Andrillion v. Stolc et al

Filing 13

ORDER Plaintiff's First Amended Complaint 12 and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. The Clerk of Court must make an entry on the docket stating that the dismissal for failure to state a claim may count as a strike under 28:1915(g). The docket shall reflect that the Court certifies, pursuant to 28:1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge G Murray Snow on 6/23/11. (TLJ)

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MDR

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kurt Dineso Andrillion,
Plaintiff,

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vs.

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Warden Bruno Stolc, et al.,

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Defendants.

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No. CV 11-825-PHX-GMS (MEA)
ORDER

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On April 22, 2011, Plaintiff Kurt Dineso Andrillion, who is confined in the

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Corrections Corporation of America’s Red Rock Correctional Center (RRCC) in Eloy,

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Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, an Application

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to Proceed In Forma Pauperis, and a Motion for Appointment of Counsel. In an April 28,

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2011 Order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days

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to pay the filing fee or file a complete Application to Proceed In Forma Pauperis on a court-

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approved form.

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On May 6, 2011, Plaintiff filed a second Application to Proceed In Forma Pauperis.

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In a May 11, 2011 Order, the Court granted the second Application to Proceed, denied

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without prejudice the Motion for Appointment of Counsel, and dismissed the Complaint

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because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an

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amended complaint that cured the deficiencies identified in the Order.

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On June 14, 2011, Plaintiff filed his First Amended Complaint (Doc. 12). The Court
will dismiss the First Amended Complaint and this action.

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I.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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II.

First Amended Complaint

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A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963

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F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,

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1546 (9th Cir. 1990). After amendment, the Court treats the original Complaint as

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nonexistent. Ferdik, 963 F.2d at 1262. Thus, the Court will consider only those claims

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raised in the First Amended Complaint against only those Defendants named in the First

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Amended Complaint.

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In his three-count First Amended Complaint, Plaintiff sues the following Defendants:

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Chief Deputy Warden L. Romero, RRCC Warden Bruno Stolc, Safety Manager Samantha

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Grossman, and Kitchen Manager Joe Stilchen. The gravamen of his First Amended

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Complaint is that he was given tennis shoes, rather than workboots, while working on

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slippery floors in the kitchen, and that he slipped and fell and injured himself.

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In Count One, Plaintiff alleges that he was subjected to cruel and unusual punishment

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in violation of the Eighth Amendment because “(RRCC) deprived [him] of a basic human

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need (workboot).” He claims that because “RRCC” failed to provide him with workboots

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when it assigned him to work in wet and slippery conditions in the kitchen, he suffered

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physical injuries. He contends that “Defendants through its officers or employee[]s was

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responsible for the hazard complained of . . .[,] at least one of such persons had actual

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knowledge of hazard and neglected to give adequate knowledge of its presence or remove

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it promptly.” He alleges that “[s]uch danger had existed for a suf[f]icient time reasonably

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to justify the inference that the failure to warn [Plaintiff] against it or remove it was

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attributable to a want of care.”

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In Count Two, Plaintiff alleges that he was subjected to cruel and unusual punishment

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in violation of the Eighth Amendment. He claims that he is a State of California inmate who

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was transferred to RRCC because of overcrowding issues and unsafe prison conditions in the

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California prisons. He asserts that, pursuant to a contract between the State of California and

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the Corrections Corporation of America, he was not to be treated any differently than he

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would have been treated if he had remained in a California prison. He claims that in a

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California prison he would have been issued workboots.

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In Count Three, he alleges that as a “prisoner of the State of California imported into

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the State of Arizona [he] should have been protected under the Equal Protection Clause.”

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He contends that he was forced to unload cargo and empty trash and he attempted to refuse

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to do so “due to the hazardous situation.” He claims that “Red Rock Correctional Center

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knowingly assigned [him] to these conditions” and, when he attempted to change job

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assignments, his request was denied. He asserts that he was “forced to perform duties in

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unsafe conditions knowingly in tennis shoes” and his feet slipped from underneath him while

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he was pulling a pallet, causing him to injure his lower back, hip, and knee.

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In his Request for Relief, Plaintiff seeks declaratory and injunctive relief, monetary

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damages, a jury trial, and his costs.

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III.

Failure to State a Claim

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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v.

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Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further,

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a liberal interpretation of a civil rights complaint may not supply essential elements of the

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claim that were not initially pled. Id.

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A.

Failure to Link Defendants with Injuries

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To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific

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injury as a result of specific conduct of a defendant and show an affirmative link between the

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injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377

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(1976). There is no respondeat superior liability under § 1983, and therefore, a defendant’s

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position as the supervisor of persons who allegedly violated Plaintiff’s constitutional rights

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does not impose liability. Monell v. New York City Department of Social Services, 436 U.S.

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658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens

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and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.

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As was the case with his original Complaint, Plaintiff has not alleged that Defendants

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Romero, Stolc, Grossman, or Stilchen personally participated in a deprivation of Plaintiff’s

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constitutional rights, were aware of a deprivation and failed to act, or formed policies that

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resulted in Plaintiff’s injuries.

