IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CHRIS SHABAZZ-WIMBERLY,

Plaintiff,

v.

RUSS NICHOLS, Physical Plant

Manager at TRCI; CHARLES NAY,

Physical Plant Employee at

TRCI; A. SMITH, Physical

Plant Employee at TRCI; SUE

WASHBURN, Food Service

Manager at TRCI; GARY HALL,

(Former) Assistant Food

Service Manager at TRCI;

BRIAN MISNER, (Former) Food

Service Coordinator at TRCI;

BRIDGETT WHELAN, Health

Service Manager at TRCI;

CURTIS SYLE, (former)

Correctional Officer at TRCI;

and DAY, Corporal at TRCI, 

Defendants.

2:14-CV-01237-BR

 

OPINION AND ORDER 

CHRIS SHABAZZ-WIMBERLY

#10571327

Deer Ridge Correctional Institution

3920 East Ashwood Road

Madras, OR 97741 

Plaintiff, Pro Se

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Case 2:14-cv-01237-BR Document 156 Filed 08/09/16 Page 1 of 23
ELLEN ROSENBLUM

Attorney General

MICHAEL R. WASHINGTON 

Assistant Attorney General

Oregon Department of Justice

1162 Court Street, N.E.

Salem, OR 97301

(503) 947-4700 

Attorneys for Defendants

BROWN, Judge.

This matter comes before the Court on Plaintiff’s Motion

(#83) for Partial Summary Judgment and Defendants' Cross-Motion

(#130) for Summary Judgment. For the reasons that follow, the

Court DENIES Plaintiff’s Motion, GRANTS Defendants’ Cross-Motion,

and DISMISSES Plaintiff’s remaining claim with prejudice.

BACKGROUND

The following facts are taken from Plaintiff’s Amended

Complaint and the parties’ summary-judgment materials and are

undisputed unless otherwise noted.

Plaintiff Chris Shabazz-Wemberly was an inmate at Two Rivers

Correctional Institution (TRCI) from May 27, 2010, through

October 31, 2014, at which time he was transferred to Deer Ridge

Correctional Institution where he remains incarcerated. 

During the relevant period Plaintiff worked in the tortilla

room at TRCI and, among other things, used the tortilla machine

to make tortillas. According to Plaintiff, the tortilla machine

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is shaped like a “giant box” with three windowpanes. On the

inside of the machine are four rotating plates that are heated by

a natural-gas line and pilot. The machine operates at about 400

degrees. Plaintiff alleges “tortillas routinely fall off the

plates and require the operator to open the panes and retrieve

the tortillas with a skinny stick. The windowpanes all have

factory installed electrical sensors on them that automatically

extinguish the pilot and shuts off the gas valve whenever the

windowpanes are opened.”1 Pl.’s Resp. to Defs.’ Cross-Motion for

Summary Judgment at 3. 

Plaintiff alleges in his Amended Complaint that in “early

August, 2012" Defendant Smith, “while working on the tortilla

machine’s sensors, requested the assistance from [TRCI’s] on-site

electrician, Defendant [Charles] Nay, as the machine kept turning

itself on and off.” Am. Compl. at ¶ 22. The TRCI Job Schedule

Report notes “Repair Tortilla machine motor wires” was completed

on August 10, 2012, but the Report does not state who completed

the repair. Decl. of Pl., Ex. 1 at 2. Plaintiff alleges Nay

determined the sensor in the back of the machine was

malfunctioning, and he “disable[d] the safety mechanism on the

tortilla machine by by-passing the automatic extinguishing

sensors whenever the panes were opened.” Am. Compl. at ¶ 23-24. 

1 Defendants do not dispute this description of the machine

or the safety mechanism or that tortillas routinely fall off and

must be retrieved.

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Plaintiff, however, does not allege he was present in early

August when Nay allegedly circumvented the safety feature on the

tortilla machine. Defendants dispute Nay worked on the tortilla

machine at any point before August 21, 2012, and Nay testifies in

his Declaration that August 21, 2012, was the first time he

worked on the tortilla machine. Defendants also dispute anyone

circumvented the safety switch on the tortilla machine at any

time other than August 21, 2012.

