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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Mark E. Hampton, Plaintiff, vs. Charles Ryan, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 03-1706-PHX-NVW ORDER

Plaintiff Mark E. Hampton is litigating a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is represented by counsel. Currently before this Court is Defendants' Motion for Summary Judgment (Doc. # 59). The Court will grant summary judgment and dismiss Plaintiff's action. I. Background Plaintiff sued former Acting Director of the Arizona Department of Corrections (ADC) Charles Ryan, current Director Dora Schriro, Deputy Warden Conrad Luna, and Correctional Classification Specialist Barbara Shearer, for violations of his civil rights arising out of his placement and continued detention in Special Management Unit Two (SMU II), the "supermax" unit of ADC (Doc. #51). He brought two counts for relief (Id.). In Count I, Plaintiff alleged that his constitutional rights were violated by his initial and continued placement in SMU II (Doc. #51). Plaintiff maintained that (1) his ex post facto rights were violated because his validation as a Security Threat Group (STG) member was based on acts occurring before 1995, when the Aryan Brotherhood was designated as an STG; (2) his due process rights were violated by his initial validation; (3) his due process
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rights were violated by a "meaningless" review of his placement; (4) his substantive and procedural due process rights were violated by being required to "debrief" or "snitch" in order to be transferred; and (5) his substantive due process rights were violated by being placed in indefinite solitary confinement with "atypical" conditions (Id.). Plaintiff also believes that as long as he remains confined in SMU II, he is not eligible for parole (Id.). In Count II, Plaintiff alleged that his Eighth Amendment rights were violated by the denial of life's minimum necessities and the right to be free from cruel and unusual punishment, including: (1) virtually complete isolation; (2) constant exposure to lighting; (3) limited recreation or exercise opportunities; (4) denial of food; (5) denial of other privileges; (6) denial of sufficient opportunities to shower, cold weather clothing and basic over-the-counter medications; (7) restricted personal liberties; and (8) humiliating treatment (Id.). Plaintiff also argued that Defendants were deliberately indifferent to his medical needs because they did not provide him adequate treatment for his various medical conditions. Plaintiff seeks injunctive, declaratory, and monetary relief (Id.). Defendants moved for summary judgment, submitting the declarations of Supervisor of the STG Unit Todd Gerris, Classification Manager Stacy Crabtree, Deputy Warden Carson McWilliams, Electrical Engineer Gerald E. Katafiasz, and Dr. Jeffery Sharp, M.D.; the affidavit of Time Computation Program Specialist Susan Kaye; and a transcript of Plaintiff's deposition (Docs. ##59, 60). Plaintiff responded, attaching his affidavit;1 affidavits of Dr. James. F. Doris, M.D., Beckie Bonnell, Plaintiff's sister, and fellow inmate William Mark Isbelli; the statement of George M. DeLong, Ph.D.; a deposition of Lieutenant William Powell, Jr., taken in Koch v. Lewis, No. 90-1872; and responses to inmate grievances submitted by Plaintiff (Doc. #66). II. Mootness Initially, the recent changes in policy do not moot Plaintiff's case. First, voluntary cessation does not necessarily moot an issue as Defendants may reinstate prior policies. See

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Plaintiff's signed affidavit was filed with his Amended Response (Doc. #73).
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Chemical Producers and Distrib. Ass'n v. Helliker, 463 F.3d 871, 877-78 (9th Cir. 2006). Second, the new policies merely change the landscape, i.e. provide Plaintiff an opportunity for transfer without debriefing and provide additional recreational opportunities, but do not change the constitutional challenges, i.e. that Plaintiff's due process rights are violated by his continued placement in SMU II and his Eighth Amendment rights are violated by the lack of sufficient outdoor recreational opportunities. III. 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 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 Arizona 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.

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IV. Due Process A. The STG Process and Plaintiff's Validation ADC implemented a policy "to minimize the threat that inmate gang activity poses to the safe, secure and effective operation of Arizona's prisons" (Doc. #60, ex. A ¶ 3). The policy provides for the identification, validation, and re-classification of inmates determined to be members of an STG (Id.). An STG is "[a]ny organization or group of individuals, either formal or informal, . . . that may have a common name or identifying sign or symbol, and whose members engage in activities that include, but are not limited to: planning, organizing, threatening, financing, soliciting, committing or attempting to commit unlawful acts or acts that would violate the Department's written instructions, which detract from the safe and orderly operation of prisons" (Id. ¶ 4). A validated STG member is considered an ongoing threat to prison security (Id. ¶ 13). In 1995, ADC determined that the Aryan Brotherhood was an STG (Doc. #51). When an inmate is suspected of being an STG member, an investigation is conducted to determine if the inmate meets the validation criteria (Doc. #60, ex. A ¶ 6). The staff considers as indicators of STG activity things such as gang-specific tattoos, possession of gang-related literature, self-admissions, and voluntary association with other gang members, which may be demonstrated in group photographs (Id.). If the inmate meets validation criteria, he is given a hearing (Id.). The inmate is provided prior notice of the hearing and may present a defense (Id. ¶ 9). Plaintiff was notified that he was a suspected member of an STG five days before his validation hearing (Doc. #60, ex. A ¶ 23; ex. G at 39). Plaintiff was advised of his right to appear at the hearing and to request witnesses (Id. ex. A ¶ 23; ex. G at 40). Plaintiff was present at his October 28, 1998, hearing, and the testimony of his three witnesses which he received prior to the hearing was submitted (Id. ex. A ¶¶ 23-24; ex. G at 40-41). On October 28, 1998, Plaintiff was validated as a member of the Aryan Brotherhood based on (1) a photograph taken at ASPC-Florence/Central Unit, Athletic Field with Plaintiff and at least five suspected or validated members of the Aryan Brotherhood; (2) an ADC
