Opinion
CV 20-01378-PHX-JAT (DMF)
11-04-2022
Sir Howard Blake Tillman, Plaintiff, v. David Shinn, et al., Defendants.
ORDER
James A. Teiborg, Senior United States District Judge
Plaintiff Sir Howard Blake Tillman, who is currently confined in the Arizona State Prison Complex (ASPC)-Eyman, Special Management Unit (SMU) I, brought this pro se civil rights action under 42 U.S.C. § 1983 against Arizona Department of Corrections (ADC) Correctional Officers D'Arcy Davis and Aaron Tedesco. (Doc. 32.) Before the Court is Defendants' Motion for Summary Judgment. (Doc. 66.) The Court will grant Defendants' Motion.
I. Background
In his Second Amended Complaint, Tillman alleged that, on December 24, 2019, Defendants Davis and Tedesco intentionally left him in a hot shower for an extended period of time, and, as a result, Tillman lost consciousness and required medical treatment. (Doc. 32.)
Defendants move for summary judgment on the grounds that Tillman was not exposed to an objectively sufficiently serious deprivation and Defendants did not act with deliberate indifference. (Doc. 66.)
Upon the filing of Defendants' Motion for Summary Judgment, the Court issued an Order with the Notice required under Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc), which informed Tillman of the requirements under Federal Rule of Civil Procedure 56 and set a briefing schedule. (Doc. 68).
II. Summary Judgment Standard
A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden then shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed.R.Civ.P. 56(c)(1).
At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence, and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3). Where the nonmovant is a pro se litigant, the court must consider as evidence in opposition to summary judgment all the nonmovant's contentions set forth in a verified complaint or motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
III. Relevant Facts
Tillman has been housed in ASPC-Eyman, SMU I since September 2019. (Doc. 67 ¶ 2; Doc. 71 ¶ 2.) On December 24, 2019, Tillman was housed in Wing 2, Dog Pod, cell 35, which is on the bottom tier. (Doc. 67 ¶ 9; Doc. 71 ¶ 9.)
On December 24, 2019, Davis was the assigned Control Officer for Wing 2, Able and Dog Pods in the SMU, working a 6:00 a.m. to 6:00 p.m. shift. (Doc. 67 ¶ 4; Doc. 71 ¶ 4.) As the Control Officer, Davis was responsible for opening cell doors to allow prisoners to have shower time; use the phones; and go to recreation, chow hall, medical, or work. (Id.). Davis would then secure the unit down. (Id.) On December 24, 2019, Davis was the only officer assigned to the control rooms for Able and Dog Pods, so she had to travel back and forth between two clusters to open cell doors for prisoners to access showers, phones, recreation, medical, etc. (Doc. 67 ¶ 10; Doc. 71 ¶ 10.)
On December 24, 2019, Tedesco was a Floor Officer for Wing 2, Able and Dog Pods in the SMU, working a 6:00 a.m. to 6:00 p.m. shift. (Doc. 67 ¶ 6; Doc. 71 ¶ 6.) As the Floor Officer, Tedesco was responsible for conducting security walks, which are to be completed within 59 minutes of the last walk. (Id.) Depending on staffing, security walks may not be completed every 59 minutes. (Id.) During a security walk, an officer walks the entire pod, top and bottom tiers, to the shower and back, and makes sure prisoners are where they are supposed to be and there are no issues. (Id.)
Tier time is when prisoners are allowed out of their cells to shower, use the phone, exercise, or sit at tables in the pod. (Doc. 67 ¶ 11; Doc. 71 ¶ 11.) Tier time occurs twice a day-once in the morning and once in the afternoon-and it is normally for two hours, ending at 3:00 p.m. (Id.) Tier time is alternated between the top and bottom tiers. (Id.)
During tier time, or pod time, prisoners can come and go to the showers-which are individual showers-as they please. (Doc. 67 ¶ 12; Doc. 71 ¶ 12.) In Dog Pod, there are two individual showers-one on the top tier and one on the bottom tier. (Doc. 67 ¶ 13; Doc. 71 ¶ 13.)
On December 24, 2019, tier time was scheduled as follows: 7:00 a.m. top tier; 9:00 a.m. bottom tier; noon top tier; and 1:00 p.m. bottom tier. (Doc. 67 ¶ 14; Doc. 71 ¶ 14.) On this day, there was only one hour of tier time at noon and at 1:00 p.m. because of short staffing. (Id.) Because Tillman was on the bottom tier, he was out for tier time at 1:00 p.m. (Doc. 67 ¶ 16; Doc. 71 ¶ 16.)