On August 21, 2012, at some point before 8:15 a.m., the

tortilla machine began to malfunction. Plaintiff alleges in his

Amended Complaint that when a tortilla fell off one of the

plates, Plaintiff opened one of the windowpanes on the machine to

retrieve it. At that time “all of a sudden, the pilot turned

itself back on and ignited the leaking gas with plaintiff inside

the machine; causing plaintiff severe burns to his hand and arm.” 

Am. Compl. at ¶ 27.

Plaintiff was taken to health services, and at 8:20 a.m.

Nurse Marie Roberts examined Plaintiff. Plaintiff reported to

Nurse Roberts that when he was attempting to retrieve a tortilla,

the left sleeve of his shirt caught fire and burned his left

wrist. Nurse Roberts noted she did not see any visible blisters

on Plaintiff’s wrist or arm, but Plaintiff did have an alteration

in his skin integrity and light burns. Decl. of Steven Shelton,

Ex. 2 at 5. Nurse Roberts dressed Plaintiff’s left wrist with

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Zeroform gauze and Telfa. Id. Nurse Roberts consulted with

Registered Nurse Practitioner (RNP) Linda Gruenwald, who directed

Plaintiff to keep the dressing clean and dry and ordered

Plaintiff to take ibuprofen for pain, return to daily sick call

for dressing changes, and to stop working for the rest of the

day. Id.

At 10:00 a.m. on August 21, 2012, Defendant Nay reported to

the tortilla room to repair the tortilla machine. The Job

Schedule Report for August 21, 2012, states only that the

tortilla machine was “still not working.” As noted, Nay

testifies in his Declaration that August 21, 2012, was the first

time he worked on the tortilla machine. Nay found “the door

safety cut-off switch on the front panel of the machine was not

working. As a result, inmates were reaching into the machine

from the front panel, across the burners to remove the stuck

tortillas.” Decl. of Charles Nay at ¶ 6. Nay further testifies:

I bypassed the safety cut-off switch on the back

panel of the tortilla machine on August 21, 2012,

at around 10:00 a.m., which allowed the inmates to

access the tortilla machine through the back panel

to clear out clogs and without using the front

panel, which is the panel closest to the burners. 

I had been told that we would need to order the

safety cut-off switch. When I disabled the safety

cut-off switch on the back panel, I told the

inmates that were waiting to use the machine that

I had disabled the safety cut-off switch on the

back panel and would order a new part for the

front panel.

Nay Decl. at ¶ 9. Nay testifies he reported to Defendant Russell

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Nichols, Physical Plant Manager, at some point before August 22,

2012, that Nay had disabled the safety cut-off switch. Nichols

advised Nay that “we cannot disconnect safety cut-off switches

and ordered that the back panel safety cut-off switch be

reconnected.” Nay Decl. at ¶ 10.

On August 22, 2012, Nay found a new safety cut-off switch

for the front panel, replaced the old safety cut-off switch, and

reconnected the back panel safety cut-off switch. Nay Decl. at 

¶ 10, Ex. 2 at 1.

Also on August 22, 2012, Plaintiff reported to Health

Services, and Nurse Cindy Dieter changed his dressing. Nurse

Dieter noted Plaintiff’s skin and wound were “clean/not

progressive.” Shelton Decl., Ex. 2 at 1-2. Nurse Dieter also

noted there was not any sign of moisture, drainage, infection, or

blistering of the affected area.

On August 23, 2012, Plaintiff reported to Health Services. 

Nurse Catherine Thurmond examined Plaintiff and noted Plaintiff

did not have any blisters or “open areas” on his wrist. RNP

Gruenwald also examined Plaintiff and directed Plaintiff to leave

the dressing off his wrist and “leave [his wrist] to air.” 

Shelton Decl., Ex. 2 at 4.

