1 JDN 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Paul Anthony Robledo, No. CV 19-05349-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Unknown Bautista, et al., 13 Defendants.
14 15 Plaintiff Paul Anthony Robledo, who is currently confined in the Arizona State 16 Prison Complex (ASPC)-Lewis, Bachman Unit, brought this pro se civil rights action under 17 42 U.S.C. § 1983 against Correctional Officer (CO) Jeanelle Bautista and Trinity Service 18 Group (Trinity), the private company contracted with the Arizona Department of 19 Corrections, Rehabilitation, and Reentry (ADCRR) to provide meal service to prisoners. 20 (Doc. 13.) Before the Court are Defendants’ separate Motions for Summary Judgment. 21 (Docs. 187, 242.) The Court will grant Defendant Bautista’s Motion and deny Defendant 22 Trinity’s Motion without prejudice. 23 I. Background 24 In Count Two of his Third Amended Complaint, Plaintiff asserted a freedom of 25 speech claim against Defendant Bautista, who was the mail and property CO II. (Doc. 13 26 at 5.) Plaintiff alleged that when incoming mail is confiscated, the only avenue for appeal 27 is for the prisoner to file an appeal to the Complex Office of Publication Review by 28 submitting an inmate letter within 30 days of receiving notice of the confiscation. Plaintiff 1 alleged that in March 2019, Defendant Bautista confiscated a piece of Plaintiff’s mail, and 2 when Plaintiff submitted an appeal request of that confiscation, Bautista opened it, read it, 3 and responded to the appeal herself, thereby censoring and stifling Plaintiff’s attempt to 4 appeal to the Lewis Complex Office of Publication Review. (Id.) 5 In Count Three, Plaintiff alleged that Defendant Trinity has a policy and custom of 6 providing Plaintiff with an insufficient diet and, as a result, he has been diagnosed with 7 vitamin B12 deficiency anemia, and he is at risk of developing serious health problems. 8 (Id. at 7–9.) 9 On screening, the Court determined that Plaintiff sufficiently stated a procedural 10 due process claim against Defendant Bautista in Count Two and an Eighth Amendment 11 conditions-of-confinement claim against Defendant Trinity in Count Three. (Doc. 14 at 12 6.) The remaining Counts were dismissed. (Id.) 13 Defendant Bautista moves for summary judgment on the grounds that (1) Bautista 14 followed ADCRR policies that prohibit material that does not come from an authorized 15 publisher; (2) at most, Bautista made a mistake, which does not rise to a constitutional 16 violation; (3) Bautista is entitled to qualified immunity; and (4) Plaintiff is only entitled to 17 nominal damages. (Doc. 187.) 18 Defendant Trinity moves for summary judgment on the grounds that (1) Plaintiff 19 cannot establish either the objective prong or the subjective prong of an Eighth Amendment 20 claim; (2) Plaintiff cannot meet the requirements of Monell; (3) Trinity is shielded from 21 liability by qualified immunity and the good faith defense; and (4) Plaintiff is not entitled 22 to punitive damages. (Doc. 242.)1 23 II. Summary Judgment Standard 24 A court must grant summary judgment “if the movant shows that there is no genuine 25 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 26
27 1 Upon the filing of each of Defendants’ Motions for Summary Judgment, the Court issued Orders with the Notice required under Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 28 1998) (en banc), which informed Plaintiff of the requirements under Federal Rule of Civil Procedure 56 and set briefing schedules for each Motion. (Docs. 189, 244.) 1 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The 2 movant bears the initial responsibility of presenting the basis for its motion and identifying 3 those portions of the record, together with affidavits, if any, that it believes demonstrate 4 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 5 If the movant fails to carry its initial burden of production, the nonmovant need not 6 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 7 1102–03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 8 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 9 contention is material, i.e., a fact that might affect the outcome of the suit under the 10 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 11 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 12 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 13 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 14 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968); however, 15 it must “come forward with specific facts showing that there is a genuine issue for trial.” 16 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 17 citation omitted); see Fed. R. Civ. P. 56(c)(1). 18 At summary judgment, the judge’s function is not to weigh the evidence and 19 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 20 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 21 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 22 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 23 Where the nonmovant is a pro se litigant, the court must consider as evidence in opposition 24 to summary judgment all the nonmovant’s contentions set forth in a verified complaint or 25 motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 26 III. Count Two—Procedural Due Process Claim 27 A. Relevant Facts 28 On March 14, 2019, Defendant Bautista, in her position as the Property and Mail 1 Officer, was sorting through incoming mail at the ASPC-Lewis, Barchey Unit. (Doc. 188 2 ¶ 28.) The incoming mail included a letter addressed to Plaintiff. (Id. ¶ 29.) Defendant 3 Bautista confiscated a one-page document included with the letter on the ground that it 4 violated ADCRR’s policy against sexually explicit content. (Doc. 13 at 3, 5.) Plaintiff 5 asserts that the confiscated page was an advertisement with a picture of models in 6 swimsuits. (Id. at 4.) 