Sekerke v. Olsen

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH WAYNE SEKERKE, Case No.: 3:20-cv-1045-JO-AHG

12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 vs. MOTION FOR SUMMARY JUDGMENT 14 15 A. ARKWRIGHT, 16 Defendant. 17 18 19

20 On June 5, 2020, Plaintiff Keith Sekerke, currently proceeding pro se and in forma 21 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. See Dkt. 1 (“Compl.”). 22 In his complaint, Sekerke claims that Lieutenant Adam Arkwright violated his 23 constitutional right to humane conditions of confinement while he was housed at the San 24 Diego County Jail (“SDCJ”). Id. On March 9, 2023, Lieutenant Arkwright filed a motion 25 26 27 28 1 for summary judgment. Def.’s Mot. Summ. J., Dkt. 75. For the reasons discussed below, 2 the Court grants Defendant’s motion for summary judgment. 3 I. BACKGROUND 4 Plaintiff filed this suit to complain of inhumane conditions that he suffered while 5 detained in the Administrative Segregation2 Unit (“Ad-Seg”) of the San Diego County 6 Jail.3 During his detention, the County placed him in Ad-Seg on two separate occasions. 7 The County first housed Sekerke in Ad-Seg from July 8, 2019, to August 16, 2019, while 8 he was a pretrial detainee. Frushon Decl. ¶ 21. He was convicted of his charge on 9 September 12, 2019, and, subsequently, placed in Ad-Seg a second time from November 10 27, 2019, to March 10, 2020. LOE Ex. A, Sekerke Dep. 26:10-18; LOE Ex. B; Frushon 11 Decl. ¶ 21. He alleges that, during both of his stays in Ad-Seg, he suffered harm as a result 12 of the deplorable conditions caused by mentally ill inmates being “warehoused” in the Ad- 13 Seg units. Compl. ¶¶ 5, 8. He asserts that these mentally ill inmates spread feces and urine 14 across the prison’s walls, tiers, and showers and constantly banged on metal sinks, desks, 15 and bunks, creating a cacophony of noise for significant periods of time. Id. at ¶¶ 5, 9. 16 Defendant, on the other hand, contends that “incarcerated persons with acute mental health 17 needs [were] housed in different areas of the jail from the module in which Plaintiff was 18 housed.” Arkwright Decl. ¶ 20. 19 Plaintiff contends that Lieutenant Arkwright was aware of the inhumane conditions 20

21 22 1 On March 13, 2023, the Court notified Plaintiff of the requirements for opposing summary judgment pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Albino v. Baca, 747 23 F.3d 1162 (9th Cir. 2014) (en banc). Dkt. 76.

24 2 Ad-Seg is a separate and secure housing space within the Jail. It is used to house inmates “who 25 are determined to be prone to activity or behavior that is criminal in nature or disruptive to facility operations.” Frushon Decl. ¶ 10. 26 3 “A plaintiff's verified complaint may be considered as an affidavit in opposition to summary 27 judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000); See also McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 28 1 that Plaintiff suffered during his first Ad-Seg placement but failed to remedy the situation. 2 Sekerke claims that, on July 16, 2019, he told Arkwright about noisy and unsanitary 3 conditions while Arkwright was touring the San Diego County Jail. LOE Ex. A, Sekerke 4 Depo 67:13–69:5. At the time of this conversation, Arkwright worked at the George Bailey 5 Detention Facility in Otay Mesa and had no position or authority at the SDCJ. Arkwright 6 Decl. ¶¶ 4, 11, 12. Because Arkwright was about to start a new position as the SDCJ Jail 7 Population Management Unit (“JPMU”) Lieutenant, he accompanied the outgoing JPMU 8 Lieutenant Coyne to shadow her as she responded to a complaint by Sekerke regarding his 9 Ad-Seg placement. Id. at ¶ 14. Sekerke testifies that, during this conversation, Arkwright 10 responded to his complaints by saying that there would be no changes to the way that 11 inmates were housed at the SDCJ. Compl. ¶ 10; LOE Ex. A, Sekerke Depo 69:6–18. While 12 Defendant disputes that he responded in this fashion, both parties agree that this exchange 13 included a discussion of noisy conditions. Arkwright Decl. ¶ 18; LOE Ex. A, Sekerke 14 Depo 67:13–69:5. 