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Jackson v. Walker

June 16, 2009

CHRISTOPHER JACKSON, PLAINTIFF,
v.
J. WALKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment, filed on January 30, 2009, to which plaintiff has filed his opposition, after which defendants filed a reply.

This necessarily tedious motion involves a multitude of alleged observations about unsanitary conditions in the Folsom kitchen(s). While no one disputes, or should be surprised, about the presence of some rodents around prison food preparation facilities, as this would necessarily be a constant battle, the question of when a problem becomes one of constitutional magnitude, and how much an individual knew, and when, about an institutional problem such that liability should attach, is proven only here with a massive amount of singular observations. It is difficult to distinguish a disputed fact from a disputed material fact. Plaintiff does not assist the adjudication by shotgunning his allegations to every supervisor who had a connection to food service. Although the undersigned has great doubt that anything in this litigation will improve the food service at Folsom prison, even assuming that it can or should be improved, hopefully, these Findings and Recommendations have mitigated the almost impossible proof problems facing the trial judge and jury.

Second Amended Complaint

This action, originally filed on September 11, 2006, proceeds on a second amended complaint, filed on April 27, 2007 (docket # 11), as modified by the Order, filed on August 22, 2007 (# 17), dismissing the CDCR,*fn1 Schwarzenegger, Hickman, Woodford and Dovey as defendants. Plaintiff is proceeding against the twelve remaining defendants: James Walker, Anthony J. Malfi, D. Leiber,*fn2 Karen Kelly, Haythorne, Hague, Rodriguez, Ruller,*fn3 Arndt,*fn4 Baughman, Bernardino*fn5 and Alice Smith.

Plaintiff contends defendants Walker, Malfi, Leiber and Baughman have implemented a policy of serving food to the inmates of California State Prison-Sacramento (CSPS) in their assigned cells and that the main kitchen at CSPS, where all food is stored and prepared and from which it is transported to individual housing unit kitchens, is supervised by defendants Haythorne, Hague, Rodriguez, Ruller and Arndt. Second Amended Complaint (SAC), pp. 6-7.*fn6 Plaintiff alleges that defendants Haythorne, Hague, Rodriguez, Ruller and Arndt have been made personally aware of unsanitary conditions and handling of food, since as early as January 9, 2003, but have done little to enforce health and safety standards. Id., at 7. Plaintiff states that Haythorne, Hague, Rodriguez, Ruller and Arndt had known for years before plaintiff's arrival about rats/rodents nesting and mating in the CSPS main kitchen and have only responded by setting "stick traps" throughout the main kitchen to hope to control rodent spreading but have continued to allow food storage and preparation there. Id.

Defendants Haythorne, Hague, Rodriguez, Ruller and Arndt were personally aware of dozens of inmate complaints about correctional staff not adhering to health and safety standards in food handling and service such as the stacking of bread racks used to transport food trays on the floor and the use of the food cart as a cart for sheet exchange and to transport other supplies during non food service hours without either the racks or cart being cleaned before being used during food service. Id., at 7-8. Despite numerous memoranda issued related to the stacking of bread racks, correctional officials continued to defy health and safety standards. Id., at 8, Exhibit (Exh.) A.

Plaintiff recounts inmate appeals he filed in 2005, complaining of, inter alia, inmates being allowed to handle food who were not medically cleared to do so; although assured that this would not recur, prison officials continued to defy health and safety standards. SAC, pp. 8-9, Exhs. B, C, & D. Plaintiff believes that Inmates Henry, #P-64498, and Douglas, #H-53369, who were assigned jobs in the main kitchen bakery, discovered rats/rodents trapped or otherwise during their morning hour assignments. Id., at 9.

Plaintiff was assigned to the main kitchen bakery on around January 5, 2006, and personally witnessed the rat/rodent main kitchen infestation. SAC, p. 10. Plaintiff saw that food stored in the dry goods room was accessible to rodents, as was food that was cooked and left out for overnight cooling. Id. Plaintiff began to advise inmates not to eat certain foods. Id.