7 Upon confiscating the page from Plaintiff’s incoming mail, Defendant Bautista 8 filled out an Inmate Property/Contraband/Disposition Tracking form and sent it to Plaintiff. 9 (Doc. 188 ¶ 31; Doc. 188-1 at 76.) The form informed Plaintiff that a page from his 10 incoming mail had been seized as contraband because it was sexually explicit pursuant to 11 Department Order (DO) 914 § 7.1. (Doc. 188 ¶ 32; Doc. 188-1 at 76.) Under DO 914 12 § 7.1, prisoners are not permitted to send, receive, or possess sexually explicit material or 13 content that is detrimental to the safe and orderly operation of the prison. (Doc. 188-1 at 14 69, DO § 914 7.1.) On the face of the form, prisoners are informed of their options as to 15 what to do with the confiscated item; the prisoner may (1) opt to donate the item to the 16 prison, (2) have the item destroyed, (3) have the item held pending an appeal, or (4) have 17 the item sent to someone else. (Doc. 188-1 at 76.) The forms states that the third option— 18 to have the item held pending an appeal—applies only for publications that are excluded 19 under DO 914, which is the policy governing prisoner mail. (Id.) If this option is chosen, 20 the prisoner must timely submit an Inmate Letter to initiate the appeal process in 21 accordance with DO 914. (Id.) Under DO 914, a prisoner may request an appeal to the 22 complex Publication Review staff by filing an Inmate Letter within 30 calendar days of 23 receipt of the notice of exclusion. (Id. at 72, DO 914 § 8.2.2.1.) 24 Defendant Bautista indicated on the form that a page from Plaintiff’s incoming mail 25 was confiscated in accordance with DO 914, Inmate Mail, and that the item seized was 26 given “Contraband Control Number L25-19, 49.” (Id. at 76.) Plaintiff chose to submit an 27 appeal. (See id.) The next day, March 15, 2019, Plaintiff submitted an Inmate Letter to 28 the Office of Publication Review, in which he wrote: Pursuant to DO 914 § 8.2.2.1, I hereby submit my appeal of the publication 1 seizure (contraband control # L25-19-49) by CO II Bautista (#10575) on 3- 2 14-2019 at ASPC-Lewis-Barchey Unit. 3 (Doc. 188-1 at 78.) Under DO 914, when an appeal is submitted to the Office of 4 Publication Review, that office may uphold the complex exclusion, overturn the complex 5 exclusion, or allow the publication but redact a part of the unauthorized content. (Id. at 73, 6 DO 914 § 8.2.2.4.) The appeal decision made by the Office of Publication Review is final. 7 (Id., DO 914 § 8.2.2.5.) 8 Plaintiff’s appeal did not go to the Office of Publication Review. Instead, Defendant 9 Bautista responded to Plaintiff’s Inmate Letter by writing on the Inmate Letter, “Letters 10 are not subject to publication review. DO 914 - 6.1 & DO 914 - 7.1.” (Id. at 78.) Defendant 11 Bautista returned the Inmate Letter to Plaintiff on March 19, 2019. (Doc. 188 ¶ 38.) 12 Upon receipt of Defendant Bautista’s response, Plaintiff initiated the prison’s 13 grievance process to complain that Defendant Bautista answered an Inmate Letter that he 14 addressed to the Office of Publication Review. (Doc. 218 ¶ 39(b); Doc. 218 at 22.) 15 Plaintiff ultimately appealed his grievance up to the Director’s office, which, on April 26, 16 2019, responded: 17 After following up with the Office of Publication Review, it was determined 18 the inmate letter and document should have been forwarded for review. Furthermore, you should have been given the opportunity to appeal any 19 decision as outlined in Department policy. 20 (Doc. 218 at 22.) 21 In a second grievance, Plaintiff complained that Defendant Bautista did not give 22 him the opportunity to appeal an exclusion to the Office of Publication and that the 23 confiscated page he wanted to appeal was misplaced by Defendant Bautista. (Id. at 23.) 24 In its May 1, 2019 response, the Director’s office responded: 25 Department policy requires that the page in question should still have the 26 opportunity to be reviewed by the Office of Publication Review. The Unit Administration will be notified to review Department policy appropriately. 27 (Id. at 23.) 28 In October 2019, Plaintiff initiated this lawsuit. (Doc. 1.) 1 B. Legal Standard 2 Prisoners have a liberty interest in sending and receiving mail, and therefore they 3 are entitled to some procedural due process when they are deprived of that mail. See Krug 4 v. Lutz, 329 F.3d 692, 696–97 (9th Cir. 2003) (a prisoner “has a liberty interest in the receipt 5 of his subscription mailings sufficient to trigger procedural due process guarantees”); 6 Procunier v. Martinez, 416 US. 396, 418–19 (1974) (“[t]he interest of prisoners and their 7 correspondents in uncensored communication by letter, grounded as it is in the First 8 Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth 9 Amendment even though qualified of necessity by the circumstance of imprisonment [and] 10 is protected from arbitrary governmental invasion”), overruled on other grounds by 11 Thornburgh v. Abbott, 490 U.S. 401 (1989). Generally, when seizing a prisoner’s mail, 12 three baseline protections must be afforded: (1) notice to the prisoner of the rejection, (2) a 13 reasonable opportunity to appeal the rejection, and (3) review by an independent 14 official. See Martinez, 416 U.S. at 418–19; Krug, 329 F.3d at 697; Frost v. Symington, 197 15 F.3d 348, 353 (1999). The Ninth Circuit has held, however, that neither “mere negligence” 16 on the part of prison officials, nor “random and unauthorized acts” are actionable as a due 17 process violation under § 1983. Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (citing 18 Daniels v. Williams, 474 U.S. 327, 330–31, 328 (1986), and Hudson v. Palmer, 468 U.S. 19 517, 532 (1984)). Instead, to support a due process violation, the deprivation must be 20 “caused by conduct pursuant to established state procedure[.]” Id. (citing Hudson, 468 U.S. 21 at 532). 