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report documenting Plaintiff's association with three validated and one suspected member of the Aryan Brotherhood; (3) an ADC report documenting observations of Plaintiff associating with two validated and one suspected member of the Aryan Brotherhood; and (4) two membership lists recovered from separate validated Aryan Brotherhood members that included Plaintiff's name and ADC number (Doc. #60, ex. A ¶ 24; ex. G at 39). Plaintiff, however, maintains that the evidence was not sufficient to support a conclusion that he was a member of the Aryan Brotherhood (Id. ex. G at 42). In particular, Plaintiff contended that the alleged association consisted of a conversation with two separate individuals, one conversation occurring in 1991 (Id. at 45-46; Doc. #66, Plaintiff's Aff. ¶ 3). Plaintiff did not recall any specifics of the conversations, but denied discussing Aryan Brotherhood-related activities (Doc. #66, Plaintiff's Aff. ¶ 3). Plaintiff testified that the group photograph was taken between October 1989 and July 1991, and was actually a picture of a group of individuals working in an inmate-run snack shop and was taken with ADC approval, by an ADC staff member (Doc. #60, ex. G at 48-49; Doc. #66, Plaintiff's Aff. ¶ 2). Plaintiff denied knowingly associating with members of the Aryan Brotherhood (Doc. #60, ex G at 47). In fact, Plaintiff has family members who are of Hispanic heritage and he harbors no ill-will toward anyone on the basis of race (Doc. #66, Plaintiff's Aff. ¶ 10). Plaintiff denied membership in an STG, and he believes that he was validated due to his refusal to testify in a criminal prosecution (Id. ¶¶ 9-10). If the inmate is determined to be an STG member, he may renounce gang membership and debrief, accept the validation but choose not to debrief, or appeal the validation (Doc. #60, ex. A ¶ 10). Plaintiff chose not to debrief, and his appeal from the validation was denied on November 1, 1998 (Id. ex. A ¶¶ 25, 29; ex G at 30). A validated STG member who does not debrief and whose appeal is denied is housed in SMU II (Id. ex. A ¶ 11). SMU II is a high-security facility for inmates with high-risk needs, including (1) STG members, (2) death row inmates, (3) inmates under investigation for protective custody, and (4) inmates with high classification scores (Id. ex C ¶ 7). Plaintiff was transferred to SMU II on February 8, 1999 (Id. ex. A ¶ 26; Doc. #66, Plaintiff's Aff. ¶ 4).
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ADC reviews the inmate's case approximately every 180 days (Doc. #60, ex. B ¶ 12). Absent security concerns, generally an inmate is present during the review and may make a statement and present information (Id. ¶ 13). If there is a security concern, the inmate is not present at the hearing and cannot make a statement or present evidence (Id. ¶ 14). If no change is expected as to his placement, an inmate may also waive his right to appear, and submit a written statement (Id.). In addition, an inmate is not present for a Type 89 review, i.e. a quick paperless review that does not affect an inmate's classification (Id. ¶ 13). Plaintiff has received a classification review approximately every 180 days since his placement in SMU II (Doc. #60, ex. B ¶ 15). Prior to each review, Plaintiff was served with classification referral notices which informed him of the hearing, and notified him of his right to appear at the hearing, call relevant witnesses, remain silent, receive a finalized copy of the findings, and appeal any errors or overrides (Id. ¶ 16). Plaintiff also had approximately three Type 89 reviews (Id. ¶ 17). Plaintiff testified that for the first few years after his validation, he received two in-person hearings a year (Id. ex. G at 63). Currently, he is provided one paperless and one in-person review each year (Id.). Plaintiff, however, is informed after the paperless review that there will be no change in his classification (Id. at 66). Plaintiff admitted that he refused to attend his first few hearings because he believed it "was an exercise in futility" because he was unwilling or unable to renounce or debrief (Id. at 64). The STG inmate may be released from SMU II confinement if he subsequently renounces STG membership and satisfactorily competes the debriefing process (Doc. #60, ex. A ¶ 14;ex. C ¶ 8). The purpose of debriefing is not to obtain incriminating criminal information or evidence against an inmate, but so (1) the inmate can convince ADC that he is no longer a member of the STG; (2) the inmate can provide information regarding the STG in order to assist ADC in management; and (3) ADC can determine if the inmate requires protection (Id. ex. A ¶ 15). ADC recently modified its policy to allow an STG inmate to be re-classified without debriefing (Doc. #60, ex. A ¶ 16; ex. C ¶ 9). In particular, the STG Step-Down Program provides an alternative method for validated STG inmates to demonstrate to that they are no
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longer involved in STG activity (Id. ex. A ¶ 16). To qualify for the Step-Down Program, an inmate must spend 48 months as a validated STG member (Id. ¶ 17). An inmate may request to participate in the program if he has not participated in any documented gang activity or gang-like activity and has no documented incidents of assaults, extortion or threats against staff or other inmates for the 24 months prior to the request (Id.). An inmate may also qualify for the program upon recommendation by Institutional Re-Classification staff, Unit Deputy Warden, STG Unit staff, or Central Classification staff (Id. ¶ 18). The inmate must successfully complete a polygraph examination regarding his intent in participating in the program (Id. ¶ 17). The Step-Down Program takes 18 months to complete, during which time the inmate must (1) not participate in any significant STG activity; (2) complete certain programs such as anger management; (3) attend counseling as necessary; (4) participate in peer support group activities; (5) refrain from disciplinary behavior that changes his classification or housing assignment; and (6) not have unrestrained movement until Department Psychology staff and the Staff Inmate Reintegration Team have completed an evaluation (Doc. #60, ex. A ¶¶ 19). The Step-Down Program is divided into 6 phases, and each phase is 90 days in duration (Doc. #60, ex. A ¶ 20). Upon successful completion of the 18-month program, the inmate may be eligible for transfer out of SMU II to Central Unit's general population or remain in the Step-Down Program (Id. ¶¶ 20). Plaintiff was accepted as part of the second group of inmates in the Step-Down Program (Doc. #66, Plaintiff's Aff. ¶ 7). B. Procedural Due Process - Initial Placement Defendants admit that Plaintiff has a liberty interest in not being placed in SMU II, but argue that he received sufficient due process (Doc. #59).2 Plaintiff argued that the evidence used to validate him was almost exclusively pre-1995 evidence, which was when Defendants also argue that Plaintiff's challenge to his initial placement is time-barred. However, because this was raised for the first time in the reply, and Plaintiff is unable to contest this assertion, this issue will not be considered.
