Sheridan v. Reinke et al

Filing 117

MEMORANDUM DECISION AND ORDER Plaintiff's Motion for Leave to File Affidavit (Dkt. 85 ) is GRANTED. CCA Defendants' Objection to Plaintiff's Motion for Leave to File Affidavit and Motion to Strike Affidavit (Dkt. 86 ) is DENIED. C CA Defendants' Motion for Summary Judgment (Dkt. 91 ) is GRANTED. All claims against Defendants CCA, Valdez and Rodriguez are hereby dismissed with prejudice. Defendant Corizon, Inc.'s Motion for Summary Judgment (Dkt. 95 ) is GRANTED and all claims against Defendant Corizon are hereby dismissed with prejudice. Defendant Reinke's Motion for Summary Judgment (Dkt. 96 ) is GRANTED and all claims against Defendant Reinke are hereby dismissed with prejudice. Plaintiff's Motio n for Leave to File Supplemental Pleadings Rule 15 Fed. R. Civ. Procedure (Dkt. 107 ) and Motion for Supplemental Pleadings Rule 15(d) Fed. R. Civ. Procedure (Dkt. 108 ) are DENIED to the extent Plaintiff has not filed any supplemental pleading wit h these Rule 15(d) Motions, but Plaintiff's request to submit the Higgins Report in support of his response to Defendants' Motions for Summary Judgment is GRANTED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL SHERIDAN,
Case No. 1:10-cv-00359-EJL
Plaintiff,
v.

BRENT REINKE; CMS d/b/a
CORIZON, INC.; PHILIP VALDEZ;
NORMA RODRIGUEZ; MADDOX;
JUSTIN ACOSTA; CHRISTOPHER
ROSE; SERGEANT KERR; CHARLES
FLETCHER; and CORRECTIONS
CORPORATION OF AMERICA,

MEMORANDUM DECISION AND
ORDER

Defendants.

Pending before the Court are the following motions: (1) Plaintiff’s Motion for
Leave to File Affidavit (Dkt. 85); (2) CCA Defendants’ Objection to Plaintiff’s Motion
for Leave to File Affidavit and Motion to Strike Affidavit (Dkt. 86); (3) CCA
Defendants’ Motion for Summary Judgment (Dkt. 91); (4) Defendant Corizon, Inc.’s
Motion for Summary Judgment (Dkt. 95); (5) Defendant Reinke’s Motion for Summary
Judgment (Dkt. 96); (6) Plaintiff’s Motion for Leave to File Supplemental Pleadings Rule
MEMORANDUM DECISION AND ORDER- 1

15 Fed. R. Civ. Procedure (Dkt. 107); and (7) Motion for Supplemental Pleadings Rule
15(d) Fed. R. Civ. Procedure (Dkt. 108.) The Court finds that the decisional process
would not be aided by oral argument. After reviewing the record, the arguments of the
parties, and the relevant case law, the Court enters the following Order addressing all
pending motions.
PROCEDURAL BACKGROUND
Plaintiff commenced this civil rights action on July 16, 2010, alleging that certain
prison officials’ conduct and the conditions of confinement at Idaho Correctional Center
(ICC) violated his rights guaranteed by the Eighth and Fourteenth constitutional
amendments and Title II, Section 504 of the Americans with Disabilities Act. (Dkt. 1.) In
the Court’s Initial Review Order, Plaintiff was permitted to proceed only with his Eighth
Amendment claim against Defendants Corrections Corporation of America (CCA),
Rodriguez and Valdez (CCA Defendants) regarding the conditions of confinement at
ICC. (Dkt. 14, pp.8-10.) Plaintiff subsequently filed an Amended Complaint (Dkt. 20),
and in the Court’s Initial Review of the Amended Complaint and Scheduling Order (Dkt.
47), Plaintiff was permitted to proceed with his Eighth Amendment claim against
Defendants Reinke and Corizon, Inc. for their alleged deliberate indifference to Plaintiff’s
serious medical needs, and with his First Amendment retaliation claim against Defendant
Reinke for Plaintiff’s out-of-state transfer to a facility in Oklahoma in July 2008 and his
September 2010 transfer from Idaho State Correctional Institution (ISCI) to ICC. (Id.,
pp.4-7, 10-11.) All other claims and defendants were dismissed.
MEMORANDUM DECISION AND ORDER- 2

During the discovery period in this case, Plaintiff was deposed by Defendants’
counsel on December 14, 2012. (Dkt. 91-6, p.2.) Plaintiff then filed two separate
affidavits with the Court regarding the manner in which the deposition was conducted and
identified some alleged technical errors that occurred in the taking of the deposition.
(Dkts. 82, 85.)
On February 20, 2013, CCA Defendants timely filed a Motion for Summary
Judgment (Dkt. 91), and on February 28, 2013, Defendants Corizon and Reinke each
timely filed their respective Motion for Summary Judgment as well. (Dkts. 95, 96.) All
three Motions for Summary Judgment have been fully briefed and were ripe as of April
11, 2013.
Two months later, on June 19, 2013, Plaintiff filed a Motion for Leave to File
Supplemental Pleadings Rule 15 Fed. R. Civ. Procedure (Dkt. 107) and a Motion for
Supplemental Pleadings Rule 15(d) Fed. R. Civ. Procedure (Dkt. 108). In these Motions
Plaintiff requests a stay of the proceedings in this case so that he can obtain additional
evidence that Defendants allegedly failed to disclose during discovery.
PRELIMINARY MOTIONS
1.

Plaintiff’s Motion for Leave to File Affidavit (Dkt. 85) and CCA Defendants’
Objection to Plaintiff’s Motion for Leave to File Affidavit and Motion to
Strike Affidavit (Dkt. 86)
After Plaintiff was deposed on December 14, 2012, Plaintiff filed an Affidavit on

December 26, 2012 regarding the deposition and the three defense attorneys who
questioned him during the deposition. (Dkt. 82.) The next month, Plaintiff filed the
MEMORANDUM DECISION AND ORDER- 3

pending Motion for Leave to File Affidavit, and in the accompanying Affidavit Plaintiff
describes the following errors or omissions related to the same deposition: (1) there is no
audio file of the deposition available to Plaintiff; (2) Plaintiff did not receive a true and
correct copy of the transcript; (3) the deposition was not properly concluded in
accordance with Federal Rule of Civil Procedure 30(b)(5)(C); and (4) in two instances in
the middle of the deposition, Attorney Stoll did not state “off the record,” the time they
went off the record, or “back on the record” when the deposition resumed. (Dkt. 85-1,
pp.1-2.) Although Plaintiff points out these alleged technical errors, he does not state how
he was prejudiced or otherwise harmed by them, nor does he inform the Court of what
remedy he is seeking. Indeed, because “[t]here are no relevant pending motions to which
the affidavits relate,” CCA Defendants argue “there is simply no reason for the
affidavits,” so they object to Plaintiff’s Motion for Leave to File Affidavit and request
that the Court strike the December 26, 2012 Affidavit. (Dkt. 86, p.2.)1
Because the deposition at issue is relied upon in the pending Motions for Summary
Judgment, the Court will grant Plaintiff’s Motion for Leave to File Affidavit and deny
CCA Defendants’ Motion to Strike Affidavit. Nonetheless, the deposition transcript will
remain part of the record and the Court will consider it when rendering its decision on the
pending Motions for Summary Judgment. Plaintiff has complained about his deposition
solely on technical grounds but has not shown how he was prejudiced or harmed thereby,
1

The remaining Defendants Reinke and Corizon each filed Joinders to CCA Defendants’
Objection to Plaintiff’s Motion for Leave to File Affidavit and Motion to Strike Affidavit. (See Dkts. 87,
90.)
MEMORANDUM DECISION AND ORDER- 4

nor has he provided any legitimate reason why technical errors such as the ones he has
delineated in his Affidavit “cannot be rectified in the absence of bona fide prejudice” to
Plaintiff. Pogue v. Woodford, 2009 WL 2777768 *2 (E.D. Cal. 2009); see also Lake’s
Unlimited, Inc. v. Allen, 1997 WL 268453 *2 (9th Cir. 1997) (trial court properly
admitted deposition transcript when petitioner objected to its inclusion solely on technical
grounds). Thus his Affidavits will remain in the record, but so will the deposition
transcript itself.
2.

