Foster v. Runnels

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD P. FOSTER,  No. 06-15719

Plaintiff-Appellant,

v.  D.C. No.

CV-03-01113-DFL

D.L. RUNNELS,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of California

David F. Levi, District Judge, Presiding

Submitted December 12, 2008*

San Francisco, California

Filed February 5, 2009

Before: Robert E. Cowen,** Sidney R. Thomas and

Richard A. Paez, Circuit Judges.

Opinion by Judge Cowen

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

**The Honorable Robert E. Cowen, Senior United States Circuit Judge

for the Third Circuit, sitting by designation.

1321

1324 FOSTER v. RUNNELS

COUNSEL

Megan R. O’Carroll, Esq., and Constance L. Picciano, Esq.,

Office of the California Attorney General, Sacramento, Cali-

fornia, for the appellee.

Ronald P. Foster, SVSP, Salinas Valley State Prison, Soledad,

California, for the appellant, pro se.

OPINION

COWEN, Circuit Judge:

Ronald Foster, pro se, appeals the order of the District

Court for the Eastern District of California granting summary

judgment to Defendant Sandra Cole on Foster’s 42 U.S.C.

§ 1983 claim. Foster claims that his Eighth Amendment right

to be free from cruel and unusual punishment was violated

when Cole deprived him of 16 meals over a 23 day period.

The District Court granted summary judgment on the grounds

that Cole was entitled to qualified immunity because the con-

stitutional right was not clearly established at the time of the

alleged violation such that it would have been clear to a rea-

sonable officer that her conduct was unlawful.

For the reasons set forth below, we conclude that Cole is

not entitled to qualified immunity. On the basis of the evi-

dence presented, a jury could find that Foster suffered a suffi-

ciently serious deprivation and that Cole was deliberately

indifferent to the obvious risk of harm. In addition, it is

clearly established under the Eighth Amendment that prison

FOSTER v. RUNNELS 1325

officials are obligated to provide inmates with nutritionally

adequate meals on a regular basis. Consequently summary

judgment on Foster’s § 1983 claim is inappropriate. The Dis-

trict Court’s order will be reversed and the case remanded for

further proceedings.

I.

During the summer of 2001, while Foster was an inmate at

the High Desert State Prison (“HDSP”) in Susanville, Califor-

nia, there was a rash of inmate assaults on prison staff in

Facility C where Foster was housed. A number of the inci-

dents occurred as prison staff attempted to handcuff inmates

through the food/cuff port in the cell doors. Several handmade

weapons were also confiscated from inmates’ cells. None of

these incidents were attributed to Foster.

As a result of these incidents, Facility C was on lockdown.

When the HDSP is on lockdown, inmates are not permitted to

leave their cells, even for meals. Prison staff is responsible for

distributing meals to the inmates in their cells. The food is

received through the food/cuff ports in the cell doors.

In February 2001, HDSP Warden R. L. Runnels issued a

memorandum to prison staff in an attempt to crack down on

inmates displaying pornography in their cells. Warden Run-

nels had observed that in violation of prison security policy,

inmates were covering with paper the windows that allowed

prison staff to look into their cells. The memo stated that the

cell windows, which ensure the safety and security of prison

staff, as well as the inmates, could not be covered at any time.

On July 27, 2001, the sergeants and lieutenants in Facility

C issued a memo regarding the obstruction of the windows in

inmates’ cells in light of the recent incidents on the ward. The

memo stated that before the food/cuff port could be opened,

the bright light in the inmate’s cell must be turned on and any-

thing covering the front or rear windows of the cell must be

1326 FOSTER v. RUNNELS

removed. Any inmate who failed to comply with these rules

forfeited participation in the current activity, including receiv-

ing food at meal times.

Corrections Officer Sandra Cole was frequently responsible

for distributing meals to the inmates while Facility C was on

lockdown. On July 21, July 28, and one other occasion in July

or August, Cole did not provide Foster with either breakfast

or lunch. Foster maintains that Cole also denied him breakfast

and lunch on July 22, July 29, August 4, August 5, August 11,

and August 12.

Cole maintains that on each occasion, the windows of Fos-

ter’s cell were covered with paper. She maintains that she

instructed Foster to remove the paper from the windows, but

that Foster refused to comply. Cole claims that she was

unable to see into Foster’s cell well enough to safely open the

food/cuff port. Foster, however, maintains that there was only

paper in the back window of his cell. Foster alleges that Cole

could see into his cell and that she could have safely fed him.

No other guard required Foster to remove the paper from his

window nor refused to feed him on account of its presence.

