Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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KM

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Corrections Corporation of America, et al.,) ) ) Defendants. ) ) Allen P. Branco,

No. CIV 04-593-PHX-SMM (GEE) ORDER

Pending before the Court is Defendants' March 2, 2005 Motion for Summary Judgment (Doc. #73). After review of the parties' arguments and accompanying statements of fact, the Court will grant the Motion for Summary Judgment. Procedural Background On March 24, 2004, Plaintiff Allen P. Branco, then confined in the Corrections Corporation of America facility in Florence, Arizona ("CCA/FCC")1 filed a Civil Rights Complaint by a Prisoner pursuant to 42 U.S.C. § 1983. The Court ordered service of the Complaint on Defendant Mendivil on May 26, 2004 (Doc. #8). On June 18, 2004, Plaintiff filed a Motion to Amend Complaint and First Amended Complaint. The Court granted Plaintiff's Motion to Amend on July 23, 2004 (Doc. #12). Plaintiff then filed a second Motion to Amend Complaint and Second Amended Complaint on October 22, 2004 (Doc.

Plaintiff is now confined in the Halawa Correctional Facility in Aiea, Hawaii. Document 137 Filed 03/14/2006 Page 1 of 12

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#27). The Court granted Plaintiff's second Motion to Amend on February 7, 2005 (Doc. #57). Defendants filed the pending Motion for Summary Judgment (Doc. #73) on March 2, 2005. The following are named as Defendants in Second Amended Complaint: 1) Corrections Corporation of America; 2) Florence Correctional Center;2 3) Assistant Warden Richard Smelser; 4) Kimberly Mendivil, Correctional Officer, CCA/FCC; 5) Frank Lane, Nurse, CCA/FCC; 6) Lt. Keesling, Correctional Officer, CCA/FCC; and 7) Physician Assistant Green, CCA/FCC. Plaintiff raises the following grounds for relief in the Second Amended Complaint: 1) Defendant Mendivil subjected Plaintiff to the excessive use of force when she closed a security gate on Plaintiff's ankle; 2) Plaintiff's safety was threatened in violation of the Eighth Amendment when Defendant Mendivil closed the security gate while Plaintiff was standing in the gateway; 3) Defendant Lane provided Plaintiff with inadequate medical care for Plaintiff's injured ankle, in violation of the Eighth Amendment; 4) Defendant Smelser failed to train corrections officers on proper use of the security gates; 5) Defendant Green failed to provide Plaintiff with medical care until one week after his injuries and failed to train or supervise the nurses in the medical unit; and 6) Lieutenant Keesling conspired with Defendant Lane, or instructed Defendant Lane, to treat Plaintiff roughly during the examination of Plaintiff's ankle, causing Plaintiff unnecessary pain, in violation of the Eighth Amendment. Summary Judgment Standard A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
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The Court notes that the Florence Correctional Center is a CCA facility and is not a separate entity from CCA. Accordingly Defendants CCA and the Florence Correctional Center will be referred to as "CCA/FCC."

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Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). The materiality requirement means "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Substantive law determines which facts are material. Anderson, 477 U.S. at 248. The dispute must also be genuine, meaning "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court determines whether there is a genuine issue for trial but does not weigh the evidence or determine the truth of matters asserted. Jesinger, 24 F.3d at 1131. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Celotex, 477 U.S. at 323. Furthermore, the party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Lind Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). There is no issue for trial unless there is sufficient evidence favoring the non-moving party. Anderson, 477 U.S. at 249. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50. However, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). // // // -3Document 137 Filed 03/14/2006 Page 3 of 12