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ADC announced that the Aryan Brotherhood was considered a security threat group (Doc. #66). Thus, his validation violated his ex post facto rights (Id.). Moreover, the evidence did not involve conduct evidence, it provided for Plaintiff's validation based on his mere membership in a group (Id.). The Due Process Clause of the Fourteenth Amendment prohibits the states from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. To determine whether a procedural due process violation has occurred, a court engages in a two-step analysis. First, a court looks to whether the person possess a constitutionally cognizable liberty interest with which the state has interfered. Sandin v. Conner, 515 U.S. 472 (1995). Second, if the state has interfered with a liberty interest, a court looks to whether this interference was accompanied by sufficient procedural and evidentiary standards. Kentucky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989); Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987). The parties concede that Plaintiff has a protected liberty interest in avoiding detention in SMU II. See Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (providing that a supermax facility may impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life"). Plaintiff is entitled to sufficient procedural and

evidentiary standards. The initial decision to place an inmate in maximum custody generally satisfies due process if the inmate is given notice of the factual basis for the placement and an opportunity to be heard. Id. at 225-27; Hewitt v. Helms, 459 U.S. 460, 476 (1983). Plaintiff admitted that he received notice five days prior to the validation hearing, was present at the hearing, and was given the opportunity to present the testimony of three witnesses (Doc. #60, ex. G at 39-41). Plaintiff was thus provided the process due him. Plaintiff argued that the evidence was insufficient to determine that he was a member of an STG. In particular, Plaintiff maintained that the evidence was (1) unreliable, (2) based on his alleged status and (3) stale, in violation of his ex post facto rights (Doc. #66). First, Plaintiff maintained that the evidence used to validate him was unreliable and insufficient. Because the validation process is administrative rather than disciplinary, the Due Process
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Clause only requires that the ADC have "some evidence" of membership. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003); see also Hill v. Superintendent, 472 U.S. 445, 453 (1985). The Court will "not examine the entire record, independently assess witness credibility, or reweigh the evidence; rather, `the relevant question is whether there is any evidence in the record that could support the conclusion.'" Id. In support of his argument regarding the unreliability of the evidence, Plaintiff presented a deposition from another case of a lieutenant whose responsibility was to assist in the assimilation of criteria evidence in the preparation of validation packets on the STG suspects (Doc. #66, ex. 4 at 5). Lieutenant Powell testified that the reason a picture was taken is irrelevant; if two or more suspected gang members are in a picture it can be used as evidence to validate an inmate (Id. at 24). Further, as for whether an inmate associated with a gang member, there is no indication if such contact was regular (Id. at 32). Finally, Powell cast doubt on the reliability of the Aryan Brotherhood membership list (Id.). Notably, this deposition was taken in another case in regard to another inmate and there is no indication that Powell was involved in assimilating information with regard to Plaintiff, or that the unreliable list was the same as the one used against Plaintiff. In addition, there was "some evidence" to demonstrate Plaintiff's membership in the Aryan Brotherhood. Plaintiff was validated based on a photograph, his reported association with members of the Aryan Brotherhood, and his name being found on two membership lists (Doc. #60, ex. A ¶ 24). The Court will not independently reweigh this evidence, or assess its credibility. Because it is enough that there was "some evidence," Plaintiff's argument lacks merit. Second, Plaintiff maintains that the evidence was based on his status, not conduct (Doc. #66). Plaintiff does not contest the conclusion that the Aryan Brotherhood is a gang and thus an STG (Id.). He merely maintains that he should not be validated based on his mere status as a suspected member, but may only be placed in SMU II if he did something related to his membership (Id.). Plaintiff's argument lacks merit. ADC's STG policy is not disciplinary, but an attempt to provide for "the safe, secure and effective operation of Arizona's prisons" (Doc. #60, ex. A ¶ 3). As previously noted, ADC presented "some
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evidence" as to Plaintiff's membership in an STG. His membership is sufficient to result in his validation and placement into SMU II, without the need to present "conduct evidence." See Bruce, 351 F.3d at 1287-88 (finding that evidence of Plaintiff's association with and membership in a gang was sufficient to validate him as a member). Finally, Plaintiff asserts that the evidence violated his Ex Post Facto rights (Doc. #66). Plaintiff's argument is without merit. "Article I, § 10, of the Constitution prohibits the States from passing any `ex post facto Law.'" California Dep't. of Corrs. v. Morales, 514 U.S. 499, 504 (1995). However, this "Clause is aimed at laws that `retroactively alter the definition of crimes or increase the punishment for criminal acts.'" Id. The STG policy is not criminal and is not intended to punish. Instead, it is administrative and its purpose is to provide for "the safe, secure and effective operation of Arizona's prisons" (Doc. #60, ex. A ¶ 3). In addition, Plaintiff was not validated based solely on his pre-1995 membership. The pre-1995 evidence was used to demonstrate Plaintiff's continual membership in the Aryan Brotherhood. In sum, Defendants are entitled to summary judgment as to Plaintiff's claim that his initial validation and placement into SMU II violated his Due Process rights. C. Due Process - Periodic Reviews Defendants argue that Plaintiff's continued placement is supported by proper procedural and evidentiary safeguards (Doc. #59). Defendants maintain that annual reviews are proper, and Plaintiff is provided an in-person or paper review every 180 days (Id.). For the in-person reviews, Plaintiff receives notice, and has the opportunity to attend, call witnesses, and remain silent (Id.). Plaintiff is then provided a report of the hearing, and may appeal the determination (Id.). Plaintiff has not disputed that he was provided with these protections. Instead, Plaintiff argued that based on the length of his detention, more than eight years, he has been deprived of any meaningful review (Doc. #66). First, he asserted that he cannot debrief because it would place his safety in danger, he was never a member of the Aryan Brotherhood, and any information would be out-dated (Id.). Second, Plaintiff maintained
