Van Name v. Bigelow et al
Filing
83
MEMORANDUM DECISION AND ORDER-granting 73 Motion for Summary Judgment. Signed by Judge Clark Waddoups on 10/11/11. (jmr)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MICHAEL KEVIN VAN NAME,
MEMORANDUM DECISION
AND ORDER
Plaintiff,
v.
Case No. 2:09-CV-630 CW
ALFRED C. BIGELOW et al.,
District Judge Clark Waddoups
Defendants.
Plaintiff, Michael Kevin Van Name, filed this pro se civil rights suit under 42 U.S.C. §
1983, see 42 U.S.C.A. § 1983 (West 2011), while confined at the Central Utah Correctional
Facility in Gunnison, Utah. Plaintiff was allowed to proceed in forma pauperis under 28 U.S.C.
§ 1915, see 28 U.S.C.A. § 1915 (West 2011), and his Complaint was served upon Defendants by
the United States Marshals Service. Defendants filed an Answer and a Martinez Report (Doc.
61) addressing Plaintiff’s allegations.1 No additional discovery was conducted. Before the Court
is Defendants’ Motion for Summary Judgment.
BACKGROUND
Plaintiff’s Complaint alleges cruel and unusual punishment under the Eighth Amendment
1
In Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), the Tenth Circuit approved the
practice of district courts ordering prison administrators to prepare a report to be included with
the pleadings in cases where a prisoner alleges a constitutional violation by prison officials.
based on denial of humane conditions of confinement.2 Specifically, Plaintiff alleges that while
attending educational classes at the correctional facility, he was denied adequate toilet access to
accommodate his medical condition which caused him to defecate in his pants. Plaintiff further
alleges that after defecating in his pants he was unable to leave class to clean himself up, forcing
him to sit in his own feces until class was finished. Plaintiff states that he filed numerous written
grievances requesting accommodations under the Americans with Disabilities Act (ADA),
including a bathroom pass for use during classes if necessary, but his requests were repeatedly
denied based on Defendants’ determination that Plaintiff did not suffer from any diagnosed
medical condition that would qualify as a disability.3
After seven months, during which Plaintiff allegedly experienced several more accidents,
Plaintiff eventually received a special bathroom pass after writing to the Utah Attorney General’s
Office, which forwarded Plaintiff’s letter to the medical director for the Utah Department of
Corrections. Plaintiff alleges that during the seven months without a bathroom pass he
experienced serious physical pain and emotional trauma. Plaintiff’s Complaint names as
defendants numerous corrections officials in their individual capacities including those who
refused Plaintiff restroom access and others who denied his grievances and ADA requests.
Plaintiff seeks compensatory and punitive damages, attorney fees and costs.
2
Plaintiff’s Amended Complaint also asserts a due process claim under the Fifth and
Fourteenth Amendments, however, Plaintiff does not allege specific facts to support such a claim
and his allegations properly fall under the Eighth Amendment.
3
Despite his repeated references to the ADA Plaintiff’s Amended Complaint does not
assert a separate claim under that statute.
2
Defendants move for summary judgment on all claims, asserting there are no genuine
issues of material fact and that the evidence does not support a claim of cruel and unusual
punishment under the Eighth Amendment. Specifically, Defendants contend that they were not
aware Plaintiff suffered from a serious medical condition requiring immediate, unlimited and
unfettered access to a toilet; nor were they deliberately indifferent to Plaintiff’s needs.
Defendants also assert there is insufficient evidence to support Plaintiff’s allegation that he ever
defecated on himself or was forced to sit in his own feces. Plaintiff has had ample opportunity to
respond to Defendants’ summary judgment motion and has filed an opposition memorandum
with supporting documentation.
FACTS4
1.
From September 18, 2008, to September 18, 2009, Plaintiff was an inmate housed
at the Central Utah Correctional Facility.
2.
On September 22, 2008, Plaintiff was seen by Dane Thurston, a Physician’s
Assistant, for complaints of weight loss and a claimed history of “dumping syndrome” reportedly
caused by removal of sections of his large and small bowel in 1992 following a gunshot injury.
