Mayer v. State of Washington

• Court: District Court, E.D. Washington
• Decided: November 3, 2022
• Docket: 2:21-cv-00269
• Status: Unknown

Opinion

1 2 3 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 4 Nov 03, 2022 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 RICHARD MAYER, 10 Plaintiff, No. 2:21-CV-00269-SAB 11 v. 12 STATE OF WASHINGTON; ORDER GRANTING 13 WASHINGTON STATE DEPARTMENT DEFENDANTS’ MOTIONS FOR 14 OF CORRECTIONS; AIRWAY SUMMARY JUDGMENT 15 HEIGHTS CORRECTIONS CENTER; 16 JARED BEERBAHN, Correction Officer; 17 JAMES R. KEY, Superintendent; 18 SANDRA A. (THOMPSON) CONNER, 19 Advanced Registered Nurse Practitioner 20 of Airway Heights Corrections Center; 21 DEBORAH TONHOFER, MD; STEVEN 22 HAMMOND, Chief Medical Officer for 23 Washington State Department of 24 Corrections; RUSTY SMITH, Head of 25 Medical for Airway Heights Corrections 26 Center; ALBERT TRIPP, City Manager 27 of City of Airway Heights; CITY OF 28 1 AIRWAY HEIGHTS; JOHN/JANE DOE 2 1, Employee of City of Airway Heights; 3 and JOHN/JANE DOES 2–10, 4 Defendants. 5 6 Before the Court are Defendant Albert Tripp’s Motion to Dismiss, ECF No. 7 14; the City Defendants’1 Motion for Summary Judgment, ECF No. 17, and 8 Motion to Strike, ECF No. 42; and the State Defendants’2 Motion for Summary 9 Judgment, ECF No. 37. The motions were considered without oral argument. 10 Plaintiff Richard Mayer is represented by Douglas Phelps. The City Defendants are 11 represented by Megan Clark. The State Defendants are represented by Katie 12 Merrill, Taylor Hennessey, and Katherine McNulty. 13 The Court has reviewed the parties’ submissions and applicable caselaw. For 14 the reasons discussed below, the parties’ respective Motions for Summary 15 Judgment are granted in part. The Motion to Strike and Motion to Dismiss are 16 denied. 17 I. Motion to Strike 18 With the Court’s leave, Mr. Mayer filed a Supplemental Brief in opposition 19 to the City Defendants’ Motion for Summary Judgment, ECF No. 41. The City 20 Defendants move to strike statements in the Supplemental Brief pursuant to the 21 sham affidavit rule. Specifically, they move to strike four assertions that they 22

23 1 The City Defendants include Defendants Albert Tripp and the City of 24 Airway Heights. 25 2 The State Defendants include Defendants Airway Heights Corrections 26 Center, Jared Beerbahn, Sandra A. (Thompson) Conner, Steven Hammond, James 27 R Key, Rusty Smith, the State of Washington, Deborah Tonhofer, and the 28 Washington State Department of Corrections. 1 allege are not supported by Mr. Mayer’s affidavit or deposition testimony. Mr. 2 Mayer did not file a response. 3 Under the “sham affidavit rule,” a party cannot create an issue of fact with 4 an affidavit that contradicts prior statements the party made under oath. Yeager v. 5 Bowlin, 693 F.3d 1076, 1079–80 (9th Cir. 2012); see Miller v. Glenn Miller 6 Prods., Inc., 454 F.3d 975, 980 (9th Cir. 2006). The rule applies to “clear and 7 unambiguous” contradictions that cannot be resolved with “a reasonable 8 explanation.” Yeager, 693 F.3d at 1080–81 (citing Cleveland v. Policy Mgmt. Sys. 9 Corp., 526 U.S. 795, 806–07 (1999)). However, the rule “should be applied with 10 caution because it is in tension with the principle that the court is not to make 11 credibility determinations when granting or denying summary judgment.” Id. at 12 1080. 13 The Court declines to invoke the sham affidavit rule. While Mr. Mayer’s 14 factual characterizations are slightly different in his Supplemental Brief and 15 affidavit, any testimonial contradictions are ambiguous. Yeager, 693 F.3d at 1080– 16 81. In this instance, striking the affidavit would tread too close to making a 17 credibility determination on summary judgment. Id. at 1080. Accordingly, the 18 motion is denied. 19 II. Motions for Summary Judgment 20 The City and State Defendants move for summary judgment under Federal 21 Rule of Civil Procedure 56. The Court concludes Defendants are entitled to 22 judgment as a matter of law on Plaintiff’s federal claims. 