1 WO SM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Edward Lee Jones, Sr., No. CV 22-00277-PHX-MTL (JZB) 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants.
14 15 Plaintiff Edward Lee Jones, Sr., who is currently confined in the Arizona State 16 Prison Complex (ASPC)-Eyman, Rynning Unit in Florence, Arizona, brought this pro se 17 civil rights action pursuant to 42 U.S.C. § 1983. Before the Court are Defendants’ Motion 18 for Summary Judgment (Doc. 37)1 and Motion to Strike Plaintiff’s Response (Doc. 53). 19 The Court will grant the Motion to Strike, grant the Motion for Summary Judgment, 20 and terminate the action with prejudice. 21 I. Screening of First Amended Complaint 22 In his six-count First Amended Complaint (Doc. 13), Plaintiff names the following 23 Defendants in their individual and official capacities: former Arizona Department of 24 Corrections (ADC) Director David Shinn, Deputy Wardens Lori Stickley and Ronald H. 25 Evans, Assistant Deputy Warden Edward W. Aplas, Count Movement/Special Security 26 Unit Sergeant Ashlin, and Correctional Officer (CO) III Ulises A. Kiss. 27
28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 39.) 1 On screening the First Amended Complaint under 28 U.S.C. § 1915A(a), the Court 2 determined that Plaintiff stated Eighth Amendment claims against Defendants Shinn, 3 Stickley, Kiss, Aplas, and Ashlin in Counts One, Two, Three, Five, and Six, respectively. 4 (Doc. 12 at 14–15.) The Court directed these Defendants to answer the claims against them 5 and dismissed the remaining claims and Defendants. (Id.) Defendant Ashlin was ordered 6 to respond in his individual and official capacities, and the other Defendants were ordered 7 to respond in their individual capacities only. (Id. at 16.) Defendants now move for 8 summary judgment based on failure to exhaust and on the merits. (Doc. 37.) 9 II. Motion to Strike 10 Defendants move to strike Plaintiff’s Response to the Motion for Summary 11 Judgment because “although it is captioned as a response, it is actually a discovery motion 12 filed in violation of the Court’s scheduling order” and it does not comply with Federal and 13 Local Rules of Civil Procedure, which require a separate statement of facts and specific 14 citations to the record. (Doc. 53 at 1 (citing Fed. R. Civ. P. 56, LRCiv. 56.1).) 15 Despite being advised of the requirements of a response and the consequences of 16 failing to comply (Doc. 39), Plaintiff’s Response does not address the substance of 17 Defendants’ Motion for Summary Judgment, and it does not include a separate or 18 controverting statement of facts as specified in Federal Rule 56 and Local Rule 56.1. 19 Instead, Plaintiff uses his Response to argue that he “has not had a fair opportunity to 20 pursue discovery” and asks the Court to re-open discovery for 60 days “to complete the 21 discovery process[.]” (Doc. 52 at 1, 2.) Plaintiff previously moved the Court to re-open 22 and/or extend the expired discovery deadline. (See Docs. 40, 48.) In denying those requests, 23 the Court noted that Plaintiff failed to show good cause to re-open the now-expired 24 deadlines and that “[t]he Court will not re-visit its previous ruling.” (See Docs. 41, 49.) 25 To the extent Plaintiff seeks reconsideration of the Orders denying his requests to 26 re-open discovery, reconsideration is inappropriate where a party merely asks the Court to 27 “‘rethink what the court ha[s] already thought through[,]’” which is exactly what Plaintiff 28 does in his Response. Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1 1995); LRCiv. 7.2(g)(1) (“The Court will ordinarily deny a motion for reconsideration of 2 an Order absent a showing of manifest error or a showing of new facts or legal authority 3 that could not have been brought to its attention earlier with reasonable diligence.”). 4 Plaintiff’s attempt to submit a discovery motion, well after the expiration of the 5 discovery motion deadline, and after already previously being denied similar requests, is 6 unauthorized as well as redundant, immaterial, and impertinent. Accordingly, the Motion 7 to Strike will be granted, and Plaintiff’s Response will be stricken from the record. See 8 Fed. R. Civ. P. 12(f) (a Court may strike from a pleading “any redundant, immaterial, 9 impertinent, or scandalous matter.”); LRCiv. 7.2(m)(1) (“a motion to strike may be 10 filed . . . if it seeks to strike any part of a filing or submission on the ground that it is 11 prohibited (or not authorized) by a statute, rule, or court order.”). 12 Because Plaintiff did not file a response or controverting statement of facts, the 13 Court will consider Defendants’ facts undisputed unless they are clearly controverted by 14 Plaintiff’s first-hand allegations in the verified First Amended Complaint (Doc. 11) or other 15 evidence on the record. Where the nonmovant is a pro se litigant, the Court must consider 16 as evidence in opposition to summary judgment all the nonmovant’s contentions set forth 17 in a verified complaint or motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 18 III. Summary Judgment Standard 19 A court must grant summary judgment “if the movant shows that there is no genuine 20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 21 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 22 movant bears the initial responsibility of presenting the basis for its motion and identifying 23 those portions of the record, together with affidavits, if any, that it believes demonstrate 24 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 25 If the movant fails to carry its initial burden of production, the nonmovant need not 26 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 27 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 28 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 1 contention is material, i.e., a fact that might affect the outcome of the suit under the 2 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 3 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 4 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 5 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 6 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 7 it must “come forward with specific facts showing that there is a genuine issue for trial.” 8 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 9 citation omitted); see Fed. R. Civ. P. 56(c)(1). 10 At summary judgment, the judge’s function is not to weigh the evidence and 11 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 12 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 13 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 14 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 15 IV. Relevant Facts 16 A. Conditions-of-Confinement Claims (Counts One through Three) 17 In Counts One through Three, Plaintiff brings Eighth Amendment conditions-of- 18 confinement claims against Defendants Shinn, Stickley, and Kiss, respectively. 19 Plaintiff was housed at the ASPC-Eyman, Special Management Unit (SMU) from 20 November 2019 until August 2023, when he was transferred to the ASPC-Eyman, Rynning 21 Unit; (Doc. 38, Defendants’ Statement of Facts (DSOF) ¶ 3; see Doc. 46 (Notice of change 22 of address).) In September 2020, Plaintiff was being careful, faithfully wearing his face 23 mask, and keeping his hands washed, and two officials started providing chemicals to keep 24 the ASPC-Eyman’s Special Management Unit (SMU)-1 maximum custody prisoners’ 25 living areas and showers clean. (Doc. 13 at 12–13.) Plaintiff was given a COVID-19 test, 26 and he tested negative. (Id. at 12.) 27 Plaintiff was moved to another pod in December 2020, where there was black mold 28 on the vents in the cells, officials did not provide cleaning supplies, and a majority of the 1 officials did not wear masks and gloves while handling food and escorted prisoners without 2 personal protective equipment, despite SMU’s “hands on escort practices.” (Id. at 13.) On 3 December 6, 2020, while in this pod, Plaintiff was given a second COVID-19 test. (Id. at 4 12.) The entire pod, including Plaintiff, tested positive for COVID-19. (Id.) 5 On December 30, 2020, Plaintiff submitted an informal grievance alleging that 6 cleaning supplies were not provided to him when he was transferred to his cell in the Baker 7 Cluster, the showers were not being cleaned, and that staff were not wearing masks and 8 gloves. (DSOF ¶¶ 41–42.) Defendant CO III Kiss received the informal grievance on 9 January 8, 2021, and responded that same day, advising Plaintiff that: 10 In response to your informal dated 12/30/20 I will attempt to answer your multiple concerns about informal 11 processes/Covid/living conditions/staff/showers/ect. [sic] 12 ADCRR is committed to providing inmates with clean living conditions. I will inform Shift commanders to remind their 13 staff about the importance of wearing proper PPE [personal 14 protective equipment] i.e. masks and gloves. Cleaning supplies are supplied to inmates on a regular schedule. We are 15 committed to fighting the Covid [virus] by following CDC 16 guidelines, and maintaining a clean and safe environment for residents and staff. 17 18 (DSOF ¶ 44; Doc. 38-1 at 135.) 19 Defendant Kiss did not have direct involvement in directing, controlling, or 20 implementing the cell cleaning policy, nor did he have authority to order other officers to 21 wear PPE, masks, or gloves. (DSOF ¶ 46.) Plaintiff asserts that Defendant Kiss was aware 22 of the seriousness of COVID-19 and “could have t[aken] it upon himself to provide the 23 requested cleaning supplies and cleaning tools, but did nothing.” (Doc. 13 at 14.) Plaintiff 24 also asserts that over a year later, no changes had been made, SMU maximum custody 25 prisoners did not have access to cleaning supplies and tools to clean the showers, and SMU 26 prisoners continued to contract COVID-19. (Id.) Plaintiff states that he contracted 27 COVID-19 a second time. (Id.) 28 On January 12, 2021, Plaintiff filed a Formal Grievance appealing Defendant Kiss’ 1 informal response. (Doc. 38-1 at 134.) Plaintiff complained that he was not provided 2 cleaning supplies to sanitize his cell, the showers were not being cleaned, and that staff 3 members were not wearing masks or gloves. (Id.) After reviewing Plaintiff’s Formal 4 Grievance, Defendant Deputy Warden Stickley investigated Plaintiff’s complaints by 5 speaking with operations staff and verifying that, in Wing 1, Baker cluster: (1) the showers 6 were being cleaned once a week; (2) cleaning carts were available, and logs reflected that 7 they were being used; (3) the living spaces were being cleaned by prisoner and staff 8 cleaning crews, including using chemical cleaners; and (4) cleaning supplies and soap were 9 being provided to prisoners. (DSOF ¶ 54.) On February 2, 2021, Defendant Stickley 10 responded to Plaintiff’s Formal Grievance and informed Plaintiff of the cleaning measures 11 in place, the availability of cleaning materials, and that all prisoners and staff were 12 reminded to wear face coverings and use proper PPE while on prison grounds. (Id. ¶ 59.) 13 Plaintiff asserts Defendant Stickley did not visit Plaintiff’s pod or cell to verify whether 14 her subordinates were actually following CDC guidelines, prisoners were actually being 15 provided with cleaning supplies, living areas were actually being properly cleaned, or soap 16 was actually being handed out and was readily available to prisoners. (Doc. 13 at 10.) 17 On February 8, 2021, Plaintiff appealed Defendant Stickley’s response to the ADC 18 Director. (DSOF ¶ 61.) Plaintiff’s appeal was reviewed by Appeals Office Staff at ADC’s 19 central office. (Id. ¶ 62.) Appeals Office staff investigated Plaintiff’s appeal and verified 20 that a review was conducted of SMU’s cleaning practices, which confirmed that showers 21 were being cleaned with disinfectant chemicals once a week, cleaning carts were available 22 and being used, and that disinfectant chemicals were also being used to clean common 23 areas and food traps. (Id. ¶ 63.) The investigation also confirmed that cleaning supplies 24 (both disinfectant chemicals and hand soap) were being provided to prisoners. (Id.) The 25 March 24, 2021, response to Plaintiff’s Grievance Appeal was signed by Appeals Officer 26 Melinda Stephan and by Deputy General Counsel C. R. Glynn. (Id. ¶ 64.) 27 Plaintiff asserts that, after he filed his grievance, SMU staff continually failed to 28 provide cleaning supplies to prisoners, food carts and cell door traps were not cleaned and 1 sanitized, and free soap was passed out only once in 2022 and twice a month in 2021, 2 despite COVID-19 “still being a[n] issue.” (Doc. 13 at 6–7.) Plaintiff states that, although 3 the showers get cleaned weekly, they are used daily, and that the weekly cleaning of the 4 pods consists of them being quickly swept and occasionally mopped. (Id. at 7.) During 5 his deposition, Plaintiff testified that, in 2021, bars of soap were being handed out to 6 prisoners “every two or three weeks.” (Doc. 38-1 at 34, Pl. Depo. at 31:22–32:1.) 7 Plaintiff asserts Defendant Shinn did not attempt to verify whether officials and staff 8 at SMU were “properly documenting accur[]ate information,” such as by reviewing 9 surveillance camera footage to confirm the information in the cleaning cart logs and 10 whether the SMU administration was ensuring its staff and officials were “actually 11 following” ADC regulations and were “doing everything within their authority,” as they 12 claimed to be doing. (Doc. 13 at 6.) Plaintiff alleges Shinn relied on hearsay and proceeded 13 as though the information provided by his subordinates could not be falsified. (Id.) 14 Plaintiff asserts Defendant Shinn’s response to the appeal was deliberately 15 indifferent, and his acts and omissions resulted, and continue to result, in deliberate 16 indifference to Plaintiff’s health and safety. (Id. at 7.) Plaintiff claims Defendant Shinn’s 17 inaction included a failure to instruct his subordinates on proper procedures for maintaining 18 sanitary living conditions. (Id.) Plaintiff alleges that, because of Defendant Shinn’s 19 deliberate indifference, he was forced to live in unsanitary living conditions, was forced to 20 live with roaches and rodents, and contracted COVID-19 twice. (Id. at 5.) 21 Plaintiff also contends Defendant Shinn and others “lack due care” for prisoners’ 22 health and safety and intentionally failed to provide sanitary living conditions. (Id. at 8.) 23 Plaintiff claims, “there is a blatant failure to provide [prisoners at SMU] with a 24 rod[e]nt/pest free environment” and that officials and staff at SMU intentionally fail to 25 “follow the law” and prison regulations regarding cleaning procedures. (Id.) Plaintiff 26 alleges this has been occurring for three years and is ongoing. (Id.) 27 B. Threat-to-Safety Claims (Counts Four and Five) 28 In Counts Four and Five, Plaintiff brings Eighth Amendment threat-to-safety claims 1 against Defendants Aplas and Ashlin, respectively, concerning his housing with a severely 2 mentally ill (SMI) prisoner. 3 ADC policy requires that in order for prisoners to be housed together, they be 4 “matched” based on certain characteristics. (DSOF ¶ 66.) Prisoner matches are evaluated 5 through the Arizona Correctional Information System (ACIS) which looks at several 6 factors set forth in Department Order 704, including: custody level/internal risk metrics; 7 years to release; severity of underlying conviction; security threat group status; protective 8 custody status; Do Not House With (DNHW) restrictions; disciplinary history; 9 medical/mental health scores; sex offender status; age; height/weight; and race. (Id. ¶ 67.) 10 A prisoner’s SMI status is not a factor in whether to house him with another prisoner. (Id. 11 ¶ 68.) It is not unusual for SMI prisoners to be housed with non-SMI prisoners, particularly 12 in the higher custodial levels, like the prisoner population at SMU. (Id. ¶ 69.) 13 Defendant Ashlin is not responsible for approving or denying a prisoner’s DNHW 14 requests. (Id. ¶ 73.) A prisoner inmate can submit a DNHW request by making a request 15 to a CO III or CO IV. (Id.) The request is investigated by the Special Security Unit (SSU) 16 and is either recommended or denied by the Deputy Warden or Warden. (Id.) A final 17 decision is made by the Protective Custody Unit at the ADC Central Office. (Id.) 18 In 2021 and 2022, because of the limited number of available housing assignments, 19 most cells in SMU, other than detention cells, housed two prisoners. (Id. ¶ 74.) Prisoners 20 were double bunked whenever possible. (Id.) Prisoner Isaiah Crunk was housed in Wing 21 4, D104B from October 27, 2021, through March 1, 2022. (Id. ¶ 75.) On November 30, 22 2021, Crunk was disciplined for fighting with another prisoner, and they were separated. 23 (Id.) Defendant Ashlin ran a search in ACIS for compatible prisoners to house with Crunk, 24 and Plaintiff matched. (Id. ¶ 76.) Because they matched in ACIS, Plaintiff and Crunk were 25 housed together. (Id. ¶ 77.) The housing placement was approved at the Deputy Warden 26 level, as required due to Plaintiff and Crunk’s custody status. (Id. ¶ 78.) 27 Because Crunk was a Maximum Custody sex offender, there were few possible 28 prisoners who could house with him. (Id. ¶ 79.) When Plaintiff was placed with Crunk, 1 neither of them had a DNHW restriction preventing them from being housed together. (Id. 2 ¶ 80.) Plaintiff never applied for a DNHW restriction with respect to Crunk. (Id. ¶ 81.) 3 On December 2, 2021, shortly after Defendant Ashlin, acting as “count movement,” 4 moved Plaintiff’s former cellmate to a different cell, Plaintiff was also moved to a different 5 cell with Crunk, who had been in a physical altercation with his own former cellmate earlier 6 that day. (Doc. 13 at 18.) In their shared cell, Crunk ignored Plaintiff and began pacing 7 and conversing with “voices within [Crunk’s] own mind.” (Id.) Plaintiff verbally 8 requested to move cells 48 hours later, informing his caseworker that he was not SMI and 9 asking why “count movement” continuously housed him with prisoners who had been 10 classified as SMI and who SMU administration knew had “prior documented issues with a 11 majority, if not all[,] of their former cell[]mates.” (Id. at 18-19.) 12 Plaintiff asserts the living conditions became progressively worse, “some days 13 elevating to levels of the possibility of physical altercations” between Plaintiff and his SMI 14 cellmate. (Id. at 19.) Plaintiff alleges he submitted an inmate letter seeking a “keep away” 15 on the SMI cellmate because Plaintiff wanted to avoid a physical confrontation or the 16 possibility of receiving a disciplinary infraction that could keep him confined in maximum 17 custody. (Id.) Plaintiff contends that “under normal circumstances,” when a prisoner 18 requests a “keep away,” the two prisoners are immediately separated. (Id. at 20.) Plaintiff 19 claims this did not occur. (Id.) 20 Plaintiff asserts he submitted several single-page inmate letters to Defendant Ashlin, 21 “explaining the situation and circumstances” and “requesting over and over” to be moved 22 or to be housed with a prisoner who was not classified as SMI. (Id.) Plaintiff claims he 23 even submitted several inmate letters “with other inmates” who were willing to house with 24 Plaintiff. (Id.) Plaintiff also contends he became desperate and submitted health needs 25 requests to the mental health department, requesting assistance in obtaining an emergency 26 move. (Id.) Defendant Ashlin asserts that he did not receive any inmate letters from 27 Plaintiff regarding his housing placement with Crunk. (DSOF ¶ 83.) Defendant Ashlin 28 looked into separating Plaintiff and Crunk when he was told by another CO that Plaintiff 1 had asked to move cells because of disagreements with Crunk. (Id. ¶ 84.) At the time, 2 there was no capacity to move Plaintiff or Crunk within SMU, so Defendant Ashlin was 3 not able to separate them. (Id. ¶ 85.) 4 On December 12, 2021, Plaintiff filed an informal complaint asking to be moved to 5 a cell with a non-SMI prisoner. (Id. ¶ 91; Doc. 38-1 at 148.) The informal complaint was 6 reviewed by CO IV Michelet Smith, and not by Defendant Ashlin. (DSOF ¶ 91; Doc. 38- 7 1 at 147.) In response, CO IV Smith advised Plaintiff of the factors that are considered 8 when assigning cellmates and informed Plaintiff that based on these factors, Plaintiff and 9 Crunk were found to be compatible. (Doc 38-1 at 147.) Plaintiff appealed CO IV Smith’s 10 response in a Formal Grievance dated December 28, 2021, and on January 1, 2022, 11 Defendant Associate Deputy Warden Aplas responded: 12 Investigation was conducted into your claims of condition of confinement. . . . A cell screening was conducted between you 13 and your assigned cell mate [sic] which yielded a match per 14 [ADC policy]. This placement has been reviewed by the COIV and/or Captain and approved by the unit Deputy Warden or 15 designee per [ADC policy]. 16 (Id. at 145.) Defendant Aplas was not aware of any specific safety issues between Plaintiff 17 and Crunk. (DSOF ¶ 98.) Neither Plaintiff nor Crunk had been identified to be fighting 18 each other or at risk for fighting each other. (Id.) Defendant Aplas determined, based on 19 his investigation, that Plaintiff’s placement with Crunk was appropriate and consistent with 20 ADC policy. (Id. ¶ 99.) Both prisoners were maximum security sex offenders with similar 21 amounts of time to release and similar security levels. (Id.) At the time of Plaintiff’s 22 Formal Grievance, there was not a viable option to relocate him and/or Crunk or to separate 23 them. (Id. ¶ 100.) Moving either of the prisoners at that time would have involved 24 relocating another prisoner’s cellmate and finding an appropriate housing assignment for 25 him. (Id.) This was not possible at the time. (Id.) 26 Plaintiff appealed Defendant Aplas’ decision on January 17, 2022. (Doc. 38-1 at 27 142–144.) Appeals Office Staff investigated the appeal and found the housing assignment 28 was consistent with ADC’s housing policy. (Id. ¶ 103.) In addition, the Central Office 1 investigated Plaintiff’s claim that he had submitted a DNHW request and found that no 2 such request had been submitted, and there were no documented incidents which would 3 justify implementing such a request. (Id.) The response to Plaintiff’s Grievance Appeal 4 was signed by Appeals Officer Melinda Stephan and by Legal Access Monitor Loresa 5 Purden, who were authorized by the Director to sign responses to grievance appeals. (Id. 6 ¶ 104.) Defendant Shinn was not involved in the investigation or resolution of this 7 grievance, and it was not brought to his attention. (Id. ¶ 105.) 8 On March 1, 2022, when there was room to separate them, Plaintiff and Crunk were 9 transferred to different cells. (Id. ¶ 86.) 10 All in all, Plaintiff and Crunk were housed together for three months, from 11 November 30, 2021, to March 1, 2022. (Id. ¶ 88.) During that time, there were no 12 disciplinary infractions between them. (Id.) At his deposition, Plaintiff testified that he and 13 Crunk did not have a physical altercation during while they were housed together and that 14 he did not suffer a physical injury from being housed with Crunk. (Id. ¶¶ 89, 90.) 15 Plaintiff asserts that his requests to be moved were continuously denied. (Doc. 13 16 at 20.) Plaintiff claims Defendant Ashlin was deliberately indifferent to Plaintiff’s safety 17 and wellbeing when he refused to move Plaintiff or Crunk and ignored the requests by 18 Plaintiff and other prisoners to house together. (Id. at 21.) Plaintiff asserts that, instead of 19 “accommodating” Plaintiff, Defendant Ashlin “simply and intentionally” moved the 20 prisoners who were willing to house with Plaintiff out of the pod “to eliminate that option[] 21 and force” Plaintiff to house with the SMI prisoner. (Id.) 22 Plaintiff states that Defendant Ashlin, “on behalf of [SMU’s] administration,” 23 continues to create stressful living conditions for Plaintiff by continuously housing him 24 with SMI prisoners who hear voices, have “hollering” episodes and bad hygiene, and are 25 suicidal, “among other issues.” (Id. at 22.) Plaintiff asserts that Defendant Ashlin and 26 other SMU officials claim that they are following ADC regulations and that Plaintiff is 27 “compatible” with these SMI prisoners, but “in reality,” the SMI prisoners are treated 28 “wholly different” than non-SMI prisoners. (Id. at 22.) 1 Plaintiff asserts that even when there is a “clear understanding of there being a 2 housing issue,” Defendant Ashlin and the SMU staff, “in deliberate indifference and to 3 avoid resolving these issues,” tell prisoners that (a) they do not get to dictate where they 4 are housed and (b) prisoners are compatible “if the computer says the[y’re] compatible.” 5 (Id. at 23.) Plaintiff contends this forces him to live in hostile atmospheres with a 6 heightened risk of having to engage in physical altercations. (Id.) Plaintiff states that this 7 has caused him mental stress and to lose sleep, weight, and the opportunity to be 8 reclassified to a lower custody level. (Id. at 18.) He also claims this has caused him to 9 have physical altercations with prior SMI cellmates. (Id.) 10 V. Exhaustion of Administrative Remedies 11 Defendants first argue that Plaintiff failed to exhaust the portion of his Eighth 12 Amendment claims in Counts One through Three wherein he alleged that there was black 13 mold, rodents, and other pests in his pod. (Doc. 37 at 12−13.) 14 A. Legal Standard 15 Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 16 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 17 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 18 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 19 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 20 Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 21 (2002), regardless of the type of relief offered through the administrative process, Booth v. 22 Churner, 532 U.S. 731, 741 (2001). 23 The defendant bears the initial burden to show that there was an available 24 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 25 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 26 demonstrate that applicable relief remained available in the grievance process). Once that 27 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 28 fact, exhausted administrative remedies or “come forward with evidence showing that there 1 is something in his particular case that made the existing and generally available 2 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 3 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 4 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 5 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 6 If summary judgment is denied, disputed factual questions relevant to exhaustion 7 should be decided by the judge; a plaintiff is not entitled to a jury trial on the issue of 8 exhaustion. Albino, 747 F.3d at 1170-71. If a court finds that the prisoner exhausted 9 administrative remedies, that such remedies were not available, or that the failure to 10 exhaust administrative remedies should be excused, the case proceeds to the merits. Id. at 11 1171. 12 B. ADC Grievance Procedure 13 ADC’s grievance process is set forth in Department Order (DO) 802. (DSOF ¶ 19.) 14 During the time Plaintiff’s claims in this action arose, the first step in the grievance process 15 for non-medical complaints was for the prisoner to attempt to resolve the issue informally. 16 (Id. ¶ 20.) If the prisoner was unable to resolve the complaint informally, the next step of 17 the grievance procedure required the prisoner to file an Informal Grievance Form within 18 10 days of the action that caused the complaint. (Id. ¶ 21.) If the prisoner was dissatisfied 19 with the response at this stage, the prisoner had 5 days from receipt of the response to the 20 Informal Grievance Form to file a Formal Grievance with the Grievance Coordinator, who 21 would forward it to the Deputy Warden for a response. (Id. ¶ 23.) If the Prisoner was not 22 satisfied with the Deputy Warden’s response, the prisoner had 5 days to file an appeal to 23 the ADC Director. (Id. ¶ 24.) DO 802 authorizes the Director to delegate signature 24 authority for all Grievance Appeals. (Id. ¶ 25.) During the relevant time, the Director 25 delegated signature authority for responses to Inmate Grievance Appeals to the General 26 Counsel’s office. (Id. ¶ 27.) 27 C. Discussion 28 On this record, Defendants have met their burden of showing that there was an 1 administrative remedy available under DO 802 for Plaintiff to exhaust his claims. 2 Defendants have also presented evidence showing that Plaintiff did not complete the 3 grievance process with respect to his allegations of mold, rats, and pests in his housing unit. 4 The undisputed facts show that Plaintiff exhausted his claims regarding lack of cleaning 5 supplies, showers not being cleaning, staff refusing to wear PPE, and being housed with an 6 SMI prisoner. But there is no evidence that Plaintiff submitted any grievances complaining 7 about mold, rats, or pests in his unit. Moreover, Plaintiff has not presented evidence to 8 refute Defendants’ evidence that he failed to exhaust these claims, and he has not presented 9 evidence showing that the grievance process was unavailable to him. Accordingly, the 10 portion of Plaintiff’s conditions-of-confinement claim wherein he complains about mold, 11 rodents, and other pests in his housing unit is dismissed for failure to exhaust. 12 VI. Conditions-of-Confinement (Counts One through Three) 13 A. Legal Standard 14 The Eighth Amendment’s prohibition against cruel and unusual punishment 15 protects prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 16 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and 17 Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). While conditions of confinement may be, 18 and often are, restrictive and harsh, they must not involve the wanton and unnecessary 19 infliction of pain. Morgan, 465 F.3d at 1045. Prison officials have a duty to ensure that 20 prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and 21 personal safety. See Farmer, 511 U.S. at 832; Keenan v. Hall, 83 F.3d 1083, 1089 (9th 22 Cir. 1996); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). 23 To state an Eighth Amendment claim, a plaintiff must meet a two-part test. First, 24 the plaintiff must make an “objective” showing that the alleged deprivation is “sufficiently 25 serious.” Farmer, 511 U.S. at 834. To be sufficiently serious to form the basis of an Eighth 26 Amendment violation, “a prison official’s act or omission must result in the denial of ‘the 27 minimal civilized measure of life’s necessities.’” Id. (citing Rhodes, 452 U.S. at 347). 28 Second, the plaintiff must make a “subjective” showing that the prison official acted with 1 a “sufficiently culpable state of mind”; that is, that the defendant acted with deliberate 2 indifference to the plaintiff’s health or safety. Farmer, 511 U.S. at 834. To show deliberate 3 indifference, the plaintiff must establish that the defendant knew of and disregarded an 4 excessive risk to prisoner health or safety. Id. at 837. To satisfy the knowledge component, 5 “the official must both be aware of facts from which the inference could be drawn that a 6 substantial risk of serious harm exists, and he must also draw the inference.” Id. Deliberate 7 indifference is a higher standard than negligence or lack of ordinary due care for the 8 prisoner’s health or safety. Id. at 835. 9 Prison officials may avoid Eighth Amendment liability for the prisoner harm if they 10 show that: (1) “they did not know of the underlying facts indicating a sufficiently 11 substantial danger and that they were therefore unaware of a danger”; (2) “they knew the 12 underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise 13 was insubstantial or nonexistent”; or (3) they responded reasonably to the risk. Id. at 844. 14 B. Discussion 15 A complete denial of personal hygiene items violates the Eighth Amendment. See 16 Keenan v. Hall, 83 F.3d 1083, 1089-91 (9th Cir. 1996) (finding a disputed issue of fact 17 where the plaintiff alleged the defendants gave him personal hygiene items only when he 18 could pay for them and that his indigency forced him to choose between hygiene items and 19 legal supplies). Subjecting a prisoner to lack of sanitation that is severe or prolonged can 20 also rise to the level of a constitutional deprivation. Anderson v. Cnty. of Kern, 45 F.3d 21 1310, 1314 (9th Cir. 1995) (“Unquestionably, subjection of a prisoner to lack of sanitation 22 that is severe or prolonged can constitute an infliction of pain within the meaning of the 23 Eighth Amendment”). Prison officials must provide prisoners with adequate sanitation. 24 See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). If a prison official’s refusal to 25 provide adequate cleaning supplies prohibits inmates from maintaining minimally sanitary 26 cells and thereby threatens their health, it amounts to a constitutional violation. See 27 Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985). 28 1 1. Objective Prong 2 Plaintiff’s conditions-of-confinement claim is based on the alleged lack of cleaning 3 supplies, failure to clean the showers, and prison staff’s failure to wear masks and gloves. 4 Plaintiff admitted during his deposition that the showers in his unit were cleaned once per 5 week during the relevant time. “[R]outine discomfort” is “part of the penalty that criminal 6 offenders pay for their offenses against society.” Hudson v. McMillan, 503 U.S. 1, 9 7 (1992). Weekly shower cleanings do constitute an extreme deprivation that would 8 constitute a denial of the minimal civilized measure of life’s necessities. See id. 9 (“[E]xtreme deprivations are required to make out a conditions-of-confinement claim.”). 10 As such, this portion of Plaintiff’s claim is not objectively sufficiently serious to amount 11 to an Eighth Amendment violation and will be dismissed. 12 However, construing the facts in Plaintiff’s favor, assuming that cleaning supplies 13 were not readily available to prisoners, and staff members were not complying with PPE 14 requirements, a reasonable jury could find that these conditions created a substantial risk 15 of harm when considered within the context of the COVID-19 pandemic that was ongoing 16 at the time. Therefore, the Court must consider whether Defendants’ responses amounted 17 to deliberate indifference. 18 2. Subjective Prong 19 When analyzing deliberate indifference, the inquiry “must be individualized and 20 focus on the duties and responsibilities of each individual defendant whose acts or 21 omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 22 F.2d 628, 633 (9th Cir.1988); see Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). On this 23 record, the evidence does not show that Defendants Shinn, Stickley, and Kiss were aware 24 of a substantial risk of harm to Plaintiff and that each Defendant failed to act. 25 With respect to Defendant Shinn, the evidence shows that Plaintiff submitted a 26 Grievance Appeal to the ADC Central Office regarding the lack of cleaning supplies, the 27 staff’s failure to wear masks and gloves, and the failure to clean the showers in his unit. 28 However, the undisputed facts show that Defendant Shinn did not personally review, 1 investigate, or respond to the Grievance Appeal. Those duties were delegated to 2 subordinate staff who responded on his behalf. Absent facts showing that Defendant Shinn 3 was aware of facts that would have led to an inference that a substantial risk of harm 4 existed, and that he actually drew such an inference, summary judgment must be granted 5 as to the conditions-of-confinement claim against Defendant Shinn. 6 As to the claims against Defendants Kiss and Stickley, the evidence shows that their 7 only involvement with Plaintiff were their responses to his administrative grievances. As 8 previously stated, a defendant may avoid Eighth Amendment liability if the defendant 9 believed that the risk of harm was insubstantial or nonexistent or if the defendant 10 reasonably responded to the risk. Farmer, 511 U.S. at 844. This record supports such a 11 finding with respect to Defendants Kiss and Stickley. 12 Upon receiving Plaintiff’s informal grievance, Defendant Kiss told the shift 13 commanders to remind their staff about the importance of wearing proper PPE, and he 14 advised Plaintiff that cleaning supplies were given to prisoners on a regular schedule. 15 (DSOF ¶ 44; Doc. 38-1 at 135.) Defendant Kiss did not have authority to order other 16 officers to wear PPE, masks or gloves, and he was not responsible for directing or 17 implement the unit’s cell cleaning policy. (DSOF ¶ 46.) Based on his personal knowledge 18 and his particular duties and responsibilities, the record does not show that Defendant Kiss 19 drew an inference that Plaintiff was at risk of substantial harm, and the facts do not show 20 that Defendant Kiss’ response to Plaintiff’s informal grievance was unreasonable. 21 Therefore, the claim against Defendant Kiss is dismissed. 22 Likewise, when Defendant Stickley received Plaintiff’s formal grievance, she spoke 23 with the operations staff, who advised her that the showers in Plaintiff’s unit were being 24 cleaned once a week; cleaning carts were available to, and being used by, the prisoners; the 25 living spaces were being cleaned by prisoner and staff cleaning crews with chemical 26 cleaners; and cleaning supplies and soap were being provided to prisoners. (DSOF ¶ 54.) 27 This response to Plaintiff’s complaint was not unreasonable. Based on the information 28 gathered during her investigation, Defendant Stickley did not draw an inference that 1 Plaintiff faced a substantial risk of harm. Even if the information provided to Defendant 2 Stickley during her investigation was untrue or inaccurate, there is no evidence in the 3 record to show that Defendant Stickley knew or should have known that the information 4 was untrue or inaccurate. Accordingly, summary judgment will also be granted in favor of 5 Defendant Stickley. 6 VII. Threat-to-Safety (Counts Four and Five) 7 A. Legal Standard 8 Under the Eighth Amendment, prison officials must take reasonable measures to 9 guarantee the safety of prisoners. Farmer, 511 U.S. at 832. In particular, prison officials 10 have an affirmative duty “to protect prisoners from violence at the hands of other 11 prisoners.” Id. at 832. A prison official’s failure to protect a prisoner from attacks by other 12 prisoners violates the Eighth Amendment only when two elements are met: (1) the 13 objective element, which requires a prisoner to show that the complained of conditions 14 posed a “substantial risk of serious harm”; and (2) the subjective element, which requires 15 a prisoner to show that the defendant was deliberately indifferent to that risk. Farmer, 511 16 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 297–98 (1991)). A prison official is 17 deliberately indifferent “if he knows that inmates face a substantial risk of serious harm 18 and [he] disregards that risk by failing to take reasonable measures to abate it.” Farmer, 19 511 U.S. at 844. 20 Under the objective prong, “[w]hat is necessary to show sufficient harm for the 21 purposes of the Cruel and Unusual Punishment Clause depends on the claim at issue.” 22 Hudson v. McMillian, 503 U.S. 1, 8 (1992). For a failure-to-protect claim, the prisoner 23 must show that he was placed into conditions that posed a substantial risk of serious harm. 24 Farmer, 511 U.S. at 834. A prisoner need not wait until he is actually assaulted to bring an 25 Eighth Amendment claim, see id, 511 at 845; however, “[g]eneral intimidation, 26 harassment, and nonspecific threats . . . do not demonstrate a constitutionally intolerable 27 risk of harm.” Chandler v. Amsberry, No. 3:08-CV-00962-SI, 2014 WL 1323048, at *7 28 (D. Or. March 28, 2014) (citing cases). 1 The subjective prong requires “more than ordinary lack of due care for the prisoner’s 2 interest or safety.” Farmer, 511 U.S. at 835 (quotation omitted). To prove deliberate 3 indifference, a plaintiff must show that the official knew of and disregarded an excessive 4 risk to prisoner safety; the official must both be aware of facts from which the inference 5 could be drawn that a substantial risk of serious harm exists, and the official must also draw 6 the inference. Id. at 837. But the plaintiff need not show that the defendant acted or failed 7 to act believing that harm would actually befall the prisoner; “it is enough that the official 8 acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 9 842. To prove knowledge of the risk, the plaintiff may rely on circumstantial evidence; in 10 fact, the very obviousness of the risk may be sufficient to establish knowledge. Id. 11 In addition, a plaintiff alleging deliberate indifference must “demonstrate that the 12 prison official’s actions were both an actual and proximate cause of [his] injuries.” Lemire 13 v. Cal. Dep’t of Corrs. and Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). “The requisite 14 causal connection can be established not only by some kind of direct personal participation 15 in the deprivation, but also by setting in motion a series of acts by others which the actor 16 knows or reasonably should know would cause others to inflict the constitutional injury.” 17 Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978). 18 Finally, prison officials who actually knew of a substantial risk to prisoner health or 19 safety may be found free from liability if they responded reasonably to the risk, even if the 20 harm ultimately was not averted. Farmer, 511 U.S. at 844. Prison officials do not escape 21 liability, however, if the evidence shows that that they “merely refused to verify underlying 22 facts that [they] strongly suspected to be true, or declined to confirm inferences of risk that 23 [they] strongly suspected to exist.” Id. at 843 n.8. 24 B. Discussion 25 1. Objective Prong 26 Prisoners do not enjoy a constitutional right to the cellmate of their choice. See 27 Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (per curiam) (no due process right to be 28 housed with certain prisoners); Harris v. Greer, 750 F.2d 617, 618 (7th Cir. 1984) (“an 1 inmate has of course no constitutional right to the cellmate . . . of his choice.”). This is so 2 even if a prisoner’s cellmate is “annoying, offensive, strange, rude,” or an otherwise 3 undesirable living companion. Blue v. Knowlin, No. 2:09-1629 CMCRSW, 2009 WL 4 2843315, at *4 (D. S.C. Aug. 31, 2009). 5 Here, the record does not support a finding that Plaintiff was placed into conditions 6 that posed a substantial risk of serious harm. There is no evidence that Crunk directed 7 specific threats towards Plaintiff before them being housed together, and there are no facts 8 showing that Plaintiff and Crunk were involved in any previous altercations. As discussed, 9 general harassment or intimidation does not amount to a substantial risk of harm for Eighth 10 Amendment purposes. Chandler, 2014 WL 1323048, at *7; see Williams v. Wood, 223 Fed. 11 App’x 670, 671 (9th Cir. 2007) (“[S]peculative and generalized fears of harm at the hands 12 of other prisoners do not rise to a sufficiently substantial risk of serious harm to [plaintiff’s] 13 future health.”) Crunk’s SMI status and odd behavior are not sufficient to satisfy the 14 objective prong of the deliberate indifference analysis. Although a prisoner does not have 15 to wait until he is actually assaulted to bring an Eighth Amendment claim, the fact that 16 Plaintiff and Crunk shared a cell for three months without incident undercuts Plaintiff’s 17 argument that he faced a substantial risk of harm based solely on Crunk’s SMI status. 18 2. Subjective Prong 19 Moreover, the record does not show that Defendants Aplas and Ashlin knew of and 20 disregarded an excessive risk to Plaintiff’s safety. There is no evidence that Defendants 21 Aplas and Ashlin were aware of any specific safety concerns between Plaintiff and Crunk. 22 Plaintiff’s general complaints about being housed with Crunk because of his SMI status 23 were not sufficient to put Defendants or other officials on notice of a substantial risk of 24 harm. Further, because Crunk was involved in an altercation with his previous cellmate 25 was insufficient to place Defendants on notice that Crunk would have posed a specific risk 26 to Plaintiff. See Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1161 (9th Cir. 2013) 27 (finding in the case of a plaintiff who brought an Eighth Amendment claim after being 28 assaulted by his cellmate, “[t]he added fact that [plaintiff] had fought three days earlier 1 | with a member of [his cellmate’s] gang [was] not a basis to find deliberate indifference” 2| where that fight was not gang-related). Absent any evidence that Crunk posed a specific 3 | risk to Plaintiffs safety and that Defendants Aplas and Ashlin deliberately disregarded that 4| risk, Plaintiff's claims against them fail. See id. (“The record, viewed objectively and 5 | subjectively, is insufficient to preclude summary judgment on the claim that .. . prison 6| officials were deliberately indifferent to a substantial risk that” one prisoner would assault 7 | another, since the two prisoners in question “had been in general population together for 8 | an extended period with no record of any threats or problems between them.”). 9| Accordingly, summary judgment will be granted to Defendants Aplas and Ashlin.” 10| ITIS ORDERED: 11 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion for Summary Judgment (Doc. 37) and Motion to Strike (Doc. 53). 13 (2) The Motion to Strike (Doc. 53) is granted, and the Clerk of Court must 14 | strike from the record Plaintiff's Response at Doc. 52. 15 (3) | Defendants’ Motion for Summary Judgment (Doc. 37) is granted, and the Clerk of Court must terminate the action with prejudice and enter judgment accordingly. 17 Dated this 26th day of December 2023. 18 19 Mi Cla? T. df hurdle 20 Michael T. Liburdi United States District Judge 21 22 23 24 25 |—§_ A 7 _ □ No constitutional violation has been found; the Court will not address Defendant Ashlin’s qualified immunity argument. Pearson v. Callahan, 555 U.S. 223, 230-32, 235- 9g | 36 (2009) Gn deciding whether qualified immunity applies, the Court must determine: (1) whether the facts alleged show the defendant’s conduct violated a constitutional right; and (2) whether that right was clearly established at the time of the violation).