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Tyler v. Butler


July 28, 2009


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



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 December 10, 2008, to which plaintiff filed an opposition on January 7, 2009, after which defendants filed a reply, on January 14, 2009.

Amended Complaint

This court has previously set forth the allegations of the amended complaint, as follows herewith, with any necessary modification. This action proceeds on the amended complaint, filed on 11/22/06,*fn1 against defendants employed at Folsom State Prison (FSP): former Warden Diana K. Butler; Correctional Sgt. S. Johnson; Correctional Officer (C/O) Tuggle; C/O D. Ramirez; and C/O P. Cordero. Plaintiff contends that on September 4, 2003, while he was working at his assigned work station in the culinary department, waiting for a large dishwashing tank to fill with hot water, under the direct supervision of defendants Tuggle, Ramirez, Cordero and Johnson, a high pressure hot water hose became unattached from the tank, lifting up and out of control, spraying scalding water directly at plaintiff, and at another inmate, named Smith. Amended Complaint (AC), p. 8. Plaintiff (and the other inmate) moved quickly to avoid being scorched by hot water from the errant hose, whereupon plaintiff slipped on the wet floor and fell, injuring his left knee, causing immediate pain and swelling. Id. Plaintiff contends that Tuggle, Ramirez, Cordero and Johnson failed to supervise the inmates assigned to the scullery area and that the unsupervised inmate filling the washing tank left his work area. Id. Plaintiff alleges that defendants knowingly failed to install a high pressure hot water hose safety device to secure the high pressure hot water hose inside the dishwashing tank. Id., at 9. This omission, in combination with the failure to supervise inmates assigned to use this equipment, made serious injury or death more probable. Id.

Plaintiff alleges that defendants' were deliberately indifferent to a hazardous working condition in violation of the Eighth Amendment and the injury that resulted caused an increase in his pain and suffering because plaintiff suffers from severe osteoarthritis in both knees and has had two ineffective surgeries to his left knee with a full knee replacement scheduled. AC, pp. 9-10. He claims to have lost use of his legs and suffered an overall deterioration of his health. Id., at 9. Plaintiff also contends that defendants acted in reckless disregard for his safety. Id., at 10.*fn2 Plaintiff seeks general, special and punitive damages. See Order, filed on September 24, 2008 (docket # 28), pp. 1-2.

Motion for Summary Judgment

Defendants move for summary judgment, seeking judgment as a matter of law, contending that they were not deliberately indifferent to plaintiff's health and safety; that they did not require plaintiff to work in an unsafe environment; that they did not have a duty to inspect or repair the area or equipment plaintiff contends was defectively maintained; that they did not have notice of any potential risk to plaintiff's health or safety and did not intentionally disregard any such risk, if it existed. Motion for Summary Judgment (MSJ), pp. 1-7.

Legal Standard

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a 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) (quoting Fed. R. Civ. P. 56(c)). "[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. 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. at 1356 (citation omitted).

On May 24, 2007, 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); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

Undisputed/Disputed Facts

Although neither defendants nor plaintiff has explicitly set forth the underlying facts of plaintiff's claim as undisputed, it does not appear to be in dispute that plaintiff was working in the Folsom State Prison kitchen on September 4, 2003, when he experienced a fall, injuring himself, possibly seriously, the result of plaintiff having slipped on a floor that was wet as he moved quickly to escape the hot water spraying in his direction from a hot water hose which had become detached from a dishwashing tank.