22 C. Analysis 23 There is no dispute that Plaintiff was given notice that a page was confiscated from 24 his incoming mail. The evidence shows that Plaintiff attempted to appeal via an Inmate 25 Letter, in accordance with the applicable policy, DO 914. But Defendant Bautista did not 26 forward Plaintiff’s appeal to the Office of Publication Review and, instead, she denied 27 Plaintiff’s request for an appeal. Thus, Plaintiff was denied a reasonable opportunity to 28 1 appeal the rejection, and he was denied a review by an independent official. This record 2 supports that Plaintiff was denied the baseline procedural due process protections. 3 In her Motion, Defendant Bautista first argues that the excluded page from 4 Plaintiff’s incoming mail was not a publication because it did not come directly from an 5 authorized vendor, and “[o]nly decisions that withhold publications can be appealed.” 6 (Doc. 187 at 8, citing DO 914 §§ 6.4, 8.1, 8.2.) Defendant Bautista maintains that, 7 consequently, she acted pursuant to a constitutional prison policy when she informed 8 Plaintiff that he could not appeal the confiscation. (Id.) 9 As Plaintiff points out, this purported reason as to why Plaintiff could not appeal is 10 different than the reason Defendant Bautista provided when she responded to Plaintiff’s 11 Inmate Letter, which was that “letters are not subject to publication review,” and she 12 originally cited different sections within DO 914—§§ 6.1 and 7.1—to support the 13 confiscation. Defendant Bautista cannot go back now and deny Plaintiff’s appeal on 14 procedural grounds that were not raised at the time. 15 More importantly, Defendant Bautista’s assertion—that only decisions to withhold 16 publications can be appealed—is contradicted by the prison’s mail policy. Under § 2.10 17 of DO 914, newspaper clippings, magazine articles, cartoons, or copies of material from 18 the internet may be enclosed within personal mail; however, the content of that enclosed 19 material “is subject to the Publication Review process,” which is the appeal process. (Id. 20 at 61, DO 914 §§ 2.10, 8.0.) In her Motion, Defendant Bautista refers to the document that 21 was confiscated as a “magazine clipping” and as an “advertisement flier/page.” (Doc. 187 22 at 1, 4.)2 Pursuant to § 2.10, the confiscated document was subject to the Publication 23 Review appeal process. 24 This conclusion is confirmed by the Director’s responses to Plaintiff’s subsequent 25 grievances about Defendant Bautista’s action. In two grievance appeal responses on the 26 issue, the Director’s office expressly stated that, under the applicable department policy,
27 2 The confiscated document is not part of the record because, according to the 28 grievance documents, Defendant Bautista misplaced or lost the document. (Doc. 218 at 23.) 1 Plaintiff’s Inmate Letter and the confiscated document should have been forwarded for 2 review, and Plaintiff should have had the opportunity to appeal to the Office of Publication 3 Review. (Id. at 22–23.) 4 Accordingly, Defendant Bautista’s claim that Plaintiff was not entitled to appeal the 5 confiscated document, is unavailing and fails to support summary judgment. 6 Alternatively, Defendant Bautista argues that she was incorrect in failing to permit 7 Plaintiff to appeal the confiscation, but that this amounts at most to a mistake or negligence, 8 which is not a constitutional violation. (Doc. 187 at 9.) As stated, negligence on the part 9 of an employee is insufficient to support a due process claim. See Sorrels, 290 F.3d at 10 972–73; see also Daniels, 474 U.S. at 333–34 (negligence cannot support a procedural due 11 process claim). Plaintiff must show that the deprivation was caused by conduct pursuant 12 to established state procedure. See Sorrels, 290 F.3d at 972; see also Krug, 329 F.3d at 13 693, 699 (in a challenge to the prison’s practice of having a prisoner’s appeal of an 14 exclusion decision adjudicated by the same prison official who made the initial decision to 15 exclude the publication, finding that the plaintiff had a procedural due process right to have 16 the exclusion decision reviewed by a prison official other than the one who made the initial 17 decision and upholding the district court’s order that prison officials retract any internal 18 procedures inconsistent with this right). 19 The evidence shows that Defendant Bautista’s action in denying Plaintiff’s Inmate 20 Letter and preventing him from appealing the confiscation was contrary to department 21 policy and procedure. The Director’s grievance appeal responses referred to staff 22 misconduct and a confidential investigation, and informed Plaintiff that the Unit 23 Administration would be notified to review department policy. (Doc. 218 at 22–23.) Thus, 24 prison administrators did not condone Defendant Bautista’s conduct; they expressly found 25 that she did not act pursuant to policy, and a policy review was therefore required. Further, 26 Plaintiff makes no allegations that Defendant Bautista or other prison officials routinely 27 confiscated incoming documents and denied appeals such that their actions could be 28 construed as part of an unwritten policy or custom. (See Doc. 217.) 1 In sum, the record supports that Defendant Bautista’s action in confiscating 2 Plaintiff’s incoming document and denying him an opportunity for an appeal and 3 independent review was not pursuant to any established state or department procedure; 4 rather, it constituted negligence, incompetence, or a mistake, none of which support a due 5 process violation. For this reason, Defendant Bautista’s Motion for Summary Judgment 6 will be granted, and the Court need not address Bautista’s remaining arguments. 