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Discussion of Claims Excessive Force The Cruel and Unusual Punishment Clause of the Eighth Amendment prohibits unnecessary and wanton infliction of pain against prison inmates. Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)). In analyzing an excessive force claim, the question of whether the conduct involved an unnecessary and wanton infliction of pain depends on "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7. Relevant to that determination are factors such as the need for application of force, the relationship between the need for force and the amount used, and the extent of any resulting injury. Whitley, 475 U.S. at 321. Although the harm to a plaintiff need not rise to the level of a significant injury to establish an excessive force claim, the level of physical force used must be more than de minimis. See McMillian, 503 U.S. at 9-10. The facts relevant to this claim, taken in the light most favorable to Plaintiff, are as follows. On the evening of October 28, 2003, Plaintiff and other inmates were returning from "pill call" to their unit. (Pl.'s Resp. to Mot. for Summ. J. ("Resp.") at 2; Defs.' Statement of Fact ("DSOF") at ¶18.) The inmates were required to stop at a security gate and wait until a corrections officer in the facility's control center opened the security gate to allow the inmates to pass. Inmates requested passage through the gate by pressing an intercom button and the gate operator could view individuals at the gate by means of security cameras mounted on both sides of the gate. On October 28, 2003, Defendant Mendivil was the corrections officer in the control room responsible for monitoring and opening security gates. (Resp. at 2; DSOF at ¶39.) Defendants present evidence, which Plaintiff does not refute, that Defendant Mendivil was responsible for approximately twenty internal doors in the facility as well as multiple outside gates and sallyport entrances to the facility. (DSOF at ¶¶ 39-40.) Defendants also offer evidence, not refuted by Plaintiff, that it takes approximate ten seconds for a security gate to completely close or completely open and approximately twenty seconds for a security -4Document 137 Filed 03/14/2006 Page 4 of 12

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gate to complete a full open and close cycle. (DSOF at ¶4.3) Further, warning signs are posted on each side of the gate which state, "Caution! Gate may cause injury. Stand Clear During Operation." (Resp. at 26; DSOF at ¶7.) On October 28th, Plaintiff and the other inmates were required to wait several minutes at the gate and grew impatient. (Second Am. Compl. at 4; Resp. at 9; DSOF at ¶5.) Inmates pushed the intercom button several times, so that the control room officer would allow them to pass. (Id.) Plaintiff states that Defendant Mendivil then told the inmates over the intercom, "you guys walked down the wrong side of the hall and you guys pressed the button too many times, so now you guys are going to wait even longer." (Resp. at 2.) A few minutes later, Corrections Officer ("C.O.") Crewse came up to the opposite side of the gate, pushed the button to trigger the intercom, and requested that the gate be opened. (Resp. at 3; DSOF at ¶22.) The gate was opened and C.O. Crewse passed to the other side of the gate. At the same time, Plaintiff walked through the open gate. (Resp. at 3; DSOF at ¶ 23.) C.O. Crewse called to Plaintiff and instructed him to return to the other side of the gate, as the inmates had not yet been granted permission to pass through the gate. (Resp. at 3; DSOF at ¶25.) Plaintiff states that he returned to the gate, possibly standing in the gateway, or with his back to the gate, and informed C.O. Crewse that he was in severe pain and needed to return to his unit. (Pl.'s Dep.4 at 46.) Specifically, Plaintiff claims that at this time he was, "completely disoriented, suffering severe physical pain." (Resp. at 3.) While talking to C.O. Crewse, the security gate closed and caught, or ran over, Plaintiff's ankle, causing injury. (Resp. at 3, DSOF at ¶26.) These facts do not demonstrate the excessive use of force by Defendant Mendivil because there is no evidence that Defendant Mendivil used physical force "sadistically and

See also affidavit of George Versluis, CCA/FCC Maintenance Supervisor ("Versluis Aff.") at ¶7, DSOF Ex. 2; and affidavit of Kimberly Mendivil ("Mendivil Aff.") at ¶4, DSOF Ex. 4.
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Ex. 8, DSOF. -5Document 137 Filed 03/14/2006 Page 5 of 12

