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

Albert W. DeLeon, Plaintiff, vs. Dora Schriro, et al., Defendants.

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No. CV 04-0446-PHX-PGR (JRI) ORDER

Plaintiff Albert W. DeLeon is litigating a pro se civil rights actions against Defendants
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(1) Director of the Arizona Department of Corrections Dora Schriro, (2) Medical Director
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Robert Jones, (3) Dr. Ronolfo Macabuhay, (4) Deputy Warden Ruben Montano, (5) Facility
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Health Administrator Donald A. Sloan, (6) Security Officer (CSO) F. Ramon, (7) CSO
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Avalos, (8) CSO Adrian Paradez, (9) Dr. E. Vinluan, and (10) Lt. Michael Reyna (Doc. #78).
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Now pending before this Court is Defendants' Motion for Summary Judgment (Doc. #187).
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This Court will grant the motion for summary judgment in part, thereby dismissing
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Defendants Schriro, Jones, Macabuhay, Montano, Sloan, and Vinluan. Defendants' Motion
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for Summary Judgment will be denied in part, and this action will proceed as to Plaintiff's
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claims that he was retaliated against when he was placed too tightly into handcuffs by
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Defendant Reyna, and when Defendants Ramon, Avalos, and Paradez forced him to crawl
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up six flights of stairs.
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I. Procedural History Plaintiff filed a Second Amended Complaint pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights (Doc. #78). Plaintiff alleged in Count I that Defendants Reyna, Ramon, Avalos, and Parades retaliated against him when he reported threats to a female corrections officer (Id.). Plaintiff asserted that Defendants falsely accused him of conspiring to sexually assault the officer, verbally abused him, confiscated his orthopedic shoes and cane, and handcuffed him (Id.). Plaintiff maintained that the handcuffs were placed too tight, and he was forced to walk in shackles despite his obvious disability (Id.). Plaintiff further alleged that he was forced to crawl up six flights of stairs (Id.). Plaintiff asserted that as a result of these actions, he had a heart attack (Id.). Plaintiff alleged that after the heart attack, he was continually retaliated against by Defendant Montero, who would not allow him to have his orthopaedic shoes or cane and denied him recreation (Id.). Plaintiff asserted that Defendant Schriro refused to rectify the situation, condoning the abuses (Id.). Plaintiff alleged in Count II that in retaliation, Defendants Sloan, Jones, Schriro, Macabuhay, and Viluan failed to provide him adequate medical care (Id.). Plaintiff asserted that Defendants Sloan, Jones, Schriro, Macabuhay, and Viluan allowed his orthopedic shoes and cane to be seized, and allowed him to be issued a non-functioning wheelchair (Id.). Plaintiff sought monetary damages and injunctive relief (Id.). Defendants filed a Motion for Summary Judgment arguing that: (1) Plaintiff failed to exhaust his administrative remedies as to several of his claims; (2) Plaintiff failed to demonstrate that he was subject to any retaliation; (3) Plaintiff was provided adequate and prompt medical attention; (4) Defendants are entitled to Eleventh Amendment Immunity in their official capacity; and (5) Defendants are entitled to qualified immunity (Doc. #187). II. 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
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(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). To be "properly exhausted," the prisoner "must complete the administrative review process in accordance with the applicable rules, including deadlines, as a precondition to bringing suit in federal court." Ngo v. Woodford, 126 S.Ct. 2378, 2384 (2006). First, Defendants argue that Plaintiff failed to exhaust his administrative remedies as to all his claims except for his claim regarding staff abuse and his subsequent heart attack (Doc. #187 at 5-7). According to ADOC policy, in order to grieve an issue, an inmate must submit a complaint to the CO III within 10 days from the date of the underlying complaint (Doc. #188, ex. M, attachment A). If the CO III does not resolve the complaint, the inmate may submit a formal Inmate Grievance to the Institution/Unit Grievance Coordinator (Id.). The inmate may appeal the Grievance Coordinator's decision to the Warden or Deputy Warden, and in turn appeal the Warden or Deputy Warden's decision to the Director (Id.). The Director's response is final (Id.). For a medical grievance, the Grievance Coordinator forwards the grievance to the Facility Health Administrator, whose decision may be appealed to the Deputy Director for Inmate Health Services (Doc. #188, ex. M, attachment A). The Deputy Director's decision may be appealed to the Director (Id.). The Director's response is final (Id.). Plaintiff filed an inmate letter complaining about actions taken by ADOC officials, which resulted in a strain on his heart and caused him to have to undergo bypass surgery (Doc. #78, attached grievances). Plaintiff then filed an inmate grievance, complaining about abuse and malicious staff conduct, attaching his letter (Id.). Plaintiff stated that in retaliation for his allegedly conspiring to rape a guard, charges for which he was exonerated, his shoes and cane were confiscated, he was handcuffed and placed in leg irons, and he had to climb a flight of stairs without aid (Id.). As a result, he suffered from chest pain and damaged his heart (Id.). Defendant Sloan responded to the grievance, and Plaintiff appealed (Id.). Defendant Schriro responded that Plaintiff was receiving sufficient medical treatment (Id.).
