Williams v. Trujillo

Opinion

1 WO JL 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 DaJuan Torrell Williams, No. CV 18-03239-PHX-MTL (CDB) 9 Plaintiff, 10 v. ORDER 11 Ernesto Trujillo, et al., 12 Defendants.

13 14 Plaintiff DaJuan Torrell Williams, who is currently confined in the Yuma County 15 Detention Center,1 brought this civil rights action pursuant to 42 U.S.C. § 1983 against 16 multiple Arizona Department of Corrections (ADC) officials. Defendants Julie Bowers, 17 Panann Days, David Shinn, and Ernesto Trujillo now move for summary judgment. (Doc. 18 163.) Plaintiff was informed of his rights and obligations to respond pursuant to Rand v. 19 Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 165), and he opposes the 20 Motion. (Doc. 188.) 21 The Court will grant in part and deny in part the Motion for Summary Judgment. 22 I. Background 23 Plaintiff filed the original Complaint in this case on October 9, 2018. (Doc. 1.) In 24 his First Amended Complaint, Plaintiff relevantly alleges that on May 9, 2018, he was 25 transferred to ADC Special Management Unit (SMU) II and placed into an “administrative 26 27 1 Currently, Plaintiff is awaiting trial in Yuma County Superior Court case #CR- 2020-00289 on charges of aggravated assault against a correctional employee, aggravated 28 assault with a deadly weapon, and prisoner in possession of contraband. See https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx (search by case number CR-2020-00289 in Yuma County Superior Court) (last accessed Sept. 7, 2021). 1 ‘off the books’ punishment in ‘dog cluster’ known as ‘enhanced security’ and designated 2 as ‘A51.’” (Doc. 22 at 5.)2 Plaintiff alleges the conditions of confinement and increased 3 security measures in enhanced security violate the Eighth Amendment. (Id.) 4 Plaintiff further asserts his Fourteenth Amendment due process rights were violated 5 because he was not given prior written or verbal notice of his placement in enhanced 6 security, was never given a written explanation for the placement, and was told there is no 7 appeal process. (Id. at 13.) Plaintiff also alleges he remains in enhanced security and there 8 has been no real or meaningful review of his placement, although he has not committed 9 any disciplinary violations or engaged in aggressive, assaultive, threatening, or violent 10 behavior since his placement in enhanced status. (Id.) 11 On screening of the First Amended Complaint under 28 U.S.C. § 1915A(a), the 12 Court determined that Plaintiff stated Eighth Amendment conditions of confinement claims 13 in Count One and a Fourteenth Amendment due process claim in Count Two. (Doc. 26.) 14 The Court required Defendants Trujillo, Ryan, Days, and Bowers to answer Counts One 15 and Two in their individual and official capacities. (Id.) The Court dismissed the 16 remaining claims and Defendants. (Id.) Subsequently, the Court substituted Defendant 17 Shinn for Defendant Ryan in his official capacity only and dismissed Defendant Ryan. 18 (Doc. 90.) 19 II. Summary Judgment Standard 20 A court must grant summary judgment “if the movant shows that there is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 22 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 23 movant bears the initial responsibility of presenting the basis for its motion and identifying 24 those portions of the record, together with affidavits, if any, that it believes demonstrate 25 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 26 If the movant fails to carry its initial burden of production, the nonmovant need not 27

28 2 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 2 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 3 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 4 contention is material, i.e., a fact that might affect the outcome of the suit under the 5 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 6 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 7 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 8 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 9 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 10 it must “come forward with specific facts showing that there is a genuine issue for trial.” 11 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 12 citation omitted); see Fed. R. Civ. P. 56(c)(1). 13 At summary judgment, the judge’s function is not to weigh the evidence and 14 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 15 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 16 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 17 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 18 A trial court can only consider admissible evidence in ruling on a motion for 19 summary judgment. Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181-82 (9th Cir. 20 1988) (citing Fed. R. Civ. P. 56(e)). Unauthenticated documents and hearsay evidence are 21 not admissible, and, consequently, may not be considered on summary judgment. See Orr 22 v. Bank of America, NT & SA, 285 F.3d 764, 773-74 (9th Cir. 2002). However, if the 23 content of a document would be admissible a trial, the Court may consider the content even 24 though the document itself may be inadmissible. Fraser v. Goodale, 342 F.3d 1032, 1036- 25 37 (9th Cir. 2003); see also Cheeks v. Gen. Dynamics, 22 F. Supp. 3d 1015, 1027 (D. Ariz. 26 2014) (if evidence “could conceivably be converted into an admissible form for trial, the 27 Court [may] consider the evidence for the purposes of summary judgment”). 28 The Ninth Circuit has held, albeit sometimes implicitly, that a non-movant’s hearsay 1 evidence may establish a genuine issue of material fact precluding a grant of summary 2 judgment. See Fraser, 342 F.3d at 1036-37; Carmen v. S.F. Unified Sch. Dist., 237 F.3d 3 1026, 1028-29 (9th Cir. 2001); Beyene, 854 F.2d at 1182. Thus, this Court has recognized 4 that “[m]aterial in a form not admissible in evidence may be used to avoid, but not to obtain 5 summary judgment[.]” Walters v. Odyssey Healthcare Mgmt. Long Term Disability Plan, 6 No. CV 11-00150-PHX-JAT, 2014 WL 4371284, at *3 (D. Ariz. Sep. 4, 2014) (quoting 7 Tetra Techs., Inc. v. Harter, 823 F. Supp. 1116, 1120 (S.D.N.Y. 1993)); see Lew v. Kona 8 Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (noting that at summary judgment, “we treat 9 the opposing party’s papers more indulgently than the moving party’s papers”). 10 III. Facts 11 During the relevant time, Plaintiff was in the custody of ADC. Plaintiff is serving 12 a life sentence for first-degree murder, conspiracy to commit first-degree murder, attempt 13 to commit first-degree murder, and first-degree burglary, among other charges. (Doc. 164- 14 1 at 77.) 15 A. Enhanced Management Housing Status and Enhanced Security Housing 16 1. Before July 2019 17 In May 2018, when Plaintiff was placed in Enhanced Management Housing Status 18 (EMHS) and moved to Enhanced Security Housing (ESH),3 there were no written policies 19 regarding placement in EMHS/ESH. (Doc. 186 at 4 ¶ 11.) According to Plaintiff, 20 placement in ESH was “completely arbitrary and [was] simply based upon whether or not 21 the Administration want[ed] to inflict mental and physical pain upon a specific [prisoner].” 22 (Id. at 2 ¶ 7.) Plaintiff asserts that until June 2019, Defendant Trujillo, the former Northern 23 Region Operations Director (NROD), unilaterally decided to place or remove prisoners 24 from EMHS/EHS.4 (Id. at 3 ¶ 9.) 25

26 3 Since EMHS is a status for prisoners in Enhanced Security Housing, the Court will refer to them collectively as EMHS/ESH. 27 4 Defendant Trujillo retired on June 30, 2019. (Doc. 164-1 at 5 ¶ 2.) In August 28 2019, Kevin Curran was appointed as the NROD, and he remains in that position. (Declaration of Kevin Curran, Doc. 164-1 at 128 ¶ 2.) 1 As relevant here, Defendant Trujillo avers in a Declaration submitted with 2 Defendants’ Motion, “Enhanced Security Housing was a security wing of housing for 3 inmates who present[ed] exceptional security concerns by continued violations of the 4 Forbidden Three acts,” which Trujillo does not define in his Declaration. (Decl. of Ernesto 5 Trujillo, Doc. 164-1 at 6 ¶ 4.) These prisoners were assigned to Enhanced Management 6 Housing Status and placed in Enhanced Security Housing. (Id.) 7 Defendant Trujillo avers that during his tenure at ADC, ESH was not a custody 8 classification or a disciplinary punishment; rather, it was a housing placement and a set of 9 security protocols meant to safeguard other prisoners and staff from prisoners who present 10 an exceptional security concern stemming from violent acts they have committed while in 11 the prison system.5 (Id. at 7 ¶ 9.) Thus, to be assigned to EMHS/ESH, a prisoner must 12 have “demonstrated actions indicating either a serious escape risk or physically assaultive 13 behavior resulting in assault or attempted assault with another with a deadly weapon, 14 serious physical injury or death.”6 (Id. ¶ 5.) 15 Plaintiff asserts that before July 2019, no reviews were conducted of Enhanced 16 Security Housing placement. (Doc. 186 at 4 ¶ 11.) There were no written policies requiring 17 review of placement in Enhanced Security Housing, and prisoners were not notified of any 18 such reviews, the dates on which they were conducted, the individuals who participated in 19 the reviews, or the findings or determinations reached in the reviews. (Id.) In addition, 20 prisoners have never been permitted to participate in any such reviews “in any manner.”7 21 (Id.)