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maliciously to cause harm." Specifically, these facts indicate that while Plaintiff was standing in the gateway talking to C.O. Crewse, the gate began to close and Plaintiff was simply not aware that the gate was closing. (See Resp. at 4; Pl.'s Dep. at 47.) Because the gate takes a full ten seconds to completely close, it appears that had Plaintiff been aware of the gate closing, he would have had ample time to move out of the way. The slow movement of the gate also renders it impossible for Defendant Mendivil to use the gate as a mean of "sadistically and maliciously" causing Plaintiff harm. Defendant Mendivil was aware the slow movement of the gate and the Court cannot reasonably assume that she intended to use the gate to intentionally harm Plaintiff. Moreover, Plaintiff has offered no facts, beyond his own speculation, that Defendant Mendivil acted intentionally in closing the gate while Plaintiff was standing in the gateway. Plaintiff may have alleged facts suggesting Defendant Mendivil was reckless or negligent in failing to check the security cameras to make sure the gateway was clear before closing the gate, but a showing of negligence, or even recklessness, is not sufficient to demonstrate the type of deliberate action required for an excessive force claim. The Court will accordingly grant summary judgment in favor of Defendants as to the excessive force claim. Threat to Safety The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); Hearns v. Terhune, 413 F.3d 1036 (9th Cir. 2005). The inmate must show that the deprivation is "objectively, sufficiently serious," and that the prisoner officials had a "sufficiently culpable state of mind," acting with deliberate indifference. Hearns, 413 F.3d at 1040 (citing Farmer, 511 U.S. at 834). To demonstrate deliberate indifference, a prisoner must show that the official knew of and disregarded an excessive risk to inmate safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and the official must also draw the inference. Id. at 837. In this case, Plaintiff alleges his safety was threatened in violation of the Eighth Amendment when Defendant Mendivil closed the security gate on his ankle. Considering -6Document 137 Filed 03/14/2006 Page 6 of 12

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the facts in light most favorable to Plaintiff, as stated in the discussion of Plaintiff's excessive force claim, there is insufficient evidence to demonstrate that Defendant Mendivil was deliberately indifferent to Plaintiff's safety. Whether Plaintiff's injury is categorized as serious or insignificant, there is no evidence which suggests that Defendant Mendivil would have reason to believe that Plaintiff might be seriously injured if the gate closed while Defendant was standing in the gateway. Specifically, the slow speed with which the gate moves, coupled with evidence from Defendants that an adult of average strength can prevent the gate from moving if caught in the gateway suggests the risk of serious injury is minimal. (See Versluis Aff. at ¶13.) Further, as with the excessive force claim, there is no evidence that Defendant Mendivil acted deliberately in closing the gate while Plaintiff was standing in or near the gate. Again, that Defendant Mendivil may have acted negligently or recklessly in closing the gate before ensuring no one was in the gateway is not sufficient to establish deliberate indifference. Accordingly, summary judgment in favor of Defendants on Plaintiff's threat to safety claim is appropriate. Medical Care To state a § 1983 medical claim under the Eighth Amendment, Plaintiff must show that Defendants acted with "deliberate indifference to his serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference may occur if "prison officials deny, delay or intentionally interfere with medical treatment." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). Plaintiff must show the delay in treatment was harmful. Id. The indifference must be substantial, and the conduct must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105-06. Inadequate treatment due to malpractice or even gross negligence does not constitute an Eighth Amendment violation. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). -7Document 137 Filed 03/14/2006 Page 7 of 12

