NASON v. TURNBULL

JOHN ROBERTS, Magistrate Judge

Plaintiff Mark Daniel Nason moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Docket No. 36. The motion is opposed by defendants Superintendent Turnbull, Sgt. Elde, and C.O. Houser who also cross moved for summary judgment. Docket No. 37. Nason filed an opposition to the defendants' motion for summary judgment, Docket No. 40, and a reply to the defendant's opposition to his motion for summary judgment, Docket No. 47. For reasons stated below the magistrate judge recommends that the Plaintiff's motion for summary judgment be denied and defendant's cross-motion for summary judgment be granted.

Background

The second amended complaint filed February 25, 2005 (Docket No. 28) alleges that defendants violated Nason's Eighth Amendment right to be free from cruel and unusual punishment. The underlying facts of the two claims are not in dispute.

The relevant underlying facts are as follows: On June 29, 2004 Nason was given an Individual Determination Restriction (IDR) which provided that he have no state clothing, no state linens and no razor. The IDR was based upon a decision that Nason had violated the institutional policy when he was found to possess a string which is prohibited because prisoners often use a string to exchange contraband or prohibited items. Nason was placed in leg irons and handcuffs while nude and escorted in view of staff and other prisoners to a housing unit (C-cells) used to house inmates who are deemed a management problem to prevent them from destroying state property. Nason was issued a smock to wear but he refused to wear it. The IDR was signed by Sgt. Elde and approved by Superintendent Turnbull. The IDR was rescinded on July 6, 2004.

Nason claims that his placement in leg irons and hand cuffs while escorted nude in front of other persons, as well as, the housing staff, without his own clothes for seven days constituted punitive segregation, and cruel and unusual punishment. The officers also seized Nason's two stationary pads on June 29, 2004. Nason was moved to Cell No. 1 Module C which had no bunk, desk or shelves. The cell in which he was placed had fecal matter on the walls, light and speaker box obstacle placed there by a previous inmate occupant. Although Nason was asked to clean the cell he refused and another inmate subsequently cleaned the contaminated cell. The defendants deny that Nason was moved to C-Cell No. 1 in retaliation for having filed this civil action as alleged in claim two.

Nason seeks an injunction enjoining the defendants from taking his clothes or bed linens unless ordered by the mental health unit of the institution. He also seeks punitive damages in the amount of $5,000 plus costs of this law suit. The prison officials move for summary judgment on their defense of qualified immunity and on the merits. I conclude that no genuine issues of material fact exists and that Nason has not shown that the defendants' conduct deprived him of a federal constitutional right.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) provides the test for summary judgment and states in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Supreme Court discusses the standard to apply in addressing a motion for summary judgment pursuant to Rule 56(c) in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986), and their progeny. The Supreme Court states:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action."

Id. at 2555 (quoting Fed.R.Civ.P. 1 and [Judge William J.] Schwarzer [for the Northern District of California], "Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact," 99 F.R.D. 465, 467 (1984)). See also Childress, "A New Era For Summary Judgments: Recent Shifts At The Supreme Court," 116 F.R.D. 183 (1987). In California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466 (9th Cir. 1987),cert. denied, 484 U.S. 1006, 108 S.Ct. 698 (1988), the Ninth Circuit states:

In three recent cases, the Supreme Court, by clarifying what the non-moving party must do to withstand a motion for summary judgment, has increased the utility of summary judgment. First, the Court has made clear that if the non-moving party will bear the burden of proof at trial as to an element essential to its case, and that party fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element, then summary judgment is appropriate. See Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2552-53 . . . (1986). Second, to withstand a motion for summary judgment, the non-moving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2511 . . . (1986) (emphasis added). Finally, if the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.

818 F.2d at 1468.

Rule 56(e) requires a party to come forward with affidavits or other evidentiary material setting forth specific facts establishing a genuine issue for trial. Rule 56(e) states in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Local General Rule 5(F)(2) states that any party opposing a motion for summary judgment shall simultaneously serve and file with the brief in opposition a statement of genuine issues setting forth clearly, concisely, completely and candidly those contested material facts that must be tried. All facts and inferences must be viewed in the light most favorable to the non-moving party. See: Levin v. Knight, 780 F.2d 786 (9th Cir. 1986), app'd 865 F.2d 1271 (9th Cir. 1989), Ybarra v. Reno Thunderbird Mobile Home Village 723 F.2d 675 (9th Cir 1984), andReed v. Lockheed Aircraft Corp., 613 F.2d 757 (9th Cir. 1980) The motions now pending in this case do not involve any disputed genuine issues of fact and are ripe for summary disposition. An opinion addressing a motion for summary judgment does not need to be supported by any findings of fact or conclusions of law. See Fed.R.Civ.P. 52(a).

