United States District Court, W.D. Washington
November 10, 2014
JAMES EDWARD JONES, Plaintiff,
SPECIAL COMMITMENT CENTER, et al., Defendants
NOTED FOR: DECEMBER 5, 2014.
James Edward Jones, Plaintiff, Pro se, STEILACOOM, WA.
For Special Commitment Center, Mark Strong, CEO, Todd Dubble, Assistant Director, Al Nerio, Program Area Manager, Defendants: Nicholas A Williamson, LEAD ATTORNEY, Craig B Mingay, WASHINGTON STATE ATTORNEY GENERAL (CLEANWATER), OLYMPIA, WA.
REPORT AND RECOMMENDATION
J. Richard Creatura, United States Magistrate Judge.
This 42 U.S.C. § 1983 civil rights matter has been referred to Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § § 636 (b) (1) (A) and (B) and Local Magistrate Judge Rules MJR 1, MJR 3, and MJR 4.
Although plaintiff has presented evidence that the water is brown, the showers are tepid, and the air is dank at the SCC, plaintiff has failed to prove that these conditions constitute a health hazard. To constitute cruel and unusual punishment, plaintiff must present admissible evidence that the conditions are unhealthful -- not unpleasant. Because defendants have submitted uncontradicted evidence that these conditions are not unhealthful, this Court recommends that summary judgment be granted.
Plaintiff has been a pretrial detainee at the Special Commitment Center (" SCC"), a Washington State Department of Social and Health Services (" DSHS") facility for the care and confinement of persons detained or civilly committed as a sexually violent predator (Dkt. 5, p. 4). Plaintiff has been detained since February 22, 2013 ( id .). He brought an action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights by failing to provide clean water, hot water for showers and good air quality (Dkt. 5). In response to summary judgment, plaintiff submitted his own testimony, in addition to declarations from three other detainees (Dkt. 33).
With regard to the water quality, plaintiff submitted declarations stating that there are regular episodes of brown water, with floating debris (Dkt. 33, pp. 19, 22). Although there are general statements that the water is " bad for consumption" (Dkt. 33, p. 24) and " badly contaminated" (Dkt. 33, p. 19), there is not a single test result that supports the conclusion that the water is unhealthful. For instance, plaintiff has submitted a declaration from Harvey Talbert, another resident at the facility, who claims to have been there for ten years working in the refrigeration department ( see Dkt. 33, p. 24). He states, among other things, that there were " many occasions" in which the e-coli count was so high that bottled water was handed out and the fire department was called in to flush the lines (Dkt. 33, p. 24). Mr. Talbert does not provide any information to indicate that he has the qualifications to evaluate the quality of the water ( id .) and the declaration does not indicate what information he is relying on to state that the e-coli levels were unhealthful. While defendants admit that the water is occasionally brown due to the age and condition of the pipes, defendants have submitted substantial evidence that the water quality is monitored regularly, and that qualified authorities test the water for chemicals and harmful bacteria; copies of the test results were provided; these test results show that the drinking water remains safe for human consumption ( see Dkt. 25, p. 4; Dkt. 27, ¶ ¶ 6-10). Furthermore, even though the water is safe to drink, when the water is discolored, the residents are given bottled water (Dkt. 28, Ex. 1).
Plaintiff also claims that the water temperature in the showers is " never hot" (Dkt. 5, page 5). Defendant has submitted uncontradicted evidence that the hot water temperature is tested on a weekly basis to insure that the temperature is maintained at a sanitary level (Dkt. 29, ¶ 2). Although plaintiff claims that the showers are never hot, he has submitted no evidence that the temperature is below a sanitary level.
Plaintiff claims that the air in his living unit is " thick, humid and very dry" (Dkt. 5, p. 6). He claims that his ventilation system is generally " unsanitary" ( id .). Defendants have submitted evidence that the SCC provides routine maintenance and inspection of the heating and ventilation systems at SCC (Dkt. 29, ¶ 3). When there is a problem with the heating or ventilation system, the problem is investigated and promptly repaired ( id .). The undisputed testimony is that there has not been a heating and ventilation system failure in plaintiff's living facility lasting more than a day since February of 2013 ( id .). Furthermore, defendants submitted tests conducted by an industrial hygienist that demonstrated that there was not mold in plaintiff's living unit and that indoor air quality at the time of the tests was safe (Dkt. 28, Exs. B, C, D, Dkt. 30, ¶ 2)
STANDARD OF REVIEW
In federal court, summary judgment is required pursuant to Fed.R.Civ.P. 56(a) if the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine dispute as to any material fact. Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997). Once a party has moved for summary judgment Fed.R.Civ.P. 56(c) requires the nonmoving party to go beyond the pleadings and identify facts that show that a genuine issue for trial exists. Id. at 323-24; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Summary judgment is appropriate if " the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party is entitled to judgment as a matter of law if the nonmoving party fails to make a sufficient showing on an essential element of a claim on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1985); Anderson, 477 U.S. at 254 (" the judge must view the evidence presented through the prism of the substantive evidentiary burden"). When presented with a motion for summary judgment, the court shall review the pleadings and evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255 ( citing Adickes v. S. H. Kress & Co.., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
To state a claim under 42 U.S.C. § 1983, at least three elements must be met: (1) defendant must be a person acting under the color of state law; (2) the person's conduct must have deprived plaintiff of rights, privileges or immunities secured by the constitution or laws of the United States, Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420, (1981) (overruled in part on other grounds); Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662, (1986); and (3) causation. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286-87, 97 S.Ct. 568, 50 L.Ed.2d 471, (1977); Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir. 1980), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96, (1980). When a plaintiff fails to allege or establish one of the three elements, his complaint must be dismissed.
