(PC) Garcia v. Folks

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 RAUL GARCIA, No. 2:14-cv-2378 JAM DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 F. FOULK, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action under 42 U.S.C. § 1983 . Plaintiff alleges defendants violated his Eighth Amendment 19 rights by subjecting him to inhumane conditions of confinement and retaliated against him for 20 exercising his First Amendment rights. Before the court is defendants’ motion for summary 21 judgment. For the reasons set forth below, the undersigned recommends the motion be granted in 22 part and denied in part. 23 BACKGROUND 24 I. Allegations in the Complaint 25 Plaintiff is an inmate at Pelican Bay State Prison (“PBSP”). The conduct which is the 26 subject matter of his complaint occurred when he was incarcerated at High Desert State Prison 27 (“HDSP”). Plaintiff identifies the following defendants: (1) F. Foulk, Warden; (2) Riley, 28 //// 1 Supervising Custodial Officer; (3) Correctional Officer (“CO”) D. Cox; (4) CO K. Loftin; (5) CO 2 Witcheal; (6) CO Wung; (7) CO Madrigal; and (8) CO Holmes. (ECF No. 1 at 2-3.) 3 Plaintiff alleges that on March 27, 2013, he was transported from PBSP to HDSP after he 4 was charged with attempted murder of a PBSP correctional officer. On his first morning at 5 HDSP, two unnamed officers flung a food tray into his cell, hitting plaintiff’s body and causing 6 the food to fall to the floor. Defendant Sergeant Riley observed the incident. Riley told plaintiff 7 to clean up the food; plaintiff refused; and Riley told plaintiff he would be moved to another cell. 8 (ECF No. 1 at 4.) 9 Later that day, Riley returned with two officers. They moved plaintiff to a cell in the C10 section of Z Unit. Plaintiff alleges the area smelled of urine and had carts of trash and dirty 11 clothes laying around. Plaintiff saw no other prisoners in the surrounding cells until about a 12 month later. He contends he was the only prisoner in C-section for that month. He was placed in 13 cell #129. The sink and toilet were covered in “filth,” “dirt,” and “rust.” The mattress was only a 14 thin piece of a mattress on a concrete bunk; plaintiff estimates it was less than half the thickness 15 of a standard mattress. It was ripped and dirty. Plaintiff states he complained to Riley about the 16 condition of the cell and was told he needed to “learn some respect for authority.” (ECF No. 1 at 17 5, 10.) 18 From March 28, 2013 through April 10, 2013, officers under Riley’s command refused to 19 give plaintiff lunch. From March 28 through April 16, defendants Cox and Loftin threw 20 plaintiff’s breakfast and dinner trays into his cell each day. (ECF No. 1 at 6.) 21 On April 4, 2013, plaintiff had an I.C.C.1 hearing with defendant Warden Foulk. He 22 informed Foulk about his meals and about officers throwing the food trays. He also told Foulk he 23 felt like he had been moved in retaliation and that his cell was filthy. Foulk told him that if he did 24 not like his treatment, he should file a grievance. Foulk took no action to intervene on plaintiff’s 25 behalf and the problems with his food and trash continued. (ECF No. 1 at 8.) 26 //// [27] 28 1 “I.C.C.” is the Institutional Classification Committee. 1 On April 7, 2013, plaintiff had sharp stomach pains, causing him to vomit. He states that 2 he asked defendants Cox, Loftin, Witcheal, Wung, Madrigal, and Riley for help and all 3 “taunt[ed]” him and “berate[d] him for asking.” They prevented plaintiff from getting medical 4 attention by disposing of his sick call slips and ignoring his pleas for help. On April 14, 2013, 5 plaintiff went “man down” in his cell and was taken to the HDSP doctor for his stomach and back 6 pains and “constant vomiting.” Plaintiff states that the results of tests showed he had “h-pylori 7 bacteria” in his system, which is contracted from eating unsanitary food or living in unsanitary 8 conditions. Plaintiff suffered stomach pains and occasional bouts of vomiting for months 9 afterwards. (ECF No. 1 at 9, 22.) He also alleges he suffers severe headaches. (Id. at 34.) 10 Plaintiff states that he suffered back pain from being forced to sleep on the thin piece of a 11 mattress for five months. According to plaintiff, he went on a hunger strike that resulted in 12 getting a full-size mattress on July 10, 2013. (ECF No. 1 at 9.) 13 Starting around April 16, 2013, Cox and Loftin stopped throwing the food trays. 14 However, plaintiff noticed foreign objects in his food such as leaves, trash, and rocks. While he 15 was picking through the food, Cox and Loftin would watch and laugh to each other. The food 16 was always “ice cold.” Other officers would occasionally attempt to give plaintiff a lunch sack, 17 only to be stopped by defendant Loftin who would tell them, “he don’t get no lunch.” (ECF No. 18 1 at 6-7.) 19 Plaintiff told Riley about the problems with food tampering, but Riley ignored it. Riley 20 was often present when Cox and Loftin threw plaintiff’s food trays into his cell. (ECF No. 1 at 7, 21 21.) Plaintiff also alleges defendant Foulk was aware of the food tampering. However, plaintiff 22 does not explain why that is so. (Id. at 17.) 23 For four weeks, defendants Riley, Cox, Loftin, Witcheal, Wong, and Madrigal refused to 24 let plaintiff throw out his trash; refused to allow him to shower; refused to provide him clean 25 clothing; refused to give him hygienic supplies, including toilet paper; and refused to give him 26 grievance (“602”) forms. Plaintiff was allowed no yard time during these four weeks. (ECF No. 27 1 at 7, 18.) Later in his complaint, plaintiff contends he was refused yard time for “months.” (Id. 28 at 25.) 1 On April 24, 2013, defendant Cox wrote a false infraction report accusing plaintiff of 2 destroying the mattress in his cell and charging plaintiff $44.00. Plaintiff contends defendant 3 Riley was involved in preparing this false report as well. When plaintiff told Holmes that he 4 would not sign anything admitting that he had damaged the mattress, Holmes responded that 5 plaintiff “should have thought about that before he went crying to the counselor.” When 6 defendants Holmes and Loftin saw that plaintiff was attempting to take a 602 form with him to 7 the infraction hearing for the damaged mattress, they refused to let him attend the hearing. As a 8 result, plaintiff was found guilty of damaging the mattress and his trust account was “frozen,” 9 preventing him from purchasing hygiene items, paper, stamps, and food. Plaintiff contends the 10 refusal to allow him to attend the hearing was done in retaliation for his attempt to submit a 602 11 form. (ECF No. 1 at 11-13, 26-28.) 12 After plaintiff was in C section for a month, the prison began moving other people into the 13 nearby cells. Plaintiff was able to get 602 forms from these newly arrived prisoners. However, 14 each time he attempted to turn one in, it was ripped up by one of “the defendants aforementioned 15 herein” after they had read the form. (ECF No. 1 at 12-13.) Plaintiff further alleges that 16 defendants Cox, Loftin, Witcheal, Wung, Madrigal, and Holmes conspired to, and did, destroy his 17 correspondence to the Director of CDCR, the U.S. Department of Justice, the CDCR Internal 18 Affairs Office, the Inspector General’s Office, and high-ranking prison officials. He also claims 19 they destroyed his incoming mail, which included paper, stamps, envelopes, and family pictures. 20 (Id. at 30-31.) He contends defendants Foulk and Riley knew about the destruction of his mail 21 and failed to stop it. (Id. at 31-32.) 22 Plaintiff also states defendants destroyed his mail and falsely charged him $13.00 for a 23 prison book that he did not check out from the library. He contends these actions were also done 24 in retaliation for voicing his complaints to counselor Jane Doe. (ECF No. 1 at 14-15.) 