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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendants. 16 17 Currently before the Court is Defendants' motion for summary judgment. (Dkt. #57). 18 Having reviewed the motion and papers, the Court enters the following order. 19 I. 20 This case arises from Plaintiff's pretrial detainment while he was awaiting arraignment 21 in Superior Court of Maricopa County on November 14, 2000. PSOF ¶1; DSOF¶1. On 22 November 14, 2000, Plaintiff was an inmate in the Maricopa County Sheriff's Office, 23 awaiting arraignment. DSOF ¶1; PSOF ¶1. During the arraignment, Plaintiff was removed 24 from the courtroom for alleged disruptive behavior. Id. Plaintiff contends when he was 25 removed from the courtroom he was placed in an unsanitary "dry cell" without a toilet, sink, 26 or water for an extended period of time. PRESP p.4 ¶1. Plaintiff avers the dry cell was 27 flooded with urine, Defendants refused to permit Plaintiff to use the bathroom, forcing him 28
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Alvin LaRoue Pinkoson,

vs. Sheriff County Jones; Officer Multz.

) ) ) Plaintiff, ) ) ) ) Joseph M. Arpaio; Maricopa) Board of Supervisors; Officer) Officer Bunch; Officer Pahl;) Perez; Officer Sink; and Officer) )

No. CIV-00-2436-PHX-MHM ORDER

Factual Background

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to urinate and defecate on the floor, and Defendants refused to loosen his handcuffs. Id. Defendants assert that it is unlikely Plaintiff spent more than one hour in the holding cell adjacent to the courtroom. DSOF ¶16. Defendants also claim that their practice is to allow inmates to use the bathroom upon request. DSOF ¶ 17. Furthermore, Defendants assert that it is their practice to loosen an inmates handcuffs, if an inmate complains the handcuffs are too tight. Id. Lastly, Defendants maintain the holding cells are cleaned each night and it is unlikely that the cell was in the condition that Plaintiff alleges in his Complaint. DSOF ¶18. On December 21, 2000, Plaintiff filed a Complaint, alleging in pertinent part, Defendants violated his Fourteenth Amendment rights to be free from punishment without due process. Dkt. #1. Defendants were served between March 8 to March 12, 2004. DSOF ¶ 3. Defendants contend due to delay in service, all records regarding Plaintiff's November 14, 2000 incarceration were purged pursuant to the State of Arizona Retention and Disposition Schedule, providing inmate records are destroyed after three years. PSOF ¶5. Plaintiff disputes the records were purged, citing numerous grievance records received from Defendants in their response to Plaintiff's first request for production of documents dated from October 28, 2000 to March 12, 2001. PRESP p.8 ¶3. II. Standard of Review A motion for summary judgment may be granted only if the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. PRO. 56(c) (2004). To defeat the motion, the non-moving party must show that there are genuine factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment is appropriate 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court views the evidence in the light most favorable to the nonmoving party, Plaintiff here, and draws any

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reasonable inferences in the nonmoving party's favor. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). III. Discussion A. Dismissal Pursuant Rule 41 (b)

Defendants seek dismissal of Plaintiff's Complaint, asserting Plaintiff failed to prosecute this case and the delay of over three years in serving Defendants has prejudiced them. Rule 41(b) of the Federal Rules of Civil Procedure provides that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action." FED. R. CIV. PRO. 41(b) (2004). While there was significant delay in serving the Complaint and Amended Complaint, upon reviewing the record in this matter, the Court concludes the delay is attributable to administrative oversight and the Court's calendar. On December 21, 2000, Plaintiff filed his Complaint. Dkt. #1. It appears Plaintiff's Complaint initially fell through the cracks and was not timely prescreened pursuant to the Prison Litigation Reform Act. 28 U.S.C § 1915A(b)(1)(2). On February 1, 2001, the case was reassigned to this Court. Dkt. #2. On July 9, 2001, although the Court had yet to prescreen Plaintiff's Complaint, Magistrate Judge Verkamp issued a show cause order for Plaintiff's failure to timely serve the Complaint. On August 2, 2001, the Court issued a screening order, dismissing Plaintiff's Complaint without prejudice for failure to exhaust administrative remedies, with leave to amend on or before September 2, 2001, which was returned as undeliverable. Dkt. ##6, 12. Pursuant to the Court's order, the Clerk of Court entered dismissal of Plaintiff's Complaint without prejudice on October 10, 2001. Dkt. #14. On October 12, 2001, Plaintiff submitted a change of address. Dkt. #15. On February 14, 2002, Plaintiff submitted a motion captioned "appeal of magistrates decision to dismiss," which the Court construed as a motion for reconsideration. Dkt. #17. In his motion, Plaintiff indicated he was housed at Madison Jail when the Court's screening order was returned; on August 17, 2001 he was moved to Towers Jail; Plaintiff requested but did not receive a "change of address form;" on September 7, 2001 Plaintiff was again -3Document 68 Filed 07/06/2005 Page 3 of 8

