Grenning v. Miller-Stout

• Decision Date: 16 January 2014
• Docket Number: No. 11–35579.,11–35579.
• Parties: Neil GRENNING, Plaintiff–Appellant, v. Maggie MILLER–STOUT; Jim Dyson; Fred Fox, sued in their individual and official capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

739 F.3d 1235

Neil GRENNING, Plaintiff–Appellant,

v.Maggie MILLER–STOUT; Jim Dyson; Fred Fox, sued in their individual and official capacities, Defendants–Appellees.

No. 11–35579.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 5, 2013.

Filed Jan. 16, 2014.

Hunter Olds Ferguson (argued), Leonard J. Feldman, Stoel Rives, LLP, Seattle, WA, for Plaintiff–Appellant.

Candie M. Dibble, Joseph T. Edwards, Kevin Clarke Elliott (argued), Office of the Attorney General, Spokane, WA, for Defendants–Appellees.

Appeal from the United States District Court for the Eastern District of Washington, Edward F. Shea, District Judge, Presiding. D.C. No. 2:09–cv–00389–JPH.

Before: FERDINAND F. FERNANDEZ, WILLIAM A. FLETCHER, and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Neil Grenning appeals a grant of summary judgment in favor of defendant prison officials. Grenning contends that continuous twenty-four-hour illumination of his cell violated the Eighth Amendment. We reverse and remand for further proceedings.

I. Background

Neil Grenning is a Washington State inmate at Airway Heights Corrections Center (“Airway Heights”). Prison staff placed Grenning in the Special Management Unit (“SMU”) of Airway Heights “pending investigation” into a fight “that he was allegedly involved in.” Grenning was kept in the SMU for about thirteen days.

The SMU is an administrative segregation unit with single-inmate cells that are continuously illuminated for twenty-four hours a day. Each cell in the SMU has three four-foot-long fluorescent lighting tubes in a mounted light fixture. A cell occupant can use a switch inside the cell to turn off two of the tubes. However, the center tube is always on. The center tube is covered by a blue light-diffusing sleeve.

Terry Propeck, a correctional unit supervisor, provided a declaration describing practices in the SMU. Propeck's term for inmates kept in the SMU is “offenders.” Propeck states, “Offenders housed in the SMU are considered a high risk to staff, other offenders, and themselves. Some offenders are placed in SMU pending an investigation into an incident that the offender was involved in.” Some inmates are placed in SMU because they request protective custody. Institution policy requires welfare checks in the SMU to be conducted every thirty minutes, which is more frequent than checks for the general prison population.

According to Propeck, continuous illumination allows officers to “assess [ ] the baseline behavior of offenders to ensure they are not at risk of harming themselves or making an attempt to harm staff, cause property damage or incite problem behavior from other offenders.” Propeck states that turning the cell lights on and off every thirty minutes would be disruptive to the cell occupants. Further, turning the lights on and off also might endanger staff because guards would be unable to see into the cell until they were immediately in front of it and had turned on the light. Turning lights on and off would also alert inmates to staff presence. Finally, Propeck states, “If an emergency occurred necessitating keeping the lights on for a prolonged period of time, this could cause a disruption in the unit and frustrate or cause anxiety for offenders as opposed to having the light on as a norm.”

Grenning filed a verified complaint alleging that the continuous lighting in his SMU cell violated the Eighth Amendment. Grenning alleges that the light was so bright he could not sleep, even with “four layers of towel wrapped around his eyes.” He alleges that the lighting gave him “recurring migraine headaches” and that he could not distinguish between night and day in the cell. Grenning also alleges that the lighting caused him pain and disoriented him.

There is no evidence that Grenning sought medical assistance while in the SMU. However, he did submit a grievance informing prison officials that he could not sleep and that he had headaches as a result of the continuous lighting. He requested that prison officials replace the center tube with something that would give off less light.

The district court granted summary judgment in favor of Defendants, holding that Grenning had not established an Eighth Amendment violation. Grenning timely appealed.

II. Standard of Review

We review a grant of summary judgment de novo. Summary judgment is appropriate when, “with the evidence viewed in the light most favorable to the non-moving party, there are no genuine issues of material fact, so that the moving party is entitled to a judgment as a matter of law.” San Diego Police Officers' Ass'n v. San Diego City Emps.' Ret. Sys., 568 F.3d 725, 733 (9th Cir.2009).