25 Plaintiff informed defendant Jane Doe, a counselor, about these problems on April 28 or 26 29, 2013. She refused to help him. When plaintiff reported he could not file a 602 form because 27 officers refused to provide him one, she also refused to give him a form. After that, plaintiff’s 28 food portions were dramatically reduced, and he lost weight. Every time he left his cell, 1 defendants Cox, Loftin, or Riley would enter it and “trash” plaintiff’s possessions, including his 2 pain medication. (ECF No. 1 at 10-11, 23.) Plaintiff contends they destroyed his pain medication 3 to cause him more pain and suffering. (Id. at 23.) Plaintiff contends defendants Riley and Foulk 4 were aware of the destruction of his medication and failed to stop it. (Id. at 24.) 5 Plaintiff alleges the actions of defendants was “retaliatory” because defendants were 6 punishing plaintiff for his “alleged” assault on an officer at PBSP and for complaining about his 7 prison conditions. (ECF No. 1 at 16-34.) 8 In addition to the physical injuries set out above, plaintiff claims he has suffered severe 9 emotional and mental distress as a result of defendants’ actions. (ECF No. 34.) Plaintiff seeks 10 declaratory relief, compensatory damages, punitive damages, and an injunction for adequate 11 medical care. (ECF No. 1 at 35.) 12 II. Procedural History 13 This case is proceeding on plaintiff’s original complaint filed here on October 6, 2014. 14 (ECF No. 1.) On screening, the court found plaintiff stated the following potentially cognizable 15 claims regarding the conditions of his confinement at HDSP: (1) First Amendment retaliation 16 claims against all defendants; (2) Eighth Amendment claims based on the mishandling of 17 plaintiff’s food against defendants Cox, Foulk, Loftin, and Riley; (3) Eighth Amendment claims 18 based on plaintiff’s living conditions against defendants Cox, Foulk, Loftin, Madrigal, Riley, 19 Witcheal, and Wung; and (4) Eighth Amendment claims regarding plaintiff’s serious medical 20 needs against Cox, Loftin, Madrigal, Riley, Witcheal, and Wung. (ECF No. 14.) On June 9, 21 2016, defendants Cox, Foulk, Holmes, Loftin, Madrigal, Witcheal, and Wung filed an answer to 22 the complaint. (ECF No. 30.) On November 14, 2016, defendant Riley filed an answer. (ECF 23 No. 45.) 24 On June 26, 2016, all defendants filed their first motion for summary judgment. In 25 January 2018, this court recommended defendants’ motion be denied on the exhaustion issues and 26 denied without prejudice on the merit issues. (ECF No. 96.) On March 30, 2018, Judge Mendez 27 adopted the findings and recommendations. (ECF No. 104.) He referred the case to the 28 undersigned for an evidentiary hearing on the exhaustion issues. 1 On October 22, 2018, this court held an evidentiary hearing. (See ECF No. 121.) In April 2 2019, this court issued findings and recommendations in which it recommended that the court 3 find plaintiff satisfied the exhaustion requirement because his administrative remedies were 4 effectively unavailable to him. (ECF No. 123.) On October 8, 2019, Judge Mendez adopted that 5 recommendation. (ECF No. 146.) 6 On June 27, 2019, defendants filed a second motion for summary judgment on the merits 7 of plaintiff’s claims. (ECF No. 135.) Plaintiff filed an opposition (ECF No. 142) and, later, filed 8 two exhibits (ECF Nos. 144, 147). Defendants filed a reply. (ECF No. 143.) Plaintiff filed a sur9 reply. (ECF No. 145.) This court granted defendants’ motion to strike that sur-reply. (ECF Nos. 10 148, 150.) However, this court denied defendants’ motion to strike the late-filed exhibits. 11 Defendants were given the opportunity to file a supplement to their reply brief to address those 12 exhibits. They did so. (ECF No. 151.) 13 The first late-filed exhibit submitted by plaintiff is a declaration from his father in Spanish 14 that plaintiff translates. (ECF No. 144 at 3-4.) Assuming plaintiff’s translation is correct, his 15 father states that he sent plaintiff mail that, he discovered later, plaintiff never received. 16 However, in his complaint plaintiff failed to sufficiently allege who bore responsibility for the 17 interference with his mail. Plaintiff’s claims regarding the processing of his mail did not survive 18 screening. Plaintiff has not provided any additional evidence or allegations to support a claim 19 regarding his mail against any defendant. Moreover, plaintiff’s father’s declaration is not based 20 on personal knowledge with respect to plaintiff’s non-receipt of letters. See Fed. R. Civ. P. 21 56(c)(4) (declarations submitted in support of or opposition to summary judgment motion must be 22 made on personal knowledge). This court finds plaintiff fails to state a claim regarding 23 interference with his mail and will not consider plaintiff’s father’s declaration. 24 The second late-filed exhibit is plaintiff’s attempt to show why the court should consider 25 plaintiff’s prior submission of an unsigned declaration from inmate Daniel Desales. (ECF No. 26 147.) Plaintiff indicates he is submitting a signed copy of Desales’ declaration. However, the 27 copy attached to plaintiff’s filing does not include the second page, which would presumably 28 have the signature. Further, Desales’ statements are hearsay. This court will not consider this 1 declaration either. See 28 U.S.C. § 1746 (to be considered as evidence, declaration must be 2 signed and sworn under penalty of perjury); Fed. R. Civ. P. 56(c)(4) (declarations must “set out 3 facts that would be admissible in evidence” to be considered on summary judgment). This court 4 notes that even if it did consider Desales’ declaration, it would not change its analysis of the 5 issues below. 6 MOTION FOR SUMMARY JUDGMENT 7 Defendants contend that plaintiff has failed to create triable issues of fact regarding his 8 claims for retaliation, mishandling of food, inhumane conditions of confinement, and deliberate 9 indifference to his medical needs. Defendants further contend they are entitled to qualified 10 immunity as to plaintiff’s conditions of confinement claims. Plaintiff argues that his claims 11 cannot be resolved on summary judgment because there are disputed issues of material fact. 12 This court notes that defendants have submitted no evidence to contradict plaintiff’s 13 allegations. Rather, they focus primarily on the argument that plaintiff’s allegations and evidence 14 are inadequate to support all necessary aspects of his claims. This tact may be sufficient to 15 support a summary judgment motion, see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 16 However, plaintiff need only show the existence of credible evidence that could, if proved, result 17 in success on his claims to defeat a summary judgment motion. 18 I. Legal Standards Applicable to all Claims 19 A. Summary Judgment Standards under Rule 56 20 Summary judgment is appropriate when the moving party “shows that there is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 22 Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of 23 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litigation, 627 24 F.3d 376 , 387 (9th Cir. 2010) (citing Celotex, 477 U.S. at 323 ). The moving party may 25 accomplish this by “citing to particular parts of materials in the record, including depositions, 26 documents, electronically stored information, affidavits or declarations, stipulations (including 27 those made for purposes of the motion only), admissions, interrogatory answers, or other 28 materials” or by showing that such materials “do not establish the absence or presence of a 1 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 2 Fed. R. Civ. P. 56(c)(1)(A), (B). 3 When the non-moving party bears the burden of proof at trial, “the moving party need 4 only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle 5 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325 .); see also Fed. R. Civ. P. 56(c)(1)(B). 