Free Order on Motion to Dismiss Case - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

JDN

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Alvin LaRue Pinkoson, Plaintiff, vs. Joseph Arpaio, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

No. CV 03-1928-PHX-ROS (MEA) ORDER

Plaintiff Alvin Larue Pinkoson brought this civil rights action under 42 U.S.C. § 1983 against Joseph Arpaio, Maricopa County Sheriff, and Tate, Captain of the Maricopa County Towers Jail (Doc. #9).1 Defendants moved to dismiss isolated claims for failure to exhaust administrative remedies (Doc. #40). Then, they filed a separate Motion for Summary Judgment as to the remaining claims (Doc. #41). Plaintiff responded to the two motions (Doc. #57-58)2, and Defendants replied in support of the Motion to Dismiss (Doc. #60).3 The
1

Upon screening, the Court dismissed the Maricopa County Board of Supervisors as a Defendant (Doc. #12). Plaintiff's two response memorandums were signed and dated by Plaintiff on July 19 and 20, 2007 (Doc. ##57-58); thus, they were filed within the deadline set by the Court in its prior Order (see Doc. #55). See Houston v. Lack, 487 U.S. 266, 270-71 (1988) (a document submitted by a prisoner is deemed filed the day the document is delivered to officials for mailing; that day is determined by the signature date of the document). Because Defendants' reply in support of the Motion for Summary Judgment and their Controverting Statement of Facts (Doc. ##61-62) were not timely filed, they will not be considered by the Court (see Doc. #45) ("Defendants shall file any reply within fifteen (15) days from the date Plaintiff's response is filed").
Document 63 Filed 08/17/2007 Page 1 of 14
3 2

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Court will deny the Motion to Dismiss, and grant the Motion for Summary Judgment. I. Background In his First Amended Complaint, Plaintiff alleged that his Eighth Amendment rights were violated by the conditions of confinement at the Towers Jail (Doc. #9). Plaintiff claimed that as a result of the severely overcrowded conditions at the jail, there were "systematic deficiencies in staffing, facilities, equipment, procedures, access to recreation, access to religious services, taking of legal materials, and [ ] extreme tension and violence" (id. at 4-4A). He alleged that the conditions resulted in triple bunking, the denial of recreation, and the denial of religious services because only a limited number of inmates were allowed to participate in these activities (id. at 4A, 4C). Plaintiff further claimed that his legal materials were confiscated and that the overcrowding led to tension and violence; he stated that he was assaulted in November 2003 (id. at 4B-4C). As a result of this assault, Plaintiff required emergency medical treatment and suffered head trauma, including a laceration in his ear, hematomas, and loss of hearing (id. at 4, 4D). Plaintiff alleged that Arpaio and Tate were responsible for overall supervision and the treatment of inmates and that they deprived Plaintiff of his constitutional rights thereby causing injuries (id. at 4, 4E). Pursuant to the Court's Screening Order, Defendants filed an Answer to the First Amended Complaint (Doc. ##12, 16). Defendants then filed two dispositive motions: a Motion to Dismiss and a Motion for Summary Judgment (Doc. ##40, 41). II. Motion to Dismiss In their first motion, Defendants contended that for his claims concerning the lack of recreation and access to religious services, Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) (Doc. #40). In support, Defendants submitted the affidavit of Susan Fisher, a Sergeant assigned to the Inmate Hearing Unit (id., Ex. 1, Fisher Aff. ¶¶ 1-2). Fisher attested that Policy DJ-3, which governs the inmate grievance procedures, does not restrict the type of issue or grievance content that an inmate may submit (id. ¶¶ 3-4). She further attested that during his confinement at the jail, Plaintiff filed a number of grievances (id. ¶¶ 7-9). But
-2Document 63 Filed 08/17/2007 Page 2 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Fisher avowed that, according to the sheriff's office grievance records, Plaintiff did not file any grievances concerning the lack of recreation or access to religious services (id. ¶ 8). Defendants attached copies of Policy DJ-3 and the Rules and Regulations for Inmates, as well as copies of Plaintiff's grievances related to overcrowding and the denial of a kosher diet (id., Exs. A-B, D). The Court issued an Order informing Plaintiff of his obligation to respond and the evidence necessary to successfully rebut Defendants' contentions (Doc. #44).4 After the Court provided extensions of time to respond to the motion, Plaintiff submitted his response (Doc. ##48, 53, 55, 58). Plaintiff disputed Defendants' claim that inmates may grieve any issue and he claimed that there is policy of officers violating Policy DJ-3 by informing inmates that some issues are not grievable, failing to respond to grievances, or refusing to process or accept grievance forms (Doc. #58 at 2). Plaintiff argued, however, that he submitted a grievance concerning overcrowding and appealed that grievance all the way to the External Referee (id. at 4). He also stated that he grieved some of the specific effects of overcrowding, but that officials either failed to respond or destroyed his grievances (id.). In their reply, Defendants reiterated their argument that Plaintiff failed to file any separate grievances related to recreation or access to religious services; thus, these claims should be dismissed for nonexhaustion (Doc. #60). A. Legal Standard

