(PC) Walker v. Grether

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JOEVON VIYALE WALKER, Case No. 2:22-cv-0463-WBS-JDP (P)

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 K. GRETHER, et al.,

15 Defendants.

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17 Plaintiff Joevon Walker, a state prisoner proceeding pro se, brings this case alleging a

18 violation of his Eighth Amendment right to be free from cruel and unusual punishment. He

19 alleges that defendants D. Clifford, B. Fehr, and H. Martinez, correctional officers, conspired to

20 ensure that he would receive a food tray that was contaminated with a sharp object, resulting in

21 plaintiff inadvertently swallowing the object. Defendants move for summary judgment. I

22 recommend granting defendants’ motion.

23 Background

24 In his second amended complaint, plaintiff alleges that on April 22, 2018, he swallowed a

25 sharp object that had been hidden in his food. ECF No. 20 at 6-7. He alleges that defendants

26 knowingly contributed to plaintiff receiving the contaminated food tray containing the sharp

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1 object. Id. at 6. Plaintiff alleges that he has experienced pain and suffering and that the foreign

2 object is still in his body. Id. at 6; ECF No. 47 at 18.

3 At his deposition, plaintiff testified that each defendant was part of a conspiracy to ensure

4 that plaintiff received the particular tray of contaminated food. Specifically, he testified that he

5 observed the following actions: Martinez opened plaintiff’s cell door first, making plaintiff the

6 first person to choose a food tray; Fehr held one of two food carts away from plaintiff, leading

7 plaintiff to choose from the cart that contained the alleged contaminated tray; and Clifford sat

8 facing away from plaintiff after bring in the food cart, which plaintiff believed was an attempt to

9 hide his identity. ECF No. 42-7 at 26, 29, 36.

10 The undisputed facts reflect that defendants are not involved in food preparation, or in

11 supervising the food preparation process. ECF No. 47 at 18. Each defendant filed a declaration

12 attesting that inmates choose their own food trays, that defendants were unaware of any

13 tampering or sharp object at the time of the alleged incident, and that they only learned of this

14 grievance when this suit was filed. ECF No. 42-3 at 2 (defendant Fehr); ECF No. 42-4 at 2

15 (defendant Martinez); and ECF No. 42-5 at 8 (defendant Clifford). Plaintiff acknowledged in his

16 deposition that he selected his own tray, and that he did not know whether defendants had actual

17 knowledge of the alleged contamination. ECF No. 42-7 at 7-8, 10, 12. The undisputed evidence

18 shows that plaintiff has undergone multiple medical examinations since 2018, including X-rays,

19 CT scans, upper GI series, and an abdominal ultrasound, all of which either were negative for the

20 presence of a foreign object lodged inside of plaintiff or showed that plaintiff’s organs were

21 functioning normally, aside from the initial diagnosis in 2018 that plaintiff may have experienced

22 discomfort due to gastritis. ECF No. 42-7 at 34.

23 Legal Standard

24 A. Summary Judgment

25 Summary judgment is appropriate where there is “no genuine dispute as to any material

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

27 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine

28 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party,

1 while a fact is material if it “might affect the outcome of the suit under the governing law.”

2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computs., Inc., 818

3 F.2d 1422, 1436 (9th Cir. 1987).

4 Rule 56 allows a court to grant summary adjudication, also known as partial summary

5 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim.

6 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule

7 56 authorizes a summary adjudication that will often fall short of a final determination, even of a

8 single claim . . . .”) (internal quotation marks and citation omitted). The same standards apply to

9 both a motion for summary judgment and a motion for summary adjudication. See Fed. R. Civ.

10 P. 56(a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

11 Each party’s position must be supported by (1) citations to particular portions of materials

12 in the record, including but not limited to depositions, documents, declarations, or discovery; or

13 (2) argument showing either that the materials cited do not establish the presence or absence of a

14 genuine factual dispute or that the opposing party cannot produce admissible evidence to support

15 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider

16 materials in the record not cited by the parties, but it is not required to do so. See Fed. R. Civ. P.

17 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see

18 also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

19 “The moving party initially bears the burden of proving the absence of a genuine issue of

20 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the

21 moving party must either produce evidence negating an essential element of the nonmoving

22 party’s claim or defense or show that the nonmoving party does not have enough evidence of an

23 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins.