22 5 Department Orders 801 and 802 govern prisoner classification hearings and 23 disciplinary procedures, respectively. (Doc. 164-1 at 7 ¶ 9.) 24 6 Likewise, NROD Curran avers in his Declaration that EMHS “is not a classification or a disciplinary punishment. It is security housing meant to safeguard other 25 inmates and prison staff from inmates who present an exceptional security concern stemming from violent acts committed while in the prison system.” (Curran Decl., Doc. 26 164-1 at 129 ¶ 13.) 27 7 Plaintiff claims that Defendants have repeatedly refused to disclose any information regarding reviews of Plaintiff’s placement and have failed to submit 28 documents or records to support their claims that Plaintiff’s placement was reviewed. (Doc. 186 at 4 ¶ 11.) He argues that any “alleged reviews” that occurred before July 2019 1 Defendants dispute that Plaintiff’s placement was not reviewed; however, 2 Defendants have not submitted any documentary evidence of ADC’s policies regarding 3 EMHS/ESH before July 24, 2019. Defendant Trujillo declares that before July 2019, the 4 Regional Operations Director (ROD), Complex Warden, and unit Deputy Warden, as part 5 of a committee,8 “reviewed” prisoners in EMHS/ESH for program participation and step 6 progression9 “[at] a minimum on a quarterly basis.” (Doc. 164-1 at 7 ¶ 7.) Defendant 7 Trujillo avers that in conducting these reviews, the committee “consider[ed] the inmate’s 8 overall behavior, the seriousness and timeframe for the violent behavior, the length of time 9 spent in enhanced security, whether the inmate ha[d] received any disciplinaries or 10 exhibited any violent behavior, compliance with the STEP program, etc. when determining 11 whether to release [an] inmate from enhanced housing.” (Id.) 12 Defendant Trujillo declares that as NROD, he “would authorize all placements into 13 enhanced security generated from [his] assigned region and oversee the quarterly 14 committee reviews in reference to enhanced status.” (Id. at 6 ¶ 3.) Defendant Trujillo 15 avers that during the quarterly meetings, “the decision [was] made whether to remove the 16 inmate from enhanced status or maintain enhanced status.” (Id.) 17 2. After July 2019 18 On July 24, 2019, ADC issued Department Order (DO) 812, which governs 19 maximum custody management and EMHS/ESH. (Doc. 164-1 at 134.) DO 812 was 20 amended on December 13, 2019. (Id.) 21 Under the current version of DO 812, prisoners who “present exceptional security 22

were “wholly inadequate and meaningless.” (Id.) 23 8 Plaintiff disputes the existence of an “Enhanced Security Housing Committee.” 24 (Doc. 186 at 4 ¶ 11.) 25 9 Under DO 812, all prisoners in Browning Unit—whether they are in EMHS/ESH, general population, security threat group status, or condemned row, must participate in 26 certain programs. (Doc. 164-1 at 154.) Prisoners in EMHS/ESH are not authorized for in- classroom programming. (Decl. of Carla Miller, Doc. 164-2 at 6 ¶ 13.) Prisoners in EMHS 27 may also earn incentives and privileges as they successfully complete the Step Program. (Doc. 164-1 at 152.) Prisoners in Browning Unit general population, security threat group 28 status, or condemned row also participate in the Step Program, with some differences. (See id. at 144-45.) 1 concerns,” have committed “continued violations of the Forbidden Three acts” (serious 2 assaults on staff, serious prisoner on prisoner assault with a weapon, or multiple prisoners 3 assaulting a prisoner with a serious injury), or who are removed from the Restrictive Status 4 Housing Program may be placed in EMHS. (Id. at 140.) As of December 13, 2019, a 5 prisoner may be placed in EMHS/ESH if he “has demonstrated actions indicating a serious 6 escape risk,” has assaulted or attempted to assault another with a deadly weapon, or has 7 engaged in physically assaultive behavior resulting in serious physical injury or death of 8 any person. (Id.) In addition, a prisoner may be placed in EMHS/ESH if “[t]he nature of 9 the criminal offense committed prior to incarceration constitutes a current threat to the 10 security and orderly operation of the institution and to the safety of others,” such as first- 11 degree murder. (Id. at 141.) 12 Under DO 812, the decision for placement in EMHS/ESH is made by the Regional 13 Operations Director (ROD) and the sending Complex Warden, in consultation with the 14 receiving Complex Warden, based on the seriousness of the act and security concerns. (Id.) 15 Within five business days of a prisoner’s placement, the unit Deputy Warden sends a 16 synopsis to another ROD, who was not involved in the initial placement. (Id.) The ROD 17 conducts an independent review of the initial placement decision to determine if the 18 placement meets criteria based on supporting documentation. (Id.) The prisoner has 10 19 calendar days from the date of advisement of the placement to file an appeal. (Id.) The 20 appeal is reviewed by the Contract Beds Operations Director and the Security Operations 21 Administrator. (Id.) 22 As of December 13, 2019, the ROD, Complex Warden, and unit Deputy Warden 23 review prisoners in EMHS/ESH for program participation and step progression a minimum 24 of every 30 calendar days. (Id.; Curran Decl., Doc. 164-1 at 130 ¶ 16.) Among other 25 things, the committee considers each prisoner’s overall behavior, the seriousness and 26 timeframe for the violent behavior, the length of time spent in EMHS/ESH, whether the 27 prisoner has received any disciplinary tickets or exhibited any violent behavior, and 28 whether the prisoner is in compliance with the Step Program. (Curran Decl., Doc. 164-1 1 at 130 ¶ 18.) These considerations inform the decision whether to release the prisoner to 2 the general population. (Id.) The committee also may consider the Enhanced Management 3 Spreadsheet, which includes information regarding which prisoners are housed in 4 EMHS/ESH, why they were placed in the program, any updates to charges, recent 5 disciplinary infractions, and current programming. (Id.) A prisoner may be moved from 6 EMHS/ESH only by approval of the committee based on a review of the factors described 7 above. (Id. at 131 ¶ 19.) 8 The committee met monthly to review the status of all EMHS/ESH prisoners from 9 September 2019 until March 2020. (Id. at 130 ¶ 16.) The meetings were temporarily 10 stopped because of the COVID-19 pandemic; they resumed on August 6, 2020. (Id.) 11 B. Conditions in ESH and Enhanced Security Measures 12 1. Conditions 13 Prisoners in ESH are generally confined to their cells except for recreation, showers, 14 visits, and medical appointments.10 (Doc. 186 at 29 ¶ 106.) ESH prisoners receive meals 15 in their cells and eat alone. (Id.) The cells in EHS are windowless and are “roughly the 16 size of a parking space.” (Doc. 186-1 at 8 ¶ 39.) The light fixture remains on 24 hours per 17 day. (Id.) 18 Some cell fronts in ESH are enclosed and covered with plexiglass. (Id. ¶ 42; Decl. 19 of John Trent, Doc. 164-2 at 68 ¶¶ 5-6.)11 Plaintiff’s cell was enclosed in plexiglass for the

