United States District Court, E.D. California
RAYMOND L. OUBICHON, Plaintiff,
THOMAS CAREY, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in an action brought under 42 U.S.C. § 1983. He asserts
an Eighth Amendment conditions-of confinement claim and a
Fourteenth Amendment equal protection claim. He alleges that
defendants violated his federal rights by exposing him to a
clogged, overflowing toilet that caused him to slip, fall,
and break his wrist. Plaintiff further alleges that
defendants purposefully discriminated against him when, in
the wake of a riot, they confined him and other Black inmates
to a chow hall with a nonworking toilet.
move for summary judgment. ECF No. 66. Generally, they argue
that plaintiff's claims fail because (1) his
conditions-of-confinement claim is a disguised negligence
claim and (2) he failed to show discriminatory purpose. As
discussed below, defendants' motion for summary judgment
should be granted.
section is based on evidence in the summary judgment record.
Unless otherwise noted, the facts recited herein are not
reasonably in dispute.
is a state inmate who was incarcerated at California State
Prison, Solano (“SOL”) when the events underlying
his third amended complaint took place. ECF No. 69-1 ¶
1. At all relevant times, defendant Harmer worked at SOL as a
registered nurse (“RN”). ECF No. 66-7 ¶ 2.
The remaining defendants worked at SOL as correctional
officers of various ranks. See, e.g., ECF No. 66-6
¶ 2; ECF No. 66-8 ¶ 2.
March 9, 2005, at around 2:30 p.m., a large-scale fight
erupted between groups of Black and Northern Hispanic inmates
on SOL's main yard. ECF No. 66-4 ¶ 3; ECF No. 66-5
¶ 3; ECF No. 66-8 ¶ 3; ECF No. 69-1 ¶ 3.
Approximately 102 inmates participated in the riot. ECF No.
66-8 ¶ 3; ECF No. 69-1 ¶ 4. Although plaintiff was
on the yard when the riot broke out, there is no evidence
that he participated in it. ECF No. 69-1 ¶¶ 36, 38;
ECF No. 69-2 ¶ 5.
riot created an emergency situation at SOL. ECF No. 66-5
¶ 7; ECF No. 66-6 ¶ 8; ECF No. 66-8 ¶ 6. In
response, SOL staff separated inmates suspected of
participating in the riot by race. ECF No. 66-4 ¶ 5; ECF
No. 69-1 ¶ 13. Black inmates, including plaintiff, were
taken to Chow Hall 3. ECF No. 69-1 ¶ 14. Northern
Hispanic inmates were taken to Chow Hall 4. ECF No. 66-4
¶ 5. Defendant Parks, who worked at SOL as a
correctional lieutenant, ECF No. 66-4 ¶ 2, made the
decision to separate the Black and Northern Hispanic inmates,
id. ¶ 5. See also ECF No. 66-8 ¶
4; ECF No. 66-5 ¶ 4; ECF No. 66-6 ¶ 4.
declares that the toilet in Chow Hall 3 was out of order. ECF
No. 69-1 ¶ 16. Plaintiff further declares that he
informed defendants Orrick and Parks that the toilet was out
of order. Id. ¶¶ 16-17. According to
plaintiff, Orrick said that she could not do anything about
the problem, id. ¶ 16, and Parks said that the
Black inmates had “nothing coming” because they
participated “in a riot, ” id. ¶
plaintiff declares that the Black inmates started urinating
and defecating in the malfunctioning toilet. Id.
¶ 18. As a result, according to plaintiff, the toilet
overflowed onto the floor in Chow Hall 3. Id.
Plaintiff adds that, on his way to use the toilet, he
“slipped and fell” on water and excrement, which
seriously injured his wrist and hurt his back. Id.
declares that he told defendant Maloney about his need for
medical attention. Id. ¶ 21. According to
plaintiff, Maloney told him that “there was nothing he
could do at that time because there was an institutional
count being conducted.” Id. ¶ 22.
5:00 p.m., shortly after plaintiff fell, another fight broke
out between Black and Northern Hispanic inmates. Id.
¶ 23; see also ECF No. 66-5 ¶ 7; ECF No.
66-6 ¶ 8. This fight involved approximately 34 inmates.
