The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a civil detainee proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983. This case is before the undersigned pursuant to the parties' consent. Docs. 4, 29.*fn1 Presently pending is the sole defendant in this case, Sheriff John McGinnis' motion for summary judgment. Doc. 69. Plaintiff was deemed a Sexually Violent Predator (SVP) pursuant to the California's Sexually Violent Predator Act (SVPA). Plaintiff is usually housed at Coalinga State Hospital but was transferred to Sacramento County Main Jail (SCMJ) for court appearances from June 3, 2009, to October 6, 2009. Plaintiff alleges that his conditions of confinement at SCMJ were unconstitutional as he was only a civil detainee, not a criminal prisoner. Plaintiff describes dozens of different conditions that he deems were unconstitutional based on his status as a SVP detainee. However, many of plaintiff's allegations are repeated, overlap or are related. Plaintiff then lists fifteen causes of action, though it is not clear which cause of action relates to which claim or claims.
Therefore, the court will look to the following claims of unconstitutional conditions: Custody transfer using handcuffs and restraints, processed with criminal detainees, booked under a penal code section, strip search, provided orange clothing, denial of property, contact with criminal inmate workers, denied food, briefly shared a cell with a criminal detainee, had a cellmate, no shower sandals for eleven days, commissary was expensive, no sex offender treatment, staples and paperclips were confiscated, denial of indoor and outdoor recreation, denial of telephone service, denial of law library access, inadequate medical care, his cell was searched, not promptly given a rule book, laundry not cleaned frequently enough, improper bedding, mail was read by staff, visitation was done behind glass with a phone and visitors received parking tickets.
II. Motion for Summary Judgment
Legal Standard 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 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 October 7, 2010, and July 10, 2012,*fn2 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, 611 F.3d 1144 (9th Cir. 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 1150. 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, need be submitted by the pro se party.
The following of defendant's undisputed facts (DUF) are either not disputed by plaintiff, or following the court's review of the evidence submitted, have been deemed undisputed:
Plaintiff was convicted for child molestation in 1979 and 1981. DUF #1. He was sentenced to 25 years and was released from prison in 1994. Id. Pursuant to California Welfare & Institutions Code sections 6600 et seq., plaintiff was deemed a sexually violent predator and transferred to the custody of the Department of Mental Health. DUF #2. During the relevant time, plaintiff was housed at Coalinga State Hospital before being transferred to SCMJ. DUF #3. At the relevant times plaintiff did not have any criminal charges pending and was not serving a criminal sentence. DUF #5. Sacramento County Main Jail is a maximum security facility, that houses a wide variety of inmates. DUF #7. At maximum capacity SCMJ can hold 2,432 inmates and is often at or near maximum capacity at all times. Id. In 2009, there were on average four to six SVP detainees at SCMJ at a time. DUF #49. In order to effectively and safely operate the facility, an entire area that normally holds 64 people cannot be shutdown just to hold four to six SVP detainees. DUF #50. As a result, other classifications of detainees must be housed in the same area as SVP detainees such as mentally disordered offender inmates. DUF #53. An inmate who has a criminal history of sex and violence against children is likely to be targeted by other inmates. DUF #54. In 2009 it was the policy of SCMJ to classify and place SVP detainees and other civil sub-classifications such as mentally disordered offenders in the 3 East area. DUF #55. This area is the most convenient as well as the least restrictive area of the jail, as it is on the same floor and therefore provides easier access to the law library, social workers and psychiatric services. DUF #56.
Sacramento County Main Jail has an ongoing battle to stop contraband from entering the facility, such as drugs, guns, weapons, food, pornographic magazines, or alcohol. DUF #8. Contraband can be transported into the facility either by swallowing it, inserting it into areas of the body or visitors can pass objects at the facility or while at court proceedings. Id. It is just as possible for a criminal or civil detainee to smuggle contraband. DUF #10. As a result, inmates and their cells are searched. DUF #11.
On June 3, 2009, plaintiff was transported from Coalinga State Hospital to SCMJ. DUF #80. Plaintiff packed a bag containing fourteen Efferdent tablets, a carry see-through bag, eyeglass case, electronic dictionary, wrist watch and state issued velcro strap shoes. DUF #81. Plaintiff was not allowed to bring the following items: Apple iPod, DVD player, Palm PDA and wireless keyboard, Play Station Portable gaming device, DVDs, CDs, SD chips, thumb drives, pens, photo albums, personal food and shoes. DUF #82. Plaintiff's staples and metal paperclips were confiscated. Id. Plaintiff was placed in handcuffs, a security belly/waist chain and ankle cuffs for the van transportation. DUF #83. Plaintiff did not request any stops for a restroom or meal for the approximately three hour trip. DUF #84, 85. Plaintiff arrived at SCMJ at approximately 2:24 p.m. DUF #86.
