Womble v. Harvanek

Filing 100

OPINION ORDER by Judge Ronald A. White: Granting defendant's 93 Motion for Summary Judgment, and this case is DISMISSED in its entirety. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOSEPH Z. WOMBLE,
Plaintiff,
v.
KAMERON HARVENEK,
Defendant.

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No. CIV 16-328-RAW-SPS

OPINION AND ORDER
Plaintiff Joseph Z. Womble, a pro se state prisoner who is incarcerated at Lexington
Correctional Center in Lexington, Oklahoma, appealed the dismissal of this civil rights
action. The Tenth Circuit Court of Appeals reversed this Court’s judgment and remanded
for further proceedings. Womble v. Harvanek, 739 F. App’x 470 (10th Cir. 2017) (Dkt. 32).
The appellate court held that this Court erred in granting Defendant Kameron Harvanek’s
motion to dismiss Plaintiff’s allegations concerning his lack of access to a sufficient supply
of uncontaminated drinking water at Mack Alford Correctional Center (MACC) during a
time of high cell temperatures. Id. at 473-75.
Following the remand, and at the direction of the Court, Defendant filed a special
report in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (Dkt. 92) and
a motion for summary judgment (Dkt. 93). Plaintiff has filed a response to the motion (Dkt.
97).
Standard of Review
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
dispute is genuine if the evidence is such that “a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact
is material if it “might affect the outcome of the suit under the governing law.” Id. In
making this determination, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255. A party opposing a motion
for summary judgment, however, may not simply allege there are disputed issues of fact;
rather, the party must support its assertions by citing to the record or by showing the moving
party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c). Thus,
the inquiry for this Court is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251-52.
Facts
The Tenth Circuit summarized the facts of the case as follows:
In his complaint, Womble alleged that Harvanek “is wholly responsible for the
day to day operations of the [MACC] and is responsible for Plaintiff’s injury.”
Womble explained that in August 2015, the ice machine and water fountain in
his housing unit at MACC stopped working and neither was replaced.
He alleged that the temperatures in his cell exceeded 90 degrees over 15 times
in June 2016 and that he became severely dehydrated on three different
occasions that month. He asserted that he filed a complaint with the warden
on two different occasions that month and that “[t]he complaint was regarding
the heat and lack of cold[,] uncontaminated drinking water.”
Harvanek responded to Womble’s initial complaint (also called a “request to
staff”) by “telling Plaintiff to drink the water from his cell sink.” But Womble
alleged that the water from his cell sink “is contaminated, brown in color, and
often made Plaintiff sick from drinking [it]. Plaintiff would vomit many times
after drinking this water.”
In his next complaint/request, Womble “complained that because the
temperature was so high on Plaintiff’s cellblock, and in Plaintiff’s cell,
Defendant must provide cold[,] uncontaminated drinking water by providing
a water fountain.” He alleged that “Defendant responded denying relief stating
‘You have [enough] ice and water to prevent dehydration.[’]” But Womble
alleged that “the cell water was contaminated and warm, and ice was being
provided once per day. Plaintiff received one 6 oz scoop of ice per day,
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half-melted because of the heat.”
He further alleged:
By subjecting Plaintiff to extreme conditions of confinement,
specifically excessive heat, forcing Plaintiff to choose between
drinking warm, contaminated drinking water or no water at all
with full knowledge that this was causing Plaintiff injury and
that these conditions are extremely dangerous, Defendant has
acted with deliberate indifference to Plaintiff’s health and safety
needs, in violation of his rights under the Eighth and Fourteenth
Amendments to the United States Constitution.
Womble, 739 F. App’x at 471-72 (emphasis in original).
Exhaustion of Administrative Remedies
Defendant alleges Plaintiff has failed to exhaust the administrative remedies for his
claims.1 “No action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). Inmates are required to exhaust available administrative remedies, and
suits filed before the exhaustion requirement is met must be dismissed. Booth v. Churner,
532 U.S. 731, 740-41 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001). “An
inmate who begins the grievance process but does not complete it is barred from pursuing
a § 1983 claim under PLRA for failure to exhaust his administrative remedies.” Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (citation omitted).
According to the DOC Offender Grievance Process, OP-090124, an inmate first must
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Defendant did not raise an exhaustion defense in his first motion to dismiss (Dkt. 16). “The
statutory exhaustion requirement of § 1997e(a) is mandatory, and the district court [is] not authorized
to dispense with it.” Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167 n.5 (10th Cir. 2003) (per
curiam) (citations omitted). “[A] defendant raising the issue of exhaustion pursuant to 42 U.S.C. §
1997e(a) is not required to do so in his answer or even in a motion filed by the dispositive motions
deadline.” Carbajal v. Keefer, 2016 WL 1663383, at *3 (D. Colo. 2016) (unpublished opinion)
(citing Beaudry, 331 F.3d at 1167 n.5).