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that the Step-Down Program should not be considered because no inmate has finished it, and there is no guarantee that upon completion he would be transferred out of SMU II (Id.). Plaintiff is entitled to "some sort" of periodic review of his status. See Hewitt, 459 U.S. at 477 n.9 ("[A]dministrative segregation may not be used as a pretext for indefinite confinement of an inmate. Prison officials must engage in some sort of periodic review of the confinement of such inmates"). To determine whether the periodic review afforded Plaintiff conforms to due process requirements, this Court must consider "[1] the private interest that will be affected by the official action; [2] the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and [3] the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Wilkinson, 454 U.S. at 225; see also Matthews v. Eldridge, 424 U.S. 319 (1976). First, a prisoner's private interest in remaining free of supermax incarceration is not comparable to "the right to be free from confinement at all." Wilkinson, 545 U.S. at 225. Rather, the interest must be evaluated "within the context of the prison system and its attendant curtailment of liberties." Id. While the difference between Plaintiff's conditions of confinement and those of other prisoners may be substantial or even "atypical and significant," they are less marked and hence require less "process than an initial criminal conviction." Id. Second, Plaintiff does not face a high risk of an erroneous result. ADC relies on Plaintiff renouncing gang membership and debriefing, thus, there is no subjective weighing of evidence by prison officials to find misconduct or risks. Rather, the determination is based upon the objectively verifiable determination that the prisoner again failed to "debrief." Moreover, debriefing is a highly effective method for determining a prisoner's ongoing loyalty to the prison gang. Plaintiff's argument that he was improperly validated or was never a member of the Aryan Brotherhood is not material to his semi-annual reviews as it is merely an attempt to challenge his initial validation, which was already accorded proper
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procedural protections. Additionally, Plaintiff does not have the right to require periodic appeals of his validation, but only periodic reviews of his current status. See Hewitt, 459 U.S. at 477, n.9 (noting that the requisite period reviews "will not necessarily require that prison officials permit submission of any additional evidence or statements" as to the initial decision). Plaintiff has not demonstrated that the procedures provided have a significant risk of error, particularly since Plaintiff's placement is reviewed on a semi-annual basis. Additionally and most importantly, Plaintiff is now in the Step-Down Program and his concerns about having to debrief have been alleviated, and results in an additional safeguard. Notably, the existence of the Step-Down Program may properly be considered even if its effectiveness has not been proven. Third, the government interest results in Defendants having an obligation to "ensure the safety of guards and prison personnel, the public, and the prisoners themselves," while battling intractable prison gangs and allocating limited resources. Wilkinson, 545 U.S. at 225. "[T]his interest is a dominant consideration." Id. Balancing the factors ­ the private interest, the risk of an erroneous deprivation, and the Government's interest ­ the Court finds that Plaintiff has failed to show that the process afforded to him is inadequate. Accordingly, Defendants are entitled to judgment as a matter of law as to Plaintiff's procedural due process claim. D. Parole Determination Plaintiff believed that his STG status would prevent him from being placed on parole (Doc. #51). Defendants argue that there is no prison regulation prohibiting Plaintiff from being parole eligible (Doc. #59). On July 16, 1986, Plaintiff was sentenced to life imprisonment without possibility of parole for the first 25 years, for First Degree Murder, Attempted Armed Robbery, and Aggravated Assault (Doc. #60, ex. E ¶ 3). An inmate who is in STG is not eligible for the restoration of lost earned release credit days on Class III parole non-eligibility status (Doc. #60, ex. E ¶¶ 6-7). However, Plaintiff's validation does not result in forfeiture of any earned release credit or his placement into Class III parole
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non-eligible status (Id. ¶ 8). Crabtree attested that Plaintiff's parole eligibility is not affected by his validation as a member of an STG, and Plaintiff is eligible for parole in April 2011 (Id. ¶¶ 9, 11). Plaintiff stated in his Statement of Facts that in light of criteria used by the parole board, his membership in an STG is fatal to any parole determination (Doc. #66, ¶ 14). Plaintiff, however, has presented no evidence supporting this belief. Defendants, in contrast, have demonstrated that Plaintiff's placement into SMU II does not affect his parole eligibility. Although it is likely that the parole board will consider such placement in making any parole determinations, the Court will not assume that such placement will automatically result in the denial of parole. Thus, Defendants are entitled to summary judgment as to Plaintiff's claim that his placement will result in denial of parole. E. Substantive Due Process In addition to asserting procedural due process rights, Plaintiff's Amended Complaint alleges that he has been denied his substantive due process rights by his confinement in SMU II. "To establish a violation of substantive due process in this context, a plaintiff is ordinarily required to prove that a challenged government action was `clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare'. However, `[w]here a particular amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing [a plaintiff's] claims.' " Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (internal citations omitted). To the extent that he intended to challenge the procedures resulting in his placement in SMU II, those claims were addressed in connection with Plaintiff's procedural due process rights. Accordingly, any freestanding substantive due process claim is unsupportable and Defendants will be granted summary judgment on this claim.

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V. Eighth Amendment A. Conditions of Confinement Plaintiff contends that the conditions of SMU II violate the Eighth Amendment (Doc. #51). "[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 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). Defendants maintain that Plaintiff is not being denied the basic necessities of life, and that they did not know of and disregard an excessive risk to harm (Doc. #59). Defendants further argue that Plaintiff has suffered no physical injury (Id.). Plaintiff argues that he has been denied the basic necessities of life and exposed to psychological torture (Doc. #66). 1. Solitary Confinement In SMU II, there are 10 inmates per pod, and each inmate resides alone in a cell (Doc. #60, ex. C ¶ 5). Two officers are assigned per pod, one in the control room in charge of the doors, and one attending the daily activities of the inmates, including transporting inmates, laundry, delivering meals, delivering and collecting mail, conducting welfare and security checks, and facilitating medical appointments (Id. ¶ 10).
