Burnley v. Arpaio, 2:09-cv-00489

2:09-cv-00489 | D. Ariz. | Nov 9, 2010

Case 2:09-cv-00489-GMS Document 66 Filed 11/09/10 Page 1 of 7

WO JDN NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Lamar Burnley, ) No. CV 09-0489-PHX-GMS (JRI) ) ) ) ) ) ) ) ) ) ) Plaintiff, ORDER vs. Joseph Arpaio,

Defendant. Plaintiff Lamar Burnley brought this civil rights action under 42 U.S.C. § 1983 against Maricopa County Sheriff Joseph Arpaio (Doc. 1). Before the Court are the parties’ cross- motions for summary judgment (Docs. 51, 55).

The Court will deny both parties’ motions and set a new dispositive motions deadline. I. Legal Standard s A. Summary Judgment A court must grant summary judgment “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070" date_filed="2001-09-05" court="9th Cir." case_name="Robert Devereaux v. Timothy David Abbey Laurie Alexander Kate Carrow Linda Wood Kenneth Badgley">263 F.3d 1070, 1076 (9th Cir. 2001) (en banc).

Case 2:09-cv-00489-GMS Document 66 Filed 11/09/10 Page 2 of 7 If the movant meets its burden with a properly supported motion, the burden then shifts to the nonmovant to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Auvil v. CBS “60 Minutes”, 67 F.3d 816" date_filed="1995-10-02" court="9th Cir." case_name="Grady Auvil v. Cbs "60 Minutes"">67 F.3d 816, 819 (9th Cir. 1995); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant need not establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253" date_filed="1968-05-20" court="SCOTUS" case_name="First Nat. Bank of Ariz. v. Cities Service Co.">391 U.S. 253, 288-89 (1968). By affidavit or as otherwise provided by Rule 56, the nonmovant must designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d 1070" date_filed="2001-09-05" court="9th Cir." case_name="Robert Devereaux v. Timothy David Abbey Laurie Alexander Kate Carrow Linda Wood Kenneth Badgley">263 F.3d at 1076.

At summary judgment, the judge’s function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence, and draw all inferences in the nonmovant’s favor. Id. at 255.

B. Fourteenth Amendment Pretrial detainees are protected by the Fourteenth Amendment’s Due Process Clause,

which provides that “detainees have a right against jail conditions or restrictions that ‘amount to punishment.’” Pierce v. County of Orange, 526 F.3d 1190" date_filed="2008-03-24" court="9th Cir." case_name="Pierce v. County of Orange">526 F.3d 1190, 1205 (9th Cir. 2008) (citing Bell v. Wolfish, 441 U.S. 520" date_filed="1979-05-14" court="SCOTUS" case_name="Bell v. Wolfish">441 U.S. 520, 535-37 (1979)). The Fourteenth Amendment standard is more protective than the Eighth Amendment; “[t]his standard differs significantly from the standard relevant to convicted prisoners, who may be subject to punishment so long as it does not violate the Eighth Amendment’s bar against cruel and unusual punishment.” Pierce, 526 F.3d at 1205.

Under the Fourteenth Amendment analysis, to determine if government action constitutes punishment, courts must determine (1) whether the action caused the detainee to suffer some harm or “disability,” and (2) whether the purpose of the action was to punish the detainee. Demery v. Arpaio , 378 F.3d 1020" date_filed="2004-08-06" court="9th Cir." case_name="Demery v. Arpaio">378 F.3d 1020, 1029 (9th Cir. 2004) (citing Bell, 441 U.S. at 538). The test for identifying unconstitutional punishment of pretrial detainees is whether

Case 2:09-cv-00489-GMS Document 66 Filed 11/09/10 Page 3 of 7 there was an express intent to punish or whether there was an alternative purpose for the restriction and whether the restriction appears excessive in relation to this alternative purpose. Demery, 378 F.3d 1020" date_filed="2004-08-06" court="9th Cir." case_name="Demery v. Arpaio">378 F.3d at 1028.

