The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
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 November 9, 2009, to which plaintiff filed his opposition on January 29, 2010,*fn1 after which defendants filed a reply on February 5, 2010.
Background & Summary of Allegations
Plaintiff, in a case originally assigned as No. CIV S-07-1419 MCE KJM, filed a complaint wherein he sought to proceed on the complaint as a class action; however, the complaint was construed as an individual action. See Order, filed on January 10, 2008. Instead, plaintiff was permitted to proceed only with respect to himself and only on his Eighth Amendment claims against the following five defendants: Haythorne, Hague, Rodriguez, Rueller (spelling later corrected to Ruller) and Arnt (spelling subsequently corrected to "Arndt"). See id. This case and another, Williams v. Walker, CIV S-07-2385 FCD CMK P, were both later related by the undersigned to an earlier case assigned to the undersigned and to Judge William B. Shubb: Jackson v. Walker, CIV S-06-2023 WBS GGH P, and all three have since been proceeding before Senior District Judge Shubb and the undersigned. See Order, filed on June 6, 2008.
The gravamen of the instant case (as well as to the two related cases) concerns alleged unsanitary food preparation, food service and food handling conditions at California State Prison-Sacramento (CSPS). Plaintiff Campbell alleges that he arrived at CSPS on October 27, 2005,*fn2 where rodents infest the main kitchen and food has been contaminated with rat/rodent feces and bite marks and dozens of inmates have complained of CSPS' correctional officials' failure to adhere to health and safety standards with regard to food service and handling, including service of food from improperly cleaned bread racks. See Complaint, filed on July 18, 2007. Plaintiff claims, in his verified complaint, that on May 23, 2006, he was diagnosed and treated for food poisoning as a result of an evening meal served at the prison. Id., at 10, 21-22. Plaintiff alleges deliberate indifference by defendants to the unsanitary food service and conditions of which they are aware in violation of his plaintiff's Eighth Amendment rights. Plaintiff seeks injunctive and declaratory relief, and money damages, including punitive damages. Id., at 20-21.
As to specific defendants within the verified complaint, plaintiff's claims are somewhat generic. That is, as to all defendants, plaintiff alleges that each ignored and denied that existence of rats or rodents in the main kitchen for years, resulting in an infestation of rats/rodents in the area where food is stored, prepared and served in the main kitchen. Id., at 14. Plaintiff alleges that each defendant has subjected plaintiff and other inmates to unsanitary food service due to the implementation of an enforced cell-feeding policy, violating Health and Safety Code §§ 27605, 27623, 28291, and 28295 through 28296. Id., at 19. Plaintiff further alleges that each defendant has been deliberately indifferent: in refusing to exterminate the rats/rodents from the main kitchen from the first notice and in withholding information about the existence of rats/rodents from inmates and from mandatory annual health inspections; in allowing the breeding and mating of rats/rodents in the main kitchen for years; in obstructing, ignoring and denying inmate grievances regarding correctional officials' defiance of proper food handling and service procedures; in failing to implement an adequate self-evaluation plan with respect to food service; and in failing to take appropriate steps to remedy the cruel and unusual punishment thereby inflicted upon plaintiff and others similarly situated. Id. Among the exhibits he includes with his verified complaint (noted below), plaintiff attaches Exhs. I, J, K, L, M, N, evidently all copies of documents described as responses to the matters at issue in this complaint that were directed not to this plaintiff, but to Inmate Williams, from, respectively, the American Civil Liberties Union, the Foreman of the 2005-2006 Sacramento County Grand Jury, Senator Dianne Feinstein, the California Health and Human Services Agency, the Officer of the Inspector General, the CDCR Office of Risk Management. Id., at 56-69.
At the outset, the court notes that plaintiff filed a notice of change of address on June 7, 2010 to Corcoran State Prison. When an inmate seeks injunctive relief concerning an institution at which he is no longer incarcerated, his claims for such relief become moot. See Sample v. Borg, 870 F.2d 563 (9th Cir. 1989); Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). See also Reimers v. Oregon, 863 F.2d 630, 632 (9th Cir. 1988). Plaintiff has not demonstrated any reasonable possibility that he will be incarcerated at California State Prison-Sacramento at any predictable time in the future. Therefore, the court will recommend that any claims for injunctive relief be dismissed.