20 10 ESH prisoners must complete the required programming, described above, in their 21 cells. 22 11 John Trent was a Physical Plant Supervisor II at ASPC-Eyman Browning Unit until 2019. (Doc. 164-2 at 68 ¶ 3.) Plaintiff objects to the Trent Declaration. (Doc. 186 at 23 13.) He asserts that Defendants have not disclosed Trent as an expert witness, and “it is unclear from the record whether his testimony is intended to be presented as ‘expert 24 testimony.’” (Id.) Plaintiff also argues that Trent’s “testimony” is inadmissible under Rule 701 of the Federal Rules of Evidence. (Id.) As noted above, the Court may consider the 25 content of a document in deciding a motion for summary judgment, even if the document itself may be inadmissible. Moreover, the Trent Declaration is based on Trent’s personal 26 knowledge derived from his role as a Physical Plant Supervisor II and his participation in the 2014 study. Thus, the Court may consider the content of the Trent Declaration and 27 exhibits thereto. See Block v. City of Los Angeles, 253 F.3d 416, 419 (9th Cir. 2001) (explaining that a court may consider declarations for purposes of summary judgment only 28 if they are made on personal knowledge and sets out facts that would be admissible in evidence). 1 first nine or ten months of his placement in ESH. (Id.) There is a four-inch gap at the 2 bottom of the cell door, but Plaintiff claims the gap does not allow air to leave the cells. 3 (Trent Decl., Doc. 164-2 at 68 ¶ 5; Doc. 186 at 12; Doc. 186-1 at 9 ¶ 33.) Plaintiff explained 4 that neither the cell front nor the plexiglass was “lined” with any other holes or means to 5 allow for proper air circulation. (Doc. 186-1 at 9 ¶ 44.) 6 According to the Trent Declaration, however, the plexiglass front is lined with 7 several holes by which air can escape the cell. (Trent Decl., Doc. 164-2 at 68 ¶ 5.) 8 Defendant Trujillo and NROD Curran aver in their Declarations that some cell fronts in 9 ESH are lined with plexiglass to prevent prisoners from throwing feces, sharp objects, 10 water, or other items at prison staff as they walk by the cells.12 (Trujillo Decl., Doc. 164- 11 1 at 8 ¶ 11; Curran Decl., Doc. 164-1 at 130 ¶ 15.) 12 The cells in ESH contain “altered” ventilation systems that are different from the 13 ventilation systems in other cells. (Doc. 186-1 at 9 ¶ 45.) The general population cells 14 contain a 14 square inch air vent located near the ceiling of the cells. (Id.) In ESH cells, 15 this vent has been covered up and welded over with a steel plate, and a 14 x 4 inch air vent 16 has been manufactured and placed under a table near the floor of the cell. (Id.) Plaintiff 17 alleges the altered ventilation system decreases air flow into ESH cells, and hot, stale, and 18 humid air never leaves the cell. (Id.) At times, exhaust fumes from the prison’s transport 19 and security vehicles or vendor delivery trucks, or a “fishy” smell resulting from issues 20 with the swamp coolers or pumps or when maintenance was changing or watering the 21 filters, would permeate Plaintiff’s cell. (Id. ¶ 47.) The fumes caused Plaintiff to suffer 22 nausea and headaches, and he tied a towel over his mouth and nose “for hours” until the 23 fumes dissipated. (Id.) 24 According to the Trent Declaration, there is continuous air flow in each cell at 25 Eyman-Browning regardless of whether the cell is for maximum custody general 26 population prisoners or prisoners housed in EMHS/ESH. (Id.) In 2014, Trent participated 27

28 12 Plaintiff disputes this rationale for the plexiglass cell fronts. (Doc. 186-1 at 8-9 ¶ 43.) 1 in a study to determine the approximate amount of air flow for cells lined with plexiglass 2 located in both maximum custody general population and Enhanced Security Housing at 3 Eyman-Browning.13 (Trent Decl., 164-2 at 67-69, ¶¶ 2, 8-9.) As part of the study, ADC 4 staff checked the air flow on a random number of cells from both upstairs and downstairs 5 in several clusters throughout the prison. (Id. at 69 ¶ 8.) It was determined that maximum 6 custody general population cells receive approximately between 250 and 300 cfm. (Id.) 7 With respect to plexiglass cell fronts, ADC staff measured the plexiglass front cells with 8 an anemometer and determined there was no significant change in air flow. (Id. ¶ 9.) The 9 plexiglass cells maintained between 250 to 300 cfm per cell.14 (Id.) 10 Plaintiff’s asserts that while his cell was lined with plexiglass, temperatures in his 11 cell “were inhumanely hot” and caused him difficulty breathing, lethargy, agitation, anger, 12 and depression. (Doc. 186 at 13-14.) Plaintiff further explains that the conditions caused 13 him to “become angry” and want to “lash out” at others, and he was “constantly dripping 14 with sweat. (Id. at 14.) He believed the common range of temperatures in his pod during 15 the summer and fall months was high 80s to mid-90s. (Doc. 186-1 at 9 ¶ 48.) According 16 to Plaintiff, prison administration does not take action or is “slow to take action” to relieve 17 the conditions in ESH cells “unless and until the temperature exceeds 95 degrees.” (Id. at 18 10 ¶ 48.) After the plexiglass was removed in December 2019 or January 2020, Plaintiff 19 could breathe normally and could feel the air moving and circulating. (Id. at 10 ¶ 49; Doc. 20 186 at 14.) Plaintiff also could hear “what was going on around him” and could 21 communicate with others. (Doc. 186 at 14; Doc. 186-1 at 10 ¶ 49.) 22 John Trent declares that the average temperature in the cells at Eyman-Browning, 23 including Enhanced Security Housing, can change according to the humidity level. (Trent 24 Decl., Doc. 164-2 at 69 ¶ 10.) The average temperature in the cells was approximately the

25 13 Plaintiff disputes the relevance of a 2014 study to the conditions he experienced 26 from 2018 to 2020. (Doc. 186 at 13 ¶ 36.) 27 14 Pursuant to the Plant Physical Standards Technical Manual, effective March 5, 2019, close and maximum custody housing units must receive a minimum of 40 cubic feet 28 per minute (“cfm”) outside air per cell. (Doc. 164-2 at 84.) There must be a minimum exhaust of 100 cfm from each cell. (Id.) 1 same throughout Eyman-Browning. (Id. ¶ 11.) This includes the temperature in open air 2 cells and plexiglass fronted cells. (Id.) The average temperature in the cells was 78 degrees 3 Fahrenheit, though temperatures could rise as high as 85 degrees Fahrenheit if there were 4 high humidity levels. (Id.) According to the Trent Declaration, if temperatures reached 5 any higher than 85 degrees Fahrenheit it would “likely be due to a system breakdown,” and 6 as soon as ADC staff was made aware of the problem, “the system breakdown would be 7 fixed immediately.”15 (Id.) 8 2. Enhanced Security Measures 9 Prisoners in EMHS/ESH are subject to enhanced security protocols, including full 10 restraints, to include a lead chain and camera, for all out of cell movement. (Doc. 164-1 at 11 141; Curran Decl., Doc. 164-1 at 129 ¶ 14.) Previously, EMHS/ESH prisoners were placed 12 on a gurney when they were escorted around the facility, except when they were escorted 13 to the showers or recreation enclosure. (Id.; Decl. of Sean Lopez, Doc. 164-1 at 167-68 14 ¶ 7.) Defendant Trujillo implemented the use of gurneys in ESH in 2013 or 2014; 15 according to Plaintiff, Trujillo did so although he knew strapping prisoners face down to a 16 gurney could result in death or serious physical injury, and ADC policies forbade strapping 17 prisoners face down to a gurney. (Doc. 186 at 10 ¶ 29.) 18 During movement around the unit, EMHS/ESH prisoners were required to sit on the 19 gurney and lay face down on their stomachs. (Id. at 9 ¶ 27.) Straps were placed across 20 prisoners’ backs and the backs of their legs. (Id.) COs took hold of the straps attached to 21 each end of the gurney to drag it around the unit. (Id.) Prisoners were “dragged around 22 the unit, face down and feet first, on a gurney for all movement around the unit.” (Id.) The 23 gurney was never raised more than two or three feet from the ground. (Id.) The gurneys 24 in ESH were never cleaned, sanitized, or properly maintained. (Id. at 10 ¶ 28.) The same 25 gurneys were always used consecutively without the gurneys being cleaned, wiped down, 26 or sanitized in any manner. (Id.)