Relying on their almost wholly unvarying declarations, defendants set forth the following as undisputed facts: 1. Defendants did not have the responsibility to inspect or make repairs to equipment in the kitchen area. Butler Dec., ¶ 4; Johnson Dec., ¶ 5; Ramirez Dec., ¶ 5; Cordero Dec., ¶ 5; Tuggle Dec., ¶ 5. 2. Defendants were not aware of any alleged defect in the dishwasher or the hot water hose. Butler Dec., ¶ 4; Johnson Dec., ¶ 4; Ramirez Dec., ¶ 4; Cordero Dec., ¶ 4; Tuggle Dec., ¶ 4. 3. Defendants were not aware of any alleged OSHA*fn3 violations. Butler Dec., ¶ 4; Johnson Dec., ¶ 4; Ramirez Dec., ¶ 4; Cordero Dec., ¶ 4; Tuggle Dec., ¶ 4. 4. Defendants were not aware that any safety device could or should have been put on the dishwasher hose. Butler Dec., ¶ 4; Johnson Dec., ¶ 5; Ramirez Dec., ¶ 5; Cordero Dec., ¶ 5; Tuggle Dec., ¶ 5. 5. Defendants were generally aware that the floor could be wet but that condition could not be eliminated even with the exercise of due care. Johnson Dec., ¶ 5; Ramirez Dec., ¶ 5; Cordero Dec., ¶ 5; Tuggle Dec., ¶ 5. 6. The condition of the floor was open and obvious to everyone in the area, including plaintiff. Johnson Dec., ¶ 5; Ramirez Dec., ¶ 5; Cordero Dec., ¶ 5; Tuggle Dec., ¶ 5. Defendants' separate statement of undisputed facts (DUF) in support of MSJ, pp. 1-2.

To dispute any representation that defendants did not know of the risk he faced working in the culinary area, plaintiff relies on a copy of a form for plaintiff's alleged injury of September 4, 2003, addressed to the State Compensation Insurance Fund,*fn4 evidently prepared, at least in part, and signed, by defendant Johnson on September 23, 2003, wherein defendant Johnson states, in response to a question on the form regarding whether corrective actions have been taken: "Methods for reducing accidents due to slipping in the Culinary are being discussed." Plaintiff's Declaration in Opposition (hereafter, Plt.'s Opp. Dec.), p. 4, Exhibit (Ex.) A. Plaintiff alleges that defendant Johnson's statements in his declaration are "perjured," in light of plaintiff's Ex. A, when he states that he neither specifically recalls plaintiff or any incident involving plaintiff's injury in the kitchen. Plt.'s Opp. Dec., p. 5. Plaintiff also avers that defendant Johnson's response to a request for admission,*fn5 that he could not recall any complaints of "unsafe slippery conditions in the culinary department" at Folsom State Prison, (FSP) is in essence a disingenous attempt to escape responsibility and part of defendants' alleged on-going conspiracy to cover up their awareness of the workplace hazards. Id., citing Ex. B, p. 3. To DUF 3, that defendants were unaware of OSHA violations, plaintiff argues that the previously referenced form apparently filled out, at least in part, by defendant Johnson shows that defendants were aware of "recognized hazards," when he referenced methods for reducing accidents in the culinary department being under discussion. Plt.'s Opp. Dec., p. 6. Plaintiff also points to defendant Johnson's admission that he had himself experienced slippery conditions in the FSP culinary department. Id., Ex. B, p. 3.*fn6 In the reply, defendants observe that the worker's compensation form indicates that there were no witnesses to the alleged occurrence and that in plaintiff's portion of the form, plaintiff states that Johnson had asked if he wanted to see the MTA, but that "I told him I would wait and try and walk off the pain." Reply, p. 3. Defendants also point out that the document itself contains the statement "Filing of this report is not an admission of liability," rendering it of no evidentiary value. Defendants also state that the document was not presented to defendant Johnson until September 23, 2003, and that the statement upon which plaintiff so heavily relies -- that methods for reducing accidents in the kitchen were under discussion -- does not indicate knowledge of defendant Johnson or any other defendant of prior accidents, but rather only that after plaintiff's reported fall, that staff had some discussions about what they might be able to do to reduce future accident potential. Reply, p. 3. Of course, defendants' interpretations of the statement are mere argument, as no supplemental affidavit has been submitted warranting how the line referring to discussions of methods for reducing accidents should be interpreted by the individual who apparently wrote it or affirming the date on which the form was submitted to him.

