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 both parties' consent. Docs. 4,
44. Presently pending is the sole defendant in this case, Sheriff John McGinnis' motion for summary judgment. In a related case, No. 2:10-cv-1727 GGH P, plaintiff raised nearly identical claims but from a different time period (June 2009 to October 2009). On August 9, 2012, the court issued an order granting summary judgment and closing that case.
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 January 5, 2010, to February 18, 2010, (45 days), July 22, 2010, to August 5, 2010, (15 days) and September 2, 2010, to November 18, 2010, (75 days). 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 sixteen causes of action, though it is not clear which cause of action relates to which claim or claims. Plaintiff has only named one defendant in this case, Sheriff McGinnis, though as will be discussed below there are no allegations that McGinnis was personally involved in any of the contested conduct nor does the Monell*fn1 claim survive summary judgment. While plaintiff at times identifies other actors in the course of his complaint, plaintiff chose not to name those actors as defendants.
Regardless, the court will look to the following claims of unconstitutional conditions: Custody transfer using handcuffs and restraints, booked under a penal code section, strip search, provided orange clothing, failure to protect, held in a classroom for two days, held in a single cell, held in a double cell, denial of property, commissary was expensive, contact with criminal inmate workers, denied portions of meals, unsanitary food, no sex offender treatment, denial of dayroom and recreation, laundry not done frequently enough, denial of telephone service and mail, visiting was done behind glass, denial of law library access, inadequate medical care and denial of religious services.
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 April 21, 2011, 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 #6. At maximum capacity SCMJ can hold 2,432 inmates and is often at or near maximum capacity at all times. DUF #6. In 2010, there were on average four to six SVP detainees at SCMJ at a time. DUF #48. 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 2010 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 5, 2010, plaintiff was transported from Coalinga State Hospital to SCMJ. DUF #88. A similar transfer occurred on July 22, 2010, and September 2, 2010. DUF #89, 90. For all transfers, plaintiff was placed in handcuffs, a security belly/waist chain and ankle cuffs for the van transportation. DUF #92. Each trip took approximately three hours. DUF #92. Plaintiff did not request any stops for a restroom or meal for the approximately three hour trips. Id. Plaintiff was not allowed to bring the following items: DVD player, Palm PDA and wireless keyboard, Play Station Portable gaming device, DVDs, CDs, SD chips, thumb drives, pens, photo albums and shoes. DUF #93.
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 #95. Plaintiff's booking sheet cited California Penal Code § 2620 as the reason for his presence at SCMJ. DUF #96. Plaintiff believes that all the other individuals at booking were criminal prisoners and he objects to being placed with them temporarily. DUF #98.
On all three arrivals, 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 #100. 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 #101. 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. Id. 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 #102. 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 #27. Plaintiff takes issue with the fact that he was given orange clothing which did not distinguish him as a civil detainee. DUF #103. Plaintiff was then taken to 3 East. DUF #104.
Plaintiff contends he was tortured by the smell of his cellmate defecating and the sound of his cellmate masturbating. DUF #105. Plaintiff also objects to being placed in a single cell in isolation from July 27, 2010, to August 5, 2010. DUF #106. Plaintiff states that for some meals, certain components of the meal were no longer available by the time he received the meal. DUF #107. Plaintiff does not know how often or when this occurred. Id. Plaintiff claims that criminal inmate workers failed to wash their hands and used unsanitary food handling practices when serving food to inmates. DUF #108. Plaintiff admits he did not observe the workers' sanitation practices, other than they sometimes touched his food while wearing gloves, but the gloves were sometimes dirty. DUF #109.
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. Outdoor recreation is also limited to around 30-32 people due to security concerns. DUF #46. When large groups of inmates are in the same area more fights and assaultive behavior occurs. DUF #47.
Plaintiff was housed at SCMJ for a total of 137 days. DUF #111. During that time, he had 89 opportunities for dayroom time, while all other groups of inmates had an average of 96 opportunities. Doc. 32, Howard Decl., Exh. F. However, plaintiff received an average of 77 minutes of dayroom, while all other groups of inmates received an average of 58 minutes of time. Id.
Psychiatric treatment is available to all inmates at SCMJ, including individual and group counseling. DUF #63, 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. DUF #119. The SOCP is comprised of multiple components including group therapy, daily journaling, an empathy book, assessments and 24 hour behavior monitoring. DUF #118. Plaintiff had access to paper and writing instruments at SCMJ. DUF #121. Plaintiff did not participate in any other group therapy at SCMJ. DUF #119. Plaintiff was briefly denied vitamins A, D, calcium and triamcinolone cream. DUF #124. Plaintiff eventually received all of those medications. DUF #125.