24 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this

25 initial burden, the burden then shifts to the non-moving party “to designate specific facts

26 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d

27 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than

28 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477

1 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material

2 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to

3 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec.

4 Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).

5 The court must apply standards consistent with Rule 56 to determine whether the moving

6 party has demonstrated there to be no genuine issue of material fact and that judgment is

7 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).

8 “[A] court ruling on a motion for summary judgment may not engage in credibility

9 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

10 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the

11 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party.

12 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc.,

13 198 F.3d 1130, 1134 (9th Cir. 2000).

14 B. Eighth Amendment

15 The Eighth Amendment prohibits cruel and unusual punishment, and “protects prisoners

16 not only from inhumane methods of punishment but also from inhumane conditions of

17 confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v.

18 Brennan, 511 U.S. 825, 847 (1981) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Prison

19 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

20 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

21 2000). However, “routine discomfort inherent in the prison setting” does not rise to the level of a

22 constitutional violation. Id. While conditions of confinement may be, and often are, restrictive

23 and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465

24 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted).

25 A prison official violates the Eighth Amendment only if two requirements are met: (1) the

26 deprivation alleged must be, objectively, sufficiently serious, and (2) the prison official possesses

27 a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. at 834. In prison-conditions

28 cases, the requisite state of mind to establish an Eighth Amendment violation is one of deliberate

1 indifference to inmate health or safety. Id. A prison official is deliberately indifferent if he

2 knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to

3 take reasonable steps to abate it. Id. at 837, 844. The official must both be aware of facts from

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

5 inference. Id. at 837. “If a prison official should have been aware of the risk, but was not, then

6 the official has not violated the Eighth Amendment, no matter how severe the risk.” Toguchi v.

7 Chung, 391 F.3d 1051, 1057 (9th Cir. 2004), quoting Gibson v. County of Washoe, Nevada, 290

8 F.3d 1175, 1188 (9th Cir. 2002).

9 Analysis

10 Plaintiff argues that defendants’ motion for summary judgment should be denied, listing

11 fourteen disputed facts. ECF No. 47 at 10. The fourteen identified issues pertain to: defendants’

12 actions on the day of the alleged incident, whether it was possible for defendants to “preplan

13 which tray will be taken by which inmate,” and whether Fehr was interviewed about the relevant

14 complaint and another one filed by plaintiff alleging contaminated food. Id. Defendants argue

15 that plaintiff has not met his burden to sustain an Eighth Amendment claim. ECF No. 42-1 at 6.

16 Specifically, they argue that plaintiff has failed to provide evidence to show that he swallowed a

17 foreign object, or that defendants caused him any injury, as is required to prove a claim for

18 deliberate indifference to his safety. Id. Additionally, defendants assert that they are entitled to

19 qualified immunity. Id.

20 The parties dispute the specific actions by defendants that would have contributed to the

21 alleged incident, the feasibility of the alleged conspiracy, and specifics of the investigations into

22 plaintiff’s complaints, but there is no genuine dispute whether plaintiff suffered harm.

23 Accordingly, summary judgment for defendants is appropriate.

24 To state a condition of confinement claim, plaintiff must demonstrate that defendants’

25 actions caused him injury. Farmer, 511 U.S. at 834. Plaintiff states that he experienced pain and

26 suffering due to a foreign object lodged in his body. ECF No. 20 at 6. However, the Ninth

27 Circuit has held that “uncorroborated and self-serving testimony,” without more, will not create a

28 “genuine issue” of material fact precluding summary judgment. See Villiarimo v. Aloha Island

1 Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). A “conclusory, self-serving affidavit, lacking

2 detailed facts and any supporting evidence, is insufficient to create a genuine issue of material

3 fact.” Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2010) (citation omitted). And

4 here, under Federal Rules of Evidence 701, plaintiff, a layperson, may not offer medical opinions

5 or conclusions based on his symptoms. Plaintiff’s presents his own opinion that there is a foreign

6 object lodged inside his abdomen and that he suffered injuries from swallowing that object; these

7 allegations are unsupported by any medical evidence. See Williams v. Rodriguez, 1:09-cv-01882-

8 LJO-GSA-PC, 2012 WL 2339742, at *7 (E.D. Cal. June 19, 2012) (finding prisoner’s “subjective

9 impression” that he suffered from arsenic poisoning, without medical diagnosis, insufficient to

10 support a condition of confinement claim). Indeed, the undisputed evidence shows that plaintiff

11 has undergone at least five medical examinations, including x-rays and CT scans, each of which

12 either did not find a foreign object inside plaintiff or did not find injuries caused by a foreign

13 object. ECF No. 42-7 at 34.

