Lyons v. Peters

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DEREK LYONS, BRIDGETTE LEWIS, Case No. 3:17-cv-00730-SI

TIFFANIE LEWIS, BRYAN SCHULTZ,

ANTHONY ALDEGUER, JOSHUA OPINION AND ORDER

SMITH, JESSICA DOVE, and BRANDON

MCKEY,

Plaintiffs,

v.

COLETTE PETERS, MIKE GOWER,

OFFICER HELTON, DENNIS TIMMINS,

RICK ANGELOZZI, BRIDGETTE

AMSBERRY, BRANDON KELLY, BRIAN

BELLEQUE, ROB PERSSON, ARLENE

WHITNEY, JERI TAYLOR, STEVE

BROWN, TIM CAUSEY, CHRISTINE

POPOFF, KENT FANGER, and JOHN

DOES 1-10, JANE DOES 1-10,

Defendants.

Leonard R. Berman, LAW OFFICE OF LEONARD R. BERMAN, 9220 SW Barbur Blvd. Suite 119,

Box 180, Portland, OR 97219. Of Attorneys for Plaintiffs.

Ellen F. Rosenblum, Attorney General, Andrew Hallman and Jessica Spooner, Assistant

Attorneys General, OREGON DEPARTMENT OF JUSTICE, 1162 Court Street NE, Salem, OR 97301-

4096. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

Plaintiffs are current or former inmates of the Oregon Department of Corrections

(“ODOC”) who allege that Defendants violated their Eighth Amendment rights when Defendants

served inadequate food at state prison facilities. Defendants are facility superintendents, food

procurement and contract specialists, and the food services administrator for ODOC. Defendants

move for summary judgment on all of Plaintiffs’ claims. For the reasons that follow, Defendants’

Motion for Summary Judgment (ECF 95) is granted.

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

BACKGROUND

Plaintiffs are current or former inmates at ODOC. They allege that ODOC violated their

constitutional rights by feeding them food that was marked “not for human consumption,” was

not nutritionally adequate, and was generally substandard, spoiled, unhealthy, moldy, expired,

and stored for excessive periods of time.

Plaintiff Bryan Schultz alleges that he once felt ill after consuming a “pale,” “slimy” fish

that was marked “not for human consumption.” Def. Ex. 6.1

Plaintiff Bridgette Lewis alleges that she also felt sick after eating fish labeled “not for

human consumption.” Def. Ex. 9. Plaintiff Bridgette Lewis claims that she complained to

multiple ODOC employees about the quality of the food, which she claims made her sick “a few

times.” Id.

Plaintiff Tiffanie Lewis testified that she observed, but never consumed, fish marked “not

for human consumption,” but she never got sick from the food served in ODOC facilities, and

testified that she found the food, including meat alternative trays, “amazing.” Def. Ex. 11.

Plaintiff Brandon McKey testified that he became ill five times during his 50 months of

incarceration, including once on June 14, 2017 when Plaintiff McKey believes he suffered from

food poisoning. Def. Ex. 15. Plaintiff McKey also testified that on at least ten occasions, he

avoided eating food that he perceived to be of poor quality or spoiled and that on multiple

occasions he complained about the food. Id. Plaintiff McKey testified that he maintained his

weight and his good health while incarcerated. Id.

Plaintiff Derrick Lyons testified that he witnessed or consumed spoiled milk on several

occasions as well as lettuce that he described as “slimy.” Def. Ex. 17. He testified that he

occasionally got an upset stomach after eating inadequate food. Id. He also testified that he

observed a box labeled “not for human consumption.” Id.

Plaintiff Anthony Aldeguer testified that he consumed “green-ish” eggs and undercooked

chicken while in ODOC custody. Def. Ex. 2. He also testified that he consumed chicken patties

1 The Court refers to Defendants’ attachments to the Declaration of Andrew Hallman as

Defendants’ exhibits.

that made him sick on one occasion, regularly consumed spoiled milk, and consumed spoiled

vegetables once per month, bad hamburger once every two months, and fish labeled “not for

human consumption” once every six weeks. Id. Plaintiff Aldeguer’s weight did not change

during his period of incarceration, but he experienced diarrhea, stomach aches, and dry heaves.