Plaintiff’s Motion for Leave to File Supplemental Pleadings Rule 15 (Dkt.
107) and Motion for Supplemental Pleadings Rule 15(d) (Dkt. 108)
Two months after the briefing was completed on the three Motions for Summary

Judgment, Plaintiff filed a Motion for Leave to File Supplemental Pleadings Rule 15 Fed.
R. Civ. Procedure (Dkt. 107) and a Motion for Supplemental Pleadings Rule 15(d) Fed.
R. Civ. Procedure (Dkt. 108). In these Motions Plaintiff alleges that, because Defendants
have failed to disclose “critical evidence” to him, he is entitled to a stay of the
proceedings in this case so that he can obtain that evidence. The “critical evidence”
Plaintiff requests is: (1) the so-called “Higgins Report”, which is a letter prepared by an
IDOC investigator dated August 7, 2008 and addressed to the Warden at ICC regarding
an “initial analysis of violence at ICC”; and (2) evidence purportedly requested in another
case pending before this Court regarding CCA being understaffed, CCA admitting to
falsifying staffing reports, and CCA ceding too much power to the inmate gangs. (Dkt.
108, pp.1-2.) Defendants object to Plaintiff’s Motions as being untimely and procedurally

MEMORANDUM DECISION AND ORDER- 5

and factually improper. (Dkts. 110, 111.)
Federal Rule 15(d) is used when a party seeks to supplement the pleadings to
allege facts occurring after the original pleadings were filed. See Cabrera v. City of
Huntington Park, 159 F.3d 374, 382 (9th Cir.1998) (“Rule 15(d) permits the filing of a
supplemental pleading which introduces a cause of action not alleged in the original
complaint and not in existence when the original complaint was filed.”) (quotation
omitted). Specifically, Federal Rule 15(d) provides as follows:
On motion and reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the
pleading to be supplemented. The court may permit supplementation
even though the original pleading is defective in stating a claim or
defense. The court may order that the opposing party plead to the
supplemental pleading within a specified time.
Fed. R. Civ. P. 15(d). Thus, Rule 15(d) applies only to pleadings, which are the
complaint, answer, reply and sur-reply. It is not the proper rule or procedure to request a
stay of the proceedings, or to obtain evidence allegedly withheld during the discovery
period. Accordingly, Plaintiff’s Motion for Leave to File Supplemental Pleadings Rule 15
Fed. R. Civ. Procedure and Motion for Supplemental Pleadings Rule 15(d) Fed. R. Civ.
Procedure will be denied to the extent Plaintiff has not filed any supplemental pleading
with these Rule 15(d) Motions or made a request to do so.
Nonetheless, the Court will liberally construe Plaintiff’s Rule 15(d) Motions as a
singular Rule 16(b) motion to reopen discovery. In doing so, however, there are two
competing alleged dilatory actions at issue: one is that Plaintiff was not diligent in timely
MEMORANDUM DECISION AND ORDER- 6

propounding any discovery requests upon Defendants that would have covered the
Higgins Report and similar evidence (see Dkt. 111-1, p.2); the other issue is that
Defendants did not produce to Plaintiff the Higgins Report and possibly other evidence
that may have fallen under their Rule 26 voluntary duty of disclosure. See Fed. R. Civ. P.
26(a)(1)(A). The Court also acknowledges that one of its primary goals is “to get cases
decided on the merits of issues that are truly meritorious and in dispute.” In re
Phenylpropanolamine (PPA) Prods. Liab., 460 F.3d 1217, 1227 (9th Cir. 2006).
To balance the parties’ interests and reduce the anticipated delay attendant with
Plaintiff’s belated request, the Court will permit Plaintiff to submit and rely on the
Higgins Report to supplement his Response to the Defendants’ Motions for Summary
Judgment, but will not permit him to conduct any other discovery, including Plaintiff’s
vague reference that evidence being sought in another case regarding alleged
wrongdoings by CCA is relevant to this case. (See Dkt. 108, p.2.) An important factor in
the Court’s decision is that, even assuming for the sake of argument that the Higgins
Report and other evidence put Defendants on notice of a substantial inmate-on-inmate
violence problem at ICC, Plaintiff still has not brought forward any facts upon which a
jury could find that the violence caused the injuries and damages of which Plaintiff
complains, namely an exacerbation of his PTSD symptoms. This lack of causation is
discussed further in the Court’s analysis of Defendants’ Motions for Summary Judgment
below. In summary, Plaintiff’s Motion for Leave to File Supplemental Pleadings Rule 15
Fed. R. Civ. Procedure and Motion for Supplemental Pleadings Rule 15(d) Fed. R. Civ.
MEMORANDUM DECISION AND ORDER- 7

Procedure will be denied to the extent Plaintiff has not filed any supplemental pleading
with these Rule 15(d) Motions, but Plaintiff’s request to submit the Higgins Report in
support of his response to Defendants’ Motions for Summary Judgment will be granted.
MOTIONS FOR SUMMARY JUDGMENT
Defendants have filed three separate Motions for Summary Judgment. (Dkts. 91,
95, 96.) The Court will set forth the governing standard of law as to all three motions,
followed by a separate analysis of each motion for summary judgment along with its
relevant undisputed facts and applicable law.
1. Standard of Law
A. Summary Judgment

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
MEMORANDUM DECISION AND ORDER- 8

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
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 in 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
MEMORANDUM DECISION AND ORDER- 9

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
supporting materials– including the facts considered undisputed–show that the movant is
entitled to it." Fed. R. Civ. P. 56(e)(3).
B. Section 1983 Claims
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To have
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).2 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)).
An essential element of a § 1983 case is that the plaintiff show that the defendants’

2

42 U.S.C. § 1983, provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State, . . . subjects or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
MEMORANDUM DECISION AND ORDER- 10

actions caused the deprivation of a constitutional right. 42 U.S.C. § 1983; Arnold v.
International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). “The
causation requirement of § 1983 . . . is not satisfied by a showing of mere causation in
fact[;] [r]ather, the plaintiff must establish proximate or legal causation.” Id. The Ninth
Circuit has explained: “A person ‘subjects’ another to the deprivation of a constitutional
right, within the meaning of § 1983, if he does an affirmative act, participates in another’s
affirmative acts, or omits to perform an act which he is legally required to do that causes
the deprivations of which he complains.” Id. (internal citation omitted); see also Hydrick
v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007).
2. CCA Defendants’ Motion for Summary Judgment (Dkt. 91)
A. Undisputed Facts
This section includes facts that are undisputed and material to the resolution of the
issues in this case. Where material facts are in dispute, the Court has included Plaintiff’s
version of facts, insofar as that version is not contradicted by clear documentary evidence
in the record.
Plaintiff is an inmate in the custody of Idaho Department of Corrections (IDOC).
Beginning April 7, 2000, Plaintiff was initially incarcerated at ISCI and then transferred
to Idaho Maximum Security Institution (IMSI) on April 19, 2000. (Dkt. 91-11, p.2.) On
January 5, 2001, Plaintiff was transferred to ICC, a private prison operated by CCA.
Plaintiff resided there for over seven years until he was transferred to an out-of-state
facility in Oklahoma on July 21, 2008. Prior to the transfer to the Oklahoma facility
MEMORANDUM DECISION AND ORDER- 11

(when Plaintiff was housed at ISCI, IMSI and ICC between April 2000 and July 2008),
Plaintiff ’s unit, block or bunk assignment was changed 12 times. (Id.) Plaintiff was
transferred back to ISCI on April 20, 2009, and then transferred to ICC on September 14,
2010 where he currently resides. (Id.)
Prior to his incarceration, Plaintiff was diagnosed with Post-Traumatic Stress
Disorder (PTSD) as a result of his military service in the Vietnam War. (Dkts. 92-4, p.41;
100-1, p.16.) PTSD is “an anxiety disorder that occurs after exposure to a traumatic event
or series of events involving intense fear, helplessness or horror, such as combat
exposure, child sexual or physical abuse, terrorist attack, sexual or physical assault,
serious accident or natural disaster.” (Khatain Decl., Dkt. 91-4, p.3.) PTSD symptoms
include persistent re-experiencing (for example, recurrent flashbacks or nightmares),
persistent avoidance of thoughts, feelings or conversations about the traumatic event, and
increased arousal (for example, hyper-vigilance, exaggerated startle response, or outbursts
of anger). One who suffers from PTSD may also exhibit self-destructive behavior, shame,
despair, impaired relationships with others, and may also have an increased risk of panic
disorders. (Id., pp.3-4.) There are no primary physical injuries associated with PTSD;
however, there are secondary physical problems that may be associated with PTSD, with
the most common being headaches and gastrointestinal problems. (Id., p.5.)
The two main categories of treatment of PTSD are therapy and medication. Many
types of mental health professionals provide therapy for individuals with PTSD: clinical
social workers, master’s level clinicians, clinical psychologists, and psychiatrists. (Id.)
MEMORANDUM DECISION AND ORDER- 12