6 Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 7 against a party who fails to make a showing sufficient to establish the existence of an element 8 essential to that party's case, and on which that party will bear the burden of proof at trial. See 9 Celotex, 477 U.S. at 322 . “[A] complete failure of proof concerning an essential element of the 10 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 11 circumstance, summary judgment should be granted, “so long as whatever is before the district 12 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323 . 13 If the moving party meets its initial responsibility, the burden then shifts to the opposing 14 party to establish that a genuine issue as to any material fact exists. See Matsushita Elec. Indus. 15 Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of 16 this factual dispute, the opposing party typically may not rely upon the allegations or denials of its 17 pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 18 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 19 Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. However, a complaint that is submitted in 20 substantial compliance with the form prescribed in 28 U.S.C. § 1746 is a “verified complaint” and 21 may serve as an opposing affidavit under Rule 56 as long as its allegations arise from personal 22 knowledge and contain specific facts admissible into evidence. See Jones v. Blanas, 393 F.3d 23 918, 923 (9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (accepting the 24 verified complaint as an opposing affidavit because the plaintiff “demonstrated his personal 25 knowledge by citing two specific instances where correctional staff members . . . made statements 26 from which a jury could reasonably infer a retaliatory motive”); McElyea v. Babbitt, 833 F.2d 27 196 , 197–98 (9th Cir. 1987); see also El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (Court 28 reversed the district court’s grant of summary judgment because it “fail[ed] to account for the fact 1 that El Bey signed his complaint under penalty of perjury pursuant to 28 U.S.C. § 1746 . His 2 verified complaint therefore carries the same weight as would an affidavit for the purposes of 3 summary judgment.”). The opposing party must demonstrate that the fact in contention is 4 material, i.e., a fact that might affect the outcome of the suit under the governing law, see 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. 6 Contractors Ass'n, 809 F.2d 626 , 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the 7 evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool 8 v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 9 To show the existence of a factual dispute, the opposing party need not establish a 10 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 11 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 12 T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the 13 pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 14 Matsushita, 475 U.S. at 587 (citations omitted). 15 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 16 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 17 party.” Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the 18 opposing party's obligation to produce a factual predicate from which the inference may be 19 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 20 aff'd, 810 F.2d 898 , 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 21 party “must do more than simply show that there is some metaphysical doubt as to the material 22 facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 23 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 24 omitted). 25 B. Civil Rights Act Pursuant to 42 U.S.C. § 1983 26 The Civil Rights Act under which this action was filed provides as follows: 27 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 28 of any rights, privileges, or immunities secured by the Constitution . 1 . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. [3] 42 U.S.C. § 1983 . The statute requires that there be an actual connection or link between the 4 actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See 5 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 6 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of §1983, 7 if he does an affirmative act, participates in another’s affirmative acts or omits to perform an act 8 which he is legally required to do that causes the deprivation of which complaint is made.” 9 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 10 Supervisory personnel are generally not liable under § 1983 for the actions of their 11 employees under a theory of respondeat superior and, therefore, when a named defendant holds a 12 supervisorial position, the causal link between him and the claimed constitutional violation must 13 be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. 14 Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the 15 involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of 16 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 17 II. Material Facts 18 A. Statements of Facts 19 Defendants filed a Statement of Undisputed Facts (“DSUF”) as required by Local Rule 20 260(a). (ECF No. 135-2.) Plaintiff’s filing in opposition to defendant’s motion for summary 21 judgment fails to comply with Local Rule 260(b). Rule 260(b) requires that a party opposing a 22 motion for summary judgment “shall reproduce the itemized facts in the Statement of Undisputed 23 Facts and admit those facts that are undisputed and deny those that are disputed, including with 24 each denial a citation to the particular portions of any pleading, affidavit, deposition, 25 interrogatory answer, admission, or other document relied upon in support of that denial.” 26 Plaintiff's opposition to the summary judgment motion includes a Brief (ECF No. 142), a 27 Declaration (ECF No. 142-1), and a Statement of Disputed Factual Issues (ECF No. 142-2). In 28 //// 1 addition, plaintiff submitted a description of his exhibits (ECF No. 142 at 8-11) and over 500 2 pages of exhibits (id. at 12-553). 3 In light of plaintiff’s pro se status, the court has reviewed plaintiff’s filings in an effort to 4 discern whether he denies any material fact asserted in defendants’ DSUF or has shown facts that 5 are not opposed by defendants. The court considers the statements plaintiff made in his verified 6 complaint, in his sworn declaration, at his deposition,2 in filings in opposition to the prior 7 summary judgment motion, and of which he has personal knowledge. 8 Below, the court sets out the undisputed material facts. The facts in dispute are discussed 9 in the analysis of each claim in the following section. 10 B. Undisputed Material Facts 11 At all relevant times, plaintiff was a prisoner incarcerated within the CDCR. (DSUF 12 (ECF No. 135-2) #1.) Plaintiff was transferred from PBSP to HDSP on the evening of March 27, 13 2013, arriving at HDSP in the early morning hours of March 28, 2013.3 Plaintiff was transferred 14 after being accused of the attempted murder of a correctional officer at PBSP. (Id. #3.) The 15 conduct that is the subject of the present case occurred at HDSP. (Id. #2.) On the date he arrived 16 at HDSP, plaintiff was initially housed in cell number 112 of Z Unit and, sometime later that day, 17 was moved to cell number 129 of Z Unit. (Comp. (ECF No. 1 at 4-5, ¶¶ 10, 15); Answ. (ECF No. 18 30 at 2, ¶ 9).) According to plaintiff, cell 129 was in a different section of Z Unit from cell 112. 19 Cell 129 was in the “C Section.” (ECF No. 1 at 5, ¶ 15.) In April 2013, while at HDSP, plaintiff 20 contracted an H-Pylori bacterial infection. (Id. at 9, ¶ 33.) 21 //// [22] 23 2 Defendants provided the court with a copy of plaintiff’s deposition transcript. (See ECF No. 81 (Defs.’ Notice of Lodging Depo. Trscrpt.).) [24] 3 In their brief and in the DSUF, defendants refer to plaintiff’s transfer date as May 27, 2013. In [25] the answer, defendants refer to plaintiff’s arrival at HDSP as occurring in the early morning hours of March 23, 2013. (ECF No. 30 at 2, ¶ 7.) However, records provided by the parties indicate [26] that the correct date is the March 27-28, 2013 date cited by plaintiff in his complaint. (See ECF 27 No. 1 at 4, ¶¶ 9-10.) In fact, defendants admit the fact of the March 27 date in their answer. (ECF No. 30 at 2, ¶ 6.) The court assumes defendants’ references to the March 23 and May 27 28 dates were made in error. 1 Defendant Cox wrote a rules violation report (“RVR”) charging plaintiff with damaging 2 his mattress. (Comp. (ECF No. 1 at 11, ¶ 43); Answ. (ECF No. 30 at 3, ¶ 19).) Plaintiff was 3 found guilty of the rules violation for having a damaged mattress and a hold was placed on his 4 ability to purchase canteen items. (Comp. (ECF No. 1 at 13, ¶¶ 53, 54); Answ. (ECF No. 30 at 3, 5 ¶ 21).) 6 III. Analysis 7 A. Retaliation 8 Plaintiff alleges three retaliation claims. First, plaintiff contends the actions of defendants 9 described in his complaint were taken in retaliation for plaintiff's alleged attempt to murder a 10 PBSP officer. (Plt.’s Depo. at 127:23 - 128:3.) Second, plaintiff alleges that he told an HDSP 11 counselor about this treatment by defendants. In retaliation for making that complaint, defendants 12 Cox and Loftin called him names; he was fed minimal amounts of food; Cox, Loftin, and Riley 13 “trashed” plaintiff’s cell and destroyed his pain medications whenever he left it; his incoming 14 personal mail was destroyed; and he was falsely charged $13.00 for a book. (ECF No. 1 at 10-11, 15 14-15.) Finally, plaintiff contends that when he attempted to take a 602 form to his RVR hearing 16 in April 2013, defendants Holmes and Loftin took it from him and refused to allow him to attend 17 the hearing, in retaliation for attempting to file a grievance. (Id. at 12.) 18 Defendants argue plaintiff cannot succeed on this claim because he fails to establish that 19 he engaged in protected activity. At most, according to defendants, plaintiff may have alleged a 20 claim of retaliation against defendants Holmes and Loftin for their refusal to allow plaintiff to 21 attend the RVR hearing about the damage to plaintiff’s mattress when they saw that plaintiff was 22 carrying a 602 form. 23 1. Legal Standards for First Amendment Retaliation Claim 24 To prove a claim of First Amendment retaliation, plaintiff must establish each of five 25 elements: (1) a state actor took some adverse action against him, (2) because of (3) his protected 26 conduct, and such action (4) chilled plaintiff’s exercise of his First Amendment rights, and (5) the 27 action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 28 559, 567-68 (9th Cir. 2005) (footnote and citations omitted). Under the first element, plaintiff 1 need not prove that the alleged retaliatory action, in itself, violated a constitutional right. Pratt v. 2 Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (to prevail on a retaliation claim, plaintiff need not 3 “establish an independent constitutional interest” was violated); see also Hines v. Gomez, 108 4 F.3d 265 , 269 (9th Cir. 1997) (“[P]risoners may still base retaliation claims on harms that would 5 not raise due process concerns.”); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (transfer 6 of prisoner to a different prison constituted adverse action for purposes of retaliation claim). To 7 prove the second element, retaliatory motive, plaintiff must show that his protected activities were 8 a “substantial” or “motivating” factor behind the defendants’ challenged conduct. Brodheim v. 9 Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Soranno's Gasco, Inc. v. Morgan, 874 F.2d 10 1310, 1314 (9th Cir. 1989)). The third element includes prisoners’ First Amendment right of 11 access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). While prisoners have no 12 freestanding right to a prison grievance process, see Ramirez v. Galaza, 334 F.3d 850, 860 (9th 13 Cir. 2003), “a prisoner's fundamental right of access to the courts hinges on his ability to access 14 the prison grievance system,” Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), overruled on 15 other grounds by Shaw v. Murphy, 532 U.S. 223 , 230 n. 2 (2001). 16 2. Material Issues of Fact re Retaliation 17 Plaintiff admitted in his deposition that the primary basis for his retaliation claim is that 18 the officers’ conduct was motivated by the allegation that plaintiff had attempted to murder a 19 guard at PBSP. (Plt.’s Depo. at 127-128.) It goes without saying that attempted murder is not a 20 protected activity under the First Amendment. Therefore, plaintiff has no legitimate claim for 21 retaliation on this basis and this court need not examine whether plaintiff has established the other 22 elements for a claim of retaliation 23 Plaintiff points to two other incidents in which officers’ conduct was, arguably, 24 retaliatory. First, plaintiff contends that when he was being taken to the RVR hearing regarding 25 the damage to his mattress, he was holding a 602 form. Plaintiff says he intended to give the 26 form to the hearing officer. When defendants Holmes and Loftin saw the form, they took it from 27 him and retaliated for his attempted to submit a 602 grievance by refusing to allow him to attend 28 //// 1 the RVR hearing. As a result, he was found guilty and fined. These allegations, if proven, are 2 sufficient to establish a violation of plaintiff’s First Amendment right to be free of retaliation. 3 Here, plaintiff establishes (1) an adverse action in the form of being denied the right to 4 participate in the RVR hearing (2) because of (3) plaintiff’s protected conduct of attempting to 5 assert his First Amendment rights by submitting a grievance, and that such action (4) would chill 6 the average inmate’s exercise of his First Amendment rights, and (5) the action did not 7 “reasonably advance a legitimate correctional goal.” See Rhodes, 408 F.3d at 567–68. 8 Defendants submit no evidence to counter these allegations and make no attempt to argue that 9 there was a legitimate correctional goal in depriving plaintiff of his 602 form and the ability to 10 attend the RVR hearing. 11 Further, an implication of defendants’ argument is that the only conduct protected under 12 the First Amendment is the filing of grievance forms. That argument is not well taken. Plaintiff 13 alleges he was prevented from filing those grievances by the defendants. Further, case law 14 establishes that filing a grievance or lawsuit is not the only activity protected under a First 15 Amendment retaliation claim. See Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006) (oral 16 complaints about prison conditions are protected activity under the First Amendment). 17 Plaintiff’s final retaliation claim is that after he complained to the HDSP counselor about 18 his treatment, his meal portions were sharply reduced, his mail was tampered with, and his cell 19 was trashed, among other things. However, plaintiff does not connect his complaints to the 20 counselor with the injuries he suffered. Plaintiff fails to show that those actions were taken 21 because he complained to the counselor or for any other reason possibly protected by the First 22 Amendment. 23 To summarize, defendants are entitled to summary judgment on plaintiff’s claim that he 24 was retaliated against for the charge that he attempted to murder a PBSP officer and plaintiff’s 25 claim that he was retaliated against for complaining to an HDSP counselor. 26 Defendants’ motion for summary judgment should be denied with respect to plaintiff’s 27 contention that defendants Holmes and Loftin refused to allow plaintiff to attend an RVR hearing 28 when they saw that he was attempting to take a 602 form with him. 1 B. Food Claims 2 Plaintiff states three distinct complaints about the handling of his food: (a) his food was 3 tainted; (b) he was provided insufficient food; and (c) his food was unsanitary because it ended up 4 on the floor when food trays were thrown into his cell.4 Defendants concede that plaintiff has 5 adequately alleged claims against defendants Cox and Loftin for tampering with his meals, 6 throwing food trays into his cell, and denying him adequate food. (ECF No. 135-1 at 7.) 