Inmate Wright, #J-67360, was treated for severe food poisoning after eating prison food a day or two earlier; after he discovered multiple numbers of CSPS inmates "treated for exposure to food poisoning," Wright initiated a group inmate appeal asking that all rats/rodents in the main kitchen be eliminated, which appeal was "obstructed, ignored and denied" as a result of defendant Walker's refusal to protect inmates' health. Id., & Exh. E.*fn7

Plaintiff alleges that on November 8, 2005, plaintiff submitted a medical request because he had gotten very sick after eating prison food; he was seen by a doctor on November 16, 2009, and was prescribed medication; he was seen again on November 29, 2005, for the same problem, involving stomach cramps, vomiting and diarrhea and was diagnosed with food poisoning and prescribed additional medication. SAC, pp. 10-11. Plaintiff submitted more medical requests, on April 16, 2006, on April 25, 2006, and on May 1, 2006, regarding the same types of symptoms after eating prison food, and on April 19, 2006, as to the earliest of these requests, was seen by R.N. Cunningham (not a defendant) and given over-the-counter medication; as to the April 25, 2006, request, which plaintiff submitted saying that these medicines did not work, plaintiff was seen by non-defendant Dr. Duc, who prescribed plaintiff food poisoning medication and told plaintiff that there had been a number of food poisoning cases recently. Id., at 11. Plaintiff was seen for food poisoning again on May 10, 2006, and prescribed medication, after indicating, on May 1, 2006, that he had yet to receive his prescription. Id., & Exh. F.

Plaintiff recounts an interview between defendant Rodriguez and Inmate Williams on April 14, 2006, on a complaint filed by Williams on March 2, 2006, in which plaintiff contends that Rodriguez told Williams he had been working at CSPS for 15 years and that during that period there had always been rats/rodents in the main kitchen, which were controlled by "sticky traps," asking Williams to withdraw his appeal. SAC, p. 11 & Exh. G. Williams allegedly asked how the rat/rodent problem could be considered under control when, on March 24, 2006, rat/rodent feces and bite marks were found in up to a dozen pans of iced cake left out to cool the evening before. SAC, pp. 11-12. Defendant Rodriguez denied this, despite Correctional Cook I Cronjager's (not a defendant) declaration that he had personally reported the event to defendant Rodriguez, his supervisor. SAC, p. 12 & Exh. H. Plaintiff relates various steps taken by Williams to bring attention to the infestation problem: his contact with the ACLU on January 15, 2006; filing a grand jury complaint in Sacramento County on March 2, 2006; writing to U.S. Senator Dianne Feinstein on March 1, 2006; writing to the state Department of Health Services on March 1, 2006; writing to the Office of the Inspector General on March 15, 2006; contacting defendant Walker who forwarded his letter to a correctional sergeant (who told Williams since he did not work in the main kitchen he could not help him due to his lack of personal knowledge; nor have Williams' other efforts been availing to date). SAC, pp. 12-14 & Exhs. J, K, L, M, N, & O. Plaintiff also recounts, on information and belief, that Inmate Henry encountered a large rat in the main kitchen on March 4, 2006. SAC, p. 12, Exh. I.

Plaintiff contends that defendant Kelly, CSPS Health Care Manager has been deliberately indifferent to the conditions complained of. SAC, pp. 3-4, 14. He claims that each named defendant has "obstructed, ignored, and denied the existence of rats/rodents" in the CSPS main kitchen, as well as other food service safety and health concerns for years. SAC, pp. 14-15.

Plaintiff avers that he worked in the CSPS main kitchen between January 1, 2006,*fn8 and August 30, 2006, and his complaints and requests to defendants Raymond [Bernardino] and Smith, both CSPS Correctional Cooks I, were obstructed or otherwise not addressed. SAC, pp. 5, 15, 20. Defendant Leiber, CSPS Correctional Captain of C-facility, denied CSPS inmate appeals*fn9 regarding the defective food services and violations of health and safety standards, and has been deliberately indifferent with regard to the conditions at issue. SAC, pp. 3, 16-19. At a July 13, 2006, C-facility Men's Advisory Council meeting between inmates and defendants Leiber, Haythorne and Hague, the high number of CSPS food poisoning cases were discussed and a "sophisticated justification" was offered, but defendant Hague admitted that she had personally witnessed the over-stacking of bread racks during food service and so informed defendant Leiber, also stating that CSPS staff would only adhere to appropriate food service health and safety standards under supervision. SAC, pp. 17-18. Defendant Malfi has failed to provide a written response to a citizen's complaint filed by Inmate Williams' mother due to the food poisoning and rodent problem, although a Lieutenant Flint did make a phone contact with her. SAC, p. 19.