Not every disability imposed during pretrial detention constitutes “punishment” in the constitutional sense. Bell, 441 U.S. 520" date_filed="1979-05-14" court="SCOTUS" case_name="Bell v. Wolfish">441 U.S. at 537. To constitute punishment, the harm caused by the action or condition “must either significantly exceed, or be independent of, the inherent discomforts of confinement.” Demery, 378 F.3d 1020" date_filed="2004-08-06" court="9th Cir." case_name="Demery v. Arpaio">378 F.3d at 1030. A court should look at the nature of the condition and whether it is reasonably related to a legitimate governmental objective. Pierce, 526 F.3d 1190" date_filed="2008-03-24" court="9th Cir." case_name="Pierce v. County of Orange">526 F.3d at 1205. If the condition or restriction is arbitrary or purposeless, a court may infer that the purpose of the action is punishment that may not be inflicted on pretrial detainees. Id. (citing Bell, 441 U.S. 520" date_filed="1979-05-14" court="SCOTUS" case_name="Bell v. Wolfish">441 U.S. at 539).

C. Food Food served to inmates does not have to be tasty or aesthetically pleasing, and if meals

occasionally contain foreign objects or are served cold, it does not amount to a constitutional deprivation. LeMaire v. Maass, 12 F.3d 1444" date_filed="1993-12-23" court="9th Cir." case_name="Samuel Lemaire v. Manfred Maass, Superintendent, Samuel Lemaire v. Manfred Maass, Superintendent">12 F.3d 1444, 1456 (9th Cir. 1993). But inmates must be provided food that is nutritionally adequate to maintain health and that is prepared and served in a manner that does not present a danger to their well being. Id.; see also Johnson v. Lewis, 217 F.3d 726" date_filed="2000-06-29" court="9th Cir." case_name="Dennis Johnson Leonard Todek v. Samuel Lewis">217 F.3d 726, 731-32 (9th Cir. 2000) (identifying a cognizable constitutional violation where inmates alleged they were, inter alia , deprived adequate food). II. Analysis

A. Defendant’s Motion for Summary Judgment A supervisory official may be liable if he implements a policy “so deficient that the

policy ‘itself is a repudiation of constitutional rights’ and is the ‘moving force of the constitutional violation.’” Redman v. County of San Diego, 942 F.2d 1435" date_filed="1991-08-26" court="9th Cir." case_name="Clifton Redman v. County of San Diego Capt. Richard Beall Lt. Robert Witcraft Sgt. Dan Canfield Deputy Gene Turner, and Does I Through Xx, Inclusive">942 F.2d 1435, 1446 (9th Cir. 1991) (citation omitted). To premise a supervisor’s alleged liability on a custom or policy, the plaintiff must identify a specific policy and establish a “direct causal link” between that policy and the alleged constitutional deprivation. See City of Canton, Ohio v. Harris, 489

U.S. 378, 385 (1989).

Case 2:09-cv-00489-GMS Document 66 Filed 11/09/10 Page 4 of 7 Plaintiff does not allege liability based on respondeat superior ; instead, he claims that Defendant is liable for promulgating a food policy that provided just two inadequate meals a day. (Doc. 1 at 3). The Complaint specifically alleges that Defendant deliberately denied sufficient nutrition and calories to inmates and that he “publicly boasts that he deliberately does this to make pretrial detainees suffer” (id.).

Under state law, Defendant has final policy-making authority with respect to the operation of the county jails. See Ariz. Rev. Stat. § 11-441(A)(5); Flanders v. Maricopa County, 54 P.3d 837" date_filed="2002-09-26" court="Ariz. Ct. App." case_name="Flanders v. Maricopa County">54 P.3d 837, 847 (Ariz. Ct. App. 2002). Further, it has been established that pretrial detainees at the Maricopa County Jails must be provided food that meets or exceeds the USDA Dietary Guidelines. Graves v. Arpaio, 2008 WL 4699770, at *46 (D. Ariz. Oct. 22, 2008); Graves, --- F.3d ----, 2010 WL 3987721, at *5-6 (9th Cir. Oct. 13, 2010) (affirming prospective relief addressing inadequate food); see U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244" date_filed="1992-07-07" court="9th Cir." case_name="United States Ex Rel. Robinson Rancheria Citizens Council v. Borneo, Inc. Clear Lake Indian Bingo Ltd. American Arbitration Association Herman Schner">971 F.2d 244, 248 (9th Cir. 2002) (courts may take judicial notice of proceedings in other courts “if those proceedings have a direct relation to matter at issue”).

