Lyons v. State Of Nevada, et al.
Filing
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ORDER GRANTING 34 Motion to File Supplement. GRANTING 38 Motion to Strike 36 Sur-Reply. GRANTING 29 Motion for Summary Judgment. DENYING as moot 27 Motion for rule 54(h) certification and final judgment as to counts 1-5 and 7 and denial of first amended complaint. Signed by Judge James C. Mahan on 8/9/2011. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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PHILLIP J. LYONS,
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Plaintiff,
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vs.
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Case No. 2:10-CV-00707-JCM-(LRL)
STATE OF NEVADA ex rel, c/o ORTIZ, et
al.,
ORDER
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Defendants.
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Presently before the court is plaintiff Phillip J. Lyons’ motion for rule 54(h) certification and
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final judgment as to counts 1,2,3,4,5, and 7 and denial of first amended complaint. (Doc. #27).
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Defendants State of Nevada et al, filed an opposition. (Doc. #28). Plaintiff filed a reply. (Doc. #31).
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Also before the court is defendants’ motion for summary judgment. (Doc. #29). Plaintiff
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filed an opposition (doc. #33) and a motion to file supplement (doc. #34). Defendants filed a reply
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(doc. #35), and plaintiff filed a sur-reply (doc. #36). Defendants filed a motion to strike the sur-reply
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(doc. #38), plaintiff filed an opposition (doc. #39), and defendants filed a reply (doc. #40).
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In the present action brought by inmate Phillip J. Lyons (doc. #1-2), he alleges seven claims
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for relief relating to his treatment while in custody at the Southern Desert Correctional Center in
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Indian Springs, Nevada. In the court’s screening order (doc. #11), the court dismissed all of the
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plaintiff’s claims except for the sixth. The court gave plaintiff thirty (30) days from the date of the
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order to submit an amended complaint in the event that he could cure the deficiencies. (Doc. #11).
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The plaintiff was also provided with a civil rights complaint form with instructions. (Docs. #11-1
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and #11-2).
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Rather than filing an amended complaint as directed, plaintiff filed a motion for relief (doc.
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#12), which was denied by the court (doc. #14). Subsequently, plaintiff filed another motion asking
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the court to reconsider its order, once again in lieu of following the instructions of the court. (Doc.
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#15). The court entered an order (doc. #17) denying the motion and dismissing several named
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defendants and counts 1,2,3,4,5, and 7 for failure to state a claim. Plaintiff then filed a motion for
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relief from the order (doc. #18) and a motion to amend or correct complaint (doc. #19). The court
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denied both motions. (Doc. #24).
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In the present motion for certification (doc. #27), plaintiff asks this court to enter final
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judgment on the dismissed counts and the order denying his motion to amend, so that he can appeal
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them to the Ninth Circuit. He contends that the remaining count, count six, is “totally unrelated” to
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the dismissed counts and that there “is no just reason for delaying a final judgment on those
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dismissed counts until count six is concluded.”
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In opposition (doc. #28), remaining defendants assert that their motion for summary
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judgment on count six (doc. #29) makes the motion for certification moot. They argue that it would
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not be “sound judicial administration” for this court to certify prior to addressing their motion (doc.
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#29). As first certifying the dismissal and the denial of the motion to amend, and then ruling on the
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dispositive motion would possibly create piecemeal appeals, the court is inclined to first address the
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motion for summary judgment (doc. #29) and the corresponding motions (docs #34 and #38)
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Motion to File Supplement (doc. #34) and Motion to Strike Sur-Reply (doc. #38)
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In plaintiff’s motion to file a supplement to his opposition (doc. #34), he asserts that he
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“mistakenly neglected to include and point out relevant facts related to his response to [d]efendants’
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argument against his entitlement to pursue punitive damages against” the defendants. He contends
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that at that time no reply had been filed in response to his opposition, and that defendants would not
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be prejudiced in any way. Further, he attached the proposed supplement to the motion. (Doc. #34).
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Any opposition to the motion was due on June 3, 2011. Defendants did not oppose the motion. The
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court is inclined to permit plaintiff to file the supplement.
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Having not opposed the supplement, defendants filed their reply (doc. #35) in support of the
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motion for summary judgment on May 25, 2011. Subsequently, plaintiff filed a sur-reply (doc. #36)
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to the defendants’ reply. (Doc. #36). Defendants then filed a motion to strike the sur-reply (doc.