7 IV. Count Three—Conditions-of-Confinement Claim 8 A. Relevant Facts 9 Plaintiff has been in custody of the ADCRR since 2010.3 Plaintiff alleges that the 10 meals provided by Defendant Trinity are lacking in nutrients, particularly vitamin B12, and 11 are inadequate to maintain health. (Doc. 13 at 7.) Plaintiff asserts that, as a result of the 12 insufficient diet, he has developed vitamin B12 deficiency anemia. (Doc. 13 at 9.) 13 Plaintiff’s prison medical records show that in October 2019, he was diagnosed with 14 “vitamin B12 deficiency anemia, unspecified,” and in November 2019, he was diagnosed 15 with “other dietary vitamin B12 deficiency anemia,” which is documented as “due to 16 dietary cause” and is listed as a chronic condition. (Id. at 16.) Plaintiff must undergo blood 17 tests every six months, and he receives monthly vitamin B12 shots. (Doc. 246-1 ¶ 11(b); 18 Doc. 243-2 at 5, Pl. Dep. 78:1–6, May 5, 2022.) Plaintiff avers that he suffers lethargy. 19 (Doc. 246 at 4.) The monthly vitamin B12 shots, which he has received since November 20 2019, improve his symptoms for two to three weeks, until they wear off. (Doc. 243-2 at 5, 21 Pl. Dep. 79:21–80:7, 80:20-25.) 22 B. Legal Standard 23 To prevail on a claim against a private entity serving a traditional public function, a 24 plaintiff must meet the test articulated in Monell v. Department of Social Services. 436
25 3 The Court takes judicial notice of the ADCRR website, 26 https://corrections.az.gov/public-resources/inmate-datasearch (last visited Dec. 27, 2022). See Holifield v. UNUM Life Ins. Co. of Am., 640 F. Supp. 2d 1224, 1234 n.8 (C.D. Cal. 27 2009) (finding it appropriate to take judicial notice of materials and publications from the CDC website); Paralyzed Veterans of Am. v. McPherson, No. C 06-4670 SBA, 2008 WL 28 4183981, at *5 (N.D. Cal. Sept. 9, 2008) (government agency websites are often treated as proper subjects for judicial notice) (citing cases). 1 U.S. 658, 690–94 (1978); see Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2 2012) (applying Monell to private entities acting under color of state law). The plaintiff 3 must show that an official policy or custom caused the constitutional violation. Monell, 4 436 U.S. at 694. To make this showing, the plaintiff must demonstrate that (1) he was 5 deprived of a constitutional right; (2) the public entity had a policy or custom; (3) the policy 6 or custom amounted to deliberate indifference to the plaintiff’s constitutional right; and 7 (4) the policy or custom was the moving force behind the constitutional violation. Mabe 8 v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110–11 (9th Cir. 9 2001). 10 C. Analysis 11 1. Constitutional Violation 12 The Eighth Amendment’s prohibition against cruel and unusual punishment 13 protects prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 14 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and 15 Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). While conditions of confinement may be, 16 and often are, restrictive and harsh, they must not involve the wanton and unnecessary 17 infliction of pain. Morgan, 465 F.3d at 1045. Prison officials have a duty to ensure that 18 prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and 19 personal safety. See Farmer, 511 U.S. at 832; Keenan v. Hall, 83 F.3d 1083, 1089 (9th 20 Cir. 1996); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). 21 To state an Eighth Amendment claim, a plaintiff must meet a two-part test. First, 22 the plaintiff must make an “objective” showing that the alleged deprivation is “sufficiently 23 serious.” Farmer, 511 U.S. at 834. To be sufficiently serious to form the basis of an Eighth 24 Amendment violation, “a prison official’s act or omission must result in the denial of ‘the 25 minimal civilized measure of life’s necessities.’” Id. (citing Rhodes, 452 U.S. at 347). 26 Second, the plaintiff must make a “subjective” showing that the prison official acted with 27 a “sufficiently culpable state of mind”; that is, that the defendant acted with deliberate 28 indifference to the plaintiff’s health or safety. Farmer, 511 U.S. at 834. To show deliberate 1 indifference, the plaintiff must establish that the defendant knew of and disregarded an 2 excessive risk to prisoner health or safety. Id. at 837. To satisfy the knowledge component, 3 “the official must both be aware of facts from which the inference could be drawn that a 4 substantial risk of serious harm exists, and he must also draw the inference.” Id. Deliberate 5 indifference is a higher standard than negligence or lack of ordinary due care for the 6 prisoner’s health or safety. Id. at 835. 7 Prison officials may avoid Eighth Amendment liability for the harm suffered by a 8 prisoner if they show that: (1) “they did not know of the underlying facts indicating a 9 sufficiently substantial danger and that they were therefore unaware of a danger”; (2) “they 10 knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts 11 gave rise was insubstantial or nonexistent”; or (3) they responded reasonably to the risk. 12 Id. at 844. 13 “Adequate food is a basic human need protected by the Eighth Amendment.” 14 Keenan, 83 F.3d at 1091. Prisoners must be provided food that is nutritionally adequate to 15 maintain health. LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). “[I]nmates rely 16 on prison officials to provide them with adequate sustenance on a daily basis[,]” and “[t]he 17 repeated and unjustified failure to do so amounts to a serious deprivation.” Foster v. 18 Runnels, 554 F.3d 807, 814 (9th Cir. 2009). Whether food is sufficient to maintain health 19 is often determined by its nutritional and caloric values. See Florer v. Bales-Johnson, 752 20 F. Supp. 2d 1185, 1200–01 (W.D. Wash. 2010) (finding that, in light of the prisoner- 21 plaintiff’s body weight and caloric needs, the prison’s kosher meals, which provided an 22 average of 2,380–2,910 calories per day, were sufficient to maintain his health); see also 23 Green v. Ferrell, 801 F.2d 765, 770–71 (5th Cir. 1986) (finding two meals a day sufficient 24 if nutritionally and calorically adequate). 