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

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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Armando Roberto Aros Plaintiff, vs. Robinson, et al.,

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Defendants.
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No. CV 04-0306-PHX-SRB (LOA) ORDER

Plaintiff Armando Roberto Aros filed an Amended Complaint pursuant to 42 U.S.C.
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§ 1983, against Director of the Arizona Department of Corrections (ADC) Dora B. Schriro,
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Deputy Warden David R. Rivas, and Corrections Officers Schaulin and Duarte. Defendants
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filed a Motion for Summary Judgment (Doc. # 50), and after Plaintiff failed to file a
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response, a Motion for Ruling (Doc. #74). The Court will grant summary judgment and
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dismiss Plaintiff's action.
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I. Background
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Plaintiff filed a Third Amended Complaint alleging that Defendants violated his
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Eighth Amendment right to be free from cruel and unusual punishment because of conditions
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of confinement (Doc. #20).1 Plaintiff was housed in Cell Block 7 (CB7) from June 2003

The remaining Defendants and Counts were dismissed as frivolous or for failure to state a claim pursuant to the Prison Litigation Reform Act (Doc. #19).
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until April 2004 (Id.). While in CB7, Plaintiff experienced the following conditions: (1) the cell light did not function, the mattress was too thin, he was not provided a pillow, he was not provided a trash can, and the cell was unsanitary and rarely cleaned; (2) the cell was excessively hot due to the inadequate cooling system and he had to remain fully clothed; (3) the recreational yard was too small and contained pigeon feces; and he was unable to access the restroom while in there; and (4) visitation was impractical due to the noise (Id.). Defendants moved for summary judgment on June 22, 2006, on the grounds that Plaintiff was not denied of "life's necessities," Defendants did not know of and disregard an excessive risk to Plaintiff's health or safety, Plaintiff did not suffer a physical injury, Defendants are entitled to qualified immunity, and Plaintiff failed to link any actions of Defendants with alleged injuries (Doc. #50). Plaintiff did not file a response, and Defendants sought a ruling on their motion (Doc. #74) on November 8, 2006. Plaintiff responded that he did not file a response because he was "busy appraising (sic) the Court of a discovery dispute that bore directly on the preparation and filing of a dispositive motion" and when the Court issued a modified scheduling order, he believed that Defendants were required to refile or renew their motion (Doc. #77). Plaintiff then requested an extension of time in which to reply to Defendants' Motion for Summary Judgment (Id.). The Court gave Plaintiff until January 16, 2007 to file a response and was told "that no further requests for extensions of time will be considered or granted" (Doc. #80). Plaintiff has neither responded nor sought additional time in which to respond.2 Thus, the Court will consider the summary judgment on the evidence before it, and deny Defendants' Motion for a Ruling as moot. II. Motion for Summary Judgment 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
Plaintiff filed a fifteen page Motion for Extension of Time on February 1, 2007 (Doc. #83) and a 25 page addendum (Doc. #84). Defendants responded in opposition (Doc. 85). Plaintiff's motion was denied by the Magistrate Judge on February 9, 2007 (Doc. #86). Defendants' response and the Magistrate Judge's order detail the history of Plaintiff's failure to timely response despite several opportunities in this now three year old case. Case 2:04-cv-00306-SRB Document 87 -2Filed 02/12/2007 Page 2 of 11
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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). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion, and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party who must demonstrate that the fact in contention is material and that the dispute is genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). A fact is material if it might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 250. The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Finally, when considering a summary judgment motion, the evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. III. Eighth Amendment "[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986). "Among `unnecessary and wanton' inflictions of pain are those that are totally without penological justification." Rhodes v. Chapman, 452 U.S. 337, 346 (1981). "`An Eighth Amendment claim that a prison official has deprived inmates of humane conditions must meet two requirements, one objective and one subjective.' `Under the objective requirement, the prison official's acts or omissions must deprive an inmate of the minimal civilized measure of life's necessities.'" Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (internal citations and citations omitted). The subjective prong requires the inmate to