27 15 Defendants have not produced any evidence regarding the frequency of system 28 breakdowns, the length of time it took to repair any such breakdowns, or how high the temperature in the cells reached during any such breakdowns. 1 NROD Curran avers that the gurney was used as an added mechanical restraint to 2 limit a prisoner’s mobility if he attempted to attack another prisoner or staff member. 3 (Curran Decl., Doc. 164-1 at 129 ¶ 14.) Sean Lopez, a Sergeant in Enhanced Security 4 Housing since July 2019, avers that there were two gurneys in the EMHS/ESH wing. 5 (Lopez Decl., Doc. 164-1 at 168 ¶ 7.) The gurneys were immediately wiped down and 6 cleaned after every use by a prisoner, and the same gurney was never used consecutively 7 unless it had already been thoroughly wiped down and cleaned by members of the prison 8 staff. (Id.) ADC stopped using gurneys to transport prisoners in EMHS/ESH in December 9 2019 or January 2020. (Id.) 10 The current added security protocols in EMHS/ESH include use of a lead chain and 11 lower leg restraints when escorting prisoners to the shower area, recreation enclosure, 12 health unit, or visitation center. (Id. at 167 ¶ 6.) The lead chain is a three-foot metal chain 13 equipped with a triangular lock that can be placed on the cell prior to the cuffs being placed 14 on the prisoner. (Id.) The lead chain is attached to the prisoner’s cuffs during escort. (Id.) 15 Another extra security protocol requires the presence of a supervisor along with at 16 least two other members of the prison staff during movement. (Id. ¶ 9.) The escorting 17 officer escorts the prisoner from behind to maintain control of the prisoner. (Id.) A 18 supervisor and two additional staff members are present when escorting an EHS prisoner 19 to and from the showers, recreation enclosure, visitation center, and health unit. (Id.) 20 Because of the movement procedures in ESH, prisoners are often left standing in 21 the shower for two hours or more. (Doc. 186-1 at 20 ¶ 94.) Prisoners can “yell” for the 22 COs when their showers are complete, however, according to Plaintiff, “this rarely 23 produces results.” (Doc. 186 at 7 ¶ 23.) The floor CO cannot take an EMHS/ESH prisoner 24 out of the shower until a supervisor and other COs are present. (Id.) As a result, 25 EMHS/ESH prisoners spend “extended and prolonged periods of time locked and standing 26 in shower enclosures,” where they cannot “sit or lean on anything for relief.” (Id.) 27 Sergeant Lopez declares that EMHS/ESH prisoners take approximately 15 to 20 28 minutes showers and can communicate with staff once the shower has concluded. (Lopez 1 Decl., Doc. 164-1 at 169 ¶ 11.) Lopez avers that prisoners in ESH can communicate with 2 staff after their showers have concluded through an “opening” in the shower. (Id.) Lopez 3 declares that in an emergency where prison staff is not immediately available to escort a 4 prisoner back to his cell after a shower, a prisoner could spend, at most, between 30 and 40 5 minutes in the shower, including the time already spent showering. (Id.) The same process 6 for transporting a prisoner to the shower is employed with respect to returning him to his 7 cell. (Id.) 8 Prisoners in EMHS/ESH are allowed three 2.5-hour blocks for recreation in the 9 standard recreation enclosure. (Id. at 169 ¶ 12.) When escorting a prisoner to the recreation 10 enclosure for outdoor activity, the prisoner is first strip searched. (Id.) After the strip 11 search, the prisoner is placed in cuffs attached to the lead chain. (Id.) The prisoner is then 12 placed in the lower leg restraints and escorted to the recreation enclosure. (Id.) The 13 recreation enclosure is directly attached to the pod where EMHS/ESH prisoners are housed 14 at Eyman-Browning. (Id.) 15 The recreation pens are solid, four-walled rectangular structures measuring 16 approximately 18 feet by 10 feet. (Doc. 186-1 at 17 ¶ 81.) The pens have 20-foot cement 17 walls with a stainless-steel grille welded and bolted on top. (Id.) According to Plaintiff, 18 temperatures in the recreation pens regularly reach and exceed 100 degrees, especially from 19 April to November. (Id. ¶ 82.) From June through September, temperatures regularly 20 reach and exceed 105 to 110 degrees. (Id.) 21 Recreation pens are not equipped with running water or restroom facilities. (Id.) 22 Although staff generally conduct health and welfare and security checks every hour or so, 23 at times, staff only conduct checks every three hours for “rec turns,” when staff take 24 prisoners in or out of recreation. (Id. ¶ 83.) ESH prisoners are told that if they go out to 25 recreation, they must remain there for the full three hours. (Id.) Plaintiff states he has been 26 at recreation on multiple occasions where staff did not conduct a check during the entire 27 three hours Plaintiff was at recreation. (Id.) Prisoners can only bring a 32-ounce water 28 bottle into the recreation pens, and there is no other running water available. (Id. ¶ 84.) 1 Sergeant Lopez declares that a prisoner who has run out of water can request that an officer 2 refill the bottle, or jugs of water will be made available. (Lopez Decl., Doc. 164-1 at 169 3 ¶ 12.) 4 Plaintiff also alleges that although none of the recreation pens have restrooms, ESH 5 prisoners are not afforded timely or reasonable access to restrooms during recreation. 6 (Doc. 186-1 at 19 ¶ 90.) As a result, he contends, prisoners are forced to urinate in soda or 7 shampoo bottles or bags if they are available, but usually, prisoners simply urinate on the 8 ground or in the corners of the recreation pens. (Id. ¶ 92.) Further, ESH prisoners are also 9 forced to defecate in bags while in the recreation pen, although Plaintiff avers this occurs 10 less frequently. (Id.) If a prisoner goes to the restroom during recreation, he forfeits the 11 remainder of his recreation/out-of-cell time. (Id. ¶ 91.) 12 Sergeant Lopez declares that a prisoner in the recreation enclosure can request to 13 use the restroom when prison staff are conducting a check. (Lopez Decl., Doc. 164-1 at 14 169 ¶ 12.) The prisoner will be escorted back to the housing pod in the presence of the 15 supervisor and two additional staff members to use the restroom facilities. (Id.) If there is 16 still time remaining for the prisoner’s recreation, he will be escorted back to the recreation 17 enclosure. (Id.) 18 C. Plaintiff’s Placement in EMHS/EHS 19 From April 9, 2018 until May 9, 2018, Plaintiff was confined in ASPC-Yuma 20 Dakota Unit, a level 4 (close custody) facility. (Doc. 186 at 1 ¶ 5.) On May 8, 2018, 21 Plaintiff was involved in an incident in which he entered the dining hall at ASPC-Yuma 22 Dakota Unit, approached an officer, and punched the officer in the face. (Doc. 164-1 at 23 98.) Officers responded, and Plaintiff was sprayed with chemical agents and secured in 24 handcuffs behind his back.16 (Doc. 186 at 4 ¶ 18.) Sergeant Villanueva escorted Plaintiff

