Singh v. Washburn et al

Filing 236

OPINION AND ORDER. For the reasons stated, the Court GRANTS Defendants' motions for summary judgment (ECF Nos. 79 , 109 , 174 ), and DENIES Singh's renewed motions for a court-appointed expert (ECF Nos. 127 , 157 , 223 ). IT IS SO ORDERED. Signed on 11/30/2020 by Magistrate Judge Stacie F. Beckerman. Associated Cases: 2:14-cv-01477-SB, 2:16-cv-01957-SB, 2:17-cv-00829-SB (Mailed to Plaintiff on 12/1/2020.) (gw)

Case 2:14-cv-01477-SB

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ROTISH V. SINGH,
Plaintiff,
v.

Case No. 2:14-cv-01477-SB
2:16-cv-01957-SB
2:17-cv-00829-SB
OPINION AND ORDER

SUE WASHBURN, Food Service Manager, et
al.,
Defendants.
BECKERMAN, U.S. Magistrate Judge.
Rotish Singh (“Singh”), an adult in custody of the Oregon Department of Corrections
(“ODOC”), brings these consolidated 42 U.S.C. § 1983 actions against several ODOC
employees (“Defendants”). In his complaints, Singh alleges that various defendants violated his
First and Eighth Amendment rights by denying him proper medical care, retaliating against him
for filing prison grievances, and subjecting him to unconstitutional conditions of confinement.
Now before the Court are Defendants’ motions for summary judgment and Singh’s
renewed motions for a court-appointed expert. See FED. R. CIV. P. 56; FED. R. EVID. 706. The
Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, and the parties have
consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the
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reasons explained below, the Court grants Defendants’ motions and denies Singh’s renewed
motions.1
BACKGROUND2
I.

SINGH’S PRISON AND MEDICAL RECORDS
Singh was admitted into ODOC custody in April 1998 and currently resides at the

Oregon State Correctional Institution (“OSCI”). (Decl. of Sue Washburn in Supp. of Defs.’ Mot.
Summ. J. (“Washburn Decl.”) ¶ 3, ECF No. 175.) Singh also resided primarily at the Two Rivers
Correctional Institution (“TRCI”) between February 2010 and November 2017. (Washburn Decl.
¶ 3.)
A.

Case No. 2:14-cv-01477-SB
1.

Singh’s Initial Exposure to Mold

Between November 2011 and June 2012, Singh worked for TRCI’s food services in the
“tortilla room.” (Washburn Decl. ¶ 4.) Singh’s “duties included making tortillas and performing
general cleaning that included sweeping the flour and other debris from the floor.” (Washburn
Decl. ¶ 4.)
On March 27, 2012, TRCI’s maintenance crew (the “Physical Plant crew”) replaced the
kick plate on the tortilla room’s cooler because they discovered mold behind the old kick plate.
(Washburn Decl. ¶ 5.) The Physical Plant crew “heavily saturated” the mold with bleach before

1

The Court cites only to the motion papers from the lead case because the parties
submitted consolidated briefing (i.e., the motion papers are identical); treats Singh’s amended
response and declaration (ECF Nos. 221-22) as his operative motion papers (Singh’s exhibits are
located at ECF No. 218-1, at 1-417); and refers to some of the individual defendants only by
their last name and job title because the record does not include some of the defendants’ first
names.
2

Unless otherwise noted, the following facts are either undisputed or presented in the
light most favorable to Singh.
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performing any work. (Washburn Decl. ¶ 5.) They also had an Occupational Safety and Health
Administration (“OSHA”) consultant provide step-by-step guidance over the phone. (Am. Decl.
of Rotish Singh in Supp. of Pl.’s Resp. to Defs.’ Mot. Summ. J. (“Singh Decl.”) ¶¶ 8-9, ECF No.
222.)
Singh did not assist the Physical Plant crew in repairing the kick plate or removing any
mold. (Washburn Decl. ¶ 5.) Singh did, however, clean and sanitize the tortilla room without any
protective gear on March 27, 2012, after the Physical Plant crew finished their work. (Singh
Summ. J. Ex. (“Singh Ex.”) 1, at 1, ECF No. 218-1, at 2.) During Singh’s shift, a fan was
running inside the tortilla room to “fan out the dust” remaining from the earlier repair work.
(Singh Ex. 1, at 1.)
Over the next few months, Singh—who has allergies and a medical history that includes
a positive purified protein derivative (“PPD”) test for tuberculosis and complaints of “chronic
upper respiratory discomfort,” headaches, rash, watery and itchy eyes, shortness of breath,
difficulty breathing, stomach issues, and chest pain—complained on numerous occasions to
TRCI’s medical staff about chest pain, shortness of breath, coughing up small amounts of blood,
and headaches “especially during work.” (Singh Decl. ¶¶ 21-33; Decl. of Christopher DiGiulio in
Supp. of Defs.’ Mot. Summ. J. (“DiGiulio Decl.”) ¶¶ 7, 9-10, 14-30, ECF No. 178.) As a result,
TRCI’s medical staff (1) examined Singh several times; (2) referred Singh to a physician,
defendant Bennette Norton, M.D. (“Dr. Norton”), who diagnosed Singh with an upper
respiratory infection (“URI”) and prescribed an inhaler and several rounds of antibiotics; (3)
ordered lab and blood work, which showed an elevated white blood count and bacterial infection
in Singh’s stomach; (4) ordered an x-ray of Singh’s chest, which was “[n]egative” and showed
that Singh’s lungs were “clear and expanded”; and (5) ordered an electrocardiogram (“EKG”),

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which revealed that Singh had a “normal sinus rhythm.” (Singh Decl. ¶¶ 23-33; DiGiulio Decl.
¶¶ 15-30.)
2.

Nurse Smith’s Examination

On July 20, 2012, Singh visited a nurse, defendant S. Smith (“Nurse Smith”),
complaining of food poisoning symptoms, “chest pains when breathing,” stuffy nose, headaches,
and throwing up blood. (Singh Decl. ¶ 34; DiGiulio Decl. ¶ 31.) Nurse Smith noted that Singh
exhibited “wheezing” in his lungs, provided Singh with a salt packet to gargle, and instructed
Singh to purchase “Claritin from the Commissary for allergies.” (Singh Decl. ¶ 34; DiGiulio
Decl. ¶ 31.)
Over the course of the next year, Singh visited TRCI’s medical staff almost every month,
exhibiting signs of wheezing and complaining about Dr. Norton’s URI diagnosis, as well as
fatigue, small amounts of blood in his saliva, chest pain, and shortness of breath that improved
with an inhaler, all of which Singh attributed to his exposure to mold in the tortilla room. (Singh
Decl. ¶¶ 35-61.) After Nurse Smith examined Singh, a different nurse, defendant Dieter (“Nurse
Dieter”), determined that Singh’s reported symptoms were related to his “resolving URI.” (Singh
Decl. ¶ 35.)
When Singh did not improve, TRCI’s medical staff responded by (1) taking a throat
culture, which was “negative for infection”; (2) ordering another x-ray of Singh’s chest, which
was “[n]egative” and showed that Singh’s lungs were “clear and expanded”; (3) examining
Singh several times; (4) providing Singh with more salt packets; (5) renewing the medication
Singh uses to treat his gastroesophageal reflux disease (“GERD”); (6) ordering additional blood
work, which continued to show that Singh had elevated white blood count levels; (7) referring
Singh back to Dr. Norton, who diagnosed a URI and prescribed another round of antibiotics; and
(8) referring Singh to Daniel Dewsnup, M.D. (“Dr. Dewsnup”), an infectious disease specialist,
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who diagnosed Singh with inflammatory bronchitis that may or may not (i.e., “+/-”) have been
exacerbated by “fungal exposure,” advised Singh not to smoke, and provided Singh an
antidiarrheal for stomach issues. (Singh Decl. ¶¶ 36-60; Singh Ex. 4, at 21; DiGiulio Decl. ¶¶ 3233.)
Dissatisfied with the medical care he received and the lack of improvement in his
respiratory symptoms, Singh filed a formal grievance against Nurse Smith on June 17, 2013.
(Singh Decl. ¶ 61.) During the grievance appeal process, an ODOC medical director, defendant
Steven Shelton, M.D. (“Dr. Shelton”), examined Singh, diagnosed Singh with asthma, and
recommended increased usage of his steroid inhaler. (Singh Decl. ¶ 62; Singh Ex. 4, at 27-28.)
Nurses also examined Singh based on his complaints of wheezing, and one of them advised
Singh to use his inhaler “daily as prescribed” and the other noted that Singh had not filled his
inhaler in over a month and needed to use it “more frequently.” (Singh Decl. ¶¶ 66, 69; Singh
Ex. 4, at 30, 37.)
On November 22, 2013, an ODOC assistant director of operations, defendant Michael
Gower (“Gower”), rejected Singh’s second-level grievance appeal against Nurse Smith,
Dr. Shelton, and a nurse manager, defendant Perkins (“Nurse Perkins”).3 (Singh Decl. ¶ 70;
Singh Ex. 2, at 13.)
B.

Case No. 2:16-cv-01957-SB
1.

Dr. Norton’s Treatment in July and August 2014

On July 29, 2014, Singh went to sick call to complain about his “ongoing shortness of
breath and severe and allergic asthmatic reactions.” (Singh Ex. 2, at 14.) Singh also asked to be
Singh’s only remaining claim in the lead case, Case No. 2:14-cv-01477-SB, is an Eighth
Amendment claim against Nurse Smith, Dr. Shelton, Nurse Perkins, and Gower for deliberate
indifference to serious medical needs. (See Singh Decl. ¶ 70, acknowledging that this Eighth
Amendment claim is the only one remaining in the lead case).
3

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seen by a lung specialist based on his continued belief that his ongoing symptoms were related to
exposure to “toxic black mold.” (Singh Ex. 2, at 14.) The medical staff informed Singh that
Dr. Norton reviewed his case and did not recommend alterations to Singh’s treatment. (Singh Ex.
2, at 14.)
Nurse Dieter responded to Singh’s grievance and noted that Dr. Norton examined Singh
on August 13, 2014, and “found no problems with shortness of breath.” (Singh Ex. 2, at 16.)
Singh, however, continued to complain about being “diagnosed with [URIs] twice” and put on
“two different inhaler[s] and medication for allergic reaction[s],” because Singh believed that
these “symptoms were caused by [his] exposure to toxic black mold.” (Singh Ex. 2, at 17) (caps
omitted).
Dr. Shelton responded to Singh’s first-level grievance appeal, noting that Dr. Norton’s
examinations “found that [Singh’s] lungs are clear and breathing well,” Singh’s file reflected a
history of asthma and allergies, Singh was given “an Albuterol inhaler and Claritin to help with
symptoms of seasonal allergies,” and there is “nothing to support an exposure to black mold.”
(Singh Ex. 2, at 18.)
On March 4, 2015, Gower rejected Singh’s second-level grievance appeal.4 (Singh Ex. 2,
at 20.)
2.