Plaintiff’s claims against the CCA Defendants arise from his incarceration at ICC,
which as set forth above, occurred between January 2001 to July 2008, and then from
September 2010 until now. In his Complaint and Amended Complaint, Plaintiff alleges
that the CCA Defendants are responsible for the “wholesale fear, intimidation, and
violence within the prisoner population” at ICC, and that the violence, in turn,
exacerbated his PTSD. (Dkt. 20, p.12.) Plaintiff further claims that Defendants Rodriguez
and Valdez fostered the violent conditions at ICC, and that the following ICC policies
further account for the violent and degrading conditions: inadequate training, supervision
and number of staff; failure to adequately investigate acts of violence; failure to discipline
guards for misconduct; failure to properly discipline prisoners who attack other prisoners;
staff maintaining a “code of silence;” encouragement of prisoner violence as a
management tool; and a general promotion of a culture of degradation and humiliation.
(Dkt. 1, p.4.)
Regarding the alleged violence at ICC, Plaintiff admits that he was involved “in
one fight in 2003 that was unavoidable” but other than that incident, he has never been
attacked at ICC. (Dkt. 91-7, p.17). When asked about the alleged policies that furthered
the violent and degrading conditions at ICC, the only policy Plaintiff identified in his
deposition is an allegation in another lawsuit that Defendant Valdez “put sex offenders in
the same cell with the documented violent inmates.” (Id., p.41.) When counsel asked
Plaintiff to be more specific about the policies enacted at ICC that fostered violence,
Plaintiff repeatedly said he was “not an informant” and if he provided names of inmates
MEMORANDUM DECISION AND ORDER- 13

injured as a result of the policies, “that puts my life in danger.” (Id., pp.41-42.)
As to Plaintiff’s PTSD, a number of mental health professionals have treated
Plaintiff for this disorder during his incarceration at ICC. Dr. Khatain, the ICC
psychiatrist, provides the overall direction, coordination and leadership for the mental
health services at ICC. He routinely assesses and provides a DSM3 diagnosis for inmates
and prescribes and monitors psychotropic medications. (Dkt. 91-4, p.3.)
The CCA also employs two Mental Health Coordinators (MHC) at ICC who plan
the professional mental health service programs and coordinate the activities of personnel
engaged in providing mental health services to inmates.4 (Dkt. 91-5, p.2.) The MHC is the
point of contact for all inmate concerns and issues regarding their mental health,
including medication, treatment, symptom identification and control, and prevention of
behavioral escalation. (Id.) The MHC also serves as a clinician who identifies and
responds to mental health symptoms presented by an inmate, recommends a course of
treatment, and acts as an advocate for an inmate regarding his mental health. (Id.). The
MHC works closely with the ICC psychiatrist, Dr. Khatain, and IDOC’s chief
psychologist, Dr. Craig. Dr. Reed was a prior ICC psychologist and his name appears
throughout Plaintiff’s mental health records. (Id., p.3.)

3

DSM refers to the Diagnostic and Statistical Manual of Mental Disorders published by the
American Psychiatric Association. This manual provides the nomenclature and standard criteria for the
classification of mental disorders. (Dkt. 91-4, p.3.)
4

The current MHCs are Trent Gray and Alexander Black. Prior MHCs have included W.L.
Maddox, and A.J. Lee, whose names appear throughout Plaintiff’s mental health records. (Dkt. 91-5, p.2.)
MEMORANDUM DECISION AND ORDER- 14

ICC coordinates its mental health services with mental health staff and prison
management to assist those with PTSD symptoms, including mental health supervisors,
the in-house psychiatrist, and correctional and case management staff. (Id., p.4.) ICC
mental health staff work with inmates on self-help strategies and methods of using
cognitive behavioral therapy approaches, and they provide brief crisis counseling with
individuals experiencing acute PTSD symptoms. MHCs facilitate a “process of recovery”
class that uses cognitive behavioral methods to teach inmates a variety of self-help coping
and adjustment skills for a variety of anxiety and stress disorders, including PTSD. (Id.)
In addition, ICC makes referrals for inmates with acute PTSD symptoms to the
Behavioral Health Unit (BHU) 16 House at ISCI if it appears the inmate is experiencing
extreme anxiety, panic attacks, night-terrors, etc. (Dkt. 103-2, p.5.) The BHU provides
more intensive, regular and specific treatment interventions with therapists as well as
forms of group therapy and support groups. (Id.)
Plaintiff’s ICC medical records include the following mental health requests that
Plaintiff submitted, the basis for their submissions, and the treatment options that were
offered or provided to Plaintiff by various ICC mental health staff members:
(1) In 2001, Plaintiff submitted eight Health Services Request (HSR) forms, and in
seven of these HSRs he requested to see “a psychiatrist or psychologist”, or he
specifically requested to see Dr. Reed, the ICC psychologist at the time. Plaintiff was
seen by a psychologist in response to each of those HSRs, and Plaintiff’s mental health
records indicate he discussed a variety of topics with the psychologist, including his
MEMORANDUM DECISION AND ORDER- 15

PTSD in general and his refusal to see a psychiatrist or consider medication, his “multiple
lawsuits and anger at Mormons” (Dkt. 92-1, p.19), mail delivery (Dkt. 92-1, p.18), his
issues with an inmate (Dkt. 92-4, p.69), his “legal case only” (Dkt. 92-1, p.26), his “legal
case . . . [and] brief history of why he went to trial . . . PTSD from Vietnam and future
goals if awarded money” (Dkt. 92-1, p.32), a letter from Plaintiff’s brother (Dkt. 92-1,
p.29), Plaintiff’s “difficulty in living in pod with roommates,” and a request for protective
custody. (Dkt. 92-1, p.31.) The only 2001 HSR not responded to by a psychologist is
dated September 19, 2001, wherein Plaintiff stated “doctor-patient-confidentiality” as his
concern; but when a nurse at sick call attempted to meet with Plaintiff on September 21,
2001, he refused to be seen by the nurse. (Dkt. 92-1, p.27.)
(2) In 2002, Plaintiff submitted four HSRs regarding his PTSD. MHC Maddox
responded to each of these HSR submissions in writing as follows: on April 29, 2002, he
noted “currently there is no PTSD therapy group” but “several psychotropic meds are
available to treat PTSD” (Dkt. 92-1, p.40); on August 26, 2002, he wrote that Plaintiff’s
request for his medical records pertaining to PTSD would be handled through Health
Services Administration (HSA) (Dkt. 92-1, p.41); on September 16, 2002, he noted that
he would schedule Plaintiff an appointment with Psychiatrist Dr. Khatain to discuss
Plaintiff’s “PTSD and psychological torture in IDOC system” (Dkt. 92-1, p.44); and on
October 29, 2002, MHC Maddox indicated he would schedule Plaintiff to have another
psychiatry appointment with Dr. Khatain. Plaintiff met with Dr. Khatain in August,
September, and November 2002. (Dkts. 92-1, pp.46-47; 92-4, p.25; 92-1, p.48.) At each
MEMORANDUM DECISION AND ORDER- 16

of these appointments, Dr. Khatain discussed Plaintiff’s PTSD and the benefits of
psychotropic medications, but each time Plaintiff refused to take any medication. In
addition, Plaintiff stated that he “does not trust the sytem” (Dkt. 92-1, p.47) and that he
“feels he’s doing OK and doesn’t want any [meds].” (Dkt. 92-1, p.48.)
(3) Plaintiff submitted two HSRs in 2003: on April 11, 2003, Plaintiff requested
“treatment for PTSD service-connected USMC”, and MHC Maddox noted that “images
of war on TV are bringing back [Plaintiff’s] PTSD, needs psych. appt.” (Dkt. 92-4, p.55);
and on December 2, 2003, Plaintiff requested an appointment with “Dr. Maddox” but
MHC Maddox noted “anxiety/depression, patient reports PTSD - refuses psych appt.”
(Dkt. 92, p.10.) Nurse Stephens also visited Plaintiff in his segregation cell on December
3, 2003, as a follow up to his December 2, 2003 HSR. (Dkt. 92-1, p.55) Plaintiff “stated
he was unhappy with psychology and psychiatry services ... that he now knew that Mr.
Maddox was not a psychologist, [and] Dr. Khatain ‘just issued pills’ and did nothing else
to help him.” (Id.) Plaintiff did agree, however, to be seen by Dr. Khatain again in the
future. (Id.)
Plaintiff met with Dr. Khatain on two different occasions in 2003: on May 17,
2003, Dr. Khatain’s Clinic Notes indicate Plaintiff “had no interest in meds” and that the
“recent war and subsequent reported placement of a ‘black muslim’ in my cell have made
my PTSD worse” (Dkt. 92-1, p.54); and on December 28, 2003, Dr. Khatain’s Clinic
Notes state that Plaintiff “wanted me to document that he has never received treatment for
his mental issues, that the MH therapists were not psychologists and were actually only . .
MEMORANDUM DECISION AND ORDER- 17

