# Thomas v. Aguilar

> District Court, S.D. California · August 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10640375

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10640375

## How later opinions describe it (automated extraction)

- 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”
- holding an affidavit contradicting earlier deposition testimony could not be used to create an issue of fact and avoid summary judgment

## Opinion text

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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
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
16

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.
20
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).
22

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
24
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
26
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
23
11 In one reply, Aguilar argues Thomas “provides no evidence to support his [COVID-19]
24
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,
26
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).
28
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
9
12 Aguilar also unpersuasively argues Thomas failed to exhaust his claim because Thomas
10
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
12
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
14
“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
16
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
18
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
20
(“[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
22
step of the administrative process.”) (quoting 42 U.S.C. § 1997e(a)).
23
13 Thomas’s cross-motion also argues a Fourteenth Amendment violation. Dkt. No. 51 at
24
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
26
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).
28
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.
28
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10640375. Public record. Not legal advice.