(PC) Douglas v. Shirley

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ROGER DOUGLAS, No. 1:23-cv-00653-KES-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS’ 12 v. MOTION FOR SUMMARY JUDGMENT BE 13 HEATHER SHIRLEY, et al., GRANTED 14 Defendants. (ECF No. 35) 15 OBJECTIONS, IF ANY, DUE WITHIN THIRTY (30) DAYS 16 17 I. INTRODUCTION 18 Plaintiff Roger Douglas is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s Eighth 20 Amendment conditions of confinements claims against Defendants Shirley, Cronjager, and 21 DeGough, stemming from Plaintiff’s allegations that the water at Wasco State Prison (WSP) is 22 dangerously contaminated. 23 On October 18, 2024, Defendants filed a motion for summary judgment, arguing that the 24 undisputed facts showed that the water at WSP is not dangerously contaminated and that Plaintiff’s alleged allegations of harm from drinking the water are incorrect. (ECF No. 35). As 25 discussed further below, despite two extensions that culminated in a January 21, 2025 deadline 26 for Plaintiff to oppose Defendants’ motion, Plaintiff has failed to do so. 27 28 1 Upon review, the Court concludes that Defendants have presented sufficient evidence 2 showing that there are no genuine issues of material fact and they are entitled to judgment as a 3 matter of law. Accordingly, the Court will recommend that Defendants’ motion for summary 4 judgment be granted. II. BACKGROUND 5 A. Plaintiff’s Complaint 6 Plaintiff filed his complaint on April 28, 2023. (ECF No. 1). He alleges as follows. 7 Defendant Scott DeGough, the acting Water Contractor, relayed false information to WSP 8 staff. He hid the danger of the contaminated carcinogenic water filled with 1, 2, 3, 9 trichloropropane (TCP). Defendant DeGough failed to monitor the true risks of the dangerous 10 toxin and failed to tell his superiors the truth of the risk of stomach ailments and the risk of 11 cancer. 12 Defendant J. Cronjager, the Head of Health and Safety, has a sworn duty to always second 13 guess, investigate, and go above and beyond to make sure that the water is not toxic and infested 14 with chemicals that kill and cause cancer. 15 Defendant H. Shirley, the Warden of WSP, is the overseer of the prison’s wellbeing. 16 Defendant Shirley did not implement a productive plan to remedy the bad water situation. 17 Defendant Shirley outlawed bottled water for sale and as an alternative to drinking toxic water. 18 Plaintiff is forced to drink toxic water. Shafter, Wasco City, and WSP drink water from 19 Well #1 and Well #2. Defendant Shirley and Defendant Cronjager work and possibly live in Kern 20 County. Additionally, Plaintiff knows that Defendants knew about, and continue to know about, 21 the toxic water at WSP because of constant news stories, magazine articles, and newspapers 22 reporting on the failed water in Kern County. The City of Shafter was told not to drink any of the 23 water, and prison staff knows that WSP has been failing a federal standard for TCP for years now. 24 WSP set a three-year date from December of 2017 to fix the problem. However, five plus 25 years later, the problem still exists and is getting worse. Because of the toxic water, Plaintiff 26 suffers from chronic kidney damage, body rashes, eye irritation, and liver pain. 27 On July 7, 2023, the Court screened the complaint and “found that all of Plaintiff’s claims 28 1 should proceed past screening.” (ECF No. 9, p. 1). Specifically, it allowed “Plaintiff’s Eighth 2 Amendment conditions of confinement claims against [D]efendants Shirley, Cronjager, and 3 Degough [to] proceed past screening.” (Id. a 7). 4 B. Defendants’ Motion and Plaintiff’s Lack of Opposition 5 On October 18, 2024, Defendants filed their motion for summary judgment. (ECF No. 6 35). After Plaintiff failed to timely respond, the Court sua sponte granted Plaintiff an extension to 7 December 18, 2024, to do so. (ECF No. 37). The Court’s order warned Plaintiff that failure to timely respond “may result in a dismissal without the further opportunity to respond to the 8 motion.” Id. Thereafter, at Plaintiff’s request, the Court granted a second extension, this time to 9 January 21, 2025, to respond to Defendants’ motion for summary judgment. (ECF Nos. 39, 40). 10 However, despite the extended time to respond, Plaintiff has failed to file an opposition, 11 file another extension request, or file anything since the Court’s last order. 