Id.

Plaintiff Joshua Smith testified that he was served spoiled milk, discolored roast beef,

bland and undercooked pork, and fish that tasted “horrible.” Def. Ex. 4. Plaintiff Smith testified

that he believed the food at ODOC made him constipated. Id.

Plaintiff Jessica Dove testified that she observed flies in the soup, undercooked

hamburgers, expired potatoes, slimy and brown lettuce, and pink fish patties labeled “not for

human consumption.” Def. Ex. 13. She testified that she suffered from stomach aches, diarrhea,

and vomiting caused by the food in ODOC. Id.

DISCUSSION

A. Evidentiary Issues

As a preliminary matter, Defendant raises a number of evidentiary objections to

Plaintiffs’ exhibits attached to Plaintiffs’ response in opposition to Defendants’ motion for

summary judgment. Defendants object to Exhibit 1, also labeled Exhibit A, which appears to be

a photograph of a cardboard box labeled “Frozen Herring Whole Round” and “Not for Human

Consumption.” Berman Decl. Ex. A. Plaintiff explains that the photograph was taken by an

unnamed inmate’s family member who works in the fishing industry. The family of the unnamed

inmate sent the photograph to Plaintiffs’ counsel, who believed the box looked similar to boxes

of frozen fish that Plaintiffs described seeing in ODOC facilities. Defendant objects that this

photograph lacks foundation and has not been authenticated under Federal Rules of Evidence

401 and 901(a). Rule 901 requires that “the proponent must produce evidence sufficient to

support a finding that the item is what the proponent claims it is.” United States v. Gadson, 763

F.3d 1189, 1203 (9th Cir. 2014). This may be done through testimony of a knowledgeable

witness, such as the testimony of the person who took the photograph who can testify that the

photograph accurately depicts what the witness saw. See United States v. Brooks, 772 F.3d 1161,

1171 n.3 (9th Cir. 2014) (witness testified that the photographs admitted into evidence were the

ones he took); Bennett v. Misner, 2004 WL 2091473, at *19 (D. Or. Sept. 17, 2004) (rejecting

admission of photograph of prison food with expiration dates to prove Eighth Amendment

claims because photograph was not appropriately authenticated).

The Court finds that this photograph lacks appropriate authentication. Not only is the

source of the photograph entirely unknown and unnamed, but the photograph does not even

purport to be a photograph of food at ODOC facilities. Instead, the box was apparently located

somewhere in a fishing warehouse. ECF 111 at 9. There is also no basis to conclude that this

photograph of a box labeled “Frozen Herring” and “Not for Human Consumption” taken

somewhere in the fishing industry has any relevance to food served to inmates at ODOC

facilities. The photograph also contains hearsay, because Plaintiffs appear to assume that the

labels on the box can be used to prove the contents of the box.2 See United States v. Jenkins, 345

F.3d 928, 935 (6th Cir. 2003) (allowing labels on box to be used for the truth of the matter

asserted only under business records exception to hearsay, which Plaintiffs do not assert applies

here). Were this case to proceed to trial, inmates could testify about the food they consumed and

what they personally witnessed. An anonymous photograph of a labeled box in an unknown

2 Even if the Court were to take the labels on the box for the truth of the matter asserted

and assume that the box did contain frozen herring, Plaintiff Aldeguer testified that he knew the

fish he was eating was pollack, not herring. Def. Ex. 2 at 9. Plaintiff Tiffanie Lewis testified that

the boxes she saw that were labeled “not for human consumption” were boxes of meat, not boxes

of fish. Def. Ex. 11 at 4.

location is hearsay and lacks foundation, authentication, and relevance to the issues presented by

this lawsuit.

Defendants also object to Exhibit 1, a spreadsheet that appears to list names of

individuals and their complaints with the food served at ODOC facilities. Berman Decl. Ex. 1

(“Seen food labeled Not Fit . . . told to remove labels”). The document contains multiple levels

of hearsay, as it appears to be notes taken by someone in Plaintiffs’ counsel’s office reporting

what inmates told them about the food as well as what inmates reported that prison officials told

them. See Berman Decl. Ex. 1-3 (“Has two other issues to discuss with Mr. Berman”). Plaintiffs

appear to rely on the document to prove the truth of the allegations and statements contained

therein. This is both hearsay and hearsay within hearsay. See Fed. R. Evid. 801, 805. Therefore,

this document will be excluded, but were this case to proceed to trial, inmates could testify about

what they personally saw and experienced.