. clinicians. [Dr. Khatain] explained that these individuals were still here to help him if he
chose to accept that help . . . [Plaintiff] acknowledged he continues with nightmares and
other classic PTSD symptoms but he was doing fine without meds and didn’t want to try
any.” (Dkt. 92-1, pp.55-56.)
(4) In 2004, Plaintiff submitted an HSR on March 14, 2004 “requesting
appointment to see outside psychologist at chapel” but MHC Maddox’s follow-up notes
indicate this request was a misunderstanding. (Dkt. 92-4, p.54.) Plaintiff’s only other
mental health request in 2004 was on August 16, 2004, wherein he requested an
appointment with Dr. Khatain. (Dkt. 92-4, p.50.) Dr. Khatain met with Plaintiff on
August 28, 2004, and his Clinic Notes indicate Plaintiff “only wants me to document that
[he has] PTSD and that [he’s] not being allowed to see a psychologist to get the treatment
[he] need[s].” (Dkt. 92-1, p.63.) Dr. Khatain further noted Plaintiff expressed no
willingness to consider meds, so he then concluded: “Please do not send this pt. back to
me again, unless he specifically agrees to try med(s). Otherwise his visits with me are
only reinforcing his sense that I am somehow ‘helping him’ by writing down his
complaints, etc.” (Id.)
(5) In 2005, Plaintiff submitted only two HSRs (both in January), and each time he
requested an appointment with a psychologist, not a psychiatrist or clinician. In response
to the January 2, 2005 HSR, MHC Lee met with Plaintiff on January 3, 2005 and Plaintiff
refused to talk to him (Dkt. 92-4, p.49). As to Plaintiff’s second HSR dated January 28,
2005, a nurse noted that Plaintiff was “to see Dr. Khatain.” (Dkt. 92-4, p.40.) On
MEMORANDUM DECISION AND ORDER- 18

February 6, 2005, a nurse’s Clinic Notes indicate Plaintiff came to obtain a referral to an
outside psychologist but the psychiatrist informed Plaintiff he is not able to write an
outside referral. Plaintiff said he “is planning to sue the facility” and left medical. (Dkt.
92-4, p.20.)
(6) In 2006, Plaintiff submitted just one HSR on November 1, 2006, “requesting
appointment to see psychologist not psychiatrist.” (Dkt. 92-4, p.38.) Plaintiff was seen in
medical and referred to mental health, but on November 10, 2006, Plaintiff signed a
refusal of treatment for a mental health visit. (Dkt. 92-3, p.68.)
(7) In 2007, Plaintiff submitted one HSR on August 16, 2007 “requesting the cost
of appointment to confer with psychologist from private practice” and in response he was
scheduled for a medical callout (Dkt. 92-2, p.9.) But on August 20, 2007 Plaintiff signed
a refusal of treatment for the referral. (Dkt. 92-3, p.66.) A Comprehensive Mental Health
Evaluation dated December 23, 2007 noted the following about Plaintiff: “PTSD, no
meds/states handling.” (Dkt. 92, p.8.)
(8) On January 8, 2008, Plaintiff submitted an HSR complaining of an “ulcer” and
the nurse’s documentation says “see protocol.” (Dkt. 92-2, p.16.) The corresponding
protocol sheet notes that Plaintiff complained of emesis and indigestion on January 18,
2008. He was given pepto and told to return “if more emesis.” (Id., p.15.) As previously
noted, Plaintiff was transferred from ICC to another facility in Oklahoma on July 21,
2008, and then back to ISCI on April 20, 2009.
(9) When Plaintiff was transferred back to ICC on September 14, 2010, a
MEMORANDUM DECISION AND ORDER- 19

Comprehensive Mental Health Evaluation was conducted and the MHC noted that
Plaintiff “appears functional and well” and no action was taken. (Dkt. 92, p.6.) Plaintiff
then submitted two HSRs in October, both of which requested an “appointment with
psychologist-PhD”. (Dkt. 92-2, pp.35,38.) MHC Black interviewed Plaintiff and noted
that Plaintiff was “hostile and uncooperative” and “resistive to talking with me.” (Dkts.
92-2, p.35; 92-5, p.8.) MHC Black also noted that Plaintiff insisted that only a
psychologist could help him and after re-informing Plaintiff about the mental health
services at ICC, Plaintiff “again refused to participate in any assessment to ascertain his
symptom severity which would allow for plan development.” (Dkt. 92-5, p.8.)
(10) On June 14, 2011, the same day Plaintiff filed his Amended Complaint, he
submitted an HSR complaining of heart palpitations. (Dkt. 92-2, p.53.) The nurse’s
Progress Notes state Plaintiff complained of “coercion” to go to TC or DEF and was very
upset about this, but he had no symptoms of acute distress. (Dkt. 92-2, p.57.)
B. Analysis
Plaintiff has alleged that CCA Defendants are liable for incarcerating Plaintiff at
ICC in conditions that are excessively violent and degrading, which aggravated Plaintiff’s
PTSD symptoms in violation of the Eighth Amendment. To prevail on this conditions of

confinement claim, Plaintiff must meet both an objective and subjective requirement.
Plaintiff satisfies the objective requirement by showing that he is incarcerated under
conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825,
834 (1994). Second, the prison official must have a sufficiently culpable state of mind.
MEMORANDUM DECISION AND ORDER- 20

Id. Plaintiff must show that the defendants were deliberately indifferent to the substantial
risk of harm, which is established by showing that an official knows of and disregards a
condition posing a substantial risk of harm, or that the official is “aware of facts from
which the inference could be drawn that a substantial risk of harm exists,” and actually
draws the inference. Id. at 837.
CCA Defendants argue that summary judgment is appropriate because Plaintiff has
failed to establish that any of the materials facts regarding his claim are in dispute, nor
has he produced any admissible evidence to adequately support his claim. Specifically,
CCA Defendants argue that Plaintiff has failed to show that he was incarcerated under
conditions posing a substantial risk of serious harm, that CCA had a policy or custom
amounting to deliberate indifference which caused Plaintiff’s alleged deprivation, that
Defendants Valdez or Rodriguez were personally deliberate indifferent to Plaintiff’s
safety, or that Plaintiff suffered any physical injury.
Having thoroughly reviewed the parties’ arguments and the evidence presented
herein, the Court finds Plaintiff has failed to adequately support his conclusory allegation
that violent conditions at ICC caused physical injury to Plaintiff. As set forth below,
Plaintiff has failed to satisfy the objective prong of the Farmer test – showing that he was
incarcerated under conditions posing a substantial risk of serious harm – so summary
judgment is appropriate, especially when CCA Defendants’ objective evidence shows
otherwise. Gonzales v. Carillo, 2013 WL 1700964 *8 (C.D. Cal. 2013) (despite plaintiff’s
subjective fear of imminent harm, defendant’s motion for summary judgment was granted
MEMORANDUM DECISION AND ORDER- 21

when plaintiff failed to set forth specific facts or evidence demonstrating the existence of
a triable issue that he was subject to an objectively substantial risk of harm while in the
general population); Soto v. Felker, 265 F. App’x 605, 606 (9th Cir. 2008) (district
court’s grant of summary judgment was proper because appellant’s conclusory allegations
regarding his Eighth Amendment claim were insufficient to controvert defendants’
evidence); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (summary judgment
motion cannot be defeated by relying solely on conclusory allegations unsupported by
factual data).
The undisputed evidence in the record shows that while incarcerated at ICC,
Plaintiff filed numerous HSR Forms specifically requesting to see a “PhD psychologist”
for his PTSD. In response to each of the HSR Forms Plaintiff submitted, an ICC mental
health or medical professional (including, on occasion, the ICC psychologist) met with,
counseled, treated, or attempted to treat Plaintiff’s PTSD symptoms of which he routinely
complained. CCA Defendants have provided the Court with Plaintiff’s voluminous ICC
medical record, which includes these various mental health and medical professionals’
notes and summaries of their visits and conversations with Plaintiff regarding the
counseling, treatment, or attempted treatment of Plaintiff’s PTSD. In all of Plaintiff’s
HSRs and his ICC medical record, however, there is not a single contemporaneous
complaint or comment about the violence at ICC – either the overall condition of violence
at ICC or any specific violent attacks upon or attempted at Plaintiff – and how that
aggravated or exacerbated Plaintiff’s PTSD symptoms. Rather, Plaintiff complained of
MEMORANDUM DECISION AND ORDER- 22