Plaintiff points to defendant Tuggle's declaration, wherein he concedes awareness that the kitchen floor near the sinks and dishwasher can become wet. Id., defendant Tuggle's Dec., ¶ 5. (Plaintiff's Exs. C through E in Opp. to the motion consist of defendants' declarations submitted in support of the summary judgment motion and will simply be identified as the respective defendants' declarations). Indeed, along with defendant Tuggle, defendants Johnson, Ramirez and Cordero all set forth as an undisputed fact that the kitchen floor could become wet. Johnson Dec., ¶ 5; Ramirez Dec., ¶ 5; Cordero Dec., ¶ 5. Defendants Tuggle, Johnson, Ramirez and Cordero go on to say that it is "impossible to entirely eliminate such conditions even through the exercise of due care" and that a wet floor may sometimes be "a normal, expected and readily observable condition that is open and obvious to anyone working in or observing the area." Id. Plaintiff, however, construes the defendants Tuggle, Johnson, Ramirez and Cordero's having conceded that they knew that the floor near the sinks and dishwasher could be wet as an admission by all defendants that they knew of and ignored a "recognized hazard" in violation of OSHA. Plt.'s Opp. Dec., p. 6.

Plaintiff's Ex. F is a copy of defendant Tuggle's supplemental responses to plaintiff's first requests for admission. Plaintiff relies on those responses to demonstrate that defendant Tuggle admits to having worked in the FSP kitchen in 2003, to being assigned to supervise, to having general knowledge that the kitchen is a location where persons may well have sustained injuries,*fn7 to having observed inmates washing dishes and filling up dishwashing tanks.*fn8 Plt.'s Opp. Dec., p. 9, Ex. F. Plaintiff also contends that defendant Tuggle does not deny that inmates are required to manually hold the high pressure hot water hose down in the tank and that he admits that he would consider it to be a safety hazard for an inmate assigned to fill up the dishwashing tank to leave the high pressure hot water hose unattended when the tank was full. While it is true that Tuggle does not deny that inmates are required to manually hold the high pressure water hose down, neither does he confirm it, instead averring that he is unaware of any particular policy or procedure for filling tubs for dishwashing purposes. Ex. F, response to no. 8. Plt.'s Opp. Dec., pp. 9-10, Ex. F. Defendant Tuggle indicates in his responses that he does not ever recall supervising plaintiff directly (which, of course, does not mean he never did, nor does his response clarify whether or not he had any supervisory duties on the day at issue for the inmates in the kitchen), and his responses also indicate that he does not recall ever witnessing anyone being injured in the kitchen or any specific instance of such injuries. Ex. F, responses to nos. 1-4. Defendant Tuggle also asserts that he does not recall any complaint about unsafe slippery conditions in the kitchen other than those contained in the instant action. Ex. F, response to no. 6. In response to whether he allows inmates to leave their work assignments without permission, defendant Tuggle states:

For inmates under my direct supervision, as a matter of general policy, no. However, there are many exceptions such as bathroom breaks, illness or I myself may be called away performing other tasks. I cannot watch all of the inmates or staff all the time. Also, other staff may give permission to inmates to leave their areas for various purposes with or without my permission. It would just depend upon the particular circumstances.

Ex. F, response to no. 9.

Defendant Tuggle flatly denies ever having seen the subject high pressure water hose coming out of the dishwashing tanks in the manner that apparently occurred in this instance. Ex. F, response to no. 11.

Plaintiff contends that defendants failed to keep the workplace free of "recognized hazards" in accordance with OSHA, failed to provide him with any safety training or protective rubber boots, but knowingly assigned him to an area that they recognized could not be kept entirely safe, i.e., in recognizing that the floor could be wet, which plaintiff argues posed a substantial risk of serious harm or death. Plt.'s Opp. Dec., pp. 6-7. He further argues that defendants' assertion that they are not required to make plaintiff's work area entirely safe signifies that they compelled him to work in a place where his health was endangered, referencing the assertion of defendants that the wetness of the floor could be a "normal, expected and readily observable condition that is open and obvious to anyone working in or observing the area." Plt.'s Opp. Dec., p. 7; see, e.g., defendant Johnson Dec., ¶ 5 and DUF 6. Plaintiff also argues that defendants do not deny that the high pressure dishwashing hose was not secured with an (undescribed) safety device, instead maintaining that they indicate they were not aware they were under any duty to secure it. Plt.'s Opp. Dec., p. 7.

