Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983.*fn1 The matter is before the court on defendants' motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has filed an opposition to the motion and defendants have filed a reply.
Plaintiff is proceeding on his original complaint. Therein, he alleges as follows. On September 7, 2006, while incarcerated at High Desert State Prison (HDSP), prison guards searched his cell after alleging that he had tampered with a state-issued electric shaver. As a result of the search, guards discovered a piece of metal approximately nine and a half inches long missing from the light fixture in plaintiff's cell. Plaintiff was then strip-searched and scanned with a handheld metal detector and no metal was found. (Comp. at 4.)*fn2
Plaintiff was then informed by defendant Lewis that he was being placed on "contraband watch" or "potty watch." Plaintiff requested an x-ray in lieu of contraband watch, but defendant Lewis denied this request telling plaintiff, "your (sic) not getting off that easy." (Id.) (emphasis in original).
Instead of placing plaintiff in Building A-5, the area typically used for contraband watch, defendant Lewis moved plaintiff to a "stripped" cell in the administrative segregation unit of the prison where defendant Lewis "felt safe" to take retaliatory and punitive actions against plaintiff. (Id. at 5.) Plaintiff states that, except for nine hours every night, the stripped cell had neither a mattress or running water. Despite the lack of running water plaintiff was forced to eat his food with his bare hands. (Id. at 5-6, 19.)
Plaintiff was dressed in state-issued boxer shorts that had the waist and legs taped closed five times, and then a full body jumpsuit that also had the waist and legs taped closed five times. (Id. at 6.) Plaintiff was restrained with waist chains, handcuffs and leg restraints. (Id.)
After urination and bowel movements plaintiff was not allowed to wash his hands and his requests for a napkin or toilet paper to wipe himself with were denied. (Id. at 18.) During this contraband watch plaintiff was not allowed to shower or "wash-up." (Id. at 19.) Plaintiff had to request drinking water and was only granted one small cup per hour. (Id. at 18.)
Plaintiff was kept on contraband watch for over 84 hours, from approximately 10 p.m. on September 7, 2006 to approximately 10 a.m. on September 11, 2006, despite prison regulations limiting the duration of such measures to 72 hours or 3 bowel movements on the part of the prisoner. (Id. at 18-19.) Those same regulations require that a prisoner under contraband watch be offered the alternative of an x-ray or laxatives to speed up the three bowel movements, both of which plaintiff was denied when requested. (Id. at 6-7.) According to plaintiff there was no evidence indicating that he was involved in damaging or destroying state property and that he was denied all procedural safeguards that are to accompany the imposition of a contraband watch. (Id.)
Moreover, because defendant Lewis did not have the authority to authorize the contraband watch, plaintiff named Warden Felker as a defendant in this action because he was aware of the incident in question and "is responsible by Respondent [sic] Superior, in his capacity of Warden." (Id. at 5.)
Finally, plaintiff claims that as a result of this treatment, his "Constitutional rights under the 8th Amendment to be free from retalliation [sic] by state employees" were violated. (Id. at 7.)
On June 19, 2007, the court ordered the United States Marshal to serve plaintiff's complaint on defendants Lewis and Felker. On October 16, 2007, defendants moved to dismiss the entire action pursuant to non-enumerated Rule 12(b) due to plaintiff's alleged failure to exhaust his administrative remedies and under Rule 12(b)(6) due to plaintiff's alleged failure to state a claim upon which relief could be granted.
On July 14, 2008, the undersigned issued findings and recommendations, recommending that defendants' motion to dismiss be denied except as to plaintiff's retaliation claim and any independent state law claim based on HDSP's contraband watch policy. On August 22, 2008, the then-assigned district judge adopted those findings and recommendations in full. Defendant Felker filed an answer on August 29, 2008 and defendant Lewis filed an answer on October 9, 2008. On March 30, 2009, the undersigned issued a discovery order.
On October 22, 2009, counsel for defendant Felker filed a motion for summary judgment, arguing that defendant Felker was entitled to judgment in his favor because Felker had no involvement in plaintiff's contraband watch. (Doc. No. 58.) On October 26, 2009, counsel for defendant Lewis filed an amended motion for summary judgment arguing that: (1) defendant Lewis' alleged actions did not rise to the level of a constitutional violation; and (2) defendant Lewis is entitled to qualified immunity.
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
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).
OTHER APPLICABLE LEGAL STANDARDS
I. Civil Rights Act Pursuant to 42 U.S.C. ...