The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
REPORT AND RECOMMENDATION
Pending before the Court is Defendant's Motion for Summary Judgment. (Docket No. 30.) Having reviewed the Motion, Oppositions, Reply, and relevant portions of the record, the Court concludes that oral argument is unnecessary. Accordingly, the following Report and Recommendation is entered.
Archie Cranford ("Plaintiff") is detained at the Coalinga State Hospital (Coalinga) under the civil commitment provisions of California's Sexually Violent Predators Act (SVPA), Cal. Welf. & Inst.Code § 6600, et seq. In his Complaint, he alleges that his Eighth and Fifteenth Amendment rights were violated on June 17, 2007, at approximately 10:45 p.m., when he was not permitted to shower for 8 hours*fn1 or 24 hours*fn2 after accidentally defecating on himself, the unfortunate effect of having eaten too many prunes at dinner. (Complaint, Docket No. 1.) Plaintiff already had a rash or open sores on his legs due to an earlier reaction to laundry detergent. He alleges that the condition of his legs worsened and his legs were scarred as a result of the delay in permitting him to shower and change. (Id. and Oppositions, Docket Nos. 31 & 33.)
Defendant Ashlie Taylor ("Defendant") declares the following by affidavit. (Affidavit of Ashlie Taylor, Docket No. 30-3.) In June 2007, Defendant was a psychiatric technician trainee who had no authority to make decisions about patients. On June 17, 2007, Plaintiff asked Defendant if he could take a shower at approximately 10:45 p.m. Defendant checked with her supervisor, John Sanzeberrow, who advised her that Plaintiff should wait until the next morning's shower time (8:30 a.m.). According to the record, Plaintiff did not inform Defendant that Plaintiff had sores or a rash on his legs or that he had defecated on himself.
Cynthia Trevino, who was the supervisor of Defendant's unit, declares the following by affidavit. (Affidavit of Cynthia Trevino, Docket No. 30-4.) Patients at Coalinga can have up to two sets of pants and shirts at their bedside and can request at any time additional undershirts, underwear, and socks from staff. They are provided with clean washcloths and towels daily or upon request. A patient can request additional clothing and towels at any time of the day or night and would be provided with them by staff, usually within thirty minutes. The main latrine in Defendant's unit had seven sinks, four urinals, five private bathroom stalls, four soap dispensers, two paper towel holders, and hot and cold running water. Patients were permitted to use the latrine at any time of the day or night. Published policy permitted patients to shower at five different times (8:30 a.m., 11:00 a.m., 4:30 p.m., 7:30 p.m., and 9:30 p.m.); they could shower at other times upon request due to unanticipated events or problems if they informed a staff member of the issue.
Cynthia Trevino further declares that patient complaints of illness or injury would be immediately referred by staff to the Registered Nurse (R.N.) at Coalinga, who would then assess the urgency of the situation. Ms. Trevino was never informed that Plaintiff had a rash resulting from a delay in taking a shower, nor did he seek medical assistance while she supervised that unit.
Darla Ainsworth, a psychiatric technician at Coalinga who worked in the unit at issue during the time period at issue, provides the following declarations by affidavit. (Affidavit of Darla Ainsworth, Docket No. 32-1.) "Head counts" to ensure that all patients are present and accounted for were conducted in that unit at 11:30 a.m., 4:30 p.m., and 9:30 p.m. The only requirement during head count was that individuals remain in the unit. There was no requirement that they stay in their assigned dorms or private rooms. If a patient was not visible, a male staff would check the shower stalls and bathrooms. Patients would be considered escapees if they could not be found in their unit at Coalinga.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the "initial burden of identifying for the court those portions of the record which demonstrate the absence of any genuine issues of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986)). If the moving party points to portions of the record demonstrating that there appears to be no genuine issue of material fact as to claims or defenses at issue, the burden of production shifts to the non-moving party. To meet its burden of production, the non-moving party "may not rest upon the mere allegations contained in his complaint, but he must set forth, by affidavits, exhibits or otherwise, specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; see T.W. Electric Serv., 809 F.2d at 630 (internal citation omitted).
The court does not determine the credibility of affiants or weigh the evidence set forth by the non-moving party. All inferences that can be drawn from the evidence must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31 (internal citation omitted). The Court is required, however, to determine whether the evidence set forth meets the requirements of Rule 56(c) and (e). In so doing, the Court is to look at admissibility of the content of the evidence, rather than the admissibility of the form of the evidence. See Fonseca v. Sysco Food Service of Arizona, 374 F.3d 840, 846 (9th Cir. 2004). Declarations that contain hearsay are admissible for summary judgment purposes if they "could be presented in an admissible form at trial." Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003).
Rule 56(c) requires the Court to enter summary judgment "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." Celotex, 377 U.S. at 322. The existence of a scintilla of evidence in support of the non-moving party's position is insufficient.
Rather, "there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. ...