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attempt to resolve his complaint informally by communicating with appropriate staff within
three days of the incident. (Dkt. 92-2 at 6). If that is unsuccessful, he may submit a Request
to Staff (RTS) within seven calendar days of the incident, alleging only one issue per form.
Id. at 6-7. If the offender does not receive a response to his RTS within 30 calendar days of
submission, he may submit a grievance to the Review Authority (warden’s office), asserting
only the issue of the lack of response to the RTS. Id. at 7-8. If the complaint is not resolved
after the response to the RTS, the offender then may file a grievance. Id. at 8. If the
complaint is medical, the grievance must be submitted to the facility Correctional Health
Services Administrator (CHSA). Id. Grievances that are an emergency or of a sensitive
nature can be submitted directly to the reviewing authority without informal resolution. Id.
at 14. This is appropriate where the inmate faces a substantial risk of personal injury, sexual
harm, or other irreparable harm. Id. If the grievance also does not resolve the issue, the
inmate may appeal to the Administrative Review Authority (ARA) or the Health Services
Administrative Review Authority within 15 calendar days of receipt of the reviewing
authority’s decision or any amended decision. Id. at 12. The administrative process is
exhausted only after all of these steps have been taken. Id. at 14.
Defendant asserts Plaintiff never alleged in an RTS that the water in his cell sink was
contaminated, discolored, or otherwise unsafe to drink. Instead, Plaintiff complained only
that the water was not cold. Defendant further claims Plaintiff failed to exhaust his
administrative remedies with respect to the lack of an ice machine and the temperature of the
cell block where he was housed. Plaintiff submitted RTSs on these two issues but did not
complete the grievance process for either. Id.
The record shows Plaintiff filed the following documents concerning the issues in his
amended complaint (Dkt. 9):
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Grievance No. 16-17
The special report indicates that on June 15, 2016, Plaintiff submitted an RTS to
Defendant Warden Harvenek. The form stated, “There is no water fountain on A-South. I
do not have access to cold water and because of this, I am suffering from heat illness and
dehydration.” Plaintiff requested replacement of the water fountain on A-South. Harvanek
responded, “You have water in you [sic] cell. Cold water does not prevent dehydration. The
act of drinking water does.” (Dkt. 92-3 at 2).
Plaintiff filed Grievance No. 16-17 about this issue on June 21, 2016. Plaintiff agreed
that any water can prevent dehydration, but he claimed “warm and hot water exacerbates heat
illness.” He again requested that a working water fountain be installed. Harvanek denied
relief, stating that Plaintiff had “access to ice and water to help prevent heat-related illness
and dehydrate [sic].” (Dkt. 92-3 at 3-5).
On June 29, 2016, Plaintiff filed a appeal to the ARA, complaining that there was no
working water fountain or ice machine on his unit, and the failure to provide these appliances
violated OP-15000, et al., by failing to provide cold water. He further alleged the lack of
cold water and ice had injured him, resulting in his suffering and receiving medical care.
(Dkt. 92-3 at 6-7). The ARA’s response stated that because Plaintiff had failed to
substantiate his appeal with any authority for an error, there was no indication the reviewing
authority’s response was improper. Id. at 8.
After review of the record on this claim, the Court finds Plaintiff exhausted the
administrative remedies for his allegations concerning the lack of cold water.
Requests to Staff
On June 21, 2016, Plaintiff submitted two RTSs to C/M David Mauk. Defendant,
however, alleges Plaintiff failed to complete the administrative exhaustion process for the
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claims in the two RTSs. Plaintiff did not address this exhaustion issue in his response to the
motion for summary judgment (Dkt. 97).
The first RTS stated the following:
The ice machine does not work on A-South. Although buckets of ice are being
delivered daily, this does not solve the problem. Many times, the ice runs out
before this inmate can get any. And I am heat sensitive because I take
medications that affect my body temperature.
(Dkt. 92-4 at 2). Plaintiff requested immediate repair of the ice machine. Id. C. Lowe
responded to the RTS: “A work order has been submitted. Please contact Medical for health
related issues.” Id.
Plaintiff’s second RTS asserted the cellblock temperature was constantly between 85
and 100 degrees Fahrenheit. He stated he was sensitive to heat and had suffered heat stress
and heat exhaustion, but the prison administration had completely ignored the problem.
