Norwood v. Woodford

• Decision Date: 07 October 2009
• Docket Number: Civil No. 07cv0057 WQH (JMA).
• Court: U.S. District Court — Southern District of California
• Parties: Gregory Lynn NORWOOD, Plaintiff, v. Jeanne WOODFORD, et al., Defendants.

661 F.Supp.2d 1148

Gregory Lynn NORWOOD, Plaintiff, v. Jeanne WOODFORD, et al., Defendants.

Civil No. 07cv0057 WQH (JMA).

United States District Court, S.D. California.

October 7, 2009.

COPYRIGHT MATERIAL OMITTED

Gregory Lynn Norwood, Corcoran, CA, pro se.

Attorney General, State of California Office of the Attorney General, Sylvie Plamondon Snyder, Attorney Generals Office, San Diego, CA, for Defendants.

ORDER GRANTING DEFENDANTS BOURLAND, GIURBINO, JANDA AND DOVEY'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56(c)

[Doc. No. 106]

WILLIAM Q. HAYES, District Judge.

I. STATEMENT OF THE CASE

Gregory Norwood ("Plaintiff"), a state prisoner currently incarcerated at the California State Prison located in Corcoran, California, is proceeding pro se and in forma pauperis with a First Amended Complaint ("FAC") filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983.

Currently pending before the Court is Defendant Bourland, Dovey, Giurbino and Janda's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 106].

II. PROCEDURAL BACKGROUND

Defendants Bourland, Dovey, Giurbino and Janda¹ move for summary judgment on the grounds that: (1) no genuine issues of material facts exist to show that they violated Plaintiffs Eighth Amendment rights; and (2) they are entitled to qualified immunity. On July 14, 2009, the Court advised Plaintiff of his rights and obligations to oppose Defendants' Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en banc).² Plaintiff filed his Opposition on July 24, 2009 [Doc. No. 113]. The Court also granted Defendants' request to file a supplement to their Motion in light of the Ninth Circuit's recently published opinion in Norwood v. Vance, 572 F.3d 626 (9th Cir.2009). See July 14, 2009 Order at 1. Because Defendants were permitted to supplement their Motion, the Court permitted Plaintiff to file a Supplemental Opposition [Doc. No. 117]. Defendants filed their Reply on August 13, 2009 [Doc. No. 113].

In addition, Plaintiffs First Amended Complaint is verified under penalty of perjury. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir.1995) (holding that a complaint or motion duly verified under penalty of perjury pursuant to 28 U.S.C. § 1746 may be used as an opposing affidavit under FED.R.CIV.P. 56.).

Having now exercised its discretion to consider the matter as submitted on the papers without oral argument pursuant to S.D. CAL. CIVLR 7.1.d.1, the Court hereby GRANTS Defendants Bourland, Giurbino, Janda and Dovey's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56(c) for the reasons set forth in detail below.

III. PLAINTIFF'S FACTUAL ALLEGATIONS

On August 18, 2005, Calipatria State Prison ("CAL") was placed on lockdown following an alleged assault involving Hispanic inmates and staff. (See FAC at 22.) On November 7, 2005, Plaintiff was transferred from California State Prison, Sacramento to CAL. (Id.) Upon Plaintiffs arrival, CAL remained on lockdown stemming from the August 18, 2005 incident. (Id.) Plaintiff alleges that as a result of the lockdown, he was confined to his cell for twenty-four hours a day, seven days a week, with the exception of brief shower periods. (Id. at 3.) Plaintiff alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated when Defendants Woodford, Janda, Bourland and Giurbino deprived him of outdoor exercise from November 7, 2005 to December 16, 2005, a period of 39 days. (Id.) The deprivation of outdoor exercise allegedly caused Plaintiff to suffer headaches, muscle cramps, stress, anxiety and depression. (Id.)³

On November 21, 2005, Plaintiff filed a CDC Form 602 grievance on behalf of a group of inmates to request access to outdoor exercise. (Id. at 21-23.) The grievance was denied by Defendant Janda, CAL Associate Warden during this time period. (Id. at 6.) Plaintiff filed a Second Level Appeal which was also denied by Defendant Bourland, CAL Chief Deputy Warden. (Id. at 24-25.) Plaintiff then appealed to the Director's Level which was also denied. (Id. at 26.) The denials indicate that no recreational activities were permitted for general population inmates due to the State of Emergency instituted on August 18, 2005. (Id. at 24, 26). The denials also indicate that the modified program and lockdown were initiated for reasons of security and safety, the continued suspension of yard privileges was necessary, and the decision regarding the reinstatement of yard privileges was being reviewed on a daily basis. (Id. at 24-26.)