Mold in Singh’s Cell

On September 28, 2014, Singh informed the physical plant manager, defendant Nichols
(“Nichols”), that there was “possible black mold” in the wall of his cell and he wanted it
removed, cleaned, and sealed. (Singh Decl. ¶ 139.) Nichols responded that cell sanitation is the

This grievance related to Dr. Norton’s care in July and August 2014 forms the basis of
Singh’s first claim in Case No. 2:16-cv-01957-SB, which Singh refers to as a claim for “medical
deliberate indifference.” (Singh Decl. at 25) (bold and caps omitted).
4

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responsibility of the “person in the cell,” the Physical Plant crew is a maintenance and “repair
shop,” and Singh needed to work with his unit manager to obtain cleaning supplies. (Singh Decl.
¶ 139.)
On November 3, 2014, Singh filed a grievance against Nichols for subjecting Singh to
“unsafe conditions of confinement.” (Singh Decl. ¶ 141.) In response, Nichols noted that housing
unit guidelines stated that “‘[i]nmates are responsible for the cleanliness of their cell/bunk area
including floors, walls, vent ducts, windows, bunk and drawers,’” that the Physical Plant crew is
“a maintenance and repair shop,” not “a janitorial shop,” and that Singh should work with his
housing unit officer to address his cleaning needs. (Singh Ex. 2, at 24.)
During the grievance appeal process, the prison staff moved Singh from his cell,
inspected Singh’s cell, and dispatched crews to clean the mold in Singh’s old cell and two other
cells and to seal and caulk any areas to prevent any further mold growth. (Singh Ex. 6, at 4;
Singh ¶¶ 143-49.)
On March 23, 2015, an administrator, defendant Mark Nooth (“Nooth”), denied Singh’s
second-level grievance appeal related to the presence of mold in Singh’s cell, noting that the
officer in charge assigned a cleaning crew to clean Singh’s cell and that the Physical Plant crew
completed a work order to caulk and re-seal the toilet and sink basin in Singh’s cell.5 (Singh Ex.
2, at 29.)
3.

The February 2015 Shower Project

On February 19, 2015, crews started performing demolition and remodeling work on the
showers near Singh’s cell and used floor fans to circulate the “black dust and noxious smell out

This grievance related to mold in Singh’s cell forms the basis of Singh’s second claim
in Case No. 2:16-cv-01957-SB, which Singh refers to as a claim for unsafe “conditions of
confinement” due to “exposure to mold.” (Singh Decl. at 15) (bold and caps omitted).
5

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of the shower area.” (Singh Decl. ¶ 158.) The next month, Singh sent an inmate communication
form (also known as a “kite”) to Nichols asking about whether the demolition and cleanup crew
were taking appropriate safety precautions because Singh believed the air quality was a health
and safety risk. (Singh Decl. ¶¶ 159-60.)
On March 15, 2015, ten days after Nichols confirmed that the demolition and cleanup
crew were following ODOC rules, polices, and procedures, Singh filed a grievance against
Nichols based on Singh’s “severe asthmatic reactions,” difficulty breathing, and exposure to the
air circulating “strong odors of mold debris” during demolition and the maintenance crew’s work
on the tiles, grout, crumbling plaster, and leakage in the area. (Singh Decl. ¶¶ 161-64; Singh Ex.
2, at 30-32.)
On March 23, 2015, a safety manager, defendant Lancaster (“Lancaster”), responded to
Singh’s claim, noting that he “sealed off the shower area with plastic to insulate any dust [from]
leaving the shower area,” he “followed the OSHA standards [for] removing and containing the
area,” he “cut the grout in between the tiles” to let the floor dry, and he worked on the project
and “did not see any mold or black mold that was in the shower area or under the tiles.” (Singh
Ex. 2, at 33.)
On April 7, 2015, Singh filed a grievance appeal form stating that Nichols and Lancaster
“want to conceal the truth” and he “will add this onto [his] pending lawsuit.” (Singh Ex. 2, at
34.) As a result, a grievance coordinator returned Singh’s grievance because ODOC rules
prohibit inmates from grieving claims or issues they are pursuing in pending litigation.6 (Singh
Ex. 2, at 35.)
6

This grievance related to demolition and remodeling of the showers forms the basis of
Singh’s third claim in Case No. 2:16-cv-01957-SB, which Singh refers to as a claim for unsafe
“conditions of confinement.” (Singh Decl. at 17) (bold and caps omitted).
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4.

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Singh’s Cell Vent and Sink

In January and February 2016, Singh complained to prison and medical staff about a
“noxious smell blowing out” of his cell vents and sink, which Singh attributed to mold. (Singh
Decl. ¶¶ 189-92.)
Nichols informed Singh that he needed to submit a work order, he did not know why
there would be such a smell since “OSHA did not report finding any mold,” the smell from the
sink could be due to type of plumbing system at TRCI, and the heating, ventilation, and air
conditioning (“HVAC”) “staff checked the air handling system and did not find anything out of
the ordinary[, nor did they] find any sign of mildew or mold anywhere.” (Singh Decl. ¶ 193;
Singh Ex. 2, at 38.)
On August 5, 2016, an administrator, defendant Steve Franke (“Franke”), rejected
Singh’s second-level grievance appeal, noting that there was “no evidence of mold in [Singh’s]
cell vent or in [his] cell sink” and “no information indicating an epidemic pertaining to any
health concerns related to mold issues at TRCI.”7 (Singh Ex. 2, at 42.)
5.

The March 2016 Shower Project

In March 2016, Singh sent a kite to Nichols noting that crews performed demolition and
cleanup work on the showers in unit nine on March 1, March 2, and March 4, 2016, and asking
whether the crew followed OSHA standards and ODOC rules and procedures. (Singh Ex. 1, at
22.) Nichols confirmed that crew followed these standards, rules, and procedures. (Singh Ex. 1,
at 22.)
///

This grievance related to mold in Singh’s cell vent and sink forms the basis of Singh’s
fourth claim in Case No. 2:16-cv-01957-SB, which Singh refers to as a claim for unsafe
“conditions of confinement.” (Singh Decl. at 21, 23) (bold and caps omitted).
7

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On April 29, 2016, Singh filed a grievance against Nichols for subjecting him to “unsafe
condition[s] of confinement.” (Singh Decl. ¶ 213.) A physical plant coordinator, defendant
Wilson (“Wilson”), responded to Singh’s grievance and stated he “followed all safety protocols”
during the unit nine shower project and that the unit nine shower area was “totally sealed with
plastic and the predator air scrubber with [high-efficiency particulate air] filters [were] in place.”
(Singh Ex. 2, at 46.)
On August 22, 2016, an acting superintendent, defendant Ridley (“Ridley”), informed
Singh that the crew supervisor and adult in custody (“AIC”) worker who completed the unit nine
shower project “were interviewed,” the supervisor and AIC worker “confirmed the area was
totally sealed off with plastic sheeting” and ensured that the “plastic was sealed behind them”
whenever they entered or exited the work area, the plastic “was sealed around the intake on the
predator air filtering machine,” and none of the “work was completed during meal periods.”
(Singh Ex. 2, at 48.)
On October 17, 2016, Nooth rejected Singh’s second-level grievance appeal.8 (Singh Ex.
2, at 50.)
6.

Singh’s Exposure to Pepper Spray

On August 1, 2016, an ODOC plant coordinator failed to secure a crowbar, which an
inmate later used to commit an assault. (Singh Decl. ¶ 221.) Singh filed a grievance because
prison officials used pepper spray to disarm the inmate with the crowbar and Singh was exposed
to the pepper spray but did not receive medical treatment like other AICs with asthma. (Singh
Ex. 2, at 53.)
The grievance related to the March 2016 shower project forms the basis of Singh’s fifth
claim in Case No. 2:16-cv-01957-SB, which Singh refers to as a claim for “[u]nsafe conditions
of confinement” and “medical deliberate indifference.” (Singh Decl. at 24-25) (bold and caps
omitted).
8

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A nurse manager, defendant Conley (“Nurse Conley”), responded to Singh’s grievance,
noting that she “reviewed [Singh’s] medical health record and [found] no indication that a
complaint concerning respiratory symptoms was received from [Singh] on or around the date in
question,” Singh “could have requested that [his] unit officer contact Health Services for
immediate attention,” the “sick call process” was also available to Singh, and Singh received a
“rescue inhaler on June 11, 2016, which . . . should have been available to [Singh].” (Singh Ex.
2, at 54.) Singh responded that he disagreed with Nurse Conley’s findings and claimed that
unnamed officials denied him access to medical care when he reported difficulty breathing.
(Singh Ex. 2, at 55.)
Dr. Shelton reviewed the matter after Nurse Conley and agreed that there was no
documented report of Singh complaining about respiratory symptoms due to pepper spray
exposure on August 1, 2016, Singh did not sign up for sick call when it was conducted soon
thereafter, and Singh could have utilized his “Ventolin metered dose rescue inhaler.” (Singh Ex.
2, at 56.)
On January 24, 2017, a nurse and health services administrator, defendant DaFoe (“Nurse
DaFoe”), denied Singh’s second-level grievance appeal based on her review of Singh’s medical
chart and Dr. Shelton’s and Nurse Conley’s responses.9 (Singh Ex. 2, at 58.)
7.