Defendants also object to Exhibits 3, 4, and 5, the tort claims notices, as hearsay. The

Court agrees that any statements contained in the tort claims notices describing what Plaintiffs

told Mr. Berman are hearsay. The tort claims notices cannot be used to prove the truth of the

allegations that Plaintiffs made to Mr. Berman. See Fed. R. Evid. 801. They can, however, be

used to demonstrate whether notice or exhaustion requirements were met. Therefore, the Court

does not exclude the entirety of the tort claims notices but will not rely on them proof of the

truthfulness of the allegations Plaintiffs describe.

Defendants object to the declaration of Natasha Loftis. Ms. Loftis was not disclosed as a

witness during the course of the lengthy discovery in this case. Rule 26 of the Federal Rules of

Civil Procedure requires parties to disclose “the name and, if known, the address and telephone

number of each individual likely to have discoverable information.”

Fed. R. Civ. P. 26(a)(1)(A)(i). “[I]f the party learns that in some material respect the disclosure

or response is incomplete or incorrect” it must supplement or correct its initial disclosures. Fed.

R. Civ. P. 26(e). A failure to disclose information or identify a witness as required by Rules

26(a) and (e) means that party may not use that information or witness as evidence on a motion.

Fed. R. Civ. P. 37(c). Accordingly, because Plaintiffs did not disclose Ms. Loftis as a witness at

any point before Plaintiffs submitted her declaration in support of their opposition to Defendants’

motion for summary judgment, Plaintiffs have failed to disclose Ms. Loftis in a timely manner

and cannot now rely on her declaration in support of their opposition to Defendants’ motion. Ms.

Loftis’s declaration is excluded.

B. State Law Claims

Plaintiffs argue that the section of the Third Amended Complaint titled “FIRST CAUSE

OF ACTION Eighth Amendment (Cruel and Unusual Punishment)” pleaded state law claims

under the Oregon Constitution. But this section of the Complaint only alleges claims under the

United States Constitution. Plaintiffs cite to Sections 9, 13, and 16 of the Oregon Constitution

that create substantive rights implicated by Plaintiffs’ allegations and argue that the Complaint

therefore pleads violations of those sections of the Oregon Constitution. The Complaint is clear,

however, that the Eighth Amendment is the source of Plaintiffs’ claims:

The acts and omissions of all defendants []Peters et al, enumerated

above, who had a constitutional duty to protect plaintiffs and

fellow inmates from violations of the Eighth and Fourteenth

Amendments to the United States Constitution, amunted [sic] to a

deliberate indifference to their nutritional and health needs.

Defendants violated the requirements of the Eighth Amendment by

providing spoiled, substandard, and literally marked “not for

human consumption” comestibles to inmates as though they were

yard animals.

See ECF 40 ¶ 25. One passing reference to the Oregon Constitution, without stating that

Plaintiffs intend to bring any claims under the Oregon Constitution, does not put Defendants on

notice that Plaintiffs intended to bring state law claims. Even if Plaintiffs had adequately pleaded

state claims, those claims would fail as a matter of law. See Hunter v. City of Eugene, 309 Or.

298, 303 (1990) (“Oregon’s Bill of Rights provides no textual or historical basis for implying a

right to damages for constitutional violations.”).

C. PLRA Exhaustion

Defendants argue that Plaintiffs Dove and Lyons failed to exhaust administrative

remedies as required under the Prison Litigation Reform Act (“PLRA”). Plaintiff responds that,

because neither Dove nor Lyons was incarcerated at the time that the original complaint was

filed, they are not subject to the exhaustion requirements of the PLRA. Plaintiff provides no legal

support for the assertion that a plaintiff’s incarcerated status is only relevant at the time of filing

of the original complaint, as opposed to the time of filing of the operative complaint. Both

Plaintiff Dove and Plaintiff Lyons were out of custody at the time of filing of the original

complaint, but by the time the operative complaint (in this case the Third Amended Complaint)

was filed, both were in custody again. The exact dates that Plaintiffs Dove and Lyons were

incarcerated are not disputed, and Plaintiffs do not dispute that Dove and Lyons failed to exhaust

their administrative remedies—the only dispute is whether they are subject to those exhaustion

requirements as a matter of law.

