Johnson v. Shinn ( 2023 )

1 SM 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Takisha M. Johnson, No. CV-22-00537-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants. 14 15 Plaintiff Takisha M. Johnson, who is currently confined in Arizona State Prison 16 Complex (ASPC)-Perryville, in Goodyear, Arizona, brought this civil rights case pursuant 17 to 42 U.S.C. § 1983. (Doc. 10.) Defendants move for summary judgment (Doc. 47), and 18 Plaintiff did not respond.1 19 The Court will grant the Motion for Summary Judgment and terminate the action. 20 I. Background 21 On screening Plaintiffs’ two-count First Amended Complaint (Doc. 10) pursuant to 22 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment 23 threat-to-safety/failure-to-protect claim against ASPC-Perryville maintenance staff A. 24 Barnes in his individual capacity and against former Arizona Department of Corrections, 25 Rehabilitation, and Reentry (ADC) Director David Shinn2 and ASPC-Perryville Deputy 26 27 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 49.) 28 2 In January 2023, Defendant Shinn stepped down as ADC Director, and Ryan Thornell was appointed as the new ADC Director. The Court will therefore direct the Clerk 1 Warden Bendell in their official capacities. (Doc. 11.) The Court directed these 2 Defendants to answer. (Id.) 3 Defendants now move for summary judgment and argue that their alleged conduct 4 did not amount to deliberate indifference and that Defendant Barnes is entitled to qualified 5 immunity. 6 II. Summary Judgment Standard 7 A court must grant summary judgment “if the movant shows that there is no genuine 8 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 9 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 10 movant bears the initial responsibility of presenting the basis for its motion and identifying 11 those portions of the record, together with affidavits, if any, that it believes demonstrate 12 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 13 If the movant fails to carry its initial burden of production, the nonmovant need not 14 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 15 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 16 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 17 contention is material, i.e., a fact that might affect the outcome of the suit under the 18 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 19 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 20 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 21 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 22 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 23 it must “come forward with specific facts showing that there is a genuine issue for trial.” 24 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 25 citation omitted); see Fed. R. Civ. P. 56(c)(1). 26 27 of Court to substitute Director Thornell for Defendant Shinn in his official capacity 28 pursuant to Federal Rule of Civil Procedure 25(d). The Court will hereinafter refer to Defendant Thornell when addressing Plaintiff’s official capacity claim. 1 At summary judgment, the judge’s function is not to weigh the evidence and 2 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 3 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 4 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 5 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 6 III. Facts3 7 Plaintiff arrived at the ASPC-Perryville Lumley Unit in December 2020. (Doc. 48- 8 1 at 4 (Pl. Dep. at 11:5–8).) Shortly after her arrival, Plaintiff applied for three jobs, 9 including maintenance helper. (Doc. 48 (Defs.’ Statement of Facts (DSOF)) ¶ 3.) In 10 January 2021, Plaintiff was hired to work on a prison maintenance crew under Defendant 11 Barnes’s supervision and instruction. (Id. ¶¶ 3, 4; Doc. 10 at 4.) 12 Plaintiff informed the work coordinator that she had no maintenance experience, 13 and the work coordinator told Plaintiff that she would be trained. (Doc. 48-1 at 4 (Pl. Dep. 14 at 13:19–20).) Plaintiff told the work coordinator that she was willing to learn and that she 15 would show up every day and do her best. (Id. (Pl. Dep. at 13:21–25).) During a brief 3– 16 4-minute interview, Plaintiff informed Defendant Barnes that she did not have prior 17 maintenance training or experience. (Id. at 5, 6 (Pl. Dep. at 17:23–18:4, 19:2–4); Doc. 10 18 at 4.) 19 20 21 3 Because Plaintiff did not file a response or controverting statement of facts, the Court will consider Defendants’ facts undisputed unless they are clearly controverted by 22 Plaintiff’s first-hand allegations in the verified Complaint or other evidence on the record. Where the nonmovant is a pro se litigant, the Court must consider as evidence in opposition 23 to summary judgment all the nonmovant’s contentions set forth in a verified complaint or motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 24 In their Statement of Facts, Defendants assert that during her deposition, Plaintiff 25 “acknowledged that the [First Amended] Complaint’s allegations are wrong, but that her testimony is truthful.” (Doc. 48 ¶ 1.) Defendants’ description of Plaintiff’s testimony is 26 inaccurate. Plaintiff’s actual testimony was that another prisoner helped her fill out the complaint form because Plaintiff did not fully understand the process of filing a lawsuit 27 and that if her deposition testimony differed from what was stated on the complaint form, it was because the other prisoner wrote it down wrong. (See Doc. 48-1 at 13 (Pl. Dep. at 28 47:11–48:20).) Contrary to Defendants’ characterization of her testimony, Plaintiff did not admit that any particular allegation in the First Amended Complaint was “wrong.” 1 There were six people on Defendant Barnes’s work crew, including Plaintiff. (Doc. 2 48 ¶ 10.) Plaintiff was shown how to use various power tools by another prisoner, Ashley 3 Ierulli, who acted as the foreperson for the crew. (Doc. 48-1 at 5 (Pl. Dep. at 16:4–25).) 4 Prisoner Ierulli showed Plaintiff how to use the power tools safely. (Id. (Pl. Dep. at 17:1– 5 6).) Plaintiff did not operate heavy equipment, such as forklifts. (Id. (Pl. Dep. at 17:12– 6 15).) Protective equipment was available on Defendant Barnes’s work truck. (Doc. 48 ¶ 7 13.) Plaintiff had been working on the maintenance crew for approximately six or seven 8 months when she was injured while assisting the crew in servicing the swamp coolers on 9 the D-Yard roofs. (Doc. 48 ¶¶ 4, 7; Doc. 10 at 5.) 10 On July 7, 2021, Plaintiff and the rest of the work crew were servicing swamp 11 coolers on the roof of the Lumley Unit D-yard housing unit. (Doc. 48-1 at 6 (Pl. Dep. at 12 20:13–17).) The roof where the crew was working was wet, slippery, covered in animal 13 feces, and had rotted through in places. (Doc. 10 at 5.) The pit where the crew was working 14 on the day Plaintiff was injured lacked any safety railing or ladder, unlike other pits. (Id.) 15 Defendant Barnes was aware of the conditions and problems with that section of roof. (Id.) 16 The crew had been doing this type of work for several months, since about April or May, 17 which was when Plaintiff first went up on a roof. (Doc. 48 ¶ 16.) Prior to July 7, 2021, 18 Plaintiff had participated in servicing the swamp coolers “[m]ore than five” times. (Doc. 19 48-1 at 6 (Pl. Dep. at 20:21–23).) It typically took 10–15 minutes to service a swamp 20 cooler, if nothing went wrong. (Id. at 7 (Pl. Dep. at 23:2–4).) 21 While the crew was working on July 7, 2021, Defendant Barnes was walking 22 between the various units, “[c]ontinuosly trying to check on all of [the crew members].” 23 (Id. (Pl. Dep. at 24:8–11).) Plaintiff was not assigned to climb into the pits to work on the 24 swamp coolers; instead, she was assigned the task of running tools back and forth for the 25 other workers. (Id. at 8 (Pl. Dep. 28:24–29:7); Doc. 48 ¶ 17.) Plaintiff testified that 26 Defendant Barnes “actually made [Plaintiff] the runner . . . because [Plaintiff was] a little 27 shorter for a lot of the jobs that they required [crew members] to do,” and that Defendant 28 Barnes “always tried to make it a little lighter on [Plaintiff].” (Doc. 48 ¶ 18.) 1 Plaintiff was not planning on going down into the pit, but two crew members asked 2 her to come down to help them out. (Id. ¶ 19.) Plaintiff attempted to climb down into the 3 pit using the mechanical equipment, and she turned her ankle stepping down onto the deck, 4 dislocating and fracturing it. (Id. ¶ 20; Doc. 10 at 6.) Plaintiff screamed for help, and 5 another prisoner went to find Defendant Barnes and inform him of Plaintiff’s fall. (Doc. 6 10 at 6.) Defendant Barnes called Lumley Unit control and summoned officers and medical 7 staff. (Id.) When medical staff arrived, they immediately told officers to call 911 due to 8 the obvious severity of Plaintiff’s injuries. (Id.) Emergency responders took Plaintiff to 9 the hospital where she underwent extensive surgery and had hardware, including a metal 10 plate, inserted in her foot. (Id.) 11 Plaintiff testified that Defendant Barnes did not order her to climb into the pit and 12 that he did not even know that she was going to climb into it. (Doc. 48 ¶¶ 22, 23.) 13 Defendant Barnes was standing next to Plaintiff at the pit’s ledge before Plaintiff tried to 14 climb down, but he had walked away to watch other workers on the roof just before 15 Plaintiff attempted to climb down. (Id. ¶ 24.) Plaintiff testified that she could see 16 Defendant Barnes and could have gotten his attention before climbing into the pit. (Id. ¶ 17 31.) With respect to her training, Plaintiff testified that Defendant Barnes “showed us 18 about—like when he comes—it was more as you go per project. If we were to use 19 something, they would show you that day. That’s kind of how it works.” (Id. ¶ 32.) 20 Plaintiff testified that Defendant Barnes would never make a prisoner worker do anything 21 the prisoner thought was dangerous and did not want to do. (Id. ¶ 9.) 22 ADC Department Order (DO) 404, Fire, Safety and Loss Prevention, outlines 23 ADC’s policy on prisoner workers. The version of DO 404 that was in effect when 24 Plaintiff’s claim arose provided that maintenance crew supervisors must: 25 11.1 Prior to hiring inmates to perform specific tasks, attempt to determine inmates’ skill/knowledge level by: 26 11.1.1 Reviewing their Department work history. 27 11.1.2 Interviewing inmates to determine their 28 knowledge of and/or skill in the work to be performed. 11.1.3 Observing and/or verifying their ability to 1 perform claimed skills. 2 11.2 Prior to allowing inmates to perform specific tasks, 3 ensure: 4 11.2.1 Inmates receive training on the potential job hazards and have appropriate PPE [personal protective 5 equipment] in accordance with the appropriate Job 6 Hazard Analysis form and any other appropriate safety information. 7 11.2.2 Inmates receive tools/equipment training and 8 demonstrate their ability in its usage. 9 11.3 Document training provided to the inmate workers 10 relative to their assigned duties, and forward[] the training documents to the appropriate Program Area Supervisor, who 11 shall maintain the file. 12 11.4 Ensure the following: 13 11.4.1 The proper tools/equipment assigned for tasks 14 are in good working order/condition. 15 11.4.2 Inmates use safe working practices, including the usage of appropriate PPE. 16 11.5 Supervise work from implementation through 17 completion, ensuring all inmate workers comply [federal 18 regulations] or remove unsafe inmates from tasks. 19 11.6 Report all inmate serious physical injuries by completing a Significant Incident Report form in accordance 20 with Department Order #105, Information Reporting. The OSC shall receive a copy. 21 11.7 Report any incident involving unsafe work practices to 22 the Physical Plant Manager/Administrator and the OSC for 23 appropriate action. Department employees who knowingly observe and do not report a safety procedure violation or 24 condone unsafe practices may be subject to disciplinary action 25 in accordance with Department Order #601, Administrative Investigations and Employee Discipline. 26 11.7.1 Vicarious liability and deliberate indifference 27 laws also apply. A person observing but not reporting 28 violations may be held personally liable when an unqualified inmate worker performs tasks resulting in 1 the injury of the inmate or another person. 2 11.8 Initiate Work Program assignment changes due to poor 3 performance, disruptive behavior, and/or security threats, in accordance with Department Order #903, Inmate Work 4 Activities. 5 (Doc. 48-3 at 2–3 (DO 404 § 11.0, effective November 9, 2018). 6 Plaintiff asserts that Defendant Barnes often left his prisoner workers unsupervised, 7 even when they were using dangerous tools and working in unsafe conditions. (Doc. 10 at 8 4.) Plaintiff states that she did not receive safety training, as required under DO 404, prior 9 to the day she fell. (Id. at 5.) 10 Plaintiff asserts that Defendants Thornell and Bendell have a policy or custom of 11 forcing prisoners to work in unsafe and hazardous conditions and that the failure to provide 12 a reasonably safe work environment constitutes deliberate indifference to prisoner safety. 13 (Id. at 7.) Plaintiff states that, despite DO 404.11.2’s requirement that prisoner workers be 14 properly trained, supervised, and provided safety equipment, the policy has been 15 intentionally ignored for years, and Defendants knew the policy was not being enforced 16 because DO 404.11.3 required that all safety training be documented in a file, but no 17 documentation exists to establish that prisoner workers in the Lumley Unit received any 18 such training. (Id.) Plaintiff asserts that Defendants Shinn and Bendell willfully ignored 19 risks to prisoner workers from unsafe conditions and took no action to ensure prisoner 20 workers were trained, supervised, and provided appropriate safety equipment. (Id.) 21 IV. Defendant Barnes – Qualified Immunity 22 A. Legal Standard 23 Government officials enjoy qualified immunity from civil damages unless their 24 conduct violates “clearly established statutory or constitutional rights of which a reasonable 25 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding 26 if qualified immunity applies, the Court must determine: (1) whether the facts alleged show 27 the defendant’s conduct violated a constitutional right; and (2) whether that right was 28 clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 230– 1 32, 235–36 (2009) (courts may address either prong first depending on the circumstances 2 in the particular case). In the qualified immunity analysis, the court must consider all 3 disputed facts in the light most favorable to the nonmovant. Isayeva v. Sacramento 4 Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017). 5 For a right to be clearly established there does not have to be a case directly on 6 point; however, “existing precedent must have placed the statutory or constitutional 7 question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. 8 Luna, 577 U.S. 7, 12 (2017)). Clearly established law “must be particularized to the facts 9 of the case,” and “should not be defined at a high level of generality.” White, 137 S. Ct. at 10 552 (quotation and citation omitted). A right is clearly established when case law has been 11 “earlier developed in such a concrete and factually defined context to make it obvious to 12 all reasonable government actors, in the defendant’s place, that what he is doing violates 13 federal law.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017) (citing 14 White, 137 S. Ct. at 551). 15 Once the right at issue is defined, the court must then “identify a case where an 16 officer acting under similar circumstances as [the defendant] was held to have violated” 17 that right. Id. If there is no such case, then the right was not clearly established. See id. at 18 1117–18. “This is not to say that an official action is protected by qualified immunity 19 unless the very action in question has previously been held unlawful, but it is to say that in 20 the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 21 730, 739 (2002) (internal citations omitted). “The Supreme Court has made clear that 22 ‘officials can still be on notice that their conduct violates established law even in novel 23 factual circumstances.’” Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (quoting 24 Hope, 536 U.S. at 741). This principle is particularly relevant “in the context of Fourth 25 Amendment cases, where the constitutional standard—reasonableness—is always a very 26 fact-specific inquiry.” Id.; see Drummond v. City of Anaheim, 343 F.3d 1052, 62 (9th Cir. 27 2003) (holding that “no federal case directly on point [was needed] to establish” that the 28 conduct at issue violated clearly established law and constituted excessive force). 1 B. Discussion 2 1. Constitutional Violation 3 To succeed on an Eighth Amendment threat-to-safety claim, Plaintiff must show 4 that she was incarcerated under conditions posing a substantial risk of harm and that prison 5 officials were “deliberately indifferent” to those risks. Farmer v. Brennan, 511 U.S. 825, 6 832–33 (1994). A plaintiff must demonstrate facts that satisfy a two-part test: (1) that the 7 alleged deprivation is, objectively, sufficiently serious, and (2) that the official is, 8 subjectively, deliberately indifferent to the prisoner’s safety. Id. at 834. To show 9 deliberate indifference, a plaintiff must allege facts to support that a defendant knew of, 10 but disregarded, an excessive risk to prisoner safety. Id. at 837. As to the knowledge 11 component, “the official must both [have been] aware of facts from which the inference 12 could be drawn that a substantial risk of serious harm exist[ed], and he must also [have] 13 draw[n] the inference.” Id. But to prove knowledge of the risk, the prisoner may rely on 14 circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to 15 establish knowledge. Id. at 842. 16 Construing the facts in Plaintiff’s favor, there is at least a question of fact as to the 17 objective prong of the deliberate indifference analysis because the undisputed evidence 18 shows that Plaintiff was working in conditions that posed a substantial risk of harm. At 19 the time of Plaintiff’s injury, the roof of the D-yard unit was wet, slippery, and there was 20 no safety railing or ladder in the pit area. These circumstances could lead a reasonable jury 21 to conclude that Plaintiff’s working conditions presented an objectively serious risk of 22 injury, especially in light of the injury Plaintiff suffered. 