14 Plaintiff argues that the results of his multiple medical exams are “faulty” and that

15 diagnostic images, rather than the written reports from medical staff, will prove his injury. ECF

16 No. 47 at 16-17. As a layperson however, plaintiff is not trained and qualified to diagnose

17 medical conditions, assess medical test results, or decide the appropriate format for medical

18 diagnoses. Plaintiff is not a physician or medical expert and has alleged no facts showing that he

19 is otherwise qualified to opine on whether he suffered injuries from ingesting a foreign object.

20 Drake v. Kernan, No. 1:17-cv-01500-NO DJ-SAB (PC), 2024 WL 663649, at *13 (E.D. Cal. Feb.

21 16, 2024) (finding summary judgment for the defendant on prisoner’s food poisoning claim

22 where there was no indication the plaintiff was “qualified to opine on whether he suffered from a

23 food borne illness”); Van Buren v. Diaz, No. 1:13-cv-00516-MSJ (PC), 2013 WL 3773870, at *3

24 (E.D. Cal. July 17, 2013) (prisoner failed to state deliberate indifference claim where pleadings

25 did not reflect that the plaintiff was “trained and qualified to make such a diagnosis”).

26 Moreover, even if the court were to accept plaintiff’s account of injury, the record does

27 not reflect that this incident is significant enough to establish an Eighth Amendment claim.

28 Although the Eighth Amendment protects against cruel and unusual punishment, this does not

1 mean that federal courts can or should interfere whenever prisoners are inconvenienced or suffer

2 de minimis injuries. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). “‘The fact that

3 the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does

4 not amount to a constitutional deprivation.’” Id. (quoting Hamm v. DeKalb Cnty., 774 F.2d 1567,

5 1575 (11th Cir. 1985), cert. denied, 475 U.S. 1096 (1986)); see also Robinson v. Danberg, 673 F.

6 App’x 205, 213 (3d Cir. 2016) (finding prisoner’s condition of confinement claim alleging two

7 pieces of metal in his food did not “amount to a substantial deprivation, or anything more than

8 temporary distress”); Hawkins v. Marin Cnty. Jail Com’r, No. C 01-3288 SI (PR), 2002 WL

9 73227, at *1-2 (N.D. Cal. Jan. 15, 2002) (finding three instances of foreign objects in prisoner’s

10 food to be “simply de minimis inconveniences and not constitutional violations”). In sum,

11 plaintiff’s allegations fall short of the Eighth Amendment’s prohibition of “unnecessary and

12 wanton infliction of pain.” Morgan, 465 F.3d at 1045.

13 Because plaintiff has failed to carry his burden on whether he suffered any harm, the court

14 need and will not address defendants’ remaining arguments.

15 Accordingly, it is hereby RECOMMENDED that:

16 1. Defendants’ motion for summary judgment, ECF No. 42, be GRANTED.

17 2. Judgment be entered in defendants’ favor and against plaintiff.

18 3. The Clerk of Court be directed to close the case.

19 These findings and recommendations are submitted to the United States District Judge

20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of

21 service of these findings and recommendations, any party may file written objections with the

22 court and serve a copy on all parties. Any such document should be captioned “Objections to

23 Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed

24 within fourteen days of service of the objections. The parties are advised that failure to file

25 objections within the specified time may waive the right to appeal the District Court’s order. See

26 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

27 1991).

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> IT IS SO ORDERED.

3 ( | { Wine

Dated: _ February 11, 2025 Q_——_.

4 JEREMY D. PETERSON

5 UNITED STATES MAGISTRATE JUDGE

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