7 Defendants argue that plaintiff fails to allege facts supporting claims against defendants Holmes, 8 Foulk, Witcheal, Madrigal, Wung, and Riley. (ECF No. 80-1 at 9; ECF No. 92 at 5.) 9 1. Legal Standards for Denial of Adequate Food 10 It is well established that “food is one of life’s basic necessities.” Foster v. Runnels, 554 11 F.3d 807 , 813 (9th Cir. 2009). “The sustained deprivation of food can be cruel and unusual 12 punishment when it results in pain without any penological purpose.” Id. at 814 (citing Phelps v. 13 Kapnolas, 308 F.3d 180 , 187 (2nd Cir. 2002)). Under the Eighth Amendment, food does not need 14 to be tasty or aesthetically pleasing, but it does need to be adequate to maintain health. LeMaire 15 v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); see also Thompson v. Gibson, 289 F.3d 1218 , 1222 16 (10th Cir. 2002) (food provided must be “nutritionally adequate”) (citing Ramos v. Lamm, 639 17 F.2d 559, 570-71 (10th Cir. 1980)); Robles v. Coughlin, 725 F.2d 12 , 15 (2nd Cir. 1983) (per 18 curiam) (The Eighth Amendment requires prisoners to be provided with “nutritionally adequate 19 food that is prepared and served under conditions which do not present an immediate danger to 20 the health and wellbeing of the inmates who consume it.”); cf. Hutto v. Finney, 437 U.S. 678 , 21 683, 686-87 (1978) (remarking that conditions of confinement that included a 1000-calorie-per22 day diet of “‘grue,’ a substance created by mashing meat, potatoes, oleo, syrup, vegetables, eggs, 23 and seasoning into a paste and baking the mixture in a pan,”. . . “might be tolerable for a few days 24 and intolerably cruel for weeks or months”). [25] 4 Part of plaintiff’s contention is that throwing food trays amounted to an assault when the food [26] and tray hit him. However, the court previously found the assault contention does not state a 27 cognizable § 1983 claim and plaintiff failed to demonstrate he had met the requirements of the Government Claims Act to allege a state law claim. Accordingly, that contention was dismissed 28 from this action. (See ECF No. 14 at 3-4.) 1 To establish an Eighth Amendment claim for the deprivation of food, a plaintiff must 2 allege facts showing that objectively he suffered a sufficiently serious deprivation and that 3 subjectively each defendant had a culpable state of mind in allowing or causing the plaintiff's 4 deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). Further, a showing of 5 mental or emotional injury alone is not actionable under § 1983. A plaintiff bringing a suit under 6 § 1983 must show he has suffered physical injury, in addition to mental and emotional harms. 42 7 U.S.C. § 1997e(e); see also Perkins v. Kansas Dept. of Corr., 165 F.3d 803, 807 (10th Cir. 1999). 8 2. Disputed Facts re Denial of Proper Food 9 a. Tainted Food 10 Plaintiff alleges that starting around April 16, 2013, he discovered various foreign objects, 11 including leaves, trash, and rocks in his food. Plaintiff specifically states in his complaint that 12 defendants Cox and Loftin were aware of the tainted food and would joke about it. (ECF No. 1 at 13 7.) He also states that defendant Riley was present during the food tampering and that he told 14 Riley about it. (Id.) Plaintiff does not allege specific facts showing that any of the other 15 defendants participated in placing foreign objects in his food or were aware of it. Plaintiff states 16 that at an April 4, 2013 meeting, he orally informed defendant Foulk about actions by Riley, Cox, 17 and Loftin regarding his food. However, that notification could not have included plaintiff’s 18 tainted food because he alleges that it was not until later that foreign objects began appearing in 19 his food. 20 Plaintiff states that as the result of either his tainted food or his unsanitary living 21 conditions, he contracted an H-Pylori bacterial infection. (ECF No. 89 at 11.) 22 b. Insufficient Food 23 Plaintiff states that defendants Cox and Loftin refused to give him lunch, and refused to 24 allow others to give him lunch, for thirteen days. (ECF No. 89 at 16.) Plaintiff states that after he 25 talked with the counselor on April 28 or 29, 2013, his food portions were dramatically reduced. 26 He states he was being served “a teaspoon amount of each food portion.” (Id. at 7-8.) Plaintiff 27 further states that he received inadequate meals for three weeks. (Id. at 8.) However, besides the 28 //// 1 specific allegations about Cox and Loftin, plaintiff fails to identify which defendants were 2 involved in these “dramatically decreased” portions. 3 c. Unsanitary Food 4 Plaintiff contends food trays were thrown or dropped into his cell from March 28 to about 5 April 16, 2013. He states that Cox and Loftin were the “main ones” throwing his food trays into 6 his cell. (Plt.’s Depo. at 42, 90.) Plaintiff states that defendant Riley was present when Cox and 7 Loftin threw food into his cell and that he complained to Riley about it. (ECF No. 1 at 7.) He 8 also states that Holmes “sometimes” threw his food tray. (Plt.’s Depo. at 42.) 9 Plaintiff disputes defendants’ contention that he has not specifically alleged actions by 10 defendants Witcheal, Wung, Madrigal, and Foulk. Plaintiff states that Witcheal, Wung, and 11 Madrigal “participated in” throwing food to plaintiff. (ECF No. 89 at 9; Plt.’s Decl. (ECF No. 12 142-1 at 8); Plt.’s Stmt. of Disputed Facts (ECF No. 142-2 at 2-3).) When asked at his deposition 13 if these three defendants had thrown food at him, plaintiff answered “Yes.” (Plt.’s Depo. at 91, 14 98.) 15 Plaintiff further states that he orally told defendant Foulk about this treatment at the April 16 4, 2013 ICC meeting and Foulk failed to take action to stop it. (Plt.’s Depo. at 74-75; Compl. 17 (ECF No. 1 at 8); Plt.’s Decl. (ECF No. 142-1 at 9).) Defendants argue that plaintiff’s allegation 18 regarding Foulk is insufficient because plaintiff has not articulated just what he told Foulk. 19 However, defendants do not dispute plaintiff’s contentions that plaintiff told Foulk he was 20 receiving tainted and inadequate food or that Foulk did nothing as a result. Plaintiff’s allegations, 21 if proven, could demonstrate Foulk had responsibility for denying plaintiff appropriate food. 22 3. Material Issues of Fact re Food Claims 23 Plaintiff has stated, and defendants have provided no evidence to dispute, that defendants 24 Cox, Loftin, Holmes, Witcheal, Wung, and Madrigal took actions that caused plaintiff’s food to 25 be unsanitary. However, while plaintiff states that Cox and Loftin regularly were involved in 26 providing him unsanitary and tainted food, the only allegation against Holmes, Witcheal, Wung, 27 and Madrigal is that they had thrown food at plaintiff. Plaintiff has not alleged that they did so 28 more than once. Plaintiff’s allegations against those three defendants are insufficient to show that 1 they caused plaintiff to suffer a sufficiently serious deprivation due to the quality or quantity of 2 his food. 3 Plaintiff’s food-related claims against Holmes, Witcheal, Wung, and Madrigal should be 4 dismissed. 5 Plaintiff has, however, shown that defendants Riley and Foulk were aware that plaintiff’s 6 food was unsanitary, had the authority to address the problem, and took no action to do so. 7 Plaintiff has further shown defendants Cox and Loftin were responsible for plaintiff receiving 8 inadequate food when he was denied lunches for a period of time. This court finds plaintiff's 9 showing sufficient to support a claim that these defendants denied plaintiff food that was not 10 adequate to maintain his health in violation of the Eighth Amendment. 