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Initially, Plaintiff alleged that he was denied basic privileges, including rehabilitation opportunities, classes, vocational programs, and other activities (Doc. #51). Plaintiff also alleged that he is permitted few books, magazines, and newspapers, and cannot purchase other recreational items such as playing cards (Id.). However, "[i]dleness and the lack of programs are not Eighth Amendment violations. The lack of these programs simply does not amount to the infliction of pain. There is no constitutional right to rehabilitation." Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982) (internal citations omitted). Moreover, ADC can require an inmate to receive books, magazines, and newspapers only from a publisher or bookstore. See Bell v. Wolfish, 441 U.S. 520, 549-50 (1979) (providing that a prison's rule that permits the receipt of hard cover books only from publishers or bookstores did not violate inmates' constitutional rights). Plaintiff is allowed to obtain books, magazines, and newspapers from publishers and bookstores. Plaintiff does not have a constitutional right to participate in classes or programs or to purchase recreational items, and does not have an unfettered right to reading materials. Thus, these claims alone do not result in the deprivation of Plaintiff's minimal civilized measure of life's necessities. See Lopez, 203 F.3d at 1132-33. However, these factors will be considered in Plaintiff's claim of social isolation. Plaintiff argued that he is subjected to virtually complete isolation because he is unable to socialize with other prisoners, has limited telephone privileges and visitation with members of the general public, and is denied contact visitation. "The Eighth Amendment standards for conditions in isolation, segregation, and protective custody cells are no different from standards applying to the general population." Hoptowit, 682 F.2d at 1258. "The longer the prisoner is without . . . benefits, the closer it becomes to being an unwarranted infliction of pain." Id. "[A]dministrative segregation, even in a single cell for twenty-three hours a day, is within the terms of confinement ordinarily contemplated by a sentence." Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). However, placing an inmate in isolation can "adversely affect a person's mental health." Comer v. Stewart, 215 F.3d 910, 916 (9th Cir. 2000). Inmates may talk to staff several times a day, and counselors are available five days
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a week for face to face conversations (Doc. #60, ex C ¶ 11). Inmates have access to a library, and may check out legal material (Id. ¶ 13). Inmates may receive reading, educational, and other materials through the mail, including magazines, books, and tapes (Id.). Plaintiff, however, does not read newspapers because he does not have a subscription (Id. ex. G at 92). Inmates are allowed one non-contact visit a week for one to two hours (Doc. #60, ex. C ¶ 20). Inmates may have four visitors at a time, and the inmate and visitors are separated by glass (Id.). Plaintiff uses approximately three to four visitation periods per year (Id. ex. G at 81). Additionally, inmates may make one five minute phone call approximately each week (Id. ex. C ¶ 21). Plaintiff uses his phone privileges on a weekly basis (Id. ex. G at 81). Plaintiff also sends and receives letters and correspondences (Id. ex. C ¶ 14). Plaintiff is not eligible for work, or group recreational, vocational, or education programs (Doc. #60, ex. ¶ 24). Plaintiff may participate in certain programs in his cell, such as the Kentucky GED program and educational correspondence courses, and has access to special education if he qualifies (Id.). In fact, Plaintiff has taken courses in anger

management, alcohol education, and drug rehabilitation (Id. ex. G at 93-94). Plaintiff also possesses a walkman radio-cassette and a 13-inch television (Id. ex. C ¶ 15). Finally, although inmates are not permitted to pass notes or share legal documents with other inmates, they can communicate with inmates in their pod from cell to cell (Id. ¶¶ 16-17). However, such communication is in violation of ADC rules (Id, ex. G at 94). Based on the summary judgment evidence, Plaintiff is provided the minimal civilized measure of life's necessities in the form of services and privileges. Lopez, 203 F.3d at 1132-33. However, eight years of isolation such as that faced by an SMU II inmate may be detrimental. In support of that conclusion, Plaintiff introduced Dr. DeLong's statement in which he opined that Plaintiff's confinement is "toxic" (Doc. #66, DeLong's statement at 3).3 It should be noted that several of the conditions which DeLong believes are "toxic" include conditions also found in general population, such as the inability to receive books from individuals and the requirement that phone calls are collect.
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DeLong further opined that "it is a mistake to house [Plaintiff] for an indeterminate number of years in an SMU facility" (Id.). The evidence shows that Plaintiff is not totally isolated and his confinement is not indeterminate. Plaintiff is allowed visitors and he may use the telephone. Plaintiff's visitation is limited, however, such limitation is constitutionally permissible. See Kentucky Dept. of Corrections, 490 U.S. at 460 (providing that inmates do not have a right to "unfettered visitation"); see also Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir. 1986) (providing that inmates are not constitutionally entitled to contact visitation). Plaintiff may talk to staff and counselors, he is allowed out of his cell several hours a week, he may write and receive letters, and he has access to the library and various forms of media. Plaintiff has failed to pursue any mental health services. Plaintiff attributes this to not being provided mental health services on the single occasion in which he requested help (Doc. #66, DeLong's statement at 3; Plaintiff's Statement of Facts ¶ 97). Plaintiff also is described as paranoid and unable to trust (Doc. #66, DeLong's statement at 3). Plaintiff, however, testified that he does not need mental health treatment (Doc. #60, ex. G at 92). The fact that Plaintiff's single request went unanswered, combined with his failure to again seek these services, and his paranoia, does not eliminate the Court's consideration of these services because they are available to Plaintiff. Finally, because Plaintiff has been placed into the Step-Down Program and is working toward re-classification without the necessity of debriefing, these conditions are not necessarily indefinite. Thus, while such isolation may not be the best means of rehabilitating an inmate, it does not result in the denial of Plaintiff's Eighth Amendment rights. Accordingly, Defendants are entitled to summary judgment as to this claim. 2. 24-Hour Cell Lighting Plaintiff asserts that he is constantly exposed to lighting, which cannot be turned off by inmates and are not turned off by staff. "`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). "Moreover, `[t]here is no legitimate