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To state a claim of deliberate indifference, a plaintiff must allege that a specific defendant, despite his knowledge of a substantial risk of serious harm to the plaintiff, failed to take reasonable measures to abate the harm. Farmer, 511 U.S. at 825. The alleged constitutional deprivation must be, "objectively, `sufficiently serious'" i.e., the official's act or omission must result in the denial of "the minimal civilized measure of life's necessities." Id. at 834. Further, the prison official must have a "sufficiently culpable state of mind," i.e., he must act with deliberate indifference to inmate health or safety. Id. The Supreme Court has further defined this subjective test: the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at 837. A difference of opinion between the physician and the prisoner concerning the appropriate course of treatment does not amount to deliberate indifference to serious medical needs. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). The facts relevant to this claim, in the light most favorable to Plaintiff, are as follows. After Plaintiff's ankle was injured by the closing security gate, Plaintiff returned to his unit with the other inmates waiting at the gate. (Resp. at 5.) Plaintiff then sought medical attention for his ankle, at the urging of other inmates in his unit. (Resp. at 5; DSOF at ¶55.) Defendant Nurse Lane examined and treated Plaintiff's ankle. Plaintiff describes the visible injury to his ankle as a "small cut," or puncture in the soft tissue on inside of Plaintiff's left ankle. (Pl.'s Dep. at 51.) Plaintiff also claims that before Defendant Lane examined Plaintiff's ankle, he spoke with Defendant Keesling. (Resp. at 5.) Plaintiff acknowledges that he could not hear the subject of this conversation. (Pl.'s Dep. at 94.) Plaintiff states that Defendant Lane proceeded to examine Plaintiff's ankle by pressing his thumb into the ankle in the area of the injury. (Resp. at 5-6.) Plaintiff states that this was extremely painful and he asked Defendant Lane why he was pressing on Plaintiff's ankle. By Plaintiff's account, Defendant Lane told Plaintiff he was checking for torn ligaments. (Pl's Dep. at 56.) Defendant Lane then cleaned the puncture wound, placed a band-aid on it, and -8Document 137 Filed 03/14/2006 Page 8 of 12

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wrapped the ankle with an ace bandage. (Resp. at 6; DSOF at ¶59.) Plaintiff's medical records state that Plaintiff was also provided with ice and Tylenol, although Plaintiff claims he did not receive these items. Plaintiff returned to his unit and continued to experience pain and swelling in his ankle for the next eight days. (Resp. at 6.) Plaintiff states that during this time, he made multiple requests for further medical attention but was told, "[i]t is normal to be in pain after an injury, you were seen on 10-28-03 give it 3 days, if still hurting put in a kyte again." (Resp. at 6.) Plaintiff was seen by Defendant Green on November 6, 2003. During ths period, Plaintiff was also receiving pain medication for pain related to heart surgery that Plaintiff had approximately four months before his ankle injury occurred. (Pl's Dep. at 6162.) After examining Plaintiff's ankle, Defendant Green prescribed an increase in Plaintiff's pain medication, an ankle brace, and crutches. (Resp. at 6; Pl's Dep. at 60-63.) Defendant Green also ordered x-rays of Plaintiff's ankle, which showed that no bones were broken in Plaintiff's ankle. After November 6, 2003, Plaintiff received continued monitoring and pain medication for his ankle. These facts do not support a claim of deliberate medical indifference by either Defendant Lane or Defendant Green. First, in light of subsequent examinations and x-rays of Plaintiff's ankle which showed no broken bones or torn ligaments or tendons, Defendant Lane's initial treatment for Plaintiff's ankle appears reasonable. Although Plaintiff alleges that the examination was painful, Plaintiff himself also states that Defendant Lane informed Plaintiff he was checking for torn ligaments, an examination requiring more than visual inspection of Plaintiff's ankle. Moreover, there is no evidence that Defendant Lane should have treated Plaintiff's injury as more severe and indeed, Plaintiff himself states that he sought treatment only after being encouraged to do so by fellow inmates. Accordingly, there is no evidence which would lead the Court to conclude that Defendant Lane believed, or should have believed, that Plaintiff's injury was more severe than it appeared, and Defendant Lane deliberately chose to ignore the severity of the injury. Nor is there evidence suggesting -9Document 137 Filed 03/14/2006 Page 9 of 12