Both Plaintiffs are subject to the exhaustion requirements of the PLRA. See Jackson v.

Fong, 870 F.3d 928, 937 (9th Cir. 2017) (holding that a plaintiff’s incarceration status when he

files the operative complaint, not the original complaint, is what determines whether exhaustion

requirements under the PLRA apply); see also Jacobsen v. Curran, 2018 WL 1693382, at *4

(E.D. Cal. Apr. 6, 2018) (requiring plaintiff to comply with PLRA exhaustion requirements

where plaintiff was released from custody after allegedly wrongful events occurred, but was re-

incarcerated at the time he filed the operative complaint); McCullough v. Yates, 2011 WL

773233, at *2 (E.D. Cal. Feb. 28, 2011) (same). Although both Plaintiffs were briefly released

from state custody after the events giving rise to their claims, they were both in custody at the

time of filing of the operative complaint. Thus, they are required to exhaust their administrative

remedies under the PLRA. Plaintiff does not dispute that they failed to do so. Therefore, the

Court dismisses the claims of Plaintiffs Dove and Lyons without prejudice.

D. Statute of Limitations

Defendants argue that Plaintiffs Schultz and Bridgette Lewis bring untimely claims, and

therefore their claims should be dismissed with prejudice. Federal claims brought under 42

U.S.C. § 1983 borrow the statute of limitations from the state law statute of limitations for

personal injury claims. See Wilson v. Garcia, 471 U.S. 261 (1985); see also Addison v. City of

Baker City, 258 F. Supp. 3d 1207, 1236 (D. Or. 2017). In Oregon, the applicable statute of

limitations is two years. See Sanok v. Grimes, 306 Or. 259, 263 (1988) (applying Or. Rev. Stat. §

12.110 two-year statute of limitations for personal injury claims to § 1983 claims). Plaintiffs

filed the original Complaint in May of 2017. Thus, for Plaintiffs’ claims to be timely, they must

involve events that occurred in or after May of 2015.

Plaintiff Bridgette Lewis alleges that while she was a prisoner at Coffee Creek

Correctional Facility in July of 2013, she handled boxes of fish marked “not for human

consumption.” ECF 40 at ¶10. After seeing the boxes labeled “not for human consumption”

Plaintiff Bridgette Lewis testified that she stopped eating the fish. Plaintiff Bridgette Lewis could

not recall eating any food products that caused her to become ill after she stopped eating the fish.

See Def. Ex. 9 at 14 (Bridgette Lewis Deposition) (“Q: Okay. And so you testified that the

adverse health consequences of the food stopped sometime after 2013 or in 2014, when you

stopped consuming the fish products, correct? A: Yeah. A couple of different times other food

would come into play. But like I said, within 3 years I don’t really fully remember every single

meal.”). Because Plaintiff Bridgette Lewis’s allegations relate to events from 2013, or, at the

latest, 2014, her claims pertain to events that occurred more than two years before the filing of

the complaint in 2017.

Plaintiff Schultz “raises a single allegation regarding the allegedly inadequate food:

While housed at the Eastern Oregon Correctional Institution (“EOCI”) and working in the

kitchen, he observed and consumed a ‘pale, slimy’ fish that was marked ‘not for human

consumption,’ which made him feel ill.” ECF 111 at 2-3. The housing records in this case

demonstrate that Schultz was housed in the EOCI from December 2011 until August 2014, and

Plaintiff does not dispute the accuracy of the housing records. See Def. Ex. 5. The two-year

statute of limitations for any constitutional claims that arose out of Plaintiff Schultz’s stay at

EOCI therefore expired – at the latest – in August of 2016. Plaintiff Schultz does not allege that

he was served inadequate food at any other correctional institution after he left EOCI in 2014.