23 A. Facts 24 On February 17, 2016, the City Manager of the City of Airway Heights, 25 Albert Tripp, signed a Work Crew Master Agreement (“Master Agreement”) with 26 the Washington State Department of Corrections (“DOC”). The Master Agreement 27 provides master terms and conditions between the parties for offenders to provide 28 work crew services to the City. Pursuant to the Master Agreement, DOC selects 1 offenders for each work crew and provides offenders with “basic work attire, such 2 as boots, gloves, goggles and rain gear that may be needed for any project.” ECF 3 No. 19 at 7, ¶ 8. The “Project Description” for the Master Agreement further states 4 that “DOC will supply the offenders with the appropriate personal protective 5 equipment as needed for each project.” Id. at 14. However, the Master Agreement 6 also provides that the City will train offenders, supervise the work performed by 7 offenders, and provide adequate worksite instruction and direction. 8 Plaintiff Richard Mayer is a former inmate at the Airway Heights Correction 9 Center. On August 24, 2018, Mr. Mayer was on a DOC work crew picking up 10 trash. He was supervised by DOC Officer Jared Beerbohm and an employee from 11 the City. While working at a second location that day, a couple of garbage bags 12 were observed by the City employee, and Officer Beerbohm directed Mr. Mayer 13 and another inmate to pick up the trash. When Mr. Mayer went to lift the bag, he 14 was stuck by a hypodermic needle in his left pointer finger. He was wearing 15 personal protective equipment (“PPE”) during the incident, but the needle 16 penetrated through his gloves. 17 Mr. Mayer notified Officer Beerbohm, and Mr. Mayer was immediately 18 transported and provided emergency medical treatment, including prophylactic 19 medications Truvada and Rautegravir. On October 3, 2018, Mr. Mayer was 20 informed that he was given the wrong dosage of Truvada and Rautegravir, and 21 therefore, the medication would not be effective in treating him. On November 28, 22 2018, Mr. Mayer tested positive for hepatitis C. 23 On August 24, 2018, the DOC submitted a Workers’ Compensation Claim 24 on behalf of Mr. Mayer with the Washington State Department of Labor and 25 Industries (“L&I”). See ECF No. 29-1. The form was signed by Mr. Mayer. On 26 September 20, 2018, L&I approved Mr. Mayer’s claim and request for benefits, 27 stating he was entitled to “preventative treatment and testing for potential 28 exposure” to HIV and hepatitis under the industrial insurance laws through 1 September 23, 2019. ECF No. 20 at 10. Two letters from L&I were transmitted to 2 Mr. Mayer’s address on September 20 and 21, 2018, along with his inmate 3 number, stating his benefits were approved. ECF No. 20 at 9–10. Mr. Mayer 4 claims he was unaware of any workers’ compensation benefits or any other claim 5 on his behalf. The City was listed as Mr. Mayer’s employer for purposes of the 6 Workers’ Compensation Claim, as the City remitted payments to L&I in 2018 for 7 this purpose. 8 B. Legal Standard 9 Summary judgment is appropriate “if the movant shows that there is no 10 genuine dispute as to any material fact and the movant is entitled to judgment as a 11 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless 12 there is sufficient evidence favoring the non-moving party for a jury to return a 13 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 14 (1986). The moving party has the initial burden of showing the absence of a 15 genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 16 If the moving party meets its initial burden, the non-moving party must go beyond 17 the pleadings and “set forth specific facts showing that there is a genuine issue for 18 trial.” Anderson, 477 U.S. at 248. 19 In addition to showing there are no questions of material fact, the moving 20 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of 21 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled 22 to judgment as a matter of law when the non-moving party fails to make a 23 sufficient showing on an essential element of a claim on which the non-moving 24 party has the burden of proof. Celotex, 477 U.S. at 323. The non-moving party 25 cannot rely on conclusory allegations alone to create an issue of material fact. 26 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). When considering a 27 motion for summary judgment, a court may neither weigh the evidence nor assess 28 1 credibility; instead, “the evidence of the non-movant is to be believed, and all 2 justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. 3 C. Discussion 4 The City and State Defendants move for summary judgment, respectively, 5 on Mr. Mayer’s 42 U.S.C. § 1983 claims. Mr. Mayer alleges Defendants violated 6 his rights under the Fourth, Eighth, and Fourteenth Amendments to the U.S. 7 Constitution. Mr. Mayer only opposes summary judgment on his Eighth 8 Amendment claims, and thus, the remaining § 1983 claims are dismissed. In this 9 case, the Court finds there is no genuine dispute of any material fact, and 10 Defendants are entitled to summary judgment on Mr. Mayer’s Eighth Amendment 11 claims. 