Perdomo v. Plumber

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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

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CARLOS PERDOMO,

11 Case No. 17-06962 BLF (PR)

Plaintiff,

12 ORDER GRANTING IN PART AND

v. DENYING MOTION FOR

13 SUMMARY JUDGMENT;

REFERRING CASE TO

14 WARDEN MUNTEZ, et al., SETTLEMENT PROCEEDINGS;

STAYING CASE; INSTRUCTIONS

15 Defendants. TO CLERK

16 (Docket No. 42)

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18 Plaintiff, a state prisoner proceeding pro se, filed a civil rights action pursuant to 42

19 U.S.C. § 1983 against prison officials at Salinas Valley State Prison (“SVSP”). Dkt. No. 1.

20 The amended complaint is the operative complaint in this action. Dkt. No. 23-1. The

21 Court found the amended complaint stated a cognizable claim under the Eighth

22 Amendment against Warden Muniz,1 Chief Deputy Warden R. Binkele, and Correctional

23 Administrator E. Borla, and ordered Defendants to file a motion for summary judgment or

24 other dispositive motion.2 Dkt. No. 26.

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1 Defendant Warden Muniz’s name was miss-spelled as “Muntez” in the amended

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complaint. Dkt. No. 23-1 at 2.

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2 In the same order, the Court dismissed from this action Defendant Scott Kernan for

1 Defendants filed a motion for summary judgment on the grounds that they are not

2 liable under a theory of supervisor liability, they were not deliberately indifferent to a

3 substantial risk of serious harm to Plaintiff, they are entitled to qualified immunity, and the

4 Eleventh Amendment bars Plaintiff’s official-capacity claims. Dkt. No. 42.3 Plaintiff filed

5 opposition. Dkt. No. 47. Defendants filed a reply. Dkt. No. 50.

6 For the reasons stated below, Defendants’ motion for summary judgment is

7 GRANTED IN PART and DENIED IN PART.

8

9 DISCUSSION

10 I. Statement of Facts4

11 A. Parties

12 Plaintiff is an inmate at SVSP, where the underlying events took place. Dkt. No.

13 23-1 at 1. Plaintiff was confined at SVSP in facility B, building 2, cell 136, between April

14 8, 2017 and May 24, 2017, when the events that gave rise to this action took place. Id.

15 Plaintiff names three prison administrators at SVSP as Defendants: Muniz, Binkele, and

16 Borla.

17 Defendant Muniz was serving as the acting warden of SVSP from May 2014 to

18 February 2018, which includes the time relevant to this lawsuit. Muniz Decl. ¶ 3. As

19 warden, Defendant Muniz performed the administrative functions of running a prison. Id.

20 ¶ 4. His position was six levels up the chain of command from a correctional officer, who

21 serves as the first line of contact for an inmate.5 Id. ¶¶ 5-7. He was not a direct supervisor

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3 In support of their motion, Defendants provide the declarations of Defendant W. Muniz

with exhibits, Dkt. No. 42-1, Defendant E. Borla, Dkt. No. 42-2, Defendant R. Binkele

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with exhibits, Dkt. No. 42-3, and counsel Iram Hasan, Dkt. No. 42-4, along with a

transcript of Plaintiff’s deposition taken on October 31, 2019, id., Ex. A.

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4 The following facts are not disputed unless otherwise stated.

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1 for a correctional officer, or even a correctional sergeant. Id. As warden, Defendant

2 Muniz’s day-to-day responsibilities did not include reviewing grievances or work requests.

3 Id. ¶ 10. The warden is tasked with implementing and enforcing prison operating

4 procedures but is not necessarily involved with performing the tasks described in the

5 procedures. Id.

6 Defendant Binkele was a correctional administrator/associate warden, assigned to

7 facilities C and D at SVSP between April 8, 2017 and May 1, 2017. Binkele Decl. ¶ 2.

8 Defendant Binkele served as SVSP’s chief deputy warden from May 1, 2017 onward. Id.

9 In this role, Defendant Binkele issued second-level responses to inmate grievances that are

10 appealed after a first-level response is issued. Id. ¶ 10. Defendant Binkele’s position was

11 five levels up the chain of command from a correctional officer. Id. ¶¶ 4-5. He was not a

12 direct supervisor for a correctional officer, or even a correctional sergeant. Id.

13 Defendant Borla was acting chief deputy warden between April 8, 2017 and May 1,

14 2017, and then a correctional administrator/associate warden assigned to facilities C and D

15 from May 1, 2017 onwards. Borla Decl. ¶ 9. As associate warden, Defendant Borla’s role

16 included second-level management of facilities C and D. Id. ¶ 3. Among other

17 responsibilities, Defendant Borla reviewed all first-level inmate grievances in facilities C

18 and D. Id. Defendant Borla did not review any grievances from Plaintiff, who lived in

19 facility B, in April and May 2017. Id. ¶ 10. Defendant Borla’s position at the time was

20 four levels up the chain of command from a correctional officer. Id. ¶ 4. He was not a

21 direct supervisor for a correctional officer, or even a correctional sergeant. Id.

22 B. Cell Conditions

23 During the time at issue, Plaintiff was housed in cell 136 in facility B, building 2, at

24 SVSP. Dkt. No. 23-1 at 6. According to Plaintiff, for 46 days, between April 8, 2017 and

25 May 27, 2017, his cell had a clogged sink, raw sewage spewing out of the sink drain, and

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1 raw sewage from his building’s floor drain constantly leaking into his cell. Id.