23 However, as to the subjective prong, the evidence does not support a finding of 24 deliberate indifference by Defendant Barnes. Even if Plaintiff faced an objectively serious 25 risk of injury, Defendant Barnes did not order Plaintiff to climb down into the pit with the 26 other members. In fact, Plaintiff testified that Defendant Barnes had specifically assigned 27 her to be the runner that day so that she would not have to go into the pit. The undisputed 28 facts show that Defendant Barnes was not even aware that Plaintiff had climbed into the 1 pit until he was informed that she had fallen and suffered an injury. Plaintiff also testified 2 that prisoner/foreperson Ashley Ierulli trained her on how to use power tools safely and 3 that Defendant Barnes showed crew members what to do before they started each project. 4 Protective equipment was provided to the crew members. On these facts, the record does 5 not reflect that Defendant Barnes knew of a risk to Plaintiff and disregarded that risk. At 6 most, Defendant Barnes’s role in the incident could be construed as negligence, which is 7 not actionable pursuant to § 1983. Because there is no constitutional violation, Defendant 8 Barnes is entitled to qualified immunity, and the Motion for Summary Judgment is granted 9 as to the claim against Defendant Barnes. 10 V. Defendants Thornell and Bendell – Official Capacity 11 To prevail on a claim against Defendants Thornell and Bendell in their official 12 capacities, Plaintiff must show that an official policy or custom caused the constitutional 13 violation. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). 14 To make this showing, Plaintiff must demonstrate that (1) she was deprived of a 15 constitutional right; (2) ADC had a policy or custom; (3) the policy or custom amounted to 16 deliberate indifference to Plaintiff’s constitutional right; and (4) the policy or custom was 17 the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., Dep’t 18 of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). Further, if the policy or 19 custom in question is an unwritten one, Plaintiff must show that it is so “persistent and 20 widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. 21 at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)). 22 As discussed above, the record does not support a finding that Plaintiff was deprived 23 of a constitutional right. Moreover, Plaintiff has only presented one instance, on July 7, 24 2021, when she was injured while servicing swamp coolers on the roof of the D-yard. 25 Other than that, Plaintiff only asserts that Defendants had a policy or custom of forcing 26 prisoners to work in unsafe and hazardous conditions in violation of DO 404. (Doc. 10 at 27 7.) Such vague and conclusory evidence is insufficient to show a pattern or practice of 28 constitutional violations. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th 1| Cir. 2007) (“Conclusory, speculative testimony in affidavits and moving papers is 2| insufficient to raise genuine issues of fact and defeat summary judgment.”). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be 4| founded upon practices of sufficient duration, frequency and consistency that the conduct 5 | has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 6| 918 (9th Cir. 1996). Absent more specific information about other instances when Plaintiff or other prisoner workers were harmed as a result of hazardous working conditions, there 8 | is insufficient evidence of a persistent and widespread custom or policy to support an 9| official capacity claim. Accordingly, summary judgment will be granted as to □□□□□□□□□□□ 10 | _ official capacity claim against Defendants Thornell and Bendell. 11 | ITIS ORDERED: 12 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion 13 | for Summary Judgment (Doc. 47). 14 (2) The Clerk of Court must substitute ADC Director Ryan Thornell for 15 | Defendant Shinn in his official capacity pursuant to Federal Rule of Civil Procedure 25(d), 16 | and dismiss Defendant Shinn from the action. 17 (2) | Defendants’ Motion for Summary Judgment (Doc. 47) is granted, and the 18 | action is terminated with prejudice. The Clerk of Court must enter judgment accordingly. 19 Dated this 16th day of October, 2023. 20 21 a 22 3 _ James A. Teil Org Senior United States District Judge 24 25 26 27 28