11 Summary judgment for defendants Cox, Loftin, Riley, and Foulk is not appropriate on 12 plaintiff’s claims regarding the provision of unsanitary and inadequate food. 13 C. Conditions of Confinement Claim 14 Plaintiff alleges the conditions of his cell and his confinement at HDSP were inhumane 15 for three reasons: (1) his mattress was thin and dirty; (2) his cell was dirty, and he was not 16 provided cleaning supplies; and (3) he was not allowed to shower for a month and was not 17 provided hygiene supplies. Plaintiff states that as a result of the inadequate mattress, he 18 experienced back pain. (ECF No. 89 at 11.) He alleges that as a result of either his unsanitary 19 food, or the conditions of his cell and person, or both, he contracted a bacterial infection. 20 Defendants note that plaintiff has specifically identified defendants Cox, Loftin, and Riley 21 as being responsible for these conditions. (ECF No. 135-1 at 9.) They point out that plaintiff has 22 made, at most, only general allegations against defendants Foulk, Wung, Madrigal, and Witcheal. 23 In addition, defendants argue that plaintiff’s allegations of an unclean toilet do not rise to the level 24 of an Eighth Amendment violation. 25 Defendants do, however, appear to concede that plaintiff’s claims that he was denied 26 hygienic and cleaning supplies is sufficient to support an Eighth Amendment claim against Cox, 27 Loftin, and Riley. (Id.) 28 //// 1 1. Legal Standards Claim re Conditions of Confinement 2 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 3 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 4 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 5 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 6 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 7 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited 8 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319 . 9 What is needed to show unnecessary and wanton infliction of pain “varies according to 10 the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992) 11 (citing Whitley, 475 U.S. at 320 ). In order to prevail on a claim of cruel and unusual punishment, 12 however, a prisoner must allege and prove that objectively he suffered a sufficiently serious 13 deprivation and that subjectively prison officials acted with deliberate indifference in allowing or 14 causing the deprivation to occur. Wilson, 501 U.S. at 298-99 . 15 “[A] prison official may be held liable under the Eighth Amendment for denying humane 16 conditions of confinement only if he knows that inmates face a substantial risk of serious harm 17 and disregards that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, [18] 511 U.S. 825, 847 (1994). To state a claim for threats to safety, an inmate must allege facts to 19 support that he was incarcerated under conditions posing a substantial risk of harm and that prison 20 officials were “deliberately indifferent” to those risks. Id. at 834 ; Frost v. Agnos, 152 F.3d 1124 , 21 1128 (9th Cir. 1998). To adequately allege deliberate indifference, a plaintiff must set forth facts 22 to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, [23] 511 U.S. at 837 . That is, “the official must both be aware of facts from which the inference could 24 be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. 25 2. Material Issues of Fact re the Conditions of Confinement 26 This court finds two distinct aspects to plaintiff’s claim regarding the conditions of his 27 confinement. First, he complains the too-thin mattress caused him back pain. Second, he 28 //// 1 complains of the unsanitary conditions of his cell and lack of hygiene supplies, which plaintiff 2 alleges resulted in contracting a bacterial infection. 3 a. Too-thin Mattress 4 With respect to plaintiff’s claim that his mattress was too thin, courts have held that 5 similar sleeping conditions do not amount to an Eighth Amendment violation. See Valdez v. 6 Beard, No., 2018 WL 1036404 , at *5 (E.D. Cal. Feb. 23, 2018) (“[A] comfortable mattress and 7 the presence of a pillow are simply not part of the ‘minimal civilized measure of life’s 8 necessities.’” (citing Faunce v. Gomez, 163 F.3d 605, at *1 (9th Cir. 1998) (unpublished 9 disposition).), rep. and reco. adopted, 2018 WL 3129939 (E.D. Cal. June 25, 2018); Muniz v. 10 Hill, No. CV-06-120-ST, 2008 WL 1995457 , at *4-6 (D. Or. May 6, 2008) (replacing prisoner’s 11 foam-filled mattress with a thinner, sponge-filled security mat for thirty days did not violate the 12 Eighth Amendment); Brown v. Hamblin, No. 03-C-139-C, 2003 WL 23274543 , at *2 (W.D. Wis. 13 Apr. 16, 2003) (Allegation that prisoner had to sleep on a mattress on the floor for 28 days in a 14 two-month period and 8 days in another month did not amount to cruel and unusual punishment.). 15 In addition, the Ninth Circuit has held that “there is no clear legal guidance ‘on whether mattress 16 deprivation [requiring sleeping on a concrete floor] was an Eighth Amendment violation.’” Jones 17 v. Neven, 678 F. App’x 490, 493 (9th Cir. 2017) (quoting Chappell v. Mandeville, 706 F.3d 18 1052, 1060 (9th Cir. 2013)); see also Finley v. Neven, 388 F. App’x 694 (9th Cir. 2010) 19 (prisoners do not have a clearly established right to sleep on a comfortable mattress). Therefore, 20 the Ninth Circuit held, defendants were entitled to qualified immunity on a conditions of 21 confinement claim based on sleeping arrangements. Id. The same should be true here, 22 particularly where plaintiff did have a mattress, just not one he felt was thick enough. 23 Plaintiff does not contend defendants were aware that he had a medical condition 24 requiring a better mattress or that he had any sort of medical chrono requiring one. On the facts 25 presented by plaintiff, he fails to establish each element of a claim that the too-thin mattress 26 violated his Eighth Amendment rights. Accordingly, that claim should be dismissed. 27 //// 28 //// 1 b. Unsanitary Conditions 2 With respect to plaintiff’s claim of unsanitary conditions, defendants point to cases in 3 which the Ninth Circuit and district courts in this circuit have held that extremely unsanitary 4 conditions for a prolonged period of time rise to the level of an Eighth Amendment violation. See 5 Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir.) (“[A] lack of sanitation that is severe 6 or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment.”), 7 amended on other grounds, 75 F.3d 448 (9th Cir. 1995); see also Hearns v. Terhune, 413 F.3d 8 1036, 1041-42 (9th Cir. 2005) (unconstitutional prison conditions claim where the inmate alleged 9 serious health hazards in disciplinary segregation yard for a period of nine months, including 10 toilets that did not work, stagnant pools of water infested with insects, and a lack of cold water 11 when the prison yard exceeded 100 degrees). 12 These cases do not, however, establish that plaintiff’s claim of a month-long period of 13 unsanitary conditions and a lack of hygiene supplies and showers was not sufficiently long and 14 severe to constitute a serious deprivation. In fact, exposure to severely unsanitary conditions for 15 as few as three days has been held to be a potential Eighth Amendment violation. See McBride v. 16 Deer, 240 F.3d 1287, 1291-92 (10th Cir.2001) (vacating Rule 12(b)(6) dismissal where plaintiff 17 alleged he was forced to live in “feces-covered cell” for three days); Young v. Quinlan, 960 F.2d 18 351 , 355–56, 363–65, (3d Cir.1992) (reversing summary judgment for defendants where inmate 19 was moved to “dry cell” without working toilet for 96 hours and forced to urinate and defecate in 20 his cell), superseded by statute on other grounds as stated in Nyhuis v. Reno, 204 F.3d 65 , 71 n. 7 21 (3rd Cir. 2000). Even denial of only regular showers and regular laundry service have been held 22 to violate the Eighth Amendment. Toussaint v. McCarthy, 597 F. Supp. 1388, 1411 (N.D. Cal. 23 1984), overruled on other grounds, 801 F.2d 1080 (9th Cir. 1986). A prisoner has a right to the 24 hygiene items which reflect “the minimal civilized measure of life’s necessities.” Rhodes v. 25 Chapman, 452 U.S. 337, 347 (1981). 