Defendant contends that the food policy implemented at the jail was constitutional, and he submits a copy of Policy DG-2, which states that “[i]t is the Policy of the Office to ensure that two adequately nutritional meals are offered to all inmates on a daily basis” (Doc. 52, Ex. B). There is no definition of “adequately nutritional” within the one-page policy (see id.). The policy does not indicate how many calories inmates will be served per day, nor does it make any reference to the USDA guidelines.

To demonstrate that the meals provided under the policy were sufficiently nutritious and provided the required calories, Defendant proffers Reddy’s declaration, which is supported by “the attached Analyses and Menus” (id., Ex. C, Reddy Decl. ¶¶ 14, 11-13 (referring to “Attachment 2” and “Attachment 3”)). But there are no attachments and no copies of MCSO menus or nutritional analyses submitted with the declaration. If papers or documents are referred to in an affidavit, “a sworn or certified copy must be attached to or served with the affidavit.” Fed. R. Civ. P. 56(e); see School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255" date_filed="1993-09-24" court="9th Cir." case_name="School District No. 1J v. Acands">5 F.3d 1255, 1262 (9th Cir. 1993) (“if documentary evidence

Case 2:09-cv-00489-GMS Document 66 Filed 11/09/10 Page 5 of 7 is cited as a source of a factual contention, Rule 56(e) requires attachment,” even if the affidavit is also based on personal knowledge). Because Reddy’s declaration does not comply with Rule 56(e), it is inadmissible.

Defendant’s other evidence includes the copy of a grievance and the response thereto; Plaintiff complained that his dinner was spoiled, and detention officers made the determination that the meal was not spoiled (id., Ex. E). This is insufficient evidence to conclusively demonstrate that the meals at the jail during Plaintiff’s confinement were nutritionally adequate. Further, Defendant presents no argument or evidence to suggest that during Plaintiff’s confinement there were any isolated or long-term security issues or threats to safety that required jail officials to regularly delay meals or that resulted in meals with reduced calorie levels.

On this record, the only relevant and admissible evidence is Policy DG-2, which is too ambiguous to establish that the meals served at the jail during Plaintiff’s confinement provided the calories and nutrition required under the USDA guidelines. See Graves, 2008 WL 4699770, at *46. Defendant therefore fails to meet his initial burden to demonstrate the absence of genuine issue of material fact, and his motion will be denied.

B. Plaintiff’s Motion for Summary Judgment Plaintiff also fails to establish that he is entitled to summary judgment. He alleges that

in practice, it was the custom at the jail to serve meals more than 14 hours apart and provide meals with inadequate calories and spoiled food. Plaintiff also alleges—and Defendant’s own evidence reflects—that during his 7-month jail confinement he lost 30 pounds, most of which he gained back after transfer out of the jail (Doc. 52, Ex. D, Pl. Dep.). If a practice is of sufficient duration, frequency, and consistency, and has become “a traditional method of carrying out policy,” then liability attaches if that practice is improper. Trevino v. Gates, 99 F.3d 911" date_filed="1996-11-01" court="9th Cir." case_name="45 Fed. Evid. Serv. 1143 v. Daryl Gates Tom Bradley Tom Reddin Roger Murdock Ed Davis Herbert Boeckmann James Fisk Stephen Gavin Maxwell Greenberg Elbert Hudson Marguerite Justice Emmett Mcgaughey Salvador Montenegro Barbara Schlei Robert Talcott Reva Tooley Robert Weil Samuel Williams Stephen Yslas Lapd Officers Jerry Brooks Joseph Callian Warren Sirk Richard Spellman Gary Strickland James Tippings Richard Zierenberg Manuel Avila Charles Bennett Brian Davis John Fruge Joseph Freia E.T. Guiza Peter Sanchez Reginald Weaver James Toma C.S. Winston Philip Wixon Gary Zerbey Joel Wachs Joy Picus John Ferraro Zev Yaroslavsky Ruth Galanter Ernani Bernardi Nate Holden Marvin Braude Hal Bernson Michael Woo Joan Flores One Hundred Unknown Named Employees Or Officials of The City of Los Angeles">99 F.3d 911, 918 (9th Cir. 1996); see Monell v. Dep’t of Social Servs., 436 U.S. 658" date_filed="1978-06-06" court="SCOTUS" case_name="Monell v. New York City Dept. of Social Servs.">436 U.S. 658, 691 (1978) (an unwritten policy or custom that is “persistent and widespread” can constitute a permanent policy).