Upon arriving at SCMJ inmates remain handcuffed while the transporting officer completed paperwork and the booking process. DUF #19. The holding tank for the booking process can hold up to fourteen people, though that amount varies. DUF #87. Plaintiff's booking sheet cited California Penal Code § 2620 as the reason for his presence at SCMJ. DUF #88. Plaintiff did not ask the other individuals at booking why they were at SCMJ. DUF #90.
Plaintiff believes that all the other individuals at booking were criminals because he noticed their booking sheets which listed penal code sections as the reasons for their detention. DUF #91. Though, plaintiff's own booking sheet indicates a penal code section even though plaintiff was not serving a sentence for a criminal conviction. DUF #92.
Plaintiff was strip searched in that he was required to undress, then bend at the waist while spreading his buttocks to display his rectum, squat naked and cough several times, and lift his scrotum and penis to allow visual inspection. DUF #94. Plaintiff was then forced to place his fingers inside his mouth pulling his lips away from the gums while sticking his tongue out and then remove his upper partials for viewing. Id. The search was conducted by two male deputies who never physically touched him during the search. DUF #95, 97. While there were approximately seven other inmates in the room at the time, plaintiff stood between two metal partitions which obstructed him from view of the other inmates. DUF #96. Plaintiff was then given orange clothing the same clothing worn by all individuals except those awaiting transfer to US Immigration and Customs Enforcement, who wear green. DUF #98. New inmates received one shirt, one undershirt, one pair of pants, one pair of socks, one pair of shoes, one towel and one complete set of undergarments. DUF #28.
At approximately 4:52 a.m., plaintiff was moved to the 7 East area in the jail where he was placed in a protective custody cell. DUF #99. Inmates in protective custody are separated from the general population for their own safety. DUF #100. While in 7 East, plaintiff shared the cell with an individual who had just been sentenced after pleading no contest to sexual battery and was awaiting transfer to a state prison facility. DUF #101. Plaintiff remained in the cell for five hours until he was moved to 3 East. Id. Once plaintiff moved to 3 East, he was only housed or shared cells with other civil detainees. DUF #102; Plaintiff Undisputed Facts (PUF) #102; Defendant's Reply to PUF #102.
Plaintiff takes issue with the fact that he was given orange clothing which did not distinguish him as a civil detainee. DUF #103. Plaintiff also takes issue with the fact that the clothing was ill fitting and he believes the socks were women's socks. DUF #104. Plaintiff claims he did not receive a rule book when he went through the booking process and he did not receive one until August 10, 2010. DUF #106. Plaintiff admits he did not request a rule book during booking. DUF #107.
Plaintiff contends he was tortured by the smell of his cellmate defecating and the sound of his cellmate masturbating. DUF #108. Plaintiff states he was subject to mental torture by the people in the neighboring cell who would frequently push a button to run water through their sink. DUF #109. Plaintiff also states the noise of other inmates yelling or pounding on their doors caused him mental torture. DUF #110. Staff at SCMJ are required to count all inmates multiple times per day, to ensure all inmates are accounted for. DUF #58. When counts are performed inmates are asked to stand or sit so that staff may see the inmate's face. DUF #59. Plaintiff objected that he had to stand up or sit down when staff performed head counts of inmates and staff threatened to take away his dayroom privileges if he refused to comply. DUF #111. Plaintiff states that for some meals, certain components of the meal were no longer available by the time he received the meal, such as milk, a piece of fruit or a Kool-Aid packet. DUF #113. Plaintiff believes this occurred about three times each week. DUF #114. Plaintiff also did not receive lunch on his arrival at SCMJ on June 3, 2009, at approximately 2:24 p.m, though lunch had ceased serving already. DUF #115, 116.
The number of inmates given access to the dayroom varies between one and thirty depending on the classification of the inmates. DUF #39. The dayroom is not utilized twenty-four hours per day. DUF #40. When inmates are using the dayroom no other groups of inmates are allowed access except inmate workers who need to walk through the area to obtain supplies for their job or to complete their tasks. DUF #43, 44.
