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

1 2 3 4 5 6 7 8 9 10 11 12 Jerry O'Rear, et al., 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the court are Defendants' Motion for Summary Judgment (doc. Reply 65), (doc. Plaintiff's 71), and Response Plaintiff's (doc. 69), vs. Stephen Orback, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. 04-CV-0421-PHX-FJM ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Defendants'

Resubmitted

Response (doc. 73). I. Plaintiff filed a pro se complaint pursuant to 42 U.S.C. § 1983 on February 27, 2004 alleging that Defendants violated his constitutional rights by ordering him to double cell with violent inmates and charging him with disciplinary actions when he refused to accept double cell assignments. Plaintiff further alleges that Defendants are deliberately indifferent to his serious medical needs and that they denied his right to freely exercise his religion.
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1 2 3 4 5 6 7 8 9 10 11 12 Jerry O'Rear, et al., 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before Judgment Defendants' the (doc. Reply court 65), (doc. are Defendants' Plaintiff's 71), and Motion Response for Summary (doc. Resubmitted vs. Stephen Orback, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. 04-CV-0421-PHX-FJM ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Plaintiff's

Response (doc. 73). I. Plaintiff filed a pro se complaint pursuant to 42 U.S.C. § 1983 on February 27, 2004 alleging that Defendants violated his constitutional rights by ordering him to double cell with violent inmates and charging him with disciplinary actions when he refused to accept double cell assignments. Plaintiff further alleges that Defendants are deliberately indifferent to his serious medical needs and that they denied his right to freely exercise his religion.
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3, 2004 Screening Order required the Defendants to answer three of Plaintiff's claims: 1) Count One, Failure to Protect; 2) Count Three, Deliberate Indifference; and 3) Count Four, Free Exercise of Religion. Defendants now move

for Summary Judgment on all counts because 1) the undisputed material facts do not support Plaintiff's contentions and 2) the Defendants enjoy qualified immunity because they acted as reasonable state employees would given their circumstances and the applicable law. Plaintiff has failed

to set forth evidence to support his allegations and thus there are no genuine issues of material fact. II. Relevant Facts

Plaintiff had been housed at the Arizona Department of Corrections (ADC) since October 13, 1998 and was housed in single cell protective segregation when this motion was filed. Defendants Statement of Facts (DSOF) ¶ 1. Plaintiff

is no longer in custody, alerting this court of his change of address on June 7, 2005 (doc. 81). Plaintiff alleges

that beginning September 8, 2003, while housed in Special Management Unit I (SMU), Defendants O'Rear and Velasquez ordered him to move into cells with inmates who subsequently threatened him. DSOF ¶ 6, Plaintiff's Complaint at 4-4C.

Plaintiff had a Do Not House With (DNHW) List, and had not been housed with an inmate on that list. DSOF ¶ 15.

Plaintiff had been moved many times because of some perceived threat. DSOF ¶ 15. In June 2003, Plaintiff DSOF ¶ 16.

requested removal from Protective Segregation.

Plaintiff was disciplined for refusing a direct order under -2Document 91 Filed 07/18/2005 Page 3 of 10

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3, 2004 Screening Order required the Defendants to answer three of Plaintiff's claims: 1) Count One, Failure to Protect; 2) Count Three, Deliberate Indifference; and 3) Count Four, Free Exercise of Religion. Defendants now move

for Summary Judgment on all counts because 1) the undisputed material facts do not support Plaintiff's contentions and 2) the Defendants enjoy qualified immunity because they acted as reasonable state employees would given their circumstances and the applicable law. Plaintiff has failed

to set forth evidence to support his allegations and thus there are no genuine issues of material fact. II. Relevant Facts

Plaintiff had been housed at the Arizona Department of Corrections (ADC) since October 13, 1998 and was housed in single cell protective segregation when this motion was filed. Defendants Statement of Facts (DSOF) ¶ 1. Plaintiff

is no longer in custody, alerting this court of his change of address on June 7, 2005 (doc. 81). Plaintiff alleges

that beginning September 8, 2003, while housed in Special Management Unit I (SMU), Defendants O'Rear and Velasquez ordered him to move into cells with inmates who subsequently threatened him. DSOF ¶ 6, Plaintiff's Complaint at 4-4C.