12 1. City Defendants 13 Mr. Mayer contends the City Defendants violated his Eighth Amendment 14 rights by: (1) a City employee’s failure to terminate work after finding hazardous 15 conditions at the work site; (2) the City Defendants’ failure to provide puncture- 16 proof gloves; and (3) the City Defendants’ failure to train. 17 A municipal defendant can be liable under the Eighth Amendment where 18 cruel and unusual punishment derives from a municipal policy or custom. Los 19 Angeles Cnty. v. Humphries, 562 U.S. 29, 36 (2010) (citing Monell, 436 U.S. at 20 691, 694); Starr, 652 F.3d at 1205–06. “In order to set forth a claim against a 21 municipality under 42 U.S.C. § 1983, a plaintiff must show that the defendant’s 22 employees or agents acted through an official custom, pattern or policy that 23 permits deliberate indifference to, or violates, the plaintiff’s civil rights; or that the 24 entity ratified the unlawful conduct.” Shearer v. Tacoma Sch. Dist. No. 10, 942 F. 25 Supp. 2d 1120, 1135 (W.D. Wash. 2013) (citing Monell v. Dep’t of Soc. Servs., 26 436 U.S. 658, 690–91 (1978)). Thus, Mr. Mayer must prove: (1) he had a 27 constitutional right of which he was deprived; (2) the City had a policy; (3) the 28 1 policy amounts to a deliberate indifference to his constitutional right; and (4) the 2 policy is the moving force behind the violation. See Gordon v. County of Orange, 6 3 F.4th 961, 973 (9th Cir. 2021). 4 Absent a formal governmental policy, a plaintiff must show a “longstanding 5 practice or custom which constitutes the standard operating procedure of the local 6 governmental entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting 7 Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). “Liability for 8 improper custom may not be predicated on isolated or sporadic incidents; it must 9 be founded upon practices of sufficient duration, frequency and consistency that 10 the conduct has become a traditional method of carrying out policy.” Id.; see also 11 Meehan v. Cty. of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (finding two 12 incidents insufficient to establish custom). 13 First, Mr. Mayer contends his Eighth Amendment rights were violated when 14 an unidentified City employee failed to suspend work after she was notified of the 15 presence of hypodermic needles. Construing the evidence in favor of Mr. Mayer, 16 the evidence shows that a City employee was present on August 24, 2018, and 17 requested that Officer Beerbohm direct Mr. Mayer and another inmate to pick up 18 trash. However, no evidence indicates the City official was alerted to, or knew of, 19 hypodermic needles or other hazardous materials at the work site. Mr. Mayer also 20 did not name the City employee in this action, and the City Defendants cannot be 21 held liable solely because the City employed an alleged tortfeasor. Humphries, 562 22 U.S. at 36. Mr. Mayer also has not alleged that Mr. Tripp had direct, supervisory 23 authority over the employee and failed to act. For these reasons, Mr. Mayer’s first 24 argument fails. 25 Second, Mr. Mayer argues the City Defendants are liable for failing to 26 provide adequate PPE, i.e., puncture-proof gloves, while Mr. Mayer was cleaning 27 up trash. The foundation for this claim is that the City Defendants maintain a 28 contractual obligation under the Master Agreement to provide PPE, and the City 1 Defendants did not provide satisfactory PPE. Assuming for the sake of argument 2 that the City Defendants failed to provide sufficient PPE to the DOC or Mr. Mayer, 3 it is evident the failure to provide PPE was an “isolated” incident and not founded 4 upon practices of “sufficient duration, frequency and consistency that the conduct 5 has become a traditional method of carrying out policy.” Trevino, 99 F.3d at 918. 