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penological justification for requiring [inmates] to suffer physical and psychological harm by living in constant illumination." Id. Each building in SMU II contains twelve clusters, which in turn contains six pods (Doc. #60, ex. C ¶ 25). Each pod contains ten cells, five of which are on the lower level and five of which are on the upper level (Id.). There are skylights in each pod, but because Plaintiff is housed on the bottom he rarely sees natural light (Id. ex. G at 84). The front of each cell is made of a solid sheet of metal with perforations measuring less than one inch in diameter with a solid trap in the cell door used for various purposes, including passing items into the cell and securing inmates before they are removed from the cell (Id. ex. C ¶ 27). Each cell contains a bed against the far wall, and a sink with a bolted mirror, toilet, and writing surface against the left wall (Id. ¶ 28; ex. G at 84). Above the mirror is a lighting fixture approximately two feet by ten inches, which contain four lights (Id. ex. C ¶¶ 29-30). One of the four lights is a security light that remains illuminated for 24 hours per day (Id. ¶ 30; ex. G at 73). The security light consists of a seven-watt flourescent bulb and is approximately as bright as a child's nightlight (Doc. #60, ex. C ¶ 30-31). The non-security lights are turned off from 10:00 p.m. until 4:00 a.m. on weekdays, and from 12:00 p.m. until 4:00 a.m. on weekends (Id. ¶ 32; ex. G at 73). Inmates must be awake by 7:00 a.m. (Id. ex. C ¶ 41). During this time there is also minimal light entering each cell from outside, consisting of a light at the end of each hallway and a light from the security tower which can be seen through the skylight located in the ceiling of each cluster (Id. ¶¶ 26, 33). An inmate may sleep with his eyes covered, but is not permitted to cover his entire face (Doc. #60, ex. C ¶ 35). Plaintiff sleeps with a towel over his head (Id. ex. G at 76). However, this does not block out all the ambient light (Id.). Gerald E. Katafiasz, an electrical engineer, stated that he conducted tests in an SMU II cell to determine the level of lighting, measured by a footcandle (the amount of light that a candle emits in an approximately 1 square foot area around a candle) (Doc. #60, ex. D ¶¶ 6, 7). Katafiasz measured the light levels multiple times on two occasions, from 2:15 p.m. until
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3:15 p.m. and from 9:45 p.m. until 10:15 p.m. (Id. ¶ 7). Katafiasz found that during the day, the light in the cell was approximately 88 footcandles (Id. ¶ 9). However, during the night, the cell light was illuminated such that the light was brighter in the sink area, and darker near the end of the bed (Id. ¶¶ 12-14). In particular, near the end of the bed the average light was .21 footcandle, and near the sink the average light was approximately .29 footcandle (Id. ¶¶ 13-14). McWilliams attested that the security light serves the penological purpose of enabling officers to perform health and welfare checks on every hour (Doc. #60, ex. C ¶ 34). The security light is essential for security purposes and for the safety of the corrections officers (Id. ¶ 37). The perforated cell fronts hinder the visibility of an approaching officer, and the light provides a sense of depth perception (Id.). Further, flashlights are highly disruptive to sleep and result in blind spots (Id. ¶¶ 39-40). Blind spots are problematic due to the violent history of the SMU II inmates, who would be able to shoot metal darts through the perforated holes in the cell front (Id. ¶ 40). Finally, providing the inmate complete darkness would severely hamper ADC's ability to maintain a safe environment because unobserved inmates would be able to create weapons and other contraband (Id. ¶ 42). The prison has a legitimate penological interest in 24-hour cell lighting. The lighting allows correction officers to conduct regular security checks on the inmates while maintaining officer safety. Additionally, the lighting ensures that an inmate is never in complete darkness and thus may be observed at any time, resulting in him being less likely to manufacture contraband materials. According to the evidence, unlike the lights in Keenan, 83 F.3d at 1090-91, the lights in the instant case are significantly dimmed at night and Plaintiff covers his eyes in order to sleep. The 24-hour lighting is not punitive in nature, and the evidence demonstrates that the 24-hour cell lighting, which is dimmed at night, does not deprive Plaintiff of the minimal civilized measure of life's necessities. See Lopez, 203 F.3d at 1132-33. Defendants are entitled to summary judgment as to this claim. 3. Lack of Outdoor Exercise and Direct Sunlight Plaintiff alleges that he is not permitted outside for any circumstances, and has limited
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time in a small exercise room without equipment (Doc. #51). Additionally, his sole contact with the sun is an occasional glimpse through a skylight. 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). Originally, STG inmates were allowed to go into a recreational yard three times a week, for one hour intervals (Doc. #60, ex. C ¶ 44). Beginning in January 2006, STG inmates are allowed to access the recreational yard three days a week for two hour intervals (Id.). The recreational yard consists of a 23 foot by 11 foot area with 18 foot walls (Id.¶ 45). The floors and walls are cement and the ceiling is made of steel fencing from which fresh air and sunlight may enter (Id.). Inmates are allowed in the recreational yard in shifts (Id. ¶ 46-49). Plaintiff does not use all of his exercise opportunities because of his medical condition (Doc. #60, ex. G at 76). However, Plaintiff will use the recreational yard when he is not in pain (Id. at 77). There is no exercise equipment in the yard, but inmates do have access to a handball (Id. ex. C ¶ 45). When using the yard, Plaintiff will walk, do push-ups and sit-ups (Id. ex. G at 77-78). However, Plaintiff rarely uses the handball because the noise disturbs the other inmates (Doc. #66, Plaintiff's Aff. ¶ 6). Plaintiff also exercises in his cell when he feels up to it, doing various exercises and yoga (Doc. #60, ex. C ¶ 44; ex. G at 78, 98-99). In Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979), the Ninth Circuit approved a California State Prison policy allowing inmates five, one-hour session of exercise per week. Id. at 199-200. Plaintiff is receiving three, two-hour sessions, which provides him more time than that approved of by the Ninth Circuit. In the instant case, the "recreational cell" is enclosed and surrounded by cement walls with a mesh ceiling, and does not provide direct sunlight on every occasion in which an inmate is allowed to use it. However, the inmate does
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get natural light and fresh air, and is allowed to see the sky. Accordingly, the current provision of six hours per week of outdoor recreational activity does not result in a deprivation of the minimal civilized measure of life's necessities. See Lopez, 203 F.3d at 1132-33. Defendants are entitled to summary judgment as to this claim. 4. Lack of Proper Diet Plaintiff alleged that he is placed on a special, low caloric diet, and not permitted to supplement his diet with purchases from the inmate store (Doc. #51). Plaintiff maintains that he is not being provided sufficient calories, and as a result his weight has dropped to 120 pounds (Doc. #66, ¶¶ 61, 105). "The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing." LeMaire, 12 F.3d at 1456. "`The fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation.'" Id. (citations omitted). However, if an inmate is served meals with insufficient calories for long periods of time it may be able to demonstrate a violation of his right against cruel and unusual punishment. Id. An STG inmate receives a 2800 calorie diet because of his less active lifestyle (Doc. #60, ex. C ¶ 22). The diet consists of 100 to 200 less calories than that received by inmates in general population (Id.). Plaintiff eats three meals a day Monday through Friday, and two on Saturday and Sunday (Id. ex. G at 78). Plaintiff testified that at one time he lost 35 pounds, dropping to 120 pounds (Id. at 90). Plaintiff stated that his physician believed that his weight loss was self-induced (Id.). Dr. Sharp opined that the weight loss also could be due to the treatment Plaintiff received for Hepatitis C or related to his Irritable Bowel Syndrome (Id. ex. F ¶¶ 12-14). As of May 2007, Plaintiff, who is 5 foot 8 inches, weighed 187 pounds (Id. ¶ 66). Plaintiff also testified that for approximately one month, between December 10 and January 1, he can purchase some food from the commissary (Doc. #60, ex. G at 97). However, in actuality, he can only do this for approximately two weeks because after that