2 According to Plaintiff, he notified several correctional officers in his housing unit

3 about his clogged sink and flooded cell starting on April 8, 2017. Id. at 8; Pl.’s Dep. at

4 52:10-19, 68:20-69:2, 73:24-74:5, 77:4-78:10.6 Plaintiff wrote down that he notified

5 officers to put in a work order on that day. Id., Ex. 3; Dkt. No. 42 at 162. The “note” he

6 references is a slip of lined paper with the following handwritten words: “‘#136 sink

7 clogged log,’ [¶] cell #136, [¶] Work order (sink clogged & flood), [¶] 4/Sat.8/20[]17, [¶]

8 602/ 5/24/2017.” Id. According to Plaintiff, the officers assured him that they “either

9 submitted a work order request and or emailed their supervisors.” Dkt. No. 23-1 at 8. But

10 whenever Plaintiff inquired of the work order to the plumbers that would come to their

11 facilities, the plumbers would say there was no work order. Pl.’s Dep. at 78:12-79:2. The

12 plumbing issue continued to go unfixed. Id. Meanwhile, the officers would provide the

13 inmates with material to clean up the flooded water. Id. at 74:8-75:6, 79:9-12. Eventually

14 on May 24, 2017, Plaintiff filed a grievance regarding the clogged sink and flooding issue.

15 Id. at 9. That same day, Plaintiff was moved to a different, fully functional cell. Id.

16 C. Prison Procedures for Requesting Cell Maintenance

17 When inmates have a cell maintenance service request, like a plumbing issue, they

18 can address the situation in two ways. Binkele Decl. ¶ 8.

19 First, the inmate can notify a correctional officer about the maintenance request. Id.

20 ¶ 8.a. Inmates are in constant contact with, and have constant access to, correctional

21 officers assigned to their building. Id. SVSP’s Operating Procedure 48 (“OP 48”)

22 describes the procedure for requesting and processing a cell maintenance request, or “work

23 request.” Muniz Decl. ¶ 9, Ex. A. Section 48.7 of OP 48 authorizes any SVSP employee

24 to submit a written work request with approval of his or her supervisor. Id.; Dkt. No. 42-1

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6 During deposition, Plaintiff named Correctional Officers Wheeler, Casanada, Martinez,

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and Luge. Pl.’s Dep. at 73:24-74:5. Plaintiff declined to sue the officers because he

1 at 8-9. The officer will follow OP 48 and file a work request on a Form 2184, briefly

2 describing the inmate’s maintenance issue. Id. The officer’s supervisor approves and

3 signs the work request. Id. The building’s work-order coordinator logs the work request

4 and forwards it to Plant Operations. Id. A Plant Operations supervisor reviews the work

5 request, generates a work order, and assigns staff to fix the issue. Id.

6 OP 48 classifies a plumbing problem that creates a sanitary issue as a priority one,

7 which warrants an emergency work request. Muniz Decl. ¶ 11, Ex. A at 5-6; Dkt. No. 42-

8 1 at 12-13. An on-call Plant Operations Supervisor reviews emergency requests received

9 during non-business hours and determines if maintenance staff needs to make repairs

10 immediately, or whether the request can be delayed until normal business hours. Muniz

11 Decl. ¶ 11, Ex. A at 3; Dkt. No. 42-1 at 9. A plumber usually responds to an emergency

12 work request within twenty-four hours. Muniz Decl. ¶ 11. The Plant Operations

13 Supervisor is the most senior employee to review a work request. Id., Ex. A at 3. Work

14 requests do not go up the chain of command to associate wardens, chief deputy wardens,

15 or wardens; the work order process ends with Plant Operations. Muniz Decl. ¶ 10; Binkele

16 Decl. ¶ 9.

17 Second, the inmate can use the institution’s grievance process, as outlined in Title

18 15, sections 3084.1 through 3084.3. Binkele Decl. ¶ 8.b. Correctional sergeants typically

19 review grievances concerning maintenance, and either grant or deny the inmate’s request.

20 Id. If the inmate’s request requires actions from a certain department, that department

21 would be notified to take action. Id. Any time an inmate believes there is a serious and

22 imminent threat to his or her health or safety, the inmate can submit an emergency

23 grievance. Id. Section 3084.9 sets forth the emergency grievance process, id., and

24 includes a “serious and imminent threat to health or safety.” Cal. Code Regs. tit., 15, §

25 3084.9(a)(1)(B)). Inmates learn about the grievance process each time they are processed

26 into a state prison. Binkele Decl. ¶ 8.b.

1 D. Plaintiff’s Inmate Grievance Regarding Plumbing Issue

2 Plaintiff was housed in SVSP’s facility B, building two, cell 136 from March 31,

3 2017 to May 24, 2017. Binkele Decl. ¶ 12, Ex. B. On May 24, 2017, Plaintiff submitted a

4 grievance to the prison, complaining of a clogged sink that spewed out sewage and sewage

5 water leaking into his cell, and that these issues started on April 8, 2017. Binkele Decl. ¶

6 11, Ex. A at AG003-AG005. That same day, officers moved Plaintiff to a different, fully

7 functional cell. Binkele Decl. ¶ 12, Ex. B. Plaintiff’s old cell, cell number 136, was

8 immediately marked out of order and repaired within a few days. Id., Ex. A at AG001-2.