6 The parties acknowledge that Mr. Mayer and other inmates had PPE while 7 picking up trash at an earlier site in the day. Mr. Mayer has not shown a 8 “longstanding practice or custom” of the City whereby it regularly deprives 9 inmates of adequate PPE for work crews. Viewing the evidence in favor of Mr. 10 Mayer, Mr. Mayer has not shown a “standard operating procedure” that amounts to 11 the City Defendants engaging in a deliberate indifference to his constitutional 12 rights. Id. 13 Third, Mr. Mayer argues that the City Defendants failed to provide him “the 14 necessary [safety] training” for trash cleanup. ECF No. 41 at 5. Mr. Mayer claims 15 he did not undergo DOC training and merely signed documents attesting he did so. 16 Mr. Mayer’s contentions do not demonstrate that the City established a policy, 17 practice, or custom to not train inmates on safety procedures or that the City 18 Defendants were otherwise deliberately indifferent to his constitutional rights. Mr. 19 Mayer has not put forth an express policy, custom, or practice of the City that 20 relates to the training of DOC inmates. The record indicates DOC provides such 21 training for work crews. Accepting Mr. Mayer’s allegations as true, any failure to 22 train Mr. Mayer in this instance was an isolated incident and was not a traditional 23 method of carrying out a policy. See Trevino, 99 F.3d at 918. Therefore, summary 24 judgment is granted. 25 2. State Defendants 26 The State Defendants are also entitled to summary judgment. Mr. Mayer 27 argues the State Defendants violated the Eighth Amendment by deliberate 28 indifference to his constitutional rights. Specifically, Mr. Mayer submits that (1) 1 the State Defendants violated his rights by failing to provide him with puncture- 2 proof gloves while cleaning up trash, and (2) Officer Beerbohm acted with 3 deliberate indifference to Mr. Mayer’s safety when he ordered him to pick up the 4 trash, because Officer Beerbohm was aware that there were needles near or in the 5 trash. 6 To establish an Eighth Amendment violation based on deliberate 7 indifference, a prisoner “must satisfy both the objective and subjective components 8 of a two-part test.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation 9 omitted). First, there must be a demonstration that the prison official deprived the 10 prisoner of the “minimal civilized measure of life’s necessities.” Id. (citation 11 omitted). Second, a prisoner must demonstrate that the prison official “acted with 12 deliberate indifference in doing so.” Id. (citation and internal quotation marks 13 omitted). A corrections officer acts with deliberate indifference only if they were 14 aware of a risk to the inmate’s health or safety and they disregarded an excessive 15 risk to inmate health and safety. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 16 2004). The corrections officer must “be aware of the facts from which the 17 inference could be drawn that a substantial risk of serious harm exists.” Id. 18 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1970)). 19 Mr. Mayer has not shown that Officer Beerbohm, or any of the State 20 Defendants, acted with deliberate indifference to Mr. Mayer’s health or safety. 21 There are no facts in the record to indicate Officer Beerbohm knew there were 22 needles in the trash he ordered Mr. Mayer to pick up. Even if there were facts to 23 show some knowledge of the presence of needles, it was not deliberate indifference 24 for Officer Beerbohm to assume that the gloves already provided to Mr. Mayer 25 offset any risk. Construing the facts in the light most favorable to Mr. Mayer, 26 Officer Beerbohm’s failure to provide adequate gloves to protect from the 27 hypodermic needle is, at most, negligence, not deliberate indifference to Mr. 28 Mayer’s constitutional rights. Mr. Mayer has not met the second element of his Eighth Amendment claim. Consequently, summary judgment is granted. 3 Having disposed of the federal claims in this action, the Court declines to retain supplemental jurisdiction over the remaining state-law claims. See 28 U.S.C. § 1367(c)(3). Therefore, the case is remanded to state court for further proceedings. Accordingly, IT IS HEREBY ORDERED: 1. The City Defendants’ Motion for Summary Judgment, ECF No. 17, is GRANTED, in part. 9 2. The State Defendants’ Motion for Summary Judgment, ECF No. 37, GRANTED, in part. 11 3. The City Defendants’ Motion to Strike, ECF No. 42, is DENIED. 12 4. Defendant Albert Tripp’s Motion to Dismiss, ECF No. 14, is 13|| DISMISSED as moot. 14 5. Plaintiff's Motion in Limine, EF No. 51, is DISMISSED as moot. 15 6. The above-captioned case is REMANDED to Spokane County Superior Court. 17 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 18|| this Order, provide copies to counsel, and CLOSE the file. 19 DATED this 3rd day of November 2022. 20 21 22 23 Sucker Ecsta 05 Stanley A. Bastian Chief United States District Judge 26 27 28 ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY AAT