Inmate Williams was assigned to the CSPS main kitchen on June 14, 2006; Williams' direct supervisor (non-defendant) D.S. Abellon spoke with plaintiff and Williams, admitting that there was a rat/rodent infestation in the main kitchen and that based on his own training he swore under penalty of perjury that it would take a complete fumigation of the main kitchen to eliminate the infestation. SAC, pp. 19-20 & Exh. T.

Defendant Malfi ignored plaintiff's August and October, 2006, written requests regarding the conditions at issue herein. SAC, p. 20. When plaintiff was re-housed in CSPS B-facility, where defendant Baughman is in charge of facility operations and programs, plaintiff observed that Baughman's subordinates were violating the health and safety standards at issue in the instant action, imposing cruel and unusual punishment in violation of the Eighth Amendment. SAC, pp. 20-21. Defendant Baughman assigned plaintiff's September 21, 2006, inmate appeal asking for compliance with health and safety standards and regulations, to a Sergeant Baxter (not a defendant) who white-washed the investigation on Baughman's behalf. Id., at 21. Plaintiff alleges a violation of the Eighth Amendment as to all defendants, and asks for injunctive and declaratory relief, as well as money, including punitive, damages. SAC, pp. 20-25.*fn10 The specific allegations he sets forth as violations of the Eighth Amendment are that: the cell-feeding policy, practice or procedure violates California's Health and Safety Code; acting with deliberate indifference in the refusal to exterminate rats/rodents from the prison main kitchen from the first notice and continued withholding of acknowledgment of the problem's existence and with regard to annual health inspections, and by allowing the rats/rodents to continue breeding; obstructing, ignoring, denying inmate grievances concerning prison officials' defiance of health and safety standards in food handling and service; failure to implement an adequate self-evaluation plan related to food service; failure to remedy the conditions imposing cruel and unusual punishment. SAC, p. 23.

Motion for Summary Judgment

Defendants set forth as grounds for their summary judgment motion that: 1) the conditions of which plaintiff complains were not sufficiently serious to amount to a constitutional deprivation; 2) even if the conditions were objectively serious, defendants did not ignore any alleged violations, but instead took corrective measures to address any lapses in the food service at CSPS; 3) there is no medical evidence that plaintiff contracted food poisoning or suffered any harm from eating the food at CSPS; 4) plaintiff has no evidence that defendants Kelly, Leiber, Malfi, and Walker participated in or failed to prevent any alleged violations to assert a supervisory liability claim against them; and 5) defendants are entitled to qualified immunity because there was no constitutional violation and defendants acted reasonably in addressing inmate complaints about the food service at CSPS. Motion for Summary Judgment (MSJ), p. 2.*fn11

Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Fed. R. Civ. P. 56(c) is met. "The judgment sought shall be rendered forthwith if . . . there is no genuine issue as to any material fact, and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct., 2548, 2553 (1986). "[W]here 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.'" Id. Indeed, summary judgment 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. See id. at 322, 106 S.Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. 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 satisfied." Id. at 323, 106 S.Ct. at 2553.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is 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. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S.Ct. at 1356 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, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 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 is sufficient that "the claimed factual dispute be shown to require a jury or judge 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 is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. 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. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine 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 a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1356 (citation omitted).

On August 6, 2007 (docket # 16), the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

Undisputed Facts

The following facts set forth as undisputed by defendants are either expressly undisputed by plaintiff, or are putatively, but not materially, disputed; that is, they are disputed only to the extent that he seeks to modify the fact as presented without actually disputing the truth of the fact as set forth. Where plaintiff seeks to add a caveat to a fact defendants assert to be undisputed without challenging the essence or materiality of the fact, the court deems that fact to be undisputed but includes plaintiff's asserted qualification. Relevant facts, disputed or undisputed, pertaining to the individual defendants are set forth below under the individual defendant's name.

Plaintiff has been incarcerated at California State Prison-Sacramento (CSPS) since March 1995. Plaintiff worked in the CSPS main kitchen from January to August 2006. He was assigned to the bakery for approximately four months, then he was a distribution clerk until August 2006, and has not worked in the main kitchen since August, 2006. Plaintiff also worked in two satellite kitchens in C-yard and a kitchen in B-yard. He has never worked in any of the kitchens in A-yard. As a pantry kitchen worker, plaintiff prepared sack lunches, worked on the serving line putting food on trays, helped off load deliveries, counted trays, and reheated and cooked food. The last time plaintiff worked in a satellite kitchen was around June or July 2007.