On August 24, 2012, Plaintiff reported to Health Services

and was seen by Nurse Margaret Brown. Nurse Brown noted

Plaintiff did not have any break in his skin, but he had some

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Case 2:14-cv-01237-BR Document 156 Filed 08/09/16 Page 6 of 23
swelling above his wrist. Plaintiff complained of pain at his

wrist from the burn. Nurse Brown prescribed Plaintiff an ice

pack for 24 hours and instructed Plaintiff to apply cold

compresses. Nurse Brown also advised Plaintiff to return to sick

call on Monday, August 27, 2012, if his wrist was not better. 

Plaintiff, however, did not report to sick call again for his

burn.

On August 29, 2012, Defendant Nichols began investigating an

incident report filed by Plaintiff regarding his burn from the

tortilla machine. In his September 19, 2012, Safety Review

Nichols reported:

On 8/21/12 at approximately 8:15am Coordinator

Edison reported to the tortilla room and saw

Inmate Wimberly standing at the hand washing sink

with his arm under running water. Inmate Wimberly

told Coordinator Edison that his shirt had caught

on fire while he was reaching into the Tortilla

machine to get a tortilla unstuck causing a burn

on his arm. Coordinator Edison looked at his arm

and did not see a burn or a burned shirt. She

contacted Health Services to inform them she was

sending Inmate Wimberly to Health Services.

Decl. of Russell Nichols, Ex. 2 at 1. On August 30, 2012,

Nichols interviewed Plaintiff, who described being burned by the

tortilla machine. Nichols asked to see Plaintiff’s burn, and

Plaintiff showed Nichols the back of his left arm just above his

wrist. Nichols reported he “could not see any sign of a burn and

the hair in that area of the arm was not affected.” Nichols

Decl., Ex. 2 at 2. Nichols asked Plaintiff to show him the shirt

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that was burned, but Plaintiff advised Nichols that he had put it

in the laundry and it was not returned to him. Finally, Nichols

asked Plaintiff whether he had been using the protective

equipment of heat-resistant gloves, a protective sleeve, and a

wooden stick when he attempted to remove the “stuck” tortilla.

Plaintiff responded he had used the stick and the protective

sleeve, but he “had the protective sleeve pulled up [beyond his

wrist] because it did not fit him.” Id. Nichols also talked to

Defendant Coordinator Brian Misner, who reported the protective

equipment was stored in the “immediate area [of the tortilla

machine] and readily available for use.” Id. Misner also

reported Plaintiff had been trained properly in the use of the

protective equipment by Inmate Rooney. Nichols went to the

tortilla room and “observed the inmate working the tortilla

machine, when a tortilla got stuck he had the protective glove

and protective sleeve on and used the provided stick to move the

tortilla back onto the cooking plate.” Id. Ultimately Nichols

concluded although staff had bypassed the shut off switch to the

tortilla machine, Plaintiff would not have” suffered an injury if

he had “followed his training, the operational directions, and

used all the provided protective equipment.” Id.

On August 1, 2014, Plaintiff filed pro se a Complaint in

this Court pursuant to 42 U.S.C. § 1983 alleging Defendants

violated his right to be free from deliberate indifference under

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the Eighth Amendment, his right to due process under the

Fourteenth Amendment, and his right to free speech in violation

of the First Amendment.

On December 15, 2014, Plaintiff filed an Amended Complaint

to substitute Defendants and alleging Defendants violated his

right to be free from deliberate indifference under the Eighth

Amendment, his right to due process under the Fourteenth

Amendment, and his right to free speech in violation of the First

Amendment.

On January 6, 2015, Defendants filed a Motion for Summary

Judgment in which they sought to dismiss Plaintiff's claims for

failure to exhaust administrative remedies.

On January 7, 2015, the Court issued a Summary Judgment

Advice Notice to Plaintiff advising him that if he did not submit

admissible evidence in opposition to Defendants’ Motion for

Summary Judgment, summary judgment could be entered against him. 

On July 10, 2015, the Court issued an Opinion and Order in

which it granted in part and denied in part Defendants’ Motion. 