Prisoners have control of the water in the showers. (Doc. 67 ¶ 23 (in part); Doc. 71 ¶ 23.) Defendants assert that the showers are ventilated and have trap doors for handcuffing prisoners. (Doc. 67 ¶ 23.) Defendants further assert that the trap door in a shower is normally open, and prisoners usually put their clothing in it when they shower. (Id.)
Tillman explains, however, that the showers are poorly ventilated, and the trap door is used only for handcuffing prisoners. (Doc. 71 ¶ 23.) In Plaintiff's Wing at SMU I, prisoners come and go to the showers as they please with no escort, no handcuffs, and no restraints. (Id.) Therefore, the trap doors in the showers are always closed, and there is no way for prisoners to put their clothing in the trap door when they shower. (Id.) Tillman asserts that if the trap door in a shower was open, it would be considered a breach in security. (Id.)
Defendants assert that there is no place for a prisoner to place his clothes while in the shower, and, sometimes, prisoners in the upper tier shower will put their clothes over the rails that surround the upper tier. (Doc. 67 ¶ 24.) But Tillman states that prisoners never hang their clothes on the rails surrounding the upper tier because that violates policy and procedure, and a prisoner could receive a disciplinary ticket for such action. (Doc. 71 ¶ 24.)
On December 24, 2019, Tillman entered the upper tier shower at approximately 2:00 p.m. (Doc. 67 ¶¶ 19, 32 (in part); Doc 71 ¶ 19.) Tier time ended at 2:00 p.m. that day, so, at that time, Davis locked down the unit, which locks all cell and shower doors, so that she could go to the control room for Able Cluster. (Doc. 67 ¶ 20; Doc. 71 ¶ 20.) Daniel Cortez, a prisoner housed next to Tillman in Dog Pod, avers that when Davis started to lock down the Pod, he got her attention by waving his arms at her and pointing at the showers to indicate that Tillman was in the shower. (Doc. 71-1 at 12, Cortez Aff. ¶ 3.) Cortez further avers that prisoners in the Pod immediately started calling out for help and kicking cell doors to get officers' attention and notify them that Tillman was in the shower. (Id. ¶ 4.)
Tillman was in the middle of his shower when the doors closed/locked down, and he continued to finish his shower. (Doc. 67 ¶ 22; Doc. 71 ¶ 22.)
Davis asserts that she did not see Tillman enter the shower, nor did she see any clothes hanging over the upper tier rail outside the shower. (Doc. 67 ¶ 25; Doc. 71 ¶ 25.)
Tillman attempted to get Davis's attention by calling out and banging on the shower door, but he could not see Davis from the shower door and did not speak to her. (Doc. 67 ¶ 28; Doc. 71 ¶ 28.)
Davis conducted “fire watches” at 2:30 p.m. and 3:00 p.m.; however, she asserts that she did not see or hear anything out of the ordinary, and she did not hear Tillman or other prisoners yelling to notify her that Tillman was trapped in the shower. (Doc. 67 ¶ 29; Doc. 71 ¶ 29.)
Cortez avers that every time prisoners started yelling and banging and making as much noise as possible, Davis would look into the Pod and then walk off; she never sent a floor officer in to respond to the noise or see what the issue was. (Doc. 71-1 at 12, Cortez Aff. ¶ 5.) Cortez avers that all the prisoners in the Pod continued screaming and kicking cell doors to get officers' attention and notify them that Tillman was in the shower, but no officer responded. (Id. ¶ 7.)
Defendants assert that at 3:23 p.m., Tescado conducted a security check of the Able and Dog Pods, but he did not see Tillman in the shower or hear Tillman or other prisoners yelling to notify him that Tillman was in the shower. (Doc. 67 ¶ 30.)
Cortez avers that for over two hours after the 2:00 p.m. lockdown, no security checks or walks were conducted. (Doc. 71-1 at 13, Cortez Aff ¶¶ 13-14.) Cortez avers that, during this time, he was able to communicate back and forth with Tillman, and Tillman stated that he was feeling nauseous and light-headed. (Id. ¶ 8.) Cortez avers that, shortly thereafter, he heard a loud thump, and was no longer able to communicate with Tillman. (Id. ¶ 9.)
Tillman avers that during the time he was locked in the shower, it was hot and steamy, and he began to experience anxiety and panic attacks. (Doc. 71 at 14, Tillman Aff. ¶¶ 20, 22.) Tillman avers that there was no seat in the shower, there was poor ventilation, and the temperature was excessive. (Id. ¶ 24.) Tillman avers that he eventually was unable to breathe well and started gasping for air. (Id. ¶ 26.) Tillman avers that he began to feel light-headed, started sliding down the shower wall, and then lost consciousness. (Id. ¶¶ 28-29.)