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#36). Defendants assert that the sur-reply should be stricken because (1) plaintiff has already filed a
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supplement to his opposition, (2) Local Rule 7-2 and this court’s minute order (doc. #30) provide
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only for the filing of a motion, a response, and a reply, and (3) plaintiff has not sought leave of the
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court to file the motion. The court agrees, and is not inclined to consider the arguments in plaintiff’s
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sur-reply (doc. #36). Thus, the defendants’ motion (doc. #38) to strike the sur-reply is granted.
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Motion For Summary Judgment (doc. #29)
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In defendants’ motion for summary judgment (doc. #29), they provide the court with a
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plethora of reasons warranting summary judgment on plaintiff’s sixth claim for relief. In his
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remaining claim, plaintiff alleges that defendants “promulgated or permitted a policy that allowed
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prison staff to refuse or deny [p]laintiff and inmates in general toilet paper on an as-needed basis.”
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He asserts that this violated his federal constitution, state constitution, and state statutory rights.
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Prior to filing the complaint, plaintiff filed inmate grievances at the first and second levels
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regarding his denial of additional toilet paper. (Doc. #29). Remaining defendants Jerry Howell,
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Brian Williams, and James Cox responded to the plaintiff’s grievances at different levels of the
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process. Id. Defendant Howard Skolnik was the director of the Nevada Department of Corrections
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during this time. Defendants contend that it is undisputed that “at all relevant times, [plaintiff] was
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provided with one roll of toilet paper per week,” and that he “could have purchased additional
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rolls...at the inmate store,” but chose to purchase “junk food,” such as “chips, popcorn, and
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barbeque sauce instead.” Id. (Exhibit A).
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In contrast, plaintiff argues that several of the purported “undisputed facts” stated by the
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defendants are in fact disputed, warranting a denial of the motion for summary judgment. (Doc.
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#33). Specifically, he contends that he was not provided one roll of toilet paper per week every
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week, and that he was unable to get toilet paper on several occasions due to the inmate store running
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out, his denial of access to the store, or the inmates having to wait weeks to receive their orders.
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(Doc. #33). Further, he asserts that two prisoners were in each cell and given, at the most, only one
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roll per week, regardless of their individual needs. Id. Additionally, he contends that a “black market
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was created,” where inmate porters began selling other needy prisoners toilet paper from the “ready
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supply of additional toilet paper kept in the nearby unit storerooms.” Id. Lastly, he argues that there
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were times where he and other inmates were indigent and could not afford to purchase their own
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toilet paper. Id.
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Summary judgment is appropriate when, viewing the facts in the light most favorable to the
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nonmoving party, there is no genuine issue of material fact which would preclude summary
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judgment as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996); Federal Rule of
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Civil Procedure 56©; Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
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T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The
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purpose of summary judgment is to “pierce the pleadings and assess the proof in order to see
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whether there is a genuine need for trial.” Matsushita Elec., 475 U.S. at 586; International Union of
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Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).
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The moving party bears the burden of informing the court of the basis for its motion,
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together with evidence demonstrating the absence of any genuine issue of material fact. Celotex
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Corp.v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has satisfied its burden, it is
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entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions,
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answer to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue
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for trial." Celotex Corp., 477 U.S. 317, 324; Fed. R. Civ. P. 56©.
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Here, defendants contend that summary judgment is appropriate because (1) defendants
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cannot be sued in their official capacities for monetary relief, (2) the denial of inmate grievances
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alone is insufficient to establish personal participation under 42 U.S.C. § 1983, (3) the plaintiff was
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not subjected to cruel and unusual punishment by being given only one roll of toilet paper, (4)
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defendants are entitled to qualified immunity, (5) plaintiff cannot recover compensatory damages
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due to his inability to show more than de minimis physical injury, (6) plaintiff is not entitled to
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punitive damages because no evil motive or intent was demonstrated, and (7) pro se civil rights
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litigants are not entitled to attorneys’ fees.
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A.
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In plaintiff’s complaint (doc. #1-2), he asserts his sixth claim against the remaining
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defendants in their official capacity, as well as their individual capacity. In the prayer for relief with
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respect to the sixth claim, plaintiff asks for general, compensatory, and punitive damages against the
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defendants. Further, he seeks an injunction ordering defendant Skolnik to review and implement a
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training procedure for his staff regarding rights of prisoners.