Plaintiff had a Do Not House With (DNHW) List, and had not been housed with an inmate on that list. DSOF ¶ 15.

Plaintiff had been moved many times because of some perceived threat. DSOF ¶ 15. In June 2003, Plaintiff DSOF ¶ 16.

requested removal from Protective Segregation.

Plaintiff was disciplined for refusing a direct order under -2Document 91 Filed 07/18/2005 Page 4 of 10

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the ADC Inmate Disciplinary Rules when he refused to move into cells as assigned. DSOF ¶ 18.

Plaintiff further alleges that Defendant Stapler was deliberately indifferent to his medical needs in violation of the Eighth Amendment by not reviewing medical waivers of previous doctors and denying him a lower bunk assignment and having his hands cuffed in front. 6-6A, DSOF ¶ 22. Plaintiff's Complaint at

Plaintiff has failed to release his DSOF ¶ 25.

medical records to Defendants.

Plaintiff alleges Defendant Childs changed Plaintiff's diet from strictly kosher to an ovolacto (a vegetarian diet including eggs and milk) breakfast and lunch and a kosher dinner. Plaintiff's Compliant at 6-6C. Plaintiff has

failed to serve process on Defendant Childs. III. A prison official violates the Eighth Amendment in failing to protect one inmate from another when two conditions are met. First, the alleged constitutional

deprivation must be, objectively, "sufficiently serious"; the official's act or omission must result in the denial of "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the

prison official must have a "sufficiently culpable state of mind," for example, acting with deliberate indifference to inmate health or safety. Id. Though Plaintiff alleges he

has been assaulted by various inmates, he presents no evidence to support those contentions. Defendants present

evidence that Plaintiff was never housed with inmates on his -3Document 91 Filed 07/18/2005 Page 5 of 10

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the ADC Inmate Disciplinary Rules when he refused to move into cells as assigned. DSOF ¶ 18.

Plaintiff further alleges that Defendant Stapler was deliberately indifferent to his medical needs in violation of the Eighth Amendment by not reviewing medical waivers of previous doctors and denying him a lower bunk assignment and having his hands cuffed in front. 6-6A, DSOF ¶ 22. Plaintiff's Complaint at

Plaintiff has failed to release his DSOF ¶ 25.

medical records to Defendants.

Plaintiff alleges Defendant Childs changed Plaintiff's diet from strictly kosher to an ovolacto (a vegetarian diet including eggs and milk) breakfast and lunch and a kosher dinner. Plaintiff's Compliant at 6-6C. Plaintiff has

failed to serve process on Defendant Childs. III. A prison official violates the Eighth Amendment in failing to protect one inmate from another when two conditions are met. First, the alleged constitutional

deprivation must be, objectively, "sufficiently serious"; the official's act or omission must result in the denial of "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the

prison official must have a "sufficiently culpable state of mind," for example, acting with deliberate indifference to inmate health or safety. Id. Though Plaintiff alleges he

has been assaulted by various inmates, he presents no evidence to support those contentions. Defendants present

evidence that Plaintiff was never housed with inmates on his -3Document 91 Filed 07/18/2005 Page 6 of 10

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DNHW List.