Plaintiff must first exhaust "available" administrative remedies before bringing this action. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). He must complete the administrative review process in accordance with the applicable rules. See Woodford v. Ngo, 126 S. Ct. 2378, 2384 (2006). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001).

4

Notice required under Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 14 (9th Cir. 2003).
-3Document 63 Filed 08/17/2007 Page 3 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Exhaustion is an affirmative defense. Jones v. Bock, 127 S. Ct. 910, 919-21 (2007). Defendants bear the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Because exhaustion is a matter of abatement in an unenumerated Rule 12(b) motion, a court may look beyond the pleadings to decide disputed issues of fact. Id. at 1119-20. Further, a court has broad discretion as to the method to be used in resolving the factual dispute. Ritza v. Int'l Longshoremen's &

Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) (quotation omitted). B. Analysis

The evidence demonstrates that Plaintiff utilized the jail's grievance system to complain about overcrowding at the jail and allege that the conditions amounted to cruel and unusual punishment (Doc. #40, Ex. D). Defendants concede that this grievance was exhausted (id.; Ex. 1, Fisher Aff. ¶ 8). The External Referee's response to Plaintiff's grievance addressed the central overcrowding and inmate population problem; it made no mention of triple-bunking, one of the consequences of overcrowding that Plaintiff complained of in his grievance and in his amended pleading (Doc. #40, Ex. D). Thus, the External Referee did not view Plaintiff's grievance as a complaint about triple-bunking; rather, it was construed as complaint about overcrowding. Likewise, the Court properly viewed Plaintiff's First Amended Complaint as a claim about overcrowding and the overall conditions at the jail. As the Court explained in its Screening Order, Plaintiff alleged one ground in his First Amended Complaint--that his Eighth Amendment rights were violated by the totality of conditions at the jail (Doc. #12 at 3-4). He did not set forth four separate claims as to recreation, lack of religious services, an assault, and the loss of legal materials. For example, if these consequences of overcrowding were alleged as separate claims, the lack of religious services claim would be brought under the First Amendment, as would the claim regarding the confiscation of legal materials. Defendants' attempt to divide Plaintiff's claim into separate counts and thereby parse out some of them because they were not individually grieved is unavailing (see Doc. #40 at 2). Plaintiff specifically grieved and appealed his complaint that the conditions at the jail
-4Document 63 Filed 08/17/2007 Page 4 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

constituted cruel and unusual punishment--this is the sole count in this lawsuit. As such, the Court finds that Plaintiff exhausted the available administrative remedies for his claim. Defendants' Motion to Dismiss will be denied. III. Motion for Summary Judgment Defendants moved separately for summary judgment on the grounds that (1) Plaintiff's constitutional rights were not violated, (2) Defendants were not deliberately indifferent; (3) Defendants cannot be liable on the basis of respondeat superior,(4) Plaintiff failed to demonstrate the requisite injury for compensatory damages under 42 U.S.C. § 1997e(e), and (5) punitive damages are barred (Doc. #41). A. Summary Judgment