On September 12, 2001, Warden Runnels issued a staff

memo regarding the feeding of inmates whose windows were

covered during a lockdown. The memo was intended to cor-

rect the actions of prison staff who had “taken it upon them-

selves to not feed inmates based upon the belief that any type

of window covering presents a security risk.” (ER 185.) The

warden did not expect staff to open the food/cuff port when

inmates did not have the bright light on, the front windows

were covered, or the staff member “feels that there is a sub-

stantial risk to safety.” Id. However, the warden instructed

that prison staff was not to construe the memo as “permission

to not feed the inmates.” Id. Rather, the memo instructed that

when a staff member determined that there was a substantial

risk to safety, the inmate should be instructed to remove any

covering from the window or turn on the cell lights. If the

FOSTER v. RUNNELS 1327

inmate refused to comply, the staff member should continue

feeding the rest of the inmates and then immediately notify a

supervisor. The supervisor was required to evaluate the situa-

tion and take the necessary action to ensure that inmates were

fed. The warden stressed that “inmates ARE to be fed when

it is safe to do so”; security concerns could only temporarily

suspend the feeding of an inmate. (ER 186.)

Foster maintains that even after Warden Runnels’ memo,

Cole refused to feed him on October 31, 2002, and then again

on January 2, 2003. Foster maintains that he lost 15 lbs. in

July and August of 2001. Foster’s testimony and medical

records, however, suggest that he may have actually lost 13

lbs. between June 2001 and October 2001.

On May 19, 2003, Foster filed a complaint in the District

Court for the Eastern District of California alleging violations

of his Eighth Amendment rights under 42 U.S.C. § 1983. In

an Amended Complaint, Foster alleged that Warden Runnels

and Corrections Officer Cole violated his Eighth Amendment

rights by denying him food and showers as punishment for his

failure to remove paper from his cell windows. Runnels and

Cole moved for summary judgment.

A Magistrate Judge recommended that summary judgment

be granted in favor of Warden Runnels as he had no involve-

ment in Cole’s decisions to withhold Foster’s meals. The

Magistrate Judge also recommended that summary judgment

be granted in favor of Cole on Foster’s denial of showers

claim because no Eighth Amendment violation had been

established. Finally, the Magistrate Judge found that Foster

had established an Eighth Amendment violation on his denial

of meals claim and that Cole was not entitled to qualified

immunity.

The District Court accepted the Magistrate Judge’s recom-

mendations as to Warden Runnels and Foster’s denial of

shower claim. The District Court however found that Cole

1328 FOSTER v. RUNNELS

was entitled to qualified immunity because the constitutional

right in question was not clearly established. Foster has only

appealed the District Court’s finding that Cole is entitled to

qualified immunity.

II.

This court has jurisdiction pursuant to 28 U.S.C. § 1291

and we review de novo a district court’s decision to grant

summary judgment based on qualified immunity. Galen v.

County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007).

Viewing the evidence in the light most favorable to the non-

moving party, we determine whether there are any genuine

issues of material fact that must be resolved at trial, and

whether the district court correctly applied the relevant sub-

stantive law. Pardi v. Kaiser Found. Hosps., 389 F.3d 840,

848 (9th Cir. 2004). Summary judgment may be affirmed on

any ground supported by the record, even if not relied upon

by the District Court. Id.

Foster argues that the District Court erred in concluding

that Cole was entitled to qualified immunity. Qualified immu-

nity is “an entitlement not to stand trial or face the other bur-

dens of litigation,” which, in certain circumstances, shields

government officials from civil liability for actions taken in

the course of their duties. Mitchell v. Forsyth, 472 U.S. 511,

526 (1985). For an official to be immune from suit, the court

must find that the official’s conduct has not violated any

“clearly established” constitutional right “of which a reason-

able person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).

The qualified immunity analysis breaks down into a two-

part inquiry. The threshold question is whether the alleged

facts show that the official’s conduct violated a constitutional

right. Saucier v. Katz, 533 U.S. 194, 201 (2001). “If no consti-

tutional right would have been violated were the allegations

established, there is no necessity for further inquiries concern-

FOSTER v. RUNNELS 1329

ing qualified immunity.” Id. If, however, the allegations

establish that a constitutional right has been violated, the next

question is whether the violated right was “clearly estab-

lished.” Id. This inquiry “must be undertaken in light of the

specific context of the case,” and not as a “broad general

proposition.” Id.

A. Violation of a Constitutional Right

[1] Foster maintains that Cole violated his Eighth Amend-

ment right to be free from cruel and unusual punishment by

denying him meals when Facility C was on lockdown because

he would not remove paper that was covering the rear window

of his cell. The Eighth Amendment’s prohibition against cruel

and unusual punishment imposes duties on prison officials to

“provide humane conditions of confinement.” Farmer v.

