Thomas v. Aguilar

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM H. THOMAS, Case No.: 22-cv-0979-RSH-DEB

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Plaintiff,

REPORT AND

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v. RECOMMENDATION ON CROSS-

13 MOTIONS FOR SUMMARY

AGUILAR, CORRECTIONAL

JUDGMENT

14 OFFICER,

15 Defendant. [DKT. NOS. 38, 51]

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This Report and Recommendation is submitted to United States District Judge

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Robert S. Huie pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3(e).

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20 I. BACKGROUND

Plaintiff William H. Thomas, a prisoner in the custody of the California Department

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of Corrections and Rehabilitation (“CDCR”), is proceeding pro se with a First Amended

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Complaint pursuant to 42 U.S.C. § 1983. Thomas alleges Defendant Correctional Officer

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Aguilar violated his Eighth Amendment rights by failing to timely respond to a broken

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toilet in Thomas’s cell. Dkt. No. 5.1

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1 The Court screened the First Amended Complaint (“FAC”) and found Thomas plausibly

27 alleged an Eighth Amendment violation against Aguilar. Dkt. No. 6. Thomas subsequently

moved for leave to file a Second Amendment Complaint, which the Court granted, but only

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1 Before the Court are the parties’ cross-motions for summary judgment. Dkt. Nos.

2 38, 51. Thomas and Aguilar oppose the other’s motion, and each has replied.

3 For the reasons discussed below, the Court recommends GRANTING Aguilar’s

4 Motion for Summary Judgment and DENYING Thomas’s Motion for Summary

5 Judgment.

6 II. LEGAL STANDARDS

7 Summary judgment is proper when there is “no genuine dispute as to any material

8 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

9 Material facts are those that “might affect the outcome of the suit.” Anderson v. Liberty

10 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if the

11 evidence is such that a reasonable fact-finder could find for the nonmoving party. Id.

12 “In ruling on a motion for summary judgment, ‘[t]he evidence of the nonmovant is

13 to be believed, and all justifiable inferences are to be drawn in his favor.’” Tolan v. Cotton,

14 572 U.S. 650, 651 (2014) (quoting Anderson, 477 U.S. at 255). Courts may not weigh

15 evidence or make credibility determinations. Manley v. Rowley, 847 F.3d 705, 711 (9th

16 Cir. 2017). Courts also “may not disregard a piece of evidence at the summary judgment

17 stage solely based on its self-serving nature.” Nigro v. Sears, Roebuck & Co., 784 F.3d

18 495, 497 (9th Cir. 2015) (citation omitted).

19 “When presented with cross-motions for summary judgment, we review each motion

20 for summary judgment separately, giving the nonmoving party for each motion the benefit

21 of all reasonable inferences.” Comcast of Sacramento I, LLC v. Sacramento Metro. Cable

22 Television Comm’n, 923 F.3d 1163, 1168 (9th Cir. 2019) (quoting Center for Bio-Ethical

23 Reform Inc. v. Los Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)).

24 Courts liberally construe pro se prisoner filings and “avoid applying summary

25 judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citation

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to allow Thomas to correct the dates of the alleged events and the spelling of Aguilar’s

27 name. Dkt. Nos. 24, 25, 27, 33. Thomas, however, did not file the Second Amended

Complaint. The FAC, therefore, remains the operative complaint.

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1 omitted). “This rule exempts pro se inmates from strict compliance with the summary

2 judgment rules, but it does not exempt them from all compliance.” Soto v. Sweetman, 882

3 F.3d 865, 872 (9th Cir. 2018) (citation omitted) (emphasis in original).

4 III. FACTUAL BACKGROUND2

5 At all relevant times, Plaintiff Thomas was an inmate at Calipatria State Prison,

6 where Defendant Aguilar was a correctional officer. Dkt. No. 38-3 at 27; Dkt. 38-4 at 1.3

7 Thomas, who did not have a cellmate, alleges the toilet in his cell began

8 malfunctioning on December 18, 2021, when it required multiple flushes to clear. Dkt. 38-

9 3 at 31-32. Thomas alleges he informed Aguilar and another officer about the problem that

10 same day. Id. at 38. Thomas also believes he reported the issue to a gun tower officer, who

11 said he would put in a work order. Id. at 39. This was not a major issue to Thomas, however.

12 Id. at 51 (“That’s nothing. That’s not bad. As long as it goes down, you know.”).

13 On December 27, 2021, Thomas’s toilet stopped flushing altogether. Id. at 34. The

14 next day, Thomas reported the malfunction to a second shift officer and then to Aguilar

15 who advised Thomas to “ask the people who walk around. There’s plumbers in there.” Id.

16 at 35, 44. Aguilar also said he would place a work order. Id. at 35.

17 Thomas also reported the problem to a plumber, who said he could not enter

18 Thomas’s cell due to COVID-19. Id. at 46.

19 On January 1, 2022, Thomas discussed the toilet problem with a second watch

20 officer and then with Aguilar (who worked the third watch). Id. at 45–46. Thomas told

21 Aguilar his cell smelled “like a porta pottie” and requested a different cell. Id. at 36. Aguilar

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26 2 Unless otherwise noted, this Factual Background is based on Thomas’s deposition

testimony. Dkt. No. 38-3.