25 a. Objective Prong 26 Defendant Trinity argues that Plaintiff cannot satisfy the objective prong because 27 he has not shown that he suffered an objectively, sufficiently serious injury. (Doc. 243 at 28 7-8.) Defendant Trinity contends that Plaintiff’s symptoms constitute, at most, de minimis 1 injuries that are insufficient to support an Eighth Amendment claim, and Plaintiff cannot 2 show an affirmative link between any injury and Trinity’s conduct absent expert evidence. 3 (Id. at 8.) 4 An Eighth Amendment conditions-of-confinement claim “does not require an 5 allegation of injury that is more than de minimis.” Fields v. Ruiz, No. 1:03-CV-6364- 6 OWW DLB-P, 2007 WL 1821469, at *7 (E.D. Cal. June 25, 2007). In a conditions-of- 7 confinement claim, the objective prong looks at whether “the deprivation alleged” is 8 “sufficiently serious.” Farmer, 511 U.S. at 834. The issue is the nature of the deprivation, 9 not the injury. Fields, 2007 WL 1821469, at *7. Plaintiff is therefore not required to 10 establish more than a de minimis injury to sustain his Eighth Amendment conditions-of- 11 confinement claim. Even so, Plaintiff presents medical record evidence showing that he 12 has been diagnosed with vitamin B12 deficiency anemia that is serious enough to constitute 13 a chronic condition. (Doc. 13 at 16.) Plaintiff also alleges that he suffers lethargy and 14 must receive vitamin B12 shots once a month, which is not insignificant. (Id. at 7; Doc. 15 246 at 4.) See S. Cal. Housing Rights Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F. 16 Supp. 2d 1061, 1070 (C.D. Cal. 2005) (a declarant has personal knowledge of his or her 17 own symptoms). 18 Courts have concluded that expert testimony is not mandatory to prove a deliberate 19 indifference claim under the Eighth Amendment standard; at least in some cases, a 20 layperson can adequately understand the evidence such that expert testimony is not 21 required. See, e.g., Sanders v. York, 446 F. App’x 40, 43 (9th Cir. 2011) (deliberate 22 indifference claim did not require expert testimony); Gayton v. McCoy, 593 F.3d 610, 624 23 (7th Cir. 2010). “Proximate cause is a question to be decided by a jury[.]” Gayton, 593 24 F.3d at 624. In denying Plaintiff’s prior Motion for Court Appointed Expert Witness in 25 Count III, the Court determined that there was no showing that the issues in this case were 26 so complex that an expert was necessary to assist the trier of fact. (Doc. 99 at 5.)4 In light 27
28 4 Defendant Trinity opposed Plaintiff’s Motion for Court Appointed Expert Witness in Count III on the ground that an expert was unnecessary. (Doc. 81.) 1 of medical records documenting that Plaintiff has “vitamin B12 deficiency anemia due to 2 dietary causes,” and evidence showing that Plaintiff suffers lethargy and requires monthly 3 vitamin B12 shots, a reasonable jury could infer that the diet provided by Defendant Trinity 4 was inadequate to maintain sufficient vitamin B12 levels and Plaintiff suffered harm. (Doc. 5 13 at 7 (emphasis added).) See Foster, 554 F.3d at 813 n.2 (finding that, in light of the 6 plaintiff’s allegations that he lost weight and suffered headaches during the 23 days he was 7 denied meals, the only reasonable inference was that the meals provided were inadequate 8 to maintain health and the prisoner suffered harm under the Eighth Amendment). 9 Defendant Trinity next argues that Plaintiff cannot satisfy the objective prong 10 because he received a nutritionally sufficient amount of vitamin B12 in his diet “per all 11 applicable authority and protocols.” (Doc. 242 at 8.) In support, Defendant Trinity submits 12 the declaration of Laura Donnelly, a Trinity dietician, who avers that Trinity provides food 13 service in accordance with ADCRR policies and the ADCRR’s Diet Reference Manual, 14 and that the meals provided to Plaintiff meet or exceed the recommended nutritional 15 standard specified by Recommended Dietary Allowances from the National Academy of 16 Sciences, published in 1989, and as required by the “contract parameters.” (Doc. 243-1 at 17 4, Donnelly Decl. ¶¶ 11–12.)5 Donnelly avers that Plaintiff received a seven-day average 18 of 2.0 µg/day of B12 a day, calculated over a 6-week period of time, which is a nutritionally 19 adequate diet for incarcerated adults according to the National Institute of Health (NIH) 20 Estimated Average Intakes. (Id. ¶¶ 14–15.) 21 Donnelly’s declaration is too vague to show that the meals served to Plaintiff were 22 nutritionally adequate. As stated, whether food is sufficient to maintain health is often 23 determined by its nutritional and caloric values, yet Defendant Trinity does not proffer any 24 evidence to show the actual nutritional value of the diet served to Plaintiff. See Florer, 752 25 F. Supp. 2d at 1200–01. Donnelly’s declaration is not supported by any copies of