At 3:40 p.m., prisoner kitchen workers returned to the unit, and Davis had to open each of their cells and then lock down again. (Doc 67 ¶ 31; Doc. 71 ¶ 31.)
At 4:00 p.m., a formal count was announced. (Doc. 67 ¶ 32; Doc. 71 ¶ 32.) Tedesco entered the Pod, and he heard prisoners yelling. (Doc. 67 ¶ 32 (in part).) Cortez avers that as he entered the Pod, Tedesco stated “I would have come a long time ago had you guys not been making so much noise.” (Doc. 71-1 at 14, Cortez Aff. ¶ 16.) After Tedesco found Tillman lying unconscious on the shower floor, Davis opened the upper tier shower door. (Doc. 67 ¶ 32.) When Tillman regained consciousness, he was laying naked on the floor with Tedesco and Officer Espinoza standing over him. (Doc. 71 at 15, Tillman Aff. ¶ 30.)
Tedesco called an Incident Command System (ICS). (Doc. 71-5 at 11, Tedesco Resp. to Interrog. No. 7.) Officers helped Tillman to his feet, escorted him down the stairs, placed him in a wheelchair, and brought him to the medical unit, where Tillman was evaluated by Nurse Ashburn. (Doc. 67 ¶¶ 35 (in part), 37; Doc. 71 ¶ 35.) Nurse Practitioner (NP) Kendra Avant-Ortiz documented in the medical record that Tillman did not have any injuries; however, Tillman was never seen by NP Avant-Ortiz. (Doc. 67 ¶ 35; 71 ¶ 35.)
Tillman was rehoused at 4:32 p.m., and the ICS ended. (Doc. 67 ¶ 37; Doc. 71 ¶ 37.)
Tillman avers that he suffered a contusion on the top-right side of his head and was prescribed medication as a result of the incident. (Doc. 71 at 16, Tillman Aff ¶ 37.) Tillman sees psychiatric associates every three months as a result of the psychological trauma he experienced during the incident, and he continues to take medication. (Id. ¶¶ 3839.)
IV. Legal Standard
“The Eighth Amendment prohibition against cruel and unusual punishment protects prisoners not only from inhumane methods of punishment but also from inhumane conditions of confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Conditions of confinement may be restrictive and harsh; however, they cannot involve the “wanton and unnecessary infliction of pain” or be devoid of a legitimate penological purpose. Id. (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981), and Hudson v. Palmer, 468 U.S. 517, 548 (1984)).
Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may be held liable only if they acted with “deliberate indifference to a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference standard involves an objective and a subjective prong. First, the plaintiff must show that the alleged deprivation was “sufficiently serious” to rise to the level of an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “Only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quotations and citations omitted). When determining whether an alleged deprivation is objectively sufficiently serious to support a constitutional claim, a court must consider the circumstances, nature, and duration of a deprivation. Johnson, 217 F.3d at 731-32. “The more basic the particular need, the shorter the time it can be withheld.” Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).
Second, the plaintiff must show that the prison official acted with a “sufficiently culpable state of mind”; that is, that the official “kn[ew] of and disregarded an excessive risk to inmate health or safety . . . .” Farmer, 511 U.S. at 837; Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (“the inmate must show that the prison officials had no ‘reasonable' justification for the deprivation”). Thus, a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that a prisoner faces a substantial risk of harm and disregards that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837-45. Mere negligence is insufficient to establish liability; the official's conduct must have been wanton. Id. at 835; Frost, 152 F.3d at 1128. Prison officials may avoid liability by presenting evidence that they lacked knowledge of the risk, or by presenting evidence of a reasonable, albeit unsuccessful, response to the risk. Farmer, 511 U.S. at 844-45.
V. Discussion
The first step in the deliberate indifference analysis is to determine if Tillman's confinement in a hot shower cell, with poor ventilation, for just over two hours deprived him of the “the minimal civilized measure of life's necessities.” Hudson, 503 U.S. at 9.
Subjecting prisoners to extreme heat may violate the Eighth Amendment. See Johnson v. Lewis, 217 F.3d 726, 729-30, 732 (9th Cir. 2000) (examining prisoners' claims that they were exposed to high temperatures and humidity and suffered heat-related medical problems); Douglas v. Smelosky, No. 3:10-cv-1464-GPC-BGS, 2014 WL 3534702, at *9 (S.D. Cal. July 16, 2014) (“[e]xtreme heat conditions can be sufficiently serious to satisfy the objective requirement of an Eighth Amendment claim”). “When considering an allegation that prisoners are exposed to extreme temperature, courts should examine factors such as the severity of the temperature, the duration, whether there are alternatives to protect prisoners, and whether there are other uncomfortable conditions combined with the temperature.” Pagett v. Arpaio, No. CV 07-1979-PHX-MHM (MEA), 2009 WL 2590119, at *5 (D. Ariz. Aug. 21, 2009) (citations omitted).
