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 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Prisoner seeking that, Group [Dkt. only filed #1] a on Pending summary before the Court and are Plaintiff's motion for for CHARLES RYAN, CONRAD LUNA, BARBARA SHEARER, Defendants. v. LORENZO CRUZ FALCO, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 03-1940 PHX EHC (JI) MEMORANDUM AND ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

judgment

[Dkt.

#51]

Defendants'

cross-motion

summary judgment [Dkt. #53]. BACKGROUND pro se Civil 3, Rights Complaint The by a

October and a

2003.

complaint, alleged Threat

declaratory

injunctive member in of a

relief, Security

after

being

designated was

("STG"), in

Plaintiff the

placed Special

indefinite

solitary ("SMU in SMU

confinement II"). II,

prison's his

Management

Unit

Plaintiff with no an

alleged

indefinite

confinement of his

periodic, atypical

meaningful and

review

status, compared

constituted

significant

hardship

Case 2:03-cv-01940-EHC-JRI

Document 67

Filed 02/14/2006

Page 1 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

with his

the

ordinary to of

incidents

of

prison

life,

in

violation alleged his

of the

right

due

process. in

Plaintiff SMU II

also

conditions

confinement

violated

Eighth

Amendment rights. On December 5, 2003, the Court issued an order requiring Defendants answer Count I of the complaint, Plaintiff's See

allegation that Defendants deprived Dkt. #4. The Court dismissed confinement prohibition Count III,

him of due process. II SMU of II the

Count in of which

complaint, the

alleging Eighth

Plaintiff's Amendment's and

violated and

cruel alleged

unusual

punishment,

Plaintiff's

confinement in SMU II violated his be free from the was excessive use

Eighth Amendment right to force, the i.e., exercise that of his a

of for

confinement

retaliation Dkt. #4. a motion Count

constitutional right. Plaintiff Court's order filed

for II

reconsideration and Count III

of of

the the

dismissing

complaint on December 2004, Defendants [Dkt. claim his filed #12]. should

31, 2003. an

Dkt. #6. Rule

On February 26, 12(b) Motion to due not this

Unenumerated Defendants

Dismiss process

argued because with

Plaintiff's Plaintiff regard had to

be

dismissed

exhausted claim. On

administrative

remedies

Dkt. #12. July 8, 2004, construing Plaintiff's motion to

reconsider as a motion pursuant to Rule 54(b), Federal Rules of Civil Procedure, to answer the Count Court II and reinstated Count III of and ordered

Defendants

Plaintiff's

Case 2:03-cv-01940-EHC-JRI

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complaint. Plaintiff's 26, 2004,

Dkt. #17.1 Eighth the due Amendment

Because the Court had reinstated and retaliation claims, to on July

Court process

denied claim

Defendants' without

motion the

dismiss of

Plaintiff's

reaching

merits

the motion and without prejudice.

Dkt. #19.

On August 11, 2004, Defendant Ryan filed an Unenumerated Rule 12(b) to the Motion State to a Dismiss Claim and Motion #22]. to Dismiss for Ryan be the motion Eighth

Failure asserted

[Dkt. due

Defendant claim barred should by

complaint's alia, of not On

process it was

dismissed, applicable to dismiss

inter statute did

because

limitations. seek dismissal 17,

Defendant of

Ryan's

Plaintiff's the it Court was

Amendment

claims. due

March

2005,

dismissed not filed #35].

Plaintiff's within the

process

claim of

because

two-year

statute

limitations.

[Dkt.

The parties engaged in discovery. On judgment July 11, 2005, Plaintiff filed a a motion statement for of summary facts.

[Dkt.