Therefore, Plaintiff Schultz’s claims are barred by the two-year statute of limitations.

E. Supervisory Liability

Defendants argue that the claims against the supervisory Defendants—Defendants Peters,

Gower, Angelozzi, Amsberry, Kelly, Belleque, Persson, Taylor, Brown, Causey, and Popoff—

should be dismissed because there is no evidence that these defendants had any knowledge of or

involvement in the food services in the institutions. “Government officials may not be held liable

for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). “Because vicarious liability is inapplicable to . . .

§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the

official's own individual actions, has violated the Constitution.” Id. “A defendant may be held

liable as a supervisor under § 1983 ‘if there exists either (1) his or her personal involvement in

the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's

wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). “[A] plaintiff must show the

supervisor breached a duty to plaintiff which was the proximate cause of the injury.” Id. (citation

omitted).

Plaintiffs’ allegations amount to no more than a theory of respondeat superior. The Third

Amended Complaint alleges that “[b]y information and belief, the supervisory defendants . . .

had knowledge of and/or ratified the purchasing, procuring and serving of spoiled, inedible

and/or not fit for human consumption food by their staff through memos, emails, conference and

phone calls and approval of procurement forms, hence binding them as complicit and liable for

these alleged constitutional violations.” ECF 40 ¶ 10. Discovery has not produced any of the

alleged memoranda, emails, conference and telephone calls, or procurement forms that Plaintiffs

thought may have existed. Plaintiffs do not even argue in their response to Defendants’ Motion

for Summary Judgment that any supervisory defendant besides Kent Fanger had any knowledge

or personal involvement in any of the alleged constitutional violations. See ECF 111 at 11.

Plaintiffs argue that, because Kent Fanger knows the organizational structure of food

services within ODOC, he should be held responsible for every aspect of food services within

ODOC.3 But Plaintiffs fail to point to any knowledge or action on the part of Fanger pertaining

to the allegedly unconstitutional food. Fanger’s response to interrogatories regarding food for

“Prisons only” —that they pertain to food not authorized for resale—does not corroborate

3 Plaintiffs also argue that the “Inmate Food Complaint list” in Exhibit 1 should have put

the supervisory defendants on notice and provided them with knowledge of the alleged

substandard food. This document appears to have been compiled by Plaintiffs’ counsel, there is

no evidence that Defendants ever would have seen it, and furthermore it consists entirely of

unreliable hearsay and hearsay within hearsay. This exhibit cannot give Defendants knowledge

of the allegations.

Plaintiffs’ allegations because the label “Prisons only” does not connote poor quality or expired

food. Although Plaintiffs argue that “[i]t is not conceivable that . . . any state defendant could be

unaware of the procurement, housing and kitchen delivery of such inedible and improper

‘nutrition,’” they point to no evidence or facts that would give rise to an inference of such

knowledge.4 ECF 111 at 10. Unsupported allegations are insufficient to withstand summary

judgment.

F. Qualified Immunity

Defendants argue that there is no genuine dispute of fact as to whether the non-

supervisory defendants violated Plaintiffs’ clearly established right to food that is adequate to

maintain health and therefore Defendants are entitled to qualified immunity. “The doctrine of

qualified immunity protects government officials from liability for civil damages.” Wood v.

Moss, 134 S.Ct. 2056, 2066-67 (2014); Krainski v. Nevada ex. Rel. Bd. of Regents, 616 F.3d 963,

968 (9th Cir. 2010). “Qualified immunity balances two important interests—the need to hold

public officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Whether qualified immunity can be invoked

turns on the ‘objective legal reasonableness’ of the official’s acts. And reasonableness of official

action, in turn, must be ‘assessed in light of the legal rules that were clearly established at the

time [the action] was taken.’” Ziglar v. Abbasi, 137 S.Ct. 1843, 1866 (2017) (citation omitted)

(alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982) and Anderson v.

4 Indeed, when presented with a list of named defendants in this case, most Plaintiffs did

not appear to have any knowledge of those individuals’ involvement in their claims. See Def. Ex.

