Shirey,
878 P.2d at 769).
D.

Discussion

The “Memorandum Decision re: Cross Motions for Summary Judgment” entered
by Judge Greenwood in O-Kel-ly I determined:
Procedural due process was not violated when Plaintiff was placed
in long-term administrative segregation in this case. The determination was
made for the purposes of institutional security, safety, and welfare of the
inmates. Long-term administrate segregation is well within the bounds of a
prisoner’s conviction and nothing in this record indicates that the conditions
of the segregation imposed an atypical or significant hardship on Plaintiff.
Thus, Plaintiff had no liberty interest in remaining free from administrative
segregation. Plaintiff’s claim for procedural due process violations relating
MEMORANDUM DECISION AND ORDER - 12

to his placement in long-term administrative segregation is dismissed.
(Dkt. 76-2, p. 52.)
Based on this order, the Court agrees with Defendants that claim preclusion
applies to bar Plaintiff’s due process, equal protection, and retaliation claims against
Defendants who were named in both actions (Blades, Greenland, Johnson, Jones, Pfeifer,
Reinke, Smith, Zmuda, and Henry), because the three elements of claim preclusion are
met. Though the decision speaks only of the due process claim, the equal protection claim
and retaliation claim that Plaintiff brought, were resolved with the entry of judgment in
that case, under Idaho’s transactional approach to res judicata.
However, the Court disagrees with Defendants that those persons not named as
defendants in O-Kel-ly I but named in O-Kel-ly II are “in privity” with “the Idaho
Department of Correction” to permit them to take advantage of claim preclusion. “To be
privies, a person not a party to the former action must “derive[ ] his interest from one who
was a party to it, that is, ... he [must be] in privity with a party to that judgment.” Ticor,
157 P.3d at 124 (internal citations omitted). Even if this theory can be supported in law,
the Idaho Department of Correction was not a defendant in O-Kel-ly I. In addition, the
Court has found no Idaho case law to support the theory that coworkers can derive their
interest from one another to meet the “privity” requirement.
As to the remaining Defendants in O-Kel-ly II (Sonnen, Reinke, Lyons, Link,
Heinrich, Nichols, Aiello, Overgaard, and Vehling), it is clear that issue preclusion
prevents Plaintiff from relitigating some of the issues finally decided on the merits in OKel-ly I that address central elements of Plaintiff’s due process, equal protection, and

MEMORANDUM DECISION AND ORDER - 13

retaliation causes of action in O-Kel-ly II. Particularly, the state court determined that
“[p]rocedural due process was not violated when Plaintiff was placed in long-term
administrative segregation in this case,” because “[t]he determination was made for the
purposes of institutional security, safety, and welfare of the inmates.” (Dkt. 76-2, p. 52
(emphasis added).) The state court further determined that “nothing in the record
indicates that the conditions of the segregation imposed an atypical or significant hardship
on Plaintiff.” (Dkt. 76-2, p. 52.)
With these issues resolved by O-Kel-ly I, Plaintiff cannot show that (1) he can
meet the threshold issue for a due process claim–whether his conditions were atypical or
significant hardships, such that a due process claim arose; (2) that he can meet the
element of an equal protection argument that his continued placement in administrative
segregation was arbitrary and capricious rather than reasonably related to a legitimate
penological interest;2 or (3) that he can meet the element of a retaliation claim that the
acts of Defendants were not in furtherance of a legitimate penological interest.3
Because the findings of the state court prevent Plaintiff from being able to meet the
2

The United States Court of Appeals for the Ninth Circuit has explained: “In the prison
context . . . even fundamental rights such as the right to equal protection are judged by a standard
of reasonableness – specifically, whether the actions of prison officials are ‘reasonably related to
legitimate penological interests.’” Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (quoting
Turner v. Safley, 482 U.S. 78, 89 (1987)). Even where similarly-situated individuals are treated
differently, state action is presumed constitutional and “will not be set aside if any set of facts
reasonably may be conceived to justify it.” More v. Farrier, 984 F.2d 269, 271 (9th Cir. 1993).
Absent evidence of invidious discrimination, federal courts should defer to the judgment of
prison officials. Id. at 272.
3

One of the elements of a retaliation claim is that the action of prison officials did not
reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68
(9th Cir. 2005).

MEMORANDUM DECISION AND ORDER - 14

essential elements of his claims in this action, Defendants are entitled to summary
judgment on the due process, equal protection, and retaliation claims.
8.

Eighth Amendment Claims
Plaintiff was permitted to proceed on his Eighth Amendment claim that his cell

was inadequately heated, arising from the time period within the statute of limitations
period of May 24, 2008, to October 1, 2010. In their Motion for Summary Judgment,
Defendants assert that Plaintiff has failed to show that he has adequate evidence that
supports the elements of an Eighth Amendment claim for prison conditions that amount to
cruel and unusual punishment.
A.

Standard of Law

To state a claim under the Eighth Amendment, a plaintiff must show that he is
incarcerated “under conditions posing a substantial risk of serious harm,” or that he has
been deprived of “the minimal civilized measure of life’s necessities.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (internal citation omitted). A plaintiff must also show
that Defendants were deliberately indifferent to the plaintiff’s needs. Deliberate
indifference exists when an official knows of and disregards an unconstitutional condition
or when the official is aware of facts from which the inference could be drawn that a risk
of harm or violation exists, and actually draws the inference. Farmer v. Brennan, 511
U.S. at 837.

MEMORANDUM DECISION AND ORDER - 15

B.

Discussion

The record reflects the following. In Plaintiff’s Amended Complaint, he alleges
that “[c]ompared to my general population cell at ICIO which was adequately heated, I
am now subjected to uncomfortable cold temperature and conditions due to inadequate
hearing which has and continues to inflict physical pain upon me due to my arthritis
(degenerative disc disease in my neck) which cause[s] me severe muscular tightness,
muscle pain and migraines. These conditions are worsened by defendants refusing to
issue me undergarments and a[n] extra blanket to keep me warm.” (Dkt. 15-1, ¶¶ 114115.) Plaintiff clarified in his deposition that he wore a neck scarf and thermals to stay
warm. (Dkt. 76-3, p. 16.)
The remainder of the record addressing the inadequate heating issue is a series of
Offender Concern Forms and Grievances regarding inadequate cell temperatures
submitted by Plaintiff in response to the Motion for Summary Judgment. Plaintiff
provided an Offender Concern form dated October 28, 2009, when he complained of cold
cell temperatures. The Response on October 30, 2009, was “Today Maintenance came to
your cell and checked the temperature inside the cell. The temperature of your cell was
67E and the air coming out of your vent is 70E. Due to you covering your vent slightly
you are not allowing proper air flow to your cell.” (Dkt. 68-2, p. 2.) Plaintiff next filed a
Grievance stating that Maintenance agreed to turn up the temperature, and yet his cell still
remained too cold for him. (Dkt. 68-2, p. 4.) The Grievance was returned because
Plaintiff already had three other pending grievances in the system. (Dkt. 68-2, p. 5.)
On November 23, 2009, Plaintiff submitted another Offender Grievance Form

MEMORANDUM DECISION AND ORDER - 16

complaining of inadequate temperatures, stating that the window frame was improperly
insulated, and that his degenerative arthritis was bothering him as a result of the cold. The
response on December 1, 2009, was: “Put in a Health Services Request Form for medical
assistance and possible memo. The cells are at appropriate temp.” (Dkt. 68-2, p. 6.)
Plaintiff sent in a third Offender Concern Form on December 14, 2009,
complaining that the heat was inadequate. The response of December 15, 2009, was that
Plaintiff should notify the staff for a temperature reading. (Dkt. 68-2, p. 7.)
About a year later, Plaintiff sent in a Offender Concern Form on December 27,
2010, to complain of cold cell temperatures. The reply of December 27, 2010, was:
“Forwarded to Warden Blades on 12-27-10. Maintenance reports that they have checked
the cells and they are at 70E on the average. Any other consideration should come through
you[r] unit manager/sergeant.” (Dkt. 68-2, p. 8.)
One day later, Plaintiff sent in an Offender Concern Form, complaining that his
cell had been cold for the past two to three months. On December 30, 2010, the response
was: “The heat was turned up on Dec. 29, 2010 to account for the cold weather.” (Dkt.
68-2, p. 9.)
Plaintiff had no complaints of inadequate hearing until March 18, 2011, when
Plaintiff complained: “For around a week my cell as well as others have been extremely
cold due to inadequate heating.” Plaintiff was instructed to notify the unit staff if the
problem persisted and to submit a Health Services Request form for his medical issues.
(Dkt. 68-2, p. 10.)
The foregoing series of correspondence between prison staff and Plaintiff show

MEMORANDUM DECISION AND ORDER - 17

that staff were consistently responsive to Plaintiff’s requests to determine whether the
temperature was in a range that could be considered cruel and unusual. Plaintiff has
brought forward nothing showing that temperatures within 67 to 70E are not within the
range of comfortable indoor temperatures during the winter, or that, in actuality, his cell
temperature was not 67 to 70E. Staff suggested that, if Plaintiff had medical issues that
made the regular temperatures unbearable, he should contact the medical unit for
additional help. At some point in time, Plaintiff received additional winter garments to aid
his condition, as he noted in his deposition.
The Court concludes that Plaintiff has failed to bring forward sufficient evidence
to show that he was housed in conditions posing a substantial risk of serious harm or that
he was deprived of the minimal civilized measure of life’s necessities. In addition, he has
failed to bring forward evidence to show that Defendants were deliberately indifferent to
his complaints. Rather, the record shows that they responded to Plaintiff’s complaints in a
timely and appropriate manner, including sending Maintenance to check the temperatures
several times, suggesting that Plaintiff not block his heat vent, suggesting that Plaintiff
contact the medical unit for a “memo” or other aid for his particular health conditions,
and turning up the heat on several occasions.
Plaintiff has not shown that Defendants knew of and disregarded an
unconstitutional condition or that Defendants were aware of facts from which the
inference could be drawn that a risk of harm or violation existed, and actually drew the
inference. Farmer v. Brennan, 511 U.S. at 837. Accordingly, because Plaintiff has failed

to bring forward sufficient evidence on which the jury could reasonably find for him on

MEMORANDUM DECISION AND ORDER - 18

his Eighth Amendment claim against Defendants, see Anderson, 477 U.S. at 252, they are
entitled to summary judgment.
ORDER
IT IS ORDERED:
1.

Defendants’ Partial Motion to Dismiss (Dkt. 61) is DENIED.

2.

Defendants’ Motion for Summary Judgment (Dkt. 62) is GRANTED.

3.

Plaintiffs’ Motion in Opposition to Defendants’ Motion for Summary
Judgment (Dkt. 70) is DENIED.

4.

Plaintiff’s entire case is DISMISSED with prejudice.
DATED: September 7, 2012

Honorable Mikel H. Williams
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 19