12 III. SUMMARY OF DEFENDANTS’ MOTION 13 Defendants’ motion for summary judgment primarily argues that the water at WSP is not 14 dangerously contaminated and that Plaintiff never suffered the medical conditions he alleges from 15 drinking the water.1 (ECF No. 35). In support of this argument, Defendants attach evidence to 16 their motion for summary judgment, which mainly consists of Defendants’ declarations, the 17 declaration of their expert witness (Dr. Timur Durrani), water test results, and parts of Plaintiff’s 18 deposition transcript. And as required by Local Rule 260(a), Defendants provided a statement of 19 undisputed facts, which statement cites the relevant evidence relied upon. (ECF No. 35-2). 20 Mostly, Defendants rely on the expert opinion of Dr. Durrani, who opines that water test 21 results from the roughly three-year period that Plaintiff was confined at WSP reveal that the water 22 was never dangerous to drink. Among other things, Dr. Durrani concludes that there is no 23 scientific literature to support Plaintiff’s claim that his alleged medical conditions resulted from 24 the amounts of water that he ingested. Further, the amounts of water that Plaintiff drank during 25 his confinement at WSP would not be expected to have even a minimal risk of harmful effects during his lifetime. 26 27 1 Defendants also raise additional arguments, including that Defendants are entitled to qualified immunity. 28 The Court need not address these other arguments as the arguments discussed below dispose of this case. 1 Additionally, Defendants assert that Plaintiff either (1) had been diagnosed with certain 2 medical conditions before his arrival at WSP; or (2) there is no record of him having certain 3 conditions at all. Further, citing Plaintiff’s deposition testimony, they note that no doctor has ever 4 diagnosed any of his alleged conditions as being caused by TCP, and no toxicologist has informed him that WSP’s water was dangerous. (ECF No. 35-7, p. 15). 5 IV. LEGAL STANDARDS 6 A. Motion for Summary Judgment 7 Summary judgment in favor of a party is appropriate when there “is no genuine dispute as 8 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 9 56(a); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a genuine 10 dispute about material facts, summary judgment will not be granted.”). A party asserting that a 11 fact cannot be disputed must support the assertion by 12 citing to particular parts of materials in the record, including depositions, 13 documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, 14 interrogatory answers, or other materials, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party 15 cannot produce admissible evidence to support the fact. 16 Fed. R. Civ. P. 56(c)(1). 17 A party moving for summary judgment “bears the initial responsibility of informing the 18 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 19 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 20 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 21 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “Where the non- moving party bears the burden of proof at trial, the moving party need only prove that there is an 22 absence of evidence to support the non-moving party’s case.” In re Oracle Corp. Sec. Litig., 627 23 F.3d 376, 387 (9th Cir. 2010). If the moving party does so, “the burden then shifts to the non- 24 moving party to designate specific facts demonstrating the existence of genuine issues for trial,” 25 which is not a light burden, the party “must come forth with evidence from which a jury could 26 reasonably render a verdict in the non-moving party’s favor.” Id.; see Anderson v. Liberty Lobby, 27 Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in support of the 28 1 plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably 2 find for the plaintiff.”). “[A] complete failure of proof concerning an essential element of the 3 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322. 4 Additionally, “[a] summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 5 In reviewing the evidence at the summary judgment stage, the Court “must draw all 6 reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros 7 de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only 8 draw inferences, however, where there is “evidence in the record . . . from which a reasonable 9 inference . . . may be drawn”; the Court need not entertain inferences that are unsupported by fact. 10 Celotex, 477 U.S. at 330 n. 2 (citation omitted). In reviewing a summary judgment motion, the 11 Court may consider other materials in the record not cited to by the parties but is not required to 12 do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 13 1031 (9th Cir. 2001). 14 B. Conditions of Confinement 15 “It is undisputed that the treatment a prisoner receives in prison and the conditions under 16 which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” Helling v. 17 McKinney, 509 U.S. 25, 31 (1993). Conditions of confinement may, consistent with the 18 Constitution, be restrictive and harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); 19 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 20 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison 21 officials must, however, provide prisoners with “food, clothing, shelter, sanitation, medical care, 22 and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in 23 part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. 