such things as his black muslim cellmate, the mail delivery, his ongoing and anticipated
litigation matters, and the war images on TV.
Plaintiff maintains that he repeatedly told the ICC mental health and medical staff
that the violent conditions affected his PTSD (see, e.g., Dkt. 91-7, pp.16-27) but when
asked in his deposition why his medical records do not contain a single reference to the
violent or dangerous conditions aggravating Plaintiff’s PTSD symptoms, Plaintiff stated
that “CCA is notorious for being corrupt and incompetent” and “[CCA has] two sets of
books.” (Dkt. 91-7, pp.21-22.) Plaintiff’s conclusory statements about CCA’s overall
corruption and duplicitous bookkeeping, however, is unsupported by any evidence in the
record. Even if this were true, not one of Plaintiff’s own HSR forms mentions the violent
or dangerous conditions at ICC as the basis for his aggravated PTSD symptoms, and
Plaintiff has not provided the Court with any explanation whatsoever for this significant
omission.
Similarly, Plaintiff was repeatedly asked in his deposition to describe specific
incidents of violence at ICC that aggravated his PTSD between January 2001 and July
2008, and from September 2010 through the present; he could not. Plaintiff was involved
in one fight in 2003 for which he was issued a Disciplinary Offense Report, but other than
that, Plaintiff admits that he has never been attacked at ICC. (Dkt. 91-7, p.17.)
In summary, “Plaintiff’s claim that he was forced to endure a ‘constant threat of
violence’ is too general and conclusory to make the objective showing required on an
Eighth Amendment claim.” Funk v. Schriro, 2009 WL 4898262 *7 (D. Ariz. 2009)
MEMORANDUM DECISION AND ORDER- 23

(district court granted summary judgment because Plaintiff failed to present specific facts
or evidence demonstrating that his placement in a certain prison unit exposed him to an
objectively intolerable risk of harm); Guillen v. Thompson, 2008 WL 5331915 *9 (D.
Ariz. 2008) (dismissing case for failure to state a claim where plaintiff makes only
conclusory and speculative assertions that his safety is threatened and fails to set forth
facts to support claim that he is incarcerated in conditions that pose a substantial risk of
harm or that Defendants acted with deliberate indifference to such risk). Because Plaintiff
cannot satisfy the objective requirement of the Farmer test, the Court need not address
whether a genuine issue of material fact exists as to subjective requirement in Farmer and
whether the CCA Defendants were deliberately indifferent to Plaintiff’s substantial risk of
serious harm.
Moreover, for Plaintiff to reach a jury trial on his Eighth Amendment claim against
the CCA entity, and Defendants Valdez and Rodriguez in their official capacities, the
Court previously informed Plaintiff that he must bring forth sufficient evidence to show
he could satisfy the requirements set forth in Monell v. Dep’t of Social Services of City of
New York, 436 U.S. 658, 691-94 (1978). That is, Plaintiff must show: (1) he was deprived
of a constitutional right; (2) CCA had a policy or custom; (3) the policy or custom
amounted to deliberate indifference to Plaintiff’s constitutional right; and (4) the policy or
custom was the moving force behind the constitutional violation. Furthermore, “liability
for improper custom may not be predicated on isolated or sporadic incidents; it must be
founded upon practices of sufficient duration, frequency, and consistency that the conduct
MEMORANDUM DECISION AND ORDER- 24

has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911,
918 (9th Cir. 1996) (citations omitted).
Although the Court has already determined that Plaintiff has failed to establish a
deprivation of a constitutional right, Plaintiff’s claim against the CCA Defendants would
likewise be denied for failing to establish that ICC had any policy or custom that
amounted to deliberate indifference to Plaintiff’s constitutional right or that it was the
moving force behind a constitutional violation. Plaintiff has not supported the vague
allegations in his Complaint that ICC has policies encouraging prisoner violence as a
management tool, promoting a culture of degradation and humiliation at ICC or having
the staff maintain a “code of silence.” Nor has Plaintiff established that ICC has a custom
or policy of failing to train, supervise and maintain an adequate staff, discipline its guards
for misconduct or discipline other prisoners for attacking other prisoners. (See Dkt. 1,
p.4.)
When defense counsel asked Plaintiff in his deposition about the alleged policies
that furthered the violent and degrading conditions at ICC, the only policy Plaintiff
identified is an allegation made in another lawsuit that Defendant Valdez “put sex
offenders in the same cell with the documented violent inmates.” (Dkt. 91-7, p.41.) When
counsel asked Plaintiff to be more specific about the policies enacted at ICC that fostered
violence, Plaintiff repeatedly said he was “not an informant” and if he provided names of
inmates injured as a result of the violent-based policies, “that puts my life in danger.” (Id.,
pp.41-42.) Plaintiff had another opportunity to establish his claim that ICC enacted
MEMORANDUM DECISION AND ORDER- 25

policies that fostered the violence which purportedly exacerbated his PTSD when he
responded to CCA Defendants’ Motion for Summary Judgment. Rather than providing
admissible evidence (or citing to materials already in the record) showing that such
policies existed and were the “moving force” behind his constitutional deprivation,
Plaintiff referred once again to allegations made in another lawsuit against Defendant
Rodriguez that is pending before this Court. (Dkt. 100, p.2.) Such a reference is both
improper and insufficient to create a triable issue of fact in this case, which is centered on
how the alleged violence caused him personal injury and harm.5
Plaintiff’s allegations of ICC’s violence-based policies and how such policies
caused his alleged constitutional deprivation are unsupported by the record herein; he has
failed to produce admissible evidence to support his policy-based claim of deliberate
indifference in violation of his Eighth Amendment right. See Soremekun v. Thrifty
Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory, speculative testimony in
affidavits and moving papers is insufficient to raise genuine issues of fact and defeat
summary judgment.”) For all of the foregoing reasons, the Court will grant CCA
Defendants’ Motion for Summary Judgment.
3. Defendant Corizon Inc.’s Motion for Summary Judgment (Dkt. 95)
A. Undisputed Facts

5

Because Plaintiff has failed to show a causal link between any violence at ICC and his alleged
injuries and he is not entitled to proceed to a jury trial for that reason, the Court declines to address CCA
Defendants’ alternative argument that Plaintiff’s claim is barred by 42 U.S.C. Section 1997e(e) and its
“physical injury” requirement. (See Dkt. 91-2, pp.16-20.)
MEMORANDUM DECISION AND ORDER- 26

Plaintiff alleges that Defendant Corizon provided constitutionally inadequate
psychological treatment while he was housed at ISCI between April 2009 and September
2010. Corizon is the contracted provider of health care services to inmates at IDOC
facilities, including ISCI. (Dkt. 95-15, p.2.) Corizon itself does not provide medical care
or mental health treatment to inmates; rather, it contracts with physicians and other health
care providers to provide such care and treatment to inmates as independent contractors.
(Id.) These health care providers determine the appropriate medical care or mental health
treatment on a case-by-case basis based upon their education, training and experience and
after considering the patient’s presentation, clinical findings, and medical history. (Id.)
On April 20, 2009, when Plaintiff was transferred to ISCI, Plaintiff underwent an
intake mental health screening provided by one of Corizon’s contracted social workers.
(Dkt. 95-7, p.20.) The social worker who conducted the screening noted that Plaintiff had
a history of “chronic PTSD,” had current complaints of insomnia and irritability, and that
Plaintiff did not take any psychotropic medications. The screening also reflected that only
a routine mental health follow up by a clinician was needed, and that Plaintiff could be
housed in the general population. (Id.)
While incarcerated at ISCI, Plaintiff did not file any HSR forms related to his
psychological care or PTSD condition. Plaintiff only filed one Offender Concern Form
with Deputy Warden of Operations – Shell Wamble-Fisher – on April 9, 2010, requesting
an appointment with a psychologist, “due to my V.A. rating continues at permanent and
total-service connected.” (Dkt. 95-4, p.14.) Deputy Warden Wamble-Fisher responded to
MEMORANDUM DECISION AND ORDER- 27

the Concern Form by informing Plaintiff if he wanted an appointment with a psychologist
at the Veterans Administration, it was his responsibility to make one. Plaintiff did not
appeal the Deputy Warden’s response by filing a Grievance Form, nor did he file any
other Grievance Forms while housed at ISCI. (Dkt. 95-9, p.5.) On September 14, 2010,
Plaintiff was transferred from ISCI back to ICC. (Dkt. 95-14, p.2.)
B. Analysis
Defendant Corizon argues it is entitled to summary judgment regarding Plaintiff’s
claim of deliberate indifference because Plaintiff has failed to “demonstrate the care and
treatment provided to him was constitutionally inadequate, and he has failed to exhaust
his administrative remedies.” (Dkt. 95-1, p.2.)

