United States District Court, D. Oregon
DEREK LYONS, BRIDGETTE LEWIS, TIFFANIE LEWIS, BRYAN SCHULTZ, ANTHONY ALDEGUER, JOSHUA SMITH, JESSICA DOVE, and BRANDON MCKEY, Plaintiffs,
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.
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.
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
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).
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.
Bryan Schultz alleges that he once felt ill after consuming a
“pale, ” “slimy” fish that was marked
“not for human consumption.” Def. Ex.
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.”
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.
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.
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
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.
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
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.
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 ...