Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Randy Trimble, Plaintiff, vs. Phoenix Police Department, et al., Defendants.

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No. CV 04-0745-PHX-PGR (DKD) ORDER

Plaintiff Randy Trimble filed a pro se civil rights action against Defendants Joseph Arpaio and Officer Mantoya (Doc. # 107). Now pending before this Court is Defendants' Motion for Summary Judgment (Doc. #145). This Court will grant Defendants' summary judgment motion and dismiss this action. Also pending are Plaintiff's motions for injunctive relief and to stay ruling on the Motion for Summary Judgment, and Defendants' Motion to Strike (Docs. ##171, 185, 186, 187). These motions will be denied. I. Procedural History Plaintiff is pursing an action against Defendants Joseph Arpaio and Officer Mantoya alleging various constitutional violations (Doc. #107).1 In particular, Plaintiff alleged that his constitutional rights were violated by (1) deliberate indifference to his medical needs

Several Counts and Defendants were dismissed pursuant to 28 U.S.C. § 1915(e) (Doc. #111). This Order addresses only the remaining Counts and Defendants. Document 188 Filed 08/09/2006 Page 1 of 10

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because an ingrown toenail and spinal injury were not properly treated, (2) an inadequate and tainted diet, (3) placement in a cell with a violent inmate who threatened him, (4) placement on a nutriloaf diet for disciplinary purposes, and (5) placement in close custody (Id.). Defendants filed a Motion for Summary Judgment, arguing that the nutriloaf diet was not such a hardship that it triggered due process protection. Further, Plaintiff failed to exhaust his administrative remedies for his diet claim. Defendants also argued that Defendant Arpaio is not responsible for healthcare in the jails, and Plaintiff was seen in a timely and appropriate manner. Finally, Defendants maintain that they lacked prior knowledge that Plaintiff's cellmate posed a danger, and Plaintiff requested to be placed in closed custody (Doc. #145). Plaintiff responded that the diet violated his constitutional rights, and he attempted to exhaust his administrative remedies. He also claimed that Defendant Arpaio knew that he was suffering from various injuries and failed to ensure he was provided proper medical treatment, in part due to the lack of funding. Plaintiff argued that he was improperly placed in a "general population disciplinary pod" despite the threat to his safety, and he was improperly placed in closed custody as punishment (Docs. ##149, 155). Plaintiff also requests this Court to stay a ruling on the Motion for Summary Judgment because he believes that there are documents which would support his case (Doc. #186). Plaintiff, however, does not identify the documents and their importance to the case (Id.). Plaintiff's case has been pending for more than two years, and he has had plenty of opportunity to conduct discovery. Accordingly, his request "for a continuance to any ruling" on the instant motion will be denied. II. Failure to Exhaust A challenge to a § 1983 action due to the failure to exhaust administrative remedies "should be treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). This is primarily because summary judgment is granted on the merits, while a "dismissal of an action on the ground of failure to exhaust administrative remedies is not." Id. at 1119 (citations omitted). Thus, although Defendants seek summary
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judgment as to Plaintiff's claim regarding his diet, their motion is more properly considered as a Rule 12(b) motion to dismiss. Accordingly, as to Count II, the Motion for Summary Judgment will be construed as a Motion to Dismiss for failure to exhaust. Pursuant to 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act, a prisoner may not bring a lawsuit with respect to prison conditions under 42 U.S.C. § 1983 unless all available administrative remedies are exhausted. See Roles v. Maddox, 439 F.3d 1016, 1017 (9th Cir. 2006). Exhaustion is mandated "regardless of the relief offered through

administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001). It is required in all inmate suits regarding prison life. Porter v. Nussle, 534 U.S. 516, 523 (2002). Defendants bear the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The Court has broad discretion as to the method to be used in resolving the factual dispute. Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988). An inmate should seek to resolve a conflict through the Maricopa County Jail System's Inmate Grievance Procedures. Specifically, an inmate who wishes to file a grievance will be provided a Grievance Form upon request, and must submit the form to a detention officer. The unresolved grievance is forwarded to the shift Supervisor, and then to the Hearing Officer. If the Hearing Officer is unable to resolve the grievance, the inmate may appeal his decision to the jail commander, whose decision may be appealed to an External Referee. The External Referee's decision is final (Doc. #145, ex. 2 - ex. A). Plaintiff filed four inmate grievances regarding his diet (Doc. #145, ex. 2; Doc. #111). Plaintiff alleged that his grievances were unanswered. Plaintiff's copies demonstrate that his grievances regarding diet were forwarded through the informal grievance process, but Plaintiff did not even attempt to externally appeal his grievances when he could have done so (Docs. #117, exs.; #145, ex. 2). Accordingly, Plaintiff failed to exhaust his administrative remedies, and his claim regarding his diet will be dismissed without prejudice. III. Motion for Summary Judgment

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The Court now turns to Plaintiff's medical claims, for which exhaustion is not at issue. "Under Rule 56(c), summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. A. Deliberate Indifference to Medical Needs Plaintiff alleged that Defendants were deliberately indifferent to his medical needs because he suffered from an ingrown toenail and spinal injuries which, in part as a result of Defendants' failure to properly fund the jail, were not properly treated. "[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain.'" Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). "To demonstrate that a prison official was deliberately indifferent to an inmate's serious . . . health needs, the prisoner must show that `the official [knew] of and disregard[ed] an excessive risk to inmate health.'" Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (citing to Farmer v. Brennan, 511 U.S. 825, 838 (1994)). "Further, the deliberate indifference must be both `purposeful,' and `substantial' in nature.'" Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 525 (9th Cir. 1999) (internal citations omitted). "Prison officials are deliberately indifferent to a prisoner' serious medical needs when they `deny, delay, or intentionally interfere with
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medical treatment.'" Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (citations omitted). Medical Services Director Todd Wilcox, M.D., attested that Plaintiff "was provided appropriate medical care in a timely fashion that met the standard of care for medical treatment and practice" (Doc. #145, ex. 8). According to the medical records, beginning August 17, 2004, Plaintiff complained about an ingrown toenail (Id., ex. 9, medical records). Plaintiff was seen by the infirmary on August 17, September 17, 18, 22, 28, and 29, November 2, 5, 11, 13, and 19, and December 2, 4, 5, 9, and 10 (Id.). On 12 of those occasions, he was subjected to foot soaks or specifically examined for an ingrown toenail (Id.). It was also noted that Plaintiff was to be placed in a lower bunk (Id.). Plaintiff was also examined due to back pain on several occasions (Doc. #145, ex. 9, medical records). On February 6, 2004, Plaintiff met with Physician Assistant Noreen Van Schil who encouraged back exercises (Id., ex. 10). Plaintiff was given treatment options, and declined referral to an orthopedist (Id.). Finally, Plaintiff was frequently monitored due to psychiatric problems and because he was taking medication (Id., ex. 9, medical records). Plaintiff received significant treatment for his ingrown toenail. Plaintiff was seen on multiple occasions, and specifically treated on at least 12 occasions for his toenail. The fact that in Plaintiff's criminal case the Superior Court of Arizona Maricopa County ordered him to be treated for his toenail does not lead to a conclusion that Plaintiff's serious medical needs were being disregarded, especially given the fact that the order was based on his statements during criminal proceedings, and Defendants did not have an opportunity to contest any allegation regarding Plaintiff's medical needs (Doc. # 157, exhibits). Additionally, Plaintiff did not demonstrate that his "spinal injury" was serious, especially given the fact the he did not appear to be suffering from an injury or pain and specifically declined medical treatment. Finally, Defendants are not physicians and are not responsible for the actual medical treatment, and Plaintiff has not alleged or demonstrated that they, directly or due to funding issues, ignored his medical conditions, interfered with medical treatment or delayed Plaintiff's receipt of medical attention. See Austin, 367 F.3d at 1172;