IV. DEFENDANTS' FACTUAL ALLEGATIONS

On August 18, 2005, several Hispanic inmates at CAL were involved in "multiple assaults or attempted murders of correctional staff which resulted in a lockdown." (Giurbino Decl. ¶ 2.) During the riot, several correctional officers were injured and staff used deadly force which resulted in an inmate death. (Builteman Decl. ¶ 4(a), Ex. A, Crime/Incident Report dated September 8, 2005.) Plaintiff was transferred to CAL on November 8, 2005 and thus, had no involvement in the prison riot that occurred on August 18, 2005. (Id. at ¶ 6.)

On August 19, 2005, Warden Giurbino requested that a State of Emergency be declared which was granted. (See Giurbino Decl. at ¶ 7.) As a result of the State of Emergency, a "lockdown" went into effect at CAL which included no outdoor exercise for inmates on Facilities A, B, and C. (Id.) Giurbino was responsible for "making decisions regarding programming at the prison." (Id. at ¶ 5.) His subordinates, Bourland and Janda, "did not have authority to deviate from the program status report and/or allow outdoor exercise for general population inmates, such as [Plaintiff], without [Giurbino's] authorization." (Id.)

In determining that a lockdown was needed, Giurbino considered "not only the August 18, 2005 attempted murders of staff, but also the degree of organization that went into the widespread assaults, the violence at Calipatria State Prison which had been ongoing and escalating over the past two years seemingly unabated by previous efforts." (Id. at ¶ 9.) In addition, Giurbino made such decisions to "bring about both immediate and long-lasting safety to prison inmates and staff." (Id.)

On September 16, 2005, Giurbino received permission to "conclude the declared State-of-Emergency" and Facilities A, B, C and D "would transition to modified program." (Id. at ¶ 13.) The modified program was reviewed on a weekly basis by Giurbino following evaluation of "intelligence gathered as a result of searches and inmate interviews, and other investigative activities." (Id. at ¶ 14.) As inmates were interviewed following the August 18th riot, all inmates in Facility A, B, C and D were not permitted to have outdoor exercise as Giurbino "believed it would have been unsafe for staff to be exposed to unrestrained general population inmates until those inmates who were planning future assaults could be identified and removed from the general population." (Id. at ¶ 19.)

On November 8, 2005, Giurbino began lifting some restrictions for inmates that had passed a "risk assessment," including "easing restrictions on canteen, vendor packages and allowing visitation with limits." (Id. at ¶ 24.) In addition, inmates began to be allowed to attend medical appointments, were given access to the law library and "religious volunteers were allowed to walk the tiers." (Id.) On October 26, 2005, Giurbino was informed by intelligence from staff that "staff might be assaulted or killed once the institution resumed normal programming" and on November 1, 2005, a weapon was found in an inmate's cell. (Id. at ¶ 27.) On November 17, 2005, an Investigative Lieutenant informed Giurbino that "he had received information that safety and security might be affected by the African-American population." (Id.) Another battery on a peace officer occurred on December 8, 2005 and one day later another inmate manufactured weapon had been discovered. (Id. at ¶ 28.)

Permitting outdoor exercise to general population inmates during the lockdown period was not an option because of the large increase of inmates in Facilities A, B and C, an insufficient number of restraints, inadequate yard security and lack of "manpower needed for cell-feeding inmates, providing canteen items to cells, and escorting inmates in restraints to showers, medical appointments, dental appointments, mental health appointments, law library, visitation, and any other movement outside the." (Id. at ¶ 31.) In addition, there were "ongoing projects to improve the yards" for "at least a couple of months after the incident." (Id.) Finally, Giurbino declares "[a]llowing inmate Norwood, or a select group of general population inmates outdoor exercise was not an option because approximately 50 new inmates were admitted every week to the institution beginning August 19, 2005 making this process logistically impossible." (Id. at ¶ 33.) To permit "special treatment" for a select group of inmates would have the potential to place pressure on those inmates to engage in violence. (Id.)

V. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is properly granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). Entry of summary judgment is appropriate "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court shall consider all admissible affidavits and supplemental documents submitted on a motion for summary judgment. See Connick v. Teachers Ins. & Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir.1986).

The moving party has the initial burden of demonstrating that summary judgment is...