Ex. G is a copy of the written responses by defendant Johnson to plaintiff's first request for production of documents.*fn9 Ex. H*fn10 is a copy of plaintiff's request for an extension of time to file an opposition to a previously filed motion for summary judgment, averring that he had yet to be served with additional discovery responses ordered by the court (which resulted in the prior motion for summary judgment being vacated without prejudice to re-notice once defendants' filed proof of service of the further discovery*fn11 ). At Ex. I, plaintiff produces voluminous evidence as to the seriousness of the injury that occurred as a result of the incident that is the subject of this action. In addition to medical records indicating the extent of his injury, physical therapy treatments, the fact that he has since needed a wheelchair, he includes notes of a March 2, 2006, psychiatric visit (on a form entitled "Case Manager Progress Note for Major Depressive Disorder"), wherein he indicated that he suffered chronic pain as a result of his knee injury. Plt.'s Ex. I, No. 12, p. 5. These exhibits support plaintiff's contention that his injury was serious and had a longterm impact, whether in and of itself, or in exacerbating any previous condition. Plaintiff's Ex. J includes various grievances plaintiff filed at FSP regarding the injury he sustained as a result of slipping on the wet floor in the culinary department, the pain, mobility problems and medical treatment (or lack thereof) that has ensued, the claimed on-going wet condition of the floors in the FSP kitchen area which still poses dangers and for which condition plaintiff requests the prison to provide safety measures to prevent injuries from slipping (but which form of injunctive relief is not sought in the underlying instant complaint, which seeks only money, including punitive, damages).*fn12 Also included in this exhibit is a form indicating that plaintiff, at least as of February 19, 2004, was found "permanently mobility impaired" by a condition of his lower extremities due to his knee pain and because the knee "goes out on him." Plt.'s Ex. J, p. 9. Ex. K begins with a copy of a 602 appeal against defendant Cordero, dated August 13, 2003, which predates the incident at issue herein and does not appear to have any relevance to it, concerning as it does plaintiff's claim that another, less experienced, inmate was assigned to a position that plaintiff had been performing in an unofficial capacity. Although plaintiff contends that Ex. K put defendant Cordero on notice as to the constantly slippery and unsafe kitchen floor conditions (plt.'s Dec. Opp., p. 13, Ex. K), this representation is belied by the substance of the grievance itself that plaintiff has provided, which is focused on plaintiff's seniority being passed over by defendant Cordero claiming that this defendant was acting in retaliation for plaintiff's having filed previous grievances against him.

Eighth Amendment Legal Standard

"Prison 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. 825, 832, 114 S.Ct. 1970 (1994). When an inmate has been deprived of necessities, "the circumstances, nature and duration of a deprivation of these necessities must be considered in determining whether a constitutional violation has occurred." Johnson, supra, at 731.

The Ninth Circuit, in concluding that safety hazards, exacerbated by poor or inadequate lighting, pervaded a Washington penitentiary's occupational areas, "seriously threaten[ing] the safety and security of inmates and creat[ing] an unconstitutional infliction of pain," has stated:

Persons involuntarily confined by the state have a constitutional right to safe conditions of confinement. See Youngberg v. Romeo, 1982, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28; Santana v. Collazo, 1 Cir., 1983, 714 F.2d 1172, 1183 [1983]. Not every deviation from ideally safe conditions amounts to a constitutional violation, see, e.g., Santana at 1183. However, the Eighth Amendment entitles inmates in a penal institution to an adequate level of personal safety. This is required because inmates, by reason of their confinement, cannot provide for their own safety. Santana, supra, 714 F.2d at 1183. See also Estelle v. Gamble, 1976, 429 U.S. 97, at 103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251.

Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985); see also, Osolinski v. Kane, 92 F.3d 934, 938 (9th Cir. 1996).

Prisoners alleging Eighth Amendment violations based on unsafe conditions must demonstrate that prison officials were deliberately indifferent to their health or safety by subjecting them to a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. at 833, 114 S.Ct. at 1977. "For a claim ... based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. at 834, 114 S.Ct. at 1977. The prisoner must also demonstrate that the defendant had a "sufficiently culpable state of mind." Id. This standard requires that the official be subjectively aware of the risk; it is not enough that the official objectively should have recognized the danger but failed to do so. Id. at 838, 114 S.Ct. at 1979. "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference." Id. at 837, 114 S.Ct. at 1979. "[A]n official's failure to alleviate a significant risk that he should have perceived but did not...." does not rise to the level of constitutionally deficient conduct. Id. at 838, 114 S.Ct. at 1979. "[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842, 114 S.Ct. at 1981. If the risk was obvious, the trier of fact may infer that a defendant knew of the risk. Id. at 840-42, 114 S.Ct. at 1981. However, obviousness per se will not impart knowledge as a matter of law.

"[D]eliberate indifference entails something more than mere negligence...[but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005), quoting Farmer, supra, 511 U.S. at 835, 114 S.Ct. 1970. Prison officials display a deliberate indifference to an inmate's well-being when they consciously disregard an excessive risk of harm to that inmate's health or safety. Farmer, 511 U.S. at 837-838, 114 S.Ct. at 1979-80.

In Osolinski v. Kane, supra, 92 F.3d 934, a prisoner brought a § 1983 action claiming that the failure of prison officials to repair an oven, the door of which fell off and burned his arm, violated the Eighth Amendment. In Osolinski, the Ninth Circuit found that it was not clearly established that a single defective device, without any other conditions contributing to the threat of an inmates' safety, created an objectively insufficiently inhumane condition sufficient to be violative of the Eighth Amendment. 92 F.3d at 938. In reaching this finding, the Ninth Circuit noted the following several cases which held that minor safety hazards did not violate the Eighth Amendment. Id. In Tunstall v. Rowe, 478 F. Supp. 87, 89 (N.D.Ill. 1979), the existence of a greasy staircase which caused a prisoner to slip and fall and injure his back did not state a constitutional claim under the Eighth Amendment because prison officials are not under a constitutional duty to assure that prison stairs are not greasy. In Snyder v. Blankenship, 473 F. Supp. 1208, 1212 (W.D.Va. 1979), the failure to repair a leaking dishwasher which resulted in a pool of soapy water in which prisoner slipped, injuring his back, did not violate the Eighth Amendment as "a slip and fall injury is not comparable to a prison-related injury, such as harm caused by the assault of fellow inmates, for example." In Robinson v. Cuyler, 511 F. Supp. 161, 163 (E.D.Pa. 1981), the court found that where a prisoner slipped on a wet floor and was burned by the contents of an overturned pot an Eighth Amendment violation was not stated as "[a] slippery kitchen floor does not inflict 'cruel and unusual punishments.'" In Osolinski, 92 F.3d at 938-939, the Ninth Circuit also distinguished the facts of a Second Circuit case, Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987), wherein plaintiff survived a motion to dismiss on a claim of an Eighth Amendment violation, where plaintiff averred that defendant had ordered him to continue working on a ladder after plaintiff had told defendant it was unsafe, because "[t]he order to remain on the ladder in Gill exacerbated the inherent dangerousness of the defective ladder, rendering the ladder a serious safety hazard, akin to those found in Hoptowit."*fn13

Furthermore, the Ninth Circuit has stated flatly that slippery prison floors do not set forth a constitutional violation. Jackson v. State of Ariz., 885 F.2d 639, 641 (9th Cir. 1989) (superseded on another ground) (inmate's complaint about slippery prison floors does not state even an arguable Eighth Amendment violation), citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981) ("the Constitution does not mandate comfortable prisons....").