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Lopez, 203 F.3d at 1132. Accordingly, Defendants are entitled to summary judgment as to Plaintiff's claim that they were deliberately indifferent to his medical needs. B. Failure to Protect Plaintiff alleged that he was improperly celled with an inmate who was a threat to his safety and Defendants failed to protect him. Prison and jail officials "have a duty . . . to protect prisoners from violence at the hands of other prisoners." Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (internal citations omitted). Officials may violate a pretrial detainees' Fourteenth Amendment rights by failing to protect the detainee if the official was deliberately indifferent to the detainees' safety. Redman v. County of San Diego, 942 F.2d 1435, 1441 (9th Cir. 1990). "The `deliberate indifference' standard requires a finding of some degree of `individual culpability,' but does not require an express intent to punish. The standard does not require the guard of official to believe to a moral certainty that one inmate intends to attack another, . . . [but] he must have more than a mere suspicion that an attack will occur." Id. at 1442. Plaintiff alleged that on April 22, 2004, he was placed in protective custody with an inmate who intended to hurt him (Doc. #107). The inmate hit Plaintiff, and Plaintiff yelled for help but was not heard by the guards (Id.). When the guards walked by, unknown and unnamed detention officers noticed that Plaintiff was "scratched up;" however, Plaintiff did not inform the guards of the danger due to the inmate's threats to hurt Plaintiff's family (Id.). Plaintiff alleged that he sent a tank order begging to be removed, but his "plan was denied" (Id.). Specifically, on August 11, 2004, Plaintiff requested to be placed in Administrative Segregation because of the other inmate (Doc. #157). Plaintiff was reclassified as Closed Custody on August 24, 2004 due to the problems (Id.). Defendants argue that Plaintiff failed to establish the existence of an essential element of his case. "[T]he plain language of rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Plaintiff
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alleged that Defendants failed to protect him. However, he has not alleged or demonstrated that either Defendant had any knowledge that his safety was at risk. In fact, Plaintiff alleged that he did not tell the guards of the danger due to threats from the inmate. When Plaintiff requested Administrative Segregation due to the inmate's threats, he was reclassified. Accordingly, Defendants were not deliberately indifferent to a threat to Plaintiff's safety, and are thus entitled to summary judgment. C. Nutriloaf Plaintiff alleged that Defendants placed him on a nutriloaf diet as punishment. "[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." Bell v. Wolfish, 441 U.S. 520, 536 (1979). "There are, however, limits on the extent to which pretrial detainees may claim that they are being punished in violation of the fourteenth amendment. The government has `legitimate interests that stem from its need to manage the facility in which the individual is detained.'" Redman, 942 F.2d at 1440. Plaintiff was placed on a nutriloaf diet on several occasions after being disciplined (Doc. #145, ex. 4). Deputy Chief Commander Rollie Seebert attested that the nutriloaf program was implemented in response to inmates throwing bodily waste and fluids (Id., ex. 7). Thus, inmates are placed on the loaf program when they threaten a staff member, are found in possession of contraband that could be used as a weapon, or assault other inmates with bodily fluids (Id.). The nutriloaf program ensures the safety of detention officers because the inmates may not use utensils, trays, or cups as weapons, and the program lessens exposure of the officers to potentially dangerous inmates (Id.). Finally, the nutriloaf program is considered administrative rather than disciplinary because it is a response to ensure officer safety (Id.). According to the evidence, the nutriloaf program is not a punishment. An inmate is not placed on the nutriloaf program unless he poses a threat to safety. The program is not instituted as a punishment but as a safety measure and an attempt to manage the facility. Additionally, the nutriloaf contains all the nutrients necessary for an inmate; the only