Plaintiff’s Eighth Amendment claim against Corizon for the alleged inadequate
mental health care he received while housed at ISCI is subject to the same objective and
subjective requirements set forth in Farmer. Plaintiff must meet the objective requirement
of the Farmer test by showing the existence of a serious medical need; then Plaintiff must
satisfy the subjective requirement by showing that prison officials’ “acts or omissions
[were] sufficiently harmful to evidence deliberate indifference to [those] serious medical
needs.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (citing Estelle v. Gamble, 429 U.S.
97, 103-04 (1976)). The Supreme Court has opined that “[b]ecause society does not
expect that prisoners will have unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if those needs are
‘serious.’” Id.
MEMORANDUM DECISION AND ORDER- 28

The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner's condition [that] could result in further
significant injury or the unnecessary and wanton infliction of pain; . .
. [t]he existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment; the
presence of a medical condition that significantly affects an
individual's daily activities; or the existence of chronic and
substantial pain.
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds,
WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
Differences in judgment between an inmate and prison medical personnel
regarding appropriate medical diagnosis and treatment are not enough to establish a
deliberate indifference claim. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
Additionally, the Eighth Amendment does not provide a right to a specific treatment. See
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (“[The plaintiff] is not entitled to
demand specific care. She is not entitled to the best care possible. She is entitled to
reasonable measures to meet a substantial risk of serious harm to her.”). If the defendants
are able to show that medical personnel have been “consistently responsive to [the
inmate’s] medical needs, and there has been no showing that the medical personnel had
“subjective knowledge and conscious disregard of a substantial risk of serious injury,” a
plaintiff’s claims may be dismissed by summary judgment prior to trial. Toguchi v.
Chung, 391 F.3d 1051, 1061 (9th Cir. 2004).
To begin with, Corizon is the contracted health care provider for inmates at IDOC
facilities, including ISCI. (Dkt. 95-15, p.2.) Being an entity and not an individual,
MEMORANDUM DECISION AND ORDER- 29

Corizon itself does not provide mental health treatment to inmates, including Plaintiff.
Rather, Corizon contracts with individual physicians and other health care providers to
provide such care and treatment. (Id.) Accordingly, Plaintiff must satisfy the Monell
standard set forth above to prevail on his Eighth Amendment claim against Corizon,
which in short requires Plaintiff to establish that he was deprived of a constitutional right,
and that Corizon had a policy or custom that was deliberately indifferent to, and the
moving force behind, the constitutional violation. Monell, 436 U.S. at 691-94. In the
Initial Review Order, however, the Court ruled that Plaintiff must first survive summary
judgment regarding the alleged constitutional violation – that Corizon contract workers
were deliberately indifferent to his serious medical needs – before Plaintiff would be
permitted to further pursue and satisfy the policy-based elements of his claim. (Dkt. 47,
p.8.) In other words, if Plaintiff was provided with constitutionally adequate mental
health care by Corizon contract workers, then it is obvious that a Corizon policy did not
cause a constitutional violation. For the reasons set forth below, the Court finds that
Plaintiff has not sufficiently established that Corizon provided constitutionally inadequate
medical care to Plaintiff; Corizon’s Motion for Summary Judgment therefore will be
granted.
A convicted prisoner is entitled to psychological or psychiatric care for serious
mental or emotional illness; there is no underlying distinction between the right to
medical care for physical ills and its psychological or psychiatric counterpart. Inmates of
Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979). In addition, other
MEMORANDUM DECISION AND ORDER- 30

courts in the Ninth Circuit have held that PTSD constitutes a serious medical condition.
Dillman v. Tuolumne Co., 2013 WL 1907379 *11 (E.D. Cal. 2013) (citing Bloodworth v.
Krall, 2011 WL 1043726 *4 (S.D. Cal. 2011)). Accordingly, although Plaintiff’s PTSD
may be considered a serious medical condition and thus satisfy the objective requirement
of the Farmer test, Plaintiff must also show that Corizon was deliberately indifferent to
this serious medical condition. Plaintiff has not established how any of Corizon’s
contracted health care providers failed to provide adequate mental health care to him
while he was housed at ISCI, or how Plaintiff was injured thereby. Neither party has
produced much evidence regarding the mental health care or treatment Plaintiff did or did
not receive at ISCI, but after a review of what evidence there is, the Court finds it is
insufficient to create a triable issue of fact as to Corizon’s deliberate indifference.
When Plaintiff was transferred to ISCI on April 20, 2009, he underwent a
comprehensive mental health screening. (Dkts. 95-15, p.3; 95-17, p.2.) The social worker
who conducted the screening noted that Plaintiff had a history of PTSD, that Plaintiff was
not taking any psychotropic medication, and that he currently complained of insomnia
and irritability. (Dkt. 95-17, p.2.) The social worker further noted that a “routine mental
health follow up” could be done by a clinician (see id.), but there was nothing on the
screening form that indicated it would be necessary for Plaintiff to meet with a
psychologist or psychiatrist to monitor and treat his PTSD. (Dkt. 95-15, p.3.)
On July 9, 2009, the Deputy Warden of Operations, Shell Wamble-Fisher, sent a
memo to Plaintiff wherein she indicated she “received [Plaintiff’s] information on [his]
MEMORANDUM DECISION AND ORDER- 31

disability” and stated that the criteria for being housed in IDOC’s Behavioral Health Unit
depends on the level of mental health needs of the offender. She then told Plaintiff: “I will
have a clinician do a mental health assessment for you and make recommendations for
your treatment. Should the assessment indicate your need to be placed in BHU, the
clinician can make a referral; and placement will be determined at that time.” (Dkt. 102-1,
p.1.)
Plaintiff argues that an assessment was never done, and that he filed HSRs in
response to Deputy Warden’s memo but they “were ignored.” (Dkt. 102, p.2.) Plaintiff
also contends that he was required to submit both copies of the HSR form, so he does not
have a copy of any of the HSRs he submitted to ISCI. (Id.; Dkt. 91-7, pp.45-46.) Corizon
has not submitted any medical records for Plaintiff, and maintains that Plaintiff did not
file any HSRs while housed at ISCI. (See Dkt. 95-1, p.12.) Plaintiff has not specified what
he complained of in the HSRs, or how he was harmed by the health care providers’
alleged refusal to respond to the HSRs. When there has been no showing that the medical
personnel had “subjective knowledge and conscious disregard of a substantial risk of
serious injury,” a plaintiff’s claims may be dismissed by summary judgment prior to trial.
Toguchi, 391 F.3d at 1061.
The only other evidence related to Plaintiff’s claim against Corizon is an Offender
Concern Form Plaintiff filed with the Deputy Warden Wamble-Fisher on April 9, 2010
wherein he wrote: “I inadvertently met the (clinician) last week on Unit 24. He informed
me he was not a psychologist. I’m requesting an appointment with psychologist, due to
MEMORANDUM DECISION AND ORDER- 32

my V.A. rating continues at permanent and total-service connected.” (Dkt. 95-4, p.14.)
The Deputy Warden apparently interpreted Plaintiff’s request as wanting an appointment
with a VA psychologist, because she responded to Plaintiff as follows: “It is your
responsibility to contact the VA. They will need to contact the IDOC for approval to send
their psychologist.” (Id.) Plaintiff did not appeal Deputy Warden Wamble-Fisher’s
response, and his apparent unwillingness to meet with a clinician demonstrates his
continuing refusal to accept the routine initial care offered to inmates with mental health
issues. Moreover, the psychologist at Idaho Maximum Security Institution, who reviewed
ISCI’s care and treatment of Plaintiff, opined that “it was reasonably and medically
appropriate to offer [Plaintiff] specialized group treatment for veterans with PTSD
through clinicians and the staff of the Veterans Administration.” (Dkts. 95-9, p.5; 95-15,
p.3.)
In addition, although Plaintiff contacted Deputy Warden Wamble-Fisher two
different times about his PTSD, there is no evidence in the record that Deputy Warden
Wamble-Fisher ever put Corizon’s contracted health care providers on notice that
Plaintiff should be assessed for possible placement into BHU, or that he requested to see a
psychologist. There can be no deliberate indifference by Corizon’s contracted health care
providers if they did not know of Plaintiff’s needs.
Lastly, the Court agrees with Corizon’s final argument that dismissal of Plaintiff’s
claim is warranted because Plaintiff failed to exhaust his administrative remedies. (Dkt.
95-1, pp.12-14.) An inmate must exhaust his administrative remedies before he can
MEMORANDUM DECISION AND ORDER- 33