To determine if prison officials are entitled to qualified immunity the Ninth Circuit requires a two step sequence of analysis as set forth in Valdez v. Rosebaum, 302 F.3d 1039, 1043 (9^th Cir. 2002). First, the court must decide whether the facts Plaintiff alleged show that the defendants violated his constitutional rights. If that question is answered in the negative then no further analysis is necessary. If that question is answered in the affirmative then the court must decide whether the defendants are entitled to qualified immunity. Id. at 1044.

APPLICATION OF LAW

This action is brought pursuant to 42 U.S.C. § 1983 which provides in relevant part:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or the person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, sued in equity, or other proper proceedings for redress. . . ."

Under § 1983 the plaintiff must assert a violation or deprivation of a right secured by federal law. Section 1983 does not create substantive rights; it merely creates a remedy. The two key elements of a § 1983 claim require that the conduct be committed under color of state law and that the conduct effected a deprivation of a right secured by the Federal Constitution or laws. Tanberg v. Sholtis, 401 F.3d 1151 (10^th Cir. 2005).

To violate the Eighth Amendment the deprivation alleged must objectively be sufficiently serious. Also, the prison official(s) must subjectively have a sufficiently culpable state of mind.Estate of Ford v. Caden, 301 F.3d 1043 (9^th Cir. 2002). "For claims challenging conditions of confinement, the state of mind is deliberate indifference to inmate safety. A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health of 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 1050. The Ninth Circuit Court of Appeals further explains that a reasonable prison official, understanding that he cannot recklessly disregard a substantial risk of serious harm, could know all the facts but reasonably mistakenly perceive that the exposure in any given situation was not that high. In these circumstances he would be entitled to qualified immunity.

Under the framework of contemporary case law the qualified immunity inquiry is separate from the Constitutional inquiry; courts must undertake the qualified immunity analysis separately. Having made the constitutional analysis, I conclude that the defendants are entitled to qualified immunity because it would not have been clear to a reasonable correctional officer knowing what each knew and viewed in the light most favorable to Nason that transferring him while Nude to another module constituted cruel and unusual punishment violating the cell mate's Eighth Amendment rights.

The threshold inquiry this court must undertake in a qualified immunity analysis is whether plaintiff's allegations, if true, establish a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). I conclude that the practice of placing an inmate in a cell with a concrete bunk and no desk or shelves and only a smock for clothing as a restriction for one week for a disciplinary infraction does not constitute a violation of the Eighth Amendment. Nason was not subjected to physical pain although he may have suffered from mental anguish or emotional distress from exposure of his nude body to other inmates and prison officials. Nason chose not to wear a smock. Under the circumstances described the officials did not act with "deliberate indifference" to Nason's health or safety. He was placed in leg irons and handcuff only during his transportation to a different housing module.

The defendants are shielded from liability for civil damages if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Because I find no constitutional violation the court need not assess whether the alleged Eighth Amendment violation here met theHarlow test. In order for a constitutional right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. In other words, in light of the preexisting law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987). In United States v. Lanier, 520 U.S. 259 (1997), the Supreme Court held that a defendant was entitled to "fair warning" that his conduct deprived his victim of a constitutional right, and that the standard for determining the adequacy of that warning was the same as the standard for determining whether a constitutional right was "clearly established" in civil litigation under § 1983. Id. at 270.

In Farmer v. Brennan, 511 U.S. 825 (1994) the Supreme Court held "that a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847.

Nason argues that he was subjected to unusual punishment in violation of the Eighth Amendment because his punishment for a disciplinary infraction was not imposed by a disciplinary committee. Nason asserts that the "fishing line" in his towel roll was made from his personal dental floss not from linens or material belonging to the state. He notes that he was not cited for any written rule infraction relating to misuse or destruction of state property.

Nason submitted a written request on June 30, 2004 to Superintendent Turnbull wherein he attempted to explain that the information on the IDR was inaccurate with regard to the alleged destruction of any state property. After Nason submitted a written request to Superintendent Turnbull to remove the IDR precluding him from having a towel or wash cloth to bathe (it had been five days since his last shower). Nason was informed that the clothing restriction would be lifted. The clothing IDR was lifted July 6, 2004. See Attachment 3 to Nason's Motion for Summary Judgment. There is no evidence that the Department of Corrections did not provide Nason with at least one full set of clean well fitting clothing at the time of his booking or after arraignment if the inmate so desired. Nason was not segregated without clothing; he simply did not like the smock provided to him.

Limiting Nason's prison garb to a "suicide smock" and depriving him of stationery for personal correspondence, assuming those allegations to be true, do not constitute cruel and unusual punishment within the reach of the Eighth Amendment. Nason has not alleged or put forth any evidence to support a claim that any of the named defendants intentionally placed him in a cell containing dried fecal matter. From the facts it appears that when the matter was brought to the attention of Defendant Elde then Nason was removed from the contaminated cell and placed in a clean one. Although state prison inmates are normally provided clean clothing and bed linens pursuant to the written policies of the Alaska Administrative Code and the Cleary final settlement, the U.S. Constitution does not protect that inmate from being restricted for violation of rules and/or inciting others to do the same.