ECF No. 66-5 ¶ 7; ECF No. 66-8 ¶ 6. SOL staff,
including defendants, were busy responding to the emergency
situation created by the fights, which included conducting
investigations, writing reports, and treating injuries. ECF
No. 66-5 ¶ 7; ECF No. 66-8 ¶ 7; ECF No. 66-6 ¶
declares that, in the wake of the second riot, more Black and
Northern Hispanic inmates were brought to, respectively, Chow
Halls 3 and 4. ECF No. 69-1 ¶ 24. Plaintiff further
declares that, as this measure was carried out, he informed
defendants Maloney, Orrick, Jessup, and Parks that he needed
medical attention and that the toilet was overflowing.
Id. ¶ 25.
to plaintiff, he was escorted to the clinic after two hours.
ECF No. 69-1 ¶ 26. Defendant Harmer examined him. ECF
No. 66-7 ¶ 3. In her declaration, Harmer states that she
did not suspect a serious injury or fracture because she
“did not see any obvious deformities or signs of trauma
consistent with a fracture.” Id. Plaintiff
concedes that, because Harmer is not a doctor, she
“could not have known that [he] had a broken wrist
other than the fact that [he] told her his wrist was
broken.” ECF No. 69-2 ¶ 18; see also ECF
No. 66-7 ¶ 3. Harmer states, and plaintiff concedes,
that she gave plaintiff a sling. Id.; see
also ECF No. 69-2 ¶ 17. Further, Harmer states that
she offered plaintiff “over-the-counter pain relief
pills, ” but that he refused them. ECF No. 66-7 ¶
3. Plaintiff seems to dispute this assertion. ECF No. 69-2
¶ 17. Additionally, Harmer declares that, as an RN, she
lacks “authority or ability to prescribe prescription
medication.” ECF No. 66-7 ¶ 3. Harmer adds that
she released plaintiff back into custody with instructions to
return to the clinic the next morning if the pain persisted.
Id. ¶ 4.
declares that he returned to Chow Hall 3, where the toilet
was still out of order. ECF No. 69-1 ¶ 28. He adds that
he had to sleep on top of tables without bedding, and that he
was in “extreme pain.” Id. ¶¶
28-29. Plaintiff also declares that he constantly asked
defendants Maloney, Orrick, Jessup, and Parks to have the
toilet repaired so that Black inmates could have a working
toilet like Northern Hispanics in Chow Hall 4. Id.
¶ 29. Plaintiff claims that these defendants told him
that “they had nothing coming.” Id.
next day, plaintiff was escorted back to the clinic. ECF No.
69-1 ¶ 30; ECF No. 66-7 ¶ 5. His wrist was X-rayed
and he was diagnosed with a fractured wrist. ECF No. 66-7
¶ 5; ECF No. 69-1 ¶ 30. Plaintiff declares that a
doctor “recommended immediate surgery which required
that [he] be transported to an outside hospital.”
Id. ¶ 31.
declares that defendant Parks subsequently put him in
administrative segregation based on his suspected
participation in the first riot. Id. ¶ 32.
Accordingly to plaintiff, “[o]n March 11, 2005, almost
(2) days after [he] had broken his wrist, he was finally
taken to an outside hospital, where surgery was performed to
fix his broken wrist.” Id. ¶ 33.
operative pleading in this case is the third amended
complaint. ECF No. 41. Therein, plaintiff asserts an Eighth
Amendment claim for deliberate indifference, as well as equal
protection and due process claims. Id. at 11-12. He
bases his claim of deliberate indifference on the following
events: (1) the toilet's inoperability and his slip and
fall; (2) the two-hour delay in taking him to see Harmer; (3)
the allegedly inadequate medical care Harmer gave him; and
(4) the two-day delay in taking him to the hospital for
surgery. Id. at 7-10. He bases his equal protection
and due process claims on the alleged fact that, unlike
Northern Hispanics in Chow Hall 4, Blacks in Chow Hall 4
lacked a working toilet. Id.
generally argue that plaintiff's Eighth Amendment claim
fails because the inadequate sanitation, treatment delays,
and misdiagnosis of which he complains sound in negligence,
which is insufficient to constitute deliberate indifference
under the Eight Amendment. See ECF No. 66-1 at 3-9.
Further, defendants argue that plaintiff's equal
protection claim fails because he failed to submit sufficient
evidence of discriminatory intent. Id. at 9-10.