Plaintiff did not work in the food industry, nor did he take a course or training in food service, before being incarcerated. Plaintiff is not claiming that being fed in his cell is unconstitutional. Dr. Hooper (not a defendant) did not diagnose any inmate at CSPS with food poisoning in 2005.

During the winter of 2005 to 2006, rodents were coming into the main kitchen and other buildings throughout the prison because of the heavy rain fall. (Plaintiff does not specifically dispute this but claims rodent "infestation" has been a long-standing issue at CSPS). Vector control took corrective measures by laying down traps. (Plaintiff does not deny this, but claims that such efforts were inadequate).

In support of DUF*fn12 3, defendants cite plaintiff's deposition for the fact that plaintiff baked pastries and worked the ovens in the bakery, and that as a distribution clerk, he prepared paperwork, menus, and tabulated servings. Plaintiff's deposition, vol. 1 at 15:16-21 & 25:5-26:3. Citing some of the same portions of his deposition, as well as 17:13-20, his declaration at ¶¶ 9-10, plaintiff avers that he had additional responsibilities, including retrieving ingredients from dry goods storage and supplementing/substituting food items for food that was inedible or contaminated. The court notes that during the approximately four months that plaintiff worked in the main kitchen bakery, plaintiff's Dep. 15:22-25, plaintiff asserts he had occasion to go to all areas:

Q: And other than the pantry kitchen, what other areas of the main kitchen had you been to?

A: Every location: production; the production location; the butcher shop, which is adjacent to the bakery; the dry goods storage room where the ingredients for the cakes is located; the freezers, the chill blasts; the supervisor's office; the scullery; the back dock.

Plaintiff's Dep. 16:16-23.

As to DUF 5, wherein defendants state that while plaintiff was never assigned to work in the main kitchen back dock area, he would go to the area on occasion to retrieve or drop off food items, citing plaintiff's Dep. at 22:7-23:6, plaintiff takes issue only with the phrase "on occasion," maintaining that his visits to the back dock area were numerous and daily, citing in addition to the deposition portion relied on by defendants, his Dep. at 25:21-26:3. It is not entirely clear whether plaintiff maintains that his trips to the back dock area occurred while he was in the bakery or after his assignment as distribution clerk, but he does assert that he had to go to the back dock area to ship out prepared food and to pick up food for delivery. Plaintiff's Dep.: 22:9-12.

In DUF 10, defendants maintain that plaintiff complains about the food service at CSPS in 2005 and 2006, alleging that: food had foreign particles in it; dirty bread racks and rolling carts were used during food service; food trays were not covered; inmate servers were not wearing gloves and hats; non-medically cleared inmates were handling food; and rats and rodents were present in the main kitchen, contending that as a result of these violations, he contracted food poisoning, citing his SAC, ¶¶ 19, 20, 27, 40 & 46; plaintiff's Dep. at 36:22-38:19. Plaintiff does not dispute any portion of this summary, but contends that his allegations are broader in that he also complains about defendants' alleged refusal to develop and implement policies and procedures preventing cooked and stored food from contamination by rat/rodent infestation; that staff and inmates were inadequately trained with regard to cross-contamination; that food storage was not adequate to prevent rat/rodent access; that contaminated food was fed to inmates, not disposed of; that defendants failed to correct and eliminate health and safety issues raised in 2002 and 2003; that defendants failed to enforce health and safety codes, citing, inter alia, extensive portions of the SAC, California Health and Safety Code sections and his own declaration.