Singh’s August 2016 Sick Call

On August 10, 2016, Singh presented for morning sick call and complained to two
nurses, Nurse Dieter and defendant Hodge (“Nurse Hodge”), about sleep deprivation, a bloody
nose, difficulty breathing, back pain, irritated eyes, severe headaches, back pain, sciatica in his

This pepper spray incident forms the basis of Singh’s sixth claim in Case No. 2:16-cv01957-SB, which Singh refers to as a claim for “denial of medical care.” (Singh Decl. at 25)
(bold omitted).
9

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left leg, and needing to increase his dosage of Gabapentin. (Singh Ex. 2, at 59-60, 66-67.) Singh
filed grievances against Nurses Dieter and Hodge because Nurse Dieter assured Singh that she
“would pull [Singh] out for [an] examination” but never ended up doing so. (Singh Ex. 2, at 59,
66.)
Nurse Dieter responded to Singh’s grievances and noted that she saw that Singh was
“scheduled to see Dr. Norton this month for ongoing pain/breathing issues,” she observed Singh
“talking without difficulty” and exhibiting “even and unlabored” respirations, she advised Singh
to “continue taking [his] inhaler,” another provider also advised Singh to continue using his
inhaler, she informed Singh that he had an upcoming appointment, and she attempted to examine
Singh but discovered that he had been released from the disciplinary segregation unit (“DSU”).
(Singh Ex. 2, at 60, 67.)
Dr. Shelton also responded to Singh’s grievances and noted that Singh’s provider
increased his dosage of Gabapentin, Nurse Dieter informed a nurse from a different unit,
defendant Gruenwald (“Nurse Gruenwald”), about Singh’s complaints after she discovered that
he had been released from the DSU, Singh “did not sign up to be seen in sick call for any ongoing problems when [he was] released from DSU,” and Singh did not exhibit breathing issues
during Dr. Norton’s examination on August 31, 2016. (Singh Ex. 2, at 63, 69.)
In January 2017, Nurse DaFoe denied Singh’s second-level grievance appeals.10 (Singh
Ex. 2, at 65, 71.)
///
///
The grievances related to the August 2016 sick call form the basis of Singh’s seventh
claim in Case No. 2:16-cv-01957-SB, which he refers to as a claim for “[d]enial of medical care
for sleep difficulty, breathing difficulty, bloody nose, back pain, and headache.” (Singh Decl. at
27) (bold omitted).
10

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8.

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Singh’s December 2016 Health Service Request

On December 6, 2016, Singh submitted a health service request because he was
experiencing a sore throat, difficulty breathing, joint pain, dizziness, headaches, numbness, and
tingling. (Singh Decl. ¶ 248; Singh Ex. 2, at 72.) A staff member responded noting that Singh
should engage in self-care for his pain and alert security about “environmental concerns.” (Singh
Ex. 5, at 15.)
As a result, Singh filed a grievance on December 12, 2016, wherein he stated that the
medical staff was aware of his ongoing health complications and pending lawsuits and showing
their deliberate indifference to his serious medical needs, and complained that the staff member
who responded failed to sign or date their response to his health service request. (Singh Ex. 2, at
72.)
Nurse Conley responded to Singh’s grievance, apologized that the response “was not
signed and dated as this would have been the appropriate thing to have done,” and explained that
this omission amounted to a “teaching moment” and was not a terminable offense. (Singh Ex. 2,
at 73.) Singh, however, emphasized that the responder failed to address his “health and safety
concerns while directing [him] to ‘security’ . . . [for his] environmental concerns.” (Singh Ex. 2,
at 74.)
On February 27, 2017, an ODOC medical director, defendant Christopher DiGiulio, M.D.
(“Dr. DiGiulio”), reviewed Singh’s grievance. (Singh Ex. 2, at 75.) Dr. DiGiulio noted that he
agreed that the health services response should have been signed, he did not know who
responded to Singh’s health service request, Singh “may always send another” health service
request if he finds the initial response to be inadequate, Singh presented for sick call on January
17, 2017, retaliation is “not tolerated,” this was a “learning opportunity,” and Singh was

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“presently scheduled for future appointments with Dr. Norton and Dr. Dewsnup.” (Singh Ex. 2,
at 75.)
On March 31, 2017, Nurse DaFoe denied Singh’s second-level grievance appeal, noting
that the health services staff was “reminded to . . . sign and date responses to patient
communications,” the unknown staff member gave Singh “a medical recommendation” and thus
did not deny “access to care,” Singh continued to have access to health services, and Singh had
been evaluated by a nurse or physician ten times since the beginning of the year.11 (Singh Ex. 2,
at 77.)
9.

Mold in the Handicap Shower

On February 15, 2017, Singh sent a kite to Nichols asking him to inspect mold in the
handicap shower. (Singh Ex. 1, at 27.) Nichols informed Singh that the Physical Plant crew was
“not a janitorial shop” and did not have a “cleaning crew,” and that Singh needed to work with
his housing unit officer, who could provide the cleaning supplies necessary to “clean and
sanitize” the area. (Singh Ex. 1, at 27.)
On March 9, 2017, after receiving more complaints about the handicap showers, a
housing unit staff member placed work orders for the Physical Plant crew to “clean, remove and
seal the mold affected areas around the [tiles], holes and the handrails inside the handicap
showers.” (Singh Decl. ¶ 259.) Four days later, Singh filed a grievance against Nichols for
failing to “remedy the unsanitary conditions of the mold handicap showers[.]” (Singh Decl. ¶
260.) That same day, Singh also filed a grievance against TRCI’s superintendent, defendant
Brigitte Amsberry (“Amsberry”), based on the mold on the handrail in the handicap shower and
11

The grievance related to the December 2016 health service request forms the basis of
Singh’s eighth claim in Case No. 2:16-cv-01957-SB, which he refers to as a claim for “[d]enial
of medical care for sore throat, difficult breathing, joint pain, dizziness, migraine headaches and
numbness/tingling.” (Singh Decl. at 28) (bold omitted).
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her refusal to discuss matters related to Singh’s ongoing litigation. (Singh Ex. 2, at 89; Singh
Decl. ¶ 260.)
A prison captain, defendant Lytle (“Captain Lytle”), responded to Singh’s grievance
against Nichols and explained that the Physical Plant crew addressed Singh’s issues on March 9,
2017, the handrails in the shower no longer showed “indications of not being properly cleaned,”
and prison staff had “been advised to address any [inmate with a job assignment who] is not
completing their cleaning require[ments] and [to] hold them accountable.” (Singh Ex. 2, at 80.)
Amsberry’s executive assistant also responded to Singh’s grievance against Amsberry, noting
that the prison staff had been directed to follow up on Singh’s complaints and to let Amsberry
know if Singh’s concerns had “been resolved.” (Singh Ex. 2, at 92.)
On June 12 and July 24, 2017, Nooth reviewed Singh’s case and denied Singh’s secondlevel grievance appeals regarding mold in the showers.12 (Singh Ex. 2, at 82, 84, 97; Singh Decl.
¶¶ 265, 280.)
10.

Dr. DiGiulio’s Examination

On April 25, 2017, Singh visited Dr. DiGiulio complaining about symptoms Singh
attributed to mold exposure. (Singh Decl. ¶ 282.) Dr. DiGiulio ordered blood work and peak
flow tests. (Singh Decl. ¶¶ 283-88; Singh Ex. 4, at 90.) Singh’s peak flow tests were below the
normal range and Singh’s blood work showed that he was “fighting an infection.” (Singh Decl.
¶¶ 283-88.)
On May 1, 2017, Singh filed a grievance against Dr. DiGiulio based on “his misconduct
towards [Singh] during [the] April 25, 2017 office visit.” (Singh Decl. ¶ 287.) Two nurses, Nurse
These grievances against Nichols and Amsberry forms the bases for Singh’s ninth and
tenth claims in Case No. 2:16-cv-01957-SB, which Singh refers to as claims for “[u]nsafe
conditions of confinement” due to “mold in [the] handicap showers.” (Singh Decl. at 29, 32)
(bold omitted).
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Conley and defendant Johnston (“Nurse Johnston”), responded to Singh’s grievance, noting that
Dr. DiGiulio examined Singh and reviewed Singh’s healthcare records, labs, and x-rays,
Dr. DiGiulio found “no clinical evidence of health issues related to black mold exposure,”
Dr. DiGiulio was “appropriately qualified and licensed to evaluate [Singh’s] health,” and “[n]o
clinical evidence has been found to support the need for a consultation with a ‘qualified mold
specialist.’” (Singh Decl. ¶ 290; Singh Ex. 2, at 101.)
In a letter dated July 10, 2017, Dr. DiGiulio reiterated that there was “no clinical
evidence that [Singh has] a health condition related to black mold exposure,” referral to a
specialist for further testing and treatment was not “medically indicated,” and Dr. Norton
continued to follow and prescribe medication to treat Singh’s “asthma diagnosis.” (Singh Ex. 2,
at 104.)
On August 12, 2017, ODOC’s interim health services administrator, defendant Sharon
Beck (“Beck”), denied Singh’s second-level grievance appeal regarding Dr. DiGiulio.13 (Singh
Ex. 2, at 106.)
C.

Case No. 2:17-cv-00829-SB
1.