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Official Capacity
A lawsuit for monetary relief against a state official in his or her official capacity is a lawsuit
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against the official’s office rather than a lawsuit against the official. Will v. Michigan Dep’t of State
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Police, 491 U.S. 58 (1989). Further, state officials acting in their official capacities are not
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“persons” under 42 U.S.C. § 1983. Id. at 71. In the case before this court, remaining defendants
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assert that they were acting in their official capacities in the allegations, and therefore, dismissal in
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their official capacities is warranted.
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Plaintiff contests this argument, and contends that “because [he] seeks declaratory and
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injunctive relief against [d]efendants with respect to count VI, the law allows [him] to proceed
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against defendants for such relief in their official capacities.” He relies on the case of Brandon E. ex.
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rel. Listenbee v. Reynolds, 201 F.3d 194, 197-198 (3d. Cir. 2000) in his assertion. The court is
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unable to find where plaintiff seeks declaratory relief in his complaint, and only finds a request for
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injunctive and monetary relief. (Doc. #1-2). With regards to the injunctive relief, the court in
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Brandon E. ex. rel. Listenbee, specifically stated that the amendment to § 1983 “limits the
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availability of injunctive relief to circumstances in which declaratory relief is unavailable or
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inadequate.” Brandon E. ex. rel. Listenbee, 201 F.3d 194, 198.
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Here, declaratory relief is neither sought nor adequate. Further, plaintiff seeks injunctive
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relief only against defendant Skolnik. The other remaining defendants, Jerry Howell, Brian
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Williams, and James Cox, cannot be sued in their official capacity for monetary relief. Will, 491
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U.S. 58. Therefore, summary judgment is appropriate on plaintiff’s sixth claim against defendants
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Howell, Williams, and Cox, in their official capacities.
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...
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...
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B.
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Defendants and plaintiff both agree that there are two required elements of a section 1983
Personal Participation/Causation
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claim; “(1) the conduct complained of must have been under color of state law, and (2) the conduct
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must have subjected the plaintiff to a deprivation of constitutional rights.” Jones v. Cmty.
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Redevelopment Agency of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984). Further, the causal
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connection may be established by “some kind of direct personal participation in the deprivation” or
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by “setting in motion a series of acts by others which the actor knows or reasonably should know
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would cause others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743 (9th
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Cir. 1978) (Internal citation omitted)(emphasis added).
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The defendants contend that the they merely denied the plaintiff’s grievances, and this alone
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“is insufficient to establish personal participation under 42 U.S.C. § 1983.” Rider v. Werholtz, 548
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F.Supp.2d 1188, 1201 (D. Kan. 2008); Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir.
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2002)(holding that the denial of prisoner grievances does not constitute a substantive constitutional
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claim). They assert that “plaintiff must prove that the defendant[s’] actions [were] the cause in fact
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and the proximate cause of his injury.” Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th
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Cir. 1981). Since the remaining defendants were not those that denied him the toilet paper, they
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argue that there is no connection or participation on their part.
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Plaintiff accuses the defendants of being aware of the toilet paper policy, condoning it in
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their respective responses to his grievances, and “actually [being] responsible for it.” Thus, he
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asserts, they participated in the deprivation and were connected to his injury. In the remaining
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defendants’ responses (doc. #29-1 Exhibit A) to the plaintiff’s grievances, they ask him to “provide
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documentation that lists toilet paper as a necessity of life,” assert that he was “given his weekly
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allotment,” and state that if it is not enough that he should “purchase what [h]e need[s] from the
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inmate [s]tore.” Further, defendants contend that his rights are not being violated, and explain to
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him that he is not indigent and has “the means to purchase toilet paper instead of [his] recent
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purchases of junk food, chips, popcorn, [and] barbeque sauce.” (Doc. #29-1 Exhibit A).
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In reply to plaintiff’s arguments (doc. #35), defendants assert that they are entitled to a
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“wide-ranging deference” as to the operations at the correctional center, including limiting the
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inmates to one toilet paper per week. Bell v. Wolfish, 411 U.S. 520, 547-548 (1979). They provide
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the court with an affidavit (doc. #35-1 Exhibit B) from Brian E. Williams, the warden at the
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Southern Desert Correctional Center, stating that the determination of one roll per week was “based
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upon research regarding the human consumption of toilet paper, the fact that some inmates misuse
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the toilet paper they are provided with by creating unauthorized contraband and/or mismanaging
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their weekly allotment, and cost saving considerations.”