Motion for Summary Judgment
Defendants move for summary judgment contending that (1) the conditions about which plaintiff complains were not sufficiently serious to amount to a constitutional deprivation [i.e., an Eighth Amendment violation]; (2) even if the conditions complained of were objectively serious, defendants did not ignore any claimed violations, but instead took corrective measures to address any lapses in CSPS food service; (3) there is no medical evidence that plaintiff contracted food poisoning or suffered any harm as a result of eating food at CSPS; and (4) defendants are entitled to qualified immunity because there was no constitutional violation and defendants acted reasonably in addressing inmate complaints about food service at CSPS. Motion for Summary Judgment (MSJ), Docket # 35-1, pp. 1-2.
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 movant is entitled to 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 March 20, 2008, 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). The above advice would, however, seem to be unnecessary as the Ninth Circuit has held that procedural requirements applied to ordinary litigants at summary judgment do not apply to prisoner pro se litigants. In Thomas v. Ponder, __F.3d__, No. 09-15522, 2010 WL 2794394 (9th Cir. July 16, 2010), the district courts were cautioned to "construe liberally motion papers and pleadings filed by pro se inmates and... avoid applying summary judgment rules strictly." Id. at 10297, *5. No example or further definition of "liberal" construction or "too strict" application of rules was given in Ponder suggesting that any jurist would know inherently when to dispense with the wording of rules. Since the application of any rule which results in adverse consequences to the pro se inmate could always be construed in hindsight as not liberal enough a construction, or too strict an application, it appears that only the essentials of summary judgment, i.e., declarations or testimony under oath, and presentation of evidence not grossly at odds with rules of evidence, apply to the pro se plaintiff.
After reviewing defendants' undisputed facts (DUF) and plaintiff's response, the court finds the following to be undisputed, either expressly undisputed by plaintiff or expressly not refuted due to an alleged lack of knowledge, evidence or information. If any part is disputed (even though plaintiff fails to cite the supporting evidence for his position), that portion of the fact that the court finds not to be in dispute is noted. Relevant facts, disputed or undisputed, pertaining to the individual defendants are set forth under the individual defendant's name.
DUF # 1: Plaintiff Maurice Campbell arrived at California State Prison Sacramento (SAC) [CSPS]*fn3 in October 2005. DUF # 2: Plaintiff alleged that the main kitchen at CSPS was infested with rodents and that food contaminated by rodents was fed to the inmate population. As to DUF # 3 and DUF # 4, the court finds that it is true that plaintiff did not work in the CSPS main kitchen during the period relevant to this lawsuit and therefore did not have personal knowledge as to the allegations that he makes with regard to the main kitchen at that time. Plaintiff does not deny that he did not work at the main kitchen at that time, but seeks to rely on the experience of plaintiffs in the related cases, noted above, for information supporting his allegations. Plaintiff's resp. to DUF, pp. 1-2. Plaintiff asserts that he now works in the CSPS main kitchen production department and thus has first-hand knowledge of on-going but unspecified violations (no supporting evidence is cited in his response).*fn4 DUF # 5: During the winter of 2005 to 2006, rodents were coming into the main kitchen and other buildings throughout the prison because of the heavy rain fall. In response, plaintiff does not dispute the fact as stated but asserts, without identifying supporting evidence, that rodents were not limited to entering the prison buildings in the winter. Plaintiff's response to DUF, Docket # 43, p. 5. DUF # 6: Vector control at CSPS took corrective measures by laying down traps, which plaintiff acknowledges while implying that other unspecified measures could have been taken. Plaintiff's resp. to DUF, p. 2. DUF # 7: Defendant Haythorne, defendant Hague, vector control, and the supervisor of building trades held meetings to discuss and monitor the rodent situation. DUF # 10: CSPS has a policy of discarding an entire food item that is suspected of being contaminated, whether by rodents or spoilage. This means that if a large sack of flour or sugar appears to have been gnawed by rodents, the entire sack is tossed out. DUF # 11: The presence of rodents or other vermin is common in any location where food is located or prepared. DUF # 12: The California Retail Food Code (CRFC) sets forth the standards for sanitation in the food industry, and CRFC training dedicates an entire section on vector control and acknowledges that the presence of rodents and other vermin occurs in kitchens and other settings where food is prepared and stored. CRFC focuses on controlling the vermin problem and ensuring that contaminated food is not served. DUF # 20: [Plaintiff] Campbell alleged that the