Specifically, the Court concluded Plaintiff failed to exhaust his

administrative remedies as to (1) that portion of his First Claim

in which he alleged Defendants violated his right under the

Eighth Amendment to be free from deliberate indifference when

they failed to post any sign or to hold any training sessions

with inmates advising them of the risk of operating the tortilla

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machine after circumventing the safety switch and refusing to

keep the doors ajar to the room containing the tortilla machine

so that he gas fumes could dissipate; (2) his Second Claim in

which he alleged Defendants violated his right to due process

under the Fourteenth Amendment when Defendant Gary Hall provided

false and misleading statements to Risk Management Inmate Injury

Fund Claims regarding Plaintiff’s August 21, 2012, injury and

when Defendant Bridgett Whelan made false declarations to SAIF

Corporation regarding Plaintiff’s August 21, 2012, injury; and

(3) his Third Claim in which he alleged Defendants violated his

First Amendment rights when they retaliated against him for

submitting various grievances. The Court dismissed those claims

without prejudice and noted this matter would proceed only as to

that portion of Plaintiff’s First Claim in which he alleged

Defendants violated his right under the Eighth Amendment to be

free from deliberate indifference when they circumvented the

safety switch on the tortilla machine that Plaintiff operated.

On July 28, 2015, Plaintiff filed a Motion for Partial

Summary Judgment “on the liability of the plaintiff of his

claim[] against the listed Defendants.”

On January 20, 2016, Defendants filed a Cross-Motion for

Summary Judgment in which they seek summary judgment on

Plaintiff’s remaining claim. 

On January 22, 2016, the Court issued a second Summary

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Judgment Advice Notice to Plaintiff advising him that if he did

not submit admissible evidence in opposition to Defendants’

Cross-Motion for Summary Judgment, summary judgment could be

entered against him.

The Court took the parties’ Motions under advisement on 

July 7, 2016.

STANDARDS

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R.

Civ. P. 56(a). The moving party must show the absence of a

dispute as to a material fact. Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly

supported motion for summary judgment, the nonmoving party must

go beyond the pleadings and show there is a genuine dispute as to

a material fact for trial. Id. "This burden is not a light one

. . . . The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue." In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)

(citation omitted). 

A dispute as to a material fact is genuine "if the evidence

is such that a reasonable jury could return a verdict for the

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nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). The court must draw all

reasonable inferences in favor of the nonmoving party. Sluimer

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary

judgment cannot be granted where contrary inferences may be drawn

from the evidence as to material issues." Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted). A “mere

disagreement or bald assertion” that a genuine dispute as to a

material fact exists “will not preclude the grant of summary

judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)

(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.

1989)). When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive

evidence than otherwise would be necessary." LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted). 

The substantive law governing a claim or a defense

determines whether a fact is material. Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment. Id.

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DISCUSSION

Defendants move for summary judgment on Plaintiff’s

remaining claim on the grounds that (1) Plaintiff has failed to

allege personal involvement by Defendants Nichols, Hall, Misner,

Washburn, Whelan, Syle and Day; (2) Plaintiff’s claim fails to

satisfy the physical-injury requirement of the Prison Litigation

Reform Act (PLRA), 42 U.S.C. § 1997e(e); (3) Plaintiff has not

established Defendants violated the Eighth Amendment; and 

(4) Defendants are entitled to qualified immunity.

I. Personal Involvement

As noted, Defendants move for summary judgment on

Plaintiff’s claim against Defendants Nichols, Hall, Misner,

Washburn, Whelan, Syle, and Day on the ground that Plaintiff has

failed to establish these Defendants personally participated in

the conduct underlying Plaintiff’s claims.

The Ninth Circuit has made clear that “‘[l]iability under 

§ 1983 must be based on the personal involvement of the

defendant. There is no respondeat superior liability under

section 1983.’” Shallowhorn, 572 F. App’x at 546 (quoting Taylor

v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). 

A. Defendants Nichols, Washburn, Whelan, Syle, and Day

Plaintiff does not allege or establish any facts that

indicate Nichols, Washburn, Whelan, Syle, or Day personally

participated in the events pertinent to Plaintiff’s remaining

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claim relating to circumvention of the safety switch on the

tortilla machine on August 21, 2012, when Plaintiff was injured. 