Singh’s Fractured Fifth Metacarpal

On May 28, 2013, Singh visited Nurse Dieter and reported that he was “getting on [his]
bunk yesterday [and] bent [his] finger back.” (Singh Ex. 4, at 23; Singh Decl. ¶ 298.) Nurse
Dieter’s examination revealed that the fifth finger on Singh’s right hand was bruised, swollen,
and without deformities, and Singh was “[a]ble to move [and] bend [the] finger [with some]

This grievance forms the basis of Singh’s eleventh and final claim in Case No. 2:16-cv01957-SB, which he refers to as a claim for “[d]enial of medical care for mold exposure.” (Singh
Decl. at 33) (bold omitted).
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discomfort.” (Singh Ex. 4, at 23.) Nurse Dieter elected to “[b]uddy tape” Singh’s fingers. (Singh
Ex. 4, at 23.)
On June 21, 2013, Singh visited Nurse Smith complaining about his swollen finger,
which he was “able to move,” and requesting an x-ray. (Singh Decl. ¶ 299; Singh Ex. 4, at 26.)
Nurse Smith consulted with Nurse Greunwald, who ordered an x-ray of Singh’s finger. (Singh
Decl. ¶ 299.) Singh’s x-ray revealed a fractured finger: “Three views of the fifth finger of the
right hand demonstrate a comminuted fracture of the proximal phalanx. There is good alignment.
Some callus is present dorsally and on the ulnar side. The joint spaces are unremarkable and no
other significant findings are seen.” (Singh Ex. 4, at 173.) Based on his review of Singh’s x-ray
and examination of Singh’s finger, Dr. Dewsnup concluded that Singh needed to be “splinted
appropriately” and return for an x-ray in a month. (Singh Decl. ¶ 300.)
Singh returned to the medical department the next month complaining of pain in his
finger and a nurse noted that Singh was “[w]earing a [left] handed finger split on [his right fifth]
finger.” (Singh Ex. 4, at 29.) The nurse therefore applied a “[s]traight finger splint” instead.
(Singh Ex. 4, at 29.)
Singh continued to complain about finger pain and swelling and TRCI’s medical staff
responded by ordering x-rays of Singh’s finger, providing ice and anti-inflammatories,
examining Singh several times, applying a new splint to Singh’s finger (although Singh
disagreed with one nurse’s decision to put him back in a splint that “had the overlap bar going
from outside to inside instead [of] from inside to outside”), and referring Singh for a consultation
with an orthopedic surgeon, James Karmy, M.D. (“Dr. Karmy”). (Singh Decl. ¶¶ 303-23; Singh
Ex. 4, at 34.)
///

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Singh’s July 2013 x-ray revealed that the fracture of his “right small finger [was] again
appreciated and unchanged in position,” there was “further healing, but the fracture [was] not
solid radiographically as yet,” and Singh’s finger was “in the mid stages of healing.” (DiGiulio
Decl. ¶ 40.) Singh’s August 2013 x-ray revealed “a fracture of the fifth proximal phalanx,” good
alignment, that “the fracture lucency persist[ed] and there [was] little callus obvious,” and that
some of the “fracture lucencies [were] a bit less apparent suggesting some interval healing.”
(DiGiulio Decl. ¶ 41.)
Singh’s September 2013 x-ray revealed that the “fracture of the fifth proximal phalanx
[was] again seen,” the “fracture lucency [was] less apparent suggesting some interval healing,”
and there “continue[d] to be soft tissue swelling.” (DiGiulio Decl. ¶ 42.) Singh’s November 2013
x-ray revealed “persistent lucency” and that “the [fifth] proximal phalanx appear[ed] to have
healed,” there was “soft tissue swelling,” and the “healing ha[d] resulted with a small bony
projection off the radial aspect of the head of the [fifth] proximal phalanx.” (DiGiulio Decl. ¶
43.)
Dr. Karmy reviewed the series of x-rays of Singh’s finger. (Singh Ex. 4, at 178.)
According to Dr. Karmy, Singh’s series of x-rays revealed “healing of a comminuted fracture in
good position and alignment and exostosis on the radial side of the joint at the distal end of the
proximal phalanx.” (Singh Ex. 4, at 178.) Dr. Karmy did not “suspect” that the exostosis on
Singh’s little finger was in “a position to inhibit [Singh’s] motion very much,” but noted that “if
it [was] painful because of its prominence, it could be treated with surgical excision.” (Singh Ex.
4, at 178.)
In December 2013, about two weeks after Dr. Karmy issued his opinion, Singh visited
Nurse Gruenwald because his finger looked disfigured, still hurt, and was difficult to bend.

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(Singh Decl. ¶ 300.) Nurse Greunwald noted that her examination revealed no “dysfunction of
the hand” and that no further treatment was “indicated.” (Singh Ex. 4, at 178.)
A little over a year later, Singh reported “excruciating” finger pain. (Singh Decl. ¶ 324.)
Dr. Norton and the medical staff examined Singh and ordered another x-ray of his finger, which
revealed “complete healing of the proximal phalanx fracture,” unremarkable “interphalangeal
joints,” and a “persistent unchanged bony exostosis.” (Singh Ex. 4, at 67-69; DiGiulio Decl. ¶
45.)
In late April 2015, Singh filed a grievance against Dr. Norton based on his “failure to
provide medical treatment for [his] ongoing pain related to [his] injured finger.” (Singh Decl. ¶
327.) During the grievance process, Dr. Norton referred Singh’s case to the Therapeutic Level of
Care (“TLC”) committee to “ask for a referral to an orthopedist” because Singh wanted to have
his exostosis excised given Dr. Karmy’s opinion such a condition could be treated with surgical
excision. (Singh Ex. 2, at 111; Singh Decl. ¶ 334.) The TLC committee determined that surgical
excision of Singh’s exostosis was “not medically necessary” and “recommended conservative
care and re-evaluation[.]” (Singh Ex. 2, at 111.) Dr. Shelton also advised Singh that he “always
had the choice to self-pay” for the surgery. (Singh Ex. 2, at 111.) Dr. Norton also advised Singh
that he had reviewed his imaging and “agree[d]” with the TLC committee’s decision. (Singh Ex.
4, at 181.)
On July 23, 2015, Nurse DaFoe denied Singh’s second-level grievance appeal related to
the treatment of his finger.14 (Singh Ex. 2, at 113.)
///
Singh’s complaints about the TRCI medical staff’s treatment of his finger and
exostosis form the basis of his first claim for relief in Case No. 2:17-cv-00829-SB, which Singh
refers to as a claim for cruel and unusual punishment and medical deliberate indifference. (Singh
Decl. at 36-40.)
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Singh’s Skin Rash

On June 1, 2015, Singh submitted a health service request to a medical services manager,
defendant Whelan (“Whelan”), based on, among other things, a skin rash that he attributed to
“exposure to [t]oxic mold, [d]ust and other conditions.” (Singh Ex. 5, at 9; Singh Decl. ¶ 335)
(bold omitted). Nurse Gruenwald provided Singh with an allergy medication and an inhaler and
instructed Singh to purchase hydrocortisone cream to treat his rash. (Singh Ex. 4, at 70; Singh
Decl. ¶ 338; see also Singh Ex. 5, at 9, reminding Singh that he had not ordered hydrocortisone
cream).
On June 23, 2015, Singh filed a grievance against Nurse Gruenwald based on her “failure
to provide medical care regarding his rash which led to permanent scarring.” (Singh Decl. ¶ 339.)
Nurse Johnston responded to Singh’s grievance, noting that Nurse Greunwald prescribed oral
medication and nasal spray to treat Singh’s allergy symptoms and advised Singh to purchase
hydrocortisone cream to treat his skin rash, all of which, according to Nurse Johnston, was “the
same plan of care that would be offered to all individuals with these symptoms.” (Singh Ex. 2, at
117.)
On December 7, 2015, after Dr. Shelton reviewed the treatment of Singh’s rash and
found that Singh received appropriate medical care, Nurse DaFoe denied Singh’s second-level
grievance appeal, noting that it “appear[ed] that [Singh was] treated fairly” and Nurse DaFoe did
“not find any retaliation in regards to the care [Singh] received” for his rash.15 (Singh Ex. 2, at
119, 121.)
///
Singh’s grievance and declaration also refer to “retaliation,” but Singh characterizes his
second claim for relief in Case No. 2:17-cv-00829-SB as a claim for “[o]ngoing inadequate”
medical care and “denial of medical care for exposure to mold.” (Singh Decl. at 40-41) (bold
omitted).
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Singh’s Mini-Dorm

On March 24, 2015, ODOC assigned Singh to “TRCI’s Unit 11[.]” (Decl. of David Pedro
in Supp. of Defs.’ Mot. for Summ. J. (“Pedro Decl.”) ¶ 4, ECF No. 176.) This unit is a “honor
housing unit for inmates who have clear conduct and are programming,” and Singh’s bunk was
one of twelve beds “located in a classroom on Unit 11 that was converted into a ‘mini’ dorm.”
(Pedro Decl. ¶ 4.)
In April 2015, Singh contacted the operations captain, defendant David Pedro (“Pedro”),
and complained that the door adjacent to his sleeping area was “nois[y] 24 hours a day” as a
result of staff entering or leaving the mini-dorm and the mini-dorm’s windows resulted in
“constant illumination.” (Singh Decl. ¶¶ 338-39; Pedro Decl. ¶¶ 1, 5.) Pedro “offered to
move . . . Singh from the mini-dorm to another housing assignment on the same housing unit but
[Singh] stated he wanted to remain in the mini-dorm.” (Pedro Decl. ¶ 5.) Pedro therefore asked
Singh to rescind his complaints, and Singh submitted a kite stating that he “[r]escind[ed] [his]
earlier statement regarding [being] under constant illumination 24 hours a day.” (Pedro Decl. ¶ 5;
Singh Ex. 1, at 7.)
In early June 2015, Singh contacted Captain Lytle about any planned adjustments to the
mini-dorm’s lighting and Captain Lytle informed Singh that he “check[ed] with both security
and [the] physical plant [crew] and there [are] ‘no’ adjustments being considered.” (Singh Ex. 1,
at 8.)
On June 8, 2015, Pedro, who heard that “Singh was continuing to complain about the
lighting on the mini-dorm to other inmates,” decided to move Singh “back to a celled housing on
Unit 11,” because security staff has the discretion to move AICs from dormitory housing if they
are “impos[ing] additional burdens on staff” and Pedro believed that Singh’s complaints about
the lighting was “creating a disruption of the normal, safe operation of the unit.” (Pedro Decl. ¶¶
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6, 8-9.) Pedro also explained to Singh that the lighting in the mini-dorm, an “open bay setting,”
is “required for safety and security reasons and there will be noise when staff or inmates enter
and leave the mini-dorm.” (Pedro Decl. ¶¶ 8-9.) According to Pedro, the mini-dorms must have
“enough illumination” so security staff can carry out their duties, such as observing AICs’
conduct “at a moment’s notice” and conducting inmate counts, in “a safe manner.” (Pedro Decl.
¶ 10.)
Four days later, Pedro discovered that moving Singh from the mini-dorm to celled
housing in the honor housing unit resulted in Singh losing his “orderly program assignment.”
(Pedro Decl. ¶ 12.) Pedro therefore asked “the [Work] Assignment Office to double-fill an
orderly position so that [Singh] could remain unharmed by changing his housing assignment[.]”
(Pedro Decl. ¶ 12.) Singh did not receive credit for the few days of work he missed. (Singh Decl.
¶ 359.)
On June 23, 2015, Singh filed a grievance against Pedro “regarding his misconduct.”
(Singh Decl. ¶ 354.) During and before the grievance appeal process, Singh accused Pedro of
“threatening” to move Singh out of the mini-dorm if he did not rescind his complaints about the
lighting. (Singh Decl. ¶¶ 355, 363.) Pedro denied that he ever coerced, threatened, or forced
Singh to rescind his complaint about the lighting, and explained that Singh wanted to stay in the
mini-room and talked Pedro into remaining there and that Pedro asked Singh to submit the kite
rescinding his complaint because he wanted to protect himself given Singh’s “litigious nature.”
(Singh Ex. 1, at 33.)
On October 19, 2015, after Singh complained to an ODOC superintendent, defendant
John Myrick (“Myrick”), and ODOC’s director, defendant Colette Peters (“Peters”), Franke
denied Singh’s second-level grievance appeal, noting that Pedro “directed staff to ensure that