pursue a claim in federal court. Woodford v. Ngo, 548 U.S. 81, 88, (2006). Corizon
submitted an Affidavit from the ISCI Grievance Coordinator who describes the
administrative grievance process for resolving an inmate’s health care complaints. (Dkt.
95-9.) In essence, the inmate must first seek an informal resolution to the matter by filing
an Offender Concern Form with the staff person most directly involved with the inmate’s
problem. (Id., p.3.) If an informal resolution is not accomplished, then the inmate must
complete a Grievance Form and in the case of a medical issue, file it with medical staff
who prepares a response that is then reviewed by the Health Services Administrator. (Id.,
pp.3-4.) If the inmate is not satisfied with the response to his grievance, he may appeal
the response to the grievance. For medical grievances, the appeal is forwarded to the
Regional Manager or Vice President of IDOC’s medical contractor. (Id.) The
administrative grievance process is exhausted upon completion of all three steps. (Id.)
The Grievance Coordinator reviewed ISCI’s database for grievances and
determined Plaintiff did not file a single grievance while housed at ISCI; he did not file a
grievance or appeal the Deputy Warden’s response to his April 9, 2010 Concern Form,
nor did he file any other Grievance Forms while housed at ISCI. (Dkt. 95-9, p.5.) Plaintiff
has not refuted any of the evidence showing that he failed to exhaust his administrative
remedies. Accordingly, these undisputed facts provide an additional basis for dismissal of
Plaintiff’s claim against Corizon.
In summary, Corizon’s Motion for Summary Judgment will be granted for
Plaintiff’s failure to show that Corizon’s contracted health care providers were
MEMORANDUM DECISION AND ORDER- 34

deliberately indifferent to Plaintiff’s PTSD, and his failure to exhaust his administrative
remedies.
4. Defendant Reinke’s Motion for Summary Judgment (Dkt. 96)
A. Undisputed Facts
In the Amended Complaint, Plaintiff alleges that Defendant Reinke was
deliberately indifferent to his serious medical needs, and that Defendant Reinke retaliated
against Plaintiff for filing a grievance and this lawsuit by improperly reclassifying him
and transferring him to other facilities. (Dkt. 20, pp. 3,11-12.) These allegations refer to
the time periods Plaintiff was incarcerated at ICC and ISCI– between January 2001 and
July 2008, and from April 2009 until now.
Defendant Reinke is the Director of IDOC, a position he has held since January 1,
2007. (Dkt. 96-3, p.1.) As the Director of IDOC, Defendant Reinke oversees the overall
operations of IDOC and has very little personal contact with individual inmates. (Id., p.2.)
Defendant Reinke has never met Plaintiff, nor has he received any Concern Forms or
Grievances filed by Plaintiff. (Id.) Defendant Reinke is not involved in the day-to-day
operations of any IDOC facility or ICC, and he is not involved in the medical care of any
IDOC inmate. He was never involved with the medical care provided to Plantiff during
his incarceration at ICC and ISCI. (Id.) Defendant Reinke is not involved in the
reclassification of inmates, nor is he involved in the decisions to transfer inmates from
one facility to another; he had no involvement in Plaintiff’s transfers to an Oklahoma
facility on July 21, 2008, or in Plaintiff’s transfer from ISCI to ICC on September 14,
MEMORANDUM DECISION AND ORDER- 35

2010, and he was not involved in Plaintiff’s reclassification in April 2010. (Id., pp.3-4.)
IDOC Standard Operating Procedures (SOP) provide the policies and procedures
related to the classification/reclassification and placement of offenders as well as the
custody level each inmate is assigned. (Dkt. 96-4, p.2.) Inmates are generally reclassified
on an annual basis and a number of factors are used to compute the
classification/reclassification score, including the severity of the inmate’s offense, his
institutional behavior and his parole and release dates. (Id., pp.2-3.) The legitimate
penological goals of the classification system include maintaining safety, security and
order at IDOC facilities, meeting the needs of offenders such as programming and
vocational work opportunities, and protecting the public. (Dkt. 96-5, p.4.) Plaintiff’s April
2010 Reclassification Score Sheet shows that he was reclassified at a medium custody
level in accordance with IDOC policies. (Dkts. 96-4, p.4; 96-8, p.2.)
Further, an inmate’s placement within IDOC is based on his classification/custody
level, IDOC Offender Placement Matrix requirements, pathways and release date, IDOC
needs, and the need to maintain safe levels of populations at the institutions. (Dkt. 96-5,
p.26.) Placement changes or inmate transfers generally occur for one of four reasons: (1)
Case Plan Requirement - based on the inmates’ case plans and treatment needs; (2)
Security Requirements - based on a security need or classification; (3) Medical
Requirement - based on a medical/mental health need or consideration; and (4)
Departmental Requirement - based on a need to fill a vacant bed or facilitate efficient
placement of inmates within IDOC. (Id., p.27.) Similar to the goals of the IDOC
MEMORANDUM DECISION AND ORDER- 36

classification system, each of these reasons promotes a legitimate penological goal –
meeting the inmates’ needs, maintaining safety, security and order at IDOC facilities, and
protecting the public.
B. Analysis
Plaintiff alleges Defendant Reinke violated his Eighth Amendment rights because
he was deliberately indifferent to Plaintiff’s serious medical needs while incarcerated at
ICC and ISCI, and he also violated Plaintiff’s First Amendment rights when he retaliated
against Plaintiff’s filing of a grievance and this lawsuit by improperly reclassifying him
and transferring him to other facilities. Defendant Reinke moves for summary judgment
on these claims because: (1) in his official capacity he is immune from liability: (2)
Defendant Reinke was not deliberately indifferent to Plaintiff’s mental health care; (3)
Defendant Reinke did not participate in the routine and appropriate reclassification of
Plaintiff and his transfers among prison facilities, nor did these actions chill the exercise
of Plaintiff’s First Amendment rights; and (4) he is entitled to qualified immunity. (Dkt.
96-1.)
At the outset, Defendant Reinke argues that if Plaintiff’s claims are made against
Defendant Reinke in his official, rather than individual capacity, they must be dismissed
because a state official is not a “person” under the § 1983, and the Eleventh Amendment
provides immunity from Plaintiff claims for which he seeks only monetary damages. (Id.,
p.2.) However, Plaintiff concedes in his opposing brief that he “is not suing Reinke in his
official capacity”; therefore, this portion of Defendant Reinke’s argument is moot.
MEMORANDUM DECISION AND ORDER- 37

As to Plaintiff’s Eighth Amendment claim that Defendant Reinke was deliberately
indifferent to Plaintiff’s serious medical need, the Court agrees that summary judgment is
appropriate because there is no material factual dispute regarding Defendant Reinke’s
deliberate indifference. In the preceding analysis of Plaintiff’s Eighth Amendment
medical claim against Corizon, the Court has already determined that PTSD is a serious
medical need. However, Plaintiff must also show that Defendant Reinke was deliberately
indifferent to his PTSD. Deliberate indifference is a high standard to meet, set forth by
the United States Supreme Court, and exists only when an official knows of and
disregards a serious medical condition or when an official is “aware of facts from which
the inference could be drawn that a substantial risk of harm exists,” and actually draws
such an inference. Farmer, 511 U.S. at 838.
Plaintiff argues that alleged fines totaling more than $382,500 against Defendant
Corizon, and Defendant Reinke’s signature to a Stipulated Motion to Modify Injunctive
Relief in another case involving psychiatric care at ISCI are “proof of deliberate
indifference.” (Dkt. 101, p.3.) Beyond these allegations, however, nothing in the record of
this case supports Plaintiff’s contention that these alleged fines and stipulated motion in a
separate litigation establish Defendant Reinke’s knowledge and disregard of Plaintiff’s
PTSD.
Plaintiff also claims that because Defendant Reinke is the Director of IDOC, he is
“ultimately responsible” for the health and safety of IDOC prisoners including Plaintiff.
(Id., p.4.) While it is true that Defendant Reinke is the Director of IDOC and oversees the
MEMORANDUM DECISION AND ORDER- 38