15 at 14 (McKey Depo.) (“I know there was a whole bunch of just random names” in the list of

named Defendants).

Creighton, 483 U.S. 635, 638 (1987)). “The privilege is an immunity from suit rather than a mere

defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.”

Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (quotation marks omitted) (emphasis in original).

For this reason, the Court has “stressed the importance of resolving immunity questions at the

earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

Qualified immunity, however, is only an immunity from suit for damages, it is not an immunity

from suit for declaratory or injunctive relief. See L.A. Police Protective League v. Gates, 995

F.2d 1469, 1472 (9th Cir. 1993).

In Saucier, the Supreme Court outlined a two-step process for determining the

applicability of the qualified immunity doctrine. 533 U.S. at 200. The first step is to determine

“whether a constitutional right would have been violated on the facts alleged.” Id. The second

step is to determine “whether the right was clearly established.” Id. The constitutional issue,

however, need not be addressed first in every case. Pearson, 555 U.S. at 227. Regardless of

whether the constitutional violation occurred, the officer should prevail if the right asserted by

the plaintiff was not clearly established or the officer could have reasonably believed that his

particular conduct was lawful. Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991).

To determine whether a government official’s conduct violates clearly established law, “a

court must ask whether it would have been clear to a reasonable officer that the alleged conduct

was unlawful in the situation he confronted.” Ziglar, 137 S.Ct. at 1867. To be clearly established,

“[i]t is not necessary . . . that the very action in question has previously been held unlawful. That

is, an officer might lose qualified immunity even if there is no reported case directly on point.

But in the light of pre-existing law, the unlawfulness of the officer’s conduct must be apparent.

Id. (citations and quotation marks omitted). “The ‘clearly established’ requirement ‘operates to

ensure that before they are subject to suit, [government officials] are on notice their conduct is

unlawful.’” Eng v. Cooley, 552 F.3d 1062, 1075 (9th Cir. 2009) (quoting Hope v. Pelzer, 536

U.S. 730, 739 (2002)) (alteration in original). Thus, the key inquiry in determining whether an

officer has qualified immunity is whether the officer had “fair warning” that his conduct was

unconstitutional. Hope, 536 U.S. at 741; see also Saucier, 533 U.S. at 202 (noting that the law

need not be a “precise formulation of the standard” as long as “various courts have agreed that

certain conduct is a constitutional violation under facts not distinguishable in a fair way from the

facts presented in the case at hand”); Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th

Cir. 2013) (“Rather, the relevant question is whether ‘the state of the law at the time gives

officials fair warning that their conduct is unconstitutional.’” (quoting Bull v. City & Cty. of San

Francisco, 595 F.3d 964, 1003 (9th Cir. 2010) (en banc) (“[T]he specific facts of previous cases

need not be materially or fundamentally similar to the situation in question.”))).

The plaintiff bears the burden of making a showing that the right was clearly established

at the time of the alleged violation. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). When

considering whether qualified immunity applies, the court must resolve all factual disputes in

favor of the party asserting the injury. Ellins, 710 F.3d at 1064.

The Supreme Court has instructed that courts use a two-part test to determine “whether

an alleged deprivation is cruel and unusual punishment” under the Eighth Amendment. LeMaire

v. Maass, 12 F.3d 1444, 1451 (9th Cir. 1993) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

“The first part of the test is objective: Was the deprivation sufficiently serious? The second part

is subjective: Did the officials act with a sufficiently culpable state of mind?” Id. Prison officials

cannot be held liable for violations of the Eighth Amendment “unless the official knows of and

disregards an excessive risk to inmate health or safety; the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

“The Eighth Amendment requires only that prisoners receive food that is adequate to

maintain health; it need not be tasty or aesthetically pleasing.” LeMaire, 12 F.3d at 1456 (citing

Cunningham v. Jones, 567 F.3d. 659, 660 (6th Cir. 1977)). The Ninth Circuit has held that food

that “occasionally contains foreign objects” or “sometimes is served cold” and “unpleasant” does

not violate the Eighth Amendment. Id. (quoting with approval Hamm v. DeKalb Cty., 774 F.2d

1567, 1575 (11th Cir. 1985)).