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As conceded by Defendants, Plaintiff filed a grievance regarding the retaliatory actions of the guards, which resulted in him suffering a heart attack. Plaintiff failed to specifically grieve the alleged deliberate indifference to his medical needs, i.e. that the doctors failed to ensure the return of his orthopedic shoes, cane, fix his wheelchair, or provide him a porter. Accordingly, Plaintiff only exhaust his administrative remedies in regards to retaliatory actions of the guards during his transportation. However, because Plaintiff did grieve his claims of retaliation, out of abundance of caution, this Court will address Plaintiff's allegations that (1) he was retaliated against during his transportation, and (2) the medical providers retaliated against him. III. Summary Judgment "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). "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. "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably
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advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005). Legitimate penological goals include such things as preserving institutional order and discipline. Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 2004). However, "a chilling effect on a person's First Amendment right . . . is sufficient to raise a retaliation claim." Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). The Plaintiff "bears the burden of pleading and proving the absence of legitimate correction goals for the conduct of which he complains." Bruce 351 F.3d at 1289. Plaintiff sufficiently alleged, and Defendants have not sufficiently contradicted, that the actions taken against Plaintiff during the transfer were the result of Plaintiff reporting a plan to assault an officer, which chilled the exercise of his First Amendment rights. See Rhodes, 408 F.3d at 567-58. Defendants argue that Plaintiff has no constitutional right to report the possible future activities of other inmates to prison staff, and even if he does, informing officials of a risk posed to a guard "does not fail to advance legitimate penological goals." Defendants argument is misplaced as the exercise of a constitutional right does not need to advance a legitimate penological interest; it is the alleged retaliatory conduct which the plaintiff must demonstrate does not serve any legitimate penological interest. A prisoner retains "those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). Accordingly, Plaintiff has a First Amendment right to free speech to the extent that it is not inconsistent with legitimate penological objectives. This Court cannot conclude that reporting a potential threat to a correctional officer is inconsistent with legitimate penological objectives. A. Defendants Reyna, Ramon, Avalos, and Parades Initially, there is a material question of fact as to whether Defendants Reyna, Ramon, Avalos, and Parades were aware of the charges against Plaintiff. These detention officers indicate that they were not involved in Plaintiff's transfer and were unaware of the circumstances surrounding the transfer. Plaintiff, however, attested that he was verbally

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abused and cursed, and maintained that the detention officers were well aware of the charges against him. Plaintiff argued that Defendant Reyna violated his constitutional rights when he confiscated Plaintiff's orthopedic shoes and cane when transporting Plaintiff. According to the summary judgment evidence, Plaintiff entered ADOC in 1998 (Doc. #188, ex. H at 4). In 2002, Plaintiff came forth with information regarding another inmate's plan to assault and rape a female corrections officer (Id. at 6). Plaintiff's letter regarding the plan was found, and on October 17, he was moved to another unit for investigative purposes (Id. at 7-8). Plaintiff testified that when he was moved to the special housing unit, the transportation officers cursed at him and refused to provide him a cane and shoes (Id. at 24-25). First, verbal harassment or abuse does not rise to the constitutional level. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Second, Defendants have demonstrated that there was a legitimate penological interest in confiscating Plaintiff's shoes and cane. Plaintiff had been charged with conspiracy to assault and rape a female office, a violent offense. Moreover, ADOC policy required detention officers to transport inmates wearing a jumpsuit and shower shoes (Doc. #188, exs. I, J). Finally, Plaintiff had previously been found with a stinger in his shoe under the insole and lifts (Id., ex. G). Accordingly, this claim will be dismissed with prejudice. Plaintiff next claims that Defendant Reyna violated his constitutional rights when he placed handcuffs on Plaintiff which were too tight. Defendant Reyna presents no evidence as to this claim. Additionally, there is no penological interest in handcuffing an inmate too tightly. Accordingly, summary judgment will be denied as to this claim. Plaintiff next argues that Defendants Ramon, Avalos, and Parades forced him to drag himself up six flights of stairs (Doc. #188, ex. H at 24-25). Defendant Reyna attested that he was unaware of the reasons Plaintiff was transferred (Id., ex. I). Defendant Avalos denied any knowledge of Plaintiff's allegations that he was forced to crawl up the stairs (Id., ex. J). Defendant Paradez denied that he had any contact with Plaintiff, or knowledge of the incidents (Id., ex. K). Defendant Ramon attested that he did not escort Plaintiff to his cell,
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or force him to crawl up stairs (Id., ex. L). Moreover, Plaintiff never asked Defendant Ramon about his cane or shoes (Id.). Defendant Ramon attested that an inmate would not be allowed to crawl up stairs (Id.). Plaintiff attested that Defendants Ramon, Avalos, and Paradez ordered him into a cell, forcing him to crawl up several flights of stairs (Doc. #200, attached affidavit). Plaintiff maintained that his heart attack was caused by these Defendants' actions (Id., attached affidavit and attached grievance). There is a material dispute of fact as to whether Defendants Ramon, Avalos, and Paradez forced Plaintiff to crawl up six flights of stairs. Moreover, there is no legitimate penological interest in forcing an inmate to crawl up stairs, a fact to which Defendants apparently concede. Accordingly, summary judgment as to this claim will be denied. Finally, Plaintiff alleges that as a result of these Defendants' actions, Plaintiff had a heart attack (Doc. #188, ex. H at 9). Plaintiff has presented absolutely no evidence to support this allegation, which will not be allowed to proceed. In sum, Defendants' Motion for Summary Judgment as to Plaintiff's claims that (1) Defendant Reyna violated his constitutional rights when he retaliated against Plaintiff by placing handcuffs on too tightly during a transportation; and (2) Defendants Ramon, Avalos, and Paradez violated Plaintiff's constitutional rights when they retaliated against him by forcing him to crawl up six flights of stairs, will be allowed to proceed. Defendants argue that they are entitled to qualified immunity. If a defendant claims qualified immunity, the court must make two distinct inquires, the "constitutional inquiry" and the "qualified immunity inquiry." See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002). The "constitutional inquiry" asks whether, when taken in the light most favorable to the non-moving party, the facts alleged show that the official's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, a court turns to the "qualified immunity inquiry" and asks if the right was clearly established at the relevant time. Id. at 201-02. This second inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. at 201.