Thurston reviewed Plaintiff’s medical records and found no evidence of any bowel resection.
Thurston decreased Plaintiff’s prescription for Prilosec and started him on Zantac to reduce
stomach acid. (Declaration of Dane Thurston (“Thurson Decl.”)(Doc. 69) ¶ 6.)
3.
On November 6, 2008, Plaintiff was denied access to the toilet while attending
4
The material facts presented here are taken from Plaintiff’s sworn Amended Complaint
and the parties’ summary judgment materials. Except as noted, these facts are not in dispute.
3
education classes, causing him to defecate in his pants. (Compl. ¶¶ 7, 8.)
4.
Inmates at the Central Utah Correctional Facility (CUCF) are allowed to access
the toilets in their cells before they walk to the Education unit in the Henrie Building to attend
classes. (Declaration of Brickell Johnson (“Johnson Decl.”)(Doc. 70) ¶ 4.)
5.
Inmates at CUCF are also allowed to use the restroom before classes start from
approximately 5 minutes before the hour until approximately 10 minutes after the hour.
(Johnson Decl. ¶ 5.)
6.
Inmates at CUCF may be excused from class to use the restroom for emergencies
subject to the discretion of correctional officers. (Johnson Decl. ¶ 12.)
7.
Education classes at CUCF last approximately 45 minutes. (Johnson Decl. ¶ 6.)
8.
Prior to the alleged November 6, 2008 incident, Plaintiff had been incarcerated for
over two months and had not reported any similar accidents. (Johnson Decl. ¶¶ 10, 11, 12.)
9.
On November 13, 2008, Plaintiff submitted a medical request for a bathroom pass
during classes but was told that medical did not provide such passes. (Donaldson Decl. ¶ 5.)
10.
On November 14, 2008, Plaintiff again saw P.A. Thurston, who diagnosed
Plaintiff with irritable bowel syndrome (IBS) and provided medication (Dicyclomine) to alleviate
his condition. Thurston noted that Plaintiff did not wear “Depends” or have frequent episodes of
fecal incontinence. (Thurston Decl. ¶ 9.)
11.
IBS can lead to frequent diarrhea but typically does not result in fecal
incontinence. (Donaldson Decl. ¶ 7.)
12.
In response to Plaintiff’s complaint that he was having trouble controlling his
4
bowel movements, he was offered “Depends.” Plaintiff refused this accommodation. (Thurston
Decl. ¶ 11.)
13.
On November 17, 2008, Plaintiff submitted a Level One grievance asserting that
his chronic diarrhea was a disability under the ADA and requesting a bathroom pass for use
during classes. Plaintiff also complained that Defendant Thurston had not diagnosed or treated
him properly. (Donaldson Decl. ¶ 6.)
14.
On January 29, 2009, Captain Cutler responded to Plaintiff’s Level One grievance
stating that based on his research and review of Plaintiff’s medical records there was no evidence
that Plaintiff suffered from a condition amounting to a disability impinging on his major life
functions as required under the ADA. (Donaldson Decl. ¶ 11.)
15.
On February 9, 2009, Plaintiff filed an Inmate ADA Request & Decision Form
asserting that he had “dumping syndrome.” The following day Deputy Warden John Irons
responded that he had forwarded Plaintiff’s request to medical staff for a response. (Donaldson
Decl. ¶ 13.)
16.
On February 26, 2009, Sara Donaldson, the Medical Administrator at CUCF,
reported to Irons that Plaintiff suffered from IBS, not “dumping syndrome,” and that he was on
medication do alleviate his discomfort. Donaldson also reported her recommendation that
Plaintiff use the bathroom before leaving his cell and during breaks in education classes as
needed. (Donaldson Decl. ¶ 14.)
17.
On March 5, 2009, Angie Stevens, ADA Coordinator responded to Plaintiff’s
request for ADA accommodations stating that no accommodation would be provided at that time
5
based on statements from medical personnel. (Donaldson Decl. ¶ 15.)
