Canell v. Multnomah County, No. CIV. 98-575-AA.

• Decision Date: 26 February 2001
• Docket Number: No. CIV. 98-575-AA.
• Citation: 141 F.Supp.2d 1046
• Parties: Alvin Howard CANELL, Plaintiff, v. MULTNOMAH COUNTY, et al., Defendants.
• Court: U.S. District Court — District of Oregon

141 F.Supp.2d 1046

Alvin Howard CANELL, Plaintiff, v. MULTNOMAH COUNTY, et al., Defendants.

No. CIV. 98-575-AA.

United States District Court, D. Oregon.

February 26, 2001.

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Alvin H. Canell, Salem, OR, pro se.

Susan M Dunaway, Portland, OR, for defendants.

ORDER

AIKEN, District Judge.

Plaintiff filed this action under 42 U.S.C. § 1983 alleging claims arising out of his incarceration in Multnomah County jails. Plaintiff's Third Amended Complaint (# 73) alleges 39 claims relating to conditions of confinement, right of access to the courts and medical care. Plaintiff also alleges in his Statement of Facts that defendants violated the Americans with Disabilities Act ("ADA") and denied him access to the courts by failing to provide an adequate law library and legal assistance. Before the court is defendants' Motion for Summary Judgment (# 134).

Motion to Strike: As a preliminary matter, plaintiff has moved to strike portions of the affidavits submitted in support of defendants' motion for summary judgment, Motion to Strike (# 153), and to Strike Affidavits in Reply to Opposition (# 182).

Plaintiff argues that portions of defendants' affidavits are improper under F.R.C.P. 56(e) because they are not based on the affiants personal knowledge.

I have reviewed the affidavits. Plaintiff's interpretation of F.R.C.P. 56 is unduly ridged and technical. Plaintiff's arguments may be material to the evidentiary weight of the affidavits, but the challenged portions are admissible. Plaintiff's objections to defendants' supplementary affidavits and exhibits are without merit. Plaintiff's Motions to Strike (# 153) and (# 182) are denied.

Motion for Summary Judgment: The relevant facts are as follows: From November 3, 1997, until November 20, 1997, and again from March 12, 1998, to June 17, 1998, plaintiff was incarcerated in Multnomah County on burglary charges and parole violations. Plaintiff spent part of his time in the Multnomah County Inverness Jail ("MCJI") and part of his time at the Multnomah County Detention Center ("MCDC").

During the time of his incarceration at MCDC, plaintiff was enrolled in the In Jail Intervention Program ("IJIP") which provides addiction counseling. On May 1, 1998, Deputy Scott Yon submitted a request that plaintiff be reclassified and removed from the IJIP module due to disruptive behavior.

While in the custody of Multnomah County, plaintiff was pursuing various legal matters. In addition to the two criminal matters for which he was being prosecuted, plaintiff was also litigating two civil cases as well as the case presently before the court. Plaintiff was represented by counsel in the criminal cases and pursued the remaining matters pro se.

At all Multnomah County jails, medical care is provided to inmates regardless of ability to pay. In accordance with state statutes, inmates are billed $5.00 against their inmate account for various medical services. Medical charges are deducted from an inmate's account if funds exist. If there are no funds in the inmate's account, the medical charges go unpaid. Plaintiff was charged $5.00 for certain medical services he received.

On June 4, 1998, while plaintiff was incarcerated in the MCDC, Deputy Roger Leger ordered a group of inmates, including plaintiff, to clean their sleeping areas. When the sleeping areas were not adequately cleaned, Deputy Leger allegedly ordered the group of inmates to clean chairs in the general living area.¹

After plaintiff filed his complaint in this action, defendants filed a counterclaim pursuant to Oregon law to recover the cost for providing plaintiff's housing, food and care during his incarceration. Defendants subsequently dismissed the counterclaim.

Defendants have filed a comprehensive 100 page memorandum in support of their motion for summary judgment, addressing all of plaintiff's claims, designated and implied, and asserting alternative arguments and grounds for dismissal as appropriate.

However, it is not necessary to specifically and separately address each defense that defendants have argued as to each of plaintiff's claims. Although the court has carefully considered each argument, it has limited its discussion of plaintiff's claims to a single dispositive ground where possible and not necessarily addressed every alternative argument or defense. For example, it is not necessary to discuss defendants' arguments for dismissing plaintiff's claim against defendants for acting in their personal capacity when the claim is otherwise fatally defective.