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As previously determined, based on the summary judgment evidence there is a material question of fact as to whether Defendants Reyna, Ramon, Avalos, and Paradez violated Plaintiff's constitutional rights. Additionally, at the time of the alleged incident, Plaintiff's right against retaliation by having his handcuffs put on too tightly and being required to crawl up six flights of stairs, was clearly established. See also Hope v. Pelzer, 536 U.S. 730, 741-42 (2002) (providing that a defendant is not entitled to qualified immunity if the state of the law at the time gave him fair warning that his alleged treatment of a plaintiff was unconstitutional). Accordingly, Defendants Reyna, Ramon, Avalos, and Paradez are not entitled to qualified immunity. B. Defendants Montano, Sloan, and Schriro Plaintiff alleged that while he was housed in a special housing unit, Defendant Montano refused to allow him to exercise (Doc. #188, ex. H at 34). In particular, the exercise yard was provide for ambulatory inmates, and because Plaintiff was not given his shoes and cane he was not ambulatory (Id. at 24-25). Plaintiff stated that he was informed that he could not have his shoes and cane due to security risk, but when Defendant Montano decided to allow him access to these items, it was discovered that they were missing (Id. at 35-38). Additionally, Plaintiff was not allowed to use his wheelchair, resulting in him having to drag himself to medical (Id. at 39-40). Plaintiff further alleged that Defendant Moreno was deliberately indifferent to his medical needs because failing to transfer him after his heart attack to a facility capable of providing him better therapy (Id. at 46-48). Plaintiff had been charged with conspiracy to assault and rape a female office, a violent offense, and was being housed in a special unit pending an investigation (Doc. #188, ex. H). Moreover, Plaintiff had previously been found with a stinger in his shoe under the insole and lifts (Id., ex. G). Accordingly, Defendant Montano had a legitimate penological interest in not allowing Plaintiff to possess his shoes and cane. Notably, Plaintiff conceded that this was the reason given him for the denial of these items (Id., ex. H). Additionally, Plaintiff admits that because he was not mobile, he could not use the recreational area. Accordingly, Defendant Montano had a legitimate penological interest for confiscating
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Plaintiff's orthopedic shoes and cane and is entitled to summary judgment. This action will be dismissed as against Defendant Montano. Plaintiff alleged that Defendant Schriro failed to rectify the situation (Doc. #188, ex. H at 14). Plaintiff asserted that Defendant Sloan is liable because he is in charge and agrees with the medical decisions (Id. at 43-44). Plaintiff, however, acknowledged that he is unaware of whether Defendant Sloan knew of the assault charges (Id. at 44-45). Defendant Schriro, and Sloan were unaware that the alleged retaliatory actions on behalf of the detention officers had occurred until after Plaintiff filed a grievance. Moreover, Plaintiff fails to allege that either Defendant were directly involved in the actions. Thus, Plaintiff has failed to demonstrate that Defendants Schriro and Sloan took an adverse action against him, see Rhodes, 408 F.3d at 567-58, and Defendants Schriro and Sloan are entitled to summary judgment. C. Defendants Jones, Macabuhay, and Viluan Plaintiff argues that Defendants Jones, Macabuhay, and Viluan, in retaliation, have failed to ensure that he has obtained his orthopedic shoes and cane, and his wheelchair is repaired, and failed to order him a porter (Doc. #188, ex. H at 46-48; Doc. #200). However, Plaintiff presented absolutely no evidence that Defendants Jones, Macabuhay, and Viluan knew of the charges or the investigation. Moreover, the record demonstrates Plaintiff's treating physicians, Defendants Macabuhay and Viluan, provided Plaintiff significant, timely, and appropriate medical treatment. Plaintiff was involved in a car accident in 1973, resulting in problems with his ankles, and one leg being shorter than the other (Doc. #188, exs. G, H at 27; Doc. #200, attached medical records). An assessment conducted upon his entrance into ADOC indicated that Plaintiff was to have shower bars, to be placed in a bottom bunk, and to be allowed to use a cane; Plaintiff was able to ambulate, transfer, and bath independently (Doc. #188, ex. G). Plaintiff was also provided orthopedic shoes (Id.). Plaintiff was seen by the medical staff from 2001 until 2004 on numerous occasions, often several times a month for complaints about weakness in his left ankle and chest pain