26 Further, plaintiff’s claim regarding his living conditions is related to his claim of 27 unsanitary food. Food thrown onto the floor of plaintiff’s dirty cell certainly resulted in the 28 obvious possibility that the food may become tainted. And, plaintiff suffered a bacterial infection 1 likely caused by the unsanitary conditions of his cell and/or his food. Courts have held that even 2 temporary unsanitary conditions may result in an Eighth Amendment violation where the prisoner 3 suffers injury. See Sherman v. Gonzalez, No. 1:09-cv-0420-LJO-SKO, 2010 WL 2791565 , at 4 **4-6 (E.D. Cal. July 14, 2010) (plaintiff states a sufficiently serious deprivation from five-hour 5 exposure to sewage where it seriously exacerbated plaintiff’s asthma), rep. and reco. adopted, [6] 2010 WL 3432240 (E.D. Cal. Aug. 31, 2010). 7 Plaintiff alleges a combination of unsanitary conditions that may, if proven, meet Eighth 8 Amendment standards. As stated above, defendants concede that plaintiff has alleged that claim 9 against defendants Cox, Loftin, and Riley. The question here is whether plaintiff has adequately 10 made out a claim against Madrigal, Witcheal, Wung, and Foulk. 11 In his deposition, plaintiff was asked about his complaints about defendant Madrigal. 12 Plaintiff testified that he “yelled” up to defendant Madrigal, who was in the tower about six cells 13 from plaintiff’s cell. (Plt.’s Dep. at 91.) However, plaintiff does not explain what he told or 14 asked Madrigal. He states only that Madrigal told him to “shut up.” Plaintiff does state that 15 Madrigal would occasionally come by plaintiff’s cell and that he told plaintiff why officers were 16 treating him badly. (Id. at 94-95.) Plaintiff says Madrigal told him it was “[b]ecause [of] what I 17 did in Pelican Bay.” (Id. at 94.) 18 With respect to defendant Witcheal, plaintiff testified that more than once he asked 19 Witcheal for soap, a toothbrush, tooth powder, toilet paper, and supplies to clean his cell. (Id. at 20 95, 96.) Plaintiff testified that he is “positive” Witcheal is one of the officers who refused to help 21 him. (Id. at 98.) 22 With respect to defendant Wung, plaintiff states only that he was “hesitant” to give him 23 things, but “he was one of the first ones to give me stuff.” (Id.) 24 Defendants argue that plaintiff’s allegations against Wung, Witcheal, and Madrigal are 25 insufficient to state a claim. This court agrees. Plaintiff makes no specific allegations that any of 26 these three defendants were aware of the conditions of plaintiff’s cell, had the authority to change 27 it, and failed to do so. The fact that defendant Witcheal may have refused to provide plaintiff 28 with supplies more than once is insufficient to state a claim that Witcheal was deliberately 1 indifferent to a substantial risk of serious harm to plaintiff over the month-long period plaintiff 2 alleges he was subjected to unsanitary conditions. 3 With respect to defendant Foulk, plaintiff states that he told Foulk at the April 4, 2013 4 ICC meeting about the conditions of his cell. This is sufficient to show Foulk was aware of the 5 conditions of plaintiff’s cell and that he failed to take corrective measures. 6 The court finds plaintiff has adequately alleged claims, which defendants do not contest, 7 that defendants Cox, Loftin, and Riley acted in conscious disregard of plaintiff’s needs. In 8 addition, plaintiff has sufficiently alleged defendant Foulk had responsibility for the conditions. 9 At this juncture, summary judgment for these defendants on plaintiff’s conditions of confinement 10 claims is inappropriate. This court does find, however, that plaintiff has not stated conditions of 11 confinement claims against Wung, Witcheal, and Madrigal. 12 D. Medical Claim 13 Plaintiff contends that defendants Cox, Loftin, Witcheal, Wung, Madrigal, and Riley 14 prevented plaintiff from getting medical attention for a week by disposing of his sick call slips 15 and ignoring his pleas for help. During that week, plaintiff suffered pain and frequent bouts of 16 vomiting. Defendants contends plaintiff’s “day-long stomach pain” does not amount to a serious 17 medical need. However, in his complaint, plaintiff is clear that he started having sharp stomach 18 pains and vomiting on April 7 and did not go “man down” and manage to be seen until April 14, a 19 week later. (ECF No. 1 at 9.) Defendants present no evidence to contradict plaintiff’s contention 20 that he suffered the stomach problems, and sought help for those problems, for a week before 21 being permitted to see a doctor. 22 1. Legal Standards for Eighth Amendment Medical Claim 23 For an Eighth Amendment claim arising in the context of medical care, the prisoner must 24 allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference to 25 serious medical needs.” Estelle, 429 U.S. at 106 . An Eighth Amendment medical claim has two 26 elements: “the seriousness of the prisoner's medical need and the nature of the defendant's 27 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on 28 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 1 A medical need is serious “if the failure to treat the prisoner's condition could result in 2 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 3 F.2d at 1059 (quoting Estelle, 429 U.S. at 104 ). Indications of a serious medical need include 4 “the presence of a medical condition that significantly affects an individual's daily activities.” Id. 5 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 6 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 7 825, 834 (1994). 8 If a prisoner establishes the existence of a serious medical need, he must then show that 9 prison officials responded to the serious medical need with deliberate indifference. See Farmer, [10] 511 U.S. at 834 . In general, deliberate indifference may be shown when prison officials deny, 11 delay, or intentionally interfere with medical treatment, or may be shown by the way in which 12 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th 13 Cir. 1988). 14 Before it can be said that a prisoner's civil rights have been abridged with regard to 15 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 16 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 17 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06 ); see also 18 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 19 diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth 20 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 21 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 22 the prisoner's interests or safety.’” Farmer, 511 U.S. at 835 . 23 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 24 at 104-05 . To establish a claim of deliberate indifference arising from delay in providing care, a 25 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th 26 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059 ; 27 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198 , 28 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would 2 provide additional support for the inmate's claim that the defendant was deliberately indifferent to 3 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 4 Finally, mere differences of opinion between a prisoner and prison medical staff or 5 between medical professionals as to the proper course of treatment for a medical condition do not 6 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058 ; Jackson v. McIntosh, 90 F.3d 330 , 7 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 8 F.2d 1337 , 1344 (9th Cir. 1981). 