Rogers v. Skinner

• Court: District Court, W.D. Washington
• Decided: May 8, 2025
• Docket: 2:23-cv-01034
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RAY CLARENCE ROGERS, CASE NO. 2:23-cv-01034-DGE-GJL 11 Plaintiff, v. REPORT AND RECOMMENDATION 12 KING COUNTY, et al., Noting Date: May 23, 2025 13 Defendants. 14

15 The District Court referred this action, filed pursuant to 42 U.S.C. § 1983, to United 16 States Magistrate Judge Grady J. Leupold. Presently pending before the Court is a Motion for 17 Summary Judgment submitted by Defendant Barbara Wakeen. Dkt. 177. 18 Plaintiff Ray Clarence Rogers, proceeding pro se and currently incarcerated at the King 19 County Correctional Facility (“KCCF” or “Jail”), brings suit against Defendant Wakeen and 20 others seeking money damages and injunctive relief. Dkt. 116. In the operative pleadings, 21 Plaintiff asserts that Defendant Wakeen, who was allegedly responsible for the safety and dietary 22 sufficiency of Jail meals, violated his constitutional rights by serving him (1) cold meals (2) with 23 dangerously high cholesterol content (3) on dirty food trays. Dkt. 116 at 24–38 (referring to 24 1 Defendant Wakeen as “the dietician”); see also Dkt. 121 (identifying Defendant Wakeen as the 2 unnamed dietician referenced by Plaintiff). 3 In the present Motion, Defendant Wakeen argues that Plaintiff’s food safety and diet 4 claims against her fail because a “bland diet” does not violate Plaintiff’s constitutional rights

5 and, in any event, she has no control over Plaintiff’s diet or how his food is served. Dkt. 177 at 6 1–2. For the reasons set forth below, the Court recommends that Defendant Wakeen’s Motion for 7 Summary Judgment (Dkt. 177) be GRANTED and Plaintiff’s claims against her be 8 DISMISSED with prejudice. 9 I. PROCEDURAL HISTORY 10 Plaintiff initially filed a Motion to Proceed in forma pauperis and attached his proposed 11 complaint on July 10, 2023. Dkt. 1. Plaintiff ultimately decided to pay the filing fee and, 12 subsequently, filed his Complaint on August 28, 2023. Dkt. 15. Plaintiff has since amended his 13 Complaint four times, most recently on July 9, 2024. Dkt. 116 (hereinafter “the Amended 14 Complaint”).

15 Defendant Wakeen is represented by separate counsel from all other Defendants in this 16 case (the “King County Defendants”). See Dkts. 37, 130, 146. Following service of the Amended 17 Complaint, the King County Defendants submitted a Motion to Dismiss for failure to state a 18 claim, which Defendant Wakeen did not join. Dkt. 143. 19 On January 21, 2025, the Court recommended granting the Motion as to all claims except 20 for Plaintiff’s claim regarding inadequate ventilation raised against Defendants Lorayne Verhelst 21 and Keith Skinner. Dkt. 166. In particular, the Court recommended Plaintiff’s food safety and 22 diet claims be dismissed against various King County Defendants for failure to state a claim. Id. 23 at 12–15. Plaintiff filed objections to this and other portions of the Report and Recommendation.

24 Dkt. 167. King County Defendants also filed objections, arguing the Court should dismiss all 1 claims against them, including Plaintiff’s inadequate ventilation claims against Defendants 2 Verhelst and Skinner. Dkt. 169. On May 7, 2025, Chief Judge David G. Estudillo adopted and 3 affirmed the Report and Recommendation in its entirety, overruling all objections thereto. Dkt. 4 192. Thus, the only claims remaining in this action are Plaintiff’s food safety and diet claims

5 against Defendant Wakeen, which are the subject of the instant Motion, and his inadequate 6 ventilation claims against Defendants Verhelst and Skinner. 7 Defendant Wakeen filed the instant Motion for Summary Judgment on March 4, 2025. 8 Dkt. 177. Plaintiff responded on March 24, 2025. Dkt. 187. Defendant Wakeen filed her Reply 9 on April 1, 2025. Dkt. 190. Thus, the instant Motion is now fully briefed and ready for 10 consideration by the Court. 11 II. BACKGROUND 12 The Court has previously set forth the underlying facts of this case in its Report and 13 Recommendation addressing the King County Defendants’ Motion to Dismiss. Dkt. 166 at 3. 14 Relevant to the present Motion, the Court addressed Plaintiff’s food safety and diet claims,

15 which allege he was regularly served (1) cold meals (2) with dangerously high cholesterol 16 content (3) on dirty food trays as follows: 17 The Fourteenth Amendment requires only that prisoners receive food adequate to maintain health, “it need not be tasty or aesthetically pleasing.” Smith v. Penzone, 18 No. CV1703892PHXDGCDMF, 2018 WL 3819126, at *5 (D. Ariz. Aug. 10, 2018) (citing LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993)). Food that 19 occasionally contains foreign objects or is sometimes served cold, while unpleasant, is not a constitutional deprivation. Id. Food that is spoiled or tainted, 20 however, is inadequate to maintain health. Smith v. Balaam, No. 321CV00123MMDCSD, 2022 WL 22270641, at *4 (D. Nev. Apr. 1, 2022) (citing 21 Keenan, 83 F.3d at 1091); see Drake v. Kernan, No. 117CV01500AWISABPC, 2018 WL 2175983, at *3 (E.D. Cal. May 10, 2018), report and recommendation 22 adopted, No. 117CV01500AWISABPC, 2018 WL 3701966 (E.D. Cal. Aug. 2, 2018) (valid claim where officers issued food “tainted with odorless, nonvisible, 23 and unknown contaminated substances” that caused plaintiff nausea, vomiting, diarrhea, and acute pain). 24 1 First, Plaintiff alleges that his food was served cold—in the “danger zone” for foodborne illnesses between 41° to 140° F. Dkt. 116 at 31. As a result, Plaintiff 2 claims he has become ill “every time that he has consumed food served with bacteria growth.” Id. at 32. Plaintiff filed grievances and notified Defendants Jellen 3 and Currier of the issues, requesting that Defendants test the temperature of the food and purchase insulated carts to transport the food, but his requests were denied, 4 and he continued to be served cold food. Id. at 32–35.

5 There is “no constitutional right to be served a hot meal.” Garnica v. Washington Dep’t of Corr., 965 F. Supp. 2d 1250, 1267 (W.D. Wash. 2013), aff’d, 6 639 F. App’x 484 (9th Cir. 2016). Even assuming the food was served cold, this fact does not demonstrate the food was per se dangerous to Plaintiff. Plaintiff does 7 not identify how long perishable food at the Jail is exposed to cooler temperatures before being served, information critical to determining the amount of bacteria 8 growth.1 Plaintiff also fails to identify how often he became sick from eating the Jail’s food, and how he knew that any illness was due to eating contaminated food. 9 Nor does Plaintiff identify any odd tastes, textures, or smells in the meals to indicate they may have spoiled. Instead, Plaintiff simply claims that the Jail served cold 10 food and he became ill from it, facts insufficient to establish a constitutional violation. 11 Second, Plaintiff alleges he was served a “monotonous egg diet” high in 12 cholesterol, putting Plaintiff at increased risk of stroke or heart attack due to his high blood pressure. Dkt. 116 at 37. When he complained about the diet, “food 13 service staff retaliated by switch[ing] Plaintiff’s medical diet to a vegan diet. When Plaintiff informed food service staff that he is not vegan, Plaintiff was switched 14 back to the monotonous egg diet.” Id. at 30.

15 Even assuming Plaintiff’s original diet was hazardous and posed a substantial risk to his health, Plaintiff offers no reason as to why he could not eat 16 the vegan alternative offered. The fact that Plaintiff was provided a viable alternate diet, and declined this diet without reason, dooms his claim. See Spahr v. Warden 17 N.N.C.C., No. 323CV00045ARTCLB, 2023 WL 4456854, at *3 (D. Nev. July 10, 2023) (no violation where plaintiff “was provided appropriate substitutes after he 18 filed a grievance”).

19 Third, Plaintiff asserts that the Jail serves food on “trays stained with black layered uncleaned filth” which “could possibly be feces.” Dkt. 116 at 31. According 20 to Plaintiff, this caused him to “not eat anything from the tray at all, which could be at least 3–5 times a week.” Id. Here, Plaintiff claims he submitted grievance 21 forms which went unaddressed by Jail officials. Id. at 34.

23 1 Food Safety Myths, Washington State Department of Health, https://doh.wa.gov/you-and-your-family/food- safety/food-safety-myths (last visited January 16, 2025) (“Perishable foods should be put in a refrigerator that is 40 degrees or below within 2 hours of preparation. If you leave food out to cool and forget about it after 2 hours, throw 24 it away. Bacteria can grow rapidly on food left out at room temperature for more than 2 hours.”). 1 Plaintiff does not describe what proportion of food trays were stained, the severity and size of the stains, or any differences in stains between trays. Nor does 2 Plaintiff describe any odd textures or smells indicating stains were not merely cosmetic wear on the trays. Without elaborating further, Plaintiff muses that the 3 stains “could possibly be feces.” Dkt. 116 at 31. Such a claim is far too conclusory to survive a motion to dismiss. Food served with old or stained equipment is not, 4 by itself, a substantial risk to a detainee’s health. See Brennan, 2018 WL 3406948, at *9 (serving and touching food with dirty gloves does not violate the constitution); 5 see also Becerra v. Kramer, No. 16 C 1408, 2017 WL 85447, at *7 (N.D. Ill. Jan. 10, 2017) (“Regarding the ‘white particles’ on the trays, Plaintiff again has failed 6 to identify any evidence that the ‘particles’ made him ill or that they were anything other than discolorations from repeated use and cleaning”). 7 Dkt. 166 at 12–15 (footnote in original). It was for these reasons that Plaintiff’s food safety and 8 diet claims against the King County Defendants were dismissed. See Dkt. 192 at 10–13, 17. 9 However, as Defendant Wakeen did not join King County Defendants in their Motion to 10 Dismiss, Plaintiff’s food safety and diet claims against her remain pending. 11 Defendant Wakeen is a registered dietician who contracts with the Washington 12 Department of Adult and Juvenile Detention to provide consultation on KCCF’s breakfast, lunch, 13 and dinner items for “mainline” diets as well as therapeutic and religious diets. Dkt. 178 at 2. In 14 the present Motion, Defendant Wakeen argues that “monotonous” food is not a violation of 15 Plaintiff’s constitutional rights and, in any event, she had no role in choosing from which menu 16 Plaintiff would eat or how his food would be served. Dkt. 177. 17 III. DISCUSSION 18 Summary judgment is appropriate when the “movant shows that there is no genuine 19 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 20 Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The central issue is 21 “whether the evidence presents a sufficient disagreement to require submission to a jury or 22 whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 23 251–52. 24 1 The moving party bears the initial burden of showing “that there is an absence of 2 evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 3 (1986). When the moving party does not bear the burden at trial, it can carry its initial burden by 4 presenting evidence that negates an essential element of the nonmoving party’s case, or by

5 establishing that the nonmovant lacks the quantum of evidence needed to satisfy its burden at 6 trial. Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 7 2000). Whereas, when the moving party bears the burden at trial, it can meet its initial burden by 8 presenting evidence sufficient to demonstrate that no reasonable trier of fact could find for the 9 nonmoving party; the evidence presented must establish beyond controversy every essential 10 element of the claim. Southern Cal. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888–89 (9th 11 Cir. 2003). 12 If the moving party, bearing the burden at trial or not, meets its initial responsibility, the 13 burden then shifts to the nonmoving party to establish a genuine issue of material fact for trial. 14 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986). Genuine

15 disputes are those for which the evidence is such that a “reasonable jury could return a verdict 16 for the nonmoving party.” Anderson, 477 U.S. at 248. Material facts are those which might affect 17 the outcome of the suit under governing law. Id. 18 A mere scintilla of evidence is insufficient to create a factual dispute. Id. at 252. 19 Likewise, assertions based merely on the nonmoving party’s belief are insufficient to oppose 20 summary judgment, as are unsupported conjecture and conclusory allegations. Hernandez v. 21 Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). In ruling on a motion for summary 22 judgment, the court must draw all reasonable inferences in favor of the nonmoving party, 23 Matsushita Elec. Indus. Co., 475 U.S. at 587, and it may not weigh the evidence or make

24 credibility determinations, Anderson, 477 U.S. at 248. 1 A. Plaintiff’s Rule 56(d) Request for Deferral of Summary Judgment 2 As an initial matter, Plaintiff argues in his response that the Motion for Summary 3 Judgment is premature because he has not had the opportunity to conduct discovery on 4 Defendant Wakeen. Dkt. 187 at 1–3. Pursuant to Fed. R. Civ. P. 56(d), a court may order a

5 continuance on a motion for summary judgment if a party submits an affidavit “showing that, 6 without Rule 56 assistance, it cannot present facts necessary to justify its claims.” Fam. Home & 7 Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). “The 8 requesting party must show: (1) it has set forth in affidavit form the specific facts it hopes to 9 elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential 10 to oppose summary judgment.” Id. 11 Plaintiff submitted a Declaration stating that he requires further discovery to show that 12 Defendant Wakeen “subjected Plaintiff to unhealthy dietary meals” and “did not have medical 13 authorization to change Plaintiff’s diet,” but Plaintiff otherwise provided no insight as to the 14 specific facts he would elicit through discovery. Dkt. 188. These requests “generically describe

15 broad categories of documents,” and will not stave off the Motion for Summary Judgment here. 16 Croy v. Ravalli Cnty., 472 F. Supp. 3d 877, 884 (D. Mont. 2020). But even if Plaintiff had 17 identified specific, existing facts, they would not be “essential” to resolving the Motion for 18 Summary Judgment. Id. As discussed below, Plaintiff’s food safety and diet claims fail as a 19 matter of law. The resolution of these claims “is dispositive without the need for further 20 discovery.” Id. 21 B. Food Safety and Diet Claims against Defendant Wakeen 22 The Court previously rejected Plaintiff’s food safety and diet claims against the King 23 County Defendants. Dkt. 166 at 12–15. In short, the Court found Plaintiff failed to plead a

24 Fourteenth Amendment violation because (1) he did not allege that Jail food was cold for long 1 enough to become dangerous; (2) he admits he was offered an alternative vegan diet to replace 2 the diet that was allegedly high in cholesterol; and (3) his allegation of dirty or stained trays did 3 not rise to the level of a constitutional violation. See supra, Part II. This reasoning is equally 4 applicable to Plaintiff’s claims against Defendant Wakeen.

5 In his Declaration, Plaintiff attempts to address the factual deficiencies highlighted by the 6 Court’s Report and Recommendation. In particular, Plaintiff states he did not allege “solely that 7 monotonous dietary meals harmed or posed harm” and, instead, he “factually alleged the 8 contents of dietary meals [is] what causes harm over long periods of time.” Dkt. 188 at 2. This 9 statement, which offers a distinction without a difference, is unpersuasive and does not 10 demonstrate the existence of a genuine factual dispute that would prevent dismissal of his claim. 11 Also, as indicated above, Plaintiff asserts that he must be permitted to obtain evidence 12 about whether Defendant Wakeen was authorized to make certain decisions about his food 13 before the claims against her may be dismissed. Id. However, because Plaintiff has not plausibly 14 alleged or otherwise demonstrated a Fourteenth Amendment violation based on the meals

15 provided to him at KCCF, it is not necessary to resolve what, if any, role or authority Defendant 16 Wakeen had with respect to those meals. 17 Finally, to the extent Plaintiff contends he is entitled to relief under the Americans with 18 Disabilities Act (“ADA”), see Dkt. 188 at 2, this argument fails for a couple reasons. Most 19 significantly, Defendant Wakeen is not a “public entity” subject to liability under the ADA. 42 20 U.S.C. § 12131(1); see Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997). In addition, 21 because Plaintiff was offered and refused an alternative diet, he cannot now claim he was denied 22 access to prison food services “by reason of” a qualifying disability. Id. (quoting 42 U.S.C. § 23 12132).

24 1 Accordingly, Plaintiff’s food safety and diet claims against Defendant Wakeen fail as a 2 matter of law and no genuine issue of fact remains. 3 IV. CONCLUSION 4 For the reasons set forth above, the undersigned recommends that Defendant Wakeen’s

5 Motion for Summary Judgment (Dkt. 177) be GRANTED and Plaintiff’s claims against 6 Defendant Wakeen be DISMISSED with prejudice.2 7 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties 8 shall have fourteen (14) days from service of this report to file written objections. See also Fed. 9 R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of 10 de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of 11 those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda 12 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time 13 limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on May 23, 14 2025, as noted in the caption.

15 Dated this 8th day of May, 2025. 16 A 17 18 Grady J. Leupold United States Magistrate Judge 19 20 21 22

23 2 If the District Court adopts the recommendation made herein, the only claims remaining in this action will be Plaintiff’s Fourteenth Amendment inadequate ventilation claims against Defendants Lorayne Verhelst and Keith 24 Skinner alleged in Count I of the Amended Complaint. Dkt. 116 at 7–23.