24 Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981). 25 Two requirements must be met to show an Eighth Amendment violation. Farmer v. 26 Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation alleged must be, objectively, 27 sufficiently serious.” Id. (citation and internal quotation marks omitted). And where this is an 28 1 allegation concerning “a failure to prevent harm, the inmate must show that he [was] incarcerated 2 under conditions posing a substantial risk of serious harm.” Id. 3 Second, “a prison official must have a sufficiently culpable state of mind,” which for 4 conditions of confinement claims “is one of deliberate indifference.” Id. (citations and internal quotation marks omitted). Prison officials act with deliberate indifference when they know of and 5 disregard an excessive risk to inmate health or safety. Id. at 837. The circumstances, nature, and 6 duration of the deprivations are critical in determining whether the conditions complained of are 7 grave enough to form the basis of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. 8 Mere negligence on the part of a prison official is not sufficient to establish liability, but rather, 9 the official’s conduct must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 10 1124, 1128 (9th Cir. 1998). 11 V. ANALYSIS 12 In light of the above legal standards, the Court now considers Defendants’ motion for 13 summary judgment, which argues that the water at WSP is not dangerously contaminated and that 14 Plaintiff did not suffer any harm from drinking it.2 15 Defendants provide the following undisputed facts in support of their motion for summary 16 judgment, which facts Plaintiff has failed to contest. (ECF No. 35-2). 17 Plaintiff was incarcerated at WSP from July 14, 2021 to May 7, 2024. At times relevant to 18 the allegations in the complaint, Defendant Shirley was the WSP Acting Warden, Defendant 19 Cronjager was the WSP Associate Warden, and Defendant DeGough was the WSP Correctional 20 Plant Manager that oversees the maintenance of physical plant operations and construction 21 projects. 22 TCP “is a man made chlorinated hydrocarbon that is typically used as an industrial solvent 23 and as a cleaning and degreasing agent.” (Id. at 2). On January 1, 2018, a California regulation 24 2 Under Local Rule 230(c), the Court construes Plaintiff’s “failure to file a timely opposition . . . as a 25 nonopposition to the motion.” However, the Court will not recommend granting Defendants’ motion for summary judgment solely because Plaintiff failed to file a response. Rather, consistent with the summary 26 judgment standards discussed below, the Court will consider whether Defendants have sufficiently demonstrated that summary judgment is warranted. Cf. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th 27 Cir. 1993) (“A local rule that requires the entry of summary judgment simply because no papers opposing the motion are filed or served, and without regard to whether genuine issues of material fact exist, would 28 be inconsistent with Rule 56, hence impermissible under Rule 83.”). 1 went into effect that established a .005 ug/L maximum contaminant level (MCL) for TCP in 2 California’s drinking water. 3 During the time that Plaintiff was incarcerated at WSP, the water was tested and notices 4 from the independent laboratory’s findings were posted quarterly at the institution. The tests 5 revealed TCP level results that ranged from 0.000 ug/L to 0.024 ug/L. The notices that were 6 posted “did not state that [WSP’s] specific TCP levels were high enough to cause illness.” (Id. at 7 4). Rather, they indicated that ‘“some people who drink water containing 1, 2, 3-trichloropropane 8 in excess of the MCL over many years may have an increased risk of getting cancer,’ and 9 encouraged those concerned about other health issues to consult a doctor.” (Id.). 10 Defendants’ expert, medical toxicologist Dr. Durrani, reviewed relevant literature, the 11 water records for WSP, Plaintiff’s deposition, and Plaintiff’s medical records. 12 He noted that there are no reports of acute or chronic medical conditions in scientific literature for a three-year exposure to the concentration of TCP reported 13 in the water at Wasco State Prison. Thus, Dr. Durrani opined that although Wasco State Prison’s water contained TCP concentrations above the MCL, acute and 14 chronic medical conditions are not expected to occur from exposure to TCP in Wasco State Prison’s water from July 14, 2021, to May 7, 2024. 