#51],

which

includes

On July 28, 2005, Defendants for summary judgment, a

filed a response to the motion for summary judgment,

cross-motion

The Court determined that, because Plaintiff sought only prospective injunctive relief with regard to Count II, Plaintiff need not allege physical injury to proceed with this claim. The Court also determined Plaintiff had stated a claim that his confinement in SMU II violated his right to be free of retaliation for exercising his right to be free of self-incrimination. The Court stated: "Although Plaintiff does not specifically allege in his Complaint that his assignment to SMU II advanced no legitimate penological interest, the facts as he has stated them might support such a conclusion." - 3 Document 67 Filed 02/14/2006

1

Case 2:03-cv-01940-EHC-JRI

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and a separate motion for

statement of facts in support of their crossjudgment [Dkt. #53 & Dkt. #54].

summary

Plaintiff filed a reply in support of his motion for summary judgment judgment and a response #61 & to Dkt. Defendants' #62], motion for a summary separate

[Dkt.

including

statement of facts [Dkt. #63] on September 29, 2005. DISCUSSION A. Standard for granting summary judgment Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment affidavits, on the file show shall be entered to is if the pleadings, and

depositions, admissions regarding party Fed. is R.

answers that

interrogatories, no genuine and of the law.

there of the as a

dispute moving See Lobby,

material to a

facts

case matter v.

entitled Civ. P.

judgment (2004);

56(c)

Anderson

Liberty

Inc., 477 U.S. 242, 247 (1986). party's facts party. motion with See all for summary

The Court must evaluate a construing favoring Inc., the the alleged nonmoving 1104,

judgment inferences Inns,

reasonable v.

Baldwin

Trailer

266

F.3d

1117 (9th Cir. 2001). The burden and of party seeking the those to summary Court judgment of the bears for the and if any the its initial motion,

informing

basis of

identifying answers

portions

pleadings, admissions on it of

depositions, file,

interrogatories, affidavits, absence of

together

with

the the

any, genuine

which issue

believes

demonstrate

material fact. 323 (1986).

See Celotex Corp. v. Catrett, Where the moving party has

477 U.S. 317, its initial

met

Case 2:03-cv-01940-EHC-JRI

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burden the

with

a

properly not

supported rest upon

motion, the must

the

party

opposing or

motion of

"may his

mere set

allegations forth for

denials facts

pleading, that there at 248. "fails

but is

... a

specific trial."

showing 477

genuine

issue is

Anderson, against a

U.S.

Summary to an that make

judgment a showing

appropriate to

party the

who

sufficient to

establish party's

existence and on

of

element party

essential bear

that burden

case,

which

will

the

of proof at trial."

Id., 477 U.S. at 322.

See also Citadel

Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). B. Factual background

Plaintiff is currently scheduled to be released from the custody 2006. of the Arizona Department of Corrections in May

See Dkt. #51 at 4. On December 18, 1997, STG the Hearing Arizona Department of

Corrections

("ADOC")

Committee

validated Dkt.

Plaintiff as a member of a STG, i.e., the Grandel STG. #54, para. 73. that that Plaintiff Plaintiff of

The STG Hearing Committee relied on evidence had had admitted membership in the on Grandel STG; a

gang-specific showing in

tattoos his a gang

his a

person,

photograph made Report by

Plaintiff

signs,

statement

Plaintiff gang

contained affiliation,

Presentence Plaintiff's

Investigation choice not to

about

and

renounce membership in the STG at his hearing. The appeal para. of 74. ADOC his As STG STG a Validation validation result of Committee on January STG

See id. denied 18, Plaintiff's 1998. Plaintiff Id., was for

his

status,

placed in SMU II in February of 1998, and remained there - 5 Document 67 Filed 02/14/2006

Case 2:03-cv-01940-EHC-JRI

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a

little

more

than

two

years,

until

he

was

released

from

ADOC custody in June of 2000. at 2.

See id.,

para. 76; Dkt. #62

Except for a period of two months, Plaintiff has most since July 16, 2002. DSOF,

recently been housed in SMU II para. 76. Plaintiff had an

opportunity

to a

be

present

at

his

STG

validation hearing and to present

defense to the assertion

that he was a member of the Grandels STG and to appeal his STG validation. of his Dkt. STG #54, para. 77. Plaintiff receives 180

reviews days.

classification

approximately

every

Id., para. 80.

