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Savage v. Hubbard

December 15, 2009

BOB SAVAGE, PLAINTIFF,
v.
SUZAN HUBBARD, ET AL., DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on claims against twelve defendants named in plaintiff's first amended complaint, filed January 22, 2009. Therein, plaintiff claims that defendants denied him participation in the Meals on Wheels program for thirty-eight days, in violation of his rights under the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Plaintiff also claims that defendants violated his rights under the First and Fourteenth Amendments, the ADA and the Rehabilitation Act by denying his request to acquire a computer with a legal database on the hard drive. Plaintiff also raises pendent state law claims based on the two sets of allegations that underlie his federal claims. This matter is before the court on the motions of eight of the defendants to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

STANDARDS FOR A MOTION TO DISMISS

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

At all times relevant to this action, plaintiff has been incarcerated at California Medical Facility (CMF) in Vacaville, California. Plaintiff's first amended complaint contains the following allegations. Plaintiff has been mobility impaired since 2001, and has been fed in his cell as part of the Meals on Wheels program since 2004. From August 7, 2007 through September 15, 2007, plaintiff was denied participation in the Meals on Wheels program. In July 2007, defendant Chanan created a daily conflict between custody and nursing staff over who was responsible for serving the Meals on Wheels food trays. On the days that defendant Chanan worked, cell food trays would sit for hours and on some days plaintiff was not fed at all. One day when the food was finally served it was cold.

On August 7, 2007, a memorandum was generated that reduced the number of inmates fed by Meals on Wheels from twenty-nine to thirteen in plaintiff's housing unit. None of the other units' Meals on Wheels programs were affected. On the same day, defendant Shelton told plaintiff he would not longer be part of the Meals on Wheels program and would not be getting a food tray. On August 14, 2007, defendant Shelton sent several Meals on Wheels trays back to the kitchen, refusing to feed plaintiff and several other handicapped inmates who he "knew had not been fed in a week and were hungry." Amended Complaint, filed January 22, 2009, at 6. On August 16, 2007, plaintiff gave a letter to defendant Andreasen advising him about the conflict over Meals on Wheels in his housing unit and that he was not being fed. Defendant Andreasen refused to intervene.

On August 20, 2007, plaintiff submitted an ADA Reasonable Accommodation Request Form asking to be fed. On August 21, 2007, defendant Borbe sent several food trays back to the kitchen, refusing to feed plaintiff and several other handicapped inmates. Defendant Borbe told plaintiff that defendant Johns had ordered him not to feed plaintiff.

On September 7, 2007, plaintiff was interviewed by defendant Zhu, who "was very callous and curt not seeming to care that Plaintiff was hungry and in pain." Id. at 7. She wanted plaintiff to withdraw his ADA request, and she "was biased and denied the plaintiff due process on his ADA issues and the minimal civilized measure of life's necessities -- FOOD. . . ."

On September 13, 2007, defendant Andreasen denied plaintiff's request to be reinstated in the Meals on Wheels program. On September 14, 2007, plaintiff "received food from the Defendants for the first time since August 6, 2007." Id. On September 20, 2007, plaintiff resubmitted his ADA Reasonable Accommodation Request. On October 9, 2007, plaintiff received a second level response from defendant Hubbard, who partially granted the request because plaintiff had been placed back in the Meals on Wheels program and was receiving food. On October 10, 2007, plaintiff submitted his grievance to the third and final level of review so that he could exhaust remedies to pursue his claims. On October 19, 2007, plaintiff received a final level decision from defendant Grannis. The decision contains false statements about plaintiff's grievance.

Plaintiff has carpal tunnel syndrome and "a long history of venous insufficiency, degenerative disc disease, osteoarthritis, neuropathy, edema of both knees, extensive varicose veins [and] [h]e suffers from bulging disc with spinal spurs and epidural lipomatosis in his spine." Amended Complaint, at 10. These medical conditions make it very difficult for plaintiff to sit or stand for more than thirty minutes in an eight hour day, and his "Carpal Tunnel Syndrome is so painful that he can only write about fifty words or for about twenty minutes before the pain becomes unbearable and he must stop." Id. It is "very painful" for him to spend long periods of time in the law library, which is the only place he has access to a computer. Due to these impairments, plaintiff made a request under the ADA and Section 504 of the Rehabilitation Act for permission to acquire at his own expense a computer with a hard drive preloaded with a legal data base, with a word processing program, and a printer. Defendants Hubbard and Grannis denied this request. As a result of this denial, a petition for writ of habeas corpus filed by plaintiff in this court, Case No. 2:06-cv-2594 GEB EFB (HC), was, on March 21, 2008, dismissed as untimely. Defendant Hubbard has also authorized policies that deny plaintiff basic supplies with which to prepare pleadings for court filings.

DEFENDANTS' MOTIONS

I. Defendants Andreasen, Hubbard, Grannis, Gibbs, Duffy, Chanan and Williams

A. Denial of Food

It is well established that the "sustained deprivation of food" to an inmate can violate the Eighth Amendment. See Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009). While "there may be 'a difference between using food deprivation as a punishment and establishing a reasonable condition to the receipt of food,' . . . [t]he sustained deprivation of food can be cruel and unusual punishment when it results in pain without any penological purpose." Id. (quoting Freeman v. Berge, 441 F.3d 543, 545 (7th Cir. 2006).

In the same way that an inmate relies on prison officials to provide appropriate medical care, see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and protection from assaults by other inmates, see Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), inmates rely on prison officials to provide them with adequate sustenance on a ...


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