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28 3 All page citations are to the numbers affixed by the Court’s CM/ECF system.

1 responded he would not request a different cell but told Thomas he would submit a work

2 order. Id.4

3 Beginning January 2, 2022, Thomas complained about his toilet “every day” (id. at

4 46–47), but Aguilar was not on duty on either January 2nd or January 3rd. Dkt. No. 51-1

5 at 7. Aguilar submitted a work order upon his return to duty on January 4th. Dkt. No. 38-3

6 at 36; Dkt. No. 51-1 at 10. Thomas did not speak to Aguilar about his toilet again after

7 January 4th. Dkt. No. 38-3 at 48, 72. Thomas’s toilet was repaired on January 11th or 12th.

8 Id. at 36; Dkt. No. 38-5 at 10.

9 Feces accumulated in Thomas’s cell toilet when it would not flush, and Thomas

10 attempted to suppress the smell with mixed results by covering the commode with a towel.

11 Id. at 51–52. Thomas also improvised by urinating in a cup and removing his solid waste

12 with a bag. Id. at 55. At the suggestion of another inmate, Thomas poured a bucket of water

13 into the toilet, which “splattered feces everywhere around my living area so I had to clean

14 that up.” Id. at 56. Thomas makes no claim in either his deposition or summary judgment

15 pleadings, however, that Aguilar knew about these improvisations or whether they

16 occurred before Aguilar submitted a work order on January 4th.

17 While the toilet in Thomas’s cell would not flush, Thomas had periodic access to

18 other prison toilets, including in the yard (where Thomas spent two hours per day, id. at

19 56, 62), the day room (where Thomas spent two hours per day and had access to a urinal,

20 id. at 57, 62), the law library, the medical unit, and the church (id. at 55, 58–59). Thomas

21 also spent seven and a half hours per day working outside his cell as an “ADA

22 worker/porter/critical worker.” Id. at 65.5

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4 The undisputed evidence establishes Aguilar had no independent authority to transfer

inmates to a different cell. Dkt. No. 38-3 at 45, 74; Dkt. No. 38-4 at 2.

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5 In a declaration submitted with his opposition, Thomas states, “On average I get two

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hours a day out the cell. That’s 22 hours a day in the cell.” Dkt. No. 46 at 10. Aguilar

27 “objects to, and requests the Court disregard,” this statement because it is inconsistent with

Thomas’s prior deposition testimony. Dkt. No. 53 at 5. In his deposition six months before

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1 Except for headaches he treated with Advil (id. at 87), Thomas suffered no physical

2 injuries from the broken toilet (id. at 88 (Q: “[D]id you ever get any medical treatment

3 from a medical professional . . . based on the broken toilet?” A: “No. Because . . . it’s not

4 really a physical injury.”)). Instead, the main injuries Thomas claims he suffered are

5 humiliation, embarrassment, and fear of future medical problems. Id. at 85, 88–89.6

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this declaration, Thomas testified he worked outside his cell seven and a half hours per day

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and had two hours per day of both dayroom and yard time. Dkt. No. 38-3 at 56, 61–62, 64–

9 65. The Court sustains Aguilar’s objection and will not consider Thomas’s statement

regarding spending only two hours outside of his cell in deciding Aguilar’s Motion for

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Summary Judgment. See Ransom v. Greenwood, 288 F. App’x 396, 397 (9th Cir. 2008)

11 (“The district court properly granted summary judgment . . . because [the pro se plaintiff’s]

sham affidavit contradicted his prior deposition testimony and therefore could not be used

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to defeat the motion for summary judgment.”); Radobenko v. Automated Equip. Corp., 520

13 F.2d 540, 543–44 (9th Cir. 1975) (holding an affidavit contradicting earlier deposition

testimony could not be used to create an issue of fact and avoid summary judgment).

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15 6 In his Motion, Thomas expresses concern regarding “a lump growing in my left forarm

[sic]” that he “believe[s]” “could have been caused by smelling[,] breathing[,] eating[,]

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drinking[,] and sleeping in a cell that retained a toxic smell for almost 3 months.” Dkt. No.

17 51 at 16. Thomas also attaches “a medical report of a tumur [sic] in my left forarm [sic]

that may have been caused by stress and living conditions at Calipatria state prison.” Id.

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Aguilar objects to the Court considering these statements, arguing Thomas is not qualified

19 to provide an expert medical opinion. Dkt. No. 53 at 4. The Court overrules Aguilar’s

objections. See Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) (“To survive

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summary judgment, a party does not necessarily have to produce evidence in a form that

21 would be admissible at trial, as long as the party satisfies the requirements of Federal Rules

of Civil Procedure 56.”) (quoting Block v. City of Los Angeles, 253 F.3d 410, 418–19 (9th

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Cir. 2001)). Aguilar also summarily objects to Plaintiff’s following statements:

23 (1) “Defendant is a wrongdoer of my United States Constitutional right,” and (2) “The

24 broken toilet did rise to the level of unconstitutional deprivation.” Dkt. No. 53 at 5 (citing

Dkt. No. 51 at 1, 3). The Court, again, overrules Aguilar’s objections. See Burch v. Regents

25 of Univ. of California, 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006) (“Statements in

26 declarations based on . . . improper legal conclusions, or argumentative statements, are not

facts and likewise will not be considered on a motion for summary judgment. Objections

27 on any of these grounds are simply superfluous in this context.”) (citation omitted)

28 (emphasis in original).