Plaintiff has stated that the alleged poor water quality, tepid showers, and dank air quality at the SCC constitutes a " failure to protect plaintiff from a well known substantial risk of harm" (Dkt 33, p. 2). Although plaintiff does not specifically state what constitutional provision he claims defendants are violating, the Court will assume that he is relying upon the Eighth Amendment ban on " cruel and unusual punishment." While the Eighth Amendment's prohibition against cruel and unusual punishment does not apply to civilly committed, sexually violent predators, it does provide guidance to the analysis. Frost v. Agnos, 152 F.3d 1124 (9th Cir. 1998), Hydrick v. Hunter, 449 F.3d 978 (9th Cir. 2006). The Due Process Clause of the Fourteenth Amendment protects pretrial detainees by prohibiting the state from punishing them. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The Ninth Circuit protects a pretrial detainee's claims using the same analysis it would use with a prisoner's claim brought pursuant to the Eighth Amendment. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1241 (9th Cir. 2010).
To establish an Eighth Amendment violation, an inmate must allege both an objective element--that the deprivation was sufficiently serious--and a subjective element--that a prison official acted with deliberate indifference. Young v. Quinlan, 960 F.2d 351, 359 (3rd Cir. 1992). Plaintiff must satisfy two requirements:
First, the deprivation alleged must be, objectively, " sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). For a claim based on a failure to prevent harm, the inmate must show incarceration under conditions posing a substantial risk of serious harm. Id. Second, " [t]o violate the Cruel and Unusual Punishment Clause, a prison official must have a 'sufficiently culpable state of mind' ... [T]hat state of mind is one of 'deliberate indifference' to inmate health or safety." Id. (citations omitted). The prison official will be liable only if " the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837.
Although plaintiff has alleged various problems with the air and the water at the SCC, he has only supported his allegations with broad statements and not facts. Conclusory, nonspecific statements in affidavits are not sufficient; and, the court will not presume " missing facts." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, plaintiff has failed to prove that any of his allegations are " sufficiently serious" to constitute cruel and unusual punishment.
As noted by the court in Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001) ( citations omitted ):
The Eighth Amendment does not require prisons to provide prisoners with more salubrious air, healthier food or cleaner water than are enjoyed by substantial numbers of free Americans.
Id. See also, Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) (Inadequate air flow only violates the Eighth Amendment if it undermines the health of the inmates). Plaintiff is required to demonstrate that the air temperature poses " a substantial risk of harm." Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010). Here, plaintiff has failed to do so.
Nor has plaintiff presented any evidence that any of defendants acted with " deliberate indifference." In fact, everything that has been submitted to the Court indicates that when issues arise regarding the water and air quality, defendants investigated the issue and took steps to address the issues. Therefore, even though the water occasionally runs brown, for instance, defendants handed out bottled water and had the water tested to make sure that it did not create a health risk. Therefore, plaintiff has failed to submit admissible evidence that defendants were deliberately indifferent to plaintiff's concerns.
Plaintiff has had a significant period to conduct discovery. He had from March, 11, 2014 to July, 18, 2014 (Dkt. 14, Pretrial Scheduling Order). He had the opportunity to garner additional information, but failed to obtain admissible evidence to defeat this motion. He was also provided notice pursuant to Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) and Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) that he would be required to submit declarations, depositions, answers to interrogatories, or other documents as provided in Rule 56(c) that show that there is a genuine issue of material fact (Dkt. 26, p. 2). Plaintiff was advised that if he failed to do so, summary judgment would be granted, dismissing his case ( id .).
Although some of the statements made by plaintiff and other residents raise concerns by this Court, he has failed to provide evidence that any of the unpleasant conditions he and the other residents suffer constitute a health hazard. In the absence of such testimony or evidence, this Court recommends that plaintiff's case be dismissed.
Although this Court has already concluded that summary judgment should be granted, there are two other claims raised by plaintiff that require additional comment.
First, plaintiff claims that his constitutional rights were violated because the grievance system did not protect him from this alleged harm (Dkt. 33, p. 5). Plaintiff does not have a constitutional right to a specific grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).
Finally, plaintiff has named the SCC as a party to this action for money damages (Dkt 5). The SCC is a subdivision of the State of Washington. The Eleventh Amendment to the United States Constitution bars a person from suing a state for money damages in federal court without the state's consent. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) overruled in part by Cent. Va. Cmty. College v. Katz, 546 U.S. 356, 363, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006); Natural Resources Defense Council v. California Dep't of Transportation, 96 F.3d 420, 421 (9th Cir. 1996). Therefore, the SCC should also be dismissed on the grounds of sovereign immunity.
For the above reasons, this Court recommends that defendants' motion for summary judgment be granted.
Pursuant to 28 U.S.C. § 636(b) (1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b) (1) (C). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the clerk is directed to set the matter for consideration on December 5, 2014, as noted in the caption.