9 2. Are there Material Issues of Fact re Deliberate Indifference to Plaintiff’s Serious Medical Needs? [10] 11 Considering the facts in the light most favorable to plaintiff, plaintiff suffered vomiting 12 and stomach pain for a week. During that week, he asked defendants Cox, Loftin, Witcheal, 13 Wung, Madrigal, and Riley to allow him to see a doctor, and they refused. Certainly, the denial 14 of medical care while plaintiff was actively ill may be an Eighth Amendment violation. 15 Defendants’ argument that plaintiff was treated for his bacterial infection ignores the fact that he 16 suffered without treatment for a week. Defendants Cox, Loftin, Witcheal, Wung, Madrigal, and 17 Riley should be denied summary judgment on plaintiff’s medical claim. 18 E. Qualified Immunity 19 Defendants argue they are entitled to qualified immunity regarding plaintiff’s claim that 20 the unsanitary conditions of his confinement violated the Eighth Amendment. 21 1. Legal Standards 22 Government officials enjoy qualified immunity from civil damages unless their conduct 23 violates clearly established statutory or constitutional rights. Jeffers v. Gomez, 267 F.3d 895 , 910 24 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is 25 presented with a qualified immunity defense, the central questions for the court are: (1) whether 26 the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the 27 defendant’s conduct violated a statutory or constitutional right; and (2) whether the right at issue [28] 1 was “clearly established.” Saucier v. Katz, 533 U.S. 194 , 201 (2001), receded from, Pearson v. 2 Callahan, 555 U.S. 223 (2009) (the two factors set out in Saucier need not be considered in 3 sequence). “Qualified immunity gives government officials breathing room to make reasonable 4 but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731 , 743 5 (2011). The existence of triable issues of fact as to whether prison officials were deliberately 6 indifferent does not necessarily preclude qualified immunity. Estate of Ford v. Ramirez–Palmer, [7] 301 F.3d 1043, 1053 (9th Cir. 2002). 8 “For the second step in the qualified immunity analysis—whether the constitutional right 9 was clearly established at the time of the conduct—the critical question is whether the contours of 10 the right were ‘sufficiently clear’ that every ‘reasonable official would have understood that what 11 he is doing violates that right.’” Mattos, 661 F.3d at 442 (quoting Ashcroft v. al—Kidd, 563 U.S. 12 731 (2011) (some internal marks omitted)). “The plaintiff bears the burden to show that the 13 contours of the right were clearly established.” Clairmont v. Sound Mental Health, 632 F.3d 14 1091, 1109 (9th Cir. 2011). “[W]hether the law was clearly established must be undertaken in 15 light of the specific context of the case, not as a broad general proposition” Estate of Ford, 301 16 F.3d at 1050 (citation and internal marks omitted). In making this determination, courts consider 17 the state of the law at the time of the alleged violation and the information possessed by the 18 official to determine whether a reasonable official in a particular factual situation should have 19 been on notice that his or her conduct was illegal. Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 20 2007); Hope v. Pelzer, 536 U.S. 730, 741 (2002) (the “salient question” to the qualified immunity 21 analysis is whether the state of the law at the time gave “fair warning” to the officials that their 22 conduct was unconstitutional). “[W]here there is no case directly on point, ‘existing precedent 23 must have placed the statutory or constitutional question beyond debate.’” C.B. v. City of 24 Sonora, 769 F.3d 1005, 1026 (9th Cir. 2014) (citing al—Kidd, 563 U.S. at 740). An official's 25 subjective beliefs are irrelevant. Inouye, 504 F.3d at 712 . 26 2. Are Defendants Entitled to Qualified Immunity? 27 Defendants make a brief argument that they are entitled to qualified immunity. They state 28 only that plaintiff has failed to bear his burden of proving that the right to a clean cell was clearly 1 established in 2013. According to defendants, “it is unclear if a mere ‘grimy toilet’ constitutes an 2 Eighth Amendment violation. (ECF No. 135-1 at 12.) They add, without citation to any 3 evidence, that the defendants “acted reasonably according to protocol with respect to housing 4 [plaintiff] in the cell at the time.” (Id.) In making these arguments, defendants fail to address the 5 fact that plaintiff does not complain solely about the condition of his cell. Plaintiff also alleges he 6 was denied hygiene items and showers. It is clearly established that the Eighth Amendment's 7 prohibition against cruel and unusual punishment requires that prison officials provide prisoners 8 with basic necessities such as food, clothing, shelter, sanitation, medical care, and personal safety. 9 See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S. 25, 31 (1993). 10 “Unquestionably, subjection of a prisoner to lack of sanitation that is severe or prolonged can 11 constitute an infliction of pain within the meaning of the Eighth Amendment.” Anderson, 45 12 F.3d at 1314 . The totality of plaintiff’s claims of unsanitary conditions of his cell, his self, and 13 his food for a month should defeat defendants’ assertion of qualified immunity. 14 Defendants cite no case law to the contrary. And, the cases in which courts have found 15 qualified immunity appropriate based on a prisoner’s living conditions did not involve the totality 16 of circumstances plaintiff contends he faced in this case. See, e.g., Jones v. Neven, 678 F. App’x 17 490, 493 (9th Cir. 2017) (defendants entitled to qualified immunity on plaintiff's claim that he 18 was forced to sleep on the floor for four days). Further, in those cases, the prisoner did not end up 19 with an injury allegedly caused by the unsanitary living conditions. 20 CONCLUSION 21 For the reasons set forth above, IT IS HEREBY RECOMMENDED that defendants’ 22 motion for summary judgment (ECF No. 135) be granted in part and denied in part as follows: 23 1. Defendants’ motion be GRANTED on the following claims: 24 a. Plaintiff’s claims for retaliation based on his alleged attempted murder of a 25 PBSP prison guard; 26 b. Plaintiff’s claims for retaliation based on his complaint to an HDSP counselor; 27 c. Plaintiff’s claims regarding unsanitary and inadequate food against defendants 28 Holmes, Witcheal, Madrigal, and Wung; 1 d. Plaintiff’s claim that his mattress was too thin; 2 e. Plaintiff's claims regarding the unsanitary conditions of his confinement against 3 Witcheal, Madrigal, and Wung; 4 2. Defendants’ motion be DENIED on the issue of qualified immunity; and 5 3. Defendants’ motion be DENIED on the following claims: 6 a. Plaintiff's retaliation claim against defendants Holmes and Loftin for tearing up 7 plaintiff's 602 grievance form and refusing to allow plaintiff to attend his RVR hearing; 8 b. Plaintiff's claims against defendants Cox, Loftin, Riley, and Foulk for 9 unsanitary and inadequate food; 10 c. Plaintiff's claims against defendants Cox, Loftin, Riley, and Foulk regarding 11 the unsanitary conditions of his confinement; 12 d. Plaintiffs medical claim against defendants Cox, Loftin, Witcheal, Wung, 13 Madrigal, and Riley. 14 These findings and recommendations will be submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(). Within fourteen days 16 | after being served with these findings and recommendations, any party may file written 17 | objections with the court and serve a copy on all parties. The document should be captioned 18 | “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 19 | objections shall be filed and served within seven days after service of the objections. The parties 20 | are advised that failure to file objections within the specified time may result in waiver of the 21 | right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: February 5, 2020 [24] 45 B ORAH BARNES DLB:9 UNITED STATES MAGISTRATE JUDGE 26 | DLB1prisoner-civil rights/garc2378.msj