1 On January 3, 2022, Thomas submitted a Form 601-1 Grievance regarding the

2 broken toilet that requested maintenance and $80,000. Dkt. No. 38-5 at 7–8. On January

3 28, 2022, CDCR issued an Office of Grievances Decision granting the appeal, stating

4 “Claimant’s toilet was repaired on January 12, 2022.” Id. at 10. The decision did not

5 mention Thomas’s $80,000 demand. The decision advised Thomas he could appeal the

6 decision using a “CDCR Form 602-2” if he was dissatisfied with the response. Id. A Form

7 602-2 was not attached to the decision, however (Dkt. Nos. 38-5; 38-6), and Thomas did

8 not submit one until October 8, 2023, well after he filed this case (Dkt. No. 51-1 at 13–14).

9 IV. DISCUSSION

10 Aguilar moves for summary judgment on three grounds: (1) Thomas has not

11 exhausted administrative remedies; (2) the conditions Thomas faced did not violate the

12 Eighth Amendment; and (3) Aguilar is entitled to qualified immunity. Dkt. No. 38.

13 Thomas cross-moves for summary judgment, seeking the $80,000 requested in his

14 grievance. Dkt. No. 51 at 1. Thomas’s motion argues: (1) he has exhausted available

15 administrative remedies; (2) the conditions he faced violated the Eighth Amendment’s

16 prohibition against cruel and unusual punishment; and (3) Aguilar is not entitled to

17 qualified immunity. Dkt. No. 51.7

18 A. Exhaustion

19 The parties dispute whether Thomas exhausted his administrative remedies. As

20 discussed below, the undisputed facts submitted with the summary judgment briefing

21 establish Thomas exhausted available administrative remedies.

22 1. Legal Standards

23 The Prison Litigation Reform Act (“PLRA”) “mandates that inmates exhaust all

24 available administrative remedies before filing ‘any suit challenging prison conditions,’

25 including, but not limited to, suits under § 1983.” Albino v. Baca, 747 F.3d 1162, 1171 (9th

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7 Aguilar’s opposition to Thomas’s Motion for Summary Judgment erroneously refers to

27 “Officer Aguilar” as “Officer Garcia.” Dkt. No. 53 at 2–5, 7–8.

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1 Cir. 2014) (en banc) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). Inmates cannot

2 satisfy the PLRA’s exhaustion requirement “by exhausting available remedies during the

3 course of the litigation.” Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012) (quoting

4 McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam)). But a “prisoner

5 need not exhaust remedies if they are not ‘available.’” Ross v. Blake, 578 U.S. 632, 636

6 (2016) (quoting 42 U.S.C. § 1997e(a)).

7 A defendant seeking summary judgment for failure to exhaust bears the initial

8 burden to establish “there was an available administrative remedy, and that the prisoner

9 did not exhaust that available remedy.” Albino, 747 F.3d at 1172 (citation omitted). “To be

10 available, a remedy must be available ‘as a practical matter’; it must be ‘capable of use; at

11 hand.’” Id. at 1171 (quoting Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005)). Once that

12 showing is made, the burden shifts to the plaintiff to “come forward with evidence showing

13 that there is something in his particular case that made the existing and generally available

14 administrative remedies effectively unavailable to him.” Id. at 1172 (citation omitted). But

15 “the ultimate burden of proof” remains with the defendant. Id.

16 “If undisputed evidence viewed in the light most favorable to the prisoner shows a

17 failure to exhaust, a defendant is entitled to summary judgment under Rule 56 [of the

18 Federal Rules of Civil Procedure].” Albino, 747 F.3d at 1166. But “if material facts are

19 disputed, summary judgment should be denied,” and “the district judge may decide

20 disputed questions of fact in a preliminary proceeding.” Id. at 1166, 1168.

21 2. CDCR’s Grievance System

22 CDCR provides a procedure for inmates to administratively grieve and appeal any

23 “policy, decision, action, condition, or omission by the Department or departmental staff

24 that causes some measurable harm to their health, safety, or welfare.” Cal. Code Regs. tit.

25 15, § 3481(a).

26 CDCR’s grievance process has two levels of review. Id. First, the inmate must timely

27 submit a written grievance to the Institutional Office of Grievances (“OOG”) using CDCR

28 Form 602-1. Id. § 3482(a)(1), (b)(1), and (c)(1). Second, an inmate must timely appeal the

1 OOG’s decision to the Office of Appeals (“OOA”) using CDCR Form 602-2. Id.

2 § 3484(a)–(b). Generally, “[c]ompletion of the review process by the [OOA] resulting in a

3 decision of ‘denied,’ ‘granted,’ ‘no jurisdiction,’ ‘identified as staff misconduct,’ ‘pending

4 legal matter,’ or ‘time expired’ . . . constitutes exhaustion of all administrative remedies

5 available to a claimant within the department.” Id. § 3485(l)(1).