III. Discussion

A. “Physical Injury” Requirement of the PLRA

Defendants argue that Grenning's claim is barred by a requirement of the Prison Litigation Reform Act (“PLRA”) that a prisoner have suffered a physical injury. The language of the relevant section provides:

(e) Limitation on recovery

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....

42 U.S.C. § 1997e(e). This section does not bar Grenning's case because he does not seek recovery for “mental or emotional injury.” See Oliver v. Keller, 289 F.3d 623, 629 (9th Cir.2002) (“[Section] 1997e(e) applies only to claims for mental and emotional injury.”). He alleges various forms of physical injury and discomfort, and he seeks a declaratory judgment stating that the continuous lighting violated the Eighth and Fourteenth Amendments, an injunction preventing Defendants from continuing their lighting policy, compensatory damages, and “other relief as it may appear that plaintiff is entitled.”

B. Eighth Amendment

To prove an Eighth Amendment violation based on prison conditions, a prisoner must satisfy a two-part test. The objective part of the test requires a showing that the defendants deprived the plaintiff of the “minimal civilized measure of life's necessities.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.2002) (internal quotation marks and citations omitted). The subjective part requires a showing that the defendants “acted with ‘deliberate indifference’ in doing so.” Id.

We have held that continuous lighting can satisfy the objective part of the test. “Adequate lighting is one of the fundamental attributes of ‘adequate shelter’ required by the Eighth Amendment. Moreover, there is no legitimate penological justification for requiring inmates to suffer physical and psychological harm by living in constant illumination. This practice is unconstitutional.” Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir.1996) (alterations,internal quotation marks, and citations omitted), opinion amended on denial of reh'g,135 F.3d 1318 (9th Cir.1998). Keenan alleged in his verified complaint that the continuous lighting caused him “grave sleeping problems,” and that it was so bright that he “had no way of telling night or day.” Id. at 1091. The state submitted an affidavit stating that an inmate could sleep with the twenty-four-hour lighting. We held that Keenan had presented enough evidence to show a disputed issue of material fact. Id.; see also LeMaire v. Maass, 745 F.Supp. 623, 636 (D.Or.1990), vacated,12 F.3d 1444 (9th Cir.1993) (vacated in part because state agreed to modify lighting policy, see id. at 1459); cf. Chappell v. Mandeville, 706 F.3d 1052, 1057–58 (9th Cir.2013) (finding officials entitled to qualified immunity for Eighth Amendment lighting claim by prisoner on contraband watch who did not claim sleep deprivation).

A showing of deliberate indifference, under the subjective part of the test, requires a showing that the defendant knew of an excessive risk to inmate health or safety that the defendant deliberately ignored. Johnson v. Lewis, 217 F.3d 726, 734 (9th Cir.2000). Whether an official possessed such knowledge “is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Id. (internal quotation marks omitted). Knowledge of a risk of harm can be inferred where that risk is “obvious,” but prison officials are not liable if they respond reasonably to the risk. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.2010).

C. Evidence in the Record

To show that the continuous lighting violated the objective part of the test, Grenning filed a verified complaint alleging that the SMU lighting was so bright he could not sleep and that it gave him recurring migraines. He alleges that he could not distinguish between night and day in the cell. Finally, he alleges that the continuous lighting caused pain and disorientation.

The only evidence concerning the brightness of the SMU cells submitted by Defendants is a report and a declaration by Airway Heights Electrician Supervisor Steve McCallum. McCallum states in his report that he performed light meter readings in two SMU cells, using two meters in each cell. In one cell, the readings with the blue sleeve in place were 9.99 foot-candles using one meter, and 11.16 foot-candles using the other. The distance from bunk to light fixture was seven feet four inches. In the other cell, the light meter readings with the blue sleeve in place were 10.9 foot-candles and 12.4 foot-candles. The “[d]istance from bunk to light fixture” was seven feet.

McCallum does not state in his report that he did his light meter readings at bunk level; but we may infer that he did so, for otherwise his measurements would be useless for purposes of this suit. McCallum also does not state in his report that he did his light meter reading with only the center tube turned on; but we may again infer that he did so, for otherwise his measurements would be useless. Finally, McCallum does not state in his report that he did his measurements in the particular SMU cell that Grenning occupied.

In his sworn declaration, almost...