A court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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). 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, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the non-moving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). All reasonable inferences are drawn in favor of the nonmovant. Gibson v. County of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the moving party presents evidence that, taken by itself, would establish the right to a directed verdict at trial, the motion for summary judgment must be granted in the absence of any significant probative
-5Document 63 Filed 08/17/2007 Page 5 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

evidence tending to support the opposing party's theory of the case. First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968); THI-Hawaii, Inc. v. First Commerce Fin. Corp., 627 F.2d 991, 993-94 (9th Cir. 1980). Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. In prisoner cases, the courts must distinguish between evidence of disputed facts and disputed matters of professional judgment. In respect to the latter, any inferences must accord deference to the views of prison authorities. Unless a prisoner can point to sufficient evidence regarding such issues of judgment to allow him to prevail on the merits, he cannot prevail at the summary judgment stage. Beard v. Banks, --- U.S. ----, ----, 126 S. Ct. 2572, 2576 (2006). Where reasonable minds could differ on the material facts at issue, however, summary judgment should not be granted. Anderson, 477 U.S. at 251. B. Overcrowding

The Supreme Court and Ninth Circuit have made clear that overcrowding alone is not a violation of the Eighth Amendment.5 Rhodes v. Chapman, 452 U.S. 337, 345-350 (1981); Hoptowit v. Ray, 682 F.2d 1237, 1249 (9th Cir. 1982). But overcrowding may result in circumstances that rise to the level of Eighth Amendment violations, including increased violence, the reduction of other constitutionally required services such that they fall below Eighth Amendment standards, and the deterioration of shelter to the point that it is unfit for human habitation. Hoptowit, 682 F.2d at 1249; see also Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987) (per curiam) (reversing district court's dismissal of claim that overcrowding caused increased stress, tension, communicable disease, and confrontation between inmates); Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (constitutional violation may

The parties do not dispute that Plaintiff was a convicted prisoner during his confinement at the Towers Jail; the Eighth Amendment, rather that the Fourteenth Amendment, therefore applies to Plaintiff's claim (see Doc. #9 at 4E; Doc. #41 at 7).
-6Document 63 Filed 08/17/2007 Page 6 of 14

5

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

occur as a result of overcrowded prison conditions engendering violence, tension and psychiatric problems). IV. Analysis The Court will first address the question of whether there was a violation of Plaintiff's Eight Amendment rights. In analyzing an Eighth Amendment violation claim, the Court must look at discrete areas of basic human needs. An institution is obligated under the Eighth Amendment to furnish inmates with adequate food, clothing, shelter, sanitation, medical care, and personal safety. Hoptowit, 682 F.2d at 1246. There is no constitutional violation if each of these basic needs is separately met. Thus, "[a] number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation." Id. at 1247. In their motion, Defendants contend that they met each of the constitutionally required needs (Doc. #41 at 7-8). They maintain that the conditions at the jail did not constitute the extreme deprivations that are required to make out an Eighth Amendment claim (Doc. #41 at 8). A. Triple Bunking

Defendants argue that there is no evidence that triple bunking at the jail effected a constitutional violation. Their evidence establishes that the Towers Jail was permitted to house 1080 inmates, which allowed for triple bunking, and that these triple bunked cells were inspected and approved by the Fire Marshall and the Maricopa County Health Inspector (Doc. #42, Ex. 3, Hudson Aff. ¶ 4). Plaintiff alleged that as a result of triple bunking, three inmates were left with only 17 square feet of living space (Doc. #9 at 4A).6 He further claimed that there were 45 inmates crammed into 15 cells, and the lack of seating forced Plaintiff to constantly eat standing up or near the restrooms (id.). Because a verified complaint may be used as an affidavit opposing summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence, the Court will consider the allegations set forth in Plaintiff's First Amended Complaint. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995).
-7Document 63 Filed 08/17/2007 Page 7 of 14
6

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The Court finds that Plaintiff has failed to demonstrate a material question of fact that he suffered constitutional deprivations as a result of these consequences of overcrowding. Double or triple bunking of inmates is not per se unconstitutional. Rhodes, 452 U.S. at 348. Plaintiff did not allege that the overcrowding resulted in the lack of a bed to sleep in or the denial of food, nor did he allege any "specific deprivation of a single human need" as a result of the bunking or insufficient seating. See Wilson v. Seiter, 501 U.S. 294, 305 (1991). Although Plaintiff had to eat near the toilets, he did not make any claims regarding the sanitation of the toilets or how it may have affected his meals. As such, while the evidence demonstrates that there was overcrowding at the jail that led to triple bunking and insufficient seating, there is no evidence that these conditions violated the Eighth Amendment. B. Access to Religious Services