On the other hand, the Ninth Circuit has also found that slippery floors without protective measures could constitute a condition of deliberate indifference. Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998), citing LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (inmates entitled to protection from unsafe prison conditions). In LeMaire, while the Ninth Circuit found that an injunction could be issued to protect inmates from unsafe conditions before a serious injury had occurred, the court nevertheless stated that "shackling a dangerous inmate in a shower" does not create a "sufficiently unsafe condition[,] [e]ven if the floors to the shower are slippery and LeMaire might fall while showering...." quoting Jackson, supra, 885 F.2d at 641 ("'slippery prison not state even an arguable claim for cruel and unusual punishment.'")

In Frost, by contrast, the inmate was disabled and on crutches, had fallen and injured himself several times on slippery shower floors; prison guards were aware of this, and plaintiff had submitted several grievances to jail officials, advising them of the risk he faced. 152 F.3d at 1129. Moreover, a prison doctor had stated that Frost should be placed in the handicapped unit, but prison officials had failed to accommodate him. Id.


Defendants Johnson, Tuggle, Ramirez, and Cordero

Plaintiff's claim appears to be that the kitchen floors, routinely and dangerously wet, in the FSP kitchen, combined on September 4, 2003, with the defectively attached and/or improperly monitored high pressure hot water hose, to cause plaintiff a serious injury. Plaintiff has not indicated that either of these conditions alone would have resulted in his injury; that is, presumably, if the floors had not been wet, plaintiff would not have slipped and fallen as he jumped to get out of the way of the hot water rushing from the high pressure water hose that became detached and allegedly began spraying wildly. It would appear that the high pressure hot water hose even without the unidentified safety device plaintiff believes should have been installed to prevent the hose's detaching would not have become a threat to plaintiff if the inmate in charge of monitoring it had not apparently wandered off. The question then becomes whether or not plaintiff has shown, in the face of defendants' motion, there is a material issue of fact in dispute with regard to whether any of the defendants were deliberately indifferent in violation of the Eighth Amendment by, as to defendants Johnson, Tuggle, Ramirez, and Cordero, having essentially admitted awareness that the kitchen floors were wet, having conceded that they were unaware (even possibly indifferent to) the need for a safety device for the water hose; and having failed to adequately supervise the inmate who allegedly should have stood by monitoring the filling of the dishwasher tank with hot water.

The problem for plaintiff is that although he made some effort through discovery,*fn14 he has failed to make a sufficient showing that the defendants were on notice of the conditions in the kitchen that plaintiff has alleged to be unsafe, by, for example, showing that prior notice of the unsafe conditions of which he complains, including the wet floors, the high pressure water hose without a safety device, the lack of monitoring of the filling of the dishwashing tank, had been provided in the form of his or other prior inmate grievances or prior inmate or employee accidents or injuries. It appears to have been an unfortunate synergy that occurred when the concededly, and not unexpected, often wet floors of the kitchen combined with what appears to have been the unusual event of the detaching of the dishwashing tank's high pressure water hose which happened just at the period of time when an unidentified inmate, apparently assigned the task of monitoring the tank-filling, was not doing his job, all this occurring when no defendant was present and supervising the scene, so as, for example, to see to it that the inmate assigned to the oversee the tank-filling did not leave his post.*fn15

Plaintiff does not point to prior instances of the hose having detached in this, or any, manner. That institutional kitchen floors may be wet, particularly around dishwashing areas, cannot rise to the level of an Eighth Amendment violation. Defendants point out that inmates and correctional staff worked in the culinary area for long periods every day without incident and argue that towels and mops are available for the inmate staff to clean up spills or water accumulation. Reply, p. 4. The failure of any of the defendants to be present in the kitchen monitoring inmate staff at every moment, or the particular moment at issue, makes out, at most, a case of negligence, not deliberate indifference, on the part of defendants Johnson, Tuggle, Ramirez, and Cordero, and there is no Fourteenth Amendment due process claim to the extent that plaintiff's claims the actions of these defendants were negligent. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662 (1986) ("we conclude that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." [Emphasis in original]).