In DUF 11, defendants set forth that plaintiff does not claim that food trays were being stacked on top of each other. Plaintiff's Dep. at 40:13-16. Plaintiff cites his SAC, Exhs. A-D & R (see above), his own Dep. at 40-4-12; Cal. Health & Safety Code §§ 114067,*fn13 113984*fn14 and his declaration in dispute, stating that he does contend that uncovered food trays were placed on bread racks, which bread racks were stacked on top of each other, allowing dirt from upper bread racks to fall into lower uncovered food trays. Plaintiff in his deposition does, however, concede that food trays, as opposed to bread racks, were not literally stacked on top of each other; thus, the literal truth of this fact is undisputed.*fn15

In DUF 13, defendants state that plaintiff's claims regarding the presence of rodents is limited to the main kitchen. Plaintiff's Dep. at 44:20-25. Plaintiff's quibbling as to whether he asserts that the rats/rodents infested the main kitchen, rather than simply asserting their presence in the main kitchen, does not dispute the substance of this assertion, which is that plaintiff did concede that his complaint as to rats and rodents only goes to their being found in the main kitchen:

Q: ..................................................................................................... Are you claiming that there were rat [sic] and rodents in the main kitchen and the satellite kitchens, or only in the main kitchen?

A: Only the main kitchen. I don't know if there was in the satellite kitchen, but I'm complaining about the rat and rodents that I seen in the main kitchen.

Plaintiff's Dep. at 44:20-25.

In DUF 14, defendants set forth that when plaintiff worked in the main kitchen, plaintiff spoke, on a number of occasions, with Rick Marcos (also known as Rick Ambriz) from vector control at CSPS, about the presence of rodents, who informed plaintiff that he was putting down traps, and plaintiff saw the plastic traps around the main kitchen. Plaintiff's Dep. at 46:3-47:2. Plaintiff seeks to dispute this assertion with his declaration that Ambriz also told him that a rat/rodent infestation could result from two rats within a six-month period and that CSPS or CDCR did not want to spend the money to fumigate the main kitchen to exterminate the rodents. Plaintiff's Declaration (Dec.) ¶ 44. However, even if true, this does not dispute the fact asserted by defendants to which plaintiff testified at his deposition, whether or not plaintiff found the traps inadequate.

Eighth Amendment Legal Standard

"'Because 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.'" Somers v. Thurman, 109 F.3d 614, 623 (1997), quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000 (1992) (omitting internal quotations and citations).

[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994).

However, "[p]rison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety." Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), citing, inter alia, Farmer v. Brennan, 511 U.S. at 832, 114 S.Ct. 1970; Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982) ("[A]n institution's obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety" [internal quotations omitted]). When an inmate has been deprived of necessities, "the circumstances, nature and duration of a deprivation...must be considered in determining whether a constitutional violation has occurred." Johnson, supra, at 731. "The occasional presence of a rodent is insufficient to establish the objective component of an Eighth Amendment claim, which requires that a deprivation be sufficiently serious," Tucker v. Rose, 955 F. Supp. 810, 816 (N.D. Ohio 1997); however, "'a lack of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment.'" Johnson, supra, at 731, quoting Anderson v. County of Kern, 45 F.3d 1310, 1314, as amended, 75 F.3d 448 (9th Cir. 1995). In Somers, supra, the Ninth Circuit cited a Seventh Circuit case, French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985), wherein it was observed that the Tenth Circuit, in Ramos v. Lamm, 639 F.2d 559, 570-71 (10th Cir. 1980), has noted that the state is obligated to provide "'nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it,'" and determined that "the state health code, while not establishing 'constitutional minima,' is relevant in making a finding regarding the constitutionality of existing conditions."

Inmate workers are not given basic instruction on food protection and food service sanitation.[ ] Consequently food items are stored on the floors of walk-in storage compartments and food is often left uncovered allowing the rodents and roaches to contaminate it. Food products which can support food borne diseases are not properly stored and are often left out at room temperature. Food preparation surfaces and cooking equipment are not properly cleaned and therefore provide areas for significant bacterial growth. Food, when it is being served to inmates, is kept at substandard temperatures due to the improper use of the available equipment.

Ramos, supra, at 571.

In that case, the Tenth Circuit court noted that the Colorado Department of Health had found the prison's food service substantially deficient and that the record "amply" supported "the district court's findings and conclusions that the conditions in the food service areas ... are unsanitary and have a substantial and immediate detrimental impact upon the health of the inmate population." Id., at 571-72.

Some conditions of confinement may establish an Eighth Amendment violation "in combination" when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food....

Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 2327 (1991)[emphasis in original].

[I]n order to prevail and recover damages against any of the named prison officials, the inmate[] in this case must prove (1) that the specific prison official, in acting or failing to act, was deliberately indifferent to the mandates of the eighth amendment and (2) that this indifference was the actual and proximate cause of the ...


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