Appendix — Fields v. Wilbur

MELD

DMC 29 2010

Molly ©. Dwyer, Clerk

U.S. Court of Appeal:

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. O8%- 16598

Appeal from the United States District Court for the

Mastern District of California

Lawrence J. O'Neill, District Judge, Presiding

D.C. No. CV-03-06364-LJO-DLB

MEMORANDU M*

KEVIN BE. PRE LDS

Plaintiff - Appellant,

WILBUR: et al

Defendants - Appellee

Argued and Submitted December 9, 2009

San Francisco, California

Before: COWEN,** GRABER, AND BYBEE,

Circuit dudges.

Plaintiff! Kevin ke. Fields, a California’ state

prisoner, appeals from the entry of summary

judgment against him in his 42 U.S.C. § 1983 action

alleging that) prison officials of the California

Department of Corrections and Rehabilitation

(Defendants), violated his constitutional rights. On

de novo review, Dietrich ov. John Ascuaga’s Nupyet,

548% Fd $92, 896 (9th Cir. 2008), we affirm.

1. Plaintiff was required to exhaust all available

administrative remedies before filing this action in

federal court. 42 U.S.C. § 1997e(a); see also Booth v.

Churner, 532 U.S. 731, 738-39 (2001) (holding that

exhaustion of the administrative process 1s required

so long as there is a “possibility of some relief’). The

letter sent by the Inmate Appeals Branch to Plaintiff

on March 24, 20038, explicitly instructed Plaintiff to

contact the Appeals Coordinator if he disagreed with

the reyechion of his grievance appeal. Plaintiff did

not contact the Appeals Coordinator before filing a

complaint an the district court Because an

additional avenue of possible relief remained open to

him, Which he chose not to pursue, Plaintiff failed to

exhaust all available administrative remedies

2. We review for abuse of discretion a district

court's denial of appointment of counsel. Palmer v.

Valdez, 560 F.3d 965, 970 (9th Cir. 2009), petition for

cert. filed, U.S.L.W (US. Aug. 31, 2009) (No

09-6429) Plaintiff demonstrated sufficient verbal

and writing ability and legal knowledve to articulate

his claim. The facts that he alleged and the issues

that he raised were not of substantial complexity. In

sum, excepuional circumstances that would require

appointment of counsel do not exist here. See 2%

U.S.C. § 1915; Terrell vo. Brewer, 935 F.2d 1015, 1017

(9th Cir. 1991) (holding that a finding of exceptional

circumstances requires an evaluation of both “the

likelihood of success on the merits and the ability of

the petitioner to articulate hits claims pro se in light

of the complexity of the issues involved” (internal

quotation marks omitted))

AKPIRMI«D

; This disposition is not appropriate for publication and is

not precedent except as provided by 9th Cir. Ro 46-3

aia The Honorable Robert kK. Cowen, Senior United State:

Circuit dudge for the ‘Third Circuit sitting = by

designation

UNIPRED STATE DIS'TRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CASK NO: 1:08-CV-06364-1J0O-DLB

JUDGMENT INA CIVIL CASE

, 7: 1 ’ 1 1S

4 ‘ ‘

KIGVIN Ie. Perf LDDs

RUIZ, ET AL,

XX Jury Verdict. ‘This action came before the

Court for trial by pury The issues have been tried

and the jury has rendered its verdict

MPIS ORDERED AND ADJUDGED

THAT JUDGMENT IS HEREBY ENTERED

IN ACCORDANCE WITH THE JURY VERDICT

RENDERED May 29, 2008

Victoria ©. Minor

CNerk of Court

KNTERIED: May 30, 2008

UNITED STATES DISTRICT COURT

KASTERN DISTRICT OF CALIFORNIA

1:03-cv-06364-OWW-DLB-P

ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS (Doc. 159)

ORDER GRANTING MOTION FOR VOLUNTARY

DISMISSAL OF CERTAIN DEFENDANTS

(Doc. 154)

ORDER GRANTING IN PART MOTION FOR

SUMMARY JUDGMENT (Doc. 144)

x

KEVIN kk. FERLDS

Pheaamntill

V.

RUIZ et al.,

Defendants

x

Plaintiff, Kevin Fields (plaintiff), 1s a state

prisoner proceeding pro se and in forma pauperis in

this civil rights action pursuant to 42 U.S.C. § 1983

The matter was) referred to a United States

Magistrate dudge pursuant to 28 U.S.C.

§ O86(D)0)(B) and Local Rule 72-3802

On June 25, 2007, the Magistrate Judge filed

lMindings and Recommendations herein which were

served on the parties and which contamed notice to

the parties that any objections to the Findings and

Recommendations were to be filed on or before July

25, 2007. On duly 16, 2007, plaintiff filed objections

Lo the Magistrate Judge's hindings and

Recommendations. On July 25, 2007, defendants

filed objyecthons to the Magistrate Judge’s Findings

and Recommendations

‘

In accordance with the provisions of 28 US.¢

§ 6O86(b))(C) and Local Rule 73-805, this Court has

conducted a de novo review of this case. Having

carefully reviewed the entire file, the Court finds the

Mindings and Recommendations to be supported by

the record and by proper analysis.

Accordingly, (TTS HEREBY ORDERED that:

1 The Findings and Recommendations, filed

dune 25, 2007, are ADOPTED IN FULL:

2. Plaintiffs motion for voluntary dismissal of

defendants Robertson and Dill, filed April 11, 2007,

is GRANTED;

3. Defendants’ motion to dismiss the retahation

Claim against defendants, Ruiz, Wilbur, Canfield,

and ulbrodt GRANTICD WITHOUT

PRICdU DICH

| Defendants motion for summary judgment,

filed December 21, 2006, is GRAN TIED IN PART;

and,

§ ‘This case shall proceed to trial on plaintiffs

Maighth Amendment claims avainst defendants Ruiz

Wilbur, Canfield, lublrodt, and Rabe

MrIS SO ORDERED

Dated: September 9, 2007

/s/ Oliver W. Wanger

UNITED STATES DISTRICT JUDGIs

UNIEPED STATES DISTRICT COURT

KASTERN DISTRICT OF CALIFORNIA

CASK NO. 1:08-CV-63864-OWW DLB-P

MINDINGS AND RECOMMINDA'TIONS

RMECOMMIENDING DIekFIENDANTS MOTION FOR

SUMMARY JUDGMIENT Blo DiIENtTIeD IN PART

(Moc. 144)

QBIKMCTIONS DUE JULY 25. 2007

MIGVIN fe. beh. DS

Plaintiff

RUTA et al

Defendant

1. Defendant's Motion for Summary Judpment

Procedural History

Miaintilf is a state prisoner proceeding pro se and

in forma pauperis in this civil nights action pursuant

La) 12 1) >.O 9 15923, ‘Tha: achion J proceeding Qi)i

1On

plamtalfs second amended complaint, filed February

§ 2YOO4, apvainst defendants Robertson, Ruiz, Wilbur,

Canheld, Kublrodt, Rabe and Dill. (‘defendants’) for

wolation of the Kighth Amendment based on the

conditions of his cell and for retaliation. On April

1}, 2007, plaintiff filed a motion for an order

dismissing defendants Robertson and = Dull. This

request will be granted

Qn December 21, 2006, defendants filed a motion

for summary judgment. Plaintiff filed an opposition

on April 16, 2007.' Defendants did not reply.

Mo lepal Standard

Summary judgment is appropriate when it 1s

demonstrated that there exists no genuine issue as

to any maternal fact, and that the moving party 1s

entitled to judgment as a matter of law. Fed. R. Civ

P. 56(c). Under summary judgment practice, the

moving partly

[Ajlways bears the initial responsibility

of informing the district court of the

basis for its motion, and identifying

those portions of “the — pleadings,

' Plaintiff was provided with notace of the requirements for

opposing a motion for summary judgment by the court in an

order filed on June 21, 2004. Klingele ov. Eikenberry, 849 F2d

109 (9th Cir. 19%)

depositions, answers to interrogatories,

and admissions on file, together with

the affidavits, if any,” which it’ belheves

demonstrate the absence of a venuime

issue Of material fact.