6 3. Thomas’s Grievance

7 On January 3, 2022, Thomas submitted a grievance related to the allegations in his

8 complaint on CDCR Form 602-1. Dkt. No. 38-5 at 7–8. Thomas’s grievance complained

9 of plumbing problems with his sink and toilet, resulting in “breathing trouble” and

10 migraines. Id. at 7. The grievance also stated Thomas reported these issues to prison staff

11 but did not identify any by name. Id. Thomas requested maintenance and $80,000. Id. at 8.

12 On January 28, 2022, the OOG approved Plaintiff’s claim and noted, “Claimant’s

13 toilet was repaired on January 12, 2022.” Dkt. No. 38-5 at 10–11. But the OOG did not

14 address Thomas’s monetary demand. Id. The decision advised Plaintiff if “you are

15 dissatisfied with this response you may appeal this decision by mailing the CDCR Form

16 602-2 included in this response to the California Department of Corrections and

17 Rehabilitation, Office of Appeals. Do not resubmit this claim to the Office of Grievances.”

18 Id. at 10. Aguilar’s Motion attaches the OOG’s decision, but the referenced 602-2 form is

19 not contained in the exhibit. See id. at 10–11.

20 4. Analysis

21 Exhausting CDCR’s grievance process generally requires inmates to complete two

22 levels of review (i.e., timely submitting both Form 602-1 and Form 602-2). See Cal. Code

23 Regs. tit. 15, §§ 3481–3485. Thomas submitted and received a response to his Form 602-

24 1 grievance, thus completing the first level of review. There is, however, no record of

25 Thomas timely completing the second level review (i.e., Form 602-2). Dkt. No. 38-6.8

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8 Thomas’s Motion for Summary Judgment contains a CDCR 602-2 form he submitted on

27 October 8, 2023 (about a year after Thomas filed his FAC), which the OOA rejected as

untimely on November 1, 2023. Dkt. No. 51-1 at 13–14.

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1 Aguilar has, therefore, met his initial burden to establish “there was an available

2 administrative remedy,” and Thomas “did not exhaust that available remedy.” Albino, 747

3 F.3d at 1172 (citation omitted).

4 Thomas’s responsive declaration states COVID-19 policies in place at the relevant

5 time (i.e., January 2022) “prohibited second-level reviews” using Form 602-2. Dkt. No. 46

6 at 3, 6, 16–18.9 Thomas further declares “CDCR was under emergency Coved [sic] 19 rules

7 to stop the spread of coved [sic] 19[.] Calipatria State Prison diclined [sic] to answer 602-

8 2 forms at the 2nd level and made clear the only level after the first level is the final level[.]

9 [T]he 602-3 form was sent to me[.] I filled it out and sent it in.” Id. at 18.10 Consistent with

10 Thomas’s claim of a temporary Form 602-2 suspension during COVID-19, the decision on

11 Thomas’s Form 601-1 attached to Aguilar’s Motion does not include Form 602-2 despite

12 the pre-printed boilerplate language stating one is “included in this response.” Dkt. No. 38-

13 5 at 10–11.

14 If credited as true, Thomas’s declaration establishes he exhausted all administrative

15 remedies available to him at the time, and further remedies were unavailable due to

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17 9 Thomas also alleges CDCR’s administrative process could not award him the monetary

relief he sought. Dkt. No. 46 at 2–3. This does not relieve Thomas of his obligation to fully

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exhaust his administrative remedies. See Booth v. Churner, 532 U.S. 731, 739 (2001) (An

19 inmate must complete a prison administrative process “regardless of the fit between a

prisoner’s prayer for relief and the administrative remedies possible.”); Woodford, 548 U.S.

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at 85 (“[A] prisoner must now exhaust administrative remedies even where the relief

21 sought—monetary damages—cannot be granted by the administrative process.”) (citation

omitted).

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23 10 The summary judgment record contains two CDCR 602-3 forms submitted by Thomas

relating to this same grievance. Dkt. No. 38-6; Dkt. No. 46 at 21. Thomas’s Motion attaches

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a Form 602-3 submitted on February 28, 2022, which the OOA received on March 9, 2022.

25 Dkt. No. 46 at 21. Aguilar’s Motion attaches a Form 602-3 Thomas submitted on August

24, 2022, and the OOA received on August 30, 2022. Dkt. No. 38-6. The OOA responded

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to Thomas on July 27, 2023. Dkt. No. 46 at 19 (“Subsequent to your filing, this Office has

27 confirmed that the remedy has been fully implemented. This matter is therefore fully

resolved.”).

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1 COVID-19 restrictions. See Williams v. Paramo, 775 F.3d 1182, 1192 (9th Cir. 2015)

2 (exhaustion is excused when “prison officials inform the prisoner that he cannot file a

3 grievance”); Strizich v. Palmer, No. 23-35082, 2024 WL 3493294, at *2 (9th Cir. July 22,

4 2024) (“[A]n administrative remedy is considered unavailable for PLRA purposes when a

5 prisoner has been ‘reliably informed’ that the remedy is ‘not available to him.’”) (quoting

6 Albino, 747 F.3d at 1173). The Court finds Thomas “carried his burden to come forward

7 with sufficient evidence that, if unrebutted, ‘show[s] that there is something in his

8 particular case that made the existing and generally available administrative remedies

9 effectively unavailable to him.’” Strizich, 2024 WL 3493294, at *2; cf. Draper v. Rosario,

10 836 F.3d 1072, 1080 (9th Cir. 2016) (finding inmate plaintiff did not meet his burden when

11 he “did not identify any actions that prison staff took that impeded his ability to exhaust

12 his administrative remedies, nor did he otherwise explain why he failed to comply with the

13 administrative process”).11

14 Neither Aguilar’s opposition nor his two replies submit evidence disputing

15 Thomas’s declaration asserting the 602-2 appeal requirement was suspended during the

16 COVID-19 emergency. See Dkt. No. 48 at 5–7, Dkt. No 52 at 2. Instead, Aguilar repeats

17 the regulations. Dkt. No. 48 at 7.