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complaint is that it is not appetizing. The jail's failure to provide appetizing meals is not a constitutional violation, and Plaintiff cannot show that he was injured by being placed on the meal. See LeMaire v. Maas, 12 F.3d 1444, 1456 (9th Cir. 1993) (providing that "[t]he Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing"). Accordingly, Defendants are entitled to summary judgment for Plaintiff's claim that his constitutional rights were violated when he was placed on the nutriloaf program. D. Closed Custody Plaintiff alleged that Defendants improperly placed him in Closed Custody, which consisted of a cell with a padlocked door that the guards could not easily open (Doc. #107). Plaintiff was in the custody of Maricopa County from December 6, 2003, until August 17, 2004 (Doc. #157, attached affidavit). Plaintiff was immediately placed in Administrative Segregation Housing per his request and for his safety due to the nature of the charges against him (Doc. #145, ex. 3). Plaintiff was reclassified as Closed Custody and remained there for the majority of his stay (Id., ex. 1). Specifically, Plaintiff was reclassified to Closed Custody on April 28 because he threatened a detention officer (Id., ex. 4). Plaintiff attests that the Closed Custody reclassification resulted in placement on the nutriloaf program and exposed to 24-hour lighting (Doc. #157, attached affidavit). Plaintiff spent the majority of his time in jail classified as Closed Custody, in large part for his own safety and as the result of his requests. Plaintiff cannot demonstrate that a single reclassification into a level of custody that he endured throughout the majority of his stay in jail, generally per his own requests, resulted in a violation of his constitutional rights. See Bell 441 U.S. at 520; Redman, 942 F.2d at 1440. E. Remaining Motions Plaintiff filed a Motion for Preliminary Injunction in which he seeks an order requiring Defendant Arpaio "to stop feeding detainees slop, gruel, and loaf" (Doc. #168). Plaintiff also filed a "Writ of Course Gratis Dictum," requesting that this Court order Defendant Arpaio to "cease and desist the practice of playing constant music and sounds for
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the sole purpose of causing a deleterious influence" (Doc. #187). Defendants seek to strike the motion because Plaintiff is no longer an inmate in the Maricopa County Jail system and lacks standing to request injunctive relief (Docs. ## 171, 177). Plaintiff replies that his case is not final, and he could be placed back into Maricopa County jail (Doc. #173). Plaintiff is not housed in a Maricopa County jail, has not demonstrated that there is a substantial likelihood of his return to jail, and is seeking relief on behalf of other inmates. Thus, Plaintiff's requested is moot as to himself and he lacks standing for other inmates. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (providing that in order to have Article III standing, a "plaintiff must show that he `has sustained or is immediately in danger of sustaining some direct injury'"); Rhodes v. Robinson, 408 F.3d 559, 566 n.8 (9th Cir. 2005) (providing that prayers for injunctive relief are mooted by the release of a prisoner or the transfer of a prisoner to another facility). Accordingly, Plaintiff's motions for injunctive relief will be denied, and Defendants' Motion to Strike will be denied as moot. Finally, Plaintiff requests a factual finding that statements made by him on August 17, 2002 to medical personnel were made under duress because he was suffering extreme pain and discomfort due to an ingrown toenail (Doc. #185). Plaintiff submits no evidence in support of his motion, so his medical records have been considered. But that record is merely a single entry, and even in the absence of that entry, Defendants are still entitled to summary judgment. Accordingly, Plaintiff's request will be denied. IT IS ORDERED: (1) Defendants' Motion for Summary Judgment (Doc. #145) as to Count II, is construed as a Motion to Dismiss. Defendants' Motion to Dismiss is granted. Plaintiff's claim that his diet was inadequate and tainted is dismissed without prejudice. (2) Defendants' Motion for Summary Judgment (Doc. #145) as to the remaining claims is granted. Plaintiff's action is dismissed with prejudice. (3) The reference to the Magistrate Judge is withdrawn as to Plaintiff's motions for Factual Finding (Doc. #185) and Writ of Course Griatis Dictum (Doc. #187).

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(4) Plaintiff's request to stay a ruling on the instant Motion for Summary Judgment (Doc. #186) is denied. (5) Plaintiff's motions for Preliminary Injunction (Doc. #168), Factual Finding (Doc. #185) and Writ of Course Griatis Dictum (Doc. #187) are denied. (6) Defendants' Motion to Strike (Doc. #171) is denied as moot. (7) Plaintiff's "Request for Factual Finding" (Doc. #185) is denied. All other pending motions are denied as moot. (8) The Clerk of Court must enter judgment in favor of the Defendants and dismiss Plaintiff's action. DATED this 9th day of August, 2006.

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