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transferred to Alhambra Prison in Buckeye; and for several days he did not have access to the law library and was attacked by two inmates, delaying his submitting a change of address form. Id. On September 25, 2002, the Court granted Plaintiff's motion for reconsideration. Dkt #22. Plaintiff timely filed an Amended Complaint on October 18, 2002. Dkt. #23. On February 18, 2004, the Court issued a screening order requiring an answer to Count One of the Amended Complaint. Dkt. #27. Defendants were served between March 8 to March 12, 2004. DSOF ¶ 3. Thus, the record reveals the delay in this litigation was caused by the Court's calendar and varying administrative technicalities. During the periods where the Court was reviewing Plaintiff's Complaint(s), Plaintiff regularly attempted to advance this litigation, filing a status report in response to the reassignment to this Court, moving for an extension of time to serve Defendants, requesting a service packet, and inquiring into the reasons for delay Dkt. ##3,5, 20. Moreover, Defendants have not presented any evidence contradicting Plaintiff's avowals he was housed in Madison Jail when the Court's first screening order was returned as undeliverable and Plaintiff's assertion he was unable to timely file a change of address. Therefore, based on the foregoing, the Court concludes Defendant's contention Plaintiff failed to prosecute this case is not supported by the record and 41(b) dismissal is not appropriate. B. Maricopa County Board of Supervisors

Local government bodies, such as Arizona counties, are persons under section 1983 and may be sued for constitutional injuries. Liability may be imposed on the Board if a plaintiff established that his injuries were inflicted pursuant to an official county policy or custom. Thompsonv v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989) (internal citations and quotations omitted). Official county policy may only be set by an official with "final policy making authority." Id. To identify those officials with "final policymaking authority," the Court looks to state law. Id. In Arizona, the responsibility of inmate detention is placed by law upon the sheriff, not on the County's Board of Supervisors. ARIZ. REV. STAT §§ 11-441(A)(5), 31-101 -4Document 68 Filed 07/06/2005 Page 4 of 8

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(2004). Therefore, the Board of Supervisors is not liable to Plaintiff under section 1983 because it lacks authority to establish an official policy with respect to inmate detention. Further, the Board cannot be held liable for the actions of the sheriff or his deputies on a theory of respondeat superior liability. See Thompson, 885 F.2d at 1443. Accordingly, the Board will be granted summary judgment. C. Defendant Arpaio

To state a claim against an official, the civil rights complainant must allege that the official personally participated in the constitutional deprivation or that an official was aware of widespread abuses and, with deliberate indifference to the inmate's constitutional rights, failed to take action to prevent further misconduct. King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). Furthermore, as stated above, there is no liability under section 1983 based on the theory of respondeat superior. Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 694 (1978). While Plaintiff asserts that he is "confident he will present some significant probative evidence to support his Complaint and show by a preponderance of the evidence on which a jury could reasonably find for the Plaintiff," Plaintiff fails to allege how Defendant Arpaio participated in any unconstitutional conduct. PRESP p.5. Moreover, Plaintiff has presented no evidence that Sheriff Arpaio knew of the alleged constitutional deprivation, was deliberately indifferent, or failed to prevent further misconduct that would create a genuine issue of material fact. Accordingly, Defendant Arpaio will be granted summary judgment. D. Officer Jones

Defendant has presented an affidavit, averring Officer Jones could not have been involved in the alleged constitutional deprivation because from 1991 to 2003 Officers Jones worked from 3:30 p.m. to 1:30 p.m. and it is undisputed Plaintiff was placed in the "dry cell" at 9:07 a.m. on November 14, 2000. DSOF ¶8. Plaintiff contends Officer Jones' affidavit does not prove Officer Jones did not work the morning in question, Plaintiff can identify Officer Jones, and David Delbrook will testify Officer Jones placed him in a dry cell. PRESP p.11 ¶2. -5Document 68 Filed 07/06/2005 Page 5 of 8