18 Aguilar, therefore, has failed to carry his “ultimate burden” of proving Thomas failed

19 to exhaust an “available” administrative remedy. Albino, 747 F.3d at 1172, 1177; see also

20 Williams, 775 F.3d at 1192 (“defendants may not simply rely on the existence of an

21 administrative review process to overcome a prisoner’s showing that administrative

22 remedies were not available to him”). Thomas’s evidence establishing he exhausted all

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11 In one reply, Aguilar argues Thomas “provides no evidence to support his [COVID-19]

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allegation . . . .” Dkt. No. 48 at 6–7. Thomas’s opposition, however, contains a declaration

25 made under penalty of perjury (Dkt. No. 46), and declarations are a form of evidence courts

consider on summary judgment. Ammar Harris, Plaintiff v. F. Dreesen, et al., Defendants,

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No. 2:22-CV-01231-JAD-EJY, 2024 WL 3620830, at *1 (D. Nev. Aug. 1, 2024) (“On a

27 motion for summary judgment, a court must treat an affidavit by an individual with

personal knowledge as a fact that is genuinely disputed.”) (citation omitted).

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1 available remedies is undisputed. The Court, therefore, finds that Thomas has exhausted

2 his administrative remedies.12

3 B. Eighth Amendment

4 Aguilar also argues he is entitled to summary judgment because Thomas’s “broken

5 toilet does not rise to the level of an unconstitutional deprivation,” and Aguilar “did not

6 disregard any risk to [Thomas]’s safety.” Dkt. No. 38-2 at 6, 12–17. Thomas opposes and

7 cross-moves for summary judgment, arguing a broken toilet “filled with feces and urin (sic)

8 for 17 days” is an Eighth Amendment violation. Dkt. No. 51 at 1.13

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12 Aguilar also unpersuasively argues Thomas failed to exhaust his claim because Thomas

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failed to name Aguilar in his 602-1 grievance. CDCR Regulations require the claimant’s

11 grievance to “describe all information known and available to the claimant regarding the

claim, including key dates and times, names and titles of all involved staff members (or a

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description of those staff members), and names and titles of all witnesses, to the best of the

13 claimant’s knowledge[.]” Cal. Code Regs. tit. 15, § 3482(c)(2). Although Thomas’s

grievance does not identify Aguilar (or any other officer) by name, it does state Thomas

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“talk[ed] to 2nd and 3rd watch officers about my [plumbing] problem[s].” Dkt. No. 38-5

15 at 7. It also is undisputed that Aguilar worked the third watch (during the relevant period).

Dkt. No. 51-1 at 5. Therefore, the reference to notifying second and third watch staff about

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the broken toilet placed prison officials on notice of the alleged deprivation and the

17 opportunity to resolve it. See Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (“The

grievance process is only required to ‘alert prison officials to a problem, not to provide

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personal notice to a particular official that he may be sued.’”) (quoting Jones v. Bock, 549

19 U.S. 199, 219 (2007)). Moreover, by granting Thomas’s claim and substantively deciding

Thomas’s grievance, prison officials ignored any alleged procedural defect. See id. at 658

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(“[W]e hold that a prisoner exhausts ‘such administrative remedies as are available,’ under

21 the PLRA despite failing to comply with a procedural rule if prison officials ignore the

procedural problem and render a decision on the merits of the grievance at each available

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step of the administrative process.”) (quoting 42 U.S.C. § 1997e(a)).

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13 Thomas’s cross-motion also argues a Fourteenth Amendment violation. Dkt. No. 51 at

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1. The operative complaint in this case, however, alleges only an Eighth Amendment claim.

25 Dkt. No. 5. The Court, therefore, evaluates Thomas’s claim under the Eighth Amendment.

See Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016) (“Inmates who

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sue prison officials for injuries suffered while in custody may do so under the Eighth

27 Amendment’s Cruel and Unusual Punishment Clause or, if not yet convicted, under the

Fourteenth Amendment’s Due Process Clause.”) (citation omitted).

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1 The Eighth Amendment is violated by “wanton and unnecessary infliction of pain.”

2 Rhodes v. Chapman, 452 U.S. 337, 347 (1981). To prevail on an Eighth Amendment

3 conditions of confinement claim, the plaintiff must show (1) “the deprivation was

4 ‘sufficiently serious’ to form the basis for an Eighth Amendment violation[,]” and (2) “the

5 prison official acted ‘with a sufficiently culpable state of mind.’” Johnson v. Lewis, 217

6 F.3d 726, 731 (9th Cir. 2000) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The

7 first element is an objective test, and the second element requires a subjective analysis.

