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Lyons v. Peters

United States District Court, D. Oregon

July 22, 2019

DEREK LYONS, BRIDGETTE LEWIS, TIFFANIE LEWIS, BRYAN SCHULTZ, ANTHONY ALDEGUER, JOSHUA SMITH, JESSICA DOVE, and BRANDON MCKEY, Plaintiffs,
v.
COLETTE PETERS, MIKE GOWER, OFFICER HELTON, DENNIS TIMMINS, RICK ANGELOZZI, BRIDGETTE AMSBERRY, BRANDON KELLY, BRIAN BELLEQUE, ROB PERSSON, ARLENE WHITNEY, JERI TAYLOR, STEVE BROWN, TIM CAUSEY, CHRISTINE POPOFF, KENT FANGER, and JOHN DOES 1-10, JANE DOES 1-10, Defendants.

          Leonard R. Berman, Law Office of Leonard R. Berman, Of Attorneys for Plaintiffs.

          Ellen F. Rosenblum, Attorney General, Andrew Hallman and Jessica Spooner, Assistant Attorneys General, Oregon Department of Justice, Of Attorneys for Defendants.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         Plaintiffs are current or former inmates of the Oregon Department of Corrections (“ODOC”) who allege that Defendants violated their Eighth Amendment rights when Defendants served inadequate food at state prison facilities. Defendants are facility superintendents, food procurement and contract specialists, and the food services administrator for ODOC. Defendants move for summary judgment on all of Plaintiffs' claims. For the reasons that follow, Defendants' Motion for Summary Judgment (ECF 95) is granted.

         STANDARDS

         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         BACKGROUND

         Plaintiffs are current or former inmates at ODOC. They allege that ODOC violated their constitutional rights by feeding them food that was marked “not for human consumption, ” was not nutritionally adequate, and was generally substandard, spoiled, unhealthy, moldy, expired, and stored for excessive periods of time.

         Plaintiff Bryan Schultz alleges that he once felt ill after consuming a “pale, ” “slimy” fish that was marked “not for human consumption.” Def. Ex. 6.[1]

         Plaintiff Bridgette Lewis alleges that she also felt sick after eating fish labeled “not for human consumption.” Def. Ex. 9. Plaintiff Bridgette Lewis claims that she complained to multiple ODOC employees about the quality of the food, which she claims made her sick “a few times.” Id.

         Plaintiff Tiffanie Lewis testified that she observed, but never consumed, fish marked “not for human consumption, ” but she never got sick from the food served in ODOC facilities, and testified that she found the food, including meat alternative trays, “amazing.” Def. Ex. 11.

         Plaintiff Brandon McKey testified that he became ill five times during his 50 months of incarceration, including once on June 14, 2017 when Plaintiff McKey believes he suffered from food poisoning. Def. Ex. 15. Plaintiff McKey also testified that on at least ten occasions, he avoided eating food that he perceived to be of poor quality or spoiled and that on multiple occasions he complained about the food. Id. Plaintiff McKey testified that he maintained his weight and his good health while incarcerated. Id.

         Plaintiff Derrick Lyons testified that he witnessed or consumed spoiled milk on several occasions as well as lettuce that he described as “slimy.” Def. Ex. 17. He testified that he occasionally got an upset stomach after eating inadequate food. Id. He also testified that he observed a box labeled “not for human consumption.” Id.

         Plaintiff Anthony Aldeguer testified that he consumed “green-ish” eggs and undercooked chicken while in ODOC custody. Def. Ex. 2. He also testified that he consumed chicken patties that made him sick on one occasion, regularly consumed spoiled milk, and consumed spoiled vegetables once per month, bad hamburger once every two months, and fish labeled “not for human consumption” once every six weeks. Id. Plaintiff Aldeguer's weight did not change during his period of incarceration, but he experienced diarrhea, stomach aches, and dry heaves. Id.

         Plaintiff Joshua Smith testified that he was served spoiled milk, discolored roast beef, bland and undercooked pork, and fish that tasted “horrible.” Def. Ex. 4. Plaintiff Smith testified that he believed the food at ODOC made him constipated. Id.

         Plaintiff Jessica Dove testified that she observed flies in the soup, undercooked hamburgers, expired potatoes, slimy and brown lettuce, and pink fish patties labeled “not for human consumption.” Def. Ex. 13. She testified that she suffered from stomach aches, diarrhea, and vomiting caused by the food in ODOC. Id.

         DISCUSSION

         A. Evidentiary Issues

         As a preliminary matter, Defendant raises a number of evidentiary objections to Plaintiffs' exhibits attached to Plaintiffs' response in opposition to Defendants' motion for summary judgment. Defendants object to Exhibit 1, also labeled Exhibit A, which appears to be a photograph of a cardboard box labeled “Frozen Herring Whole Round” and “Not for Human Consumption.” Berman Decl. Ex. A. Plaintiff explains that the photograph was taken by an unnamed inmate's family member who works in the fishing industry. The family of the unnamed inmate sent the photograph to Plaintiffs' counsel, who believed the box looked similar to boxes of frozen fish that Plaintiffs described seeing in ODOC facilities. Defendant objects that this photograph lacks foundation and has not been authenticated under Federal Rules of Evidence 401 and 901(a). Rule 901 requires that “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” United States v. Gadson, 763 F.3d 1189, 1203 (9th Cir. 2014). This may be done through testimony of a knowledgeable witness, such as the testimony of the person who took the photograph who can testify that the photograph accurately depicts what the witness saw. See United States v. Brooks, 772 F.3d ...


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