Accordingly, the Court grants Defendants’ Cross-Motion

for Summary Judgment as to Plaintiff’s claim against Nichols,

Washburn, Whelan, Syle, and Day and denies Plaintiff’s Motion for

Partial Summary Judgment as to these Defendants.

B. Defendants Hall and Misner

Plaintiff alleges Defendant Misner “failed to . . .

train plaintiff before or after the tortilla machine had been

altered by Defendants Nay and Smith; but rather delegated

training to another prisoner.” Am. Compl. at ¶ 79. Plaintiff

does not allege or establish any facts that indicate Defendant

Misner personally participated in the decision to circumvent the

safety switch on August 21, 2012. In addition, Plaintiff

concedes he was trained in use of the tortilla machine. 

Similarly, Plaintiff alleges Defendants Nay and Smith “informed

Defendant Hall that the safety feature had been disabled [on the

tortilla machine]. Defendant Hall then failed to post any signs

indicating that the machines safety feature had been disabled nor

held training sessions on operating the altered equipment.” Am.

Compl. at ¶ 26. Plaintiff does not allege or establish any facts

that indicate Defendant Hall personally participated in the

decision to circumvent the safety switch on August 21, 2012. In

addition, the record indicates Defendant Nay circumvented the

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safety switch on August 21, 2012, at 10:00, which was after

Plaintiff was injured and more than an hour after he received

medical treatment. Hall’s alleged failure to post signs or hold

training sessions on operation of the tortilla machine,

therefore, did not cause Plaintiff’s injury. 

Accordingly, the Court grants Defendants’ Cross-Motion

for Summary Judgment as to Plaintiff’s claim against Hall and

Misner and denies Plaintiff’s Motion for Partial Summary Judgment

as to these Defendants.

II. Physical-Injury Requirement of the PLRA

Defendants move for summary judgment on the ground that

Plaintiff’s alleged injury fails to meet the physical-injury

requirement of the PLRA, which provides in pertinent part: “No

Federal civil action may be brought by a prisoner confined in a

jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior

showing of physical injury.” 42 U.S.C. § 1997e(e). The Ninth

Circuit has interpreted the “physical-injury” requirement of 

§ 1997e(e) to require a showing of more than a de minimis harm. 

Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002). In reaching

that conclusion the Ninth Circuit relied on cases from the Fifth

and Eleventh Circuits in which those courts held inmates’ claims

regarding an ear that remained bruised and sore for three days

and making an inmate “dry shave” were insufficient to satisfy the

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physical-injury requirement of § 1997e(e). Oliver, 289 F.3d 626-

27 (citing Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997), and 

Harris v. Garner, 197 F.3d 1059 (11th Cir. 1999)). Ultimately

the Ninth Circuit concluded the plaintiff in Oliver had not

established he suffered more than de minimis harm when he alleged

he suffered back and leg pain that was “nothing too serious” and

a canker sore. 289 F.3d at 629.

As noted, Defendants assert Plaintiff did not suffer more

than de minimis injury when he was burned by the tortilla

machine. Defendants point to the fact that medical staff did not

observe any blistering, infection, drainage, or moisture on

Plaintiff’s wrist and saw only “an alternation in skin integrity

and light burns.” In addition, Plaintiff was treated with

bandages, ice, and ibuprofen for two days. On the second day

after Plaintiff was burned, medical staff instructed Plaintiff to

leave the dressing off because there was no sign of blisters or

any open areas. Plaintiff did not return for medical attention

for his wrist after three days. The Court agrees the injury

suffered by Plaintiff is the kind that courts have held is not

more than de minimis. See, e.g., Corsetti v. Tessmer, 41 F.