26 5 Plaintiff argues that Donnelly’s declaration should be suppressed because the 27 declaration is not notarized or signed pursuant to 28 U.S.C. § 1746 under penalty of perjury. (Doc. 246 at 7.) In her declaration, Donnelly “declare[d] under penalty of perjury 28 that the foregoing declaration is true and correct . . . .” (Doc. 243-1 at 6.) This declaration is sufficient even without citation to the statute. 1 Defendant Trinity’s menus and meals and their nutritional value. (See Doc. 243-1.) Nor 2 does Defendant Trinity provide any evidence of the “authority and protocols” on which 3 Donnelly’s declaration relies; there are no documents from the NIH or the National 4 Academy of Sciences, and there are no copies of the ADCRR Diet Reference Manual or 5 the referenced “contract parameters.” (See id.) See Fed. R. Civ. P. 56(c)(1)(A); Fed. R. 6 Civ. P. 56, advisory comm. note to 2010 amendments (“[m]aterials that are not yet in the 7 record—including materials referred to in an affidavit or declaration—must be placed in 8 the record”). On this record, Defendant Trinity fails to meet its initial evidentiary burden 9 to show that Plaintiff was provided with meals that met nutritional requirements for vitamin 10 B12, and there exists a question of fact as to the objective prong. 11 If the summary judgment movant fails to meet its initial burden of production, the 12 opposing party need not respond or produce anything. Nissan Fire, 210 F.3d at 1102–03. 13 The Court notes, however, that Plaintiff responded by producing some of the evidence 14 absent from Defendant Trinity’s Motion. Plaintiff submits a printout from the NIH 15 website, titled Vitamin B12 Fact Sheet for Health Professionals. (Doc. 246-1 at 113–122.) 16 This printout shows that the NIH’s recommended dietary allowance for vitamin B12 for 17 adults over 19 years old is 2.4 µg/day, not 2.0 µg/day. (Id. at 113–114.)6 Plaintiff argues 18 that Defendant Trinity relies on outdated recommended dietary allowances, published in 19 1989, and that, as evidenced by his NIH printout, the recommended dietary allowances 20 have evolved and currently recommend 2.4 µg/day of vitamin B12. (Doc. 246-1 at 2, 6, 21 113–122.) 22 Defendant Trinity contends that “there is no competent record evidence of what the 23 ‘most current’ R.D.A.’s [Recommended Dietary Allowance] for Vitamin B12 are, much 24 less that they apply in any way in this case.” (Doc. 248 at 4.) Defendant Trinity appears
25 6 Defendant Trinity argues that this printout is not “proper expert evidence” and 26 should be excluded under Federal Rule of Evidence 702, which governs testimony by expert witnesses. (Doc. 248 at 2.) As stated, expert testimony is not required; thus, the 27 NIH printout is not part of expert testimony and is not governed by Rule 702. Defendant Trinity does not provide any specific objection to Plaintiff’s printout evidence, nor does it 28 dispute that the printout is from the NIH website and is publicly available. The Court may take judicial notice of government agency websites. See supra n.3. 1 to dispute that the recommended dietary allowance for vitamin B12 is 2.4 µg/day, yet it 2 does not present any evidence from the NIH or the National Academy of Sciences to 3 counter Plaintiff’s evidence of the recommended dietary allowance. Contrary to Defendant 4 Trinity’s assertion, the recommended dietary allowance for vitamin B12 is relevant to this 5 case because Plaintiff alleges that Defendant Trinity’s meals provide insufficient amounts 6 of vitamin B12; in other words, he alleges that the meals do not meet the recommended 7 dietary allowance. 8 Plaintiff also submits a copy of a 6-week menu cycle, which is titled “Menu Cycle: 9 Arizona DOC Male,” and “Unit Name: Trinity Services Group.” (Doc. 246 at 24.). This 10 6-week menu cycle includes meals for 42 days, listing the items in each day’s meals and 11 listing the vitamin B12 value for each item. (Doc. 246-1 at 24–103.) Defendant Trinity 12 does not dispute that this evidence represents the 6-week menu cycle for male prisoners. 13 (See Doc. 248.) According to Plaintiff’s calculations, which Defendant Trinity does not 14 dispute, the recommended dietary allowance of 2.4 µg/day of B12 is met or exceeded on 15 just 18 out of 42 days, or 43% of the time. (Doc. 246-1 at 4, 110–111.) Plaintiff submits 16 Defendant Trinity’s Response to Interrogatories, in which it stated that “the cycle menu 17 averages served to Plaintiff fully meet all necessary Recommended Dietary Allowances.” 18 (Doc. 246-1 at 18, Resp. to Interrog. No. 1.) But Defendant Trinity does not explain how 19 meeting the recommended dietary allowance for vitamin B12 just 43% of the time would 20 satisfy the necessary requirements for vitamin B12. 21 In short, there exist questions of fact as to the recommended dietary allowance for 22 vitamin B12 and whether Plaintiff received food adequate in vitamin B12 to maintain his 23 health, i.e., whether he was denied “the minimal civilized measure of life’s necessities.” 24 Foster, 554 F.3d at 812. 25 b. Subjective Prong 26 Defendant Trinity argues that Plaintiff cannot satisfy the subjective prong because 27 there is no evidence that the meals he received were nutritionally deficient or that 28 1 Defendant Trinity was somehow aware of such a risk and disregarded it. (Doc. 242 at 9– 2 10.) 3 Whether Plaintiff received nutritionally deficient meals goes to the objective prong, 4 and as discussed above, there is a material factual dispute as to that issue. 5 In his amended pleading, Plaintiff averred that, with respect to his claim that 6 Defendant Trinity served a diet insufficient in vitamin B12 and he suffered a vitamin B12 7 deficiency as a result, he submitted a request for administrative relief and appealed that 8 request for relief to the highest level. (Doc. 13 at 7.) Defendant Trinity does not dispute 9 that Plaintiff grieved his complaint; however, they do not submit copies of Plaintiff’s 10 grievance and appeal. Consequently, there is a question of fact whether Plaintiff’s 11 grievance and appeal put Defendant Trinity on notice that Plaintiff suffered a vitamin B12 12 deficiency due to the diet served by Trinity. 