25 16 The record includes a number of reports regarding the May 8, 2018 assaults, 26 including a Significant Incident Report and a Use of Force/Incident Command Report written by Lieutenant Jesus Vizcarra, who responded to the Incident Command; a Use of 27 Force Report/Incident Command Report Continuation Sheet written by CO II Escalante, one of the officers who was assaulted; a Use of Force/Incident Command Report 28 Continuation Sheet written by CO II Luna, the other officer who was assaulted; and various Use of Force/Incident Command Report Continuation Sheets written by officers who 1 to Dakota Detention Unit. (Id.) Plaintiff was never placed on report or “given any type of 2 notice” regarding the May 8, 2018 assaults until he received a disciplinary report on May 3 17, 2018. (Id. at 5 ¶ 24.) 4 On May 9, 2018, the day after the assaults, Plaintiff was moved to ASPC-Eyman 5 Browning Unit and placed in Enhanced Security Housing.17 (Id. at 6 ¶ 31.) According to 6 Plaintiff, he was placed into Enhanced Security Housing “at the sole discretion and 7 determination[]” of Defendant Trujillo. (Doc. 186 at 1 ¶ 5; Trujillo Decl., Doc. 164-1 at 5 8 ¶ 2; Doc. 164-1 at 82). Defendant Trujillo disputes this and avers that after learning about 9 the assaults, he made the determination, “in coordination with” SROD Profiri, Warden 10 Hacker-Agnew, the receiving Warden at Eyman-Browning, and Defendant Days, that 11 sending Plaintiff to Enhanced Security Housing at Eyman-Browning “based on his 12 aggressive and violent behavior towards prison staff was most appropriate.” (Trujillo 13 Decl., Doc. 164-1 at 9 ¶ 16.) Plaintiff asserts that he did not receive prior notice of his 14 placement or an opportunity to present his views regarding his placement; Defendants do 15 not contradict this assertion. (Doc. 22 at 13.) 16 Plaintiff was subsequently charged with “Attempt to Commit a Class A Offense” 17 and two separate charges of “Aggravated Assault: Inmate on Staff.” (Doc. 164-1 at 117- 18 19.) Disciplinary hearings were held on May 18, 2018 and May 25, 2018, during which 19 Plaintiff was found guilty of the violations, and the charges were upheld. (Doc. 164-3 at 20 93-94.) As part of his punishment for the convictions, Plaintiff lost earned release credits, 21 privileges, and visits. (Id. at 93.) However, his placement in EMHS/ESH was not among 22 the penalties for his disciplinary convictions. (Id.) On June 22, 2018, Plaintiff’s Appeal 23 was denied. (Id. at 95.) On July 12, 2018, Plaintiff’s Second Level Disciplinary Appeal 24 was denied. (Id. at 97.) 25 According to Plaintiff, his placement in EMHS was not reviewed until July 2019.18

26 responded to the Incident Command. (Doc. 164-1 at 100-116.) 27 17 Plaintiff states that he was moved to the level 5 Supermax Special Management Unit II (SMU II) at ASPC-Eyman. (Doc. 186-1 at ¶ 31.) 28 18 Plaintiff asserts that until documents regarding a review of his EMHS/ESH 1 (Doc. 186 at 22 ¶ 67.) Defendants dispute this and assert that between the time Plaintiff 2 was placed in Enhanced Security Housing in May 2018 and the adoption of Department 3 Order 812 in July 2019, his enhanced status was reviewed by a committee, which consisted 4 of NROD Trujillo, the Complex Warden, unit Deputy Warden, and other ADC staff 5 members as available on a quarterly basis. (Trujillo Decl., Doc. 164-1 at 9 ¶ 17.) 6 As of April 25, 2019, Plaintiff had completed Step II programing and was eligible 7 for advancement to Step III. (Doc. 164-1 at 163.) Defendant Trujillo states that his last 8 review of Plaintiff’s placement in EMHS/ESH occurred on June 21, 2019. (Trujillo Decl., 9 Doc. 164-1 at 9 ¶ 19.) Defendant Trujillo declares that Assistant Deputy Warden Romney, 10 Captain Dolejsi, Captain Decker, Correctional Officer IV (CO IV) Van Winkle, and CO 11 III De La Cruz were also present for the committee meeting.19 (Id.) Other than Defendant 12 Trujillo’s generic description of the review that occurred on June 24, 2019, Defendants do 13 not describe any review of Plaintiff’s placement, including when any review occurred, who 14 participated in the review, the reasons Plaintiff’s placement continued, or whether Plaintiff 15 was notified of or permitted to participate in the reviews. 16 Evidence submitted by Defendants indicates that after the adoption of DO 812 in 17 July 2019, the committee reviewed prisoner placement in Enhanced Security Housing on 18 September 5, 2019; October 3, 2019; November 14, 2019; December 6, 2019; January 2, 19 2020; February 6, 2020; and March 5, 2020. (Doc. 164-1 at 162-63.) Defendant Days was 20 present for each meeting through February 6, 2020. (Id. at 163.) 21 D. Plaintiff’s Maximum Custody Reclassification 22 On August 16, 2018, Plaintiff was given a Notice of Hearing and Inmate Rights 23 (Proposed Maximum Custody Placement). (Doc. 164-3 at 111.) The Notice indicated the 24 recommendation was based on Plaintiff’s “proven behavior,” that is, that Plaintiff had 25 “demonstrated physical or sexually assaultive behavioral categories resulting in either

26 placement were produced during discovery in this case, he had no notice or knowledge of “this alleged review,” and he was not allowed to participate in the review or told the 27 outcome. (Doc. 186 at 22 ¶ 67.) 28 19 A redacted spreadsheet submitted with Defendant Trujillo’s Declaration indicates that DWOP Smith-Whitson also was present for the meeting. (Doc. 164-1 at 125.) 1 serious physical injury or death to any person.” (Id.) On August 20, 2018, Defendant Days 2 recommended maximum custody placement due to Plaintiff’s “aggressive assaultive 3 behavior,” including aggravated assault on staff with a weapon. (Id. at 114.) Defendant 4 Days noted that Plaintiff was “currently housed in Enhanced Program.” (Id.) On August 5 23, 2018, Warden S. Morris approved the maximum custody placement. (Id.) 6 Plaintiff was officially reclassified to maximum custody on September 11, 2018. 7 (Id.; Doc. 164-1 at 93.) Plaintiff appealed his placement in maximum custody on 8 November 2, 2018. (Doc. 164-3 at 120.) Plaintiff stated in his appeal that he had been 9 sent to SMU II and locked down in maximum custody for more than 100 days without any 10 notice, a hearing or other opportunity to be heard, or any review of his placement. (Id.) 11 On December 3, 2018, OSB Administrator Stacey Crabtree denied Plaintiff’s 12 appeal, finding that Plaintiff was “correctly classified to maximum custody” based on his 13 classification score. (Id. at 119.) Crabtree stated that Plaintiff’s score was “based in large 14 part on the seriousness of [his] offenses and/or serious disciplinary history.” (Id.) 15 On March 4, 2019, Plaintiff received a Notice of Hearing and Inmate Rights 16 (Proposed Maximum Placement). (Id. at 130.) The Notice stated that Plaintiff had been 17 “placed into Enhanced Security at Browning Unit by Committee,” and within the previous 18 year, Plaintiff had assaulted a staff member with closed fist strikes and had assaulted 19 another staff member with a prison made weapon. (Id.) The Notice stated that Plaintiff 20 had “shown a recent and severe violent history toward staff.” (Id.) 21 Plaintiff submitted a written statement before his reclassification hearing, in which 22 he wrote that Enhanced Security “is not a part of and is outside the scope of classification.” 23 (Id. at 131.) On March 6, 2019, at the reclassification hearing, ADC staff recommended 24 that Plaintiff be retained in maximum custody.20 (Id. at 128.) The recommendation was 25