Plaintiff’s undisputed weight loss during his 7-month confinement is probative. See Case 2:09-cv-00489-GMS Document 66 Filed 11/09/10 Page 6 of 7 Hutto v. Finney, 437 U.S. 678, 683-84, 686-87 (1978) (serving inmates a diet with insufficient calories for an extended period raises serious constitutional concerns). But Plaintiff does not proffer a copy of the March 2010 interrogatory response that he claims demonstrates that the jail adheres to a 2000-calorie-level guideline (see Doc. 60). His only evidence concerns two isolated incidents; the food on May 16 and 30, 2009 (Doc. 56, Exs. B-C). A claim that a policy or custom is unconstitutional “may not be predicated on isolated or sporadic incidents.” Trevino, 99 F.3d 911" date_filed="1996-11-01" court="9th Cir." case_name="45 Fed. Evid. Serv. 1143 v. Daryl Gates Tom Bradley Tom Reddin Roger Murdock Ed Davis Herbert Boeckmann James Fisk Stephen Gavin Maxwell Greenberg Elbert Hudson Marguerite Justice Emmett Mcgaughey Salvador Montenegro Barbara Schlei Robert Talcott Reva Tooley Robert Weil Samuel Williams Stephen Yslas Lapd Officers Jerry Brooks Joseph Callian Warren Sirk Richard Spellman Gary Strickland James Tippings Richard Zierenberg Manuel Avila Charles Bennett Brian Davis John Fruge Joseph Freia E.T. Guiza Peter Sanchez Reginald Weaver James Toma C.S. Winston Philip Wixon Gary Zerbey Joel Wachs Joy Picus John Ferraro Zev Yaroslavsky Ruth Galanter Ernani Bernardi Nate Holden Marvin Braude Hal Bernson Michael Woo Joan Flores One Hundred Unknown Named Employees Or Officials of The City of Los Angeles">99 F.3d at 918.

Finally, Plaintiff presents no evidence to establish that Defendant directed or knew of and perpetuated the alleged unlawful practice of providing insufficient calories to inmates. See Redman, 942 F.2d 1435" date_filed="1991-08-26" court="9th Cir." case_name="Clifton Redman v. County of San Diego Capt. Richard Beall Lt. Robert Witcraft Sgt. Dan Canfield Deputy Gene Turner, and Does I Through Xx, Inclusive">942 F.2d at 1447 (culpability where a supervisor “knows or reasonably should know” that acts by others would lead to a constitutional injury) (citation omitted). As such, Plaintiff makes no evidentiary showing concerning Defendant’s liability. See Richardson v. Runnels, 594 F.3d 666" date_filed="2010-01-26" court="9th Cir." case_name="Richardson v. Runnels">594 F.3d 666, 671-72 (9th Cir. 2010) (movant must make some evidentiary showing to support claim for summary judgment). For these reasons, Plaintiff’s motion will be denied. III. Conclusion

In light of the above, both Defendant’s summary judgment motion and Plaintiff’s summary judgment motion will be denied. It is not clear from the limited evidentiary record whether summary judgment would be precluded in the face of sufficient evidence related to the meals and food service during Plaintiff’s confinement at the jail. Therefore, the Court will set a new deadline for dispositive motions. See Hoffman v. Tonnemacher, 593 F.3d 908" date_filed="2010-01-21" court="9th Cir." case_name="Hoffman v. Tonnemacher">593 F.3d 908, 911 (9th Cir. 2010) (district courts have discretion to entertain successive motions for summary judgment).

The parties are reminded that with respect to any future motions, they must comply with all Federal and Local Rules of Civil Procedure governing summary judgment briefing.

IT IS ORDERED:

(1) The reference to the Magistrate Judge is withdrawn as to Defendant’s Motion for

Summary Judgment (Doc. 51) and Plaintiff’s Motion for Summary Judgment (Doc. 55). Case 2:09-cv-00489-GMS Document 66 Filed 11/09/10 Page 7 of 7 (2) Defendant’s Motion for Summary Judgment (Doc. 51) is denied . (3) Plaintiff’s Motion for Summary Judgment (Doc. 55) is denied . (4) Within 30 days from the date of this Order, the parties may submit new summary

judgment motions. (5) Absent extraordinary circumstances, no extensions to the motions deadline will be permitted. DATED this 9th day of November, 2010.