Celotex Corp. v. Catrett, 477 US. 317, 323 (1986)

“(Where the nonmoving party will bear the burden

of proof at trial on a dispositive issue, a summary

judgment motion may properly be made in reliance

solely on the ‘pleadings, depositions, answers to

interrogatories, and admissions on file.” Jd. Indeed,

summary judpimnent should be entered, after

adequate time for discovery and upon motion,

against a party who fails to make a_ showing

sufficient to establish the existence of an element

essential to that party’s case, and on which that

party will bear the burden of proof at trial. /d. 322

“|A] complete failure of proof concerning an essential

element of the nonmoving party's case necessarily

renders all other facts immaterial.” /d. In such a

circumstance, summary judgment should be granted,

“so long as whatever is before the district court

demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is

satished”” /d. 323

If the moving party meets ws initial

responsibility, the burden then shifts to the opposing

party to establish that a venuine issue us to any

material fact actually does exist. Matsushita lec

Indus. Co. vo. Zenith Radio Corp., 475 U.S. 574, 586

}2a

(1986). In attempting to establish the existence of

this factual dispute, the opposing party may not rely

upon the denials of its pleadings, but 1s required to

tender evidence of specific facts in the form of

affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists

tule 56(e); Matsushita, 475 US. at 586 n.11. The

opposing party must demonstrate that the fact in

contention is material, i.e. a fact that might affect

the outcome of the suit under the governing law,

Anderson vo. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); 7.W. Klee. Serv., Ine. v. Pacific Elec.

Contractors Assn, 8O9 F.2d 626, 6380 (9th Cir. 1987),

and that the dispute is genuine, 1.e., the evidence is

such that a reasonable yury could return a verdict for

(he nonmoving party, Wool v. Tandem Computers,

Inc., $18 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a

factual dispute, the opposing party need — not

establish a material issue of fact conclusively in its

favor. It as sufficient that “the claimed factual

dispute be shown to require a jury or yudge to resolve

the parties’ differing versions of the truth at trial.”

T.W. Elec. Serv., 809 F.2d at 631. Thus, the

“purpose of summary judgment 1s to ‘pierce the

pleadings and to assess the proof in order to see

Whether there 1s a genuine need for tral.”

Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P.

O(e) advisory committee's note on 1963

amendments)

loa

In resolving the summary judgment motion, the

court examines the pleadings, depositions, answers

lo interrogatories, and admissions on file, together

with the affidavits, ifany. Rule 56(). The evidence

of the opposing party ts to be believed, Anderson, 477

U.S. at 255, and all reasonable inferences that may

be drawn from the facts placed before the court must

be drawn in favor of the opposing party, Matsushita,

AT5 U.S. at 587 (citing United States v. Diebold, Inc.,

369 U.S. 654, 655 (1962) (per curiam). Nevertheless,

inferences are not drawn out of the air, and it is the

opposing party’s obligation to produce a factual

predicate from which the inference may be drawn.

Richards vo. Nielsen Freight Lines, 602 . Supp. 1224,

1244-45 (f.D. Cal. 1985), affd, 810 F.2d 898, 902

(Oth Cir. 1987).

Kinally, to demonstrate a penuine issue, the

opposing party “must do more than simply show that

there is some metaphysical doubt as to the material

facts. Where the record taken as a whole could not

lead 4 rational trier of fact to find for the nonmoving

party, there iw no ‘genuine issue for trial.”

Matsushita, 475 U.S. at 587 (citation omitted).

()) Discussion

1 Plaintaffs Allegations

In his second amended complaint, plamtiff

alleves that defendants violated his rights under the

kaghth Amendment by leaving him a cell with an

overflowing toilet for 28 days. Plaintiff also alleges

that defendants Ruiz, Wilbur, Canfield and Fublrodt

14:

retaliated ayvainst him for filing a grievance” by

serving him = disproportionately small servings at

dinner

2. Defendants’ Undisputed Facts?

A. Backyvround

l PJaintif is properly in the custody of the

Cahtornia Department of Corrections and

Rehabilitation (CDCR) pursuant to a valid judgment

in the San Joaquin County Court in which he was

convicted of assault with a deadly weapon with force

likely to} =cause yreat hodily injury, plus

enhancements, and sentenced to a term of 25 years

to life. Defendants’ Exhibit A, Attachment 1, p.2-3

Plaintiff was housed in the Security Housing Unit

(SHU) at Califormia State Prison - Corcoran (CSP-

Cor) at times material to the matters at issue. DX

A 1, )) D

2 Defendant Dill was a Facility Captain;

defendant Rabe was oa Faeility Lieutenant,

defendant Fuhlrodt was a Correctional Sergeant and

defendants Ruiz Wilbur and Canfield were

Plaimntaff did not file a separate statement of disputed facts

The Undisputed Facts are taken from Defendants’ Statement of

Undisputed Facts and Plaintiffs Opposition to Defendants’

Motion for Summary Judgment

Correctional Officers at CSP-Cor at times material

to the matters at issue. Compl. p.2-4; 99] 5-11.

= Melds was received by CDCR on June 26,

2000, and housed at the Deuel Vocational Institution

(DVI). DX A-l, p.6 Mields was) placed in

administrative sevregation on duly 12, 2000

DX A-], p.7-41.

| Mields was transferred to the SHU at CSP

Corcoran on December 1, 2000. DX A-1, p.5

y Assignment to the SHU is not based on the

mmates’ underlying offense, but rather, the SHU is

an administrative means of managing inmates who

commit serious disciplinary infractions once in

prison, or who become affilated with a prison guny

DX B, Cal. Code Regs. § 3341.5, subd.(c). Thus, the

SHU provides secure housing for inmates whose

conduct endangers the safety of others or the

security of the institution. /d.

G The SHU is designed to maximize control of

inmates who pose a definite and sertous threat to the

safety of others or themselves, and therefore,

conditions inside the SHU are more restrictive than

the conditions in veneral population — and

administrative segregation. DX B

7 The SHU provides physical controls to prevent

disorder, provide protection for others, and prevent

criminal activities. Id

l6u

$4 Seiny housed in the more restrictive SHU,

Mields initially remained virtually disciplinary free

4A?-47. A chrono authored December Zi, ZOO], shows

(hat Iields had remained disciplinary free for one

year. DX A-1], p.42

oe Qin April L/7, ZO0Z, Kields did not want to have

a cell partner, and threatened to kill anyone that

was assizned to his cell. DX A-1, p. 49-54

10. On May 27, 2002, Ficlds was placed on paper

tray status when he refused to relinquish his tray

during trash and tray pick up. DX A-1, p.55

Bb. Flooding of Plaintiffs Cell on October 10,

2002

ld. On October 10, 2002, stall completed serving

the SHU prisoners their evening meal and were in

the process of collecting trash and trays. DXA A-1,

p.06, 59. Officers Ruiz and Wilbur arrived at Field

cell and ordered him to return his tray DA A-]

n.59 Miclds would not) relinquish his tray,

complaining that his toilet was plugged up. DX A-1,

p.59 Kiclds then ordered staff to make an

emergency call to the plumber. DX A-1, p.59. The

officers told Fields that a work order had been

submitted, but fields continued to hold his tray. IDX

‘\ ¥ p ow

12. The officers notified Sergeant Fuhtrodt 1X

A-1, p.59. Sergeant Fuhlrodt states that when he

arrived at plaintiff's cell he saw what appeared to be

water on the floor, but he denies seeing solid matter

DX A-1, p-71. Officer Ruiz states that he cleaned the

area outside of Fields’ cell and instructed Fselds on

how to do the same using materials Fields had inside

his cell. DX A-1, p.7). Irelds still refused to give up

his tray and Lieutenant Rabe was called. DX C-]