8 Farmer v. Brennan, 511 U.S. 825, 834 (1994).

9 The Court finds Thomas’s allegations satisfy neither the objective nor the subjective

10 element.

11 1. Objective Element

12 The objective element requires the plaintiff “to objectively show that he was

13 deprived of something ‘sufficiently serious.’” Foster v. Runnels, 554 F.3d 807, 812 (9th

14 Cir. 2009) (quoting Farmer, 511 U.S. at 834). “A deprivation is sufficiently serious when

15 the prison official’s act or omission results ‘in the denial of the minimal civilized measure

16 of life’s necessities.’” Id. (quoting Farmer, 511 U.S. at 834).

17 Prison conditions may be restrictive and harsh, but officials have the duty to provide

18 prisoners with “humane conditions of confinement.” Farmer, 511 U.S. at 832; see also

19 Johnson, 217 F.3d at 731 (“Prison officials have a duty to ensure that prisoners are provided

20 adequate shelter, food, clothing, sanitation, medical care, and personal safety.”) (citation

21 omitted). The Court must evaluate the “circumstances, nature, and duration” of the

22 deprivation. Johnson, 217 F.3d at 731. “[E]xtreme deprivations are required to make out a

23 conditions-of-confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).

24 Although “toilets can be unavailable for some period of time without violating the

25 Eighth Amendment,” Johnson, 217 F.3d at 733, “subjection of a prisoner to lack of

26 sanitation that is severe or prolonged can constitute an infliction of pain within the meaning

27 of the Eighth Amendment.” Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir.

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1 1995) (citations omitted); see also Hoptowit v. Ray, 682 F.2d 1287, 1259 (9th Cir. 1982)

2 (“The more basic the particular need, the shorter time it can be withheld.”).

3 In his deposition, Thomas testified the toilet in his cell started having problems on

4 December 18, 2021, when it required multiple flushes to clear. Dkt. No. 38-3 at 32, 51.

5 This condition does not implicate the Eighth Amendment, as Thomas acknowledges. Id. at

6 51 (“Honestly, . . . I’m okay with that.”).

7 Thomas testified his toilet stopped flushing altogether on December 27th. Id. at 34.

8 Thomas testified he informed Aguilar about the broken toilet the next day, December 28th.

9 Id. at 35. Aguilar placed a work order to repair Thomas’s toilet on January 4, 2022. Dkt.

10 No. 51-1 at 10. Although Thomas’s toilet was not repaired until January 11th or 12th (Dkt.

11 No. 38-3 at 36; Dkt. No. 38-5 at 10), any culpable inaction by Aguilar ended when he

12 submitted a work order on January 4th. In evaluating Aguilar’s personal Eighth

13 Amendment liability, therefore, the Court evaluates whether Thomas suffered an

14 objectively “extreme deprivation” during the seven-day period between December 28th

15 and January 4th. Farmer, 511 U.S. at 844 (prison officials are not liable “if they responded

16 reasonably to the risk, even if the harm ultimately was not averted”).

17 Thomas “found other places to use the rest room” until the toilet in his cell was fixed.

18 Dkt. No. 46 at 8. These other facilities included a toilet in the yard (where Thomas spent

19 two hours per day but did not use the toilet there to defecate because of safety concerns)

20 (Dkt. No. 38-3 at 55–56, 62, 64), a urinal in the day room (where Thomas spent two hours

21 per day) (id. at 57, 62, 64), and the toilets in the chapel, library, and medical unit (id. at 55,

22 58–59). Thomas also worked seven-and-a-half-hour shifts outside his cell as a “porter and

23 an ADA worker.” Id. at 64–65, 67.

24 Regarding the conditions in his cell, Thomas’s primary complaint concerns a foul

25 odor that emanated from the clogged cell toilet. Dkt. No. 38-3 at 36, 46. As a result, Thomas

26 claims he ate less (because he had to eat meals in his cell), had difficulty sleeping, and

27 developed headaches he treated with Advil. Id. at 53–54, 61, 63–64, 87. Thomas also

28 testified he urinated in a cup and poured the urine into the sink, removed his solid waste in

1 a bag, and cleaned his feces from the cell floor when another inmate’s suggestion to pour

2 a bucket of water into the toilet backfired. Id. at 55–56.

3 Although Thomas suspects the odor may have exacerbated his breathing difficulties

4 from a prior case of COVID-19, id. at 60, he denies any physical injury. Id. at 88 (Q: “[D]id

5 you ever get any medical treatment from a medical professional . . . based on the broken

6 toilet?” A: “No. Because . . . it’s not really a physical injury.”). Instead, the main injury

7 Thomas claims is emotional, including fear of future medical problems. Id. at 85, 88–89.

8 Although the conditions Thomas endured were undoubtedly inconvenient and

9 unpleasant, they were not objectively “extreme deprivations”, Hudson, 503 U.S. at 9, that

10 “pos[ed] a substantial risk of serious harm” or “an excessive risk to [his] health and safety.”