overall operations of IDOC and its facilities, he has very little personal contact with
individual inmates. Defendant Reinke is not involved in the daily operations of any IDOC
facility or ICC, nor is he involved in or aware of the medical care of any IDOC inmate,
including the mental health care that was offered or provided to, or denied or refused by
Plaintiff. Furthermore, Defendant Reinke has never met or communicated with Plaintiff,
and has never received any concern forms, grievances or requests for mental health care
from the Plaintiff. (See Dkt. 96-3.) Based on these undisputed facts, the Court finds that
Defendant Reinke did not know, nor was he ever made aware, of Plaintiff and his PTSD
condition. Thus, Plaintiff’s claim that Defendant Reinke was deliberately indifferent to
his serious medical need fails.
Alternatively, Plaintiff’s Eighth Amendment claim against Defendant Reinke will
also be dismissed for failing to show that Defendant Reinke personally participated in the
alleged inadequate medical care. The Court reminds Plaintiff once again that liability
under § 1983 only arises upon a showing of personal participation by the defendant.
Arnold, 637 F.2d at 1355. There is no respondeat superior liability under Section 1983, so
a supervisor is liable for constitutional violations of his subordinates only if the
supervisor knew of, participated in or directed the violations. Thus, Plaintiff’s failure to
provide any evidence that Defendant Reinke had any personal or supervisory
participation in, knowledge of, or control over the mental health care provided to Plaintiff
is another reason to grant summary judgment in favor of Defendant Reinke.
Plaintiff’s remaining claims against Defendant Reinke involves the First
MEMORANDUM DECISION AND ORDER- 39

Amendment. Plaintiff claims Defendant Reinke retaliated against him in violation of his
First Amendment rights on two different occasions: (1) when Plaintiff was transferred to
an Oklahoma facility in July 2008 after Plaintiff filed a grievance against ICC; and (2)
when Plaintiff was “arbitrarily” reclassified in April 2010 and transferred from ISCI to
ICC in September 2010 after Plaintiff filed the instant lawsuit. (Dkt. 20, pp.1-8.)
To prevail on a First Amendment retaliation claim, Plaintiff must provide facts that
establish the following: “(1) An assertion that a state actor took some adverse action
against an inmate (2) because of (3) that prisoner's protected conduct, and that such action
(4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005). A “chilling effect on First Amendment rights” is enough to state
an injury. Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001).
Plaintiff has not submitted any competent evidence to support his retaliation
claims. Regarding Plaintiff’s first claim of retaliation involving his transfer to an
Oklahoma facility in July 2008, Defendant Reinke states that he is and was not involved
in the day-to-day operations of IDOC facilities, including the decisions regarding inmate
transfers. More specifically, he was not involved in any way in Plaintiff’s transfer to
Oklahoma in July 2008. (Dkt. 96-3, p.2.) IDOC records show, and Plaintiff has not
refuted, that Plaintiff did not file any grievances (or send any to Defendant Reinke) for at

MEMORANDUM DECISION AND ORDER- 40

least eight months prior to his transfer to the Oklahoma facility in July 2008.6 (Dkts. 95-9,
p.5.; 95-13, p.2.) In addition, transfers are common in prisons and prisoners do not have a
federally protected liberty interest in being housed in a particular facility. See, e.g.,
Meachum v. Fano, 427 U.S. 215, 225 (1976); Pratt v. Rowland, 65 F.3d 802, 806 (9th
Cir. 1995). In Idaho, prisoners are routinely transferred and done so based on one of the
four legitimate penological interests described above: case plan requirement, security
requirement, medical requirement or departmental requirement.
Prior to his July 2008 transfer to the Oklahoma facility, Plaintiff was housed at
three different facilities – ISCI, IMSI and ICC – and within those facilities his unit, block
or bunk assignment was changed 12 different times. (Dkt. 91-11, p.2.) Plaintiff has failed
to demonstrate that his next transfer to the Oklahoma facility was in any way a retaliatory
move by Defendant Reinke. The records shows that Defendant Reinke is not involved in
prisoner transfers and had no involvement in the decision to transfer Plaintiff in July
2008. Plaintiff has not identified the alleged grievance that was the basis for the purported
retaliation, he has not shown that the transfer did not advance one of IDOC’s four
legitimate penological interests, and he has not shown that the transfer to the Oklahoma
facility chilled the exercise of his First Amendment rights; Plaintiff continued to file
inmate concern forms upon his return to Idaho. (See Dkts. 95-4, pp.14-15.) Accordingly,
Plaintiff’s first claim of retaliation against Defendant Reinke fails.
6

The only grievance in the record is one dated February 27, 2007 in which Plaintiff complains
about ICC Medical refusing to let him see a psychologist. The grievance was returned without action for
the reason that Plaintiff “cannot grieve disciplinary issues. Contact the DHO to file an appeal for a DOR.”
(Dkt. 99-1, pp.5-6.)
MEMORANDUM DECISION AND ORDER- 41

As to the second claim of retaliation, Plaintiff’s claim likewise fails because as
noted above, Reinke is and was not involved in daily prison operations, including the
reclassification and transfer of individual prisoners. He specifically was not involved in
Plaintiff’s April 2010 Reclassification, or Plaintiff’s transfer from ISCI to ICC in
September 2010. (Dkt. 96-3, p.2.) Additionally, there is no causal connection between the
prison’s reclassification and transfer and the lawsuit he filed. Plaintiff was reclassified in
April 2010, three months before he filed this lawsuit, and the reclassification was done in
accordance with IDOC standard operating procedures. (Dkts. 96-4, p.4; 96-8, p.2.)
Finally, the record is devoid of any evidence that Plaintiff’s transfer in September 2010
was not a routine transfer in line with one of IDOC’s four penological interests set forth
above.
Based on the foregoing, undisputed evidence, Plaintiff has failed to create a triable
issue of fact to support his claims that Defendant Reinke had any involvement whatsoever
in his reclassification and facility transfers, and that such actions were retaliatory in
nature and violated his First Amendment rights. Accordingly, the Court will grant
Defendant Reinke’s Motion for Summary Judgment.
Finally, Defendant Reinke argues that he is entitled to qualified immunity as to
each of Plaintiff’s claims. In Section 1983 actions, the doctrine of qualified immunity
protects state officials from personal liability for on-the-job conduct so long as the
conduct is objectively reasonable and does not violate clearly-established federal rights.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). A qualified immunity
MEMORANDUM DECISION AND ORDER- 42

analysis consists of two prongs: (1) whether the facts as alleged by plaintiff establish a
violation of a constitutional right, and (2) whether that right was clearly established given
the state of the law at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S.
223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts may “exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at
hand." Id. at 236. However, "[i]f no constitutional right would have been violated were
the allegations established, there is no necessity for further inquiries concerning qualified
immunity." Saucier, 533 U.S. at 201.
Here, it is both beneficial and expeditious to address the first prong of the Saucier
analysis – whether Plaintiff has alleged facts establishing a violation of a constitutional
right. In the foregoing analysis of Plaintiff's claims against Defendant Reinke, the Court
has determined that Plaintiff has not alleged sufficient facts establishing that his First
Amendment or his Eighth Amendment rights were violated. Thus, Defendant Reinke is
entitled to qualified immunity and it is not necessary to address the second prong of the
Saucier analysis.

ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion for Leave to File Affidavit (Dkt. 85) is GRANTED.

2.

CCA Defendants’ Objection to Plaintiff’s Motion for Leave to File
Affidavit and Motion to Strike Affidavit (Dkt. 86) is DENIED.

MEMORANDUM DECISION AND ORDER- 43

3.

CCA Defendants’ Motion for Summary Judgment (Dkt. 91) is GRANTED.
All claims against Defendants CCA, Valdez and Rodriguez are hereby
dismissed with prejudice.

4.

Defendant Corizon, Inc.’s Motion for Summary Judgment (Dkt. 95) is
GRANTED and all claims against Defendant Corizon are hereby dismissed
with prejudice.

5.

Defendant Reinke’s Motion for Summary Judgment (Dkt. 96) is
GRANTED and all claims against Defendant Reinke are hereby dismissed
with prejudice.

6.

Plaintiff’s Motion for Leave to File Supplemental Pleadings Rule 15 Fed.
R. Civ. Procedure (Dkt. 107) and Motion for Supplemental Pleadings Rule
15(d) Fed. R. Civ. Procedure (Dkt. 108) are DENIED to the extent Plaintiff
has not filed any supplemental pleading with these Rule 15(d) Motions, but
Plaintiff’s request to submit the Higgins Report in support of his response to
Defendants’ Motions for Summary Judgment is GRANTED.

SO ORDERED.

MEMORANDUM DECISION AND ORDER- 44

DATED: September 27, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER- 45