18.
On March 19, 2009, Plaintiff received a letter from Sharel S. Reber Assistant
Attorney General with the State of Utah, in response to a letter from Plaintiff dated February 23,
2009. Reber stated, “[d]ue to the serious nature of your allegations, I have forwarded your letter
to Dr. Garden, the medical director for the prison, for immediate attention.” (Doc. 79-3 at 10.)
19.
On March 23, 2009, Plaintiff was issued a bathroom pass allowing him unlimited
access to the restroom while in programing and education. (Donaldson Decl. ¶ 16.)
20.
On April 27, 2009, Angie Stevens followed up on Plaintiff’s request for ADA
accommodations stating that based on the issuance of a bathroom pass Plaintiff’s needs had been
met and no further accommodation was necessary under the ADA. (Donaldson Decl. ¶ 17.)
ANALYSIS
I.
Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “One of the principal purposes of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses,” Celotex v. Catrett, 477 U.S. 317, 324, 106 S. Ct.
2548, 2553 (1986), thus, “[a] party may move for summary judgment, identifying each claim or
defense--or the part of each claim or defense--on which summary judgment is sought.” Fed. R.
Civ. P. 56(a).
The party moving for summary judgment bears the initial burden of showing “that there is
an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325. This
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burden may be met merely by identifying portions of the record which show an absence of
evidence to support an essential element of the opposing party’s case. Johnson v. City of
Bountiful, 996 F. Supp 1100, 1102 (D. Utah 1998). Once the moving party satisfies its initial
burden “the burden then shifts to the nonmoving party to make a showing sufficient to establish
that there is a genuine issue of material fact regarding the existence of [the disputed] element.”
Id. A fact in dispute is “material” only if it might affect the outcome of the suit under governing
law. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). The dispute is “genuine” if the
evidence is such that it might lead a reasonable jury to return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A nonmovant “that would bear the burden of persuasion at trial” must “go beyond the
pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of a trial
from which a rational trier of fact could find for the nonmovant.” Adler v. Wal-Mart Stores, 144
F.3d 664, 671 (10th Cir. 1998). Mere allegations and references to the pleadings will not suffice,
instead, the specific facts put forth by the nonmovant “must be identified by reference to an
affidavit, a deposition transcript or a specific exhibit incorporated therein.” Thomas v. Wichita
Coca-Cola Bottling, 968 F.2d 1022, 1024 (10th Cir. 1992). Moreover, “the nonmovant's
affidavits must be based upon personal knowledge and set forth facts that would be admissible in
evidence; conclusory and self-serving affidavits are not sufficient.” Hall v. Bellmon, 935 F.2d
1106, 1111 (10th Cir .1991). The court must “examine the factual record and reasonable
inferences therefrom in the light most favorable to the party opposing the motion.” Lopez v.
LeMaster, 172 F.3d 756, 759 (10th Cir. 1999). Conclusory allegations are given no weight, and
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“[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position
will be insufficient” to overcome a summary judgment motion. Anderson, 477 U.S. at 249, 252.
II.
Legal Standard for Prison Conditions Claims
The Eighth Amendment’s prohibition on cruel and unusual punishment requires that
prison officials “provide humane conditions of confinement by ensuring that inmates receive the
basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable
measures to guarantee inmates’ safety.” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998).
An Eighth Amendment conditions-of-confinement claim consists of both an objective and
subjective component. The objective component is met only if the condition complained of is
“sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994). A
condition is sufficiently serious if it poses “a substantial risk of serious harm” to the inmate. Id.
Because the sufficiency of a conditions-of-confinement claim depends upon “the particular facts
of each situation; the ‘circumstances, nature, and duration’ of the challenged conditions must be
carefully considered.” Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (quoting Johnson
v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)). “While no single factor controls . . . the length of
exposure to the conditions is often of prime importance.” Id. As the severity of the conditions to
which an inmate is exposed increases, the length of exposure required to make out a
constitutional violation decreases. Accordingly, “minor deprivations suffered for short periods
would not rise to an Eighth Amendment violation, while substantial deprivations . . . may meet
the standard despite a shorter duration.” Id.
