The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff Noel Ortega is a state prisoner at High Desert State Prison (HDSP), within the custody of the California Department of Corrections and Rehabilitation (CDCR), who proceeds pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Presently pending before the court is defendants' summary judgment motion filed June 26, 2009, in response to which plaintiff filed an opposition, and defendants a reply. For the following reasons, the court recommends that defendants' motion be granted.
This action is proceeding on the Amended Complaint filed June 9, 2008 (Docket No. 34), against defendants T. Felker and Clifford Smith. Plaintiff challenges, on Eighth Amendment and Equal Protection grounds, HDSP's policy of removing plastic wrap from lunch and canteen food items before they are provided to inmates who are administratively segregated, including in its Security Housing Unit (SHU), during the period roughly April 2006 to January 2009. For most of this period, defendant Felker was Warden at HDSP; for a year, defendant Smith was Associate Warden of Business Services.*fn1 Plaintiff alleges that his food is unsanitary, containing human hair, dirt, small rocks and lint, which has caused plaintiff stomach pain, vomiting, diarrhea, and emotional damages.
In his Amended Complaint ("AC"), plaintiff claims that, as a result of HDSP's policy of unwrapping the lunch and canteen items of administrative segregation inmates, plaintiff and other inmates have received unsanitary food that has rendered plaintiff and other inmates ill. Plaintiff alleges that he has found human hair and dirt in his food, and that the food also contains "bacteria causing (1) food poisoning, (2) helicobacter pylori ("H. Pylori"), (3) salmonella poisoning [or (4)] Hepatitis A&B." (Id. at 4.) As a result of eating such food, plaintiff has experienced "stomach pain and . . . [needed] to use the restroom several times a day for about a month;" that "plaintiff a few months ago had to be given a shot for he was throwing up all the water and food he would consume[.] It got [so] bad that plaintiff was having abdominal pain so severe that the pain would not let plaintiff breath. Plaintiff start[ed] to throw up little pathes [sic] of blood. Now plaintiff just had the diarrhea from 5-21-08 through 5-28-08 and have correctional officers who witnessed the diarrhea. I informed the nurse who documented it." (Id. at 3, 4.) Plaintiff alleges that he lost weight during the month he was most ill. (Id. at 5.) The Amended Complaint alleges that other inmates have been sick too, but that the "medical department covers up the cause of the problem by telling the inmates "you're just coming down with the flu." (Id. at 4.)
Plaintiff further contends that defendants "intentionally and knowingly" poison inmates by purposefully feeding them food labeled "not fit for human consumption." (AC at 4.)
Plaintiff describes a process whereby "both defendants in order to save money they go out buying food that is not for human consum[p]tion and feeding it to the inmates, it was told to plaintiff by these inmates [with 'first hand knowledge'] that all the food first goes to "E" yard where the food comes in with big lettering on the food boxes 'not for human consumption.' The inmates are then told to remove the boxes out of the ones that say 'not for human consumption' into another colored brown box without any lettering on it. Then from "E" yard it is sent to "A" yard kitchen where it is destrubited [sic] throughout the prison." (Id.)
Plaintiff contends that he has a constitutional right to sanitary food, and that defendants' failure to provide sanitary food constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and denies him equal protection of the laws as guaranteed by the Fourteenth Amendment.*fn2
II. MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment on the following grounds: (1) HDSP's policy of unwrapping lunch and canteen items given to administratively segregated inmates does not constitute cruel and unusual punishment because plaintiff nor any other inmate has been harmed by the policy, it does not constitute a serious deprivation of constitutional rights, and it was implemented for security reasons rather than pursuant to a culpable state of mind; (2) the policy does not violate equal protection because it does not implicate a suspect classification or fundamental right and, pursuant to a rational basis analysis, is rationally related to a legitimate penological interest; and (3) defendants are entitled to qualified immunity.
III. LEGAL STANDARDS FOR SUMMARY JUDGMENT
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 (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. "[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.