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(Doc. #188, ex. G). In August 2001, Plaintiff was placed on limited duty (Id.). On October 17, 2001, Plaintiff was transferred to central unit due to a disciplinary investigation. Shortly thereafter, Plaintiff had a heart attack and was rushed to the hospital (Id., ex. H at 26). Several days later, Plaintiff underwent cardiac cauterization, and an attempted perculanteious transpluminal coronary angioplasty (Doc. #200, medical records). Plaintiff also underwent bypass surgery (Doc. #188, ex. H at 26). Plaintiff was then seen on a regular basis to follow his condition, both in the prison infirmary, by a neurologist, and in the emergency room (Id., ex. G). Plaintiff also underwent several MRIs (Id.). In 2002, Plaintiff became wheelchair bound (Doc. #188, ex. G). Plaintiff was seen in December 2003, at which time it was noted that his wheelchair had two loose screws and he needed a left footrest (Id.). In March 2004, Plaintiff reported that his left leg got caught in his wheelchair, resulting in him failing and injuring himself (Id.). Plaintiff was seen again that month due to a fall in the bathroom (Id.). Plaintiff was treated on each occasion (Id.). During an April 2003 visit, Plaintiff requested a porter and a wheelchair due to his inability to walk and weakness on his left side (Id.). Plaintiff requested a porter several more times (Id.). On July 27, 2004, Plaintiff informed Dr. Viluan that he was paralyzed, and had been in a wheelchair since 1986 (Doc. #188, ex. G). Dr. Viluan reviewed Plaintiff's medical records, which revealed that he was ambulatory until 2001, when he was caught hiding contraband in his orthopaedics (Id.). Dr. Viluan noted that Plaintiff was not currently ADA qualified (Id.). Plaintiff suffered a heart attack, but the record demonstrates that he was promptly brought to the hospital and appropriately treated for the condition. Moreover, Defendants Macabuhay and Viluan monitored Plaintiff's condition and provided treatment on a regular basis. Plaintiff alleged that his orthopedic shoes and cane were confiscated and not returned to him due to retaliation. However, the evidence demonstrates that Plaintiff's shoes and cane were confiscated in order to transport him during an investigation into a threat to the safety of a female correction officer. Additionally, Plaintiff was found with contraband in his
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shoes. Finally, Defendants Macabuhay and Viluan never ordered Plaintiff's shoes and cane confiscated, and while Plaintiff was mobile issued medical orders allowing him to have these items. Defendants Macabuhay and Viluan also issued orders allowing Plaintiff a working wheelchair with footrests. Furthermore, Plaintiff has not demonstrated that the failure to provide him a porter was an improper decision on behalf of Defendants Macabuhay or Viluan. Finally, Defendant Jones never had contact with Plaintiff, only reviewing his complaints, which, on the record, were without merit. In sum, Plaintiff failed to allege or demonstrate that Defendants Jones, Macabuhay, or Viluan actions were based on retaliatory motives. Further, Defendants produced sufficient evidence to demonstrate that these medical Defendants provided Plaintiff proper medical treatment, and thus did not take any adverse action against Plaintiff. See Rhodes, 408 F.3d at 567-58. Accordingly, Defendants Jones, Macabuhay, and Viluan are entitled to summary judgment and the action against them will be dismissed with prejudice. IV. Relief "A case becomes moot `when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome." McQuillion v. Schwarzenegger, 396 F.3d 1091, 1095 (9th Cir. 2004). Plaintiff's release from imprisonment "extinguishe[d] his legal interest in an injunction [or restraining order] because it would have no effect on him." Id. Accordingly, Plaintiff may not seek injunctive relief. IT IS ORDERED: (1) Defendants' Motion for Summary Judgment (Doc. #187) is granted in part. (2) Defendants Dora Schriro, Dr. Robert Jones, Dr. Ronolfo Macabuhay, Ruben Montano, Donald Sloan, and Dr. E. Viluan are dismissed from this action. (3) Plaintiff's claims that he was retaliated against when, during transportation, his orthopedic shoes and cane was confiscated, is dismissed with prejudice. (4) Defendants' Motion for Summary Judgment (Doc. #187) is denied in part.

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(5) Plaintiff's claim that Defendants Ramon, Avalos, Adrian Paradez, and Michael Reyna retaliated against him when he was placed too tightly into handcuffs by Defendant Reyna, and when Defendants Ramon, Avalos, and Paradez forced him to crawl up six flights of stairs, will proceed. DATED this 13th day of September, 2006.

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