9 A non-party, Sergeant A. Ware, conducted the second-level investigation and

10 prepared the second-level response. Binkele Decl. ¶¶ 14-15. Defendant Binkele reviewed

11 Sgt. Ware’s report on May 28, 2017. Id. ¶ 17. Based on that report, Defendant Binkele

12 partially granted the grievance because Plaintiff no longer resided in the cell with the

13 plumbing issue, and a work request was submitted to repair Plaintiff’s old cell. Id. ¶ 17,

14 Ex. A at AG002. Defendant Binkele partially denied Plaintiff’s grievance to the extent

15 that Plaintiff sought monetary relief, because second-level reviewers are not authorized to

16 grant monetary relief. Id. ¶ 16. Ex. A at AGO002.

17 Until he filed the grievance on May 24, 2017, Plaintiff did not file any other

18 paperwork to alert the prison about the plumbing issue in his cell. Hasan Decl., Ex. A

19 (Pl.’s Dep.) at 83:3-24, 90:24-91:16, 96:25-99:1, 99:2-13, 99:19-100:11, 102:20-103:11.

20 Plaintiff admits that he waited forty-six days to file the grievance because he does not like

21 “putting stuff on paper,” id.at 83:21-25, and because he “was lazy,” id. at 91:7. Plaintiff

22 was familiar with the grievance process before the plumbing issues underlying his

23 complaint arose, and he had filed at least one grievance in the past. Id. at 89:20-90:23.

24 E. Plaintiff’s Claims

25 In this action, Plaintiff claims Defendants Muniz, Binkele, and Borla were “clothed

26 with the authority to approve and oversee all procedures of (yet not limited to) Operation

1 23-1 at 2-3. Plaintiff claims that Defendants had actual knowledge of the risk of serious

2 harm to him due to the unsanitary conditions but failed to reasonably respond to his work

3 order requests. Id. at 6-9. Plaintiff also claims Defendants failed to reasonably respond to

4 his complaints within twenty-four to forty-eight hours. Id. at 9. Plaintiff claims that the

5 smell from the sink and flooding water caused him to lose his appetite, miss several meals,

6 have headaches, and be exposed to possible waterborne diseases. Id. at 10. Plaintiff seeks

7 damages against Defendants Muniz, Binkele, and Borla, and is suing them in their personal

8 and official capacities. Id. at 2-3. The Court found these allegations, liberally construed,

9 stated a cognizable Eighth Amendment claim against Defendants. Dkt. No. 26 at 2.

10 II. Summary Judgment

11 Summary judgment is proper where the pleadings, discovery and affidavits show

12 that there is “no genuine dispute as to any material fact and the movant is entitled to

13 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment

14 “against a party who fails to make a showing sufficient to establish the existence of an

15 element essential to that party’s case, and on which that party will bear the burden of proof

16 at trial . . . since a complete failure of proof concerning an essential element of the

17 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v.

18 Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of

19 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the

20 evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

21 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

22 Generally, the moving party bears the initial burden of identifying those portions of

23 the record which demonstrate the absence of a genuine issue of material fact. See Celotex

24 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue

25 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other

26 than for the moving party. But on an issue for which the opposing party will have the

1 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition

2 to the motion is merely colorable, or is not significantly probative, summary judgment may

3 be granted. See Liberty Lobby, 477 U.S. at 249-50.

4 The burden then shifts to the nonmoving party to “go beyond the pleadings and by

5 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

6 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex

7 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this

8 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323.

9 The Court’s function on a summary judgment motion is not to make credibility

10 determinations or weigh conflicting evidence with respect to a material fact. See T.W.

11 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

12 The evidence must be viewed in the light most favorable to the nonmoving party, and the

13 inferences to be drawn from the facts must be viewed in a light most favorable to the

14 nonmoving party. See id. at 631. It is not the task of the district court to scour the record

15 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir.

16 1996). The nonmoving party has the burden of identifying with reasonable particularity

17 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so,

18 the district court may properly grant summary judgment in favor of the moving party. See

19 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29

20 (9th Cir. 2001).

21 A. Supervisor Liability

22 Defendants first assert that Plaintiff cannot establish that they are liable under a

23 theory of supervisor liability. Dkt. No. 42 at 13.

24 A supervisor may be liable under § 1983 upon a showing of (1) personal

25 involvement in the constitutional deprivation or (2) a sufficient causal connection between

26 the supervisor’s wrongful conduct and the constitutional violation. Henry A. v. Willden,

1 involved in the allegedly unconstitutional conduct, “[a] supervisor can be liable in this

2 individual capacity for his own culpable action or inaction in the training, supervision, or

3 control of his subordinates; for his acquiescence in the constitutional deprivation; or for

4 conduct that showed a reckless or callous indifference to the rights of others.” Starr v.

5 Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (citation omitted). The claim that a supervisory

6 official “knew of unconstitutional conditions and ‘culpable actions of his subordinates’ but

7 failed to act amounts to ‘acquiescence in the unconstitutional conduct of his subordinates’

8 and is ‘sufficient to state a claim of supervisory liability.’” Keates v. Koile, 883 F.3d 1228,

9 1243 (9th Cir. 2018) (quoting Starr, 652 F.3d at 1208) (finding that conclusory allegations

10 that supervisor promulgated unconstitutional policies and procedures which authorized

11 unconstitutional conduct of subordinates do not suffice to state a claim of supervisory

12 liability); Wilk v. Neven, 956 F.3d 1143, 1146 (9th Cir. 2020) (a reasonable factfinder

13 could find the warden liable as supervisor in a failure-to-protect suit because only the

14 warden or his designee had the authority to add a person to an inmate’s enemy list and

15 there was evidence plaintiff submitted a request to place an inmate, who later attacked him,

16 on the list).