Defendants maintain that there is no evidence that overcrowding affected Plaintiff's ability to attend church services (Doc. #41 at 9). They submit the affidavit of Gregory Millard, Chaplain and Commander of Religious Services for inmates at the county jails (Doc. #42, Ex. 4, Millard Aff. ¶ 1). Millard attests that an inmate may file a request to see his Rabbi or a request for prayer with a religious leader (id. ¶¶ 4-5). There is no evidence that Plaintiff ever sought a visit with a Rabbi or other religious leader (id. ¶ 5). Millard also states that if there are too many inmates who want to go to a religious service, another service is added so that all inmates have a chance to attend (id. ¶ 6). Defendants also submit the affidavit of Lieutenant Donna Hudson, who avows that a review of the inmate logs from October 2003 reflect that there were church services offered 11 days that month, with 3-10 inmates participating in each service (id., Ex. 3, Hudson Aff. ¶ 9). But the evidence shows that Plaintiff did not attend any of these 11 services (id.). Plaintiff disputes Defendants' assertions that he could have easily attended church services. Plaintiff claims that officials capped the number of inmates who could participate in religious services at 8 inmates from each pod. There were 24 inmates per pod; thus, as a result of overcrowding, the majority of inmates were denied participation in this activity (Doc. #57at 2-3). Plaintiff proffered copies of the headcount rosters that charted when
-8Document 63 Filed 08/17/2007 Page 8 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

inmates participated in religious services (Doc. #59, Ex. 1). Plaintiff was only able to attend religious programs 2 times in 19 weeks (id., Doc. #57 at 3-4). To establish a religious free exercise violation, Plaintiff must show that Defendants burdened the practice of Plaintiff's religion by preventing him from engaging in conduct mandated by his faith. Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997). Even considering Plaintiff's claim that services were capped at 8 inmates, Defendants established that Plaintiff did not attend some of these services that had as few as 3 inmates participating. Further, the evidence demonstrates that Plaintiff made no request for and thus was not denied the opportunity to engage in prayer or religious practice with a religious leader. And in his deposition, Plaintiff confirmed that he received a kosher diet throughout his confinement and he was not prohibited from praying in his cell (Doc. #42, Ex. 5, Pl. Dep. 29:2-12, 30:17-19, April 11, 2006). Consequently, there exists no material issue of fact suggesting that Defendants prevented Plaintiff from engaging in his religious faith. C. Recreation

Defendants argue that there is no proof that overcrowding affected Plaintiff's ability to exercise. They submit the affidavit of Lieutenant Ellison, who was the shift supervisor at the Towers Jail in 2003 (Doc. #42, Ex. 6, Ellison Aff. ¶ 1). Ellison attests that inmates were allowed out of their cells for 16 hours a day and had access to the day room and they could do exercises such as callisthenics (id. ¶ 9). Other evidence demonstrates that opportunities for outdoor recreation were at times limited by inclement weather, flooded yards, security issues, or maintenance (id., Ex. 3, Hudson Aff. ¶ 6). Plaintiff alleges that, just like with religious services, officials capped the number of inmates who could participate in recreation at 8 inmates per pod (Doc. #57 at 2-3). The copies of headcount rosters reflect that Plaintiff was only able to attend recreation 5 times in 19 weeks (Doc. #59, Ex. 1). To counter Defendants' assertion that Plaintiff could have exercised at any time, Plaintiff submits a copy of a disciplinary ticket he received for performing martial arts in his cell (id., Ex. 4). Plaintiff alleged that it was against the rules for inmates to exercise in their cells (Doc. #57 at 6). Defendants did not reply to Plaintiff's
-9Document 63 Filed 08/17/2007 Page 9 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

