Anthony Wright v. Paul Penzone ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY JEROME WRIGHT, No. 20-16275
Plaintiff-Appellant, D.C. No. 2:17-cv-04161-SMB
v.
MEMORANDUM*
PAUL PENZONE; JEFFREY ALVAREZ;
VAIL, Captain; RICHARD A. BAILEY,
Defendants-Appellees,
and
DENNY BARNEY; STEVE THUCRI; BILL
GATES; CLINT HICKMAN; STEVE
GALLARDO; UNKNOWN PARTY, Food
Factory Lt. at 4th Ave Jail; JOSEPH M.
ARPAIO; JOSEPH JAMES BRANCO;
BARBARA PIIRINEN; UNKNOWN
PARTIES, Unknown Members of S.M.R.C. ,
as Classification at 4th Ave Jail,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Argued and Submitted February 7, 2022
Phoenix, Arizona
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER and MILLER, Circuit Judges, and FITZWATER,** District
Judge.
Anthony Wright was a pre-trial detainee at the Fourth Avenue Jail in
Maricopa County, Arizona. After he was indicted for the felony murder of a police
officer, Wright was moved from the jail’s general population into “Closed
Custody” under a policy requiring that inmates charged with “murder against a law
enforcement officer [be] automatically . . . housed in Close[d] Custody for the
duration of their county jail incarceration.” In Closed Custody, Wright was held
alone in his cell for up to 23 hours a day. He was eventually tried, and the jury was
unable to reach a verdict. Although he remained indicted on the felony murder
charge, Wright was then moved to the jail’s general population. All told, he spent
eight and a half years in Closed Custody.
Proceeding pro se, Wright brought this action under 42 U.S.C. § 1983,
alleging that his confinement in Closed Custody violated his substantive and
procedural due process rights and that the jail’s medical director had been
deliberately indifferent to his serious medical need. After screening the complaint
under 28 U.S.C. § 1915A(a), the district court ordered that defendants Sheriff Paul
Penzone, jail commander Scott Vail, external referee Richard Bailey, and medical
**
The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.
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director Jeffrey Alvarez respond to Wright’s substantive due process and serious
medical need claims. Thereafter, the district court dismissed Wright’s procedural
due process claim, and granted summary judgment in favor of the defendants on all
other claims. We have jurisdiction under 28 U.S.C. § 1291, and we review de
novo. Thomas v. Ponder, 611 F.3d 1144, 1149 (9th Cir. 2010). We affirm in part,
reverse in part, and remand.
1. Wright alleged that his confinement in Closed Custody amounted to
unconstitutional punishment. Pretrial detainees may not be punished before an
adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535 (1979). A restriction
imposed as a condition of confinement is punishment if (1) it causes the detainee to
suffer some “harm or disability,” and (2) its purpose is to punish the detainee.
Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004) (citing Bell, 441 U.S. at
538). “Harm” under the first prong must “significantly exceed, or be independent
of, the inherent discomforts of confinement.” Id. at 1030 (citing Bell, 441 U.S. at
537).
The district court erred in granting summary judgment on Wright’s official-
capacity claim against Sheriff Penzone. In an official-capacity suit, “the real party
in interest . . . is the governmental entity and not the named official.” Hafer v.
Melo, 502 U.S. 21, 25 (1991). To prevail on a claim against a defendant in his
official capacity, a plaintiff must prove that the constitutional deprivation resulted
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from a policy, custom, or practice of the local government entity that employs the
defendant. Monell v. Department of Soc. Servs., 436 U.S. 658, 690–91 (1978).
The district court found that Wright had not raised a triable issue of fact as to
whether he suffered harms beyond the inherent discomforts of confinement. But in
making that determination, the district court did not consider the evidence that
solitary confinement caused Wright to suffer psychological harm. Wright
submitted grievances stating that he was “going crazy,” and he stated at his
deposition that “being locked down” caused him stress and anguish. His mental
health records also reflect that he began hearing voices. A jury could therefore
infer that Wright’s prolonged detention in solitary confinement inflicted serious
psychological harm. And because Penzone does not dispute that a reasonable jury
could conclude that Wright’s confinement was punitive or that the requirements of
Monell are satisfied, Wright’s official-capacity claim against Penzone may proceed
to trial.