The bulk of Plaintiffs’ claims stem from allegations that they observed food labeled “not

for human consumption” in the prison kitchens and claims of occasional illness or food

poisoning. Plaintiff Aldeguer testified that he suffered from diarrhea once or twice every six

weeks, which he attributed to the food served at ODOC, and that his weight stayed “pretty

much” the same the entire time he was in ODOC custody. Def. Ex. 2 at 11, 16-17. Plaintiff

Joshua Smith testified that he gained 100 pounds while in ODOC custody. Def. Ex. 4 at 2. He

also testified that he suffered from constipation. Def. Ex. 4 at 12. Plaintiff Tiffanie Lewis

testified that she never ate the food labeled “not for human consumption” and instead ate the

veggie trays, which she testified were “amazing.” Def. Ex. 11 at 3. She testified that she never

got sick while in ODOC custody. Def. Ex. 11 at 7. Plaintiff Brandon McKey testified that after

getting diarrhea three times at ODOC he stopped eating pink meat patties. Def. Ex. 15 at 4. He

estimated that me might have gotten sick from the food served in ODOC five times over the

course of 50 months. Def. Ex. 15 at 7. Plaintiff McKey testified that he gained between 65 and

73 pounds while in ODOC custody but testified that otherwise he was “still in perfect health.”

Def. Ex. 15 at 5-6. None of the Plaintiffs testified that they were unable to maintain their overall

health while incarcerated. They produced no medical records corroborating any decline in health,

or any evidence that they suffered from a serious medical condition as a result of the food in

ODOC facilities.

Claims that food was contaminated or made Plaintiffs occasionally ill, without any

supporting medical evidence of any adverse health impacts, does not create a genuine dispute of

fact whether the food was constitutionally adequate. See Brown v. Union Cty., 2018 WL

3371597, at *8-9 (D. Or. May 18, 2018); Bennett, 2004 WL 2091473, at *20 (granting summary

judgment on Eighth Amendment claims where prisoners had “neither alleged nor provided

evidence, such as their own medical records, to establish that they suffered significant injury or

illness directly resulting from their consumption of unfit food [in prison], such as repeated

symptoms of food poisoning, serious malnutrition, or drastic weight loss.”). “If prisoners

regularly and frequently suffer from food poisoning with truly serious medical complications as

a result of particular, known unsanitary practices which are customarily followed by the prison

food service organization, and the authorities without arguable justification refuse to attempt

remedial measures, the requisite deliberate indifference might well be manifested or inferred.”

George v. King, 837 F.2d 705, 707 (5th Cir. 1988). Here, however, the most serious allegations

complain of occasional diarrhea and vomiting, and not a single Plaintiff claims that they suffered

from any medical complications, long-term consequences or serious adverse health impacts.

Although several Plaintiffs gained weight while in custody, the Ninth Circuit has

considered weight gain a sign that inmates are “being fed adequately.” LeMaire, 12 F.3d at 1456.

Plaintiffs do not claim that the food offered in the vegetarian option, also called the “meat-

alternative tray,” which was available at every meal, ever caused any illness or contained any of

the meat and fish products that Plaintiffs complain of. There is no dispute of fact that Plaintiffs

had an available option at every meal that contained none of the food items that they claim

caused their illness or tasted foul (Plaintiff Tiffanie Lewis testified that she ate the vegetarian

option instead of the fish and never became ill). Thus, Plaintiffs have failed to create a genuine

dispute of fact as to the objective component of their Eighth Amendment claim—that they were

not provided with food that was adequate to maintain their health.

Even if the Court were to accept Plaintiffs’ representations that occasional illness or

diarrhea fell below a standard of adequately maintained health, Plaintiffs fail to allege or

establish any evidence to show that they could meet the subjective component of the Eighth

Amendment test: “Did the officials act with a sufficiently culpable state of mind?” Id. at 1451.

Although Plaintiffs do not allege that any of the Defendants served inedible food with the intent

to cause harm, Plaintiffs allege that Defendants acted with deliberate indifference to their well-

being.