Brennan, 511 U.S. 825, 832 (1994). “[P]rison officials must

ensure that inmates receive adequate food, clothing, shelter,

and medical care.” Id.

[2] Establishing a violation of the Eighth Amendment

requires a two-part showing. First, an inmate must objectively

show that he was deprived of something “sufficiently seri-

ous.” Farmer, 511 U.S. at 834. A deprivation is sufficiently

serious when the prison official’s act or omission results “in

the denial of ‘the minimal civilized measure of life’s necessi-

ties.’ ” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347

(1981)). The inmate must then make a subjective showing that

the deprivation occurred with deliberate indifference to the

inmate’s health or safety. Id. (citing Wilson v. Seiter, 501 U.S.

294, 302-03 (1991)).

(1) Sufficiently Serious Deprivation

[3] The deprivation that Foster alleges is the repeated

denial of meals over a 23-day period in July and August,

2001. It is undisputed that between July 21 and August 12,

Cole did not serve Foster breakfast or lunch on three occa-

1330 FOSTER v. RUNNELS

sions and Foster alleges that he was denied breakfast and

lunch on at least five other days. In total, Foster claims that

he was denied 16 meals in 23 days.1 This is a sufficiently seri-

ous deprivation because food is one of life’s basic necessities.

Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996)

(“Adequate food is a basic human need protected by the

Eighth Amendment.”).2

Relying on Rodriguez v. Briley, 403 F.3d 952 (7th Cir.

2005) and Talib v. Gilley, 138 F.3d 211 (5th Cir. 1998), Cole

argues that the denial of meals is not a serious deprivation

within the meaning of the Eighth Amendment if the denials

are a result of the inmate’s personal choice not to comply with

simple prerequisites to obtaining meals. Cole asserts that

when an inmate refuses to comply with simple instructions, he

effectively controls his ability to receive the meal. Because

the inmate is in control, according to Cole, the Eighth Amend-

ment is not implicated.

In Rodriguez, the Seventh Circuit found no Eighth Amend-

ment violation where an inmate was denied meals and show-

ers for refusing to comply with a prison rule. The rule

required inmates to store certain belongings in storage boxes

and forbade them from leaving their cells unless the items

1

Foster also claims to have been denied meals by Cole on October 31,

2002, and on January 2, 2003. These relatively isolated occurrences do not

appear to rise to the level of a constitutional violation.

2

Although food is a basic human need, the Eighth Amendment “requires

only that prisoners receive food that is adequate to maintain health.”

LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). The record con-

tains no evidence of the nutritional value of the prison meals or whether

one meal could provide Foster with sufficient calories and nutrients to sus-

tain him for an entire day. Foster alleges that he lost weight during the

period in which he was denied meals and that he suffered headaches and

dizziness as a result of inadequate nutrition. Because all inferences must

be drawn in Foster’s favor, it should be presumed that the meals Foster

was provided were inadequate to maintain health and that he has suffered

a cognizable harm under the Eighth Amendment.

FOSTER v. RUNNELS 1331

were in the boxes. 403 F.3d at 952. Because the inmate

refused to put his belongings in his storage box, he was not

permitted to leave his cell for meals or showers. The Seventh

Circuit held that “deliberate noncompliance with a valid rule

does not convert the consequences that flow automatically

from that noncompliance into punishment.” Id. at 952-53.

Rather than being unjustly punished by the prison, the Sev-

enth Circuit found that the inmate “punished himself” by fail-

ing to comply with a reasonable condition, which resulted in

the inmate missing out on meals and showers. Id. at 953.

Similarly in Talib, the Fifth Circuit found no Eighth

Amendment violation where an inmate was denied meals

because he refused to comply with in-cell feeding measures.

Prison regulations required inmates to kneel facing the wall

with their hands behind their backs when meals were served

in the inmates’ cells during a lockdown. 138 F.3d at 214. The

inmate was denied approximately fifty meals over a span of

five months because he would not assume the proper position.

Id. at 212. The Fifth Circuit concluded that the prison policy

was “reasonably related” to the prison officials’ “legitimate

penological interest” in having the inmates assume a non-

threatening position during in-cell feeding. Id. at 214. The

prison guard responsible for serving the meals was justified in

requiring the inmate to assume the mandated position; the

inmate chose not to comply and consequently chose to forfeit

his meals. Id. at 215-16. As this was the inmate’s “personal

decision,” no violation of the Eighth Amendment had been

established. Id. at 216.