food service in the satellite kitchens at CSPS was unsanitary because the racks used to carry the food trays were dirty and stacked, non-medically cleared inmates were handling food, a dirty rolling cart was used during food service, and inmates and correctional staff did not wear gloves or protective head gear. In his response, plaintiff asserts that only as of 2007, did corrective measures regarding the satellite kitchens begin to be implemented. Plaintiff's resp. to DUF, p. 3. DUF # 21: Although plaintiff never worked in the satellite kitchens at SAC, between 2005 and 2006, [plaintiff] volunteered about eight to ten times to carry racks with food trays during the feeding process. DUF # 25: Defendants, except [defendant] Arndt, inspected the various satellite kitchens on occasion. During those inspections in 2005 and 2006, they did not see inmate workers without the proper protective attire, such as gloves and hair nets. They did not see the stacking of food trays or bread racks. They did not see the use of dirty carts or bread racks. And they did not see bread racks thrown on the floor.*fn5 DUF # 35: Plaintiff alleged that on or about May 23, 2006, he was diagnosed with food poisoning at CSPS; he suffered no other injury. DUF # 37: Dr. Duc did not diagnose [plaintiff] with food poisoning, and he never told [plaintiff] that he had food poisoning. DUF: # 38: Dr. Duc suspected that [plaintiff] had an infection of Campylobacter, a common bacterial infection that causes diarrhea, which was spread by an inmate who had recently transferred to CSPS from another prison. DUF # 40: [Plaintiff] Campbell never asked Dr. Duc what Campylobacter meant or what caused his gastroenteritis. DUF # 41: In the second level response to [plaintiff's] inmate grievance, he was informed that there was a bacterial outbreak at the prison, but that the source of the outbreak was not determined. DUF # 42: [Plaintiff], however, was told by the investigating officer assigned to respond to his grievance, that an inmate transferred to CSPS from another prison had an illness that spread throughout the yard. DUF # 43: [Plaintiff] did not ask, and no medical staff ever told him, that his symptoms of diarrhea in May 2006 were caused by eating food that was contaminated by: rodents; the stacking of carrying racks; the use of dirty carrying racks or rolling cart; or non-medically cleared porters. DUF # 45:[Plaintiff] did not suffer any long-term injury as a result of his alleged food poisoning. Plaintiff does not dispute this but avers that he did endure "four days of agonizing pain" due to food poisoning. Plaintiff's resp. to DUF, p. 5. DUF # 46: No correctional, food services, or medical staff ever told defendants that an inmate got food poisoning, or that there was a food poisoning outbreak, at CSPS in 2006. Plaintiff does not dispute this but alleges that defendants were engaged in a cover-up of a food poisoning outbreak (again, identifying no supporting evidence). Plaintiff's resp. to, p. 5.
Eighth Amendment Legal Standard "'Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.'" Somers v. Thurman, 109 F.3d 614, 623 (1997), quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000 (1992) (omitting internal quotations and citations).
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994).
However, "[p]rison 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. at 832, 114 S.Ct. 1970; Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982) ("[A]n institution's obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety" [internal quotations omitted]). When an inmate has been deprived of necessities, "the circumstances, nature and duration of a deprivation...must be considered in determining whether a constitutional violation has occurred." Johnson, supra, at 731. "The occasional presence of a rodent is insufficient to establish the objective component of an Eighth Amendment claim, which requires that a deprivation be sufficiently serious," Tucker v. Rose, 955 F. Supp. 810, 816 (N.D. Ohio 1997); however, "'a lack of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment.'" Johnson, supra, at 731, quoting Anderson v. County of Kern, 45 F.3d 1310, 1314, as amended, 75 F.3d 448 (9th Cir. 1995). In Somers, supra, the Ninth Circuit cited a Seventh Circuit case, French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985), wherein it was observed that the Tenth Circuit, in Ramos v. Lamm, 639 F.2d 559, 570-71 (10th Cir. 1980), has noted that the state is obligated to provide "'nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it,'" and determined that "the state health code, while not establishing 'constitutional minima,' is relevant in making a finding regarding the constitutionality of existing conditions."
Inmate workers are not given basic instruction on food protection and food service sanitation.[ ] Consequently food items are stored on the floors of walk-in storage compartments and food is often left uncovered allowing the rodents and roaches to contaminate it. Food products which can support food borne diseases are not properly stored and are often left out at room temperature. Food preparation surfaces and cooking equipment are not properly cleaned and therefore provide areas for significant bacterial ...