App’x 753, 755 (6th Cir. 2002)(the plaintiff’s allegations of two

small bruises and minor cuts were de minimis injuries that did

not satisfy § 1997e(e)); Mann v. McNeil, 360 F. App’x 31, 32

(11th Cir. 2010)(the plaintiff’s allegations of “vague injuries

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to his back, the scrapes and marks on his knees and legs, the

lack of personal items, the lapse of time in reordering

medication, the window-cleaning assignment, and the

discontinuance of his pass for showers twice a day” constituted

de minimis physical injuries that did not satisfy § 1997e(e));

Luong v. Hatt, 979 F. Supp. 481 (N.D. Tex. 1997)(cuts and

scratches that lasted for two or three days were insufficient to

satisfy the physical-injury requirement of § 1997e(e)); Harbridge

v. Schwarzenegger, No. CV 07–4486– GW(SH), 2011 WL 6960830, at

*13 (C.D. Cal. Aug. 31, 2011)(the plaintiff failed to meet the

physical-injury requirement of § 1997e(e) when he alleged “sleep

deprivation affecting his emotional and mental state, a runny

nose, sore throat, headaches, stinging eyes, painful teeth and

gums, nausea, and difficulty eating” during 12 days of

disciplinary segregation). The Court, therefore, concludes

Plaintiff fails to establish his injuries satisfy the personalinjury requirement of § 1997e(e). 

The Court, however, does not agree with Defendant that

Plaintiff’s failure to establish that his injuries satisfy the

personal-injury requirement of § 1997e(e) requires the Court to

grant summary judgment in favor of Defendants on all of

Plaintiff’s remaining claim. The Ninth Circuit made clear in

Oliver that failure to meet the physical-injury requirement of 

§ 1997e(e) results in dismissal only of a plaintiff’s claims for

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mental and emotional injury. Thus, “[t]o the extent [a

plaintiff] has actionable claims for compensatory, nominal or

punitive damages — premised on violations of his [constitutional]

rights, and not on any alleged mental or emotional injuries . . .

[those] claims are not barred by § 1997e(e).” 289 F.3d at 630.

In his prayer for relief Plaintiff requests the Court to

“[o]rder Defendants to pay compensation and punitive damages to

plaintiff.” Am. Compl. at 15. Plaintiff, therefore, appears to

request compensatory and punitive damages related to his

remaining claim. Accordingly, to the extent that his requests

for compensatory and punitive damages are premised on the alleged

Eighth Amendment violation rather than the emotional or mental

distress suffered as a result of that violation, that claim is

not barred by § 1997e(e). 

The Court, therefore, grants Defendants’ Cross-Motion for

Summary Judgment as to that part of Plaintiff’s claim for damages

based on emotional or mental distress suffered by Plaintiff as a

result of Defendants’ alleged Eighth Amendment violation and

denies Plaintiff’s Motion for Partial Summary Judgment as to any

such claim.

III. Eighth Amendment Violation

As noted, Plaintiff alleges Defendants violated his right to

be free from deliberate indifference under the Eighth Amendment

when they circumvented the safety switch on the tortilla machine

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because they failed to protect him from a known, dangerous

condition.

Defendants move for summary judgment on the grounds that

Plaintiff has failed to establish Defendants’ actions caused

Plaintiff’s injury, and even if they did cause Plaintiff’s

injury, Defendants responded reasonably to the removal of the

safety switch.

A. Standards

"The [United States] Constitution does not mandate

comfortable prisons, but neither does it permit inhumane ones,

and . . . the treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny

under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825,

832 (1994)(quotations omitted). Under the Eighth Amendment

“prison officials are . . . prohibited from being deliberately

indifferent to policies and practices that expose inmates to a

substantial risk of serious harm.” Parsons v. Ryan, 754 F.3d

657, 677 (9th Cir. 2014). See also Farmer, 511 U.S. at 847 (a

prison official violates the Eighth Amendment when he knows about

a substantial risk of serious harm to an inmate and fails to take

reasonable measures to avoid the harm). “Deliberate indifference

occurs when ‘[an] official acted or failed to act despite his

knowledge of a substantial risk of serious harm.’” Solis v.

Cnty. of Los Angeles, 514 F.3d 946, 957 (9th Cir. 2008)(quoting

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Farmer, 511 U.S. at 841). Thus, a prisoner may establish a claim 

“under the Eighth Amendment by alleging that [prison officials]

have, with deliberate indifference, exposed him to [conditions]

that pose an unreasonable risk of serious damage to his future

health.” Helling v. McKinney, 509 U.S. 25, 35 (1993).