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Plaintiff's statements he can identify Officer Jones and David Delbrook will testify are insufficient to create a genuine issue of material fact. To create a genuine issue of material fact, Plaintiff must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in Defendants' declarations and documents. FED. R. CIV. PRO. 56(e) (2004). Plaintiff has failed to aver that he has identified Officer Jones as the officer who placed him in the dry cell or that he has had any contact with or opportunity to identify Officer Jones since November 14, 2000. Moreover, Plaintiff has failed to provide an affidavit of David Delbrook. Pursuant to Rand v. Rowland 154 F.3d 952, 960-961 (9th Cir. 1998), Magistrate Judge Verkamp advised Plaintiff of the requirements for responding to a summary judgment motion under Rule 56 on November 13, 2004. Dkt. #60. The fact that Plaintiff is a pro se litigant does not exempt him from Rule 56 requirements. See Id. Accordingly, Defendant Jones will be granted summary judgment. E. Defendant Pahl

Defendant has presented an affidavit, averring Officer Pahl died on February 25, 2003. DSOF ¶4. Plaintiff contends the fact that Officer Pahl is deceased does not relieve him from paying Plaintiff damages. PRESP p.11 ¶3. Rule 25(A) provides for dismissal due to the death of a party. See FED. R. CIV. PRO. 25(A). While a motion for substitution may be made within 90 days, Plaintiff has not made such a motion. Accordingly, Defendant Pahl is dismissed from this action. F. Detention Officers Bunch, Pahl, Perez, Sink, and Multz

A pretrial detainee is protected from punishment without due process under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535-36 (1979). The protections of the Due Process Clause are at least as great as those of the Eighth Amendment. City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983). Under the Fourteenth Amendment the inquiry is whether the treatment of the pretrial detainee amounts to "punishment." Bell, 441 U.S. at 535 n. 16. Generally, a prison's "obligation under the [E]ighth [A]mendment is at an end if it furnishes sentenced prisoners with adequate -6Document 68 Filed 07/06/2005 Page 6 of 8

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food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (internal quotations and citations omitted). Defendants assert that it is unlikely Plaintiff spent more than one hour in the holding cell adjacent to the courtroom. DSOF. ¶16. Defendants also claim that their practice is to allow inmates to use the bathroom upon request. DSOF ¶ 17. Furthermore, Defendants assert that it is their practice to loosen the inmates handcuffs if they are too tight. Id. Lastly, Defendants argue that the holding cells are cleaned each night and it is unlikely that the cell was in the condition that Plaintiff alleges in his Complaint. DSOF ¶18. In contrast, Plaintiff has averred, he was placed in a "dry cell" without a toilet, sink, or water for an extended period of time. PSOF p.4 ¶1. Plaintiff has averred the dry cell was flooded with urine; Defendants refused to permit Plaintiff to use the bathroom, forcing him to urinate and defecate on the floor; and Defendants refused to loosen his handcuffs. Taking as true, Plaintiff's allegations, under an Eighth Amendment standard, Plaintiff has failed to allege a deprivation which is objectively sufficiently serious. "The temporary deprivation of the right to use the toilet, in the absence of serious physical harm or a serious risk of contamination, does not rise to the level of an Eighth Amendment violation." Whitted v. Lazerson, No. 96 CIV 2746, 1998 WL 259929, *2 (S.D.N.Y 1998) (holding there was no Eighth Amendment violation where prisoner urinated and defecated on himself after being deprived the opportunity to use a toilet for approximately ninety minutes) Similarly, under a Fourteenth Amendment analysis, courts have concluded identical allegations failed to state a constitutional deprivation. Bourdon v. Roney, No. 9:99 CV 0769, 2003 WL 21058177, *30-31 (N.D.N.Y. Mar. 6, 2003) (concluding pre-trial detainee deprived of bathroom privileges for a maximum of three hours "failed to adequately allege that he was denied minimal necessities of civilized life for a substantial period of time"). Plaintiff has not alleged any injury to his health as a result of being forced to urinate and defecate on the floor or as a result of the unsanitary conditions in the dry cell. No matter how humiliating his confinement may have been, since Plaintiff has failed to prove the deprivation was objectively sufficiently serious, Plaintiff has failed to allege a cognizable -7Document 68 Filed 07/06/2005 Page 7 of 8

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cause of action under the Fourteenth Amendment. Accordingly, Defendants Bunch, Perez, Sink, and Multz are entitled to summary judgment. IT IS THEREFORE ORDERED that Defendants motion for summary judgment is granted. (Dkt. #57). IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly.

DATED this 1st day of July, 2005.

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