claims or his evidence showing punishment for conducting martial arts inside his cell. The deprivation of outdoor exercise by jail officials to inmates can constitute cruel and unusual punishment in violation of the Eighth Amendment. Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979); Keenan v. Hall, 83 F.3d 1083, 1089-90 (9th Cir. 1996) (summary judgment precluded where the plaintiff produced evidence showing deprivation of outdoor exercise for 6-month period in administrative segregation). The Ninth Circuit has expressed that some amount of regular outdoor exercise is important to the psychological and physical well being of inmates. Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995). Regular outdoor exercise is therefore necessary unless weather, disciplinary needs, or an emergency make it impossible. Spain, 600 F.2d at 199; see Hayword v. Procunier, 629 F.2d 599, 603, (9th Cir. 1980) (deprivation of outdoor exercise and a 5month lockdown in response to an emergency did not violate the Eighth Amendment). But a "temporary denial of outdoor exercise with no medical effects is not a substantial deprivation." May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (21 days without outdoor recreation insufficient to establish Eighth Amendment violation). Plaintiff has failed to show the existence of a genuine issue of material fact demonstrating that the lack of recreation amounted to a constitutional violation. Plaintiff's confinement at the jail was not long-term; it lasted from August 2003 through December 2003 (Doc. #59, Pl. Statement of Facts ¶ 1). By his own account, Plaintiff participated in recreation 5 times during this 19 week period (id. ¶ 2). Although the evidence reflects that Plaintiff gained some weight while housed in the jail, there is no showing of detrimental medical effects from the limited recreational opportunities. The Court finds that Plaintiff's allegations do not rise to a level of deprivation that the Ninth Circuit deems violative of the Eighth Amendment. D. Legal Materials

Defendants contend that because Plaintiff was not harmed by the loss of legal materials, this claim must fail (Doc. #41 at 11). They rely on Plaintiff's deposition testimony to demonstrate that Plaintiff's pending criminal case was dismissed and his prior civil action
- 10 Document 63 Filed 08/17/2007 Page 10 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

was only delayed as a result of the loss of legal materials; Plaintiff stated that he was able to redo all the research and file an amended complaint that successfully reinstated his civil action (Doc. #42, Ex. 5, Pl. Dep. 48:14-50:18). As for the legal materials relevant to the present action, Plaintiff testified that losing them caused a delay and resulted in the loss of some case law forever; however, he was able to file his complaint and proceed with the case (id. 50:22-51:23). To establish a claim that his right of access to the courts was violated, Plaintiff must show that he suffered an actual injury, such as a missed filing deadline or the inability to present a claim. Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999). The record reflects that Plaintiff was able to bring his complaints to court and, outside of some delay, did not suffer an actual injury. Thus, Plaintiff cannot establish a constitutional violation related to the loss of his legal materials. E. Increased Tension and Violence

The parties dispute whether or not Plaintiff was assaulted on November 23, 2003. Because Plaintiff's evidence creates a question of fact on this issue, in its analysis of Plaintiff's claim that overcrowding caused increased violence and tension, the Court will presume that there was an assault as alleged by Plaintiff. See Anderson, 477 U.S. at 255 (the non-moving party's evidence must be believed and all inferences must be drawn in his favor). Defendants argue that even if there was an assault on Plaintiff, there is no evidence linking the assault to overcrowding (Doc. #41 at 9). They rely on the affidavit testimony of Ellison, who attests that based on his experience at the Towers Jail in 2003, there was no evidence of an increase in violence in the jails due to three inmates being housed per cell (Doc. #42, Ex. 6, Ellison Aff. ¶¶ 1, 10). Defendants also submit evidence demonstrating that they were aware of the increasing jail population and that to alleviate the crowding problem, the county sheriff's office began construction on two new jail facilities in 1999 (Doc. #42, Ex. 3, Hudson Aff. ¶ 5). These jails were still being built at the time Plaintiff was in jail. Meanwhile, Defendants remained
- 11 Document 63 Filed 08/17/2007 Page 11 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