Plaintiff was housed at SCMJ for 126 days. DUF #117. During that time, he had 161 opportunities for dayroom time, which were offered on 111 days of his stay at SCMJ. DUF #118. Plaintiff received an average of 92 minutes per dayroom opportunity. DUF #119.
Criminal defendants received 161 opportunities for dayroom, but these were only offered on 106 days and had an average of 82 minutes per dayroom opportunity. DUF #120.
Of the 126 days plaintiff was housed at SCMJ he was given 28 opportunities for outdoor recreation, which were offered on 26 days of his incarceration. DUF #122. Plaintiff received an average of 88 minutes of outdoor recreation per opportunity. DUF #123. Criminal inmates received 31 opportunities for outdoor recreation, on 30 different days, but criminal inmates received only 62 minutes of outdoor recreation time. DUF #124.
Psychiatric treatment is available to all inmates at SCMJ, including individual and group counseling. DUF #64. Plaintiff states that he was not able to continue a Sex Offender Commitment Program (SOCP), that he had been involved with at Coalinga State Hospital. The SOCP is comprised of multiple components including group therapy, daily journaling, an empathy book, assessments and 24 hour behavior monitoring. DUF #127. Plaintiff did not participate in any other group therapy at SCMJ nor did he continue daily journaling. DUF #128, 129. Though plaintiff did keep a journal unrelated to his SOCP treatment. Doc. 73, Exh. A: Plaintiff's Deposition at 79. Plaintiff was not aware of any mental health assessments that he missed at Coalinga State Hospital while he was at SCMJ. DUF #134.
Medical treatment is available for all inmates. DUF #63. Inmates are charged $3.00 for a visit, however if the prisoner has no money, they will not be denied medical care. Id. Plaintiff did not seek treatment after he developed athlete's foot because he did not want to pay $3 for the examination. DUF #135. Plaintiff's calcium supplements were replaced with TUMS. DUF #136. Plaintiff was not provided Coal Tar Shampoo for his psoriasis and Triamcinolone cream for his psoriasis was not provided as often as he wanted. DUF #137. Plaintiff could not purchase shower sandals until his first week and they did not arrive until his second week at SCMJ. DUF #138, 139. Plaintiff believes the SCMJ commissary is more expensive than at Coalinga State Hospital. DUF #140. SCMJ has a commissary which allows inmates to purchase various items through the inmate's account. DUF #61. In 2009 the commissary was operated by an outside vendor, Aramark Correctional Services. DUF #62
Plaintiff states that at Coalinga State Hospital clean bedding, clothing and towels were provided daily, but this was not the case at SCMJ. DUF #141. All prisoners at SCMJ were allowed to exchange clothing bedding and linens with the same frequency. Doc. 72, Decl. of Daw ¶ 46. Outer garments, bedding and linens could be exchanged for clean items once per week. Id. Undergarments could be exchanged twice per week. Id. Though, inmate workers were permitted to exchange laundry more often as they are required to maintain certain standards for their jobs. Id.
Plaintiff would have preferred to be kept entirely separate from all criminal prisoners. DUF #142. Plaintiff came into occasional contact with criminal prisoners who were given extra responsibilities and allowed to have jobs such as distributing meals, cleaning the jail, and exchanging clean and dirty laundry. DUF #143. Plaintiff concedes that other than contact with the workers, contact with other criminal prisoners was accidental. DUF #147; Plaintiff's Undisputed Facts (PUF) #147.
Plaintiff states he was unable to call toll free numbers on the jail phone. DUF #148. Plaintiff could not use the prepaid telephone system at the jail because he did not have sufficient money. DUF #149. Telephone calls from SCMJ can be monitored, though it is not clear if any of plaintiff's phone calls were monitored. DUF #150. Mail may be read at SCMJ, though it is not clear if plaintiff's mail was read. DUF #151.
Due to safety and security reasons, including preventing contraband from entering SCMJ, all visitation takes place through a glass wall which separates the inmate from the visitor. DUF #66. Plaintiff received fourteen social visits during his time at SCMJ. DUF #152. Plaintiff states that his sister received two parking tickets while visiting him. DUF #154. Authorities at SCMJ are not responsible for parking enforcement around the jail. DUF #155.
On June 12, 2009, plaintiff's cell was searched and plaintiff was subject to a pat-down search and had to remove his shoes. DUF #156. All of plaintiff's property was returned.
Id. No more than six prisoners are permitted in the law library at one time. DUF #159. Plaintiff made nine requests to use the law library. DUF #157. Plaintiff was allowed to use the law ...