Plaintiff also contended the National Weather Service and the Centers for Disease Control
had declared that temperatures above 90 degrees were heat emergencies and had advised
people to move to air conditioned area. He requested that the temperature of the entire cell
block be maintained below 80 degrees Fahrenheit. (Dkt. 92-4 at 2-4). C. Lowe’s response
to this RTS directed Plaintiff to “contact medical with this issue.” Id. at 2.
The Court has carefully reviewed the record and finds Plaintiff’s claims regarding the
broken ice machine and the temperature of his unit were not exhausted by filing grievances
and appeals to the ARA. Therefore, these claims cannot proceed. The Court further finds
Plaintiff did not file any RTSs or grievances concerning the alleged contaminated water.
Eighth Amendment Claims
As shown above, Plaintiff only exhausted his claims with respect to his requests for
cold water. To prevail on a “conditions of confinement” claim under the Eighth Amendment,
an inmate must establish that (1) the condition complained of is “‘sufficiently serious’” to
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implicate constitutional protection, and (2) prison officials acted with “‘deliberate
indifference’ to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quoting Wilson v. Seiter, 501 U.S. 294, 298, 302-03 (1991)). “[O]nly those deprivations
denying the minimal civilized measure of life’s necessities are sufficiently grave to form the
basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298 (internal citation
omitted).
To satisfy the first requirement, “the inmate must show that he is incarcerated under
conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. With regard
to the second requirement, the Supreme Court has explained that “deliberate indifference
entails something more than mere negligence . . . [but] something less than acts or omissions
for the very purpose of causing harm or with the knowledge that harm will result.” Id. at
835. The Court defined this “deliberate indifference” standard as equal to “recklessness,”
in which “a person disregards a risk of harm of which he is aware.” Id. at 836-37. “To show
deliberate indifference, ‘a plaintiff must establish that defendant(s) knew he faced a
substantial risk of harm and disregarded that risk, by failing to take reasonable measures to
abate it.’” Womble, 739 F. App’x at 472 (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th
Cir. 1999)).
The Eighth Amendment “does not mandate comfortable prisons,” and conditions
imposed may be “restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 347
(1981). An important factor in determining whether conditions of confinement meet
constitutional standards is the length of the incarceration. Thus, a “filthy, overcrowded cell
and a diet of ‘grue’ might be tolerable for a few days and intolerably cruel for weeks or
months.” Hutto v. Finney, 437 U.S. 678, 686-87 (1978). The Court notes that Plaintiff was
transferred from MACC to another facility on or before August 19, 2016. (Dkt. 79).
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Discussion
The Court has carefully reviewed the record and construes Plaintiff’s pleadings
liberally. Haines v. Kerner, 404 U.S. 519 (1972). This relaxed standard, however, does not
relieve his burden of alleging sufficient facts on which a recognized legal claim could be
based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Defendant maintains his acts or omissions, if any, did not result in the denial of “the
minimal civilized measure of life’s necessities,” as set forth in Farmer, because Plaintiff had
access to water by means of the sink in his cell. (Dkt. 92-3 at 3-4). Defendant thus contends
the deliberate indifference claim must fail, because Plaintiff cannot establish the objective
prong of the deliberate indifference analysis.
Although Plaintiff asserted in his grievance that he had “been seen by medical” (Dkt.
92-3 at 7), Defendant argues Plaintiff did not explain in the grievance or in his amended
complaint when he received medical treatment. Plaintiff asserts in his response to the motion
for summary judgment that he saw medical for dehydration on June 20, 2016, and July 26,
2016. (Dkt. 97 at 6). He allegedly was told to drink more water and to have no excess heat
exposure. Id. Plaintiff does not allege he was told to drink cold water. Plaintiff’s medical
records, however, do not indicate he was seen by medical staff for any heat-related
complaints or issues related to sickness from drinking the water from his cell sink. (Dkts.
94-1 through 94-4).
Nonetheless, the Court notes that Plaintiff’s Activity Housing Summary, dated July
26, 2016, and signed by Heather Knight, RN, states the following: “Based upon medical
examination and/or review the following restrictions apply. Offenders may not remove
themselves from these medical restrictions without clinical documentation. No prolonged
sun exposure or direct sunlight. No excess heat, humidity, or cold exposure.” (Dkt. 94-4 at
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4). Plaintiff’s name, however, was not included in the June 8, 2016, MACC Heat
Contingency Plan, which listed more than 200 inmates who met the criteria for increased risk
for heat-related illnesses. (Dkt. 92-5).