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[Singh was] assigned to a Unit Orderly assignment.”16 (Singh Decl. ¶¶ 363-370; Singh Ex. 2, at
129.)
II.

DEFENDANTS’ EXPERT REPORT
Defendants retained Douglas Hancock (“Hancock”), an engineer, Certified Industrial

Hygienist, and Certified Safety Professional, as an expert to investigate Singh’s mold-related
claims. (Decl. of Douglas Hancock in Supp. of Defs.’ Mot. Summ. J. (“Hancock Decl.”) ¶¶ 1-2,
ECF No. 177.) Hancock, who works for PBS Engineering and Environmental Inc. (“PBS”), has a
background in chemistry and toxicology, twenty-eight years of “experience dealing with the
workplace environment including assessment and control of hazardous waste sites and working
around radiological hazards,” and “experience[] in air-quality investigations; water-quality
studies; environmental soil and groundwater investigations and remediation; and asbestos and
lead management.” (Hancock Decl. Attach. 1, at 5.) Hancock prepared a report after reviewing
Singh’s “medical records, repair/work orders, photographs, and other [relevant] information[.]”
(Hancock Decl. ¶ 1.)
Hancock’s report focused primarily on Singh’s potential exposure to fungal materials
during (1) “the cleaning of a combination toilet-sink fixture in . . . Singh’s cell,” (2) “the
cleaning of a kitchen walk-in freezer,” and (3) “the demolition and repair of a shower area.”
(Hancock Decl. Attach. 1, at 3.) Hancock’s report noted that the suspected fungal growth in
Singh’s cell was “likely [four or five] square inches which is considered de minimis in the
context of fungal abatement”; Singh did not perform any of the “cleaning of the walk-in freezer
[or] the demolition and repair of the shower area”; and it was “PBS’ understanding that [the
The events underlying Singh’s grievance against Pedro form the basis of his third and
final remaining claim in Case No. 2:17-cv-00829-SB, and Singh characterizes this claim as an
Eighth Amendment claim based on the excessive lighting and noise in the mini-dorm. (Singh
Decl. at 41.)
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cleaning of the walk-in freezer and demolition and repair of the shower area] was performed by
trained workers using methodologies that were consistent with OSHA guidelines.” (Hancock
Decl. Attach. 1, at 3.)
Hancock’s report concluded that there was no correlation between Singh’s diagnoses and
the dates of alleged mold exposure, the conditions Singh encountered did not exceed what would
normally be encountered during routine maintenance of a personal residence, and personal
protective equipment (“PPE”) was not necessary:
PBS reviewed over one thousand records relating to medical checkups,
dental work, surgeries, and psychological exams for [Singh]. . . . PBS attempted
to correlate the dates of the medical records with the dates associated with [the]
three events addressed above. In performing an industrial hygiene assessment of a
reported health concern, we tried to determine if onset of reported symptoms
coincided with known change in the environment. PBS observed no correlation
between actual diagnosed illness in [Singh] with the dates of the three events.
In reviewing the details associated with the three above referenced events,
PBS observed no documentation supporting a presumption that fungal materials
were present or that ‘toxic’ fungal materials were present. The information
indicating that fungal conditions were present at all was anecdotal.
....
PBS reviewed photographs representing typical conditions associated with
normal shower conditions [at the TRCI]. In the photographs, small areas of black
discoloration are visible in corners and on grout-lines separating the ceramic tiles.
These conditions would be considered unexceptional in a residential setting and
the cleaning of these conditions would not warrant the use of unusual precautions
or special [PPE] unless the cleaners being used would warrant it.
Based upon PBS’ review of the available medical records, maintenance
records, and photographs, it is PBS’ opinion that fungal exposures present in the
institution and fungal exposures related to the routine cleaning of inmate cells and
shower rooms would not present a sufficient fungal hazard concern to warrant
special or unusual precautions such as the use of PPE or special cleaning
materials and methods. PBS observed no indication that the fungal conditions
encountered by [Singh] exceeded what would normally be encountered during the
routine maintenance of a normal residence.
(Hancock Decl. Attach. 1, at 3-4.)

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LEGAL STANDARDS
Summary judgment is proper if “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). At the summary
judgment stage, the court views the facts in the light most favorable to the non-moving party, and
draws all reasonable inferences in favor of that party. Porter v. Cal. Dep’t of Corr., 419 F.3d
885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence,
or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 289 (1968)).
DISCUSSION
I.

COURT-APPOINTED EXPERTS
Before addressing Defendants’ motions for summary judgment, the Court evaluates

Singh’s renewed motions for appointment of an expert to investigate his mold-related claims.
(Pl.’s Renewed Mot. for Appointment of an Expert (“Pl.’s Mot. for Appointment”) at 1.) Singh
argues that the Court should appoint a “neutral expert” to review the record because Hancock’s
“one-sided opinion” relies on “misleading and manufactured facts” and was “prepared with [a]
jaundice eye to undermine [his] meritorious claims.” (Pl.’s Mot. for Appointment at 2) (emphasis
omitted).
A.

Applicable Law

Federal Rule of Evidence 706 “permits a court to appoint a neutral expert to assist the
court to understand complex, technical, or esoteric subject matter.” Woodroffe v. Oregon, No.
2:12-cv-00124-SI, 2014 WL 1383400, at *5 (D. Or. April 8, 2014) (citing Walker v. Am. Home
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Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999)). However, “court
appointment of experts is appropriate only in ‘rare circumstances’ and should be reserved for
‘exceptional cases.’” Herrington v. Elliot-Blakeslee, No. 2:13-cv-0948-AC, 2016 WL 1420976,
at *4 (D. Or. Apr. 11, 2016) (citation omitted). Courts do not typically appoint experts when the
record has been adequately developed and the evidence or subject matter is not difficult to
understand. See id. (noting that “court-appointed experts typically are used in complex litigation
where the record is not clearly developed by the parties,” and denying a motion for a courtappointed expert because the facts were “not particularly complex,” the “subject matter or
evidence [was] not difficult to understand,” the medical records were “clearly developed,” and
an expert witness, who was “well-suited for [the] task,” addressed the health risk question at
issue).
Ultimately, a “court’s decision whether to appoint an expert is discretionary,” but it is
well settled that “there is no statutory authorization for a court-appointed investigator for civil
litigants proceeding in forma pauperis,” Snow v. Mar, 785 F. App’x 465, 466 (9th Cir. 2019)
(citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 n.7 (9th Cir. 2002)), and courts may not
appoint an expert to “represent the interests of one party.” DeJesus v. Godinez, 720 F. App’x
766, 772 (7th Cir. 2017) (citing Kennedy v. Huibregtse, 831 F.3d 441, 443 (7th Cir. 2016)); see
also Woodroffe, 2014 WL 1383400, at *5 (explaining that “[a] court may not . . . appoint an
expert on behalf of an indigent civil party” (citing Tedder v. Odel, 890 F.2d 210, 211 (9th Cir.
1989)).
B.