13. At approximately 5:15 p.om., Lieutenant Rabe

responded to Inmate Iiclds’ cell. DX ©, § 4.) After

Mields complained about plumbing and staff, he

returned his dinner tray to Lieutenant Rabe. /d

14. Iaeutenant Rabe contends that while listening

to krelds, he scanned the area and observed that the

tier in front of Fields’ cell was clean and clear of any

water, staff having already mopped and cleaned the

area. DX ©, § 5. He also noted that the floor of

hields’ cell was clear of both debris and water and if

appeared that Fields had cleaned it. /d

15. Because the areas appeared clean, Licutenant

Rabe made the deciston not to remove Fields from

his cell, beheving it unnecessary DX €, 46

llowever, had he seen debris on the floor, Licutenant

Rabe contends he would not have’ hesitated to

remove Fields from has cell. Jd

16. Lieutenant Rabe contends that after ensuring

that a work order to fix the plumbing problem had

been completed, he authorized the placement of

Mields on paper tray status as a precautionary

_—

-~

measure to prevent this type of future disruptions by

Fields. DX ©, 47

17. Medical Technical Assistants made rounds on

the tier which would have given inmate Fields the

opportunity to address any medical issues he may

have had

18. A review of Fields’ medical file shows that he

did not seek medical treatment for either headache

or nausea on October 10, 2002 DX D-] hield:

medical record show that he did not seek medical

treatment of any kind until October SO, 2ZOOY

DX D1, p. 15

19. The administrative sevregation log shows that

Mields ate breakfast, lunch and dinner on October

11, 2002. DX A-], P HY

ZA) Qn October 11, 2002, kields wa placed on

water restriction for flooding the tier, DX A-1, p. 57

2“) elds refused to go out to yard on October 1¥Y,

2002 but did not leave his cell to shower. DX A-1, p

mr ¢

Sy hy,

22. On October 18, Z00Z, fields again complained

that his toilet was plugged up DX A-l, p. GO

Officer Canfield called the plumber. DX A-1, p. 60

The plumber arrived at 2:00 p.m. and Ficlds’ toilet

was fixed by 2:30 p.m. DX A-1, p. GO

1 {du

(. Exhaustion of Administrative Remedies

23. On October 10, 2002, Fields filed a grievance

complaining about his overflowinyp toilet DX A-]

p. 73 He exhausted the grevance through the

Directors level of review on May 28%, 2003. DX A-1,

p.soO

24. On October 2%, 2002 Fields filed a prievance

claiming that for the period beginning October 11,

2002, through November 10, 2002, since being placed

on paper tray status, he was shorted rations at

dinner. DX A-l, p.65 fields requested that all

Inmates on paper tray status be interviewed, and

that the departmental review board take action

against Warden Scribner, Captain Dill, Licutenant

Rabe, Sergeant Iublhblrodt and Office Ruiz and

Wilbur. DX A-1, p.65-66

25. elds was interviewed by Sergeant Robinson

on December 21, 2002. DX A-1, p. 69. During the

interview, Fields stated he beheved he had been

horted food on tour occasion: DA A-1, p.69-70

lields also stated that he had been receiving hi

meals without problem since November. DX A-]

p./O. Staff informed Sergeant Robinson that field

received the same rations as other inmates. DX A-]

p.69-70 hields’ allegations were determined to be

unfounded, and his appeal was demed at the first

level ot review. DX A-1, pp.G8, 70

2008

26. kields appealed to the second level of review

on February 6, 2003, however, the appeal wa

cancelled on March 13, 200% OX i (Declaration of

V. Castillo), 9 5. lields did not appeal the denial of

his gnevance further and did not file the prevance

at the Director's level of review DA le, 4 5

3. Plaintiffs kighth Amendment Claim

To constitute cruel and unusual punishment in

violation of the kighth Amendment prison

conditions must involve “the wanton and

unnecessary infliction of pain Rhodes |

Chapman, 452 US. 3837, 847 (1981) Although

prison conditions may be restrictive and harsh

prison Officials must provide prisoners with food

clothing, shelter, ‘nitation medical care, and

personal satety ld.; Toussaint v. McCarthy, 801

Ko2d 1O80, 1107 (9th Cir. 1986); Hoptoiwit v. Ray, 682

ho2d 1287, 1246 (9th Cir. 1982). Where a prisoner

alleges injuries stemming from unsatle conditions of

confinement, prison officials may be held lable only

if they acted with “deliberate indifference to a

substantial risk of serious harm. frost v. Aprnos

152 F.8d 1124, 1128 (9th Cir. 1998)

The deliberate indifference standard involves an

objective and a subjective prong. First, the alleged

deprivation must be, in objective terms, “sufficiently

Serious " Karmer v. Brennan, 511 US. 825, 834

(1994) (citing Wilson v. Setter, 501 U.S. 294, 298

(1991)). Second, the prison official must “know|] of

and disregard[| an excessive risk to inmate health or

safety ....0 Farmer, 511 ULS. at 837. Thus, a prison

offigaal may be held lable under the Eighth

Amendment for denying humane conditions of

confinement only if he knows that inmates face a

substantial risk of harm and disregards that risk by

failing to take reasonable measures to abate it. ld

at $37-45 Prison officials may avoid lability by

presenting evidence that they lacked know ledge of

the risk, or by presenting evidence of a reasonable

albeit unsuccessful, response to the risk. /d. at 844

ih Mere negligence on the part of the prison official

is not sulfiment to establish hability, but rather, the

official's conduct must have been wanton. /d. at &35:

Frost, 152 F.8d at 1128

“What is necessary to show sufficent harm for

purposes of the Cruel and Unusual Punishment

Clause depends upon the claim at issue

Hludson vo. MceMillian, 503 U.S. 1. 8 (1992) The

objective component of an Eighth Amendment claim

| contextual and responsive to contemporary

standards of decency ld. at & (quotations and

citations omitted) “[E]xtreme deprivations ar

required to make out afn] [lighth Amendment

conditions-of-continement clam. /d. at Y (citation

omitted) With respect to this type of claim,

“TbJecause routine discomfort is part of the penalty

that criminal offenders pay for their offenses against

society, only those deprivations denying the minimal

civilized measure of life's necessities are sufficiently

grave to form the basis of an Eighth Amendment

violation.” fd. (quotations and citations omitted)

The Kaghth Amendment pvuarantees sanitation

Hoptowit vo. Ray, 642 2d 1237, 1246 (9th Cir

194%) “Subyection of a prisoner to lack of sanitation

that as severe or prolonged can constitute an

infliction of pain within the meaning of the laghth

Amendment.” Anderson v. County of Kern, 45 3d

1310, 15314 (th Cir. 1995)

Sufficiently Sertous Condition

Defendants submit evidence that on October 10,

2002, the touet in plaintulfs cell overflowed and that

the floodiy was a result of plaintulf having plugged

up his towet. Undisputed fact (Ur) Nos. 11-16, 20

Otfiecrs, contend they called the plumber and

ubmutted a work order to fix the toilet. Ul’ No VI

Sergeant Fubtlrodt contends that when he arrived at

phagotalf cell the area outside the cell was wet but

he saw no solid mattes (Ui Yd, 12. Olficer Ruiz

contends he cleaned the area outside the cell and

mistructed) plaintaff how to do the same using

materials mside his cell Ul 12. Lacutenant Rabe

contends when he arrived at plaintiffs cell, the area

was clean and he saw no debris on the floor. Uk 13

14. ‘The sevrevation lov shows that plaimtiflf received

all three meals in his cell the next day and two days

later, he refused to vo to the exereise yard. UF 19

vAS

Defendants arvue that plamtilf was subjected to

routine discomfort for «a very short period of time and

this brief inconvenience fails to meet the objective

element of an kighth Amendment violation

The court finds that defendants have met their

mitiaal burden of informing the court of the basis for

their motion, and identifying those portions of the

record which they beheve demonstrate the absence

of a penuime assue of material facet The burden

therefore shifts to plaintiff to establish that a

venuine issue as to any material fact actually doe:

CxIsl See Matsushita lec. Indus. Co. v. Zenith

ftadio Corp., 475 U.S. 547, 5866 (1986). As stated

above, in attempting to establish the existence of

this factual dispute, plaintiff may not rely upon the

mere allegations or denials of his pleadings, but 4:

required to tender evidence of specific facts in the

form of affidavits, and/or admissible discovery

material, gn support of ats contention that the

dispute ¢xists tule 56(¢), Matsushita, 475 UWS. at

D#6 ndb: drst Natl Bank, 391 ULS. at 249; Strong v

ferance, 474 2d 747, 749 (9th Cir, 1974)

In has Opposition, plaintulf states that on October

10, 200%, he informed defendants Ruiz, Wilbur and

Clanheld that the plumbing in his cell was backing

up, resulting in feces and urine in his cell from other

cells on the tier Phammtlf Declaration in

Opposition to Motion for Summary Judgment

(Plaintuff!s Opposition’), $2. Plaimmtaif contends he

poformed the offteers that the smell was causing him

to have a severe headache and nausea. Plaintilt:

Opposition, §] 4 Viaintilf contends that when

defendant huhlrodt) arrived at hi: cell, the

contamination Wiis still present Plaintiffs

Opposition, “| 7 Plaintiff also contends that when

244

defendant Rabe arrived at his cell, the feces, urime

and contaminated water were still on his cell floor

and he refused to call a plumber. Plaintiffs

Opposition at 4 10. Plaintiff contends — that

defendants did = not submit) a work order until

October 15, 2002 (Plaintaffs Opposition at §| 10) and

that) his toilet was in disrepair for 29 days

Opposition at | 14

Plaintiff has submitted evidence sufficient to

ereate a disputed issue of fact concerning the

objective component of his) Kighth Amendment

Claim. [tas undisputed that plaintuffs toilet was in

disrepair. However, the parties dispute the length of

tame and the extent of the problem. In this Cireuit,

Subjecuuny an inmate to confinement in a cell with a

malfunctionmy toilet for 29 days, as deseribed by

plaintiff, os suffiment to meet the objective

requirement of the Kkaghth Amendment analysis.

Defendants’ State of Mind

Defendants Ruiz, Wilbur, Canfield, kublrodt and

tabe further arzue that they were not deliberately

indifferent to plaintuffs needs. Defendants argue

that shortly after plaintiff, complained about his

loilet, a plumber was called and «a work order

submitted. UF Jl. Defendant Kuiz contends that he

Cleaned the arca outside of plaintiffs cell and

lnstructed him how to clean the inside of his cell.

Uk 12. Defendant Kuhlrodt and Kabe state that

they did not see debris of any kind on the floor of

plaintiffs cell and therefore did not beheve plaintiff

was at risk

As described above, plaintiff disputes defendants’

version of the events that occurred on October 10,

2002. Plamtilf contends that a work order was not

submitted until October 15, 2002, five days after

defendants were made aware of the condition

Defendants exhibit indicates a date of October 15

2002 and thus, it is not clear to the court when the

order was actually submitted. Plaintiff disputes that

defendant Ruiz cleaned the area outside of his cell

and he contends the debris was still present when

defendants Fublrodt and Rabe arrived. Moreover,

he contends that defendants were not concerned

about the debris and in fact refused to remove him

from his cell so that the area could be cleaned

In prmson condition cases under the Eighth

Amendment, prison officials act with the requisite

culpable antent when they act with deliberate

indifference to an inmates’ suffering. Anderson ¢

County of Kern, 45 F.3d 1410, 13138 (th Cir. 1995)

Plaintiff has submitted evidence sufficient to create

a triable issue of fact with respect to the subjective

component of the Kighth Amendment claim.

Because the evidence set forth by plaintiff is

sufficient to create a triable issue of fact with respect

to whether or not plaimtiff Nid! subjected — to

conditions of confinement in violation of the Kighth

Amendment the court shall recommend = that

26a

defendants motion for summary adjudication on

plaintiffs kighth Amendment claim be denied

Plaintiff's Injurtes

Defendants argue that plamtilfs alleged

headache and nausea, were at most de miminis and

thus onsufficient to state a claim for rehef under the

haighth Amendment.

The Prison Latigation Reform Act provides that

“[njo Iederal civil action may be brought by a

prisoner confined in jail, prison, or other correctional

facility, for mental and emotional injury suffered

While in Custody without a prior showing of physical

injury” 42 USC. § 1997e(e). The physical injury

“need not be significant but must be more than de

minumets.” Oltver vo. Keller, 289 F.3d 623, 627 (9th

(ar. 2002). The physical injury requirement apphes

only to claims for mental or Emotional injuries and

does not bar claims for compensatory, nominal, or

punitive damages. /d. at G30. Here, there is no

indication that plammtiff is seeking compensatory

damages for mental or emotional injunes and

therefore defendants argument is misplaced. There

is a tmable of assue of fact as to whether the

conditions to which plaimtiff was subjected were

suffimently serious under the kighth Amendment

analysis An Eighth Amendment conditions of

confinement claim does not require an allegation of

injury thatis more than de minimis. With respect to

these types of claims, the issue is the nature of the

deprivation, not the injury: “[bJecause routine

discomfort as) part of the penalty that’ criminal

offenders pay for their offenses ayuimst society, only

those deprivations denying the minimal civilized

measure of life’s necessities are sufficiently grave to

form the basis of an Kighth Amendment violation.”

4. Plaintiff's Retahation C

Defendant's argue that plaintiffs retahation

Claim against defendants Ruiz, Wilbur, Canfield and

huhlrodt must be dismissed because he failed to

exhaust his administrative remedies with regard to

this claim prior to filing suit. Exhaustion motions

are properly brought pursuant to the unenumerated

portion of Federal Rule of Civil Procedure 12(b),

Wyatt vo Terhune, 315 ¥.3d 1108, 1119 (9th Cir.

2003). ‘The Court therefore construes this portion of

defendants’ motion as an unenumerated 12(b)

motion

Pursuant to the Prison Litigation Keform Act of

1995, “[njo action shall be brought with respect: to

prison conditions under [42 U.S.C. § 1983], or any

other Federal law, by a prisoner confined im any jal,

prison, or other correctional facility until such

administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997ce(a). The section

1997e(a) exhaustion requirement applies to all

prisoner suits relating to prison life, Porter v. Nussle,

A435 US. 516, 542 (2002), and requires prisoners to

complete the prison’s administrative — process,

regardless of the rehef sought by the prisoner and

reyardless of the relief offered by the process, as long

264

as the administrative process can provide some sort

of rehef on the complaint stated,’ Booth v. Churner,

53% U.S. 731, 741 (2001). “All ‘available’ remedies

must now be exhausted; those remedies need not

meet federal standards, nor must they be “plain,

speedy, and effective.” = Porter, 534 U.S. at 524

(iting to Booth, 532 U.S. at 739 n.5). “Proper

exhaustion|[, which] demands comphance with an

avencys deadlines and other critical procedural!

is required, Woodjerd vo. Ngo, 126 S.Ct.

237%, 2386 (2006), and may not be satisfied “by filing

an untimely or otherwise procedurally defective

rules

appeal,” id. at 2482. Binally, exhaustion must occur

prior to filung suit. McKinney ov. Carey, 311 I 3d

1198, 1199-1201 (9th Cir. 2002)

c*

Section 1997e(a) does not impose a_ pleading

requirement, but rather, is an affirmative defense

, The Calhfornia Department of Corrections — ha: an

administrative prievance system for prisoner complaints. Cal

Code Regs., tat 15§ 3084.1 The process is initiated by

submitting a CDC Form 602. fd. at § $084.2 (a). Four levels of

appeal are involved, including the informal level, first formal

level, second formal level, and third formal level, also known a:

the “Directors Level” dd. at & S084.5 Appeals must be

submaitted within fifteen working days of the event beimny

appealed, and the process i initiated by submission of the

appeal to the informal level, or in some circumstances, the first

formal level. Id at §§ 4084.5, 3084 Gc)

2X4

under which defendants have the burden of raising

and proving the absence of exhaustion. Wyatt, 415

Migd at L119. The failure to exhaust non-jyudicial

administrative remedies that are not yurisdictional is

subject to an unenumerated Rule 12(b) motion,

rather than a summary judgment motion. /d. (citing

Ritza vo. Intl Longshoremen’s &Warehousemen’s

Union, $37 F.2d 365, 368 (9th Cir. 1998) (per

curiam)). In deciding a motion to dismiss for failure

to exhaust administrative remedies, the Court may

look beyond the pleadings and decide disputed issues

of fact. Wyatt, 315 F.3d at 1119-20. Hf the Court

concludes that the prisoner has failed to exhaust

administrative remedies, the proper remedy is

dismissal without preyudice. Jd.

Defendants present evidence, and plaintiff, does

not dispute, that he filed ao grievance against

defendants Ruiz, Wilbur, Canfield and lulhlrodt on

October 28, 2002

against him by withholding a portion of his dinner.

Ul 24, Comp. P. 9, 941. Plaintiffs appeal was

,

alleging that they were retaliating

’

demied at the first level of review on December 21,

2002. Ul 25. Plaintiff submitted the appeal to the

second level of review where it was cancelled on

March 14, 2003. UF 26. Plaintiff did not pursue the

appeal to the Director's Level. UF 26

In opposition, plaintiff argues that on March 13,

2003, his appeal was assigned to an unknown prison

official with a due date of June 11, 20038. Plaintiff

appears to argue that since his appeal was never

8Oa

answered, his administrative remedies were

exhausted. However, plaintiff provides no evidence

that he submitted the appeal to the Director's Level

or even attempted to do so.

“[Proper}] exhaustion of administrative remedies

is necessary, Woodford v. Ngo, 126 S.Ct. 237%, 2382

(2006), and “[pjroper — exhaustion demands

comphance with an agency's deadlines and other

critical procedural rules...,” wd. at 2386. The court is

mindful that the failure to respond to a properly filed

yrievance may result in a finding that exhaustion

occurred. Lewis vo. Washington, 300 F.3d &29, 443

(7th Cir. 2002) (when prison officials fail to respond,

the remedy becomes unavailable, and exhaustion

occurs); Foulk vo. Charrier, 262 F.3d G87, 698% (&th

Cir. 2001) (district court did not err when it declined

to dismiss claim for failure to exhaust where prison

failed to respond to gmevance); see also Brown v.

Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005). Here,

however, plaintaff has not’ submitted any evidence

demonstrating that he timely pursued his appeal

beyond the second level. Although plaintiff does

submit evidence that he submitted his an [sic]

appeal of the retaliation claim on October 28%, 2002,

that appeal was cancelled, and he failed to pursue

the appeal to the Directors Level “Proper

exhaustion|[, which} demands comphance with an

agency s deadlines and other critical procedural

rules...” is required, Woodford vu. Ngo, 126 S.Ct

237%, 2386 (2006), and may not be satished “by filing

an untimely or otherwise procedurally

de lee live...appeal,” id. at 2382 Woodford, 126 S.Ct.

at 2382. Plaintiffs retaliation claim must therefor

he dismissed without prejudice

Y» Qualified Immunity

Minally, defendants argue that to the extent the

court finds plaintiff has stated a claim for relief, they

are entitled to qualified immunity from plaintiff's

claims for damayes Qualified immunity shields

government officials from civil damages unless their

conduct violates “clearly established statutory or

constitutional rights of which a reasonable person

would have known.” /larlow vo. bitzgerald, 457 U.S

BOO, 818 (1982). In ruling upon the issue of qualified

immunity, the initial inquiry 1s whether, taken in

the light most favorable to the party asserting the

myary, the facts alleged show the defendant's

conduct violated a constitutional right Saucier

Katz, 033 Us. 194, ZO] (Z00})) lf, and only if, a

violation can be made out, the next step is to ask

Whether the right was clearly established. /d.— In

determining whether the = ripht was Clearly

established, the inquiry “must be undertaken in

light of the specific context of the case, not as a broad

yeneral proposition....° /d. [Tyhe right the official is

alleged to have violated must have been ‘clearly

established’ in a more particularized, and hence

more relevant, sense: The contours of the right must

be sufficiently clear that a reasonable official would

understand that what he is domg violates that

night.” dd. at 202. Gnternal quotations and citation

omitted). In resolving these issues, the Court must

view the evidence in the light most favorable to

Plaintiff and resolve all material factual disputes in

favor of Plaintiff. Martinez vo. Stanford, 323 I°.3d

1178, 1184 (9th Cir. 2003)

As set forth in the preceding section of this order,

there are disputed issues of material fact regarding

plaintiff's allegations that he was left in a cell with

an overflowing toilet for 2% days in violation of the

kaghth Amendment Viewing the evidence ino the

light most favorable to plaimtiff, the conduct

complained of violated the Eighth Amendment

Lopez, 203 F.3d at 1132-33; Allen, 48 F.3d at 1086

ete)

Turning to the second step in the analysis, in

2002, when the deprivation at issue began, the law

was clearly established that subjecting a prisoner to

lack of sanitation that is severe or prolonged can

constitute an infliction of pain that) violates the

haghth Amendment such that it would have been

reasonably clear to a reasonable officer that leaving

an inmate ina cell with a non-functioning toilet tor

28 days would violate his rights. While defendants

contend they contacted a plumber as soon as they

were made aware of the condition and defendant

Rabe contends that by the time he arrived and

plaintiffs cell, there was no visible water or debris

plaintiff disputes defendants’ version of the facts

Minally, it was clearly established in 2002 that if

Defendants knew of the violation and failed to take

b08

steps to prevent it, they could be held lable for the

violation, Cunningham, 229 F.3d at 1289; Taylor v.

List, 88O F.2d 1040, 1045 (9th Cir. 1989)

In conclusion, qualificd immunity protects “all

but the plaimly mcompetent or those who knowingly

violate the law.” Malley vo. Briggs, 475 U.S. 335, 341

(1986). By 2002, requiring an inmate to live ina cell

with a malfunctioning toilet for 28 days constituted a

knowing violation of the Kighth Amendent. Lopez at

1133; Allen at 1088. Accordingly, Defendants are

not entitled to judgment as a matter of law based on

qualified immunity.

DD. Conclusion

The court finds that thece are disputed issues of

material fact) precluding summary judgment on

plamtal(s Eighth Amendment claim and defendants

are not entitled to qualified immunity. ‘The court

also” finds that) plaintuff failed to exhaust the

administrative remedies with repard to his

retaliation claim and therefore this claim must be

dismissed without preyudice., Based on the

foregoing, it is HEREBY RECOMMENDED that

plarntalfs motion for voluntary dismissal of

defendants Robertson and Dill, filed April 11, 2007

be GRANTED: defendants’ motion for summary

judgment, filed December 21, 2006 be GRANTED IN

PART as described herein; and this case proceed to

trial on plaintiff's Kighth Amendment claims against

defendants Ruiz, Wilbur, Canfield, tublrodt and

Rabe.

these Finding and Recommendation Will b

ubmutted Lo mar Linited State Pastrict dud yr

a ened to the case pursuant bo at provisions Of

Title Aw { “oe & OS6(b)C1) Cn) UT before July

O07, the parties may file written objections with the

court The document hould — by captioned

Objections to Magistrate Judge hindings and

lkecommendation The partie are idvised that

failure to file objections within the specified) time

may waive the right to appeal the District Court

ordel Martinez | Yist, 951 F.2d 1153 (Oth (

1QO])

ITIS SO ORDERED

Dated: June 22, 2007

/s/ Dennis L. Beck

UNITED SVCATES MAGISTRATE JUDG

UNTPED STATE DISTRICT COURT

KASTERN DISTRICT OF CALIFORNIA

HON. LAWRIENCE J. O'NECTLI

L-O%-cv-6364 L.J0O

JURY TRIAL, DAY 1]

| Linitill

\

{ IZ et |

Def rit

resn Cali n Wed 1 | }

hm PVOR PEK l*] ChRIPLT OF PRO MING

lp a iu

RMEPORTED BY PiudadGay oe CCRAW FORD LE

RR. Official Re porter

>tpea

APPEARANCES OF COUNSE I,

or the Vhiantaff KEVIN Ie. FIELDS, PROSE

P-8$3425

CALIFORNIA STATIC PRISON

CORCOKAN (4476)

P.O. BOX 3476

CORCORAN, CA 94212-45476

lor the Defendant STATH OF CALIFORNIA

Department of Justice

Office of the Attorney General

P00 9 Street

0). Box 944255

pacramento, CA 94244-2550

hs K ict.) M. HAMMONTD

Deputy Attorney General

loop) podcayanngye praraase | know that you beleve

that you are not playing pame or perhaps that

jrast W hisal You are a VAT? and You know Wists aan

playing vames MR. FilLIS. No, 1 don’t know that

THe Cou key Mat lin telling you that there 1

nothing oa thas, record to establish, other than whit

You ar ayiny, that there is any appellate i ue with

revard to your medication

And Im telling you from an objective standpoint

there as nothing there except your words becauss

Objyectively there ) nothing to establish or to

Ubstantiate your position

INOW | think You and J heave both made Qur

tatements on the record clear

Mit. RiiILDS: One more thing. You said all my

motion hive been ruled (97) Actually, | have it)

oulstanding motion for reconsideration that ha

yee Vvced been ruled on

THis COUK! ieconsideration lor what?

Mi PiltDbsS: bor appointment of counse!

THhl,y COURT i beleve that the sixth re quest

that you have made for counse!l

Mire fefded No, its not

REe COUKI } believe ato3 Lye xth request

VV I ¢ I | P*CRTT AY? lo continues LO plu th) il Pale

GILHG]

Po }ye have been denied and there is nothing new

Your motion for reconsideration is not legally sound

TH COURT: | don't know what that means, but

its not worth pursuing

(VMiaintilf spoke under huis breath.)

THis COUK]I Sir. we had «a motion. we ruled on

ow (he jury iS Comuny in

(fhe following proceedings were had in the

presence of the jury, to wit:)

THe COURT: We are still on the record and the

ury has joined u

Who are you calling now as a witine

AR FihDLDS: Inmate land

JOMO BLAND,

Wed as a witne on behalf of the Vlaintiff having

been first duly sworn, testified as follow:

Hl COURT: Could you tell us your name?

Tile WHTENISS JOMO Bland

TH COURT. How do you spell your lirst name?

UNITED STATES DISTRICT COURT

KASTERN DISTRICT OF CALIFORNIA

CASI NO. 1:03-cv-06564-OWW DLB PCO

ORDER Rl MOTIONS TO APPOINT COUNSIAL

(Lda 142. 18.3)

1 1 ndiunt

Plammtiff is a state prisoner procecding pro se and

ii forma pauperns with a civil rights action pursuant

to 42 UIs ection 19%4 This action is proceeding

On poloamtald econd amended complaint hed

t

kebruary 9. 2004, avainst defendants Iuiz, Walbua

Clamflield fubilrodt and bocaboe for Vinolation ol tba

haighth Amendment Phos matter 1 et for cury trial

Citi Mia Aa ZO04 At pt)t) iti bye ! se thie hionorablh

AChss

On April 23, 2008, plaintiff filed a motion stylized

as a letter, in which plaimtif requests that that all

sax Inmate witnesses listed in defendant's pre-trial

statement be permitted to testify at trial. (Doc. 182).

Plaintiff further requests that the court request pro

hono counsel to represent him. Finally, plaimtiff

seeks an order directing the Clerk of the Court to

provide plaintiff with a transcript of the telephonic

tral confirmation hearing held April 24, 200%, on the

yrounds that because of medication he is currently

taking, his memory of the conference 3s “kind of

fuzzy”

Qn April 24, 2008, plaintalf filed another motion

for the appomtment of counsel. (Doc. 143).

J Motion for Attendance of Incarcerated

Witnesses

Duriny the telephonic trial confirmation hearing

held April 24, 200%, plaintiff agreed that) four of

plaintiffs six proposed inmate witnesses were not

required at trial, as their testimony would be

duplicative Plaintiff! now states in his instant

motion that their testimony is relevant to prove state

of mind, and that all six proposed witnesses ought to

testify at trial

Notwithstanding plaintulfs concession during the

telephone tral confirmation hearing that four of has

proposed inmate witnesses were not necessary at

trial, plammtilf has not filed any declarations stating

that his proposed incarcerated witnesses have actual

knowledyve of relevant facts. Plaintiff was explicitly

informed that he was required to do so by this court's

order dated November 2, 2007, which deseribed in

detail for plaintiff the procedure for obtaiming the

attendance of incarcerated witnesses. (Doc. 166).

Plaintiff was further placed on notice of this

requirement an defendants’ pre-trial statement,

wherein defendants objected to the attendance of

plaintiffs inmate witnesses on these very grounds

(Doc. 176, pp.4-5). Plaintiffs bare contention that

their testimony as now relevant to show “state of

mind’ 3s not Supported whatsoever by any evidence.

Therefore, the court will not issue transportation

writs for Inmate kk. Johnson, Inmate Gi. Jones,

Inmate White, or Inmate Smith. As provided for in

this court’s pre-trial order (doc. 185), inmate

witnesses Bland and German will attend at trial,

and the clerk of the court will prepare transportation

writs to facilitate their attendance

2 Request for Court Transcripts

There is no provision under the Federal Rules or

the Local Rules for free copies of transeripts

further, the expenditure of public funds on behalf of

anoindigent htigant is proper only when authorized

by Congress. See Tedder v. Odel, 890 F.2d 210 (9th

Cir. 1989) (citations omitted). The in forma pauperis

Statute does not authorize the expenditure of public

funds for the purpose sought by plaintiff in’ the

instant motion. Hf plaintalf wishes to order a copy of

the transeript, he as required to pay the appropriate

124

fee to the court reporter. Plaintiffs request for free

copies of the transcript is DIENIED.

///

/1/

3. Motion for Appointment of Counsel

Plamtilf contends that in the past, the court

demed plaintiffs requests for appointment of counse!

without considering a) the merits of the case; b)

plaintaffs ability to present and comprehend = his

case; ¢) his custody status; d) the complexity of the

legal issues involved; and ©) the amount of factual

investigation and discovery necessary to prove the

claim. (Doc. 183, p.2) Plaintiff now renews his

request for the appomtment of counse!

A review of the court) record indicates that

plait! has filed at) least four requests for

appomntment of counsel (Docs. 74, $6, 98% and 147)

Mach of plaintulfs previous requests were denied

(Docs. 78, 90, 100 and 163). In each case, it was

explamed to plaintiff that the United States

Supreme Court has ruled that district courts lack

authority to require counsel to represent imdigent

prisoners in §& 1983 cases. Mallard v. United States

Mistriet Court for the Southern District of Lowa, 490

Ud. 296, 109 S.Ct. 1814 (1989) Plaimmtiff was

further advised that in certain exceptional

circumstances, the court may request the voluntary

assistance of counsel pursuant to 28 USC

& 1915(e)C1) Without a reasonable method = of

securing and compensating counsel, this court will

Asa

seck volunteer counsel! only in the most serious and

exceptional cases

In the present motion, the court does not find the

required exceptional circumstances. Even if it as

assumed that plaimmtiff is not well versed in the law

and that he has made serious allegations, which

proved, would entithe him to rehef, his case is not

exceptional Further, plaintaff appeared lacid, and

was capable of thinking and expressing himsell

Clearly, throughout the telephone trial confirmation

hearmy that lasted approximately one hour

Accordingly, plaimmtifs request for counsel as

DieNikD

MPIS SO ORDERED

Dated: April 30, 2008

Is/ Dennis Ls Beck

UNPPED STATICS MAGISTRATIC JUDGIE

IN UNETED STATES DIS'TRICT COURT FOR

THE KASTERN DISTRICT OF CALIFORNIA

1-O3-cv-06364OWW DIB (PO)

ORDER DENYING FOURTH MOTION FOR

LPPOINTMENT OF COUNSE EH,

(DOCUMENTS #182 & #183)

Delendant

Qn April 24, 2008, plaintiff filed a motion seeking

the appomtment of counsel Plaintiff does not have a

constitutional ripvht to appomted counsel in thas

wchion, Hand ¢ Rowland, 113 F.8d 152Z0O. 15%5 (9th

Coit 1997) and the court cannot require an atborney

to represent plaintiff pursuant to 24% USC

8 POLSC)CL). Matlard vo. United States District Court

for the Southern fitstrict Oo; fowa 190 U.S. 296, 298

iy b>. S14. ITSIG C1989) Hlowever, in certain

exceptional circumstances the court may request the

voluntary assistance of counsel pursuant to section

LVV5G@)01). Rand, 118 F.8d at 1525

Without a reasonable method of securing and

compensating counsel, the court wall seek voluntec:

counsel only in the most serious and exceptional

Cases li determining whether “exceptional

circumstances exist, the district court must evaluate

both the likelihood of succes of the merits jand| the

ability of the [plaintiff] to articulate his claims pro se¢

mn olight of the complexity of the legal issue

mvolved fd) G@nternal quotation mark and

citations omitted)

Aba

In the present Case, the court does not find the

required exceptional circumstances Mven af it as

assumed that plamtiff is mot well versed in the law

and that he has made sertous allegations which, if

proved, would entitle him to relief, his case is) not

exceptional. ‘This court is faced with similar cases

almost daily. Further, at this early stage in the

proceedings, the court cannot make a determination

that plaintiff is likely to succeed on the merits, and

based on a review of the record in this case, the court

does not find that plaintiff cannot adequately

articulate his claims. dd

For the forepoirng reasons, plaintiffs motion for

the appointment of counsel is HEREBY DENIED,

without preyudice

PPIS SO ORDERED

Dated: April 28, 2008

/s/ Dennis L.. Beck

UNITED STATES MAGISTRATE JUDGL

UNITED STATES DISTRICT COURT

KASTERN DISTRICT OF CALLFORNIA

1-03-CV-06364-OWW-DLB-P

ORDER DENYING MOTION FOR APPOLNTMI

Ok COUNSEL

(DOCUMIENT #147)

aoe

1) | nal Lit

Pedcainatedt tan ! pla ted th iy} nti an tl

hono counsel anda tay of proceedin preorder thy

IpPpotmmlment Lspited Stat Supreme ¢ lirt ty

roujed that distri its lack uth reg

lc) reper mvcdigre nt pee rev

NTa ; {

[ i {) | \ t | (

ln certain exceptional circumstance (he court

Tdity requesl the voluntary ra | stance of counsel

pursuant to 28 USC. &§ IST5S(e)C)) Without

reasonable method of securing and

4

compensating

counse| th Court will e*e k volunteer counsel only

in the most serious and exceptional case

ln the present case, the court does not find the

required exceptional circumstance Iven af ata

’ umed that plaintiff is not well versed in the law

ind that he has made serous allevations which, it

proved, would entitle him to rehet, tis ca Is not

exceplronal Phos courts faced wath similar ca

ilmost daily Pherefore, plamtitt request tor th

tppomlment of counsel must be denied

In accordance with thi ibove tT HH RES BY

(OhDERED that pricarnvtalt

WPpotntiment of Coulsel ts denied

Pr IS SQ) ORDERED

Dated: Se ptemb r 24, 200

Wa

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

1-03-CV-6364-OWW- DILB-P

ORDER DENYING MOTION FOR APPOINTMENT

OF COUNSEL,

(DOCUMENT #98)

eters ah ae Ree ah ee enc arta iran, x

KEVIN EO FLELDS

Plaimntatt,

v.

J.P. RUIZ, et al,

Defendants

x

Plamtft has onee again requested the

appomtiment of counsel As plaitith has been

advised, the United States Supreme Court has ruled

that distmet courts lack authority to require counsel

to represent indigent prisoners ian § LOSS cases

Mallard vo United States District Court for the

Southern District of lowa, 490 US. 296, 109 S.Ct

814 (1989)

In certain exceptional cireuamstances, the

eourt may request the voluntary assistance of

counsel pursuant to 28 USC. § 1915 GdC)L) Without

if} siridcgaae rit ()] f (otlrise

jeaire |

taitlie )

1 tdiaat

{

' ‘

Ldeat

// J

Wotlld cuitathle dis to rebref diag

Lee thacal plaintiff

Uriny’ and COM PCr

Line

Chil int il) ( j GOlUuUnbMbeeYr COuUnSEe! Ol

{ @Ppigott mania ¢ KCC ptional cu {-

Phe presenkl case lhe court doe nol find thy

{ ACC plionmal Circumstances boven if il |

Chisal pizantill j nol well

versed in the law

hae hhaa rica (-J gest cal de Pablion Which if

Case j bridal

i] [hii Court ais faced with

iily, Pherefore

brbblaar Ciase

poicapnitidl request for thre

mast be denied

meordance With the above, TT IS HkREBY

Ht ol counsel as deried

Co) Ooktholelktde pp

ed: bkebruary 9, 2006

Jonas T.. Beck

I

NEPED STATICS DISTRI

AS TERN DISTRICT OF

PCOuUI

CALIFORNIA

j f

Ddeedery rit

| eye it j‘4 14 ] { }\é ippOllmlimernt oO]

| 1} tonited Leal rips reeryie (Court his

GQ othat dectriet court beach muthority to require

represent indigent prisone) m & 1

Vallard + UJ/nited fiale fyistrovet (Court for

withern JP) frict of lowa. 490 { Zrpt>, FOS Oo

i "4

} }

rial (Xe lional circumstance [pat

! 1) reecgue { [Fie unitary ii MSLance i]

Yo

24 USC. § 1915(e)01). Without

a reasonable method of secure and compensating

counsel purstant to

eounsel, this court’ wall seek volunteer counsel only

my the most serious and exceptional cases

fn the present case, the court docs not find the

required G¢xceptional circumstances liven af itn

assumed that plaintiff is not well versed in the law

and that die has made serious alleyvations Which, if

proved, would entitle him to rehef, his case is not

exceptional This court is faced with similar cases

aliost dathy. ‘Therefore, plamtiffs request for the

appointment of counsel must be denied

ln accordance with the above, IT IS HEREBY

OkDERED tdacat plamtilhs request feos hie

appointment ol Coun c| i denied

PPIs SO ORDERED

Dated: December 21, 2005

/s/ Dennis L. Beck

UNITED S'TATES MAGISTRATE JUDGE

UNPTED STATES DISTRICT COURT

LASTIKRN DISTRICT OF CALIFORNIA

1-4 WW -1d oS -2

»AMOTION FOR APPOINTME!

OFCOUNSEL,

(LQOOCU MENT #74)

Pr diatnitadl baci reed ube Led Lyi

Counsel] Phe Cnited St

cals oupreme Court ha

rouied that district court lack authority to require

counsel to represent indipvent prisones m & 1986

Cia Se Mallard + UJnited State. Lyistrict

(court jo!

the Southern Destrict of Lowa, 490 WS. 296, 109 S Ct

1414 C9599)

| j ( rliidh ( ‘ pl even Circumstances t bye

int ] i re-cyue | tbae

voluntary ii sli

appotmtinent ol

|

Counsel pur

tiianil to Ze { .4,. 2 iio yO) Without

ecurmmgy and Compensating

court will seek

coe Sepa

i. fea Corncabade method afl

counsel th volunteer

Cauns @|

sand exceptional cass

I Only

in) thie most

ln the present case, the court doc:

required exceptional circumstance:

assumed that plaimntilf a

and that he ha:

proved, would

not find thi

keven if it oa

not well versed

SeCriots

entitle dit to

exceptional Tha

almost daily

mn the law

mad allegations which, af

relaed, his case 4 hil

with simular ¢

plaintiffs request for the

ippotmliment ol COUTTS must be da rile d

court is faced

Therefore,

ast

ccordance with the above

Cokebobektichd that piaaitills

appormtment of counsel 3

PP its HEREBY

request fior the

denied

MrIsS SO ORDERED

Dated: November 21, 2005

/s/ Dennis L. Beck

UNITED STATES MAGISTRATIC JUDGIE

NEI

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1) STA‘ CS ¢

ROR THE Ni

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APPEALS

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(dae pelition for re ie AVE eae Deanne

bea ( recommended

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reed uve ted a vote on ul

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been advised of the petlilion

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voted to deny

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hea

STATE OF CALIFORNIA

DEPARTMENT OF CORRECTIONS

INMATE/PAROLEK APPEAL FORM

CDC G02 (12/87)

Location: Institution/Parole Region

1 CSP Corcoran

Loy No

bh. O2-OS8865

Clatevory: OL

You may appeal any poly, actton or decision whach

has a sipmificant adverse affect upon you. With the

exception oof Sertous CDC 115s, classification

committee achhons, and classification and staff

representative decisions, you must first informally

seek rehef through dtseussion with the appropriate

staff member, who wall sipm your form and state

Whataction was taken If you are not then satistied

you may send your appeal with all the supporting

documents and not more than one additional page of

comments to the Appeals Coordinator within 15 days

of the action taken No reprisals wall be taken for

using ¢he appeals procedure responsibly

NAMIE hields, Kevin

NUMBER: P88425

ASSIE VDINMICN'E: (4A) Security blow LEARY? UJ raat

UINTIVROOM NUMBER: 4-42

A Describe Problem: \ppellant Wail placed (on)

paper tray status on 10/10/02, for holding his dinner

tray because third watch staff attempted to feed him

moa cell which had human excrement and urine

floating around which was caused by the plumbing

backup up oan cells # 22-23-32-33 as a result of

holding the tray so that the building Spt., and Lt

Rabe, could be notified which ended wath un

satisfactory results. Appellant was placed on paper

(cont. on additional page)

13. Action Requested: Appellant request the

following (1) ‘That an audit be conducted, and threat

all aunmates placed oon paper-tray status be

Interviewed. (2) That upon completion of an interned

MmnVestipation that this matter be (cont.)

lnimate/Parolee Signature: s/ WKevin bield

HPR34°245

Date Submitted: bLO/28/02

(. Informal Level (Date Received: )

Staff Response: BYPASS

CSP - CORCORAN

APPEALS OFFICE

OY-NOV 13 PM 12°40

ID. Formal Level

If you are dissatisfied, explain below, attach

supporting documents (Completed CDC 115,

Investigators Report, Classification chrono,

CDC 128, etc.) and submit to the

Institution/Parole Region Appeals Coordinator

for processing within 15 days of receipt of

response.

BYPASS

Oey wee KOR

APPEALS OF FEC EE

O38 FleB 11 PM 2:53

14/03

kirst Level (J) Granted bt) Po Granted M Denied

[J Other MAR 27 2003

I. Reviewer's Action (Complete within 15

working days): Date assigned: NOW 15 2002

Due date: 1/2/03

Interviewed by: Set. DD. Robertson see attached

r

Staff Signature: s/ [illegible |

VPitle: Captain

Date Completed: 12/30/02

Division Head Approved:

Signature: s/ fillepible]

Cylrid

litle Lil de ritoles|

Returned Date to lnnyate 1 \ bey VOW

i. lf) =6dissatistied, explain reason Love

requesting’ a Secone- Level Review, and submit

to Institution of Parole Kepion \ppeals

Coordinator within 5 days of receipt. of

response.

L am dissatistied wath the Patt Pesprotesc and thi

staff stamped this appeal on dan. 1a, 20038, however

[| didnt receive ait until Feb 6) YOOS) meaning that

taff are intentionally violatiny the time constraint

m COR Tithe 15, § 8O8+G

Sivnature: Kevin Paela

Date Submitted: 2/6/2003

Second Level: () Granted (IP CGiaranted | Dyonued

L}) Other

Cx. Reviewers Action (Complete within 10

working days) Date assigned NIA 1 OOS

Due Date: V/11/03

CSP - CORCORAN

APPEALS OFFIC]

O38 FEB 11AM 1]

CSP - CORCORAN

LPPEALS OFERTO]

O3 MAR 12 PM 10

i It dissatistied, add data or reasons tor

requesting a Director's Level Review, and

submit by miuauilto the third level within bo days

of receipt of response

Sivnature Date Subinitted

bear the Director's Review, submit all

documents to

Director of Corrections

P.O. Box 91412883

Sacramento, CA 94253-0001

\ttn: Chiet, [nmate Appeats

Directors Action {) Granted | Po diranted = § |

Donived LOthen

Ldiite

(Cont. of Av.) iti LELTLAEAE | om LOT LT/O2, th

Upoervisol PLiave Gon brothas to Lily (tat

prot 1) thru Wbpecting \pp heady t\) rau 1)

unusual purishiernst Vaolatiny Vpopecebbcunat

process right protected by th Linited State

Constitutional Right under the Sth Amendment

md Cahtornias Constitutional Rights under Articlk

| sectiou bi

CPreval (>t 14 (acthion Percy dle tecd)) reierre { thie

Departmental Review Board, for th (propriate

etions agamst the following staff, A Is. Scribner, N

Dill, Lt. Rabe. Set. FL Fubbdlrodt, ClO Rut and ClO)

Wilbur LAAR Building Statt ‘ Lhiat \ppe lant

not be retalmated agaist for exercising In 0) ere

nights, by (1) moving appealant t rother unit

by further discrimi With bis even meal

Kevin Mields #P834 LO/2 8

Cahfornia Depatment of Corrections

MEMORANDUM

Pacthty Captain’s Office

IV-A, SHU

EIRST FORMAL LEVEL APPEAL RESPONSI

Date Decemb ys meat)

To: Inmate Fields, P-388425

Subject: PIRST LEVEL RESPONSE PO CDC

602, LOG NO. CSP-COR 02-03865

APPEAL DECISION: DENIED

INTERVIEWED BY: Dy Robertson,

Correctronal Set

APPEAL ISSUE: Statt Complaint

APPEAL RESPONSE: Sergeant Robertson

interviewed youon December 21, 2002 regarding

your allegation of staff misconduct. In addition to

your interview a fact-finding inquiry was conducted

concerning all statt and inmates involved

An investivation was miitiaited and has been

completed. The findings are confidential and shal

not he disclosed ltany misconduct was discovered

appropriate corrective action will be taken

Considering Che above information your appoal os

DENIED at the first level of review. Allegations of

misconduct are NOP SUSTAINED

ls NATE DILL. ~ DD ORTIZ

Pacihty Captain Associate Warden

Pacility IV-A Pacihty IVeA

STATE OF CALIFORNIA—YOUTH AND ADUL'I

CORRECTIONAL AGINCY

(GRAY DAVIS, Grovernor

DM PAIRTMICNT OF CORRECTIONS

Inmate Appeals Branch

PO. Box YAZ2883

Sacramento, CA 94283-0001]

March 24, 2003

Mields, CDC #P-8$3425

California State Prison, Corcoran

yO) Box S8OO

, PCOrati CCA rs SZ | 2 OOUUY)

ae

Dear Mi hield

Lhe Coit te ed doc UMeENL! AT being returned LO

ou for the following reasons

his office provides the Director's Level Review of

mnmate/parolee appeal The form must be

completed through the Second Level of Review on

behalf ol the Warden or Parole Region

\dministrator Your appeal Wik rejected

Withdrawn or cancelled If you disagree with that

decision, contact the Appeals Coordinator. You must

comply with structions from that office

Your assigned counselor the \ppeals

Coordimator, or your Parole Agent can answer any

question You bay have regarding the appeals

proces: lubrary staff can help you obtain any

addr Seaes You need

IN. Garannt:

N. GRANNIS, Chet

Inmate Appeals Branch