United States District Court, D. Oregon
OPINION AND ORDER
Jelderks U.S. Magistrate Judge.
Plaintiff Fish brings this action pursuant to 42 U.S.C.
§ 1983 against Defendants, who are employees of the
Oregon Department of Corrections (“ODOC”).
Plaintiff alleges that Defendants violated his Eighth
Amendment rights by purchasing, storing, preparing and
serving food that was out of date, moldy, decayed and marked
“not for human consumption.” Plaintiff also
alleges that he was forced to eat off of and with implements
that contained “bacteria, decaying food, and other
detritus.” (Compl. p. 5).
filed a Motion for Partial Summary Judgment on November 22,
2017. (Dkt. # 15). A stay of the case was then entered
pending resolution of a motion for class certification. (Dkt.
#17). The stay was lifted on November 5, 2018 and Defendants
filed a Motion for Summary Judgment on March 28, 2019. (Dkt.
#s 28, 31). Neither Defendants nor Plaintiff filed Responses.
reasons set forth below, Plaintiff's motion for partial
summary judgment is denied and Defendants' motion for
summary judgment is granted.
was an inmate in the custody of ODOC from October 15, 2012
until February 11, 2016. He was again in ODOC's custody
from June 20, 2017 until September 20, 2017. During the
periods relevant to his Complaint, Plaintiff was housed at
the Columbia River Correctional Institution
(“CRCI”) and the Deer Ridge Correctional
Institution (“DRCI”). During the relevant time
period, Defendant Peters was the ODOC Director, Defendant
Angelozzi was the CRCI Superintendent, and Defendant Causey
was the DRCI Superintendent.
noted above, Plaintiff alleges that Defendants knowingly
purchased, stored, prepared and served food that was out of
date, moldy, decayed and marked “not for human
consumption.” Plaintiff also alleges that he was forced
to eat off of and with implements that contained
“bacteria, decaying food, and other detritus.”
(Compl. p. 5). Plaintiff also alleges unsanitary conditions
in the Institutions' food service facilities.
support of his motion for partial summary judgment, Plaintiff
has submitted a handwritten but unsigned
“Declaration.” He asserts that in February 2015,
while housed at CRCI he “informed food coordinator Mr.
Hernandez about the food being rotten and moldy. Also I
informed him about the sanitation of the trays and
cups.” (Dkt. # 15, p. 2). Plaintiff also asserts that
he filed a grievance regarding these issues in March 2015.
(Id.). Plaintiff then alleges that “[a]fter
the grievance process and appeal I filed a tort claim in May
of 2015. After the tort claim the investigation came back
with the claim of the food & sanitation was fine.”
(Id. pp. 2-3).
concede that Plaintiff filed a single grievance regarding one
of the issues in his Complaint but assert that Plaintiff did
not grieve the food quality issue and failed to file an
appeal to the response given to the grievance he did file.
The record evidence supports this. Plaintiff's grievance
record reflects one grievance regarding the sanitation of
plates and silverware at CRCI. (Geils Decl. Ex. 4). The copy
of Plaintiff's grievance, which was received on April 28,
2015, discusses the “unsanitary conditions with
CRCI's Food Services Dept.” and specifically, dirty
and greasy food trays, utensils, and cups. (Geils Decl. Ex.
5). A Grievance Response from F. Hernandez dated May 15,
2015, addresses theses concerns. (Id.). There is no
record that Plaintiff appealed this Response.
Motions for Summary Judgment
Rule of Civil Procedure 56(c) authorizes summary judgment if
no genuine issue exists regarding any material fact and the
moving party is entitled to judgment as a matter of law. The
moving party must show the absence of an issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325,
106 S.Ct. 2548 (1986). The moving party may discharge this
burden by showing that there is an absence of evidence to
support the nonmoving party's case. Id. When the
moving party shows the absence of an issue of material fact,
the nonmoving party must go beyond the pleadings and show
that there is a genuine issue for trial. Id.
substantive law governing a claim or defense determines
whether a fact is material. T.W. Elec. Serv., Inc. v.
Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630
(9th Cir.1987). Reasonable doubts concerning the existence of
a factual issue should be resolved against the moving party.
Id. at 630-31. The evidence of the nonmoving party
is to be believed, and all justifiable inferences are to be
drawn in the nonmoving party's favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505
(1986). However, the “mere existence of a scintilla of
evidence in support of the [nonmovant's] position [is]
insufficient.” Liberty Lobby, Inc., 477 U.S.
at 252. No. genuine issue for trial exists where the record
as a whole could not lead the trier of fact to find for the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986).
parties file cross-motions for summary judgment, the court
“evaluate[s] each motion separately, giving the
non-moving party in each instance the benefit of all
reasonable inferences.” A.C.L.U. of Nev. v. City of
Las Vegas,466 F.3d 784, 790-91 (9th Cir.2006) (quoting