26 20 On March 10, 2020, Plaintiff was charged in Yuma County Superior Court case 27 # CR-202000289 with one count each of prisoner possession of contraband, aggravated assault with a deadly weapon, and aggravated assault against a correctional employee. 28 Plaintiff has been “out to court” and in custody in the Yuma County Jail since April 20, 2020. (Doc. 164-1 at 83.) 1 based on the May 8, 2018 assaults.21 (Id.) 2 On March 11, 2019, ADW Alejandro Sanchez recommended that Plaintiff be 3 retained in maximum custody. (Id. at 127.) On March 12, 2019, Warden Smith-Whitson 4 approved the recommendation “based on aggravated assault tickets less than a year ago.” 5 (Id.) Plaintiff was officially reclassified to maximum custody on March 18, 2019. (Doc. 6 164-1 at 93.) On June 26, 2019, Plaintiff appealed his reclassification to maximum 7 custody. (Doc. 164-3 at 133.) On August 23, 2019, his appeal was denied. (Id. at 135.) 8 Subsequently, Plaintiff’s placement in maximum custody was reviewed on April 9 25, 2019; September 16, 2019; December 9, 2019; January 9, 2020; February 8, 2020. 10 (Doc. 164-1 at 93.) On March 18, 2020, the last review before he was moved to the Yuma 11 County Jail for his pending trial, Plaintiff was reclassified to maximum custody. (Id.) 12 IV. Fourteenth Amendment Claims 13 A. Legal Standards 14 The Supreme Court has explained that although “prisoners do not shed all 15 constitutional rights at the prison gate,” “‘[l]awful incarceration brings about the necessary 16 withdrawal or limitation of many privileges and rights, a retraction justified by the 17 considerations underlying our penal system.’” Sandin v. Conner, 515 U.S. 472, 485 (1995) 18 (quoting Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977)). 19 Thus, only some placements implicate due process and require notice and an opportunity 20 to be heard and non-adversarial review of the evidence supporting the placement. 21 The Supreme Court in Sandin rejected the argument that any state action taken for 22 a punitive reason encroaches upon a liberty interest under the Due Process Clause even in 23 the absence of any state regulation. Id. at 484. Rather, prisoners have liberty interests 24 protected by the Due Process Clause only where the contemplated restraint “imposes

25 21 Specifically, the rationale for placement stated that Plaintiff had been placed into 26 Enhanced Security at Browning Unit by Committee, and within the last year, Plaintiff had assaulted one staff member with closed fist strikes and another staff member with a prison 27 made weapon. (Doc. 164-3 at 128.) The rationale further stated that while Plaintiff was being escorted after the assaults, he yelled and “attempted to incite inmates to continue to 28 assault staff members.” (Id.) The rationale concluded, “Inmate has shown a recent and severe violent history toward staff.” (Id.) 1 atypical and significant hardship on the inmate in relation to the ordinary incidents of 2 prison life.” Id. To determine the existence of atypical and significant hardships, the Court 3 considers “1) whether the challenged condition ‘mirrored those conditions imposed upon 4 inmates in administrative segregation and protective custody,’ and thus comported with the 5 prison’s discretionary authority; 2) the duration of the condition, and the degree of restraint 6 imposed; and 3) whether the state’s action will invariably affect the duration of the 7 prisoner’s sentence.” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (citations 8 omitted). 9 In Wilkinson v. Austin, 545 U.S. 209 (2005), the Supreme Court observed that after 10 Sandin, “it is clear that the touchstone of the inquiry into the existence of a protected, state- 11 created liberty interest in avoiding restrictive conditions of confinement is not the language 12 of regulations regarding those conditions but the nature of those conditions themselves ‘in 13 relation to the ordinary incidents of prison life.’” Id. at 223 (quoting Sandin, 515 U.S. at 14 484). The Supreme Court observed that the Courts of Appeals have not reached consistent 15 conclusions for identifying the baseline from which to measure what is atypical and 16 significant in any particular prison system, but the Court concluded that it need not resolve 17 that issue, because the Court was “satisfied that assignment to [the Ohio State Penitentiary, 18 a Supermax facility] imposes an atypical and significant hardship under any plausible 19 baseline.” Id.22 The Supreme Court held that prisoners had a protected liberty interest in 20

21 22 The Supreme Court in Wilkinson described the conditions at the Ohio Supermax 22 facility as follows: 23 For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though 24 it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on 25 all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the 26 duration. Unlike the 30–day placement in Sandin, placement at OSP is indefinite and, after an initial 30–day review, is reviewed just annually. 27 Second is that placement disqualifies an otherwise eligible inmate for parole consideration. 28 545 U.S. at 223-24. 1 avoiding assignment at the Ohio Supermax facility. Id. at 220-21. 2 B. Discussion of Placement in EMHS/ESH 3 1. Liberty Interest 4 In their Motion, Defendants argue that Plaintiff’s placement in Enhanced Security 5 Housing did not implicate any liberty interest of Plaintiff. (Doc. 163 at 18.) They describe 6 Enhanced Security Housing as additional security measures applied to the “most violent 7 and dangerous inmates” in a maximum custody facility. (Id. at 2.) Defendants contend 8 that “the only real differences between [Plaintiff’s] enhanced housing status and that of 9 maximum custody inmates in general population pertains to the heightened level of 10 security protocols [Plaintiff] is subject to as a result of his previous violent behavior.” (Id. 11 at 23.) Defendants assert that the purpose of using enhanced security measures was not to 12 punish Plaintiff, but to provide extra security protocols and separate housing for prisoners 13 who pose a heightened security risk because of their violent actions in the prison. (Id.) 14 With respect to the first Sandin factor, the Ninth Circuit has suggested 15 that conditions of confinement which violate the Eighth Amendment constitute “atypical 16 and significant hardship.” See Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996). 17 However, the Sandin test is not synonymous with an Eighth Amendment violation: “[w]hat 18 less egregious condition or combination of conditions or factors would meet the test 19 requires case by case, fact by fact consideration.” Id. The Ninth Circuit has further 20 explained that “Sandin requires a factual comparison between conditions in general 21 population or administrative segregation (whichever is applicable) and disciplinary 22 segregation, examining the hardship caused by the prisoner’s challenged action in relation 23 to the basic conditions of life as a prisoner.” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 24 2003). 25 In this case, there are genuine disputes of material fact regarding the conditions in 26 ESH and Plaintiff’s cell specifically, as well as the use of increased security protocols. In 27 particular, Plaintiff has adduced evidence that the four-inch gap at the bottom of his cell 28 door did not allow air to leave the cells, and neither the cell front nor the plexiglass was 1 “lined” with any other holes or means to allow for proper air circulation. In addition, 2 Plaintiff has submitted evidence that the cells in ESH contain “altered” ventilation systems; 3 the normal 14 square inch vent has been covered up and welded over with a steel plate, and 4 a 14 x 4 inch air vent has been manufactured and placed under the table near the floor of 5 the cell. 6 Plaintiff has also adduced evidence that he perceived the temperatures in his cell to 7 be “inhumanely hot” in his plexiglass-fronted cell between the months of May to 8 November, that the common temperature range for cells in the ESH pod was “high 80’s, 9 low to mid-90’s,” and that prison administration was slow to take action unless the 10 temperature exceeded 95 degrees. In contrast, Defendants assert that ESH and maximum 11 custody general population prisoners “receive the same ventilation air flow.”23 (Doc. 163 12 at 23.) But the evidence cited for this assertion relates to the general conditions in ESH 13 cells and does not contradict Plaintiff’s evidence regarding the conditions in his cell. 14 Plaintiff has also adduced evidence that for most of his time in ESH, prisoners were 15 escorted around the unit on a gurney. ESH prisoners were required to sit on the gurney 16 and lay face down on their stomachs, and straps were placed across prisoners’ backs and 17 the backs of their legs, securing them to the gurney. Accepting Plaintiff’s description of 18 the conditions and enhanced security measures as applied to him, a reasonable jury could 19 conclude that the conditions he experienced constituted an atypical and significant 20 hardship. The first factor weighs in favor of finding a protected liberty interest. 21 Moreover, to the extent that Defendants argue that none of the conditions in ESH 22 implicate the Due Process Clause, the Supreme Court in Wilkinson explained that although 23 any particular condition “standing alone might not be sufficient to create a liberty interest, 24 taken together [the conditions may] impose an atypical and significant hardship within the 25