15 (Id. at 5). In short, he concluded that WSP’s “water was safe to drink even when it was out of 16 compliance with the new MCL.” (Id.). 17 Further, Plaintiff’s claimed injuries, “kidney damage, skin rashes, eye irritation, and liver 18 pain were not caused, and could not have been caused, by TCP exposure at Wasco State Prison 19 because he was diagnosed with these conditions before he arrived at Wasco State Prison or never 20 diagnosed with these conditions.” (Id. at 5-6). 21 More specifically, Plaintiff was diagnosed with renal insufficiency in March 2017 and 22 stage 2 chronic kidney disease in June 2021, before his arrival to WSP in July 2021. And he was 23 diagnosed with skin-related problems in March 2017, September 2018, and again in October 24 2021. “Additionally, there is no record of eye irritation, conjunctivitis, or liver pain during the 25 time of suspected exposure.” (Id. at 6). 26 Even further, Dr. Durrani calculated Douglas’s daily inorganic ingestion of TCP as 27 0.000001032842582 mg/kg/day, based on Douglas’s self-reported ingestion of 4 quarts of water per day and body weight of 88.3 kg. 28 1 TCP’s reference dose, meaning the estimated dose of daily oral exposure for a chronic duration that is likely to have no appreciable risk of deleterious effects, is 2 0.004 mg/kg/day. 3 Because Douglas’s daily, chronic exposure dose of 0.000001032842582 mg/kg/day is significantly lower than the 0.004 mg/kg/day reference dose, 4 Douglas’s exposure to TCP between July 14, 2021, and May 7, 2024, would not be expected to have even a minimal risk of harmful effects during his lifetime. 5 (Id. at 7). 6 Dr. Durrani opines that Plaintiff “did not become ill from ingesting or being exposed to 7 the TCP concentrations in Wasco State Prison’s water, that his future health will not be affected, 8 and that he does not have any risk of developing the diseases associated with TCP.” (Id. at 12). 9 According to Plaintiff’s deposition testimony, no doctor has ever diagnosed any of his 10 alleged conditions as being caused by TCP, and no toxicologist has informed him that WSP’s 11 water was dangerous. (Id.; ECF No. 35-7, p. 15). 12 Upon review of this undisputed evidence, the Court concludes that Defendants have met 13 their initial burden of identifying evidence that demonstrates the absence of a genuine issue of 14 material fact. As Defendants argue, the evidence shows that, while the TCP levels at times 15 exceeded the MCL, the water was not dangerously contaminated. Most, notably Defendants have 16 presented the expert opinion of Dr. Durrani, who opines that there is no literature to support 17 medical conditions arising from Plaintiff’s level of exposure to TCP during his time there. 18 Additionally, Plaintiff’s alleged injuries were diagnosed before his arrival as WSP or were not 19 recorded at all. Further, based on calculations of Plaintiff’s consumption of water, Dr. Durrani 20 opines that Plaintiff would not be expected to have even a minimal risk of harmful effects during 21 his lifetime. 22 In light of the extensive record establishing that Plaintiff was not incarcerated under 23 conditions posing a substantial risk of serious harm, nor harmed at all, the burden shifts to 24 Plaintiff to demonstrate a genuine issue of material fact for trial. However, Plaintiff has offered 25 no evidence in opposition to Defendants’ evidence, as he did not respond to their motion for 26 summary judgment despite two extensions of time to do so. 27 Accordingly, because Plaintiff has failed to come forth with evidence from which a jury could reasonably render a verdict in his favor, the Court will recommend that Defendants’ motion 28 1 | for summary judgment be granted and this case be dismissed. 2 VI. CONCLUSION AND RECOMMENDATIONS 3 For the above reasons, there is not a genuine dispute of material fact and Defendants are 4 || entitled to judgment as a matter of law. 5 Accordingly, IT IS RECOMMENDED that Defendants’ motion for summary judgment 6 (ECF No. 35) be granted, that judgment be entered in Defendants’ favor, and that the Clerk of 7 Court be directed to close this case. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these findings and recommendations, any party may file written 8 objections with the court. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any objections shall be limited to no more than fifteen (15) 2 pages, including exhibits. Any reply to the objections shall be served and filed within fourteen 13 (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 IS | 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 | IT IS SO ORDERED. Dated: _ February 6, 2025 [Jee Py — 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 oO