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 (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. 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 (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 (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. 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 (citation omitted).
On July 31, 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), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
The following facts are undisputed unless otherwise noted.*fn3 Plaintiff arrived at HDSP on September 21, 2004. (Hanlon Decl., Exh. A, at 2.). On April 27, 2006, Ortega and another inmate were charged with attempted murder for using homemade weapons to stab a third inmate. (Id., Exh. B; Ortega Dep. at 88:12- 92:8.) Investigation of the crime scene revealed two weapons made from melted plastic. (Id., Exh. B at 5.) The first weapon "was approximately 61/2 " in length and 1/2 " wide, it appeared to be made from melted plastic with a metal nail shaped tip which was about 11/2 " in length." (Id.) The second weapon "measured 6" long and 3/4" wide and appeared to be melted white and black plastic to form a handle with a metal sharpened tip on one end." (Id.) On the same date, April 27, 2006, pending further investigation of the incident, Ortega was placed in administrative segregation, when he began receiving his lunch and canteen food without wrappings. (Id., Exh. D; Ortega Deposition (Defendants' Exhibit H), at 92:9 to 93:21.) A disciplinary hearing was held on May 12, 2006. (Hanlon Decl., Exh. B, at 4-6.) Plaintiff was found guilty of attempted murder, assessed 360 days of credit loss, and referred to the Institutional Classification Committee for assessment of a 26-month SHU term. (Id. at 6; Ortega Dep. at 91:20 to 92:1-8.)
Although plaintiff was temporarily transferred to another institution (Tehachapi) on August 10, 2006, he was returned and has remained at HDSP since November 21, 2006. (Hanlon Decl., Exh. A, Ortega Dep.12: 11-19). Between November 21, 2006 and January 2009, Ortega spent most of his time at HDSP in administrative segregation. After completing his disciplinary housing term for the attempted murder charge, Ortega was returned to administrative segregation for indecent exposure, then again for safety concerns. (Ortega Dep. at 8:1-3, 20-25, 9:1-25, 10:1-25, 11:1-21 .)
Plaintiff testified in deposition on January 13, 2009, that until October 2008, he routinely received his lunch and canteen food unwrapped while in administrative segregation, but wrapped when he was in the general population. (Ortega Dep. at 8:4-6, 11:19-25. 12:1-10; 13-16.) Plaintiff stated that, although he had then been in administrative segregation since October 2008, his food was now being served wrapped except for the first week of his placement. Plaintiff did not know why the change was made. (Id. at 10:14, 11:17-25, 12:1-10, 66:2-68:17.) Consistently, in his affidavit filed in opposition to defendants' motion for summary judgment, plaintiff states that he is "currently in administrative segregation for possession of a weapon and I am still receiving my lunch items still in their factory sealed wrappings." (Docket No. 50, at p. 19.)
Defendants describe the challenged policy as follows. Inmates at HDSP receive three meals a day -- hot breakfast, sack lunch, hot dinner -- plus canteen food items. (Cummings Decl., ¶ 6.) Inmates in administrative segregation receive the same food, prepared in the same kitchen, as that provided to general population inmates. (Smith Decl., ¶¶ 4, 5.) Correctional staff deliver meals to administratively segregated inmates, who are not permitted to leave their cells at meal time. (Id. at ¶ 6.) Breakfast and dinner (meals served hot) are served on steam-heated plastic trays, without plastic wrapping; the trays are returned after the inmates have eaten. (Id. at ¶¶ 7, 8, 9.) Administratively segregated inmates receive a sack lunch when their breakfast is served, consisting of "one packet of lunch meat, mustard, four slices of wheat bread, a snack item (such as tortilla chips or almonds), cookies, and a beverage." (Id. at ¶ 11.) Administratively segregated inmates can also purchase canteen items, which are delivered by staff. (Id. at ¶¶ 12, 13.) It is the policy of HDSP to remove any plastic ...