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demonstrate that the deprivation was a product of "deliberate indifference" by prison personnel. Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). Such indifference can only occur if "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exits, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). A. Individual Cell Conditions Plaintiff alleged that his cell light did not function, his mattress was useless because it was too thin, he did not have a pillow, he was not provided a trash can, and his cell was rarely cleaned (Doc. #20). CB7 is a lock-down unit situated in a four tiered building containing 152 cells (Doc. #51, ex. 2 ¶ 5). Each cell has a window, and the front of the cell is solid metal with the exception of the door (Id. ¶¶ 5, 6). The bottom of the door is made of perforated metal (Id. ¶ 6). The door also has a glass window and a trap door used for passing food or other items into the cell and for securing the inmate before they are removed from the cell (Id.). Each cell contains a sink; above the sink is a mirror and above that is the cell's sole light fixture (Id. ¶ 8). The light fixture contains a light which the inmate can control and a security light which remains on 24 hours a day (Id.). Inmates also are permitted to purchase a lamp which they control (Id. ¶ 9). First, Plaintiff contended that his constitutional rights were violated by a broken light fixture (Doc. #20). When Plaintiff was transferred to CB7, his light was broken (Doc. #51, ex. 1 at 36). Plaintiff submitted a grievance and his light was fixed within two weeks of his arrival at CB7 (Id. at 36-37). Plaintiff testified that during the time his light was broken, a little light came in from the outside and the corridor (Id. at 37). Plaintiff admitted that he could have purchased a lamp and that he suffered no injury as a result of the broken light (Id. at 36-37). "`Adequate lighting is one of the fundamental attributes of "adequate shelter" required by the Eighth Amendment.'" Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (citations omitted). Plaintiff was not denied adequate lighting. When he arrived in CB7, his light was
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broken. However, within two weeks, the light was fixed. In the interim, Plaintiff had light from the corridor and the outside and could have purchased a lamp. The lack of a light fixture in his cell for two weeks did not deprive Plaintiff of the minimal civilized measure of life's necessities. See Lopez, 203 F.3d at 1132-33. Further, Defendants did not know of and disregard a risk to Plaintiff's health and safety because Plaintiff's light was fixed soon after he complained about it being broken. Farmer, 511 U.S. at 837. Finally, Plaintiff suffered no injury. See id. Second, Plaintiff maintained that his constitutional rights were violated by an "unuseable mattress" and the lack of a pillow (Doc. #20). Mattresses are replaced as needed (Doc. #51, ex. 2 ¶ 26). Plaintiff testified that the mattress he had when he came to CB7 was too thin and aggravated a pre-existing back problem (Id., ex. 1 at 32). Plaintiff was not seen by any medical personnel as a result of the back problem, but did submit a grievance (Id. at 33). The mattress was replaced approximately one and a half months after Plaintiff's arrival at CB7, soon after he submitted a grievance (Id. at 32-33). During the time Plaintiff was housed in CB7, there was a delay in obtaining new pillows (Doc. #51, ex. 2 ¶ 27). In fact, Plaintiff was never provided a pillow (Id., ex. 1 at 41). However, Plaintiff did not suffer an injury as the result of the lack of pillow (Id. at 40). He did have a sore neck for which he took Ibuprofen (Id.). Plaintiff cannot demonstrate that Defendants violated his constitutional rights because he had a thin mattress for less than two months. Plaintiff had a mattress during his entire time in CB7, but was merely dissatisfied with the mattress he had, claiming it aggravated a pre-existing condition. Notably, Plaintiff was never medically seen for any complaints regarding his back. Further, soon after Plaintiff submitted a grievance regarding the mattress, he was provided a new one. See Farmer, 511 U.S. at 837. Plaintiff cannot demonstrate that the mere denial of a pillow resulted in the denial of the minimal civilized measure of life's necessities. See Lopez, 203 F.3d at 1132-33. Plaintiff has neither alleged nor demonstrated that, other than a sore neck, he was injured as a result of the lack of a pillow. Further, Plaintiff has not alleged nor demonstrated that he was unable to adapt to the lack of a pillow
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through the use of a towel or shirt as a pillow. Thus, Plaintiff's constitutional rights were not violated by the lack of a pillow. See id. Third, Plaintiff contended that his constitutional rights were violated by the lack of a trash can and the unsanitary conditions of his cell (Doc. #20). When Plaintiff was housed in CB7, trash cans were not permitted in cells (Doc. #51, ex. 1 at 41; ex. 2 ¶ 28). Instead, trash bags were issued to inmates and were collected on a daily basis (Id. ex 1 at 43; ex. 2 ¶ 28). Plaintiff testified that the denial of a trash can resulted in his floor being dirty (Id. ex. 1 at 43). Inmates in CB7 are responsible for cleaning their own cells and are provided with disinfectant spray, a scrub brush, a broom, and a mop at least three times a week (Doc. #51, ex. 2 ¶ 29). Not all inmates choose to clean their cells on a regular basis (Id.). However, Plaintiff testified that he would go for weeks without getting the cleaning supplies (Id. at 45). "[S]ubjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment." Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995). Plaintiff, however, cannot demonstrate that he was subjected to unsanitary conditions. Plaintiff complained of not having a trash can. However, Plaintiff was provided with a trash bag in which to dispose of trash and the bag was collected on a daily basis. Plaintiff was also provided cleaning supplies on a regular basis. Plaintiff testified that he would go for two or three weeks without being provided cleaning supplies. However, three weeks of not being provided cleaning supplies when Plaintiff is housed in a single man cell is not severe or prolonged enough to result in a violation of Plaintiff's Eighth Amendment rights. Defendants are thus entitled to summary judgment as to Plaintiff's claims that his constitutional rights were violated by a non-functioning cell light, a thin mattress, the lack of a pillow or a trash can, and an unsanitary cell. B. Overall Cell Conditions Plaintiff maintained that the cell was excessively hot and he was required to be fully clothed despite the temperature (Doc. #20). CB7 is cooled through the use of evaporative
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cooling (Doc. #51, ex. 2 ¶ 22). The system is located in the basement and the exhaust vents are located on the internal ceiling and the air delivery ducts that distribute the heated or cooled air are located behind each cell (Id.). Each cell has a perforated supply vent, where the cool air enters the cell, and a return vent (Id.). Inmates cannot directly control the air flow (Id. ¶ 23). Plaintiff maintained that he believed he was told that his cell temperature was 96 degrees one day in July (Doc. #51, ex. 1 at 49). Plaintiff testified that the temperature in his cell was the same as the outside temperature, and the cooling system has no effect (Id. at 53). Deputy Warden Rivas attested that the temperature in CB7 was taken several times during the summer months of 2003 and the highest temperatures recorded were in the eighties (Id. ex. 2 ¶ 24). Rivas further attested that the system is maintained on a regular basis and the coolers receive a comprehensive yearly maintenance and filter cleaning immediately prior to the hottest portion of the year (Id. ¶ 25). Further, on a weekly basis the water leads are cleared of any debris or material which might affect distribution of water to the coolers (Id.). While in their cells, inmates are required to remain fully clothed unless they are preparing for bed or returning from the shower area (Doc. #51, ex. 2 ¶ 21). Plaintiff testified that it was "ridiculous" to require inmates to be fully clothed while in their cells (Id. at 59). Based on the summary judgment evidence, the cooling system in the prison along with the clothing requirement did not violate Plaintiff's Eighth Amendment rights. Plaintiff's cell was hot and uncomfortable. The cells are cooled with an evaporative cooling system which delivers cool air directly into Plaintiff's cell. The evidence demonstrates that in the summer, cell temperatures can reach the 80s; Plaintiff testified that "he believed" he was told the temperature was as high as 96 degrees. However, the high temperatures were not sustained after the sun set or after the summer months ended. Moreover, the cooling system was maintained frequently in order to alleviate the heat. Further, requiring Plaintiff to wear clothes in his cell, accompanied with the heat, did not violate his constitutional rights. Plaintiff was admittedly uncomfortable with the situation, but suffered no injuries. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (providing that "[t]o the extent that . . .
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conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society"). Because the combination of the cooling system and clothing policy did not result in a denial of the minimal civilized measure of life's necessities, Defendants are entitled to summary judgment as to this claim. See Lopez, 203 F.3d at 1132-33. C. Recreational Yard Plaintiff contended that the recreational yard was too small for meaningful exercise, that there was pigeon feces in the yard, and that he was unable to use the restroom while in the yard (Doc. #20). Exercise is "one of the basic human necessities protected by the Eighth Amendment [and] the long-term denial of outside exercise is unconstitutional." LeMaire v. Maass, 12 F.3d 1444, 1457-58 (9th Cir. 1993); see also Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984). Moreover, "[d]eprivation of outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term segregation." Keenan, 83 F.3d at 1090 (citations omitted). Inmates are allowed three hours of outside exercise time per week (Doc. #51, ex. 1 at 64; ex. 2 ¶ 11). The recreational yard is 9 feet, 8 inches long by 9 feet, 8 inches wide, and 8 feet, one inch high (Id. ex. 2 ¶ 11). The walls and ceiling of the yard are metal with diamond-shaped perforations measuring less than one inch in diameter (Id.). Fresh air and sunlight enter the cell through the perforations (Id.). The recreational yard does not contain exercise equipment and the inmates may not bring items into the area (Id. ¶ 15). While in the cell, Plaintiff was allowed to do calisthenics, run, or walk (Id. ex. 1 at 62; ex. 2 ¶ 17). Prisoners may also exercise in their cells (Id. ex. 2 ¶ 17). Inmates are not required to take advantage of their opportunity to use the recreational yard, and are not required to use their entire allotted time (Doc. #51, ex. 2 ¶ 18). Six correctional officers are assigned to the exercise area (Id. ¶ 13). If an inmate requests to use the restroom, if practical, an officer will escort the inmate to the bathroom (Id. ¶ 14). Depending on the situation, after the inmate uses the restroom the officer may return the