Fourth Amendment claims: Plaintiff alleges numerous claims under the Fourth Amendment, in conjunction with other constitutional grounds. (Claims 3, 4, 5, 10, 11, 15, 23, 24, 34 and 39). The Fourth Amendment applies to government searches or seizures. United States v. Attson, 900 F.2d 1427 (9th Cir.1990), cert denied, 498 U.S. 961, 111 S.Ct. 393, 112 L.Ed.2d 403 (1990). Plaintiff has not alleged any facts which would give rise to a claim governed by the Fourth Amendment.

Fourteenth Amendment / Pretrial Detainee Claims: Plaintiff has made several claims based on protections afforded pretrial detainees under the Fourteenth Amendment, in conjunction with other constitutional grounds. (Claims 3, 4, 5, 10, 11, 12, 15, 17, 23, 24, 26, 30, and 35).

Assuming arguendo that a Fourteenth Amendment analysis should apply to the alleged pretrial detainee claims, it is undisputed that plaintiff was either on parole or in custody pursuant to a revocation of parole during the time of his incarceration in the Multnomah County Corrections facilities. An inmate serving a sentence of incarceration on a parole violation is not a pretrial detainee.

Physical Injury requirement: Courts have traditionally imposed a requirement of injury on constitutional claims. In 1996, Congress imposed a statutory injury requirement when it enacted the Prison Litigation reform Act, 42 U.S.C. § 1997e(e). Pursuant to the PLRA, a plaintiff must suffer a physical injury in order to recover damages. Section 803 provides: "No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."

The Ninth Circuit has not yet specifically addressed what constitutes "physical injury." The Fifth Circuit has held that:

In the absence of any definition of "physical injury" in the new statute, we hold that the well established Eighth Amendment standards guide our analysis in determining whether a prisoner has sustained the necessary physical injury to support a claim for mental or emotional suffering. That is the injury must be more than de minimis, but need not be significant.

Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997), citing Hudson v. McMillian, 503 U.S. 1, 10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

The PLRA also prevents damage claims based on conditions creating "imminent danger" of being injured. See, Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.1999) (fear of physical injury dos not constitute actual physical injury).

The only apparent exception to the physical injury requirement is in the area of the First Amendment. For First Amendment claims, the Ninth Circuit has held that physical injury is relevant. See, Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir.1998).

In Claims 3, 4, 5 and 26, plaintiff alleges that defendants did not shower and "debug" inmates or test them for communicable disease before double bunking and mixing them with the general population. However, plaintiff has failed to establish any constitutionally significant physical injury resulting from defendants' alleged conduct. Plaintiff's toe fungus, even if attributable to "sanitation," was treated with medication and was at most a minor irritation.

In Claim 6, plaintiff alleges that defendants served food in unsanitary ways and exposed inmates to unsanitary conditions by requiring inmates to eat in their cells. Plaintiff contends that he was constipated on occasion from not eating. The brief denial of a necessity such as food, sanitation or water does not rise to the level of a constitutionally significant injury, See, Bolin v. Rice, 2000 WL 342676, *6 (N.D.Cal.).

In Claim 7, plaintiff alleges that defendants doubled celled inmates who had diseases and that defendants did not clean cells before placing new inmates in the cells. Plaintiff alleges that he was splashed in the eye with vomit from an inmates with AIDS. However, plaintiff has not been tested as HIV positive and alleged "exposure" to AIDS does not state a claim. See, Hochman v. Rafferty, 1989 WL 200955 (D.N.J.); Bolton v. Goord, 992 F.Supp. 604 (S.D.N.Y.1998).

In Claims 8 and 14, plaintiff alleges that defendants double celled plaintiff with inmates who were withdrawing from drugs and alcohol who might spread disease. However, plaintiff acknowledges that no physical injury resulted.

In Claims 29 and 30 plaintiff alleges that defendants failed to provide adequate ventilation which caused sore in his nose. The record reflects that plaintiff's nose sores were relieved with water and baby oil. Thus, even if caused by poor ventilation, the "injury" is insufficient to support a constitutional claim. See, Lile v. Tippecanoe County Jail, 844 F.Supp. 1301, 1310 (N.D.Ind.1992).

In Claims 33 and 36, plaintiff alleges that he was transported and held in cold holding cells. However, it is undisputed that plaintiff's exposure to cold weather was for less than five minutes and that he did not suffer any injury as a result. Plaintiff alleges that he caught a cold from being exposed to cold weather, but he did not seek medical treatment or develop complications such as bronchitis or pneumonia.

In Claims 14, 22, 23, 24, 25, 27 and 28, plaintiff alleges that he was put at increased risk of violence by other inmates by defendants' "double bunking"...