13 Moreover, Defendant Trinity has knowledge of its own menus and meals and the 14 nutritional content of those meals. Donnelly avers that, as the West Region Dietician for 15 Trinity, she specializes in nutritional consultation and she designs, analyzes, and approves 16 the menus served to Plaintiff. (Doc. 243-1 at 3, Donnelly Decl. ¶¶ 4–5.) She also avers 17 that she is familiar with the recommended dietary allowances specified by the National 18 Academy of Sciences and established by the NIH. (Id. ¶¶ 12, 14.) It follows that Defendant 19 Trinity would have knowledge whether its meals meet the recommended dietary allowance 20 for vitamin B12. If Trinity’s meals do not meet the recommended dietary allowance for 21 vitamin B12, a reasonable jury could find that Defendant Trinity was aware of that fact and 22 failed to take any action to remedy it, thereby exhibiting deliberate indifference. Cf. Smith 23 v. Fischer, 500 F. App’x 59, 61–62 (2d Cir. 2012) (summary order) (affirming grant of 24 summary judgment on conditions of confinement claim, explaining that the plaintiff “failed 25 to show facts sufficient to demonstrate that [the defendants] acted with deliberate 26 indifference” where “[i]t is undisputed that prison officials offered [the plaintiff] access to 27 special diets and arranged for him to meet with a registered dietician”); Powers v. Wash. 28 Dep’t of Corrs., No. C11-5806 RLB/KLS, 2013 WL 1755790, at *14 (W.D. Wash. March 1 29, 2013). report & recommendation adopted, No. C11-5806 RBL/KLS, 2013 WL 2 1755787 (W.D. Wash. Apr. 24, 2013) (finding that the defendants responded reasonably 3 to the risk to prisoner health where evidence showed that the defendants corrected the 4 caloric values of the Ramadan meals and, when that was not sufficient, they added 5 supplements to the meals to ensure sufficient calories were provided). 6 When construing the limited available evidence in Plaintiff’s favor, there is a 7 question of fact as to whether Defendant Trinity was aware that its diet was insufficient in 8 vitamin B12 and that Plaintiff suffered a vitamin B12 deficiency as a result, and there is a 9 question of fact as to whether Defendant Trinity was deliberately indifferent to the risk to 10 Plaintiff’s health. 11 2. Policy 12 A policy is “a deliberate choice to follow a course of action” made by the officials 13 or entity “responsible for establishing final policy with respect to the subject matter in 14 question.” Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992). A policy can be one of 15 action or inaction. Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). A “custom” 16 for purposes of Monell liability is a “widespread practice that, although not authorized by 17 written law or express municipal policy, is so permanent and well-settled as to constitute a 18 custom or usage with the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). 19 “Liability for improper custom may not be predicated on isolated or sporadic incidents; it 20 must be founded upon practices of sufficient duration, frequency and consistency that the 21 conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 22 F.3d 911, 918 (9th Cir. 1996). While one or two incidents are insufficient to establish a 23 custom or practice, the Ninth Circuit has not established what number of similar incidents 24 would be sufficient to constitute a custom or policy. See Oyenik v. Corizon Health Inc., 25 696 F. App’x 792, 794 (9th Cir. June 19, 2017) (a reasonable jury could conclude that at 26 least a dozen instances of defendant Corizon denying or delaying consultations and 27 radiation treatment for cancer patient over a year amount to a custom or practice of 28 deliberate indifference) (citing Oviatt, 954 F.2d at 1478). But “[t]here is no case law 1 indicating that a custom cannot be inferred from a pattern of behavior toward a single 2 individual.” Id. Whether actions by entity officers or employees amount to a custom 3 “depends on such factors as how longstanding the practice is, the number and percentage 4 of officials engaged in the practice, and the gravity of the conduct.” Mi Pueblo San Jose, 5 Inc. v. City of Oakland, C-06-4094 VRW, 2006 WL 2850016, at *4 (N.D. Cal. Oct. 4, 6 2006). 7 Defendant argues that at no time did it maintain a policy or custom of knowingly 8 preparing meals that were nutritionally deficient. (Doc. 242 at 11.) Defendant asserts that, 9 to the contrary, it maintained a policy and practice of preparing nutritionally adequate 10 meals. (Id.) 11 Defendant relies on its own version of the facts to argue generally that Plaintiff was 12 served a diet that was sufficient in vitamin B12. (Id. at 8–9, 11.) The Court has already 13 determined that there is a question of fact as to whether the meals Plaintiff received met 14 the recommended dietary allowance of vitamin B12 and whether he suffered a vitamin B12 15 deficiency as a result. There is no dispute that the meals at issue were not isolated in nature 16 or duration; rather, the meals were pursuant to Defendant Trinity’s menu policy and have 17 been served to Plaintiff for years. Accordingly, there is a question of fact whether 18 Defendant Trinity’s policy governing meals allowed a diet insufficient in vitamin B12 to 19 be served and led to a violation of Plaintiff’s constitutional rights. See Gibson v. Cnty. of 20 Washoe, 290 F.3d 1175, 1194–95 (9th Cir. 2002) (whether a policy or custom exists is 21 normally a jury question). 22 Defendant Trinity does not address the remaining Monell elements—whether its 23 policy or custom was deliberately indifferent and whether it was the moving force behind 24 the alleged violation. (See Doc. 242.) Therefore, Defendant Trinity fails to meet its initial 25 summary judgment burden as to the claim against it. 26 D. Good Faith Defense 27 The qualified immunity defense is not available to private parties; however, they 28 can assert a “good faith” defense that closely resembles qualified immunity. Clement v. 1 City of Glendale, 518 F.3d 1090, 1097 (9th Cir. 2008); Mangeac v. Armstrong, No. CV 2 08-239-S-BLW, 2009 WL 10713025, at *7 (D. Idaho July 31, 2009) (“[t]his circuit . . . has 3 recognized a good faith defense that shields private defendants from § 1983 liability where 4 they reasonably believed they were acting in conformity with [the] law”). The Ninth 5 Circuit has extended the good faith defense to private entities. Danielson v. Inslee, 945 6 F.3d 1096, 1099–1100 (9th Cir. 2019). The good faith exception applies when the action 7 at issue was authorized by the government and “appeared permissible under local 8 ordinance and state law.” Clement, 518 F.3d at 1097. The good faith defense “permit[s] 9 private parties to rely on judicial pronouncements of what the law is, without exposing 10 themselves to potential liability for doing so.” Danielson, 945 F.3d at 1099. 