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Franklin v. Scribner

September 29, 2010


The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge


On March 8, 2007, Plaintiff Gregory A. Franklin (hereafter "Plaintiff"), filed a Complaint pursuant to 42 U.S.C. §1983, alleging his civil rights were violated. Following motions to dismiss and amendments made to the Complaint, on June 24, 2008, Plaintiff filed a Second Amended Complaint (hereafter "SAC"), which is the operative pleading in this case.

Plaintiff's SAC names the following Defendants: L.E. Scribner, G.J. Giurbino, J. Ochoa, R. Nelson, M.D. Greenwood, R. Madden, R. Bass, P. Zill, J. Vargas, J. Ortiz, M.E. Bourland, G. Haley, E. Trujillo, S.F. Arias, R. Davis, G. Hopper, and C. Maciel. On March 16, 2009, the District Judge previously assigned to this case issued an Order that dismissed Defendants Madden, Zill, Vargas, Ortiz, Bourland, Haley, Trujillo, Arias, Davis, Hopper and Maciel. Therefore, the Defendants remaining in this action are: Scribner, Giurbino, Ochoa, Nelson, Greenwood, and Bass (hereafter "March 16, 2009 Order").

The SAC states several causes of action. The March 16, 2009 Order dismissed all of the causes of action in the SAC, except the causes of action for (1) denial of outdoor exercise in violation of the Eighth Amendment,*fn1 and, (2) inadequate medical care in violation of the Eighth Amendment.

In the SAC, Plaintiff consented to have a Magistrate Judge conduct any and all further proceedings in this case, including trial and the entry of final judgment. (SAC at 28).*fn2 On May 8 and October 29, 2009, Defendants similarly consented. (Doc. ## 111, 133).

Defendants Scribner, Giurbino, Ochoa, Nelson, Bass and Greenwood filed a Motion for Summary Judgment. Plaintiff filed an Opposition and Supplemental Opposition to the Motion for Summary Judgment. Defendants filed a Reply to Plaintiff's Opposition. The Court, having reviewed the Motion for Summary Judgment, Opposition and Supplemental Opposition to the Motion for Summary Judgment, the Reply to the Opposition, and all the documents attached thereto, hereby ORDERS that Defendants' Motion for Summary Judgment is GRANTED.


A. Allegations in Second Amended Complaint

1. Denial of Fresh Air & Recreation

On August 18, 2005, a riot occurred at the C-Facility at Calipatria State Prison (hereafter "CSP"). Defendant Warden G. Giurbino (hereafter "Giurbino"), placed CSP on lockdown until January 6, 2006. Plaintiff was housed in the A-Facility at CSP, and was not involved in the riot. From August 18, 2005 to January 6, 2006, Plaintiff was denied fresh air and recreation. (SAC at 9).

From January 6, 2006 to March 13, 2006, Defendant Warden L.E. Scribner (hereafter "Scribner"), Chief Deputy Warden T. Ochoa (hereafter "Ochoa"), and Captain M. Greenwood (hereafter "Green-wood"), continued to confine Plaintiff and all inmates to their cells due to an assault on an officer by an inmate. (SAC at 9). From March 13, 2006 to July 13, 2006, Scribner, Ochoa and Defendant Captain R. N. Nelson (hereafter "Nelson"), implemented a policy that allowed Plaintiff and other inmates in the A-Facility one-and-one-half hours of fresh air per week.

Plaintiff alleges that he was confined to his cell on May 15, 16, 18, 21, June 1, 2, 3, 4, 10, 11, 16, 17, 18, 24, 25, 30, July 2, 3, 4, 5, 6, 9*fn3, 16, 23, 26, 29, 2006.*fn4

2. Inadequate Medical Care in Violation of the Eighth Amendment

On September 7, 2005, Defendant Officer R. Bass (hereafter "Bass"), did not allow Plaintiff to wear his "soft shoes" when Plaintiff was leaving his cell, despite the fact that Plaintiff had a "soft shoe chrono."*fn5 Plaintiff suffers from painful callouses on his feet. In February 2007, Plaintiff had surgery on one of his feet. Plaintiff's foot condition requires him to walk on the sides of his feet to alleviate the pain in his feet. (SAC at 12).