Additionally, there is sufficient evidence in

the record to show that Defendants moved Plaintiff often to accommodate perceived threats. At the time of this motion,

Plaintiff was housed in single cell protective segregation. Finally, Plaintiff has presented no evidence to support his claims of injury. records. He refused to release his medical

Therefore, the undisputed facts show Defendants

did not deprive Plaintiff of "the minimal civilized measure of life's necessities," and they did not have a "sufficient culpable state of mind." appropriate. Id. Thus summary judgment is

To prevail on count three, Plaintiff must prove that Defendants were "deliberately indifferent" to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

The indifference must be substantial, and the conduct must rise to a level of "unnecessary and wanton infliction of pain." Id. at 105-06. The Prison Litigation Reform Act, 42

U.S.C. § 1997(e)e "bars suits for medical or emotional injury unless there is a prior showing of physical injury." Plaintiff has not presented any evidence to show that Dr. Stapler's decisions about cuffing and bunking caused him physical injury. Additionally, there is no evidence to

support the conclusion that Dr. Stapler's decisions rose to a level of wanton infliction of pain. Plaintiff has not

produced evidence upon which "a jury can properly proceed to find a verdict" for the plaintiff. Anderson v. Liberty Plaintiff's response

Lobby, Inc., 477 U.S. 242, 252 (1986).

to Defendants' Motion for Summary Judgment attacks the -4Document 91 Filed 07/18/2005 Page 7 of 10

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DNHW List.

Additionally, there is sufficient evidence in

the record to show that Defendants moved Plaintiff often to accommodate perceived threats. At the time of this motion,

Plaintiff was housed in single cell protective segregation. Finally, Plaintiff has presented no evidence to support his claims of injury. records. He refused to release his medical

Therefore, the undisputed facts show Defendants

did not deprive Plaintiff of "the minimal civilized measure of life's necessities," and they did not have a "sufficient culpable state of mind." appropriate. Id. Thus summary judgment is

To prevail on count three, Plaintiff must prove that Defendants were "deliberately indifferent" to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

The indifference must be substantial, and the conduct must rise to a level of "unnecessary and wanton infliction of pain." Id. at 105-06. The Prison Litigation Reform Act, 42

U.S.C. § 1997(e)e "bars suits for medical or emotional injury unless there is a prior showing of physical injury." Plaintiff has not presented any evidence to show that Dr. Stapler's decisions about cuffing and bunking caused him physical injury. Additionally, there is no evidence to

support the conclusion that Dr. Stapler's decisions rose to a level of wanton infliction of pain. Plaintiff has not

produced evidence upon which "a jury can properly proceed to find a verdict" for the plaintiff. Anderson v. Liberty Plaintiff's response

Lobby, Inc., 477 U.S. 242, 252 (1986).

to Defendants' Motion for Summary Judgment attacks the -4Document 91 Filed 07/18/2005 Page 8 of 10

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credibility of the Defendants, but fails to present evidence and law to support his claims. We therefore grant summary

judgment to Defendants on this count.

Plaintiff also alleges that former ADC Chaplain Childs violated his right to have a kosher diet. has not been served in this matter. Chaplin Childs

Plaintiff has had many

opportunities to show cause why Defendant Childs should not be dismissed for failure to serve. October 28, 4004 Order Plaintiff

(doc. 39) and December 17, 2004 Order (docs. 55).

has failed to make this showing and thus Defendant Childs is dismissed from this case with prejudice. fail. Count four must

IT IS THEREFORE ORDERED, GRANTING Defendants' Motion for Summary Judgment (doc. 65).

DATED this 18th day of July, 2005.

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credibility of the Defendants, but fails to present evidence and law to support his claims. We therefore grant summary

judgment to Defendants on this count.

Plaintiff also alleges that former ADC Chaplain Childs violated his right to have a kosher diet. has not been served in this matter. Chaplin Childs

Plaintiff has had many

opportunities to show cause why Defendant Childs should not be dismissed for failure to serve. October 28, 4004 Order Plaintiff

(doc. 39) and December 17, 2004 Order (docs. 55).

has failed to make this showing and thus Defendant Childs is dismissed from this case with prejudice. fail. Count four must

IT IS THEREFORE ORDERED, GRANTING Defendants' Motion for Summary Judgment (doc. 65).

DATED this 18th day of July, 2005.

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