The subjective component of a conditions-of-confinement claim requires the plaintiff to
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show that the defendant exhibited “deliberate indifference” to the inmate’s health or safety.
Farmer, 511 U.S. at 832. Deliberate indifference “requires both knowledge and disregard of
possible risks, a mens rea on a par with criminal recklessness.” Despain v. Uphoff, 264 F.3d
965, 975 (10th Cir. 2001). The defendant 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.” Farmer, 511 U.S. at 837.
III.
Defendants’ Motion for Summary Judgment
Defendants assert they are entitled to summary judgment because the evidence does not
support the conclusion that Plaintiff was subjected to any deprivation that was objectively
sufficient serious to warrant constitutional protection. Defendants further assert there is no
evidence they were deliberately indifferent to Plaintiff’s needs. The Court considers each of
these arguments in turn.
A.
Objective Test
Courts have repeatedly held that intentionally exposing inmates to human waste can,
under some circumstances, constitute cruel and unusual punishment. See e.g, DeSpain, 264 F.3d
at 974 (“Exposure to human waste, like few other conditions of confinement, evokes both the
health concerns emphasized in Farmer and the more general standards of dignity embodied in the
Eighth Amendment.”); Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir. 1990) (“[C]ourts have been
especially cautious about condoning conditions that include an inmate's proximity to human
waste . . . .”); Michaud v. Sheriff of Essex County, 390 Mass. 523 (1983) (compiling cases
showing “an intolerance for confinement which requires persons to live in close proximity to
9
their own human waste and that of others.”). However, the circumstances presented here are
much different from other cases where courts have found exposure to human waste sufficiently
serious to invoke constitutional protections. See, e.g., DeSpain, 264 F.3d at 975 (finding that
plaintiff met the objective prong of Farmer test where plaintiff was exposed for thirty-six hours
to stench of sitting urine in his toilet and urine and feces in water near his cell and where officers
rolled food cart through the urine-mixed water); Johnson v. Pelker, 891 F.2d 126, 139 (7th Cir.
1989) (holding that three days in cell with feces smeared on walls was not within “civilized
standards, humanity, and decency”); McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001)
(finding “sufficiently serious” conditions where inmate was detained in feces-covered cell for
three days).
The facts here show that Plaintiff was not denied access to a toilet, nor was he exposed to
human waste, for any significant period of time. According to the undisputed facts, Plaintiff had
access to a toilet in his cell which he could use immediately before and after classes. In addition,
Plaintiff was allowed to use the restroom each and every hour between classes for approximately
15 minutes with limited exceptions. Thus, at most, Plaintiff was only deprived of toilet access
for less than forty-five minutes at a stretch. As Defendants have noted, even outside prison it is
quite common to be without access to a toilet for periods longer than forty-five minutes. Thus,
Plaintiff cannot show that such a short-term deprivation amounts to a denial of “the minimal
civilized measure of life’s necessities” under normal conditions. Wilson, 501 U.S. at 298. In
fact, courts have specifically held that restricted access to the toilet for such limited periods of
time does not constitute cruel and unusual punishment. See e.g., DeSpain, 264 F.3d at 974
10
(“[T]here is ‘no doubt that toilets can be unavailable for some period of time without violating
the Eighth Amendment’”)(quoting Johnson, 217 F.3d at 733); Peel v. Turner, 2007 WL
4571114, 4 (N.D. Okla. 2007)(Plaintiff's limited access to the toilet does not constitute cruel and
unusual punishment.)
Moreover, as unpleasant as Plaintiff’s ordeal must have been, there is no evidence that
Plaintiff was ever subjected to a substantial risk of serious harm. Although Plaintiff states that
the incident was humiliating and traumatic, there is no evidence that Plaintiff suffered any
serious physical or emotional injury. In fact, after returning to his cell Plaintiff had access to a
toilet and sink and was able to immediately wash himself and his clothing. Plaintiff was also
able to obtain timely medical attention. Just one day after filing his medical care request Plaintiff
met with P.A. Thurston, was diagnosed with IBS, and was prescribed medicine for his condition.