Defendants cite Morgan v. Morgensen, 465 F.3d 1041 (9th Cir. 2006), and Wallis v. Baldwin, 70 f.3d 1074 (9th Cir. 1995), (MSJ, p. 5), as support for the principle that both the objective and subjective components, articulated in Farmer, supra, which must be evaluated to determine a defendant's "deliberate indifference" to the health and safety of an inmate, applies in cases involving inmate claims of on-the-job prison injuries. To the extent that defendants seek in their reply (p. 4) to assert that plaintiff was not compelled to take the kitchen assignment but did so of his own accord, Morgan does not favor their position insofar as therein the Ninth Circuit found that that plaintiff, injured by a defective printing press while working at a prison job for which he had voluntarily applied, did not thereby waive his Eighth and Fourteenth Amendment rights by taking the print shop job and had not applied "to work with a dangerously defective printing press." Id., at 1043, 1045. On the other hand, in that case, that plaintiff, prior to his injury, had informed defendant of the precarious condition of the printing press but defendant, indicating an urgent printing project, went ahead and ordered plaintiff to be careful but continue to work on it. Id., at 1044,1047. In affirming the district court, which had denied defendant's summary judgment motion on the basis of qualified immunity, a defense which defendants herein do not raise, the Ninth Circuit in Morgan noted that the plaintiff therein had previously alerted the defendant supervisor of the dangerously defective equipment at issue, but had nevertheless been ordered by that defendant to continue working on it, thus exacerbating the danger, constituting an Eighth Amendment violation. Morgan, supra, at 1047, citing, Osolinski and its discussion of Hoptowit v. Spellman, 753 F.2d 779, Gill v. Mooney, supra, 824 F.2d 192. In Osolinski, 92 F.3d at 938-939, as noted, the Ninth Circuit distinguished the facts of Gill, supra, 824 F.2d at 195, wherein plaintiff was placed in a situation regardless of the inherent dangerousness of which defendant had been informed, the Second Circuit finding that plaintiff had framed a colorable claim of deliberate indifference against the defendant where plaintiff alleged that he had told that defendant that the ladder he was using to paint was unsafe but the defendant nevertheless ordered plaintiff to continue working. Id., at 195. Similarly in Wallis v. Baldwin, 70 F.3d at 1075-77, the Ninth Circuit found deliberate indifference where plaintiff presented specific evidence that defendants knew of the existence of asbestos in the facility attics and dangers posed by it but nevertheless assigned plaintiff to clean the attics without protection from exposure to the asbestos, remanding the matter for trial.

In the instant action, plaintiff has not demonstrated that the defendants had been specifically alerted to the need for a safety device to hold the hot water pressure hose in place. In fact, even though plaintiff may find the procedure wanting, it does not appear that having someone hold down the hot water hose manually in any way implicates the Eighth Amendment, so long, of course, as that job is actually generally properly monitored and carried out. While it is a logical inference that the hose was not being properly monitored at the time it tore free causing plaintiff to jump out of the way and then slip on a wet floor, it also does not implicate the Eighth Amendment where plaintiff cannot show that this was anything but an unusual and unfortunate set of circumstances indicating at most negligence on the part of these defendants.

Nor does plaintiff's reliance on alleged OSHA violations, i.e., that the wet floors or dishwasher hose constituted a "recognized hazard" under OSHA, assist him in making out his claim under the Eighth Amendment. California Occupational Safety and Health Act of 1973 was "enacted for the purpose of assuring safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards, assisting and encouraging employers to maintain safe and healthful working conditions, and by providing research, information, education, training, and enforcement in the field of occupational safety and health." Cal. Labor Code § 6300 (et seq.).

