United States District Court, W.D. Washington
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 ...