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the prison store runs out of supplies (Id. at 98). The summary judgment evidence indicates that Plaintiff is receiving 2800 calories a day. Plaintiff asserts that his weight dropped down to 120 pounds. Based on Plaintiff's statements, there is a question of fact as to whether Plaintiff was always provided sufficient calories. However, Defendants are entitled to summary judgment because there is no evidence that any dietary deprivation was not a product of deliberate indifference. See Wilson, 501 U.S. at 302-03. Plaintiff is scheduled to receive 2800 calories a day, which is sufficient for a sedentary inmate. There is no evidence that any of the Defendants knew that Plaintiff may possibly have been receiving less than the scheduled calories Based on the evidence, Defendants were not deliberately indifferent to Plaintiff's needs and are entitled to summary judgment on Plaintiff's dietary claim. 5. Hygiene and Other Preventative Care Plaintiff alleged that he can only shower three times per week, and is denied cold weather clothing and over-the-counter medications (Doc. #51). An STG inmate may shower three times a week, which corresponds with the three outdoor exercise days (Doc. #60, ex. C ¶ 19). Specifically, Plaintiff is allotted eight minutes of water time to shower and shave (Id. ex. G at 85; Doc. #66, Plaintiff's Aff. ¶ 5). The inmate also has a sink in his cell, which he may use on days he is not allowed to shower, and he has a toilet and bed (Id.). Plaintiff's clothes and bedding are laundered on a weekly basis (Doc. #60, ex. C ¶ 18; ex. G at 85). Generally, Plaintiff may purchase only clothing and hygiene items from the prison commissary (Doc. #60, ex. C ¶¶ 18, 23). Plaintiff testified, however, that in October 1999, ADC collected all the sweats in his possession, and issued new sweats (Doc. #66, Plaintiff's Aff. ¶ 8). However, these sweats were collected in April 2000, and he was unable to purchase additional sweats until late 2004 (Id.). Plaintiff has not demonstrated that he is unable to maintain his hygiene from the shower opportunities, or that he is being denied sufficient clothing for the cold weather, merely that he did not have sweats for a period of time. Further, Plaintiff has presented no evidence that the lack of over-the-counter medications is detrimental, particularly since he
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is being seen in the infirmary on a regular occasions. Thus, Defendants are entitled to summary judgment as to this issue. 6. Security Plaintiff alleged that he is subjected to excessive security (Doc. #51). First, Plaintiff has put forth no evidence as to this claim. Second, Plaintiff was placed in SMU II due to his validation as a security risk and a gang member. Plaintiff is currently in a pod with other inmates who also were validated as a security risk and gang members, often belonging to rival gangs. The practice of conducting strip searches and transporting inmates while handcuffed and shackled serves a legitimate penological interest, is not punitive, and does not deprive Plaintiff of the minimal civilized measure of life's necessities. Lopez, 203 F.3d at 1132-33. Accordingly, Defendants are entitled to summary judgment as to this claim. In conclusion, the summary judgment evidence demonstrates that Defendants did not deprive Plaintiff of the minimal civilized measure of life's necessities or that any deprivation was not the product of deliberate indifference by Defendants. See Wilson, 501 U.S. at 302-03; Lopez, 203 F.3d at 1132-33. Accordingly, Defendants' Motion for Summary Judgment will be granted as to Plaintiff's claims regarding conditions of confinement. B. Deliberate Indifference to Medical Needs Defendants argue that Plaintiff received proper treatment for his medical conditions and Plaintiff merely disagrees with the treatment regime (Doc. #59).4 Plaintiff maintained that Defendants were deliberately indifferent to his medical needs (Doc. #66). Plaintiff conceded that he has been provided medical visits, but that such visits are not the same as receiving treatment (Id. ¶ 100). "[D]eliberate indifference to serious medical needs of prisoners constitutes the

Defendants argue that Plaintiff's claims regarding medical treatment received before September 20, 2003, two years prior to Plaintiff filing his Amended Complaint, are barred by the requisite limitations period as he did not raise these claims in his original Complaint (Doc. #59). Although Plaintiff does not contest this, the entirety of the treatment will be considered in determining if Plaintiff was subjected to deliberate indifference to his medical needs.
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`unnecessary and wanton infliction of pain.'" Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). "To demonstrate that a prison official was deliberately indifferent to an inmate's serious . . . health needs, the prisoner must show that `the official [knew] of and disregard[ed] an excessive risk to inmate health.'" Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (citing Farmer, 511 U.S. at 838). "Further, the deliberate indifference must be both `purposeful,' and `substantial' in nature.'" Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 525 (9th Cir. 1999) (internal citations omitted). "Prison officials are deliberately indifferent to a prisoner' serious medical needs when they `deny, delay, or intentionally interfere with medical treatment. . . . Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights.'" Lopez, 203 F.3d at 1132 (citations omitted). Further, "a mere `difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.'" Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citations omitted). Plaintiff suffers from Hypertension, Hepatis C, Inguinal Hernia/Incisional Hernia, low back pain, Gastroesophageal Reflux Disease, Barrett's esophagitis, abdominal pain, and weight loss (Doc. #66, Dr. Doris' Aff. ¶ 3). Plaintiff concedes, however, that the only issue is whether Defendants were deliberately indifferent in regard to his hernia and Barrett's esophagitis (Id. ¶¶ 5-10). As for his other medical conditions, Plaintiff received treatment which was above the requisite standard of care (Id.).5 1. Hernia Plaintiff submitted multiple Heath Needs Request forms related to back pain, abdominal pain, hernia pain and weight loss, and was seen both by outside consultants and by an ADC physician and nurse on multiple occasions (Doc. #60, ex. F ¶¶7-68). In particular, Plaintiff was given a neurosurgical consultation for his hernia, at which time no surgical intervention was recommended (Id. ¶ 7N). Moreover, Plaintiff's treating physician Dr. Doris opined that Plaintiff was subjected to deliberate indifference to his medical needs, while Dr. Sharp attested to the contrary (Docs. ##60, 66). However, whether Defendants were deliberately indifferent is a legal determination to be made by this Court.