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inmate to the recreational yard (Id.). Plaintiff testified that he had been left in the yard too long and needed the bathroom, having to urinate in his water bottle (Id., ex. 1 at 69). Plaintiff is provided outside recreational opportunities in a small recreational yard. He is able to exercise, including running in place and walking. The small size of the recreational yard does not result in Plaintiff's denial of outside recreational activities and does not result in the denial of the minimal civilized measure of life's necessities. See Lopez, 203 F.3d at 1132-33. As for Plaintiff's inability to use the restroom, Plaintiff has not alleged or demonstrated that he asked to use the restroom. He alleged that he was left in the yard too long, but did not indicate that he ever informed anyone of his situation. Thus, Plaintiff cannot establish that Defendants knew of and disregarded a substantial risk to Plaintiff's health. See Farmer, 511 U.S. at 837. Plaintiff also alleged that the unsanitary condition of the recreational yard violated his constitutional rights. See Anderson, 45 F.3d at 1314. The recreational yard was exposed to pigeons, who defecated into the yard (Doc. #51, ex. 1 at 63; ex. 2 ¶ 19). In an attempt to keep the yard clean, the yard was cleaned on a weekly basis by inmates with hoses and scrub brushes (Id. ex. 2 ¶ 19). Plaintiff believed that no procedure existed for cleaning the yard, but admitted to having seen inmates clean the area with a hose on a limited, non-regular basis (Id., ex. 1 at 63). In addition, plastic spikes were put in place to deter pigeons from sitting on the ledges and during 2003, cages and traps were construed from chicken wire and placed on the roofs of some of the buildings (Id. ex. 2 ¶ 19). ADC officials also purchased a Bird Chase Ultrasonic System from Bird B Gone to alleviate the problem (Id.). During 2003 and 2004, the Facility Health Administrator monitored the pigeon droppings in the recreational yard and determined that there were not sufficient droppings to create a health hazard (Id. ¶ 20). Plaintiff, however, maintained that he refused to exercise because it was "nasty" (Id. ex. 1 at 66). Based on the summary judgment evidence, Plaintiff was not exposed to severe or prolonged unsanitary conditions. See Anderson, 45 F.3d at 1314. In addition, Defendants admit to a pigeon problem. However, ADC personnel put in substantial measures in an
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attempt to eliminate the problem, and during the interim cleaned the recreational areas. Although the yard was "nasty," the Facility Health Administrator determined that the droppings did not create a health hazard. Thus, Defendants did not know of and disregard a substantial risk of harm. See Farmer, 511 U.S. at 837. To the contrary, they actively attempted to alleviate any risk. Thus, Defendants are entitled to summary judgment as to this claim. D. Visitation Plaintiff argued that the layout of the visitation area made visits impractical due to excessive noise (Doc. #20). In particular, Plaintiff testified that the noise in the area forced him to yell (Doc. #51, ex. 1 at 73). Inmates are allowed visitation on a weekly basis, with up to four visitors at a time (Doc. #51, ex. 2 ¶ 30). The visitation takes place in a cubicle with the inmate on one side of a glass and the visitors on the other (Id.). Inmates may talk through the glass to their visitors; there are no telephones in the cubicles (Id.). As a result of the number of inmates and the lack of phones, the inmates have to get into the corner of the glass and yell at the visitors in order to be heard (Id. ex. 1 at 73). Plaintiff has regular visitors (Id.). Inmates do not have a right to "unfettered visitation." Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989); see also Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir. 1986) (providing that inmates are not constitutionally entitled to contact visitation). Plaintiff was provided visitation with family members on a weekly basis. The mere fact that others were in the room and the room was noisy did not result in the loss of visitation or the deprivation of the minimal civilized measure of life's necessities. See Lopez, 203 F.3d at 1132-33. Defendants are thus entitled to summary judgment as to this claim. Because Plaintiff was not deprived of the minimal civilized measure of life's necessities and Defendants were not aware of and disregarded a substantial risk to Plaintiff's safety, Defendants are entitled to summary judgment. The Court will grant Defendants' motion and dismiss Plaintiff's action.
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IT IS ORDERED: (1) Defendants' Motion for a Ruling (Doc. # 74) is denied as moot. (2) Defendants' Motion for Summary Judgment (Doc. #50) is granted. (3) The Clerk of Court must enter judgment in favor of Defendants, and dismiss with prejudice Plaintiff's action.

DATED this 12th day of February, 2007.

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