SCMJ has a commissary which allows inmates to purchase various items through the inmate's account. DUF #61. In 2010 the commissary was operated by an outside vendor, Aramark Correctional Services. DUF #62. Plaintiff disagrees with the prices of commissary items. DFU #126. All prisoners at SCMJ were allowed to exchange clothing bedding and linens with the same frequency. Doc. 33, Daw Decl. ¶ 50. 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 #129. 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 #130.
Plaintiff states he was unable to call toll free numbers and area codes. DUF #131. Telephone calls from SCMJ can be monitored, though it is not clear if any of plaintiff's phone calls were monitored. DUF #132. Mail may be read at SCMJ, though it is not clear if plaintiff's mail was read. DUF # 82, 133. 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 does not agree with this rule. DUF #134. Plaintiff also wanted more law library access. DUF #135.
Plaintiff was housed with Roland Gonzalez on July 23, 2010. DUF #139. Plaintiff met Gonzalez earlier when he stayed at SCMJ in January and February 2010, and in 2009. DUF #140. On July 25, 2010, plaintiff noticed that Gonzalez began to seem unstable and putting his own commissary items in the toilet. DUF #141. There was then a physical altercation between plaintiff and Gonzalez and plaintiff pressed the emergency call button to be placed into contact with jail staff. DUF #143. Plaintiff asked jail staff to open the cell door, jail staff complied, and plaintiff exited the cell. DUF #148.
Plaintiff did not want to return to the cell with Gonzalez, so he was handcuffed and taken to a classroom on the same floor as his cell. DUF #150. The classroom does not contain a bathroom, though a bathroom is available on that floor. DUF #151, 152. The next shift of officers arrived who removed the handcuffs and allowed plaintiff to use the bathroom. DUF #154. Later plaintiff urinated on the floor of the classroom because he was worried that he should not bother the officers and ask to use the bathroom. DUF #155, 156. It is unclear if plaintiff again asked to use the bathroom and was denied by jail staff, as plaintiff refused to provide an answer in his deposition when queried by counsel.*fn3 Based on the tortured deposition testimony the court cannot assume that plaintiff asked to use the restroom and was denied by jail staff, prompting plaintiff to urinate in the classroom. Plaintiff stayed in the classroom for two days. DUF #157. There was no mattress or blanket in the classroom, but plaintiff never requested a blanket or a mattress. Doc. 32, Exh. B, Plaintiff's Deposition at 149-50. On July 27, 2010, plaintiff was transferred to a single cell, with no cellmate. DUF #159. Plaintiff admits he preferred being in a single cell. DUF #160. Plaintiff also states that being placed in a single cell for thirteen days was improper isolation. DUF #161.
Plaintiff states he was denied access to religious services. DUF #162. However, plaintiff never describes the type of religious services he was denied. DUF #163. Plaintiff never formally requested access to religious services using the proper form. DUF #165. Plaintiff states he was not aware of the form, but made verbal requests. Opposition to Summary Judgment (Opposition) at 34.
Plaintiff generally states that his conditions were too restrictive considering his status as a civil detainee.
As a civil detainee, the applicable standard for plaintiff is not the more restrictive standards for cruel and unusual punishment under the Eighth Amendment; rather, "'the more protective fourteenth amendment standard applies to conditions of confinement when detainees ... have not been convicted' of a crime." Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004), quoting Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987), citing Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452 (1982) (civilly committed individuals), and Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861 (1979).
The Fourteenth Amendment requires the government to do more than provide the "minimal civilized measure of life's necessities," Rhodes [v. Chapman], 452 U.S.  at 347, 101 S.Ct. 2392, for non-convicted detainees. Rather, "due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845  (1972).
The case of the individual confined awaiting civil commitment proceedings implicates the intersection between two distinct Fourteenth Amendment imperatives. First, "[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Youngberg, 457 U.S. at 321-22, 102 S.Ct. 2452. Second, when the state detains an individual on a criminal charge, that person, unlike a criminal convict, "may not be punished prior to an adjudication of guilt in accordance with due process of law.'" Bell, 441 U.S. at 535, 99 S.Ct. 1861 (emphasis added); see also Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir.2004) ("[T]he Fourteenth Amendment prohibits all punishment of pretrial detainees."). As civil detainees retain greater liberty protections than individuals detained under criminal process, see Youngberg, 457 U.S. at 321-24, 102 S.Ct. 2452, and pre-adjudication detainees retain greater liberty protections than convicted ones, see Bell, 441 U.S. at 535-36, 99 S.Ct. 1861, it ...