[4] However, in both Rodriguez and Talib, it was uncon-

tested that the inmates had violated an established prison pol-

icy. In this case, although there is no doubt that the HDSP had

an institutional policy prohibiting inmates from covering their

cell windows or that requiring an unobstructed view into an

inmate’s cell serves a legitimate penological interest, Foster

has presented evidence that his conduct did not interfere with

staff safety during in-cell feeding. Foster admits that his back

1332 FOSTER v. RUNNELS

window was covered, but he claims that nothing obstructed

the view into his cell through the front window.3 Although

there may be “a difference between using food deprivation as

a punishment and establishing a reasonable condition to the

receipt of food,” Freeman v. Berge, 441 F.3d 543, 545 (7th

Cir. 2006), Cole has not established how removing the paper

from the rear window of a cell is a reasonable condition on

the receipt of food. Nor has she explained how Foster’s fail-

ure to remove the paper from his cell’s back window jeopar-

dized her safety or security during in-cell feeding.4 Drawing

the factual inferences in Foster’s favor, Cole’s denial of food

can constitute an unjustified and unnecessarily punitive

response to a rules violation.

[5] The sustained deprivation of food can be cruel and

unusual punishment when it results in pain without any peno-

logical purpose. Phelps v. Kapnolas, 308 F.3d 180, 187 (2d

Cir. 2002). In the same way that an inmate relies on prison

officials to provide appropriate medical care, see Estelle v.

Gamble, 429 U.S. 97 (1976), and protection from assaults by

other inmates, see Farmer v. Brennan, 511 U.S. 825 (1994),

inmates rely on prison officials to provide them with adequate

sustenance on a daily basis. The repeated and unjustified fail-

ure to do so amounts to a serious depravation.

(2) Deliberate Indifference

[6] To establish a prison official’s deliberate indifference,

an inmate must show that the official was aware of a risk to

the inmate’s health or safety and that the official deliberately

3

Foster’s own statement that his front window was not covered is sup-

ported by the written declarations of two other inmates.

4

The record contains no information on the layout and configuration of

the cells in Facility C. A more detailed description of the cells may explain

why it was necessary that both the front and back windows be uncovered

in order for prison staff to safely open the food/cuff port. However, on the

current record, there is no obvious penological interest in having a cell’s

back window free from obstruction.

FOSTER v. RUNNELS 1333

disregarded the risk. Johnson v. Lewis, 217 F.3d 726, 734 (9th

Cir. 2000). Although an inmate is required to show awareness

of the risk, “a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was

obvious.” Farmer, 511 U.S. at 842. “[I]f an inmate presents

evidence of very obvious and blatant circumstances indicating

that the prison official knew the risk existed, then it is proper

to infer that the official must have known [of the risk].” Sim-

mons v. Cook, 154 F.3d 805, 807 (8th Cir. 1998) (internal

quotation marks omitted).

[7] The risk that an inmate might suffer harm as a result of

the repeated denial of meals is obvious. On the basis of Fos-

ter’s evidence that Cole refused to provide him with meals on

numerous occasions and took no alternative measures to

ensure that he was fed, a jury could infer that Cole deliber-

ately disregarded Foster’s need for adequate nutrition. See

Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002). This

risk is “sufficiently obvious” to create a question of fact as to

whether Cole displayed deliberate indifference to a substantial

risk of harm. Reed v. McBride, 178 F.3d 849, 854 (7th Cir.

1999).

[8] Accordingly, Foster has established a violation of his

Eighth Amendment rights sufficient to withstand summary

judgment. He has presented evidence that would allow a jury

to conclude that with deliberate disregard for his health and

safety, Cole repeatedly deprived him of one of life’s basic

necessities, and thereby wantonly inflicted on him unneces-

sary pain and punishment.5

5

This conclusion, that the deliberate and unnecessary withholding of

food essential to maintain normal health can violate the Eighth Amend-

ment, is well supported by case law. See Phelps v. Kapnolas, 308 F.3d

180, 187 (2d Cir. 2002) (reversing dismissal of inmate’s Eighth Amend-

ment claim because inmate had alleged that his restricted diet was nutri-

tionally inadequate and was wantonly inflicting pain without penological

justification); Reed v. McBride, 178 F.3d 849, 853-56 (7th Cir. 1999)

1334 FOSTER v. RUNNELS

B. Clearly Established Right

[9] The District Court found that Cole was entitled to quali-

fied immunity because the Eighth Amendment right to ade-

quate food was not clearly established such that it would be

clear to a reasonable corrections officer that her conduct was

unlawful. A right is “clearly established” when its contours

are sufficiently defined, such that “a reasonable official would

understand that what he is doing violates that right.” Wilson

v. Layne, 526 U.S. 603, 615 (1999) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). If the law does not “put

the officer on notice that his conduct would be clearly unlaw-

ful, summary judgment based on qualified immunity is appro-

priate.” Saucier v. Katz, 533 U.S. 194, 202 (2001). If,

however, the court finds that a reasonable official would have

known that the alleged conduct was in violation of a clearly

established constitutional right, then immunity is forfeited.