Plaintiff may be transferred out of Id., para. 83. the conditions of isolation...very limited visitation

SMU II only if he "debriefs."

Plaintiff asserts he may be harmed by SMU II, specifically telephone mem b e r s "virtually and complete equally

limited with

privileges, of the

general

public...constant or e x e rci s e

lighting...limited opportunity...denial opportunities, other also in classes,

recreation of

food... [ r e h abilitative] programs...hygiene #62 at 4-5. and

vocational Dkt. the but 5.

[preventative] contends that, are

care." "during cold, Id. and and on he at

Plaintiff temperatures denied cold that

winter

months, are

SMU

II

quite

inmates

weather

clothing..." knew of

Plaintiff

alleges

Defendants adverse placement Plaintiff

disregarded physical inmates. is

potential of #51

permanent indefinite at 10-11. relief

psychological in SMU II that

impacts See Dkt. to

asserts

entitled

injunctive

Case 2:03-cv-01940-EHC-JRI

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because

he

faces

potential

psychological Id. at 11. of the

harm

from

his

"indefinite" confinement in SMU II. Plaintiff emphasizes the

nature

STG

debriefing

policy; he alleges his to violent assaults

choice is to debrief and be subjected by STG members or to endure the

conditions of SMU II Plaintiff enforcing contends the

until he is released. Defendants' of purpose SMU II

Dkt. #51 at 8. in was enacting to and

that

restrictions

subject

prisoners to harsh conditions to "break" them; to deter gang membership in the prison Id. all other validated STG members, leads in population; to force validated

prisoners to debrief. Plaintiff, like

a heavily restricted life in SMU II. his cell for 165 hours per day per to at week. allow night.

He remains isolated His cell is

illuminated however 22. Id.,

twenty-four the lights

hours are

security Dkt.

checks, #54,

dimmed

para.

Plaintiff's cell contains a sink, a toilet and a bed. para. 43. Plaintiff may is 35. week not allowed

speak with inmates in other cells, but he communication visitors, visitors monthly with but for visits them. only a one Id., para. per two

direct is

Plaintiff by a

allowed of four

visit of

maximum

maximum by his

hours;

Plaintiff

receives

mother, 37 & 38.

sister, nephew, wife, and children. Plaintiff is allowed one

Id., paras. phone call

five-minute

per

week.

Id., para. 39. Plaintiff coinciding is allowed the to shower three times per week,

with

three,

one-hour,

out-of-cell

exercise

Case 2:03-cv-01940-EHC-JRI

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sessions exercise cement mesh

he

is

allowed. occur in a

Id.,

paras.

40

&

43. which and a

These has a

sessions floor,

recreation cement one

area, walls,

twenty-foot para. 41.

high

steel is

top.

Id.,

Only Id.

inmate

at

a

time

allowed in the recreation area.

Plaintiff receives three meals per day on food such does weekends. from as the Id.,

a day on weekdays and two 45. but Plaintiff may purchase para. in cannot other 46. the

para.

purchase things

commissary,

hygiene-related allege that

items. he has

Id., lost

Plaintiff

not

weight

last year, or that he has contracted illness as a result of his incarceration in SMU II. Id., paras. 47 & 48. in SMU II cruel and of is

C. Plaintiff contends that his confinement violates the Eighth Amendment's prohibition of unusual punishment. To prevail claim, on an an Eighth must Amendment establish measure U.S. v. 825,

conditions that of he

confinement denied

inmate

"the

minimal Farmer 1977-78 S. 744 Ct. v.

civilized Brennan, 511

life's 114 U.S.

necessities." S. 337, 296 Ct. 1970, 101 732,

834-35, 452 v.

(1994); 2392, Cir.

Rhodes

Chapman, Hallett inmate with

347, F.3d

2399

(1981); The

Morgan, also

(9th prison

2002).

must

demonstrate indifference

that to

officials or safety.

acted

deliberate 511 U.S. at

his

health 1979. mere than harm

Farmer,

837, 114 S. Ct. at something by more than less

"[D]eliberate indifference entails negligence acts or or with ... [but] is satisfied the harm very will

something of

omissions knowledge

for that

purpose result."

causing

Id., 511 U.S. at 835, 114 S. Ct. at 1977. - 8 Document 67 Filed 02/14/2006

Case 2:03-cv-01940-EHC-JRI

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 day. 21 Allen

An Eighth Amendment claim that a prison official has deprived inmates of humane conditions of confinement must meet two requirements, one objective and one subjective. Under the objective requirement, the prison official's acts or omissions must deprive an inmate of the minimal civilized measure of life's necessities. The subjective requirement, relating to the defendant's state of mind, requires deliberate indifference. v. Sakai, 48 F.3d and 1082, 1083-84 (9th Cir. See 1995) also

(internal Wilson v. (1991) element a basic

citations

quotations

omitted).

Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327 that a plaintiff by satisfies the the objective of 290

(holding of the

analysis

establishing v. County of

deprivation Nev.,

human

need);

Gibson

Washoe,

F.3d 1175, 1187 (9th Cir. 2002). The Court must consider each alleges a plaintiff of of the violate may not conditions the of

confinement Amendment an

which

Plaintiff because

Eighth on by

separately

prevail claim

Eighth

Amendment the

conditions of the

confinement he

asserting constitute

that

totality and

conditions

experiences See, e.g.,

cruel

unusual

punishment.

Hoptowit v. Ray, 682 F.2d 1237, 1246-47 (9th Cir. 1982). 1. Plaintiff's cell is illuminated twenty-four hours per Plaintiff alleges a day by that his cell is illuminated sleep

22 twenty-four 23 deprivation 24 Court 25 penological 26 physical 27 illumination. 28 - 9 Document 67 Filed 02/14/2006 This practice is unconstitutional." Keenan and psychological harm by living in constant justification for requiring inmates "to suffer of Appeals has stated that there is no legitimate and psychological problems. The Ninth Circuit hours artificial light, causing

Case 2:03-cv-01940-EHC-JRI

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v.

Hall, the

83

F.3d in

1083, the

1090 light of

(9th most

Cir.

1996). to

Because, Plaintiff, meets the

taking the

facts

favorable

constant

illumination

Plaintiff's

cell

objective prong of the the Court must

required analysis as a matter of law, if there is of a genuine mind issue of the

determine

material

fact

about

Defendants'

state

regarding

illumination of Plaintiff's cell. Although matter "a prison's left internal to the security is peculiarly of 101 "If a

normally

discretion

prison

administrators," Rhodes, 452 U.S. at 349 n.14, 2401 n.14, that discretion to is not absolute:

S. Ct. at a prison of

administrator irrelevant demonstrates done and to

decides or a the

ignore

grave

suffering that to at the

because

unimportant deliberate

concerns, indifference principle

administrator harm being Jordan

constitutional

stake."

v. Gardner, 986 F.2d 1521, 1529 (9th Cir. 1993). Plaintiff of serious and risk alleges that by Defendants subjecting were were aware of to a risk

harm that of intent no

caused

inmates

constant to

light, this

Defendants harm. as a

deliberately has

indifferent

Plaintiff matter of law

not

established Plaintiff purpose has in

Defendants' presented

because

evidence

regarding

Defendants' of of SMU former II

implementing other than

this the

particular

condition

confinement Director

deposition

statements

ADOC

Terry Stewart in another section 1983 action. Defendants deliberately regarding the produce evidence to a that risk of of Defendants harm cells to in were not

indifferent policy

Plaintiff SMU II,

about

illumination

Case 2:03-cv-01940-EHC-JRI

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Page 10 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

i.e.,

that of

Defendants

did

not or

ignore

a

risk

to

Plaintiff when that

because

"irrelevant this policy. the

unimportant

concerns" evidence

implementing the policy

Defendants lighting of

provide cells

regarding

was

implemented

to ensure officer and inmate safety, and that policy checks regarding was the use of and flashlights rejected

an alternative for bed-welfare inmates

considered

because

complained of this practice and the practice did not provide for the safety and security of staff and inmates. Dkt. 54

at paras. 22-28. Based on this evidence, Defendants were not deliberately illuminating indifferent Plaintiff's to cell. the risk of are harm entitled from to

Defendants

judgment as a matter of law with regard to this claim. 2. Plaintiff's opportunity for outdoor exercise is limited to three hours per week. Exercise is the "one Eighth (9th the of the basic human v. necessities Maass, of of 12

16 protected 17 F.3d 18 exercise 19 confined 20 83 F.3d at 1090. 21 The parties agree that 22 of 23 a 24 25 26 27 28 The exercise area in Keenan was "a 8' by 21' by 16' space with a roof, three concrete walls, and a fourth wall of perforated steel admitting sunlight through only the top third." 83 F.3d at 1090. The Ninth Circuit Court of Appeals concluded that release into this area did not constitute "outdoor exercise." Id. - 11 Document 67 Filed 02/14/2006
2

by

Amendment." 1993).

Lemaire

1444,

1457

Cir.

"Deprivation rights

outdoor inmates Keenan,

violates to

Eighth and

Amendment

continuous

long-term

segregation."

Plaintiff is allowed three hours week in a "recreation grate over area" the with top.2

"outdoor" cement

exercise and

per

floor

walls

and

a

steel

Case 2:03-cv-01940-EHC-JRI

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Plaintiff insufficient The a "bright

contends and

that in

three

hours and

of

exercise

is harm.

results

physical of

psychological has not

Ninth line" to

Circuit rule

Court

Appeals how much

established exercise the is

regarding the

outdoor of

required Amendment (9th Cir.

satisfy

objective

component

Eighth

analysis. 2000)

See Lopez v. Smith, 203 F.3d 1122, 1133 that denying outdoor exercise to of

(concluding

an inmate confined in a special housing unit for a period six and one-half of at the 1088 months raised a factual Amendment summary alleged week 1492-93 issue

regarding Allen, not

violation 48 F.3d

prisoner's (concluding where outdoor 722 the

Eighth that

rights); judgment he for (9th was six

was

properly 45

granted of

plaintiff per

provided weeks); 1984) was to

minutes v.

exercise F.2d

Toussaint

Yockey, that the a

1490,

Cir.

(concluding raised by

substantial

constitutional of outdoor

question exercise

defendants'

denial

inmates confined in segregation Procunier, that, in 600 F.2d 189, and 199

for over one year); Spain v. (9th Cir. 1979) (concluding were See

general

weather

permitting,

inmates

entitled to one hour of exercise five times per week).

also Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir. 1986); Davenport v. DeRobertis, 653 F. 1987) after (granting trial where and a injunction jury other heard Supp. 649, 655-56 (N.D. Ill. more from about outdoor medical the exercise doctors, of

requiring testimony

psychiatrists, exercise, state). and

professionals on an

effects

lack

thereof,

inmate's

psychological

Case 2:03-cv-01940-EHC-JRI

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Page 12 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 least some hour 1310,

As a general matter, the federal courts have required at five hours per a week court of outdoor exercise, as although as 844 in one F.2d court outdoor (5th at in F. one v. that the

circumstances per week. (7th

has

approved v.

little

Compare Cir.

Davenport 1988)

DeRobertis,

1315

(affirming per F.2d

district of

injunction exercise), Cir. least 1982) one

requiring and Ruiz v.

five

hours 679

week 1115,

Estelle, district day of and

1151-52 requiring inmates

(affirming hour per

court

decree for v.

exercise Frazier

administrative Supp. hour 1354, per

segregation), (N.D.N.Y. outdoor

Ward, at

426

1367-69 day of

1977)

(requiring with

least Bailey

exercise),

Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (holding one hour per week of outdoor exercise does not violate

Eighth Amendment). Based exercise prong that of the to on these opinions, per although may restricting the outdoor

three

hours

week

satisfy it is of

objective possible question of at at

the

Eighth is

Amendment true. inquiry

analysis,

also this

reverse a

The

resolution this

requires Plaintiff's 653; Ruiz,

deeper

into e.g.,

circumstance 828 F. F.2d Supp.

imprisonment. 679 F.2d at

See, 1151-52;

Bailey, 653

Davenport,

655-56. Because regarding there is a disputed issue of nor material Defendants fact are

this

claim,

neither

Plaintiff

entitled to summary judgment on this claim.

Case 2:03-cv-01940-EHC-JRI

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Page 13 of 18

1 2

3. Plaintiff's caloric of his placement in SMU II. "Adequate food is a

intake is diminished as a result human F.3d need at if protected 1091 an food Id. receives three meals by the

basic 83

3 Eighth 4 omitted). 5 violates 6 be adequate to maintain the inmate's health. 7 The 8 each day during the week and two meals per day on weekends. 9 Even if the SMU II diet restrictions 10 to 11 diet that is nutritionally sound does not violate the Eighth 12 Amendment. 13 prisoners 14 LeMaire, 12 F.3d at 1456. 15 has 16 nor does he assert that his diet might lead to future health 17 problems. 18 as 19 deprived 20 a matter of law with regard to this claim. 21 22 23 24 25 26 27 28 speak 4. Plaintiff's ability to socialize with other is restricted and his telephone privileges are restricted. inmates of food and Defendants are entitled to judgment as to Plaintiff's charge that he is unconstitutionally Therefore, no material questions of fact remain suffered any health problems as a result of his diet, Plaintiff does not assert that he receive food that is adequate to maintain health." "The Eighth Amendment requires only that adjust inmates' diet to their activity level, a punitive were not imposed solely parties agree that Plaintiff his Eighth Amendment rights, the provided must For purposes of determining inmate's diet Amendment." Keenan, (citations

Plaintiff argues that he is unable to socialize with or to other prisoners, and that his telephone contact

with those outside the prison is limited. The Supreme on Court considered in the Overton permissibility v. Bazzetta, (2003). of 539 The

limitations U.S. 126,

prison

visitation S. Ct.

136-37,

123

2162,

2169-70

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Supreme raise however,

Court cruel that

held and "[if]

that

visitation

restrictions concerns of all

did

not

unusual the

punishment withdrawal

stating, visitation

privileges were permanent it were applied the case in an

or for a much longer period, or if arbitrary present manner different to a particular

inmate, Id.

would

considerations."

Although limited, such as

Plaintiff's is to a

opportunities barred

for

communication

are

Plaintiff speaking receives

not

from and

all

communication, of the staff.

counselor

members from

Plaintiff

regular offers or

visits no

family

members. that the

Additionally, his access to

Plaintiff telephone

evidence

indicating is below

ordinary

visitation

level of access necessary to maintain his mental health and, therefore, of law on Defendants this 801 are entitled See 1113 right imposed Spain, (citing to to judgment F.3d as at a matter Cf. there and

claim. at

600

200.

Toussaint, is no

F.2d

cases contact

indicating visitation were

constitutional that the

concluding

limitations

imposed

pursuant to a legitimate penological interest). 5. Plaintiff's ability to participate and rehabilitative programs is restricted. Plaintiff argues in that denying and him in educational ability to

the

23 participate 24 violates 25 entitled to judgment as a matter of law regarding this claim 26 because 27 or 28 - 15 Document 67 Filed 02/14/2006 recreational programs. See Kentucky Dep't of Corr., 490 there is no constitutional right to rehabilitative his Eighth Amendment rights. Defendants are educational rehabilitative programs

Case 2:03-cv-01940-EHC-JRI

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U.S.

at

460-61,

109

S.