11 Farmer, 511 U.S. at 834, 837. Thomas: (1) was the only one in his cell; (2) was outside

12 his cell for eleven and a half hours per day; (3) had access to and used other prison

13 bathroom facilities; and (4) suffered no physical injuries. The Court, therefore, finds the

14 facts of this case do not meet the objective element of the Eighth Amendment.

15 2. Subjective Element

16 The Court also finds the facts here do not satisfy the subjective element of the Eighth

17 Amendment, which requires a plaintiff to establish the prison official inflicted the

18 deprivation with a “sufficiently culpable state of mind,” that is, with “‘deliberate

19 indifference’ to [the plaintiff’s] health or safety.” Farmer, 511 U.S. at 834 (quoting Wilson

20 v. Seiter, 501 U.S. 294, 297 (1991)); see also Clem v. Lomeli, 566 F.3d 1177, 1182 (9th

21 Cir. 2009) (“It is well settled that ‘[d]eliberate indifference occurs when [an] official acted

22 or failed to act despite his knowledge of a substantial risk of serious harm.’”) (quoting

23 Solis v. Cnty. of Los Angeles, 514 F.3d 946, 957 (9th Cir. 2008)). “Whether an official

24 possessed such knowledge ‘is a question of fact subject to demonstration in the usual ways,

25 including inference from circumstantial evidence . . . .’” Johnson, 217 F.3d at 734 (quoting

26 Farmer, 511 U.S. at 842).

27 Although Aguilar declares he first learned Thomas’s toilet had stopped flushing on

28 January 4, 2022 (i.e., the same day he submitted a work order), Dkt. No. 38-4 at 1–2, the

1 Court assumes the truth of Thomas’s testimony for summary judgment purposes.

2 Anderson, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all

3 justifiable inferences are to be drawn in his favor.”) (citation omitted). According to

4 Thomas, he first informed Aguilar his toilet would not flush on December 28, 2021. Dkt.

5 No. 38-3 at 35. Thomas complained to Aguilar again on January 1, 2022, and January 4,

6 2022. Id. at 36, 71.

7 Thomas also complained to multiple other officers and a plumber during this same

8 timeframe. Id. at 42 (third watch officer informed on December 27th); id. at 44 (second

9 watch officer informed on December 28th); id. at 46 (plumber informed sometime before

10 January 1st); id. at 45 (second watch officer informed on January 1st); id. at 46–47

11 (complained daily to first and second watch officers after January 1st). Yet it was Aguilar

12 (and not the others) who ultimately placed the work order to repair Thomas’s toilet on

13 January 4th. Dkt. No. 51-1 at 10.

14 Thomas does not allege he informed Aguilar of the more extreme unpleasantries he

15 experienced (e.g., urinating in a cup and disposing of his waste in a bag). Instead, Thomas

16 only alleges he informed Aguilar that his toilet had feces in it and his cell smelled “like a

17 porta pottie,” causing headaches and difficulty sleeping. Dkt. No. 38-3 at 36; Dkt. No. 46

18 at 24. This is insufficient to place Aguilar on notice of “an excessive risk to [Thomas’s]

19 health or safety.” Farmer, 511 U.S. at 837.

20 Based on the surrounding circumstances and having observed Aguilar’s demeanor,

21 Thomas himself concluded Aguilar lacked a culpable state of mind. Instead, Thomas

22 concluded Aguilar “probably forgot” to place the work order when Thomas first reported

23 it on December 28th. Compare Dkt. No. 38-3 at 35 (“Well, Officer Aguilar told me he was

24 going to put a work order in, but he probably forgot. . . . [H]e ended up leaving for a period

25 of time. And, then, I don’t know if he went to another building or . . . took his vacation

26 days . . . but when I did see him again, he said that he’ll put the work order in.”) with

27 Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of mind more

28 blameworthy than negligence.”). The record establishes Aguilar was, in fact, off duty on

1 January 2nd and 3rd and did place the work order upon his return to duty on January 4th.

2 Dkt. No. 51-1 at 7, 10.

3 In sum, Thomas has presented insufficient evidence from which a jury could

4 conclude Aguilar knew of and deliberately disregarded an excessive risk to Thomas’s

5 health and safety. The subjective element, therefore, is not met. Farmer, 511 U.S. at 837

6 (“[A] prison official cannot be found liable under the Eighth Amendment for denying an

7 inmate humane conditions of confinement unless the official knows of and disregards an

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

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

10 must also draw the inference.”).

11 C. Qualified Immunity

12 Aguilar argues he is entitled to qualified immunity because he “acted reasonably by

13 immediately acting to have Plaintiff’s toilet fixed.” Dkt. No. 38-2 at 18. Aguilar further

14 argues “cases involving broken toilets where courts have found constitutional violations

15 are distinguishable from this case.” Id. at 19. The Court agrees and finds that, even if the

16 objective and subjective Eighth Amendment elements are met, Aguilar is entitled to

17 qualified immunity.