17 Under no circumstances is there respondeat superior liability under § 1983. Or, in

18 layman's terms, under no circumstances is there liability under § 1983 solely because one

19 is responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040,

20 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675,

21 680-81 (9th Cir. 1984); accord Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978)

22 (local governments cannot be liable under § 1983 under respondeat superior theory).

23 Defendants assert that Plaintiff seeks to hold top-level supervisors at SVSP

24 responsible for plumbing and maintenance issues in his cell based on their general

25 supervisory authority over the prison. Dkt. No. 42 at 8. Specifically, they challenge

26 Plaintiff’s claim that Defendants are liable because they are “clothed with the authority to

1 order request, work orders, and project requests” at SVSP. Id.; Dkt. No. 23-1 at 2-3.

2 Defendants assert that this basis is inadequate under § 1983, and that Plaintiff is attempting

3 to manufacture a causal connection between Defendants and the plumbing issue in his cell

4 by arguing that they were tasked with overseeing the implementation and enforcement of

5 OP 48. Dkt. No. 42 at 8-9. Defendants assert, however, that although they supervised

6 SVSP operations at a prison-wide/facility-wide level, they were not responsible for

7 regularly checking on inmates’ cells or actually carrying out the steps outlined in OP 48.

8 Id. at 9; Muniz Decl. ¶¶ 9-10; Binkele Decl. ¶ 9; Borla Decl. ¶ 14.

9 Defendants also make much of Plaintiff’s statements during deposition. Dkt. No.

10 42 at 12-13. During deposition, Plaintiff stated that he named Defendants Muniz and

11 Binkele as defendants because his cellmate provided him with a copy of SVSP’s Operating

12 Procedure 48 (“OP 48). Pl.’s Dep. at 95:8-14. Essentially, Plaintiff’s cellmate provided

13 him with Defendant Muniz’s and Binkele’s names. Pl.’s Dep. at 95:16-96:9. To connect

14 them to his claim, Plaintiff relied on OP 48 wherein it states, “The Warden designates

15 overall responsibility to the Correction Administrator Business Services under the

16 direction of the Chief Deputy Warden.” Id. at 93:17-94:7; Muniz Decl., Ex. A at 1.

17 Furthermore, Plaintiff also admitted that he named Defendant Borla as a defendant because

18 while residing in facility C in 2016, Plaintiff took a class in which inmates spoke to

19 children who visited the prison and he remembered Defendant Borla’s name in connection

20 with the class. Id. at 96:10-24. Defendants assert that Plaintiff acknowledged that

21 Defendants’ supervisory roles did not include preparing, processing, or reviewing work

22 requests for cell maintenance, and that OP 48 itself is legitimate. Dkt. No 42 at 12. Lastly,

23 Defendants assert that Plaintiff does not contest the lack of supervisor liability in his

24 opposition. Dkt. No. 47; Dkt. No. 50 at 3.

25 Although Plaintiff does not explicitly address supervisor liability in his opposition,

26 he does dispute that Defendants lacked knowledge of major plumbing issues. In

1 ongoing plumbing problems in the same building within the past two years; both suits

2 resulted in a settlement. Dkt. No. 47 at 2-3, 11, 14-15. The Court will take judicial notice

3 of these cases as those proceedings have a direct relation to matters at issue here.7

4 Viewing the evidence in the light most favorable to Plaintiff, the Court finds there

5 are genuine issues of material facts with respect to Defendants’ actual knowledge of

6 Plaintiff’s plumbing issues and therefore their liability as supervisors. The two lawsuits

7 that Plaintiff relies on to establish Defendants’ knowledge of the ongoing plumbing issues

8 in his building are as follows: Abad v. Foss, et al., (hereinafter “Abdal”), Case No. 19-cv-

9 01682-CRB (RMI), and Parks v. Johnson, et al., (hereinafter “Parks”), Case No. 17-cv-

10 06611-RS. Pl.’s Opp., Attach. 1, Dkt. No 47 at 11; id., Ex. A, Dkt. No. 47 at 14-15. Both

11 these lawsuits arose from events that took place at SVSP and were adjudicated in this

12 district. Firstly, the plaintiff in Parks sued Defendant Warden Muniz along with a

13 correctional officer, the Plant Operations supervisor, and several John Does, for hazardous

14 conditions in SVSP’s Facility B, Building 2, caused by a broken sewage water pipe in June

15 and December 2016. Parks, Dkt. No. 1 at 1. Facility B, Building 2 is the same building

16 where Plaintiff was housed in the instant action. See supra at 3. Plaintiff Parks alleged

17 that during the rainy season, “approximately 40% of the prisons cells in Building 2 had

18 leaks and floods that required mopping 3-4 times a day.” Parks, Dkt. No. 1 at 5. Plaintiff

19 Parks also alleged that broken plumbing pipes, toilet dysfunctions, and broken sink

20 faucets, among other hazardous conditions, had been ongoing “year after year” in Building

21 2. Id. Before dispositive motions were filed, the parties filed a stipulation that they had

22 resolved the case in its entirety and requested voluntary dismissal with prejudice. Id., Dkt.

23 No. 19. Although Defendant Muniz was dismissed from the case at the outset, id., Dkt.

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7 A district court “may take notice of proceedings in other courts, both within and without

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the federal judicial system, if those proceedings have a direct relation to matters at issue.”

Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal quotation marks and

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citations omitted) (granting request to take judicial notice in § 1983 action of five prior

1 No. 9 at 2-3, it is not likely that the parties, which included his subordinates, would have

2 reached a settlement without his knowledge.8 Secondly, the plaintiff in Abad was also

3 confined at SVSP and was suing the prison for unsanitary conditions arising from water

4 leakages after every rainfall and toilet problems during January through April, and

5 November of 2018, while he was housed in “(C) yard - building (3) – cell (213).” Abad,

6 Dkt. No. 1 at 7, 8-9. The Court recognizes that knowledge of conditions in 2018 cannot

7 form the basis of knowledge of the circumstances alleged in this case that occurred in

8 2017. Thus, the Court draws no inferences from the Abad case. Accordingly, Plaintiff’s

9 evidence that the Park lawsuit was filed in the past two years involving similar claims of

10 unsanitary and hazardous conditions preexisting the claims in this case establishes that

11 there exists a genuine issue of material fact with respect to Defendants’ knowledge of

12 ongoing plumbing issues throughout SVSP, including Plaintiff’s building. Such

13 knowledge would make them liable as supervisors where they failed to act despite that

14 knowledge, rendering them acquiescent to the unconstitutional conduct of their

15 subordinates. Keates, 883 F.3d at 1243.

16 Based on the foregoing, the Court finds summary judgment is not appropriate

17 because there remain genuine issues of material facts with respect to Defendants’ liability

18 as supervisors. See Celotex Corp., 477 U.S. at 323. Accordingly, Defendants are not

19 entitled to summary judgment on this basis.

20 B. Eighth Amendment – Deliberate Indifference

21 The Constitution does not mandate comfortable prisons, but neither does it permit

22 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a

23 prisoner receives in prison and the conditions under which he is confined are subject to

24 scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993).

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8 It is unclear whether Defendant Binkele worked at SVSP during this time. Binkele Decl.

1 The Amendment imposes duties on prison officials, who must provide all prisoners with

2 the basic necessities of life such as food, clothing, shelter, sanitation, medical care and

3 personal safety. See Farmer, 511 U.S. at 832; DeShaney v. Winnebago County Dep't of

4 Social Servs., 489 U.S. 189, 199-200 (1989); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th

5 Cir. 1982). A prison official violates the Eighth Amendment when two requirements are

6 met: (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer, 511

7 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official

8 possesses a sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. at 297).

9 In determining whether a deprivation of a basic necessity is sufficiently serious to

10 satisfy the objective component of an Eighth Amendment claim, a court must consider the

11 circumstances, nature, and duration of the deprivation. The more basic the need, the

12 shorter the time it can be withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

13 2000). Substantial deprivations of shelter, food, drinking water or sanitation for four days,

14 for example, are sufficiently serious to satisfy the objective component of an Eighth

15 Amendment claim. See id. at 732-733; see, e.g., Hearns v. Terhune, 413 F.3d 1036, 1041-

16 42 (9th Cir. 2005) (allegations of serious health hazards in disciplinary segregation yard

17 for a period of nine months, including toilets that did not work, sinks that were rusted and

18 stagnant pools of water infested with insects, and a lack of cold water even though the

19 temperature in the prison yard exceeded 100 degrees, enough to state a claim of

20 unconstitutional prison conditions); Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th

21 Cir.) (“[A] lack of sanitation that is severe or prolonged can constitute an infliction of pain

22 within the meaning of the Eighth Amendment.”), amended, 75 F.3d 448 (9th Cir.), cert.

23 denied, 516 U.S. 916 (1995). The requisite state of mind to establish an Eighth

24 Amendment violation depends on the nature of the claim. In prison-conditions cases, the

25 necessary state of mind is one of “deliberate indifference.” See, e.g., Farmer, 511 U.S. at

26 834 (inmate safety); Wilson, 501 U.S. at 302-03 (general conditions of confinement);

1 Neither negligence nor gross negligence will constitute deliberate indifference. See

2 Farmer, 511 U.S. at 835-37 & n.4; see also Estelle, 429 U.S. at 106 (establishing that

3 deliberate indifference requires more than negligence). A prison official cannot be held

4 liable under the Eighth Amendment for denying an inmate humane conditions of

5 confinement unless the standard for criminal recklessness is met, i.e., the official knows of

6 and disregards an excessive risk to inmate health or safety. See Farmer, 511 U.S. at 837.

7 The official must both be aware of facts from which the inference could be drawn that a

8 substantial risk of serious harm exists, and he must also draw the inference. See id. An

9 Eighth Amendment claimant need not show, however, that a prison official acted or failed

10 to act believing that harm actually would befall an inmate; it is enough that the official

11 acted or failed to act despite his knowledge of a substantial risk of serious harm. See id. at

12 842.

13 Defendants assert that they are entitled to summary judgment on this deliberate

14 indifference claim because there is no triable dispute that: (1) they had no actual

15 knowledge of Plaintiff’s plumbing issue until after it was fixed; and (2) once Plaintiff

16 submitted his grievance, officials reasonably responded to his complaint. Dkt. No. 42 at

17 15. Assuming that Plaintiff can show that the condition of his cell was objectively

18 sufficiently serious, Defendants assert that his claim fails because he cannot show that

19 Defendants knew about the condition of his cell or that they disregarded it. Id. at 16.

20 Defendants Muniz and Borla attest that they had no knowledge of Plaintiff’s cell

21 conditions at any time during the relevant period. Id.; Muniz Decl. ¶¶ 8, 15; Borla Decl. ¶

22 10. Defendants also point to Plaintiff’s statements during deposition, wherein he admits

23 that he did not notify either of these Defendants about his maintenance issue. Dkt. No. 42

24 at 16; Pl.’s Dep. at 96:25-99:1, 99:19-100:11. Furthermore, although Plaintiff alleges that