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As it has been demonstrated to the court that the rationing of the toilet paper is directly
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related to safety issues in the facility, the court will afford the defendants the deference deserved.
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Bell, 411 U.S. 520, 547-548. Therefore, the court finds that the defendants were simply following
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the legitimate regulations of the prison in their responses to the grievances, and were not
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participating in a scheme to deprive plaintiff of any of his constitutional rights. Defendants did not
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have some sort of “direct personal participation” in the alleged deprivation simply by addressing
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plaintiff’s grievances and informing him of the rules and procedures. Absent a casual connection
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between the denial of the grievances and the alleged deprivation, plaintiff’s claim under § 1983
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cannot survive.
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C.
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Cruel and unusual punishment claims can survive only if the deprivation is “objectively,
Eighth Amendment
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sufficiently serious,” whereby the conditions are posing a “substantial risk of serious harm,” and the
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actions of the prison officials result in the denial of the “minimal civilized measure of life’s
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necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Further, only the “unnecessary and
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wanton infliction of pain” by a prison official with a “sufficiently culpable state of mind” showing
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“deliberate indifference” to the inmate’s safety or health will constitute cruel and unusual
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punishment. Id. at 839-840. Although a prison must provide the inmates with discrete basic human
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needs, an institution’s obligation under the Eighth Amendment is met if it provides inmates with
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adequate food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v.
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McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987); Hoptowit v.
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Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).
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Here, not only is there a legitimate reason for limiting the toilet paper rolls (doc. #35-1
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Exhibit A) which should be afforded the deference it deserves, but plaintiff has not demonstrated
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the requisite “serious,” “substantial harm,” or “the wanton infliction of pain” on the part of the
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defendants. Bell, 411 U.S. 520, 547-548; Farmer, 511 U.S. 825, 834, 839-840. Therefore, summary
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judgment is warranted on plaintiff’s claim under the eighth amendment for deliberate indifference
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and cruel and unusual punishment.
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D.
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Qualified immunity extends to prison officials, officers, and administrators, and protects
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Qualified Immunity
“government officials from liability for civil damages insofar as their conduct does not violate
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clearly established statutory or constitutional rights which a reasonable person would have known.”
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Procunier v. Navarette, 434 U.S. 555, 561 (1978); Pearson v. Callahan, 555 U.S 223
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(2009)(internal citations omitted). Defendants assert that summary judgment is appropriate because
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they are entitled to qualified immunity. However, since the court granted summary judgment with
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regards to plaintiff’s remaining count because his claims under § 1983 and the Eighth Amendment
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fail, the court need not address qualified immunity at this time. Additionally, the court need not
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address defendants’ alternative arguments summary judgment.
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E.
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Plaintiff Lyons asks this court for attorney’s fees in his complaint. First, attorney’s fees are
Attorney’s Fees
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not available to pro se litigants such as the plaintiff. 42 U.S.C. § 1988; Kay v. Ehrler, 499 U.S. 432
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(1991). Second, even if plaintiff retained counsel, attorney’s fees would not be appropriate because
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the court has ruled against plaintiff.
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Motion For Certification (doc. #27)
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As previously stated, plaintiff seeks certification and final judgment of his dismissed counts
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and the order denying his motion to amend, that so he can appeal them to the Ninth Circuit. Further,
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he contends that there “is no just reason for delaying a final judgment on those dismissed counts
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until count six in concluded.” In light of the court’s above ruling the motion to dismiss, the motion
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for certification is moot.
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Accordingly,
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IT IS HEREBY ORDERED ADJUDGED AND DECREED that plaintiff’s motion to file
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supplement (doc. #34) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendants’ motion to strike plaintiff’s sur-reply (doc.
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#38) be, and the same hereby is, GRANTED. Plaintiff’s sur-reply (doc. #36) is hereby STRICKEN.
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IT IS FURTHER ORDERED that defendants’ motion for summary judgment (doc. #29) be,
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and the same hereby is, GRANTED.
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IT IS THEREFORE ORDERED that plaintiff Phillip J. Lyons’ motion for rule 54(h)
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certification and final judgment as to counts 1,2,3,4,5, and 7 and denial of first amended complaint
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(doc. #27) be, and the same hereby is DENIED as moot.
DATED August 9, 2011.
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_________________________________
UNITED STATES DISTRICT JUDGE
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