Inadequate ventilation may also rise to an Eighth Amendment violation in some circumstances, particularly when combined with extreme temperatures. See Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (“[i]nadequate ‘ventilation and air flow' violates the Eighth Amendment if it ‘undermines the health of inmates and the sanitation of the penitentiary'”) (quoting Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985)); see also Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013) (“exposing prisoners to extreme temperatures without adequate ventilation may violate the Eighth Amendment”).
Tillman's evidence, however, fails to support that he was subjected to extreme temperatures or poor ventilation for such a duration that the conditions were objectively sufficiently serious to support an Eighth Amendment claim. According to Tillman's facts, the hot temperature in the shower cell was the result of steam from Tillman's hot shower, and he was subject to this overheated shower cell for just over two hours. This is not the type of extreme temperature exposure that courts have determined rises to an Eighth Amendment violation. See White v. Monohan, 326 Fed.Appx. 385, 387 (7th Cir. 2009) (allegations of extreme cell temperatures over 100 degrees and the lack of ventilation supported a conditions of confinement claim); Blackman v. Kukua, 758 F.Supp.2d 398, 408-09 (S.D. Tex. 2010) (finding objective prong of Eighth Amendment satisfied when reported temperatures were in excess of 100 degrees indoors for 27 days); cf. Raugust v. Ferriter, No. CV-07-55H-DWM-RKS, 2008 WL 5436016, at *1 (D. Mont. June 11, 2008) (90 degree temperatures in the plaintiffs' cells without fans failed to state an Eighth Amendment violation as such conditions alone are not extreme); Chandler v. Crosby, 379 F.3d 1278, 1298 (11th Cir. 2004) (temperatures between 80 and 90 degrees, and temperature in excess of 90 degrees occurring 9% of the time, during months of July and August not extreme and unconstitutionally excessive); Minifield v. Butikofer, 298 F.Supp.2d 900, 904 (N.D. Cal. 2004) (“the deprivation of ventilation and water for such a short period of time”-5 hours-“does not amount to a violation of Plaintiff's constitutional rights”).
Moreover, there is no dispute that Tillman could control the water in the shower and turn it on and off. Thus, at any time during his confinement in the shower, he could have turned the water on at a cool temperature and lowered his body temperature.
Courts have also found that confinement in a shower cell, even in hot conditions, for several hours does not rise to an Eighth Amendment violation. See, e.g., Dedeaux v. Bannister, 184 F.3d 817, at *1 (5th Cir. 1999) (per curiam) (unpublished opinion) (confinement to shower stall “for several hours” not actionable under § 1983 because “a short period of confinement under unpleasant conditions does not violate the constitution”); Thornton v. Phillips, No. 5:17cv199, 2019 WL 7559630, at *4-6 (E.D. Tex. July 25, 2019) (no constitutional violation when prisoner was “in a shower for two hours in hot conditions” that resulted in mild overheating and elevated blood pressure), report and recommendation adopted, 2019 WL 5304086 (E.D. Tex. Oct. 21, 2019); Brawner v. Cartledge, No. 5:12-cv-1889-RMG, 2014 WL 958658, at *2 (D. S.C. March 11, 2014) (allegation that the plaintiff was held in a shower stall for four hours is insufficient to establish a serious deprivation of a basic human need under the Eighth Amendment); cf. Irwin v. Coleman, No. 5:20-cv-109, 2021 WL 2450762, at *1 (S.D. Ga. May 21, 2021) (allegation that defendant officers left the plaintiff locked in the shower for 34 hours supported Eighth Amendment claim).
There can be no dispute that Tillman suffered harm during confinement in the shower cell when he experienced panic attacks and lost consciousness. But not every injury suffered by a prisoner “translates into constitutional liability for prison officials responsible for the victims' safety.” Farmer, 511 U.S. at 834. Although Tillman incurred injury during the two-hour confinement, other prisoners subjected to the same conditions for the same amount of time would not have necessarily suffered to the same extent, if at all. Thus, Tillman's injury is not dispositive of the objective component inquiry.
Because the facts, construed in Tillman's favor, fail to establish that he was subjected to conditions that were objectively sufficiently serious to implicate the Eighth Amendment, Tillman's claim fails, and the Court need not address the subjective prong.
Defendants' Motion for Summary Judgment will be granted.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 66), and the Motion is granted.
(2) The Clerk of Court must enter judgment accordingly and terminate the action.