Analysis

The Court concludes that no rare or exceptional circumstances exist to warrant the
appointment of an expert witness under FED. R. EVID. 706, and therefore denies Singh’s renewed
motions.
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Given his work as an engineer qualified as a Certified Industrial Hygienist and Certified
Safety Professional, background in chemistry and toxicology, and experience assessing and
containing hazardous material, Hancock—who has “no previous attachments or connections with
the [ODOC]” (Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”) at 29)17—is well qualified to opine on
the severity of the mold at Singh’s prison, whether PPE was necessary, and whether there
appeared to be a correlation between Singh’s medical diagnoses and the dates of alleged mold
exposure. An ODOC medical director, Dr. DiGiulio, who reviewed Singh’s records and is
“familiar with the care [Singh] has received since his incarceration,” also provided an opinion
based on Singh’s test results ruling out chronic disease process related to mold exposure. (See
DiGiulio Decl. ¶¶ 1, 5, 74-75, stating that “Singh has received multiple tests that rule out any
chronic disease process related to mold exposure”; see also Pl.’s Am. Resp. to Defs.’ Mot.
Summ. J. (“Pl.’s Resp.”) at 69, recognizing “the Court’s duty to consider [Dr.] DiGiulio’s
testimony,” but arguing that it should “not give weight to his lay opinions concerning [Singh’s]
mental health”). In light of Hancock’s and Dr. DiGiulio’s opinions and expertise in the relevant
areas, the Court concludes that another expert opinion is not necessary for the Court to
understand the relevant subject matter. Cf. Herrington, 2016 WL 1420976, at *4 (denying a
motion for a court-appointed expert and finding that an ODOC physician provided a sufficient
expert opinion).
Although Singh did not explain as much in his renewed motion for a court-appointed
expert (see Pl.’s Mot. for Appointment at 1-2), Singh’s summary judgment response suggests
It is noteworthy that after retaining Hancock, counsel for Defendants “pledged to
[Singh] that we would produce to him a complete and unredacted copy of Mr. Hancock’s
findings – regardless of whether Mr. Hancock’s findings turned out to be favorable or
unfavorable to the Defendants “ and “[a]s pledged, Defendants did disclose Mr. Hancock’s
unredacted findings to Plaintiff on August 16, 2018.” (Defs.’ Resp. to Pl.’s Renewed Mot. for
Order Requiring Martinez Report and for Neutral Expert, at 2.)
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that he takes issue with Hancock’s opinion because it does not reflect that Hancock “ever
collected and tested [any mold samples] to determine the presence of [any] toxicity,” or
specifically identified the medical records, work orders, and photographs he reviewed.18 (See
Pl.’s Resp. at 70-71, disputing whether certain findings can be “factually true” without testing).
On the contrary, Hancock’s report indicates that he reviewed Singh’s medical records and
compared them to the dates of alleged mold exposure and reviewed work and maintenance
orders related to the cleaning of the walk-in freezer and demolition and repair of the shower area,
as well as “photographs representing typical conditions associated with normal shower
conditions [at TRCI].” (Hancock Decl. Attach. 1, at 1, 3-4.) As to Hancock’s alleged failure to
test mold samples, Hancock concluded, based on his expertise, that the medical records, work
and maintenance orders, and photographs were sufficient to demonstrate that the conditions
Singh encountered did not “exceed[] what would normally be encountered during the routine
maintenance of a normal residence.” (Hancock Decl. Attach. 1, at 4; see also Hancock Decl.
Attach. 1, at 2, explaining that there “has not been a conclusive study that shows any adverse
toxic health affect associated with normal exposures to airborne fungal materials related to
routine cleaning of small areas of fungal growth”).
The Court finds that Hancock and Dr. DiGiulio have provided opinions that are sufficient
to assist the Court in understanding Singh’s medical history, the objective medical evidence, and
the severity and potential impact of Singh’s mold exposure. Accordingly, the Court exercises its
discretion to deny Singh’s motions for a court-appointed expert.

Singh also appears to endorse some of Hancock’s opinions, such as his opinion that
“individuals with asthma can have an asthmatic condition triggered by exposure to fungal
materials” and that exposure to fungal materials can produced “irritant effects” like “itching skin
and itching eyes and sinuses.” (Pl.’s Resp. at 71.)
18

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment on all of Singh’s remaining claims in these

consolidated cases. On this record, no reasonable juror could conclude that any of the named
defendants (1) were deliberately indifferent to Singh’s serious medical needs, (2) were
deliberately indifferent to Singh’s conditions of confinement, or (3) retaliated against Singh for
filing prison grievances. Accordingly, the Court grants Defendants’ motions for summary
judgment.
A.

Deliberate Indifference to Serious Medical Needs
1.

Applicable Law

“Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison
medical treatment, an inmate must show ‘deliberate indifference to serious medical needs.’” Jett
v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104
(1976)). The Ninth Circuit’s “test for deliberate indifference to [serious] medical need is twopronged[.]” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett, 439 F.3d at
1096).
a.

Prong One—Serious Medical Need

First, the plaintiff must show “the existence of a serious medical need.” Colwell v.
Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citing Estelle, 429 U.S. at 104). A serious
medical “need exists if failure to treat the injury or condition ‘could result in further significant
injury’ or cause ‘the unnecessary and wanton infliction of pain.’” Id. (quoting Jett, 439 F.3d at
1096). Other indicators of a serious medical need include: “‘[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.’” Id. (quoting McGuckin v. Smith, 974 F.2d 1050,
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1059-60 (9th Cir. 1991), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104
F.3d 1133 (9th Cir. 1997)).
b.

Prong Two—Deliberate Indifference

“Second, the plaintiff must show that the defendant’s response to the need was
deliberately indifferent.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). “A prison
official is deliberately indifferent under the subjective element of the test only if the official
‘knows of and disregards an excessive risk to inmate health and safety.’” Colwell, 763 F.3d at
1066 (quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)). “This ‘subjective
approach’ focuses only ‘on what a defendant’s mental attitude actually was.” Toguchi, 391 F.3d
at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 839 (1994)). To establish deliberate
difference under this approach, a plaintiff must do more than show (1) a difference of medical
opinion as to the need to pursue one course of treatment over another; (2) mere negligence in
diagnosing or treating a medical condition; (3) medical malpractice; or (4) even gross
negligence. See Toguchi, 391 F.3d at 1057-60 (explaining that “[d]eliberate indifference is a high
legal standard,” “‘[m]ere negligence in diagnosing or treating a medical condition . . . does not
violate a prisoner’s Eighth Amendment rights,’” “[a] showing of medical malpractice or
negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment,”
and “even gross negligence is insufficient to establish a constitutional violation”) (citations
omitted); Wilhelm, 680 F.3d at 1122 (explaining that “‘a plaintiff’s showing of nothing more
than a difference of medical opinion as to the need to pursue one course of treatment over
another [is] insufficient, as a matter of law, to establish deliberate indifference’”) (citation
omitted).
///
///
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Summary of Claims

Fifteen claims remain in these consolidated cases. Nine of Singh’s remaining claims
allege violations of the Eighth Amendment arising from allegedly deficient medical treatment,
on a theory of deliberate indifference to Singh’s serious medical needs:
1.

Singh’s remaining claim in Case No. 2:14-cv-01477-SB, which is based
on the grievance about Singh’s initial exposure to mold in the tortilla room
and the care Singh received thereafter;

2.

Claim One in Case No. 2:16-01957-SB, which is based on the grievance
about Dr. Norton’s treatment in July and August 2014;

3.

Claim Five in Case No. 2:16-01957-SB, which is based on the grievance
about the March 2016 shower project;

4.

Claim Six in Case No. 2:16-01957-SB, which is based on the grievance
about Singh’s exposure to pepper spray;

5.

Claim Seven in Case No. 2:16-01957-SB, which is based on the grievance
about Singh’s August 2016 sick call;

6.

Claim Eight in Case No. 2:16-01957-SB, which is based on the grievance
about Singh’s December 2016 health service request;

7.

Claim Eleven in Case No. 2:16-01957-SB, which is based on the
grievance about Dr. DiGiulio’s examination;

8.

Claim One in Case No. 2:17-cv-00829-SB, which is based on the
grievance about the treatment of Singh’s fractured finger; and

9.

Claim Two in Case No. 2:17-cv-00829-SB, which is based on the
grievance about the treatment of Singh’s skin rash.

///
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Analysis

The Court finds that no reasonable juror could conclude that any of the named defendants
were deliberately indifferent to Singh’s serious medical needs. See Toguchi, 391 F.3d at 1057-60
(explaining that negligence in diagnosing or treating a condition, medical malpractice, and even
gross negligence are insufficient to establish an Eighth Amendment violation); Wilhelm, 680
F.3d at 1122 (explaining that “‘a plaintiff’s showing of nothing more than a difference of
medical opinion as to the need to pursue one course of treatment over another [is] insufficient, as
a matter of law, to establish deliberate indifference’”) (citation omitted).
As to the remaining claim in Case No. 2:14-cv-01477-SB, the record reveals that Singh’s
medical providers concluded that Singh’s respiratory symptoms were not related to his initial
exposure to mold in the tortilla room.19 Instead, Singh’s providers believed that his symptoms
were due to issues with allergies, recurrent URIs, a bacterial infection, GERD, and asthma. The
record also reflects that Singh’s providers were consistently responsive to Singh’s complaints.
To be sure, Singh’s providers provided Singh with allergy medications, GERD medication,
antibiotics, and inhalers; examined Singh numerous times; ordered x-rays of Singh’s chest,
which were negative and showed that Singh’s lungs were clear and expanded; ordered blood
work; ordered a throat culture, which was negative for infection; referred Singh to an infectious
disease expert who diagnosed Singh with inflammatory bronchitis; and referred Singh to an
ODOC medical director, who diagnosed Singh with asthma. Given this record, there is no
Hancock’s expert report and Dr. DiGiulio’s opinion corroborate the providers’
conclusions. Notably, Hancock concluded that the moldy conditions Singh encountered did not
“exceed[] what would normally be encountered during the routine maintenance of a normal
residence,” and Dr. DiGiulio stated that “Singh has received multiple tests that rule out any
chronic disease process related to mold exposure.” (DiGiulio Decl. ¶¶ 1, 5, 74-75; Hancock Decl.
Attach. 1, at 4; see also Hancock Decl. Attach. 1, at 2, explaining that there “has not been a
conclusive study that shows any adverse toxic health affect associated with normal exposures to
airborne fungal materials related to routing cleaning of small areas of fungal growth”).
19

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genuine issue of fact as to whether any of the named defendants were deliberately indifferent to
Singh’s medical needs.
As to Claim One in Case No. 2:16-01957-SB, it is clear that Singh disagreed with
Dr. Norton’s findings and treatment decisions in July and August 2014, because Singh believed
that his symptoms were related to exposure to toxic black mold, while Drs. Norton and Shelton
believed that Singh’s symptoms should be treated with an inhaler and allergy medications.
Singh’s difference of opinion is insufficient, as a matter of law, to establish deliberate
indifference.
As to Claim Five in Case No. 2:16-01957-SB, the record reveals that the prison staff
reported that they followed OHSA standards and ODOC rules and procedures during the March
2016 shower project. The record also reveals that a physical plant coordinator confirmed that the
shower area was “totally sealed with plastic and the predator air scrubber with [high-efficiency
particulate air] filters [were] in place,” prison officials interviewed the supervisor and AIC who
performed the work, and the supervisor and AIC confirmed that “the area was totally sealed off
with plastic sheeting,” the “plastic was sealed behind them” whenever they entered or exited the
work area, and the plastic “was sealed around the intake on the predator air filtering machine.”
(Singh Ex. 2, at 46, 48.) Given this evidence, no reasonable juror could conclude that Defendants
were deliberately indifferent with respect to any serious medical needs resulting from the March
2016 shower project.
As to Claim Six in Case No. 2:16-01957-SB, the records show that Singh complained
that he was exposed to pepper spray and did not receive treatment like other AICs with asthma.
The record, however, reveals that sick call was available to Singh, Singh did not sign up for sick
call during the days that followed, officials reviewed Singh’s records and did not find a