26 23 Defendants also argue that the conditions of ESH prisoners at Eyman-Browning with respect to programming and incentives “largely mirror the conditions of inmates in 27 maximum custody general population, security threat groups, and on condemned row.” (Doc. 163 at 19.) The Court agrees that these conditions, even if they are different in ESH, 28 do not implicate the Due Process Clause because they do constitute the type of “atypical and significant hardship” in relation to the “ordinary incidents of prison life.” 1 correctional context.” 545 U.S. at 224. In addition, even if it is true that the “harsh 2 conditions” in ESH were “necessary and appropriate in light of the danger that high-risk 3 inmates pose both to prison officials and to other prisoner,” that necessity “does not 4 diminish [the] conclusion that the conditions give rise to a liberty interest in their 5 avoidance.” Id. 6 The second Sandin factor requires the Court to consider the duration of Plaintiff’s 7 placement in ESH and the degree of restraint imposed in ESH. Defendants correctly point 8 out that “the duration in administrative segregation for even a substantial period of time 9 does not in and of itself constitute an ‘atypical hardship.’” (Doc. 163 at 24.) In Brown v. 10 Oregon Dep’t of Corrections, 751 F.3d 983 (9th Cir. 2014), the Ninth Circuit noted that 11 the plaintiff’s 27-month confinement in the IMU without meaningful review “‘impose[d] 12 atypical and significant hardship on [him] in relation to the ordinary incidents of prison 13 life.’” Id. at 987. The Ninth Circuit also noted that confinement in the IMU subjected the 14 plaintiff to solitary confinement for over twenty-three hours each day with almost no 15 interpersonal contact and denied him most privileges afforded prisoners in the general 16 population. Id. at 988. The Ninth Circuit recognized that although “these conditions alone 17 might apply to most solitary-confinement facilities,” there was a “crucial factor 18 distinguishing confinement in the IMU: the duration of [the plaintiff’s] confinement.” Id. 19 (citing Hutto v. Finney, 437 U.S. 678, 686 (1978) (“[T]he length of confinement cannot be 20 ignored in deciding whether the confinement meets constitutional standards.”)). 21 Here, it is undisputed that Plaintiff was in ESH from May 9, 2018 until he was 22 transferred to the Yuma County Jail in April 2020, and he remains assigned to ESH. As 23 noted above, Plaintiff’s placement in ESH was not reviewed in any context until August 24 2018, when he was officially reclassified to maximum custody. In addition, for more than 25 18 months after his placement in ESH, Plaintiff was subjected to harsh conditions and 26 increased security measures. Thus, the second factor weighs in favor of finding a liberty 27 interest in this case. 28 Finally, regarding the third Sandin factor, it is undisputed that Plaintiff’s placement 1 in ESH will not “invariably affect the duration of his sentence.” Sandin, 515 U.S. at 483- 2 84. This factor weighs against finding a liberty interest. 3 The Court concludes Plaintiff’s placement in EMHS/ESH implicated a protected 4 liberty interest. The Court will therefore consider what process was due to Plaintiff and 5 whether he received that process before he was placed in EMHS/ESH. 6 2. Required Procedures 7 As the Supreme Court observed in Wilkinson, “because the requirements of due 8 process are ‘flexible and cal[l] for such procedural protections as the particular situation 9 demands,’” the Court has generally “declined to establish rigid rules and instead ha[s] 10 embraced a framework to evaluate the sufficiency of particular procedures.” 545 U.S. at 11 224 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The Court applies the 12 framework established in Mathews v. Eldridge, 424 U.S. 319 (1976), which requires 13 consideration of three distinct factors:

14 First, the private interest that will be affected by the official action; second, 15 the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural 16 safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or 17 substitute procedural requirement would entail. 18 19 Id. at 335. “The fundamental requirement of due process is the opportunity to be heard ‘at 20 a meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting 21 Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 22 In Hewitt v. Helms, 459 U.S. 460, 476-77 & n.9 (1983), abrogated in part on other 23 grounds by Sandin, 515 U.S. 472, the Supreme Court held that due process requires (1) an 24 informal, non-adversary evidentiary review sufficient both for the decision that a 25 prisoner represents a security threat and the decision to confine a prisoner to administrative 26 segregation pending completion of an investigation into misconduct charges against him, 27 (2) some notice of the charges against him and an opportunity to present his views, and (3) 28 periodic review of the confinement. 459 U.S. at 476-77 & n.9; see also Toussaint v. 1 McCarthy, 801 F.2d 1080 (9th Cir. 1986) (holding that that prison officials must engage in 2 some sort of periodic review of the confinement of prisoners held in 3 administrative segregation). 4 In Wilkinson, the Supreme Court concluded that “[w]here the inquiry draws more 5 on the experience of prison administrators, and where the State’s interest implicates safety 6 of other prisoners and prison personnel, the informal, non-adversary procedures” set forth 7 in Hewitt “provide the appropriate model.” 545 U.S. at 227. 8 The evidence in the record demonstrates that Plaintiff was placed in EMHS/ESH on 9 May 9, 2018 because he had assaulted two prison staff members the day before. Thus, the 10 state’s interest in placing Plaintiff in EMHS/EHS implicated the safety of other prisoners 11 and prison personnel. Accordingly, Plaintiff was entitled only to an informal, non- 12 adversary procedure before his placement in EMHS/EHS. 13 Plaintiff asserts that he was placed into EMHS/ESH “at the sole discretion and 14 determination[]” of Defendant Trujillo; Plaintiff had no prior notice of his placement and 15 did not have an opportunity to be heard. Defendants have not submitted any evidence that 16 contradicts Plaintiff’s assertions that he did not receive notice or an opportunity to be heard 17 before his placement. Although Defendants state that other officials were involved in the 18 decision to place Plaintiff in EMHS/EHS, they have not submitted Declarations from any 19 of the other individuals who were involved in the initial decision or any evidence 20 specifically establishing how the decision was made and how Plaintiff was able to 21 participate in the process. 22 Furthermore, Defendants have not submitted any documentary evidence regarding 23 reviews of Plaintiff’s placement that occurred before his August 2018 reclassification to 24 maximum custody. As noted above, Defendants cite only Defendant Trujillo’s Declaration 25 to support the assertion that EMHS placement was reviewed quarterly before July 2019, 26 but the Declaration does not describe the procedures for such reviews or any reviews of 27 Plaintiff’s placement, and Defendants have not submitted any documentary evidence 28 regarding the reviews. 1 Thus, the Court finds there is a genuine dispute of material fact regarding whether 2 Plaintiff’s initial placement in EMHS/EHS comported with due process, as well as whether 3 Plaintiff received any review of his placement until August 2018, when he was classified 4 to maximum custody. The Court will therefore deny Defendants’ Motion for Summary 5 Judgment as to Plaintiff’s Fourteenth Amendment due process claim regarding his 6 placement in EMHS/ESH against Defendant Trujillo in his individual capacity and 7 Defendant Shinn in his official capacity only. Because there is no evidence that Defendants 8 Bowers and Days were personally involved in the decision to place Plaintiff in 9 EMHS/ESH, the Court will dismiss the due process claims as to them. 10 V. Eighth Amendment Claims 11 Plaintiff also contends the conditions of confinement in ESH and maximum custody 12 violate the Eighth Amendment. To prevail on an Eighth Amendment conditions-of- 13 confinement claim, a plaintiff must meet a two-part test. “First, the alleged constitutional 14 deprivation must be, objectively, sufficiently serious” such that the “official’s act or 15 omission must result in the denial of the minimal civilized measure of life’s necessities.” 16 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted). Second, the 17 prison official must have a “sufficiently culpable state of mind,” i.e., he must act with 18 “deliberate indifference to inmate health or safety.” Id. (internal quotations omitted). 19 Deliberate indifference is a higher standard than negligence or lack of ordinary due 20 care for the prisoner’s safety. Id. at 835. In defining “deliberate indifference” in this 21 context, the Supreme Court has imposed a subjective test: “the official must both be aware 22 of facts from which the inference could be drawn that a substantial risk of serious harm 23 exists, and he must also draw the inference.” Id. at 837 (emphasis added). 24 “Because routine discomfort is part of the penalty that criminal offenders pay for 25 their offenses against society, only those deprivations denying the minimal civilized 26 measure of life’s necessities are sufficiently grave to form the basis of 27 an Eighth Amendment violation.” McMillian, 503 U.S. at 9 (internal quotations and 28 citations omitted). “[T]he unnecessary and wanton infliction of pain ... constitutes cruel 1 and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 2 U.S. 312, 319 (1986). “Among ‘unnecessary and wanton’ inflictions of pain are those that 3 are totally without penological justification.” Rhodes v. Chapman, 452 U.S. 337, 346 4 (1981) (citation omitted). 5 In conducting this analysis, the Court must consider the “circumstances, nature, and 6 duration” of Plaintiff’s exposure to the complained of conditions. See Hearns v. Terhune, 7 413 F.3d 1036, 1042 (9th Cir. 2005); Keenan, 83 F.3d at 1089, 1091. “The more basic the 8 particular need, the shorter the time it can be withheld.” Hoptowit v. Ray, 682 F.2d 1237, 9 1259 (9th Cir. 1982), abrogated in part on other grounds by Sandin, 515 U.S. 472. 10 A. Recreation 11 In their Motion, Defendants assert that increased security protocols were necessary 12 for Plaintiff because he had “violently assaulted two officers” at ASPC-Yuma. (Id.) 13 Defendants contend that any temporary delay associated with the security need for two 14 officers to be present when escorting Plaintiff does not amount to an Eighth Amendment 15 violation. (Doc. 163 at 8.) Defendants also argue that Plaintiff was not exposed to any 16 unconstitutional delay with respect to recreation. (Id. at 9.) They argue that because 17 Plaintiff could request that an officer refill his water bottle, water jugs could be made 18 available upon request, and Plaintiff could request to use the restroom during recreation, 19 “it is clear that [Plaintiff] had adequate access to restroom facilities and water” while he 20 was in the recreation pen and had access to ADC staff if he needed to leave the pen. (Id. 21 at 10.) 22 Plaintiff has adduced evidence that recreation pens are not equipped with running 23 water or restroom facilities and that at times, staff only conduct checks every three hours. 24 Plaintiff asserted that he has been at recreation on multiple occasions where staff did not 25 conduct a check during the entire three hours Plaintiff was at recreation. Thus, although 26 Defendants introduce evidence that prison policies indicate that prisoners should have 27 access to water and restroom facilities, Plaintiff introduces evidence based on his 28 1 experiences that creates a question of fact as to whether the policy was followed. 2 B. Movement Restraints 3 Next, Defendants argue that the use of a lead chain, leg restraints, and gurney while 4 transporting Plaintiff around the prison did not amount to an Eighth Amendment violation. 5 (Doc. 163 at 11.) They contend that Plaintiff is “precisely the type of ‘dangerous’ inmate 6 [who] would require heightened security restraints.” (Id.) 7 As discussed above, there is no dispute that Plaintiff was escorted on a gurney for 8 most of his time in ESH. Plaintiff has adduced evidence that ESH prisoners were required 9 to sit on the gurney and lay face down on their stomachs, and straps were placed across 10 prisoners’ backs and the backs of their legs, securing them to the gurney. Defendants do 11 not contradict this evidence and state only that the gurney was used as “an extra mechanical 12 restraint to safeguard prison staff and other inmates from inmates who had committed 13 violent acts such as [Plaintiff].” (Id. at 12.) 14 Moreover, Plaintiff has adduced evidence that he suffered physical and mental 15 injuries resulting from the use of the gurney. See Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) 16 (noting in Eighth Amendment excessive force context that a plaintiff need not suffer 17 “significant injury” to prevail, but the extent of injury suffered by a prisoner is one factor 18 that may suggest whether the use of force could plausibly have been thought necessary in 19 a particular situation). ADC did not discontinue the practice of escorting prisoners on a 20 gurney until December 2019 or January 2020, after Plaintiff had been in EMHS/ESH for 21 more than 18 months. 22 C. Cell Ventilation 23 Defendants contend that Plaintiff “was provided with adequate ventilation when his 24 cell front was lined with plexiglass.” (Id. at 13.) They argue that use of a plexiglass cell 25 front, especially when air flow is similar to cells without plexiglass, does not violate the 26 Constitution. (Id.) Defendants also note that despite concerns about prisoners throwing 27 feces, sharp objects, water, or other items at prison staff as they walk by, Plaintiff’s cell is 28 no longer lined with plexiglass. (Id.) With respect to temperature, Defendants assert that 1 the average temperature in cells lined with plexiglass were “adequate,” and in any event, 2 Plaintiff “fails to specify any injuries he suffered personally as a result of any ‘high’ 3 temperatures.” (Id. at 15.) 4 Ventilation is a fundamental attribute of “shelter” and “sanitation,” both of which 5 are basic Eighth Amendment concerns. Minifield v. Butikofer, 298 F. Supp. 2d 900, 904 6 (N.D. Cal. 2004). “Inadequate ‘ventilation and air flow’ violates the Eighth Amendment if 7 it ‘undermines the health of inmates and the sanitation of the penitentiary.’” Keenan, 83 8 F.3d at 1090 (quoting Hoptowit v. Spellman, 743 F.2d 779, 784 (9th Cir. 1985), amended, 9 135 F.3d 1318 (9th Cir. 1998)). 10 Defendants have adduced evidence regarding the general temperature and 11 ventilation in ESH cells, but again, that does not contradict Plaintiff’s evidence regarding 12 the conditions in his cell. As discussed above, Plaintiff has adduced evidence that cells in 13 ESH have inadequate ventilation and contain “altered ventilation” systems. Plaintiff has 14 also adduced evidence that he experienced “inhumanely hot” temperatures in his 15 plexiglass-fronted cell between the months of May to November, that the common 16 temperature range for cells in the ESH pod was “high 80’s, low to mid-90’s,” and that 17 prison administration was slow to take action unless the temperature exceeded 95 degrees. 18 Although Defendants state that if temperatures reached any higher than 85 degrees 19 Fahrenheit, it would “likely be due to a system breakdown,” they have not presented any 20 evidence documenting when they were aware of when temperatures in plexiglass-fronted 21 cells exceeded 85 degrees or identified the frequency with which that occurred. And even 22 if higher temperatures were due to a system breakdown, there is no evidence concerning 23 how quickly any such breakdown was repaired. See Wilson v. Seiter, 501 U.S. 294, 305 24 (1991) (holding that “[s]ome conditions of confinement may establish an Eighth 25 Amendment violation ‘in combination’ when each would not do so alone, but only when 26 they have a mutually enforcing effect that produces the deprivation of a single, identifiable 27 human need such as food, warmth, or exercise”); Hutto, 437 U.S. at 686-87 (holding that 28 a condition of confinement that does not violate the Eighth Amendment when it exists for just a few days may constitute a violation when it exists for “weeks or months”). 2 D. Conclusion 3 The Court finds that genuine issues of fact preclude summary judgment on 4| Plaintiff's Eighth Amendment conditions of confinement claim. Nonetheless, because 5 | Defendants may be able to present evidence regarding the merits of Plaintiffs claims, the Court will grant Defendants leave to file a second motion for summary judgment. See Hoffman v. Tonnemacher, 593 F.3d 908, 911-12 (9th Cir. 2010) (district courts have 8 | discretion to permit successive motions for summary judgment and a successive motion for summary judgment is appropriate if there is the availability of an expanded factual record).*4 11 | ITIS ORDERED: 12 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 13 | Motion for Summary Judgment (Doc. 163). 14 (2) The Motion is granted as follows: Defendants Bowers and Days are 15 | dismissed as to Plaintiff's Fourteenth Amendment claim and as to Plaintiff's claims for injunctive relief regarding gurney transportation and plexiglass enclosing his cell. The 17 | Motion is otherwise denied without prejudice. 18 (3) On or before November 9, 2021, Defendants may file a new motion for 19 | summary judgment that addresses the issues discussed herein. 20 Dated this 28th day of September, 2021. 21 Wichad T. gibuade Michael T. Liburdi 24 United States District Judge 25 26 27 ** As to Plaintiff's claims regarding gurney transport and plexiglass enclosing the 28 | (oc, 198 at 9, 11), To the extent that Plaintiff secks injunctive relict to discontinue those practices, those claims are moot and will be dismissed.