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determined that his hernia was reducible, i.e., it can be pushed in with the thumb and put back into place (Id. ¶ 20, n.3). Based on the information, Plaintiff's treating ADC physician determined that surgical intervention was unnecessary (Doc. #60, ex. F ¶ 11; Doc. #66, Dr. Doris' Aff. ¶ 6). Accordingly, Plaintiff's condition was treated with hernia belts and abdominal binders (Doc. #60, ex. G at 88; ex. F ¶ 11; Doc. #66, Dr. Doris' Aff. ¶ 6). On several occasions, Plaintiff was re-evaluated and his hernia belt and abdominal binder were replaced, and in February 2005 he was advised to discontinue doing sit-ups (Doc. #60, ex. F ¶¶ 19, 23, 35, 39, 43-44, 60). In February 2006, a consultation was submitted for general surgery related to repair of the hernias, and the Medical Review Committee found that Plaintiff did not need incisional hernia repair (Id. ¶¶ 60, 62). In September 2006, Plaintiff was seen by an outside general surgeon, Dr. David Pederson, who diagnosed Plaintiff with incisional/ventral hernia which was tender to the touch and painful (Doc. #71, ex. 1 ¶ 14). The hernia had enlarged since 1998, and would likely continue to enlarge and eventually become complicated (Id.). However, Dr. Pederson believed that for the moment, Plaintiff's hernia was clearly reducible (Id.). Plaintiff attested that one of the doctors informed him that if Plaintiff was working on a yard crew, his hernia would be repaired, but since he is sedentary, they are unwilling to treat his condition (Doc. #60, ex. G at 88). Plaintiff, however, admits to being provided a hernia belt to keep the hernia from protruding, and he has been treated for pain with Tylenol (Id. at 89). Plaintiff's sister attested that she has attempted unsuccessfully to obtain additional medical assistance for Plaintiff through ADC (Doc. #66, ex. 5). Dr. Sharp attested that Plaintiff's hernia has been followed with conservative management, and Plaintiff has never reached the decisional level for his hernias "which include tissue strangulation, non-reducible, incapaciting pain and/or significant interference with normal activities of daily living" (Doc. #60, ex. F ¶ 68). Dr. Sharp attested that Plaintiff's care and treatment fell within the standard of care within the community and met or exceeded all applicable constitutional standards (Id. ¶ 71; Doc. #71, ex. 1 ¶ 15).
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Dr. Doris opined that Plaintiff's treatment fell below the standard of care in the community, particularly given the pain symptoms (Doc. #66, Dr. Doris' Aff. ¶ 6). Dr. Doris opined that the common standard of care was surgical repair, particularly since patients with even a reducible hernia often have issues with incarceration and peritonitis (Id.). There is a question of fact as to whether the treatment of Plaintiff's hernia fell below the requisite standard of care and thus resulted in medical malpractice. However, this determination does not foreclose the determination that Defendants were not deliberately indifferent to Plaintiff's medical needs. In Toguchi, the district court considered opinions of different physicians regarding whether the plaintiff's treating physician fell below the standard of care. Touchi, 391 F.3d at 1056-57. Plaintiff's expert opined that the physician's treatment of the plaintiff's conditions was inappropriate and thus fell below the standard of care. Id. at 1059. The district court determined that this accusation was one of negligence as opposed to deliberate indifference to medical needs. Id. The Ninth Circuit affirmed the district court's grant of summary judgment, holding that "[d]eliberate indifference is a high legal standard. A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment." Id. at 1061. In the instant action, no reasonable jury could find that Plaintiff was subjected to deliberate indifference to his medical needs. Plaintiff believes that he should have been provided surgery for his hernias. Dr. Doris agrees, opining that surgical repair is the treatment of choice. However, Drs. Sharp and Pedersen opined that Plaintiff's hernias were reducible and thus could be properly treated by abdominal binders and hernia belts. Dr. Pedersen opined that Plaintiff will eventually have to undergo surgery, but does not believe that the need is imminent. Based on the summary judgment evidence, there is merely a difference of medical opinion which is insufficient to establish deliberate indifference, and the evidence does not establish that Defendants acted contrary to what they believed was the standard of care. See Toguchi, 391 F.3d at 1058. Accordingly, Defendants are entitled to summary judgment as to Plaintiff's claim of deliberate indifference to his medical needs as to treatment for his hernias.
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2. Barrett's Esophagitis In December 2005, a consultation request for an Esophagogastroduedenoscopy (EGD) was submitted to the Medical Review Panel, which was conducted in April 2006 (Doc. #60, ex. F ¶¶ 58, 67G). Plaintiff was found to have Barrett's esophagitis, also known as a peptic ulcer (Id. ¶ 65, 67G; Doc. #66, Dr. Doris' Aff. ¶ 8). Dr. Doris attested that Plaintiff was being treated with Ibuprofen, a non streriodal anti-inflammatory medication, which is contraindicative because it may lead to ulceration and bleeding (Doc. #66, Dr. Doris' Aff. ¶ 8). Dr. Doris opined that Plaintiff's condition was potentially life-threatening Id. ¶ 9). Dr. Sharp, however, attested that Plaintiff was being treated with Omeprazole and Magnesium Oxide antacid tablets (Doc. #71, ex. 1 ¶ 12). Further, although Plaintiff received Tylenol and in 2005 received Ibuprofen, he has not been given Ibuprofen in 2006, after his diagnosis of Barrett's esophagitis (Id. ¶ 13). Dr. Sharp opined that Plaintiff's condition is not life-threatening and is being properly treated (Id. ¶ 16). As noted by Defendants, Plaintiff only received a diagnosis for Barrett's esophagitis less than a year ago (Doc. #71). There is a question of fact as to whether Plaintiff received Ibuprofen within the last year, and whether his treatment fell below the requisite standard of care and thus represented medical malpractice. However, no reasonable jury could find that Plaintiff was subjected to deliberate indifference to his medical needs. Plaintiff has been seen by both ADC physicians and outside consultants on a regular basis. Further, he is being treated with Omeprazole and Magnesium Oxide antacid tablets (Id. ex. 1 ¶ 12). Based on the summary judgment evidence, Plaintiff is receiving sufficient medical treatment for his con