25 he started to notify officers in his housing-unit about the plumbing issues in his cell

26 between April 8, 2017 and May 24, 2017, asking them to file emergency work requests,

1 of correctional officers, who were in close proximity to inmates on a daily basis and could

2 monitor their cells throughout the day. Id. Defendants asserts that they did not visit

3 inmates’ cells on a daily basis, and they did not know when individual cells required

4 maintenance. Dkt. No. 42 at 16.; Muniz Decl. ¶¶ 6-7; Binkele Decl. ¶¶ 5-7; Borla Decl. ¶¶

5 3, 5-6. Defendants assert that although they had the authority to implement and enforce

6 OP 48, it is undisputed that they did not actually prepare, process, or review the work

7 requests. Dkt. No. 42 at 16-17; Muniz Decl. ¶¶ 9-10; Binkele Decl. ¶ 9; Borla Decl. ¶ 14.

8 Accordingly, Defendants assert that Plaintiff fails to satisfy the subjective-intent

9 requirement of Farmer because he cannot show that Defendants knew about the condition

10 of his cell or the risk it created. Dkt. No. 42 at 17.

11 As discussed above, Plaintiff asserts in opposition that there have been major issues

12 with plumbing for approximately two years and that problems continue to persist. See

13 supra at 10-12; Dkt. No. 47 at 2. In reply, Defendants assert that Plaintiff’s argument fails

14 because he fails to specify the timeframe during which these prison-wide construction and

15 plumbing issues occurred, or that these issues overlapped with, caused, or were in any way

16 related to the plumbing issues in his cell in April and May 2017. Dkt. No. 50 at 4.

17 Defendants assert that without more, this fact is irrelevant to Plaintiff’s original claim

18 regarding plumbing issues in his cell. Id. Defendants also assert that even assuming there

19 were prison-wide construction and plumbing issues at some point in time, Plaintiff fails to

20 explain how a warden and chief deputy warden who oversee operations in the entire prison

21 at an executive level, and an associate warden who supervises a different part of the prison,

22 would know about the plumbing issues in Plaintiff’s individual cell. Id. Defendants assert

23 that Plaintiff fails to present evidence showing that Defendants either knew of or

24 participated in the plumbing issue Plaintiff experienced. Id. Therefore, Defendants assert,

25 even if it were true that plumbing issues existed in other parts of the prison at some

26 unspecified period of time, his admissions make clear that Defendants neither knew about

1 As discussed above, the Court takes judicial notice of the Parks lawsuit that ended

2 with settlement agreement, which involved similar allegations regarding the unsanitary and

3 hazardous conditions of confinement at SVSP a year prior to the incident here at issue.

4 See supra at 10-12. For the same reasons discussed above, the Court finds Plaintiff has

5 shown the existence of a genuine dispute of material fact regarding Defendants’

6 knowledge of these chronic plumbing issues. Assuming that the conditions in Plaintiff’s

7 cell were objectively sufficiently serious, there remains a dispute of material fact over

8 whether Defendants knew of and disregarded an excessive risk to Plaintiff’s health or

9 safety. See Farmer, 511 U.S. at 837. Despite Plaintiff’s admission that he never

10 personally notified any of the Defendants or his lack of knowledge that any correctional

11 officer notified any of the Defendants about his plumbing issues,9 the inferences raised

12 from the settled lawsuit discussed above must be construed in the light most favorable to

13 Plaintiff, i.e., that there were ongoing plumbing issues throughout SVSP, including Facility

14 C and Facility B (Building 2), that persisted for over 2 years and that Defendants were

15 aware of it in their roles as supervisors. Based on this evidence, a jury could find that

16 Defendants acted with criminal recklessness, i.e., Defendants knew of and disregarded an

17 excessive risk to inmate health or safety. See Farmer, 511 U.S. at 837. As such, it matters

18 not that Plaintiff chose to make verbal requests to correctional officers and waited 46 days

19 to file a grievance. If Defendants were already aware of an excessive risk to inmate health

20 and safety caused by the plumbing issues in the building where Plaintiff was housed, then

21 it is immaterial when and how Plaintiff sought to bring the specific issue of his cell to their

22 attention. Id.

23 Based on the foregoing, the Court finds summary judgment is not appropriate

24 because there remain genuine issues of material facts with respect to Plaintiff’s Eighth

25 Amendment claim. See Celotex Corp., 477 U.S. at 323. Accordingly, Defendants are not

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1 entitled to summary judgment on this claim.

2 C. Qualified Immunity

3 Defendants assert that even if there was an Eighth Amendment violation,

4 Defendants are entitled to qualified immunity because the alleged violation was not clearly

5 established.

6 The defense of qualified immunity protects “government officials . . . from liability

7 for civil damages insofar as their conduct does not violate clearly established statutory or

8 constitutional rights of which a reasonable person would have known.” Harlow v.

9 Fitzgerald, 457 U.S. 800, 818 (1982). The rule of “qualified immunity protects ‘all but the

10 plainly incompetent or those who knowingly violate the law.’” Saucier v. Katz, 533 U.S.

11 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendants can

12 have a reasonable, but mistaken, belief about the facts or about what the law requires in

13 any given situation. Id. at 205. A court considering a claim of qualified immunity must

14 determine whether the plaintiff has alleged the deprivation of an actual constitutional right

15 and whether such right was clearly established such that it would be clear to a reasonable

16 officer that his conduct was unlawful in the situation he confronted. See Pearson v.