As evidence that Defendant Fanger acted with a culpable state of mind, Plaintiffs again

point to Exhibit 1, the unauthenticated hearsay notes that appear to have been compiled by

Plaintiffs’ counsel’s office. There is no evidence that Defendant Fanger ever saw these notes, and

therefore no evidence that he had knowledge of the complaints that they appear to document.

None of the Plaintiffs identified Fanger as someone to whom they reported issues with the food

service. Plaintiffs point to no evidence that Defendant Fanger had any knowledge of a risk to

inmate health or safety, or that he ever deliberately disregarded that risk.

Plaintiffs fail to provide any evidence that Defendants Whitney or Bowser had any

knowledge of the allegedly contaminated food or the alleged food-borne illnesses. Other than

alleging that Whitney and Bowser are responsible for managing the food service program,

Plaintiff fails to articulate any evidence that Whitney and Bowser would have had knowledge of

the specific issues that Plaintiffs complain of in this lawsuit. “At most, plaintiffs’ claims of food

poisoning are based on negligence, and thus they are not cognizable under § 1983.” Ferris v.

Jefferson Cty., 2008 WL 5101240, at *6 (D. Colo. Nov. 26, 2008).

Several Plaintiffs claim that they complained to Defendants Helton and Timmons about

the quality of the food in ODOC facilities and therefore Defendants Helton and Timmons had

actual knowledge of the quality of the food and acted with deliberate indifference in serving it.

But, as discussed above, even if Defendants Helton and Timmons knew of Plaintiffs’ complaints,

it is not clearly established that these complaints rise to the level of an Eighth Amendment

violation.

The standard under the Eighth Amendment, as discussed above, is that the food must be

adequate for inmates to maintain their health. “Neither isolated instances of food poisoning,

temporary lapses in sanitary food service, nor service of meals contaminated with maggots are

sufficiently serious to constitute an Eighth Amendment violation.” Bennett, 2004 WL 2091473,

at *20. Courts have approved of serving food with foreign objects in it, LeMaire, 12 F.3d at

1456, food blended, baked, and served in a “nutraloaf,” id., “moldy” raisins and “rancid” peanut

butter, Williams v. Berge, 102 F. App’x 506, 507 (7th Cir. 2004), and even maggots, Islam v.

Jackson, 782 F. Supp. 1111, 1114-15 (E.D. Va. 1992). It was not clearly established that serving

fish not intended for human consumption or spoiled meat and milk on occasion violated the

Eighth Amendment, especially when there is no dispute that the vegetarian meals (which no

Plaintiff alleges ever caused illness) were available to inmates at every meal. Thus, even for

Defendants who may have had knowledge of Plaintiffs’ complaints about the quality of the food

at ODOC facilities, it was not clearly established that serving food that tastes bad or even causes

inmates to occasionally become ill after eating it, but causes no serious or long-term health

impacts, violates the Eighth Amendment.

In sum, all Defendants are entitled to qualified immunity because Plaintiffs have not

produced evidence to create a genuine dispute of fact as to whether Plaintiffs were able to

maintain their health. Even assuming that the food was objectively inadequate to maintain inmate

health, Plaintiffs have not demonstrated that Defendants either knew about the food quality or

that it was clearly established that food of the quality that the inmates describe here, which

caused occasional illness but no other adverse health impacts, was constitutionally inadequate.

Defendants are entitled to qualified immunity.

G. Sanitation

Plaintiffs’ claim for unsanitary conditions is not materially distinguishable from

Plaintiff’s claim for serving unwholesome food because it rests on allegations that Defendants

served spoiled and bad-tasting food. See ECF 40 ¶ 28a (Defendants “[f]ailed to maintain sanitary

conditions and serve unspoiled, healthy and nutritious food, and instead served food marked ‘not

for human consumption,’ spoiled milk, wilted produce and moldy breads.”). Therefore, for the

reasons discussed above, Plaintiffs’ claim for unsanitary conditions fails to raise a genuine issue

of material fact.

CONCLUSION

Plaintiffs have failed to establish a genuine dispute of material fact on any of their claims.

Defendants’ Motion for Summary Judgment (ECF 95) is granted. This case is dismissed.

IT IS SO ORDERED.

DATED this 22nd day of July, 2019.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge