SIGO v. LEHMAN

Full title: DANIEL T. SIGO, Plaintiff, v. JOSEPH LEHMAN, et al., Defendant

Court: United States District Court, E.D. Washington

Date published: Aug 10, 2005

No. CV-03-5094-CI (E.D. Wash. Aug. 10, 2005)

Opinion

No. CV-03-5094-CI.

August 10, 2005

ORDER ADOPTING REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DISMISSAL

ROBERT WHALEY, District Judge

Before the Court is Defendants' Motion for Summary Judgment Dismissal (Ct. Rec. 19). On May 2, 2005, Magistrate Judge Cynthia Imbrogno filed a Report and Recommendation to Grant Defendants' Motion for Summary Judgment Dismissal (Ct. Rec. 41). Plaintiff filed timely objections (Ct. Rec. 42). Plaintiff is proceeding pro se; Assistant Attorney General Stephanie Weigand represents Defendants. The parties did not consent to proceed before a United States Magistrate Judge. The Report and Recommendation (Ct. Rec. 41) is ADOPTED in its entirety.

In his objections (Ct. Rec. 42), Plaintiff contends that the claims raised in his First Amended Complaint (Ct. Rec. 4) involve issues of Federal Constitutional law, not issues involving prison policies and medical treatment. Plaintiff contends that over 100 exhibits and affidavits (Ct. Rec. 30) establish questions of fact that would preclude dismissal on summary judgment.

CLAIM ONE: Plaintiff contends that the fact he has established that excessive noise exists in his cell demonstrates a violation of the Constitution without proof of injury or medical treatment, citing Toussaint v. McCarthy, 801 F.2d 1080, 1110 (9^th Cir. 1986), cert. denied, 48 U.S. 1069 (1987). Toussaint made reference to excessive noise as constituting the infliction of pain without penological justification, a finding made by the district court and not challenged on appeal.

Plaintiff's claim was properly dismissed; excessive noise must be analyzed under an Eighth Amendment, conditions of confinement standard. Recent case law has upheld dismissal of such claims. Regarding excessive noise, the risk of injury due to the noise conditions must be "so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Helling v. McKinney, 509 U.S. 25, 35 (1993); Lunsford v. Bennett, 17 F.3d 1574, 1580 (7^th Cir. 1994) (affirming summary judgment for prison officials who allegedly subjected prisoners to loud noises over an intercom during a 24-hour period; "[t]he record contains no evidence that the noise levels posed a serious risk of injury to the plaintiffs. Subjecting a prisoner to a few hours of periodic loud noises that merely annoy, rather than injure the prisoner does not demonstrate a disregard for the prisoner's welfare."); Murphy v. Dowd, 975 F.2d 435, 437 (8^th Cir. 1992) (per curiam) (affirming judgment for prison officials, finding excessive noise claim was meritless); Givens v. Jones, 900 F.2d 1229, 1234 (8^th Cir. 1990) (affirming summary judgment for prison officials in suit alleging excessive noise caused by remodeling in prison; court finds noise is "a fact of life" and that the claim "on its face appears almost specious;" inmate failed to claim the noise was result of malicious intent or even reckless disregard for his well-being); Peterkin v. Jeffes, 855 F.2d 1021, 1027 (3d Cir. 1988) ("the noise in the cells, while it may be irritating to some prisoners, cannot fairly be said to inflict cruel and unusual punishment").

CLAIM TWO: Plaintiff contends that the Report and Recommendation erred by dismissing his claim involving use of two pillows as ordered by a health status report. He asserts this is not an issue involving denial of medical treatment but, rather, a constitutional violation. Once again, this is a claim that must be analyzed under the Eighth Amendment indifference to medical needs standard. There is no evidence to raise a material question of fact that the denial of two pillows, in light of the other bedding issued to Plaintiff while he was in segregation, constituted a violation of the Eighth Amendment.

CLAIM THREE: Plaintiff summarily contends that the Report and Recommendation erroneously analyzed the denial of physical therapy as a medical claim, rather than a "constitutional" claim. The denial of physical therapy would be analyzed under the Eighth Amendment indifference to medical needs standard. Placement in the intensive management unit and the security requirements attendant thereto prohibited physical therapy treatments. As noted by the treating physician, physical therapy was only one alternative for treatment of Plaintiff's shoulder pain. It is undisputed that a cortisone shot was successful in treating the condition.

CLAIM FIVE: Plaintiff contends that the Report and Recommendation erroneously dismissed his claim involving inadequate clothing, shoes, and coats for use in the exercise yard. Once again, Plaintiff asserts the Report and Recommendation erred in analyzing this claim as a medical issue for which there was no evidence that suggested Plaintiff's health suffered as a result of inadequate clothing for use in the exercise yard during inclement weather. Plaintiff contends that he is entitled, under the Constitution, to outside exercise time. The Report and Recommendation acknowledges that exercise is a life necessity protected under the Eighth Amendment (Ct. Rec. 41 at 12). However, it was also undisputed that exercise outdoors in inclement weather was optional, outdoor coats were made available, as well as socks for use with open-toed sandals.

CLAIM SIX: Plaintiff claims that the Report and Recommendation erroneously dismissed his claim involving lack of running water in his cell. The claim was dismissed because there was no evidence the lack of running water was intentional for the purpose of creating serious risk to Plaintiff's safety and health. The Eighth Amendment analysis of conditions of confinement requires both an objective and subjective component. Hudson v. McMillan, 503 U.S. 1 (1992). Here, there was no material question of fact regarding the subjective component.

CLAIM SEVEN: Plaintiff contends that the Report and Recommendation erroneously dismissed his claim involving constant illumination, citing Lemaire v. Maass, 745 F. Supp. 623, 636 (D. Or. 1990), 12 F.3d 1444 (9^th Cir. 1993). Plaintiff has presented no evidence the lighting was other than minimal and necessary for security, nor has he presented evidence of subjective intent, i.e., that Defendants intentionally maintained the lights at a risk to Plaintiff's health and safety.

CLAIM NINE: Plaintiff contends that he was denied First Amendment access to the courts, resulting in a 2.5 year difference in his release date. In light of the status of state court proceedings at the time the alleged violation occurred, and Plaintiff's limited right to appeal under the Anti-terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 (2005), no material question of fact has been raised.

Having reviewed the Report and Recommendation and considered the timely objections thereto,

IT IS ORDERED that the Report and Recommendation is ADOPTED in its entirety, and Defendants' Motion for Summary Judgment Dismissal (Ct. Rec. 19) is GRANTED. IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward copies to counsel.