B. Uncontested Material Facts

On August 18, 2005, numerous Hispanic inmates at CSP were involved in multiple assaults or attempted murders of correctional staff, which resulted in a lockdown of the prison, and later, a modified program at the prison. (Declaration of G. Giurbino, hereafter "Giurbino Dec." at 2).

The report of the August 18, 2005 incidents contains the following information: (a) An inmate struck a correctional officer on the head in the C-Facility of the prison; (b) ten to twenty inmates then surrounded the officer and began to beat and kick him; (c) four inmates chased another officer who had attempted to assist the first officer. One inmate brandished a weapon. Therefore, the second officer had to retreat for his own safety. (Declaration of J. Builteman, hereafter "Builteman Dec.", Exh. A, Amended Crime/Incident Report, August 18, 2005).

About thirty minutes later, four inmates followed a correctional officer from the dining area, struck her in the facial area, and picked her up and slammed her to the ground. When correctional staff arrived to assist, the four inmates battered those staff members. (Builteman Dec., Exh. A).

As this incident occurred, twenty to thirty inmates refused to return to their cells in Facility-C. The Control Booth Officer in that housing unit noticed several inmates with broken broom handles and activated his alarm. When officers responded to the alarm, the twenty to thirty inmates attacked the responding officers with the broken broom handles, other weapons and their hands and feet. One inmate, who was stabbing a defenseless officer with a broom handle, was shot and killed by another correctional officer. (Builteman Dec., Exh. A). The inmate was a known gang member. (Giurbino Dec. at 6).

During the seven day period prior to the August 18, 2005 incidents, there were two assaults on staff, a battery of a peace officer, a threat to a staff member, a discovery of a live round of ammunition, two incidents of inmates possessing weapons, a battery on an inmate, an attempted battery on an inmate and two mutual combat incidents. (Builteman Dec., Exh. B, Incident Reports Logs).

On August 19, 2005, a State of Emergency*fn6 at CSP was requested and granted by the California Department of Corrections and Rehabilitation (hereafter "CDCR"). A lockdown went into effect which included no outdoor exercise. (Giurbino Dec. at 2). On the same day, Giurbino was called to CSP and became the Interim Warden. As the Interim Warden, Giurbino was to comprehensively evaluate CSP's operations to restore safety and security. He was to stay at CSP until the CDCR could recruit a warden to continue his tasks. From August 19, 2005 to the first week of January 2006, Giurbino was responsible for making decisions regarding programming at CSP, including the framework for the modified program, as approved by the Associate Director at CDCR. (Giurbino Dec. at 2).

In January 2006, Scribner became the Warden of CSP. (Declaration of L.E. Scribner, hereafter "Scribner Dec." at 2). At that time, Scribner assumed the responsibility of comprehensively evaluating and establishing prison programming with the purpose of restoring long-term safety and security at CSP. (Scribner Dec. at 2).

Defendants Nelson, Bass, Greenwood, Ochoa, were subordinates of Giurbino and Scribner. Nelson, Bass, Greenwood and Ochoa did not have authority to deviate from the restrictions imposed as set forth in the program status report matrices developed to restore control over CSP. They could not allow outdoor exercise for general population inmates or allow inmates to wear shoes not authorized by the program status reports. (Giurbino Dec. at 2; Scribner Dec. at 2; Nelson Dec. at 2; Greenwood Dec. at 2; Ochoa Dec. at 2; Bass Dec. at 2).

Bass denied Plaintiff's request to wear tennis shoes when Plaintiff was outside of his cell during a September 7, 2005 cell search. Bass had asked his supervisor whether Plaintiff's "Accommodation Chrono" exempted him from the lockdown status report matrix, which required all inmates to wear shower shoes (flip flops) when they were outside their cells. The requirement that inmates wear shower shoes while they were outside their cells was to minimize the risk that inmates could hide weapons in their shoes and commit violent acts with such weapons. (Bass Dec. at 2, Builteman Dec., Exh. C).