17 Callahan, 555 U.S. 223, 236 (2009) (overruling the sequence of the two-part test that

18 required determining a deprivation first and then deciding whether such right was clearly

19 established, as required by Saucier). The court may exercise its discretion in deciding

20 which prong to address first, in light of the particular circumstances of each case. Pearson,

21 555 U.S. at 236. The plaintiff bears the burden of proving the existence of a “clearly

22 established” right at the time of the allegedly impermissible conduct. Maraziti v. First

23 Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992).

24 When qualified immunity is asserted in a motion for summary judgment, a district

25 court must carefully examine the specific factual allegations against each individual

26 defendant. Cunningham v. Gates, 229 F.3d 1271, 1287 (9th Cir. 2000). Supervisor

1 “bald” or “conclusory” because such allegations do not “plausibly” establish the

2 supervisors’ personal involvement in their subordinates’ constitutional wrong. Ashcroft v.

3 Iqbal, 556 U.S. 662, 675-84 (2009) (noting no vicarious liability under Section 1983 or

4 Bivens actions). So it is insufficient for a plaintiff only to allege that supervisors knew

5 about the constitutional violation and that they generally created policies and procedures

6 that led to the violation, without alleging “a specific policy” or “a specific event” instigated

7 by them that led to the constitutional violations. Hydrick v. Hunter, 669 F.3d 937, 942 (9th

8 Cir. 2012) (emphasis in original); cf. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)

9 (finding no qualified immunity where plaintiff pled specific facts that plausibly suggest

10 supervisors’ “knowledge of” and “acquiescence in” unconstitutional conduct of

11 subordinates). If the defendant is a supervisor who had no direct involvement in or direct

12 management responsibility for the alleged constitutional deprivation, the qualified

13 immunity defense must be examined within the context of policy-level activities. Jeffers v.

14 Gomez, 267 F.3d 895, 916 (9th Cir. 2001) (suggesting that director of state prison system

15 could be held liable for inadequate training of prison guards on how to respond to a prison

16 riot only if prison director recklessly, maliciously or deliberately established policies that

17 caused Eighth Amendment violations).

18 Assuming Plaintiff establishes an Eighth Amendment violation to satisfy the first

19 prong, Defendants assert they are entitled to qualified immunity under the second part of

20 the Saucier test because the constitutional right at issue was not clearly established in the

21 specific context of this case. Dkt. No. 42 at 19. Defendants assert that while the general

22 principal that denying sanitary living conditions to an inmate may constitute deliberate

23 indifference is well established, that principal has not been applied to hold high-level

24 administrative prison officials liable if the officials have no responsibility to monitor

25 individual inmates’ cells and arrange for maintenance repairs. Id. Defendants rely on

26 Jeffers, 267 F.3d at 916, in which the Ninth Circuit rejected a theory of liability against a

1 “conducted himself in a reckless or malicious manner or that his actions were, in fact,

2 deliberate.” Id.; Dkt. No. 42 at 19-20. The appellate court held that because the defendant

3 prison official “had no direct involvement or direct management responsibility for quelling

4 the riot,” except that he implemented the relevant policy, “his qualified-immunity defense

5 should have been examined within the context of policy-level activities.” Id. Similar to

6 Jeffers, Defendants assert that Defendant Muniz implemented SVSP’s OP 48 setting for

7 the procedure for handling work requests, and Defendant Binkele had supervisory

8 authority over the official charged with overseeing the policy. Id. at 20; Muniz Decl., Ex.

9 A. Neither Defendant Muniz nor Binkele had direct supervisory authority over carrying

10 out work requests, and Defendant Borla, as associate warden of complex II, was not in the

11 chain of command set forth in OP 48. Id.; Muniz Decl. ¶¶ 9-10; Binkele Decl. ¶ 9; Borla

12 Decl. ¶ 14. OP 48 sets forth a detailed procedure establishing the chain of command of

13 work requests from each department in the prison to the maintenance facility, and the

14 correctional plant manager was responsible for enforcing OP 48. Muniz Decl., Ex. A.

15 Defendants assert that a reasonable warden, chief deputy warden, or associate warden in

16 Defendants’ positions could believe that it was constitutional to rely on the prison’s plant

17 operations and subordinate staff to handle individual requests for cell maintenance. Dkt.

18 No. 42 at 20. Therefore, Defendants assert, because there is no clearly established law

19 establishing a right by which an inmate can expect a warden, a chief deputy warden, and

20 an associated warden to monitor an individual cell at a prison and arrange maintenance

21 repairs when a plumbing issue arises, they are entitled to qualified immunity. Id.

22 In opposition, Plaintiff asserts Defendants are not entitled to qualified immunity and

23 cites to several cases involving prison conditions that violate the Eighth Amendment. Dkt.

24 No. 47 at 7-8. He asserts that Defendants are not entitled to immunity because “too many

25 lawsuits and complaints (602‘s) were filed regarding this issue.” Id. at 8. In reply,

26 Defendants assert Plaintiff has failed to identify a case where an officer acting under

1 seven cases he cites to are analogous to his case. Dkt. No. 50 at 7.

2 Viewing the evidence in the light most favorable to Plaintiff, the Court finds

3 Defendants are not entitled to qualified immunity because there remain genuine issues of

4 material fact regarding their knowledge of the ongoing plumbing issues in at least two

5 facilities within SVSP. Defendants rely on Jeffers to support their argument that qualified

6 immunity bars Plaintiff’s claim against them as supervisors who were only responsible for

7 implementing the relevant policy, not carrying it out. See supra at 19. However,

8 Plaintiff’s case is distinguishable from Jeffers, which lacked evidence that the supervisor

9 conducted himself in a reckless or malicious manner or that his actions were deliberate.