2. Wright argues on appeal that the district court erred in not separately
analyzing his personal-capacity claim against Penzone and in granting summary
judgment in favor of Vail and Bailey. We may affirm on any ground supported by
the record, Olson v. Morris, 188 F.3d 1083, 1085 (9th Cir. 1999), and we conclude
that all three defendants are entitled to qualified immunity, see Chavez v.
Robinson, 817 F.3d 1162, 1167 (9th Cir. 2016). To overcome qualified immunity,
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Wright must show, first, that the officers violated his constitutional rights and,
second, that those rights were clearly established at the time the defendants acted.
Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).
The Supreme Court has “repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high level of generality.”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quotation marks and
citation omitted). Wright maintains that his right not to be punished as a pretrial
detainee was clearly established, but the appropriate inquiry is whether it was
clearly established that a substantive due process violation would result from
Wright’s confinement in Closed Custody in these circumstances. At the time of
Wright’s confinement, binding law from the Supreme Court and in the Ninth
Circuit would not have given the defendants fair notice that their conduct would
result in a substantive due process violation. Although Wright cites decisions of
other circuits, we cannot say that those decisions placed the question “beyond
debate.” Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam)
(quoting Kisela, 138 S. Ct. at 1152); see Almighty Supreme Born Allah v. Milling,
876 F.3d 48, 59 (2d Cir. 2017). We therefore affirm the district court’s grant of
summary judgment to these defendants in their personal capacities.
3. The district court correctly granted summary judgment to all
defendants on Wright’s continuous-lighting claim. Wright asserts that the lighting
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caused permanent damage to his sight, but he has presented no objective evidence
linking that alleged injury to the lighting. And although Wright stated in a
grievance that the lighting in his cell made it difficult to sleep, he reported periods
of good sleep as well. Wright has not offered evidence from which a jury could
infer that the lighting in his cell caused harm that “significantly exceed[ed]” the
inherent discomforts of confinement. Demery, 378 F.3d at 1030 (citing Bell, 441
U.S. at 537).
4. In its screening order, the court dismissed Wright’s procedural due
process claim, explaining that “[a] prisoner has no constitutional right to enjoy a
particular security classification.” Cf. Montanye v. Haymes, 427 U.S. 236, 242
(1976). Pretrial detainees, however, “have a right to procedural due process before
they are subjected to more severe conditions of confinement than other detainees.”
Shorter v. Baca, 895 F.3d 1176, 1190 (9th Cir. 2018). When liberally construed,
see Thomas, 611 F.3d at 1150, Wright’s complaint alleges that he was housed in
more restrictive conditions of confinement without the benefit of procedural
protections, such as a formal hearing. We therefore remand this claim to the district
court for consideration under the appropriate standard. We otherwise express no
view on the merits of the claim or any defenses that may be available, including
qualified immunity for defendants sued on this claim in their personal capacities.
5. We affirm the district court’s grant of summary judgment to Alvarez.
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Wright argued that Alvarez was deliberately indifferent to a serious medical need
by refusing to prescribe Wright a lactose-free diet and by recommending that he
discuss Lactaid with his provider. To succeed on this claim, Wright had to show
that Alvarez acted with “more than negligence but less than subjective intent—
something akin to reckless disregard.” Gordon v. County of Orange, 888 F.3d
1118, 1125 (9th Cir. 2018) (quoting Castro v. County of Los Angeles, 833 F.3d
1060, 1071 (9th Cir. 2016) (en banc)). The district court correctly held that Wright
did not meet that standard. Alvarez’s failure to consult the entirety of Wright’s
medical record before recommending he try Lactaid was, at most, merely
negligent. And although Wright argues that an outside provider recommended that
he be given a lactose-free diet, this raises “[a]t most . . . a difference of medical
opinion regarding his treatment,” which “does not amount to deliberate
indifference.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
In sum, we affirm the dismissal of all claims against all defendants except
the following: Wright’s substantive due process claim against Penzone in his
official capacity based on Wright’s confinement in Closed Custody and Wright’s
procedural due process claim against Penzone in his official and personal
capacities and against Vail and Bailey in their personal capacities.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
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