Nason was placed on a restriction of "no state clothing" due to risk of destruction of state clothing and linen to create a string to transport contraband into and out of one's cell. The gown was offered to Nason because it was constructed of a material that is harder to unravel than the normal state issued clothing. Nason had his own sweat shirt available to him but he chose not to wear it. According to the defendants, Nason's stationary was removed from his cell because it did not resemble the paper that a prisoner can purchase at the correctional center and there was a reasonable question about whether he could possess it.

The facts of reported cases in which the courts have found Eighth Amendment violations are certainly more severe than those in the instant case. See Discussion in Summers v. Thurman, 109 F.3d 614 (9^th Cir. 1997) (prison officials saw inmates naked in the showers and made derogatory remarks about them). Nason's allegations fail to meet the objective test for an Eighth Amendment violation. "Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000 (1992).

QUALIFIED IMMUNITY STANDARD

In Brandon v. Alaska, 73 P.3d 1230, 1235 (Alaska 2003) the Alaska Supreme Court ruled that prison officials failing to follow policies and procedures or Cleary Settlement do not necessarily show constitutional violations. There has been no showing that defendant Houser moved Nason to a dirty cell as retaliation for his law suit. The decision to move Nason to another cell was made by Houser's supervisor and he was simply following orders. The IDR prohibiting Nason from possessing state issued clothing and possessing state issued linen other than a suicide gown was made by Superintendent Turnbull. According to the affidavit of Sgt. Barry Bruning it is common practice at Spring Creek Correctional Center for an individual determination restriction (IDR) to be issued prohibiting an inmate from possessing state clothing or state linen to deter the inmate from making prohibited fishing lines. It is clear that the high court's message to the lower court's is not to micro manage the penitentiaries. Reasonable deference is given to state officials and prison administrators to address the issues relating to conditions of confinement. In Wilson v. Seiter, 111 S. Ct. 2321 (1991) the Supreme Court made clear that an Eighth Amendment violation cannot exist without a culpable state of mind on the part of the person responsible for the deprivation.

There are two parts of the test of whether an alleged deprivation is cruel and unusual punishment. The first part of the test is objective: was the deprivation sufficiently serious? The second part is subjective: did the officials act with a sufficiently culpable state of mind?Wilson, 111 S. Ct. at 2324.

There is no evidence that Nason has suffered any serious injury as a result of his movement to or placement in a different cell in light of his history of disciplinary problems. The purpose of the restriction was not to injure Nason but as Nason recognizes to deter him from "fishing" and engaging in related infractions at the prison. The facts indicate that it is Nason himself who put himself at risk of being seen naked, not the prison administrators acting out of the blue.

The instant case is materially different from the facts inHope v. Pelzer, 536 U.S. 730 (2002) holding that handcuffing an inmate to a hitching post for disruptive conduct constituted unnecessary and wanton infliction of pain and was totally without penological justification. In Hope, the inmate had been handcuffed above shoulder height, and when he tried moving his arms to improve circulation, the handcuffs cut into his wrist, causing pain and discomfort. The Supreme Court assessed that the prison officials had knowingly subjected Hope to a substantial risk of physical harm, unnecessary pain, and unnecessary exposure to the sun, prolonged thirst and taunting, and a deprivation of bathroom breaks that created a risk of particular discomfort and humiliation. See also Johnson v. Phelan, 69 F.3d 144 (7^th Cir. 1995) ( Eighth Amendment's prohibition of cruel and unusual punishment did not protect a male inmate in a jail from being routinely monitored while nude by a female guard. This practice was reasonably related to legitimate penological interests.)

Nason was not required to maintain an awkward position for a prolonged period as proscribed in Gates v. Collier, 501 F.2d 1291 (D.C. Cir. 1974). There is no allegation in the instant case of denial of food or drinking water. There is no evidence of physical abuse directed at Nason after he ceased resisting the authorities.

CONCLUSION

Defendants Turnbull, Elde and Houser are entitled to summary judgment based on qualified immunity because Nason has not alleged facts that, if proved, would constitute conduct depriving him of a right secured by the federal Constitution or laws. Plaintiff Nason's motion for summary judgment should be denied. Accordingly, the motion for summary judgment at Docket No. 37 should be granted and the motion for summary judgment at Docket No. 36 should be denied.

IT IS SO RECOMMENDED.

Pursuant to F.R.Cv.P. 72(b) and 28 U.S.C. § 636(b)(1), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON, September 19, 2005. Failure to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9^th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON, September 26, 2005. The parties shall otherwise comply with provisions of F.R.Cv.P. 72(b).

Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).