18 Qualified immunity shields government actors from civil liability under 42 U.S.C.

19 § 1983 unless “(1) they violated a federal statutory or constitutional right, and (2) the

20 unlawfulness of their conduct was ‘clearly established at the time.’” D.C. v. Wesby, 583

21 U.S. 48, 62–63 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “A right

22 is clearly established when it is ‘sufficiently clear that every reasonable official would have

23 understood that what he is doing violates that right.’” Rosenbaum v. City of San Jose, 107

24 F.4th 919, 924 (9th Cir. 2024) (quoting Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021)).

25 Government officials “are entitled to qualified immunity unless existing precedent

26 ‘squarely governs’ the specific facts at issue.” Id. (quoting Kisela v. Hughes, 584 U.S. 100,

27 104 (2018)). “This inquiry ‘must be undertaken in light of the specific context of the case,

28 not as a broad general proposition.’” Rivas-Villegas, 595 U.S. at 5 (quoting Brosseau v.

1 Haugen, 543 U.S. 194, 198 (2004)). “Although there need not be a Supreme Court or circuit

2 case directly on point, ‘existing precedent must have placed the statutory or constitutional

3 question beyond debate.’” Id. (quoting White v. Pauly, 580 U.S. 73, 79 (2017)).

4 The Supreme Court also recognizes “officials can be on notice that their conduct

5 violates established law even in novel factual situations.” Hope v. Pelzer, 536 U.S. 730,

6 741 (2002). “[A] general constitutional rule already identified in the decisional law may

7 apply with obvious clarity to the specific conduct in question, even though ‘the very action

8 in question has [not] previously been held unlawful.’” Id. (quoting Anderson v. Creighton,

9 483 U.S. 635, 640 (1987)).

10 No precedent clearly establishes the Eighth Amendment is violated under the facts

11 Thomas alleges here. To the contrary, the Supreme Court and Ninth Circuit cases finding

12 an Eighth Amendment violation for unsanitary conditions of confinement (1) involve

13 deprivations significantly more egregious than those Thomas alleges here, and (2) involve

14 depraved conditions wantonly and unnecessarily inflicted by the jailers. See Taylor v.

15 Riojas, 592 U.S. 7, 7–8 (2020) (Plaintiff was held in “shockingly unsanitary cells” over a

16 six-day period; the first “was covered, nearly floor to ceiling, in ‘massive amounts’ of

17 feces: all over the floor, the ceiling, the window, the walls, and even ‘packed inside the

18 water faucet.’”; the defendant officers then moved plaintiff to “a second, frigidly cold cell,

19 which was equipped with only a clogged drain in the floor to dispose of bodily wastes.

20 [Plaintiff] held his bladder for over 24 hours, but he eventually (and involuntarily) relieved

21 himself, causing the drain to overflow and raw sewage to spill across the floor. Because

22 the cell lacked a bunk, and because [plaintiff] was confined without clothing, he was left

23 to sleep naked in sewage.”) (citation omitted); Hope, 536 U.S. at 738 (defendant officers

24 “handcuffed [Plaintiff] to [a] hitching post” and “knowingly subjected him to a substantial

25 risk of physical harm, to unnecessary pain caused by the handcuffs and the restricted

26 position of confinement for a 7–hour period, to unnecessary exposure to the heat of the

27 sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created

28 a risk of particular discomfort and humiliation”); Johnson, 217 F.3d at 732 (Defendant

1 officers “forced [plaintiffs] to lie on the ground [in 22 degree weather] in whatever clothing

2 they had been wearing . . . . When [plaintiffs] needed to urinate, the guards allowed them

3 to get to their knees, crawl a few feet from where they lay, and relieve themselves on the

4 ground. Because of their close proximity to each other, inmates sometimes urinated on

5 their neighbors; even when they did not, the urine sometimes pooled and ran onto other

6 inmates.” Thereafter, the defendant officers provided “inedible food and inadequate

7 drinking water for four days;” failed to provide “adequate access to toilets [for plaintiffs]

8 to avoid soiling themselves;” and prohibited plaintiffs from “clean[ing] themselves

9 thereafter.”).

10 The contrast between the facts of this case and those cited above also confirm

11 Aguilar did not violate any general constitutional rule that applies with “obvious clarity to

12 the specific conduct in question.” Hope, 536 U.S. at 741. To the contrary, the general

13 constitutional principles (i.e., “extreme deprivations,” Hudson, 503 U.S. at 9, and a

14 “wanton and unnecessary infliction of pain,” Rhodes, 452 U.S. at 347) do not exist here.

15 In sum, no controlling authority and no general constitutional rule that applies with

16 obvious clarity establishes a correctional officer like Aguilar (who has no alleged

17 maintenance duties, no authority to assign or move cells, and no general supervisory

18 responsibilities) is constitutionally and personally liable under the facts alleged here.

19 Aguilar, therefore, is entitled to qualified immunity.

20 IV. CONCLUSION

21 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue

22 an Order: (1) approving and adopting this Report and Recommendation; (2) granting

23 Defendant’s Motion for Summary Judgment (Dkt. No. 38); and (3) denying Plaintiff’s

24 Motion for Summary Judgment (Dkt. No. 51).

25 IT IS ORDERED that no later than August 26, 2024, any party to this action may

26 file written objections with the Court and serve a copy on all parties. The document should

27 be captioned “Objections to Report and Recommendation.”

28

1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with

2 || the Court and served on all parties by September 3, 2024.

3 The parties are advised that failure to file objections within the specified time may

4 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan,

5 || 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991).

6 IT IS SO ORDERED.

7 || Dated: August 12, 2024. a aon

9 United States Magistrate Judge

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