15 Before Arkwright assumed his new position at the San Diego County Jail, the 16 appropriate officers had already denied Sekerke’s grievances regarding his first Ad-Seg 17 stay. On July 17, Lieutenant Coyne denied Sekerke’s grievance challenging his placement 18 in Ad-Seg on account of Sekerke’s previous violations of prison rules and his disrespectful 19 attitude towards staff. LOE Ex. E at 8. Plaintiff appealed, and Captain Kneeshaw denied 20 the appeal of the grievance on July 18. Id. at 10. Arkwright started his new position at the 21 SDCJ on July 19, the day after this final denial. Arkwright Decl. ¶ 12. At no point after 22 Kneeshaw’s final grievance denial did Sekerke file additional conditions grievance appeals 23 that reached Arkwright. See generally LOE Ex. E. Further, there is no valid record 24 evidence which indicates that Plaintiff had further conversations with Arkwright about the 25 conditions of his first stay,4 nor are there facts suggesting that Arkwright otherwise 26

27 4 While Plaintiff, in his “Declaration in Opposition to Defendant’s Motion for Summary 28 1 received information that Sekerke faced a continued risk of harm during this first stay as a 2 result of poor Ad-Seg conditions. Id. 3 Plaintiff alleges that his second placement in Ad-Seg was marked by the same 4 deplorable conditions but that he still received no relief. In order to challenge his placement 5 in the Unit and to seek improved conditions, Plaintiff submitted a grievance on January 19, 6 2020. LOE Ex. F at 1. In the grievance, Sekerke stated, among other things, “I have been 7 subjected to harsh conditions, retaliation by staff, and unfair exposure to severely mentally 8 ill who throw feces and urine, and my own mental health is deteriorating.” Id. In response 9 to this grievance, Sergeant Jackson, an officer in the housing conditions department, 10 physically inspected Plaintiff’s claims regarding mentally ill inmates, feces, and excessive 11 noise. Jackson Decl. ¶ 15. Sergeant Jackson’s job duties included monitoring and fixing 12 unsafe and unsanitary conditions within the housing units. Id. at ¶ 3. Jackson then 13 responded to Sekerke’s grievance, stating “[a]s it pertains to your exposure to mentally ill 14 inmates, I want to inform you that . . . there is no one in your assigned housing meeting the 15 requirements for acute psychiatric services.” LOE Ex. F at 3. 16 Arkwright, the San Diego JMPU Lieutenant at this time, ultimately received 17 Plaintiff’s complaints about the conditions of his second Ad-Seg stay through the grievance 18 appeal process. After receiving the denial from Jackson, Plaintiff appealed5 his grievance 19 to both Lieutenant Buchanan, a “Watch Commander,” and Defendant Arkwright. Id. at 8– 20 9. In these appeals, Sekerke primarily argued against his Ad-Seg placement but also briefly 21

22 not include necessary information about when these conversations took place or what was discussed— 23 whether these discussions concerned his first or second Ad-Seg stay, and what was relayed, if anything, about the conditions. Thus, Sekerke’s conclusory statement about further conversations from Arkwright 24 is too vague to create a genuine dispute of fact. F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 25 1171 (9th Cir. 1997), as amended (Apr. 11, 1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.”) (citing 26 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); United States v. One Parcel of Real Property, 904 F.2d 487, 492 n. 3 (9th Cir. 1990)). 27 5 Grievance number 204000121 was routed to Lieutenant. Buchanan, and number 204000123 to 28 1 addressed the conditions in the Unit by complaining as follows: “subjected [sic] to severely 2 mentally ill, banging, yelling and feces is [] unconstitutional.” Id. As the JPMU 3 Lieutenant, Arkwright was tasked with assigning and overseeing inmate placement 4 decisions such as whether inmates were housed in Ad-Seg or in General Population. 5 Arkwright Decl. ¶ 7. Neither he, nor anybody else in the JMPU section, was responsible 6 for supervising, monitoring, or remedying the housing conditions within the various SDCJ 7 units; these responsibilities fell within the purview of the housing conditions chain of 8 command. Id. at ¶¶ 7, 10; Jackson Decl. ¶ 11. Nevertheless, upon receiving Sekerke’s 9 appeal concerning both the placement decision and the inhumane conditions, Arkwright 10 followed up on both concerns. LOE Ex. F at 11. He responded to Sekerke’s concerns that 11 mentally ill inmates were causing unsanitary conditions by reviewing Sergeant Jackson’s 12 lower-level response which stated that “[a]s it pertains to your exposure to mentally ill 13 inmates, I want to inform you that . . . currently there is no one in your assigned housing 14 meeting the requirements for acute psychiatric services.” Id. at 3. Based on Jackson’s 15 response and Arkwright’s independent knowledge that Sergeant Jackson routinely visited 16 and monitored the SDCJ housing units, including Ad-Seg, for unsafe and unsanitary 17 conditions, he ultimately determined that Sekerke’s assertions regarding the conditions in 18 Ad-Seg were unfounded. Id.; See also Arkwright Decl. ¶ 35. 19 Plaintiff filed this case on June 6, 2020, naming Lieutenant Arkwright, Deputy 20 Olsen, and Deputy Lawson as parties. While Sekerke had previously filed a lawsuit6 21 against Deputy Olsen for retaliation, he expressly stated that he was “not seeking relief for 22 a retaliation claim” as part of this case. Dkt. 1 at 4. On September 2, 2020, and May 12, 23 2022, the Court issued orders that dismissed all claims and defendants except the 24 Fourteenth and Eighth Amendment conditions of confinement claims against Lieutenant 25 Arkwright. Dkts. 4, 22. Defendant Arkwright, in filing this motion for summary judgment, 26

27 6 On January 7, 2019, Plaintiff filed a lawsuit alleging retaliation against Deputy Olsen, Sekerke v. 28 1 seeks to dismiss the two remaining claims against him. 2 II. LEGAL STANDARD 3 Summary judgment is proper where the pleadings, discovery and affidavits show 4 that there is “no genuine dispute as to any material fact and the movant is entitled to 5 judgment as a matter of law.” Fed. R. Civ. P. 56(a). While a plaintiff has the burden of 6 proof at trial, the moving party bears the initial burden of informing the court of the basis 7 for their motion and of identifying the portions of the record that demonstrate an absence 8 of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 9 (1986). A fact is material if it might affect the outcome of the lawsuit under governing 10 law, and a dispute about such a material fact is genuine “if the evidence is such that a 11 reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 12 Lobby, Inc., 477 U.S. 242, 248 (1986). 13 If defendant meets his initial responsibility, the burden then shifts to the plaintiff to 14 establish a genuine dispute as to any material facts that exist. Matsushita Elec. Indus. Co. 15 v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of this factual 16 dispute, the plaintiff must present evidence in the form of affidavits and/or admissible 17 discovery material to support his contention that a genuine dispute of material fact exists. 18 See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. “A plaintiff's verified 19 complaint may be considered as an affidavit in opposition to summary judgment if it is 20 based on personal knowledge and sets forth specific facts admissible in evidence.” Lopez 21 v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000); See also McElyea v. Babbitt, 833 F.2d 196, 22 197 (9th Cir. 1987). 23 When handling pro se cases, district courts must “construe liberally motion papers 24 and pleadings filed by pro se inmates and . . . avoid applying summary judgment rules 25 strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However, if plaintiff 26 “fails to properly support an assertion of fact or fails to properly address [Defendant’s] 27 assertion of fact, as required by Rule 56(c), the court may . . . consider the fact undisputed 28 for purposes of the motion . . ..” Fed. R. Civ. P. 56(e)(2). Plaintiff, as the opposing party, 1 may not rest solely on conclusory allegations of fact or law. Berg v. Kincheloe, 794 F.2d 2 457, 459 (9th Cir. 1986). 3 III. EVIDENTIARY OBJECTIONS 4 First, Defendant objects to the admissibility of certain statements made in Plaintiff’s 5 “Declaration in Opposition to Defendant’s Motion for Summary Judgment” on the grounds 6 that they constitute improper fact testimony containing legal conclusions and statements 7 not based on personal knowledge. Def’s. Objs. to Pl’s. Opp’n. at 1–8, 12–13. Plaintiff, a 8 pro se inmate, submitted this single document in response to Defendant’s summary 9 judgment motion. This document contains both fact testimony and legal arguments, 10 including arguments that Arkwright knew of inhumane conditions within Ad-Seg and 11 intentionally decided not to remedy them, and assertions that Arkwright submitted false 12 testimony in support of his motion. Id. at 5, 12. The Court construes Plaintiff’s Declaration 13 in Opposition as an affidavit in part and an opposition brief in part. Considering the dual 14 purpose of this document and the liberal standards for analyzing pro se submissions, the 15 Court overrules Defendant’s objection to statements they identify on the grounds that they 16 are improper fact testimony. Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (“We 17 have . . . held consistently that courts should construe liberally motion papers and pleadings 18 filed by pro se inmates and should avoid applying summary judgment rules strictly.”) 19 (quoting Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010); Lew v. Kona Hosp., 754 20 F.2d 1420, 1423 (9th Cir. 1985) (stating that courts should “treat the opposing party’s 21 papers more indulgently than the moving party’s papers”) (citing Doff v. Brunswick Corp., 22 372 F.2d 801, 804 (9th Cir. 1966)). Instead, the Court will parse which parts of the 23 document offer legal argument and which offer fact testimony and perform its gatekeeping 24 function of only considering admissible evidence based on personal knowledge. 25 Second, Defendant raises relevance objections to Sekerke’s statements concerning 26 (1) various officers’ retaliatory reasons for placing him in Ad-Seg and (2) a March 2020 27 incident in which Plaintiff was “gassed” with urine after being removed from Ad-Seg. Id. 28 at 9-11. The Court sustains these objections because both categories of information are 1 irrelevant to whether Arkwright was deliberately indifferent to Plaintiff’s poor housing 2 conditions while in Ad-Seg. First, whether various officers placed Plaintiff in Ad-Seg for 3 improper or retaliatory reasons is not relevant to whether Arkwright was deliberately 4 indifferent to the poor conditions within the Unit. Second, the “gassing” incident, in which 5 a fellow inmate threw a bottle of urine into his cell, is not relevant because it took place 6 after Plaintiff was released from Ad-Seg—the current litigation only touches on 7 Arkwright’s knowledge and response to conditions within Ad-Seg. The Court thus sustains 8 Defendant’s objections to statements which only touch on the alleged retaliatory housing 9 placement and the gassing event which took place after his removal from Ad-Seg. 10 Finally, Defendant raises hearsay objections to Plaintiff’s testimony regarding the 11 statements that Arkwright made in his grievance appeal responses and while visiting 12 Sekerke during his first Ad-Seg stay. Even if these out-of-court statements were offered 13 for their truth as opposed to some other purpose, the Court would overrule these objections 14 because the statements were made by a party opponent. Fed. R. Evid. § 801(d)(2). 15 IV. DISCUSSION 16 Plaintiff alleges that he suffered from unconstitutional conditions of confinement 17 during his two stays in Ad-Seg and seeks to hold Defendant Arkwright accountable for 18 knowing about these conditions yet failing to respond. While “the Constitution does not 19 require comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), conditions 20 within a prison can be actionable if they “result in the denial of ‘the minimal civilized 21 measure of life's necessities.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting 22 Rhodes, 452 U.S. at 347). Courts have held that certain conditions of confinement, such 23 as excessive noise and unsanitary conditions, fall short of constitutional requirements. 24 Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (holding that the Constitution requires 25 inmates to “be housed in an environment that, if not quiet, is at least reasonably free of 26 excess noise”); Anderson v. Cnty. of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995) 27 (“[S]ubjection of a prisoner to lack of sanitation that is severe or prolonged can constitute 28 an infliction of pain within the meaning of the Eighth Amendment.”). 1 Pretrial detainees claiming unconstitutional conditions of confinement must 2 establish that an official acted with deliberate indifference under the Fourteenth 3 Amendment. To do so, four elements must be satisfied: “(1) The defendant made an 4 intentional decision with respect to the conditions under which the plaintiff was confined; 5 (2) those conditions put the plaintiff at substantial risk of suffering serious harm; (3) the 6 defendant did not take reasonable available measures to abate that risk, even though a 7 reasonable officer in the circumstances would have appreciated the high degree of risk 8 involved—making the consequences of the defendant's conduct obvious; and (4) by not 9 taking such measures, the defendant caused the plaintiff's injuries.” Castro v. Cnty. Of Los 10 Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). With respect to the mens rea requirement 11 of Fourteenth Amendment deliberate indifference, a Plaintiff must show “more than 12 negligence but less than subjective intent or awareness—something akin to reckless 13 disregard.” Castro, 833 F.3d at 1071; Norbert v. City & Cnty. of San Francisco, 10 F.4th 14 918, 928 (9th Cir. 2021). In other words, the “defendant’s conduct must be objectively 15 unreasonable, a test that will necessarily turn on the facts and circumstances of each 16 particular case.” Castro, 833 F.3d at 1071. 17 Post-conviction incarcerated individuals must also prove deliberate indifference to 18 poor prison conditions under the Eighth Amendment. “The Eighth Amendment’s 19 deliberate indifference standard involves both an objective and a subjective prong. First, 20 like the Fourteenth Amendment, the alleged deprivation must be, in objective terms, 21 ‘sufficiently serious’” to rise to the level of a constitutional violation. Farmer, 511 U.S. at 22 834. Second, “the official must both know of and disregard this serious risk.” Id. at 837. 23 In other words, the evidence must show that the official failed to act even though they (1) 24 were aware of facts from which the inference could be drawn that a serious risk of 25 unconstitutional conditions existed if the prisoner’s grievances were unaddressed, and (2) 26 actually drew that inference. Id. If the evidence merely shows that a Defendant should 27 have been aware of the risk of harm, but was not, then they have not violated the Eighth 28 Amendment, no matter how severe the risk. Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1 1188 (9th Cir. 2002) (overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 2 F.3d 1060, 1076 (9th Cir. 2016)). 3 A. Conditions Posing a Substantial Risk of Serious Harm 4 Here, Plaintiff has raised a triable issue regarding his contention that he was 5 incarcerated under unconstitutional conditions which posed a sufficiently serious risk to 6 his health. The allegations of his verified complaint, which the Court can treat as evidence, 7 create a triable issue that he suffered from excessively noisy conditions and exposure to 8 fecal matter during both of his Ad-Seg placements. Rico v. Ducart, 980 F.3d 1292, 1298 9 (9th Cir. 2020) (noting that existing Ninth Circuit precedent recognizes the right to be free 10 from excess noise); Johnson v. Lewis, 217 F.3d 726, 731–32 (9th Cir. 2000) (holding that 11 prolonged exposure to feces and a lack of proper sanitation falls short of constitutional 12 standards). Defendant does not dispute that such conditions would violate the objective 13 prong under both the Fourteenth and Eighth Amendments. The Court therefore examines 14 below whether Arkwright was deliberately indifferent to these conditions under Fourteenth 15 Amendment standards during Plaintiff’s first Ad-Seg stay and under the Eighth 16 Amendment during his second stay. 17 B. Fourteenth Amendment Deliberate Indifference 18 The Court turns to whether Plaintiff has created a triable issue that Arkwright’s 19 actions were objectively unreasonable and that he demonstrated reckless disregard to 20 Plaintiff’s conditions during this first Ad-Seg stay in violation of the Fourteenth 21 Amendment. 22 Here, Plaintiff has not raised a triable issue that Arkwright acted unreasonably in 23 assuming that Sekerke’s concerns about his first Ad-Seg stay had been appropriately 24 handled by the assigned officers. The undisputed facts show that when Arkwright spoke 25 with Plaintiff in July 2019 about the conditions of his first stay, he was merely shadowing 26 Lieutenant Coyne in preparation for taking over her position and observing as she handled 27 Plaintiff’s grievance. Arkwright Decl. ¶ 14. Because he had no official position at the San 28 Diego County Jail at the time of the visit, Arkwright did not (and could not) take any action 1 in response to what Plaintiff told him about the Ad-Seg conditions. Id. at ¶ 12. By the 2 time that Arkwright began working at San Diego County Jail, Lieutenant Coyne had 3 already responded to Sekerke’s grievance regarding his placement and Captain Kneeshaw 4 had denied his appeal. Id. at ¶ 27, 29. While Sekerke filed additional grievances regarding 5 both his Ad-Seg placement and conditions of confinement, none of them reached 6 Arkwright because Sekerke did not appeal them past the first level. LOE Ex. C at 8–21. 7 Further, there is no valid evidence in the record indicating that Plaintiff had further 8 conversations with Arkwright informing him that these dangerous conditions persisted and 9 were not appropriately resolved by the grievance process. See supra, n.4. Plaintiff 10 therefore fails to create a triable issue that Arkwright received information to indicate that 11 Sekerke faced a continued risk of harm as a result of poor Ad-Seg conditions. See generally 12 LOE Ex. E. In other words, by the time Arkwright assumed his position as JPMU 13 Lieutenant at SDCJ, Plaintiff’s grievance was closed, and he had no reason to believe that 14 further action was necessary to remedy any unsafe conditions. See Grizzle v. Cnty. of San 15 Diego, 2022 WL 2805587, *6–7 (S.D. Cal. July 18, 2022) (holding that officer was not 16 objectively unreasonable in declining to investigate prior inmate complaint because officer 17 was not made aware of a continuing risk to inmate safety). Plaintiff has not raised a triable 18 issue that Arkwright acted unreasonably and in reckless disregard to his safety; the Court, 19 thus, finds that Lieutenant Arkwright is entitled to summary judgment on Plaintiff’s 20 Fourteenth Amendment deliberate indifference claim. 21 C. Eighth Amendment Deliberate Indifference 22 The Court next examines under Eighth Amendment standards whether Plaintiff has 23 created a triable issue that Lieutenant Arkwright knew Sekerke faced serious risks during 24 his second Ad-Seg placement and failed to act. 25 Contrary to Defendant’s arguments, Plaintiff raises a triable issue that Arkwright 26 knew of a risk of unsafe and unsanitary conditions within Ad-Seg. Evidence in the record 27 indicates that Arkwright was twice informed—first, when Plaintiff spoke to Arkwright 28 during his July 2019 tour of the facility, and second, when he received Plaintiff’s January 1 2020 grievance appeal—that the SDCJ Ad-Seg was excessively loud and unsanitary. LOE 2 Ex. A at 67:13–69:5; LOE Ex. F at 9. Evidence that Arkwright received these two 3 complaints about the same deplorable conditions are sufficient to create a triable issue that 4 Arkwright was aware of the substantial health and safety risk created by the Ad-Seg 5 conditions. 6 While Plaintiff creates a triable issue regarding Arkwright’s knowledge, Plaintiff’s 7 Eighth Amendment claim ultimately fails because the undisputed facts establish that 8 Arkwright did not fail to act and, in fact, took appropriate responsive action after learning 9 that Plaintiff may be suffering from excessive noise and exposure to feces. Prison officials 10 are not deliberately indifferent to a known risk or serious condition of confinement when 11 their response to this risk is reasonable and appropriate. Farmer, 511 U.S. at 844 (“[P]rison 12 officials who actually knew of a substantial risk to inmate health or safety may be found 13 free from liability if they responded reasonably to the risk, even if the harm ultimately was 14 not averted.”). Even a minimal response, such as reviewing and approving the findings 15 and conclusions of lower-level officials, can constitute a reasonable response. See Peralta 16 v. Dillard, 744 F.3d 1076 (9th Cir. 2014). In Peralta, the plaintiff complained that a 17 prison’s chief medical officer (“CMO”) was deliberately indifferent to his dental needs 18 because he merely signed off on the findings of two lower-level dentists without 19 conducting his own independent investigation of the plaintiff’s dental needs. Id. at 1086. 20 The court found no Eighth Amendment violation, holding that the CMO had acted 21 reasonably in reviewing the findings of the staff dentists and affirming their treatment 22 recommendations because the dentists had a level of expertise that the CMO did not and 23 because they personally investigated Plaintiff’s claims. Id. at 1086–87. Further, whether 24 an official’s actions and responses to a known risk are reasonable will depend on the scope 25 of their responsibilities and duties. See Lemire v. Cal. Dep’t Corrections & Rehab., 726 26 F.3d 1062 (9th Cir. 2013). In Lemire, the plaintiff alleged that five supervisory prison 27 guards were deliberately indifferent in calling an impromptu staff meeting which removed 28 all prison guards from a particular housing building, leaving it completely unsupervised. 1 Id. at 1068. One of the five supervisory guards was staffed in, and responsible for, an 2 entirely different building. Id. at 1080. The Ninth Circuit held that because she had no 3 affirmative duty to monitor or remedy an unsafe situation in a building other than her own, 4 her lack of action in preventing the conditions which led to an inmate’s suicide did not 5 amount to deliberate indifference. Id. 6 Here, the undisputed evidence shows that, after receiving Sekerke’s grievance, 7 Arkwright took reasonable responsive action by investigating and relying on the conclusion 8 of an officer with direct responsibility for housing conditions. Upon receiving Plaintiff’s 9 appeal about the feces and noise in his Ad-Seg unit, Arkwright reviewed Sergeant 10 Jackson’s first-level response to Plaintiff’s grievance. While Arkwright’s responsibilities 11 within the JPMU did not include housing conditions, he knew that Jackson’s job duties 12 included physically inspecting, monitoring, and fixing unsafe and unsanitary conditions 13 within the housing units. Arkwright Decl. ¶ 35. In reviewing Jackson’s response, 14 Arkwright learned that, in responding to Sekerke’s complaints, Jackson evaluated the 15 mental health status of the other Ad-Seg inmates and ultimately determined that “there is 16 no one in [Sekerke’s] assigned housing meeting the requirements for acute psychiatric 17 services.” LOE Ex. F at 3. Like in Peralta, Lieutenant Arkwright acted reasonably in 18 taking minimal, yet reasonable action in reviewing Plaintiff’s grievance appeal and relying 19 on the findings of a lower-level official who had personal knowledge and direct 20 responsibility over these of the Ad-Seg unit conditions. Moreover, like the building 21 supervisor in Lemire, Arkwright was not within the housing conditions chain of command 22 and therefore had no responsibility or authority to fix the Ad-Seg conditions. Given his 23 lack of responsibility for addressing the conditions of the Unit, his reliance on the report 24 of someone within that unit who had that responsibility was reasonable. Plaintiff therefore 25 has not created a trial issue that Arkwright consciously disregarded a risk of harm by 26 deferring to the findings of the appropriate sergeant in charge of housing conditions. The 27 undisputed facts establish that Arkwright took some, reasonable responsive action in doing 28 so. Id. at 11; Arkwright Decl. ¶ 37. Because the Court concludes that no reasonable jury 1 |}could determine that Arkwright was deliberately indifferent to Sekerke’s conditions 2 ||complaint, the Court grants Defendant’s summary judgment on the Eighth Amendment 3 || deliberate indifference claim. 4 ||D. Qualified Immunity and Exhaustion 5 Because no genuine issue exists regarding whether Lieutenant Arkwright was 6 || deliberately indifferent under the Fourteenth and Eighth Amendments, the Court does not 7 ||reach the issues of qualified immunity and exhaustion of administrative remedies. 8 V. CONCLUSION AND ORDER 9 For the above reasons, the Court GRANTS Defendant’s motion for summary 10 ||judgment, Dkt. 75, pursuant to Fed. R. Civ. P. 56(a). The Court further DIRECTS the 11 || Clerk of the Court to enter judgment in favor of Defendant Arkwright and to close the case. 12 13 IT IS SO ORDERED. 14 ||Dated: September 28, 2023 15 16 a, 7 Ho lorgbfe , inso ok Ohta United States District Judge 18 19 20 21 22 23 24 25 26 27 28 14 oo