It is doubtful whether someone outside of prison would have received such timely medical care
for such a condition.
Thus, the Court concludes that Plaintiff has not presented sufficient evidence to show that
he was subjected to a deprivation that was objectively sufficient serious to violate the Eighth
Amendment prohibition on cruel and unusual punishment.
B.
Subjective Test
Turning to the subjective prong of the Farmer analysis, there is no evidence that
Defendants knew Plaintiff faced a substantial risk of serious harm, or were deliberately
indifferent to Plaintiff’s health or safety. In fact, Defendants reasonably believed that Plaintiff
did not have a serious medical condition that prevented him from holding his bowels during class
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time, and that Plaintiff had adequate access to the restroom despite his condition.
The record shows that Defendants had no knowledge of any problem prior to the incident
on November 6, 2008, and that immediately thereafter Plaintiff was evaluated and diagnosed
with IBS. Plaintiff has not provided any evidence to refute Defendants assertions that IBS does
not typically result in fecal incontinence or that Plaintiff was receiving adequate treatment for
IBS. Moreover, Plaintiff has not offered any evidence besides his own vague statements to
support his contention that he continued to have accidents while in class. For instance, Plaintiff
does not document the dates of any other incidents, nor does he provide any details about them.
According to the Declaration of Officer Brickell Johnson, the correctional officer who monitored
the Education Classes during the relevant time period, Plaintiff never told her that he had soiled
himself, nor did he tell her that he needed to use the bathroom on an emergency basis. (Johnson
Decl. ¶ 10.) Officer Johnson also states that she never received any complaints from other
inmates or staff that Plaintiff had soiled himself, and that if she had known there was a problem
she would have allowed Plaintiff to use the bathroom during class. (Id.) Plaintiff has not offered
any evidence besides his own statements to refute Johnson’s testimony. If Johnson’s statements
were false Plaintiff could have easily refuted them with affidavits of other inmates or staff, but he
has not. Thus, given the absence of any corroborating evidence Plaintiff’s statements are not
sufficient to create a genuine issue of material fact for trial. See Slowiak v. Land O'Lakes, Inc.,
987 F.2d 1293, 1295 (7th Cir. 1993) (“[s]elf-serving affidavits without factual support in the
record will not defeat a motion for summary judgment.”).
The failure of grievance personnel and administrators to immediately grasp the severity of
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Plaintiff’s condition also does not show deliberate indifference. Defendants have shown that
they reasonably relied on the expert advice of medical personnel who determined that Plaintiff
did not have a serious medical condition requiring special accommodation. Even assuming this
advice was flawed, Defendants were not in a position to second guess it. Moreover, to the extent
that medical personnel failed to properly diagnose or treat Plaintiff’s condition they would only
be guilty of negligence, not deliberate indifference.
Finally, the record shows that before Plaintiff filed this suit he had already received a
bathroom pass affording him unlimited restroom access during classes. Although it is somewhat
disturbing that this accommodation was only provided after Plaintiff wrote a letter to the Utah
Attorney General’s office, the Court cannot say that the failure to provided it sooner was the
result of deliberate indifference. Rather, Defendants may have simply concluded that it was
easier to provide Plaintiff with an unnecessary accommodation than to continue to debate the
point. In any case, the record shows that by the time Plaintiff filed this suit his needs had already
been met.
In sum, there is insufficient evidence here to support the finding that Defendants were
deliberately indifferent to Plaintiff’s health or safety. Thus, Defendants are entitled to summary
judgment.
ORDER
Based on the forgoing analysis, IT IS HEREBY ORDERED that Defendants’ Motion
for Summary Judgment (Dkt. no. 73) is GRANTED and this case is CLOSED.
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DATED this 11th day of October, 2011.
BY THE COURT:
____________________________
CLARK WADDOUPS
United States District Judge
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