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that Defendant Lane conducted his examination of Plaintiff's ankle with the intent to cause unnecessary pain. With respect to Defendant Green, Plaintiff has not presented any evidence that Defendant Green was responsible for the eight day delay between the initial examination of Plaintiff's ankle by Defendant Lane and subsequent treatment of Plaintiff's ankle. Plaintiff's evidence shows that someone other than Defendant Green, advised Plaintiff to wait a few days before requesting additional treatment for his ankle. (See Resp., App. 12.) Further, Plaintiff does not present evidence that the eight day delay in subsequent treatment caused further injury to his ankle. In order for a delay in medical treatment to constitute an Eighth Amendment violation, the delay must have caused substantial harm. See Wood, 900 F.2d at 1335 (emphasis added). There is no evidence the eight day delay in treatment caused substantial harm. Although Plaintiff's treatment "was not as prompt or efficient as a free citizen might hope to receive, [Plaintiff] was given medical care at the prison that addressed his needs" and the delay in care does not rise to the level of a constitutional violation. Wood, 900 F.2d at 1334. Finally, nothing in Plaintiff's claims or medical records suggest that Defendant Green's treatment of Plaintiff was insufficient or inadequate. Accordingly, the Court finds summary judgment in favor of Defendants appropriate on Plaintiff's medical claims. Failure to Train/Supervise A supervisor who has failed to prevent a constitutional violation by inadequately training, supervising or investigating his subordinates may be held liable under § 1983 if the plaintiff shows: 1) the supervisor possessed the required culpable state of mind; and 2) a causal connection between the supervisor's conduct and the plaintiff's alleged injury. See e.g., Redman, 942 F.2d at 1446-47. Culpability is established by showing that the supervisor was deliberately indifferent to "acts of others which the [supervisor] knows or reasonably should have known would cause others to inflict the constitutional injury." Id. at 1447. Deliberate indifference in this context is objective (rather than subjective) in nature. See id. (focusing on the supervisor's actions in relation to what the supervisor "knew or reasonably - 10 Document 137 Filed 03/14/2006 Page 10 of 12

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should have known"); Oviatt ex rel Waugh v. Pearce, 954 F.2d 1470, 1477-78 (9th Cir. 1992) (same). Plaintiff alleges that Defendants CCA/FCC and Smelser failed to properly train corrections officers on proper operation of the security gates. Plaintiff further alleges that Defendant Green failed to train or supervise nursing staff. Because the Court has found no constitutional injury stemming from the operation of the security gate during the incident at issue or in the medical treatment Plaintiff received for his subsequent injuries, Plaintiff's failure to train claims must also fail. The Court will grant summary judgment in favor of Defendants on this issue. Conspiracy To prove conspiracy under § 1983, an agreement or "meeting of the minds" to violate plaintiff's constitutional rights must be shown. Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989). "The mere fact that a conspiracy is alleged ... will not defeat an adequately supported motion for summary judgment." Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). Allegations of conspiracy must be supported by material facts, not mere conclusory statements. Id.; see also Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Manis v. Sterling, 862 F.2d 679, 681 (8th Cir. 1988) (allegations of conspiracy must be pled with sufficient specificity and factual support to suggest a "meeting of the minds"). Plaintiff claims that Defendants Keesling and Lane conspired to violate Plaintiff's constitutional rights during the initial examination of his ankle. Again, because the Court has found no violation of Plaintiff's constitutional rights in Defendant Lane's examination and treatment of Plaintiff's ankle, Plaintiff's conspiracy claim must fail. See Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir. 1959) ("In a civil conspiracy, the conspiracy itself is not a cause of action ... it is the overt action which causes the civil injury and resulting damage.") Conclusion The Court has considered each of Plaintiff's claims and has considered the evidence presented by both parties in the light most favorable to Plaintiff. In so doing, the Court finds

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that there is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law on all counts. IT IS THEREFORE ORDERED as follows: (1) Defendants' March 2, 2005 Motion for Summary Judgment (Doc. #73) is GRANTED; (2) The Clerk of the Court is DIRECTED to enter judgment and close the case; and (3) All other pending motions, including Defendants' Motion for Summary Judgment filed June 14, 2005 (Doc. #107) are DENIED AS MOOT.

DATED this 14th day of March, 2006.

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