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documented report of respiratory symptoms on the day in question, and Singh had a rescue
inhaler that he could have used to treat his breathing issues. Given this evidence, no reasonable
juror could conclude that Defendants were deliberately indifferent to any serious medical needs
arising out of Singh’s secondary exposure to pepper spray.
As to Claim Seven in Case No. 2:16-01957-SB, the record reveals that Nurse Dieter
assured Singh that she would examine him based on his recent complaints about sciatica in his
left leg, back pain, need for an increased dosage of Gabapentin, difficulty breathing, irritated
eyes, and headaches. When Nurse Dieter attempted to do so, she discovered that Singh had been
released from the DSU. As a result, Nurse Dieter informed Nurse Gruenwald about Singh’s
complaints and Singh about his upcoming appointment and need to continue using his inhaler.
Given this evidence, no reasonable juror could conclude that Defendants were deliberately
indifferent to Singh’s serious medical needs.
As to Claim Eight in Case No. 2:16-01957-SB, Singh submitted a health services request
in December 2016 based on complaints of a sore throat, difficulty breathing, joint pain,
dizziness, headaches, numbness, and tingling, and unknown staff member responded that Singh
should engage in self-care for his pain and alert prison security about any environmental
concerns. Thereafter, Singh complained about the lack of response to his health service request
and the staff member’s failure to sign the response. However, as Dr. DiGiulio explained, nothing
prevented Singh from submitting another health service request if he believed the initial response
was inadequate. The record also reveals that the medical staff treated Singh on ten occasions in
early 2017 and that Nurse DaFaoe counseled staff members on the need to sign responses. Given
this evidence, no reasonable juror could conclude that Defendants were deliberately indifferent
to Singh’s serious medical needs.

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As to Claim Eleven Case No. 2:16-01957-SB, Dr. DiGiulio examined Singh on April 25,
2017, based on respiratory complaints that Singh attributed to mold exposure. Dr. DiGiulio
reviewed Singh’s records, labs, and x-rays, and ordered blood work and peak flow tests. Singh’s
peak flow tests were below the normal range and Singh’s blood work showed that his white
blood count was elevated, and he was fighting an infection. Dr. DiGiulio, however, did not
believe that there was clinical evidence demonstrating that Singh’s health issues were related to
mold exposure. Although Singh disagreed with Dr. DiGiulio and filed a grievance based on that
dispute alleging that Dr. DiGiulio is not a mold specialist, Singh’s difference of opinion as to the
proper diagnosis and course of treatment is insufficient, as a matter of law, to establish deliberate
indifference. See Wilhelm, 680 F.3d at 1122 (so holding). Furthermore, even if Dr. DiGiulio was
negligent in diagnosing and treating Singh’s respiratory symptoms, negligence alone is not
sufficient to establish an Eighth Amendment violation. See Toguchi, 391 F.3d at 1057 (“Mere
negligence in diagnosing or treating a medical condition, without more, does not violate a
prisoner’s Eighth Amendment rights.”). Thus, Defendants are entitled to summary judgment on
this claim.
As to Claim One in Case No. 2:17-cv-00829-SB, Singh takes issue with the fact that
Nurse Dieter initially buddy-taped his finger, the nursing staff at times applied a splint that
overlapped from the outside instead of the inside, and he suffers from pain due to an exostosis.
The record, however, reveals that Singh’s medical providers responded to his complaints by
ordering numerous x-rays; providing ice and anti-inflammatories; referring Singh to an
orthopedic surgeon, who concluded that Singh’s exostosis would not inhibit Singh’s motion very
much but could be treated with surgical excision if it was painful; referred Singh’s request for a
surgical excision to the TLC committee for review; and reviewed Singh’s imaging to determine

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whether they agreed with the TLC committee’s decision to deny Singh’s request for surgery.
Dr. DiGiulio has also reviewed Singh’s medical records. According to Dr. DiGiulio, Singh’s
“fracture is well-healed . . . and the persistent, unchanged bony exostosis . . . is a benign
condition that occurs with the healing process of a fracture and is located in an area that does not
cause discomfort,” Singh “has full range of motion of the right hand with no observed
impairment when he is animated and focused on other matters,” and Singh’s claim that “he is
experiencing severe, debilitating pain . . . is not supported by the objective evidence.” (DiGiulio
Decl. ¶ 46.) Given this evidence, no reasonable juror could conclude that Defendants were
deliberately indifferent to Singh’s serious medical needs relating to his fractured finger.
As to Claim Two in Case No. 2:17-cv-00829-SB, the record reveals that Singh
complained of a skin rash that caused scarring. Singh’s providers concluded that Singh was
suffering from allergies, provided Singh with allergy medications and an inhaler, and instructed
Singh to purchase hydrocortisone cream. Singh seems to believe that this course of treatment
was inappropriate and that his providers should have attributed his rash to exposure to toxic
black mold. Singh’s difference of opinion as to the proper diagnosis and course of treatment is
insufficient, as a matter of law, to establish deliberate indifference. Even if Singh’s providers
were negligent in diagnosing and treating his skin rash, mere negligence is not sufficient to
establish an Eighth Amendment violation. Accordingly, Defendants are entitled to summary
judgment on this claim.
4.

Conclusion

“Deliberate indifference is a high legal standard. A showing of medical malpractice or
negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.”
Toguchi, 391 F.3d at 1060. Even viewed in the light most favorable to Singh, the record fails to
demonstrate that any of Singh’s medical providers were deliberately indifferent to Singh’s
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serious medical needs. Accordingly, the Court grants Defendants’ motions for summary
judgment on Singh’s Eighth Amendment medical claims.20
B.

Deliberate Indifference to Conditions of Confinement
1.

Applicable Law

“To prove an Eighth Amendment violation based on prison conditions, a prisoner must
satisfy a two-part test.” Grenning v. Miler-Stout, 739 F.3d 1235, 1238 (9th Cir. 2014). The first,
“objective part of the test requires a showing that the defendants deprived the plaintiff of the
‘minimal civilized measure of life’s necessities.’” Id. (quoting Hallett v. Morgan, 296 F.3d 732,
744 (9th Cir. 2002)). For example, the Ninth Circuit has “held that continuous lighting can
satisfy the objective part of the test,” and recognized that “‘[a]dequate lighting is one of the
fundamental attributes of ‘adequate shelter’ required by the Eighth Amendment . . . [and] there
[is typically] no legitimate penological justification for requiring inmates to suffer physical and
psychological harm by living in constant illumination.’” Id. (quoting Keenan v. Hall, 83 F.3d
1083, 1090 (9th Cir. 1996), opinion amended on denial of reh’g, 135 F.3d 1318 (9th Cir. 1998));
cf. Chappell v. Mandeville, 706 F.3d 1052, 1058 (9th Cir. 2013) (“Keenan did not clearly
establish that constant illumination violates the Eighth Amendment when done for a legitimate
penological purpose. Keenan noted that no legitimate penological justification had been offered
in that case. . . . In contrast [to Keenan], the record here reflects a clear penological purpose.
Prison officials suspected that [the plaintiff] had secreted contraband in his body and kept the

20

Singh also references complaints about treatment of his knee and hip pain.
Dr. DiGiulio suggests that the x-rays of Singh’s left leg and hip were largely unremarkable and
showed only “a slight narrowing [of] the lumbosacral disc that [was] unchanged [over the last
four years],” “no evidence of fracture, dislocation effusion or degenerative changes,” and
“normal articulation with no evidence of acute or significant chronic abnormality.” (DiGiulio
Decl. ¶ 48.)
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lights on so that they could monitor [the plaintiff twenty-four] hours a day to prevent him from
disposing of the contraband.”).
The second “subjective part [of the two-part test] requires a showing that the defendants
‘acted with deliberate indifference[.]’” Grenning, 739 F.3d at 1238 (quoting Hallett, 296 F.3d at
744). In other words, the plaintiff must “show[] that the defendant knew of an excessive risk to
inmate health or safety that the defendant deliberately ignored.” Id. at 1239 (citing Johnson v.
Lewis, 217 F.3d 726, 734 (9th Cir. 2000)). A plaintiff can meet this burden by demonstrating that
“the risk posed by the deprivation [was] obvious,” and “the prison officials had no ‘reasonable’
justification for the deprivation, in spite of that risk.” Thomas v. Ponder, 611 F.3d 1144, 1150
(9th Cir. 2010) (quoting Farmer, 511 U.S. at 842-44). Prison officials, however, cannot be held
“liable if they respond reasonably to the risk.” Grenning, 739 F.3d at 1239 (citing Thomas, 611
F.3d at 1150).
2.

Summary of Claims

Seven of Singh’s fifteen remaining claims assert that he was subjected to unconstitutional
conditions of confinement:
1.

Claim Two in Case No. 2:16-01957-SB, which is based on the grievance
about mold on Singh’s cell wall and near Singh’s toilet;

2.

Claim Three in Case No. 2:16-01957-SB, which is based on the grievance
about the February 2015 shower project;

3.

Claim Four in Case No. 2:16-01957-SB, which is based on the grievance
about mold in Singh’s cell vent and sink;

4.

Claim Five in Case No. 2:16-01957-SB, which is based on the grievance
about the March 2016 shower project;

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Claims Nine and Ten, in Case No. 2:16-01957-SB, which are based on the
grievances about mold in the handicap shower; and

6.

Claim Three in Case No. 2:17-cv-00829-SB, which is based on the
grievance about the noise and lighting in the mini-dorm.
3.