[10] There is no question that an inmate’s Eighth Amend-

ment right to adequate food is clearly established. See Far-

(reversing grant of summary judgment on inmate’s Eighth Amendment

claim because the alleged deprivation of food was sufficiently serious and

prison officials’ deliberate indifference was obvious); Simmons v. Cook,

154 F.3d 805, 807-09 (8th Cir. 1998) (affirming Eighth Amendment viola-

tion where inmates were deprived of four consecutive meals); Robles v.

Coughlin, 725 F.2d 12, 16 (2d Cir. 1983) (finding that allegations of depri-

vation of meals and contaminated food were sufficient to withstand dis-

missal of inmate’s Eighth Amendment claim); Cunningham v. Jones, 567

F.2d 653, 660 (6th Cir. 1977) (remanding for consideration of whether one

meal per day was adequate or whether withholding two meals a day

deprived the inmate of food sufficient to maintain normal health); Dear-

man v. Woodson, 429 F.2 1288, 1290 (10th Cir. 1970) (reversing dismissal

of inmate’s Eighth Amendment claim because inmate’s allegations of sus-

tained food deprivation were sufficient to state a cause of action); Wil-

liams v. Coughlin, 875 F. Supp. 1004, 1015 (W.D.N.Y. 1995) (denying

summary judgment to prison officials on inmate’s Eighth Amendment

claim because withholding inmate’s food was a sufficiently serious depri-

vation); Moss v. Ward, 450 F. Supp. 591, 596-97 (W.D.N.Y. 1978) (find-

ing an Eighth Amendment violation where an inmate’s food was withheld

because inmate refused to return a cup in violation of prison rules).

FOSTER v. RUNNELS 1335

mer, 511 U.S. at 832; Keenan, 83 F.3d at 1091. A reasonable

corrections officer should know that when an inmate can be

fed without risk to the prison officer’s safety—as is assumed

to be the case here—the prison official cannot arbitrarily deny

an inmate his meals. See Cal. Code Regs. tit. 15, § 3050(a)(2)

(2000) (requiring that inmates “shall be provided three meals

a day, two of which shall be served hot”). A reasonable offi-

cer should know that to do so could violate the inmate’s

Eighth Amendment rights by imposing punishment without

penological justification.

Cole nevertheless argues that her actions were reasonable

and that because there is no Ninth Circuit authority on point,

she had no way of knowing that her conduct was unlawful.

These arguments are unavailing. “[T]he law may be clearly

established even if there is no case directly on point . . . . It

is enough if ‘in the light of pre-existing law the unlawfulness

is apparent.’ ” Inouye v. Kemna, 504 F.3d 705, 715 (9th Cir.

2007) (quoting Wilson, 526 U.S. at 615). See also Morgan v.

Morgensen, 465 F.3d 1041, 1046 (9th Cir. 2006) (finding an

inmate’s Eighth Amendment right to be clearly established

despite a split in authority among the circuits).

[11] The decisions from this Circuit and others alerting

prison officials of their obligations to provide inmates with

nutritionally adequate meals on a regular basis should have

given Cole sufficient notice of the contours of the Eighth

Amendment right. Cole cannot seek shelter in the reasonable-

ness of her actions on the basis of the July 27 memo outlining

the in-cell feeding policy for Facility C. See Cooper v. Sheriff,

929 F.2d 1078, 1083 (5th Cir. 1991) (“The mere existence of

. . . a regulation is not an automatic shield against a civil

rights suit.”). Indeed, the memo issued by the HDSP warden

on September 12 suggests that forfeiture of meals or an activ-

ity for failing to remove coverings from all windows was

never an official HDSP policy, but rather a measure temporar-

ily implemented in Facility C. Furthermore, Cole’s conduct

was not reasonable because she took no other action to ensure

1336 FOSTER v. RUNNELS

that her obligation to provide Foster with meals was met.

Consequently, she is not entitled to qualified immunity.

III.

[12] For the reasons set forth above, the order of the Dis-

trict Court granting summary judgment to Cole on the

grounds of qualified immunity is REVERSED and the case

REMANDED for further proceedings.