11 Danielson involved Washington state employees who were not members of the 12 Union but who were nonetheless required to pay agency fees to the Union. 945 F.3d at 13 1097–98. Collection of agency fees was authorized by Washington state law and decades 14 of United States Supreme Court precedent. Id. at 1098. But in 2018, the Supreme Court 15 issued a decision holding that mandatory collection of agency fees from objectors violated 16 the First Amendment. Janus v. Am. Fed’n of State, Cty, & Mun. Emps, Council 31, 138 S. 17 Ct. 2448, 2486 (2018). The Union immediately stopped collecting agency fees from the 18 non-Union state employees. Danielson, 945 F.3d at 1097. Those non-Union state 19 employees then brought suit under § 1983 for violation of their First Amendment rights, 20 and they sought a refund of the agency fees that they alleged had been unlawfully collected 21 from non-Union members. Id. at 1098. In dismissing the plaintiffs’ claim, the Ninth 22 Circuit applied the good faith affirmative defense; “[b]ecause the Union’s action was 23 sanctioned not only by state law, but also by directly on-point Supreme Court precedent, 24 we hold that the good faith defense shields the Union from retrospective monetary liability 25 as a matter of law.” Id. at 1104. 26 In its Motion, Defendant Trinity argues that it qualifies for the good faith defense 27 “because nothing in the record suggests that they knowingly allowed Plaintiff to receive 28 nutritionally deficient meals or acted in a subjectively bad faith manner vis-à-vis Plaintiff’s 1 meals.” (Doc. 242 at 13.) Defendant Trinity asserts that because the record shows that the 2 converse is true, summary judgment should be entered based on the good faith defense. 3 (Id.) But Defendant Trinity does not cite to any governmental law or ordinance, or to any 4 court precedent, that sanctioned its actions at the time Plaintiff’s claim arose. Thus, there 5 is no explanation of how the good faith defense would apply in this instance. Moreover, 6 Defendant Trinity’s argument rests on its version of the facts, and the Court has determined 7 that there are material factual disputes as to whether Plaintiff was served a diet that 8 provided a nutritionally sufficient amount of vitamin B12. Accordingly, the good faith 9 defense is not a basis for summary judgment. 10 E. Punitive Damages 11 Defendant Trinity argues that because its alleged conduct cannot be found to be 12 “motivated by evil motive or intent, or . . . involves reckless or callous indifference to the 13 federally protected rights of others,” summary judgment should be granted as to Plaintiff’s 14 punitive damages claim. (Doc. 242 at 13–14.) 15 A request for punitive damages is not a separate claim, but rather a request for a 16 particular relief as to Plaintiff’s Eighth Amendment claim. Further, whether punitive 17 damages are warranted is an issue reserved for the jury. See Pacific Mut. Life Ins. Co. v. 18 Haslip, 111 U.S. 1, 16 (1991) (noting that, with respect to punitive damages, “[t]his has 19 been always left to the discretion of the jury, as the degree of punishment to be thus inflicted 20 must depend on the peculiar circumstances of each case”) (quotation omitted); Smith v. 21 Wade, 461 U.S. 30, 48, 54, 56 (1983) (“punitive damages are awarded in the jury’s 22 discretion”). A jury may assess punitive damages in a § 1983 action when a defendant’s 23 conduct “is shown to be motivated by evil motive or intent, or when it involves reckless or 24 callous indifference to the federally protected rights of others.” Smith, 461 U.S. at 56. 25 A reasonable jury could conclude that, in providing a diet insufficient in vitamin 26 B12 for years, Defendant Trinity’s conduct was motivated by a “reckless or callous 27 indifference to the federally protected rights of” Plaintiff, thereby warranting punitive 28 1| damages. Jd. The request for summary judgment as to punitive damages will therefore be 2| denied. 3 F. Successive Motion for Summary Judgment 4 A district court has discretion to permit successive motions for summary judgment. 5 | Hoffman v. Tonnemacher, 593 F.3d 908, 911-12 (9th Cir. 2010). A successive summary 6 | judgment motion is particularly appropriate when there is an expanded factual record. □□□ at9ll. 8 The record related to Plaintiff's conditions-of-confinement claim is extremely 9 | limited and deficient. An expanded record may be dispositive of the remaining conditions- 10 | of-confinement claim. At the least, proper summary judgment briefing with additional 11 | evidence will serve to flesh out the relevant facts and narrow the issues prior to trial. The 12 | Court will therefore permit the parties to file summary judgment motions within 20 days 13 | from the date of this Order. 14| ITIS ORDERED: 15 (1) The reference to the Magistrate Judge is withdrawn as to Defendant 16 | Bautista’s Motion for Summary Judgment (Doc. 187) and Defendant Trinity’s Motion for 17 | Summary Judgment (Doc. 242). 18 (2) Defendant Bautista’s Motion for Summary Judgment (Doc. 187) is granted; 19 | Count Two is dismissed with prejudice. 20 (3) Bautista is dismissed as a Defendant. 21 (4) Defendant Trinity’s Motion for Summary Judgment (Doc. 242) is denied. 22 (5) | Within 20 days from the date of this Order, the parties may file new motions 23 | for summary judgment. 24 Dated this 4th day of January, 2023. 25 26 a 3 27 28 James A. Teil Org Senior United States District Judge