obligated under state law to house those inmates referred to them by the courts despite an increasing population that was beyond their control (id.). Finally, Defendants argue that there is no evidence establishing that there was a policy or custom of overcrowding in the jail. Defendants have proffered evidence that overcrowding at the jail did not result in an increase in violence and was not deliberate. The burden now shifts to Plaintiff, and the question the Court must answer is whether Plaintiff has produced sufficient evidence for a reasonable jury to conclude that he was exposed to violence and an assault as a result of overcrowding at the jail. See Rhodes, 452 U.S. at 348-349; Hoptowit, 682 F.2d at 1249. In his verified First Amended Complaint, Plaintiff alleged that imminent danger was a constant threat to his safety and that tension and violence were rampant (Doc. #9 at 4C). He avowed that the assault was a direct result of tension caused by overcrowding and he reiterated these claims in his response memorandum (id.;Doc. #57 at 3-4, 6-9). To demonstrate that Defendants were aware of the violent conditions resulting from overcrowding, Plaintiff proffers a copy of Tate's response to Plaintiff's grievance appeal about overcrowded conditions (Doc. #59, Ex. 4). Tate expressed that he was aware of the crowding problem but stated that they were making a good faith effort to rectify it (id.). The Court notes that in his grievance appeal, Plaintiff did not allude to any tension or violence stemming from the overcrowding; he only referred to triple bunking and the "overcrowded conditions which amount to `cruel & unusual punishment'" (id.). Thus, this evidence fails to establish any connection between the crowding at the jail and either the assault on Plaintiff or a general increase in violence. Plaintiff nonetheless argues that his assault in November 2003 was a result of the rampant violence caused by severe overcrowding (Doc. #57 at 3). But Plaintiff has failed to allege how overcrowding at the jail led to his assault. He did not describe the facts leading up to the assault in either his First Amended Complaint or his response memorandum. Even in his deposition, Plaintiff did not identify facts that would suggest that the assault was caused by overcrowding (Doc. #59, Ex. 9, Pl. Dep. 52:24-54:23). Consequently, the only
- 12 Document 63 Filed 08/17/2007 Page 12 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

evidence supporting Plaintiff's claim is his sworn statement that "tension and violence were rampant," and that he was assaulted as a result of overcrowding (Doc. #9 at 4-C, 4-E). On a motion for summary judgment, bare allegations unsupported by any factual data do not give rise to a genuine dispute of material fact. See Hansen v. U.S., 7 F.3d 137, 138 (9th Cir. 1993). Plaintiff's claim regarding the rampant violence is simply too general to indicate that he was subject to an assault, or other violence, as a result of overcrowding. Plaintiff provides no other allegations or evidence to support his claim. As such, Plaintiff failed to establish an essential element of his case on which he bears the burden of proof at trial. See Celotex, 477 U.S. at 322-23. Moreover, to establish a § 1983 claim that jail conditions violated his Eighth Amendment rights, Plaintiff must show not only that those conditions imposed cruel and unusual punishment, but that Defendants acted with deliberate indifference. Wilson, 501 U.S. 294. Officials are deliberately indifferent if they both know of and disregard an excessive risk to inmate health; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). As stated, Plaintiff did not identify any facts demonstrating that overcrowding led to violence or his assault; thus, there is no evidence that Defendants were aware of and disregarded facts showing such a risk of harm to Plaintiff. There is also nothing in the record to support a finding that the crowding at the jail was deliberate or completely without penological justification. See Rhodes, 452 U.S. at 345-46. Indeed, Defendants' effort to move inmates into two new jails to relieve overcrowding precludes any finding of deliberate indifference. V. Conclusion The Court concludes that Defendants have demonstrated that there are no genuine issues of material fact as to any elements of Plaintiff's overcrowding claim. Because none of the conditions complained of by Plaintiff violate Eighth Amendment requirements, Plaintiff has failed to demonstrate that the totality of the overcrowding conditions at the jail
- 13 Document 63 Filed 08/17/2007 Page 13 of 14

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

amounted to an Eighth Amendment violation. See Hoptowit, 682 F.2d at 1247. Defendants' Motion for Summary Judgment will therefore be granted. In light of this ruling, the Court need not address the legal arguments raised by Defendants concerning respondeat superior, the physical injury requirement under 42 U.S.C. § 1997e(e), and damages. IT IS ORDERED: (1) (2) (3) Defendants' Motion to Dismiss (Doc. #40) is denied. Defendants' Motion for Summary Judgment (Doc. #41) is granted. The Clerk of Court shall dismiss this action and enter judgment accordingly. DATED this 17th day of August, 2007.

Case 2:03-cv-01928-ROS-MEA

- 14 Document 63 Filed 08/17/2007

Page 14 of 14