Analysis

Even when viewed in the light most favorable to Singh, the record demonstrates that
Defendants reasonably responded to Singh’s complaints about his conditions of confinement and
were not deliberately indifferent to any risks to Singh’s health or safety.
As to Claim Two in Case No. 2:16-01957-SB, after Singh complained about mold on his
cell wall and near his sink, prison officials moved Singh from his cell, inspected Singh’s cell,
and dispatched crews to clean any mold in Singh’s cell and two other cells and to seal and caulk
any areas to prevent any growth of mold. Defendants’ actions in response to the presence of a
small amount of mold do not rise to the level of deliberate of indifference, especially in light of
Hancock’s opinion that the mold Singh encountered did not “exceed[] what would normally be
encountered during the routine maintenance of a normal residence,” and Dr. DiGiulio’s opinion
that “Singh has received multiple tests that rule out any chronic disease process related to mold
exposure.” (DiGiulio Decl. ¶¶ 1, 5, 74-75; Hancock Decl. Attach. 1, at 4; see also Hancock Decl.
Attach. 1, at 2, “There has not been a conclusive study that shows any adverse toxic health affect
associated with normal exposures to airborne fungal materials related to routing cleaning of
small areas of fungal growth.”).
As to Claim Three in Case No. 2:16-01957-SB, Singh complained about dust and smells
caused by the February 2015 shower project and inquired about adherence to safety standards.
Lancaster explained that he “sealed off the shower area with plastic to insulate any dust [from]
leaving the shower area,” he “followed the OSHA standards [for] removing and containing the
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area,” he “cut the grout in between the tiles” to let the floor dry, and he worked on the project
and “did not see any mold or black mold that was in the shower area or under the tiles.” (Singh
Ex. 2, at 33.) Given this evidence and the evidence described above, no reasonable juror could
conclude that Defendants were deliberately indifferent to the risks posed to Singh by this shower
project.
As to Claim Four in Case No. 2:16-01957-SB, Singh complained about a noxious smell
coming from his cell vents and sink. Nichols responded that Singh needed to submit a work
order, he did not know why there would such a smell since “OSHA did not report finding any
mold,” the smell from the sink could be due to type of plumbing system at TRCI, and TRCI’s
HVAC “staff checked the air handling system and did not find anything out of the ordinary[, nor
did the staff] find any sign of mildew or mold anywhere.” (Singh Decl. ¶ 193; Singh Ex. 2, at
38.) No reasonable juror could conclude that this level of responsiveness amounted to deliberate
indifference.
As to Claim Five in Case No. 2:16-01957-SB, Singh filed a grievance about the March
2016 shower project. As was the case with the February 2015 shower project, prison officials
confirmed that they followed all safety protocols during the March 2016 shower project and that
the unit shower area was “totally sealed with plastic and the predator air scrubber with [highefficiency particulate air] filters [were] in place.” (Singh Ex. 2, at 46.) They also interviewed the
crew supervisor and AIC who performed the work. The supervisor and AIC “confirmed the area
was totally sealed off with plastic sheeting” and explained that they ensured that the “plastic was
sealed behind them” whenever they entered or exited the work area, the plastic “was sealed
around the intake on the predator air filtering machine,” and none of the “work was completed
during meal periods.” (Singh Ex. 2, at 48.) In light of this evidence, no reasonable juror could

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conclude that Defendants were deliberately indifferent to the risks posed to Singh by the March
2016 shower project.
As to Claims Nine and Ten, in Case No. 2:16-01957-SB, Singh complained about the
presence of mold in the handicap shower, in particular mold on or near the handrail. According
to Hancock, the mold Singh encountered did not “exceed[] what would normally be encountered
during the routine maintenance of a normal residence.” (Hancock Decl. Attach. 1, at 4.)
Nevertheless, within a few weeks of receiving Singh’s complaint, a housing unit staff member
placed work orders for the Physical Plant crew to “clean, remove and seal the mold affected
areas around the [tiles], holes and the handrails inside the handicap showers.” (Singh Decl. ¶
259.) Officials also advised staff members that they needed to ensure that the inmate workers
responsible for cleaning the handicap shower were doing their job and to hold them responsible
if they failed to do so. No reasonable juror could find that this response amounted to deliberate
indifference.
As to Claim Three in Case No. 2:17-cv-00829-SB, the record reveals that Singh
complained about the noise and lighting in his mini-dorm, an honor housing unit with twelve
beds. Prison officials responded by offering to move Singh, and by explaining that the Physical
Plant crew did not plan to make any adjustments to the dorm’s entrance or windows because it is
an open bay setting (which means that there will always be noise when staff or AICs enter or
leave the mini-dorm), and that the lighting is necessary for the security staff to carry out their
duties in a safe manner. After Singh continued to complain about the lighting and noise in the
mini-dorm, Pedro moved Singh to celled housing, as opposed to an open bay, on the same unit,
which resulted in Singh losing his job assignment for a few days. Pedro, however, took
affirmative steps to ensure that Singh would be able to keep his job assignment. In light of this

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record, the Court concludes that Defendants responded reasonably to Singh’s complaints about
the noise and lighting in his mini-dorm, and that prison officials had legitimate penological
reasons for not altering the mini-dorm’s open bay environment in response to Singh’s
complaints.
For all of these reasons, Defendants are entitled to summary judgment on Singh’s
conditions of confinement claims. See Grenning, 739 F.3d at 1239 (explaining that prison
officials cannot be held “liable if they respond reasonably to the risk”).
C.

First Amendment Retaliation
1.

Applicable Law

“Prisoners have a First Amendment right to file grievances against prison officials and to
be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012)
(citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2008)). The prohibition against
retaliatory punishment for filing grievances is “clearly established law.” See Brodheim, 584 F.3d
at 1269 (“Retaliation against prisoners for their exercise of this right is itself a constitutional
violation, and prohibited as a matter of ‘clearly established law.’” (citing Rhodes v. Robinson,
408 F.3d 559, 566 (9th Cir.2005), and Pratt v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir.1995))).
“Within the prison context, a viable claim of First Amendment retaliation entails five
basic elements[.]” Rhodes, 408 F.3d at 566. First, the plaintiff must show that “the retaliatedagainst conduct is protected.” Watison, 668 F.3d at 1114 (citing Rhodes, 408 F.3d at 568).
Second, the plaintiff must demonstrate that “the defendant took adverse action against the
plaintiff.” Id. (citing Rhodes, 408 F.3d at 567). Third, the plaintiff must establish “a causal
connection between the adverse action and the protected conduct.” Id. Fourth, the plaintiff must
demonstrate that the “‘official’s acts would chill or silence a person of ordinary firmness from
future First Amendment activities.’” Id. (quoting Rhodes, 408 F.3d at 568). Fifth, the plaintiff
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must show that the prison official’s “‘retaliatory action did not advance legitimate goals of the
correctional institution.’” Id. (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)).
2.

Analysis

Three of Singh’s remaining claims appear to allege that Defendants retaliated against him
for filing grievances: (1) Claim Two in Case No. 2:16-cv-01957-SB, which is based on the
grievance about the mold on Singh’s cell wall and near his sink; (2) Claim Two in Case No.
2:17-cv-00829-SB, which is based on the grievance about the treatment of Singh’s skin rash; and
(3) Claim Three in Case No. 2:17-cv-00829-SB, which is based on the grievance about the noise
and lighting in Singh’s mini-dorm. (See Defs.’ Mot. at 4, identifying an unenumerated claim
related to Singh “being moved from cell 9-39B to 11-4A”; Singh Decl. at 41, asserting that
Defendants retaliated against Singh after he complained about the treatment of his skin rash;
Singh Decl. ¶¶ 355, 363, reflecting that Singh accused Pedro of “threatening” to move him out of
the mini-dorm if he did not rescind his initial complaints about the lighting and noise).
Singh has failed to establish a causal connection between any protected conduct and an
adverse action. Singh has also failed to demonstrate that any of Defendants’ actions would chill
or silence an individual of ordinary firmness from engaging in future First Amendment activities.
See, e.g., Harrison v. Milligan, No. 09-cv-04665, 2010 WL 1957389, at *2-3 (N.D. Cal. May 14,
2010) (explaining that the defendant’s conduct must be “of sufficient severity that . . . [it] would
chill or silence a person or ordinary firmness from future First Amendment activities” (citing
Mendocino Env’t. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999))).
With respect to his mold grievance, although Singh claims that officials retaliated against
him by moving him from his cell after he complained about mold, the record reveals that prison
officials moved Singh from his cell in housing unit nine because they dispatched crews to clean
the mold in Singh’s cell and to seal and caulk any areas to prevent any mold growth. (Singh Ex.
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6, at 4; Singh Decl. ¶¶ 143-49.) As to the treatment of Singh’s skin rash, Singh appears to allege
retaliation simply because he disagreed with the diagnosis and recommended course of treatment
(allergy medications, an inhaler, and hydrocortisone cream). Such a disagreement does not
support a finding of retaliation.
Finally, Singh claims that Pedro threatened to move him if he did not rescind his initial
grievance related to the noise and lighting in the mini-dorm. Pedro denied that he threatened to
move Singh if he refused to withdraw his grievance, and explained that he merely suggested that
Singh withdraw his grievance after Singh asked to remain in the mini-dorm. Even if a factual
dispute exists about Pedro’s alleged threat to move Singh, a move from the open bay mini-dorm,
about which Singh consistently complained, to a cell within the same honor housing unit, would
not chill or silence an individual of ordinary firmness from engaging in future First Amendment
activities. In any event, Singh also has not demonstrated any adverse action resulting from the
move, as Pedro took affirmative steps to ensure that Singh did not lose his job.
In sum, the Court concludes that Singh has failed to present any evidence that would rise
to the level of First Amendment retaliation, and therefore grants Defendants’ motions for
summary judgment.
CONCLUSION
For the reasons stated, the Court GRANTS Defendants’ motions for summary judgment
(ECF Nos. 79, 109, 174), and DENIES Singh’s renewed motions for a court-appointed expert
(ECF Nos. 127, 157, 223).
IT IS SO ORDERED.
DATED this 30th day of November, 2020.

HON. STACIE F. BECKERMAN
United States Magistrate Judge
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