Even with a medical restriction, the Court finds Plaintiff has failed to provide any
authority that the denial of cold water or ice in a hot cell violated the prohibition against cruel
and unusual punishment. In its Order remanding this case, the Tenth Circuit stated: “Lack
of access to chilled water and ice would not, standing alone, constitute a sufficiently serious
deprivation to sustain an Eighth Amendment conditions of confinement claim. However,
access to a sufficient supply of uncontaminated drinking water is a basic human need.”
Womble, 739 F. App’x at 473 (emphasis in original). For these reasons, the Court finds
Plaintiff has failed to demonstrate the objective component of deliberate indifference has
been met with respect to the claim regarding cold water.
Defendant alleges Plaintiff also has failed to satisfy the subjective component of the
test for deliberate indifference. Defendant claims he did not know that Plaintiff faced a
substantial risk of serious harm, and he was unaware of any medically necessary limitations
or risks for Plaintiff. As noted above, Plaintiff was not on the MACC Heat Contingency Plan
sent to Defendant by the Correctional Healthy Services Administrator, which identified
inmates who were at risk for heat-related injuries. (Dkt. 92-5). Citing the Heat Contingency
Plan, Defendant asserts Plaintiff was not on any housing restriction. Defendant, however,
did not reference Plaintiff’s Activity Housing Summary.
The Tenth Circuit has explained the subjective component of a deliberate indifference
claim as follows:
The deliberate indifference standard lies “somewhere between the poles of
negligence at one end and purpose or knowledge at the other.” Farmer, 511
U.S. at 836 . . . Thus, “[d]eliberate indifference does not require a finding of
express intent to harm.” Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th
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Cir.1996) (citation omitted). An inmate “need not show that a prison official
acted or failed to act believing that harm actually would befall an inmate; it is
enough that the official acted or failed to act despite his knowledge of a
substantial risk of serious harm.” Farmer, 511 U.S. at 842, . . . (emphasis
added). An official “would not escape liability if the evidence showed that he
merely refused to verify underlying facts that he strongly suspected to be true,
or declined to confirm inferences of risk that he strongly suspected to exist.”
Id. at 843 n.8.
Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005).
“The subjective component is satisfied if the official ‘knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and [ ]he must also
draw the inference.’ ” Id. at 751 (quoting Farmer, 511 U.S. at 837).
Here, the Court finds Plaintiff has failed to meet the subjective test of deliberate
indifference. Therefore, the denial of cold water did not constitute an Eighth Amendment
conditions of confinement claim.
Qualified Immunity
Finally, Defendant alleges he is entitled to qualified immunity. Qualified immunity
recognizes the “need to protect officials who are required to exercise their discretion and the
related public interest in encouraging the vigorous exercise of official authority.” Harlow
v. Fitzgerald, 457 U.S. 800, 807 (1982). It provides “ample protection to all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). Qualified immunity shields government officials from liability where “their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. at 818). Qualified immunity also shields officers who have
“reasonable, but mistaken beliefs,” and operates to protect officers from the sometimes “hazy
border[s]” of the law. Saucier v. Katz, 533 U.S. 194, 205 (2001).
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When a defendant asserts qualified immunity, the plaintiff bears the heavy burden of
demonstrating: (1) that the defendant’s actions violated the plaintiff’s constitutional or
statutory rights, and (2) that the right was clearly established at the time. Martinez v. Beggs,
563 F.3d 1082, 1088 (10th Cir. 2009). The court “has discretion to determine ‘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. (quoting Pearson, 555 U.S. at 129). In
this case, because Defendant did not violate Plaintiff’s constitutional rights, this Court need
not address whether those rights were clearly established. Accordingly, Defendant Harvanek
is entitled to qualified immunity.
Conclusion
After careful consideration of the pleadings and other submitted materials in this case,
the Court is of the view that there are no genuine issues of material fact concerning whether
Plaintiff’s claims regarding the broken ice machine, the high temperatures, and the alleged
contaminated water are unexhausted. There also are no genuine issues of material fact with
respect to the absence of a constitutional violation arising from the lack of cold water. The
Court further finds there are no genuine issues of material fact with respect to Defendant’s
entitlement to qualified immunity. Therefore, summary judgment must be GRANTED.
ACCORDINGLY, Defendant’s motion for summary judgment (Dkt. 93) is
GRANTED, and this case is DISMISSED in its entirety.
IT IS SO ORDERED this 26th day of September 2019.

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