Ct.

at

1908-09;

Toussaint,

801

F.2d

1106-07; Hoptowit, 682 at 1254-55. D. Plaintiff contends that his violates his Eighth Amendment right excessive use of force. Plaintiff conditions argument equivalent in that to argues SMU II Defendants to the use confinement in SMU II to be free from the enforce the harsh

allegedly

punish harsh of a

Plaintiff. policies "excessive of

Plaintiff's SMU II is

enforcing

Defendants'

force"

against An

Plaintiff does not properly state

claim for relief.

excessive force claim involves an analysis of a particular than the individual against of a a

the actions of plaintiff, policy if or Cf. in

particular prison

rather because the

the

implementation force used

conditions

excessive used used F.2d was to at

analysis wantonly order

requires and and to

determining pain

"force"

inflict

reasonably Jordan, analysis prison free 986

maintain 1528 of

discipline. the differences in a

(delineating excessive of

between

claims and and

force of

maintaining right the to be

discipline of cruel a

those

violation punishment policy F.3d

unusual conditions

when

prison

initiates punitive); 2003).

living

which 155,

is

allegedly (2d Cir.

Trammell also

v.

Keane, v.

338

162-63 294,

See

Wilson

Seiter,

501

U.S.

298-303, U.S.

111 S. Ct. 2321, 2324-25 (1991); Whitley v. Albers, 475 312, 319-20, 106 S. Plaintiff Defendants does not or Ct. 1078, 1083-84 (1986). produce substantive to

Additionally, evidence any that policy

enacted

continue

enforce

maliciously and for the purpose of causing harm.

Case 2:03-cv-01940-EHC-JRI

- 16 Document 67 Filed 02/14/2006

Page 16 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a with Defendants regard to are

Conclusion entitled to judgment as a matter of law as

Plaintiff's that the

Eighth SMU

Amendment II

claim

insofar

Plaintiff his diet,

asserts his to

restrictions privileges,

concerning and his and

telephone

and in

visitation

opportunity

participate programs alleged

recreational, his Eighth do not

educational Amendment deprive

rehabilitative because these

violate

rights, Plaintiff

deprivations of

of the minimal measures law. regarding his cell Defendants are

life's necessities as a matter of entitled regarding have to the summary judgment of

also claims

Plaintiff's because that of they to

illumination

Defendants were not

presented

evidence to

indicating any of must that risk this be the

deliberately regarding motion regard to for to the

indifferent

harm

Plaintiff

implementation judgment claim his

policy. denied,

Defendants' however, of his with

summary

Plaintiff's

limitation

ability

exercise

violates

Eighth Amendment rights. Additionally, matter of on law his Plaintiff is not entitled to judgment as with regard to to is his claim that the his of on

limitations constitutional material

ability because regard

exercise a

violate issue

rights with

there to

disputed the the

fact

whether satisfy

limitations objective

Plaintiff's

ability

to

exercise

prong

of the Eighth Amendment analysis.

Case 2:03-cv-01940-EHC-JRI

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Page 17 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Accordingly, IT judgment The IS ORDERED #53] is THAT is Defendants' in to part motion and for summary in part. that

[Dkt.

denied as his

granted

motion

denied of

Plaintiff's to

claim

Defendants'

limitations

ability

exercise

subjected

him to cruel and to the extent to the of

unusual punishment. Plaintiff states with

The motion is granted a claim to for relief

that

pursuant

Eighth his by

Amendment cell,

regard his

Defendants' and diet, and

illumination telephone and by

limiting him a

visitation

access,

providing access to

reduced-calorie

denying

him

educational,

recreational,

rehabilitative programs. IT IS FURTHER ORDERED THAT Plaintiff's motion for

summary judgment [Dkt. #51] is denied. DATED this 10th day of February, 2006.

Case 2:03-cv-01940-EHC-JRI

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