The overarching federal law, upon which plaintiff appears to rely, the Occupational Safety and Health Act, (OSHA),*fn16 at 29 U.S.C. § 654, requires an employer to provide employees with "a place of from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" and "shall comply with occupational safety and health standards promulgated under this chapter. § 654(a)(1 & 2). Under § 654(b), employees are directed to comply with OSHA standards and the applicable OSHA "rules, regulations and orders...."

OSHA provides that employees who believe there is a safety or health standard violation "that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger." 29 U.S.C. § 657(f)(1) (in part). Upon the filing of an appropriate notice, the Secretary determines whether "there are reasonable grounds to believe that such violation or danger exists..." he is to make a special inspection to determine if there is a danger or violation. Id.

If a requirement of § 654 or of a rule, order or standard pursuant to § 655, is believed to have been violated, a citation is issued to the employer in writing, spelling out the nature of the violation, the citation is posted, and a reasonable time afforded to abate the violation. 29 U.S.C. § 658(a)&(b). Upon the filing of a petition by the Secretary, the federal district court has jurisdiction "to restrain any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this chapter." 29 U.S.C. § 662 (in part).

Even if plaintiff could demonstrate that an OSHA regulation had been violated, which he has not, nothing about the federal OSHA statutes indicates that they can serve as the basis for a claim by a prisoner of a violation of his Eighth Amendment rights, although an employee who is injured by a failure of the Secretary to petition the court for injunctive relief, if arbitrary or capricious, "might bring an action against the Secretary" in the appropriate U.S. district court. 29 U.S.C. § 662(d). Plaintiff makes no demonstration that what he perceived as violations of OSHA actually resulted in any such formal findings against FSP or prison officials there. Moreover, "complete compliance with the numerous OSHA regulations" has not been found to be required under the Eighth Amendment. French v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1985), citing Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982).

Plaintiff also seeks to link the "direct negligence" of prison officials to his having allegedly suffered negligent medical treatment. Plt.'s Dec. Opp., pp. 11-12. Defendants are correct that his medical treatment is not at issue in this complaint, contending that plaintiff has other actions pending on those claims. Reply, p. 7. The motion for summary judgment as to defendants Johnson, Tuggle, Ramirez, and Cordero should be granted.

Defendant Butler

In this suit against defendant Butler for money damages (i.e., in her individual capacity), plaintiff points to defendant Butler's declaration wherein she admits (in her former capacity as warden at FSP), to having had the general responsibility to oversee and implement the various policies and procedures at FSP. Plt.'s Opp. Dec., pp. 8-9; MSJ, Butler Dec. ¶ 4. While defendant Butler does acknowledge that she had such overall responsibility, she maintains that she was not directly involved in the incident at issue, that associate wardens below her had responsibility for overseeing particular prison areas or operations, that she was not personally involved in formulation or implementation of kitchen safety policies or procedures, that she was unaware of any hazardous conditions in the kitchen's premises or conditions. MSJ, Butler Dec, ¶ 4. Plaintiff states that the (now former) defendant warden is sued because as a high-ranking official "she is in a better position than plaintiff to identify officials who were actually responsible for violating plaintiff's rights." Plt.'s Opp. Dec., pp. 8-9. However, the time is long passed for plaintiff to identify any other of those officials that he seeks to name as defendants.

Plaintiff does not demonstrate that defendant Butler was personally involved in any alleged constitutional deprivation. Section 1983 requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Defendants argue that "[t]here is no respondeat superior liability in § 1983 actions." Reply, p.6. It is correct that supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and that there must be shown to be a causal link between that person and the claimed constitutional violation. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Moreover, as set forth above, the undersigned has found that plaintiff has not raised a material fact issue as to whether the Eighth Amendment is even implicated in light of the facts and issues raised. The motion for summary judgment should be granted as to this defendant.

Accordingly, IT IS HEREBY RECOMMENDED that defendants' motion for summary judgment, filed on December 10, 2008 (docket # 35), be granted, and judgment be entered for defendants.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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