10 Id. at 19. Plaintiff has submitted evidence showing that there were at least two other

11 lawsuits filed against SVSP officials concerning unsanitary conditions due to plumbing

12 issues that resulted in settlement. See supra at 10-12. And the Parks case involved

13 conditions predating this case, as the time period involved in that lawsuit includes June

14 2016 and December 2016. Id. Plaintiff’s underlying events took place in April and May

15 2017. Id. at 3. This evidence indicates that plumbing issues persisted in Facility B at

16 SVSP over a 2-year period. Accordingly, this is not a situation where supervisors were

17 uninvolved in dealing with incidental maintenance problems in one inmate’s cell. Rather,

18 there is evidence that there were ongoing and recurrent problems affecting an entire

19 facility within the prison of which higher-level supervisors would have been aware. If

20 these supervisor Defendants knowingly did nothing in the face of such persistent problems

21 creating hazardous and unsanitary conditions for inmates, then a jury could find that their

22 conduct rises to the level of criminal recklessness. See Farmer, 511 U.S. at 837. Plaintiff

23 has submitted sufficient caselaw showing that the law is clearly established in this regard.

24 See Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985); Ramos v. Lamm, 639 F.2d

25 559, 568 (10th Cir. 1980); Gates v Cook, 376 F.3d 323, 340-41 (5th Cir. 2004).

26 Accordingly, he has met his burden of proving the existence of a “clearly established”

1 Accordingly, Defendants are not entitled to qualified immunity because the allegations

2 against them are not merely “bald” or “conclusory.” See Iqbal, 556 U.S. at 675-84.

3 Rather, there is evidence that plausibly suggests that Defendants had knowledge of and

4 acquiescence in unconstitutional conduct of subordinates such that they are not entitled to

5 qualified immunity. See Starr, 652 F.3d at 1207. Accordingly, Defendants’ motion based

6 on qualified immunity is DENIED.

7 D. Eleventh Amendment Immunity

8 Lastly, Defendants assert that Plaintiff’s claim for damages against them in an

9 official capacity is barred by the Eleventh Amendment. The Eleventh Amendment to the

10 United States Constitution bars a person from suing a state in federal court without the

11 state’s consent. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100

12 (1984). The United States Supreme Court has held that state officials acting in their

13 official capacities are not “persons” under Section 1983 because “a suit against a state

14 official in his or her official capacity is not a suit against the official but rather is a suit

15 against the official’s office.” See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

16 (1989). The United States Supreme Court concluded that such a suit is therefore no

17 different from a suit against the state itself. Id.

18 In opposition, Plaintiff appears to concede that Defendants are entitled to Eleventh

19 Amendment immunity as he merely argues that they may still be liable for declaratory

20 and/or injunctive relief, and in their individual capacities. Dkt. No. 47 at 9. Accordingly,

21 the Court finds that the Eleventh Amendment bars Plaintiff’s claims for monetary relief to

22 the extent that they are based on acts by Defendants in their official capacity. See id.;

23 Nesbit v. Dep’t of Pub. Safety, Nos 06-16428, 06-16623, 283 Fed. Appx. 531, 533 (9th Cir.

24 2008) (unpublished memorandum disposition) (concluding that the district court properly

25 dismissed prisoners’ claims against defendants acting in their official capacities).

26 III. Referring Case to Settlement Proceedings

1 certain prisoner civil rights cases may be referred to a neutral Magistrate Judge for

2 settlement. In light of the existence of triable issues of fact as to whether Defendants

3 Muniz, Binkele, and Borla violated Plaintiff’s rights under the Eighth Amendment, the

4 Court finds the instant matter suitable for settlement proceedings. Accordingly, the instant

5 action will be referred to a neutral Magistrate Judge for mediation under the Pro Se

6 Prisoner Settlement Program.

7

8 CONCLUSION

9 For the reasons stated above, the Court orders as follows:

10 1. Defendants’ motion for summary judgment is GRANTED IN PART and

11 DENIED IN PART. The motion is GRANTED with respect to the claim for money

12 damages against Defendants in their official capacities as barred by the Eleventh

13 Amendment. Accordingly, the official capacity claims against Defendants Muniz, R.

14 Binkele, and E. Borla are DISMISSED with prejudice.

15 The motion is DENIED on the merits of Plaintiff’s Eighth Amendment claims

16 against Defendants Muniz, R. Binkele, and E. Borla, as well as based on supervisor

17 liability and qualified immunity.

18 2. The instant case is REFERRED to Judge Robert M. Illman pursuant to the

19 Pro Se Prisoner Settlement Program for settlement proceedings on the claims in this action,

20 as described above. The proceedings shall take place within ninety (90) days of the filing

21 date of this order. Judge Illman shall coordinate a time and date for a settlement

22 conference with all interested parties or their representatives and, within ten (10) days after

23 the conclusion of the settlement proceedings, file with the court a report regarding the

24 prisoner settlement proceedings.

25 3. Other than the settlement proceedings ordered herein, and any matters

26 Magistrate Judge Illman deems necessary to conduct such proceedings, this action is

1 || proceedings.

2 4. The Clerk shall send a copy of this order to Magistrate Judge Illman in

3 || Eureka, California.

4 IT IS SO ORDERED.

5 || Dated: August 24, 2020 hehn horney!

6 BETH LABSON FREEMAN

United States District Judge

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Order Denying in Part and Granting in Part MSJ; Refer to Sett.

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