To determine whether a plaintiff has established

deliberate indifference the court must engage in a two-part

inquiry. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). 

“First, the inmate must show . . . the prison officials were

aware of a ‘substantial risk of serious harm’ to an inmate's

health or safety.” Id. (quoting Farmer, 511 U.S. at 837). “This

part of [the] inquiry may be satisfied if the inmate shows that

the risk posed by the deprivation is obvious.” Id. (citation

omitted). “Second, the inmate must show that the prison

officials had no ‘reasonable’ justification for the deprivation,

in spite of that risk.” Id. (citing Farmer, 511 U.S. at 844. 

The Supreme Court made clear in Farmer that “prison officials who

actually knew of a substantial risk to inmate health or safety

may be found free from liability if they responded reasonably.”

B. Plaintiff has failed to establish that Defendants

caused his injury.

As noted, Defendants move for summary judgment on the

ground that Plaintiff has failed to establish that Defendants

caused his injury. Specifically, Defendants point to the fact

that the record reflects Plaintiff was injured at some point

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before 8:20 a.m. on August 21, 2012, because he reported to

Health Services and was seen by Nurse Roberts at 8:20 a.m. for

the burn that he received from the tortilla machine. Defendant

Nay testifies in his Declaration that he did not arrive at the

tortilla room until 10:00 a.m. on August 21, 2012, and did not

disable the safety switch until some point after 10:00 a.m. 

Plaintiff does not point to any evidence in the record to rebut

the conclusion that Plaintiff was injured before Defendants

circumvented the safety switch. 

Moreover, to the extent that Plaintiff alleges Defendants

circumvented the safety switch in early August or at any time

before August 21, 2012, Plaintiff’s allegation is not supported

by the record. Plaintiff does not allege or state in his

Declaration that he was present in the tortilla room in “early

August” when Defendant Nay allegedly worked on the tortilla

machine and circumvented the safety switch. In addition,

Defendant Nay testifies in his Declaration that he worked on the

tortilla machine for the first time on August 21, 2012. 

In summary, the record does not reflect Defendants

circumvented the safety switch before August 21, 2012. The

Court, therefore, concludes the record does not support

Plaintiff’s claim that his injury was caused by Defendants’

circumvention of the safety switch on the tortilla maker because

Defendant Nay did not do so until almost two hours after

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Plaintiff reported to Health Services with his burn from the

tortilla maker on August 21, 2012.

C. Defendants responded reasonably to the risk to inmate

safety from the tortilla maker.

Even if the record supported Plaintiff’s allegation

that he was injured after Defendant Nay circumvented the safety

switch, Defendants assert Plaintiff’s Eighth Amendment claim

fails because they responded reasonably to the risk to inmate

safety from the tortilla maker. Specifically, the record

reflects inmates working in the tortilla room, including

Plaintiff, had heat-resistant gloves in addition to protective

sleeves and a 14-inch stick immediately available to retrieve

tortillas that fell off the plates in the tortilla maker. The

record also reflects Plaintiff was trained in how and when to use

the protective gear to retrieve tortillas. Moreover, Nichols

testified in his Declaration that when he went to the tortilla

room, he saw other inmates using the protective gear and stick to

retrieve tortillas safely. Finally, Defendant Nay replaced the

safety switch with a new, working switch only one day after Nay

bypassed the safety switch.

On this record the Court concludes to the extent that

Defendants circumvented the safety switch on the tortilla maker

and thereby created a substantial risk to inmate safety,

Defendants also responded reasonably to that risk.

Accordingly, the Court grants Defendants’ Cross-Motion

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for Summary Judgment and denies Plaintiff’s Motion for Partial

Summary Judgment.

CONCLUSION

For these reasons, the Court DENIES Plaintiff’s Motion (#83)

for Partial Summary Judgment, GRANTS Defendants' Cross-Motion

(#130) for Summary Judgment, and DISMISSES Plaintiff’s remaining

claim with prejudice.

IT IS SO ORDERED.

DATED this 9th day of August, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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