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Defendants. Thus, the Court will dismiss Defendants Romero, Stolc, Grossman, and

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Stilchen.

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B.

Plaintiff has not made any allegations against these

Failure to State a Claim—Counts One and Two

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An Eighth Amendment claim requires a sufficiently culpable state of mind by the

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Defendants, known as “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834

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(1994). Deliberate indifference is a higher standard than negligence or lack of ordinary due

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care for the prisoner’s safety. Id. at 835. To state a claim of deliberate indifference,

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plaintiffs must meet a two-part test. First, the alleged constitutional deprivation must be,

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objectively, “sufficiently serious”; the official’s act or omission must result in the denial of

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“the minimal civilized measure of life’s necessities.” Id. at 834. Second, the prison official

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must have a “sufficiently culpable state of mind,” i.e., he must act with deliberate

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indifference to inmate health or safety. Id. In defining “deliberate indifference” in this

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context, the Supreme Court has imposed a subjective test: “the official must both be aware

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of facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw the inference.” Id. at 837 (emphasis added).

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Deliberate indifference is a higher standard than negligence or lack of ordinary due

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care for the prisoner’s safety. Id. at 835. “Neither negligence nor gross negligence will

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constitute deliberate indifference.” Clement v. California Dep’t of Corrections, 220 F. Supp.

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2d 1098, 1105 (N.D. Cal. 2002).

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Claims regarding slippery floors, without more, “do not state even an arguable claim

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for cruel and unusual punishment.” Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989),

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superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130
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(9th Cir. 2000). In Osolinski v. Kane, 92 F.3d 934 (9th Cir.1996), a prisoner alleged an

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Eighth Amendment violation because maintenance requests had been submitted, and prison

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officials had failed to repair an oven door that ultimately fell off and burned plaintiff’s arm.

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The Ninth Circuit Court of Appeals concluded that defendants were entitled to qualified

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immunity, citing several cases which held that minor safety hazards did not violate the Eighth

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Amendment. See Robinson v. Cuyler, 511 F. Supp. 161, 163 (E.D. Pa. 1981) (“A slippery

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kitchen floor does not inflict ‘cruel and unusual punishments.’”); Tunstall v. Rowe, 478 F.

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Supp. 87, 89 (N.D. Ill. 1979) (the existence of a greasy staircase on which prisoner slipped

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and fell did not violate the Eighth Amendment); Snyder v. Blankenship, 473 F. Supp. 1208,

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1212 (W.D. Va. 1979) (failure to repair leaking dishwasher which resulted in a pool of soapy

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water in which prisoner slipped did not violate Eighth Amendment).

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Plaintiff’s allegations in Counts One and Two do not relate to any particular

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Defendant. Moreover, although Plaintiff may have alleged that a minor safety violation

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occurred, he has failed to allege anything that would suggest that any Defendant’s conduct

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rose to the level of cruel and unusual punishment.1 Thus, the Court will dismiss Counts One

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and Two.

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C.

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Generally, “[t]o state a claim . . . for a violation of the Equal Protection Clause . . . [,]

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a plaintiff must show that the defendants acted with an intent or purpose to discriminate

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against the plaintiff based upon membership in a protected class.” Barren v. Harrington, 152

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F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged he is a member of a protected

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class.

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Failure to State a Claim—Count Three

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Although the Ninth Circuit held in Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir.
1998), that slippery floors could establish a constitutional claim, that case is distinguishable.
In Frost, the court found a violation of Eighth Amendment based on the fact that the plaintiff
used crutches and suffered repeated injuries, of which prison officials were aware, caused
by a slippery bathroom floor in a bathroom without adequate handicapped shower facilities.
Plaintiff presents no such facts here.
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The United States Supreme Court has also recognized “successful equal protection

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claims brought by a ‘class of one,’ where the plaintiff alleges that [he] has been intentionally

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treated differently from others similarly situated and that there is no rational basis for the

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difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see

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also SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir.

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2002). Even under this standard, Plaintiff has failed to state a claim. Plaintiff has failed to

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allege that he was treated differently than other similarly situated individuals and that there

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was no rational basis for treating him differently. Thus, Plaintiff has failed to state an equal

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protection claim in Count Three.

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IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his First Amended Complaint, the Court

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will dismiss his First Amended Complaint. “Leave to amend need not be given if a

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complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc.,

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885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated

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failure to cure deficiencies is one of the factors to be considered in deciding whether justice

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requires granting leave to amend. Moore, 885 F.2d at 538.

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Plaintiff has made two efforts at crafting a viable complaint and appears unable to do

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so despite specific instructions from the Court. The Court finds that further opportunities to

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amend would be futile. Therefore, the Court, in its discretion, will dismiss Plaintiff’s First

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Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

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Plaintiff’s First Amended Complaint (Doc. 12) and this action are dismissed

for failure to state a claim, and the Clerk of Court must enter judgment accordingly.
(2)

The Clerk of Court must make an entry on the docket stating that the dismissal

for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).

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(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

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decision would not be taken in good faith.

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DATED this 23rd day of June, 2011.

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