Giurbino and Scribner made decisions regarding the lockdown and modified program. When they made decisions, they considered the August 18, 2005 incidents, the degree of organization that went into the prison-wide assaults, the violence at CSP which had been ongoing and escalating in the past two years unabated by previous efforts to bring the prison population under control, intelligence gathered from inmate interviews and outside influences which could affect the prison population. (Giurbino Dec. at 2; Scribner Dec. at 2). Their decisions regarding allowable inmate movement and programming were focused on bringing immediate and long-lasting safety to inmates and prison staff. Their decisions involved extensive evaluation of CSP's facilities and procedures with continual dialogue with the Associate Director of CDCR. (Giurbino Dec. at 3; Scribner Dec. at 3). Significant information was obtained during initial and subsequent inmate interviews and further investigation of the August 18, 2005 assaults. This information included that some inmates were planning future assaults on prison staff members. (Girbino Dec. at 3-4).

The high level of violence at CSP prior to and on August 18, 2005 called for a drastic reestablishment of order. Otherwise, the level of violence would likely have continued to be more common and more severe. (Declaration of Robert G. Borg, hereafter "Borg Dec.", at 2).

The purpose of the State of Emergency, lockdown, and modified program at a prison is to safely control inmate movement, restrict potentially volatile inmates or groups, and afford time to evaluate prison operations, in order to regain control of the prison and establish order for the safety of prison staff, inmates and visitors. Activities such as allowing inmates in an open prison yard and meals in dining rooms create the most severe threats to safety because these activities allow large numbers of unrestrained inmates to be in close proximity to each other and staff, in numbers that far outweigh staff, and allow inmates far greater access to items which could be used as weapons. These activities are the last activities to be returned to normalcy. (Borg Dec. at 3, 5).

Shortly after August 19, 2005, exhaustive searches of all cells and all areas accessible to inmates were conducted. On September 12, 2005, the searches concluded. (Giurbino Dec. at 3).

On September 16, 2005, Giurbino requested from the Director of the Division of Adult Institutions to conclude the declared State of Emergency. At that time, Giurbino advised the Director of the Division of Adult Institutions that CSP would transition to a modified program, which would initially exclude outdoor exercise. The request was granted. (Giurbino Dec. at 3).

From August 19, 2005 through January 2006, Giurbino conducted meetings on an almost daily basis to review the modified program, and to evaluate intelligence gathered from cell searches, inmate interviews and other investigative activities. The daily meetings included briefings by facility and operations administrators and intelligence officers who provided information regarding the status of prison operations. During this time, Giurbino consulted with the Associate Director of CDCR two to three times per week to discuss the status of prison operations and the modified program. (Giurbino Dec. at 3; Builteman Dec., Exh. C, Program and Status Reports and Minutes).

When Scribner assumed the position of Warden of CSP, he continued the meetings with the same regularity, purpose and participants from January 2006 to at least July 13, 2006. During this time, Scribner continued to consult with the Associate Director of the CDCR two to three times per week to discuss the status of prison operations and the modified program. His goal was to bring prison activities back to normal programming as soon as possible without sacrificing the safety and security of the prison. Scribner's decisions regarding prison programming were submitted to, and approved by, the Associate Director of the CDCR. (Scribner Dec. at 3).

Giurbino believed that it would have been unsafe to expose prison staff to unrestrained general population inmates until those inmates who were planning future assaults were removed from the prison. Therefore, he determined that inmates classified as higher violence "180 design inmates,"*fn7 who were housed in CSP's general population, needed to be identified and transferred to other prisons. Due to the time involved in reviewing files to identify 180-design inmates, hold hearings, and securing another prison able to accept the inmate, the transfer of all 180-design inmates to other prisons was not complete in January 2006. (Giurbino Dec. at 4).

As a result of the State of Emergency, 140 inmates had been transferred to other prisons by November 14, 2005. Another 140 inmates were awaiting transfer. By December 2, 2005, 236 inmates had been transferred to other prisons. By December 29, 2005, a total of 297 inmates had been transferred to other prisons. (Borg Dec. at 4).*fn8

In November and December 2005, Giurbino was concerned about the potential for further violence due to the fact that the inmate that was killed during the August 18, 2005 incidents was a known gang member. Therefore, Giurbino believed that violent retaliation by the gang to which the inmate belonged might occur. During this time, Giurbino was also concerned about the occurrence of further violence in connection with the then upcoming and well-publicized execution of Stanley ...

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