Grant Gordon Otte v. W. Hawkings et al

Filing 13

ORDER TO SHOW CAUSE RE: LACK OF PROSECUTION by Magistrate Judge Alka Sagar. Plaintiff is ORDERED TO SHOW CAUSE, in writing,no later than June 26, 2017, why this action should not be dismissed with prejudice for failure to prosecute. (See Order for complete details) (Attachments: # 1 Notice of Dismissal (Blank), # 2 January 25, 2017 Order, # 3 February 27, 2017 Order) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GRANT GORDON OTTE,

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v.

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) No. CV 16-1832 DMG (AS)
)
) ORDER DISMISSING FIRST AMENDED
)
)
) COMPLAINT WITH LEAVE TO AMEND
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)
)
)

Plaintiff,

W. HAWKINS, ET AL.
Defendants.

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I.

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INTRODUCTION

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On December 19, 2016, Plaintiff Grant Gordon Otte (“Plaintiff”),

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a prisoner at California State Prison, in Corcoran, California, filed

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a

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(Docket Entry No. 9).

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Captain of Ironwood State Prison (“ISP”); (2) E. Best, correctional

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lieutenant;

(3)

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McCallister,

correctional

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sergeant; and (6) C. Sauceda, correctional sergeant.

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Plaintiff sues all Defendants in their individual capacities.

First Amended Complaint (“FAC”) pursuant to 42 U.S.C. § 1983.

M.

The FAC names as Defendants: (1) W. Hawkins,

Montuy,

correctional

sergeant;

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(5)

R.

lieutenant;
Kellog,

(4)

J.

correctional

(See FAC 3−4).
(Id.).

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Plaintiff alleges that Defendants subjected him to cruel and unusual

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punishment

in

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Plaintiff

seeks

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damages from each defendant.

violation

of

the

declaratory

and

Eighth

Amendment.

injunctive

relief

(Id.
and

at

5).

$50,000 in

(Id. at 8).

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The

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Court

has

screened

the

FAC

as

prescribed

by

28

U.S.C.

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§ 1915A and 42 U.S.C. § 1997e.

For reasons discussed below, the

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Court DISMISSES the FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND.1

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II.

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ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

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Plaintiff alleges that, while he was housed at ISP, Defendants

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deliberately failed to fix potholes and cracks on an ISP jogging

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track for inmates.

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Plaintiff to fracture his foot while running on the track.

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5-8).

(FAC 7, 8).

These cracks and potholes caused
(Id. at

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On September 5, 2015, Plaintiff was running on the ISP track,

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and while attempting to avoid a pothole, he inadvertently stepped

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into a large crack and fractured his foot.

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was examined by medical staff and referred to a doctor who took x-

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rays, issued a “cam boot,” and prescribed painkillers.

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Plaintiff has allegedly not been able to exercise or walk normally

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because of his broken foot.

(Id. at 5).

Plaintiff

(Id. at 5-6).

(Id. at 7).

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Magistrate Judges may dismiss a complaint with leave to
amend without approval from the district judge.
McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
2

Plaintiff alleges that, at the time of his injury, Defendants

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were

correctional

officers

assigned

to

the

ISP

Facility

A

yard;

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conducted daily inspections of the ISP track; were “fully aware” of

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cracks and potholes on the track; and “have deliberately ignored

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these safety issues/hazards, and have deliberately failed to take any

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corrective/protective measures of any kind to order or make work

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orders to permanently repair these hazards,” (id. at 6).

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III.

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STANDARD OF REVIEW

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Congress mandates that district courts initially screen civil

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complaints filed by prisoners seeking redress from a governmental

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entity or employee.

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complaint, or any portion thereof, before service of process, if the

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court concludes that the complaint (1) is frivolous or malicious;

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(2) fails to state a claim upon which relief may be granted; or

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(3) seeks monetary relief from a defendant who is immune from such

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relief.

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203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) (en banc).

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U.S.C.

28 U.S.C. § 1915A.

§

1915A(b)(1)–(2);

A court may dismiss such a

see

also

Lopez

v.

Smith,

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Dismissal for failure to state a claim is appropriate if a

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complaint fails to proffer “enough facts to state a claim for relief

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that

is

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550

U.S.

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(2009).

“A claim has facial plausibility when the plaintiff pleads

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factual

content

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inference that the defendant is liable for the misconduct alleged.”

plausible
544,

570

on

its

(2007);

that

face.”

Bell

Ashcroft

v.

allows

the

3

court

Atl.

Iqbal,

to

Corp.
556

draw

v.

U.S.

the

Twombly,
662,

678

reasonable

1

Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr.

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& Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

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provide more than “labels and conclusions” or a “formulaic recitation

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of the elements” of his claim.

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556 U.S. at 678.

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[complaint] need only ‘give the defendant fair notice of what the

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. . . claim is and the grounds upon which it rests.’”

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Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550

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U.S. at 555).

A plaintiff must

Twombly, 550 U.S. at 555; Iqbal,

However, “[s]pecific facts are not necessary; the

Erickson v.

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In

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considering

whether

to

dismiss

a

complaint,

a

court

is

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generally limited to the pleadings and must construe all “factual

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allegations set forth in the complaint . . . as true and . . . in the

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light

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250 F.3d 668, 679 (9th Cir. 2001).

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“to be liberally construed” and held to a less stringent standard

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than those drafted by a lawyer.

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Hebbe

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incorporated the Twombly pleading standard and Twombly did not alter

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courts’ treatment of pro se filings; accordingly, we continue to

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construe

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Iqbal.”).

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be warranted based on either the lack of a cognizable legal theory or

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the

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Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.

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2008).

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claim

most

v.

favorable”

Pliler,

pro

se

to

627

the

F.3d

filings

plaintiff.

Lee

v.

City

of

L.A.,

Moreover, pro se pleadings are

Erickson, 551 U.S. at 94; see also

338,

342

liberally

(9th

when

Cir.

2010)

evaluating

(“Iqbal

them

under

Nevertheless, dismissal for failure to state a claim can

absence

of

factual

support

for

a

cognizable

legal

theory.

A complaint may also be dismissed for failure to state a
if

it

discloses

some

fact

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4

or

complete

defense

that

will

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necessarily defeat the claim.

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Franklin v. Murphy, 745 F.2d 1221,

1228–29 (9th Cir. 1984).

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IV.

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DISCUSSION

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The

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FAC

contains

deficiencies

leave to amend will be granted.

warranting

dismissal,

although

See 28 U.S.C. § 1915A(b)(1).

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A.

The FAC Fails To State An Eighth Amendment Claim For Inhumane
Conditions Of Confinement

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Plaintiff

maintains

that

Defendants

violated

his

Eighth

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Amendment rights by failing to fill potholes and cracks on an ISP

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jogging track for inmates.

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fractured his foot as a result of the unmaintained track.

(FAC 5-8).

Plaintiff alleges that he
(Id. 6-7).

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The Eighth Amendment’s prohibition against cruel and unusual

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punishment

protects

prisoners

from

inhumane

conditions

of

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confinement.

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2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994).

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officials

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provided with adequate shelter, food, clothing, sanitation, medical

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care, and personal safety.”

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Cir. 2000).

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denial of “the minimal civilized measures of life’s necessities.”

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Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (quoting Rhodes v.

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Chapman, 452 U.S. 337, 346 (1981)).

Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

therefore

have

a

“duty

to

ensure

that

Prison

prisoners

are

Johnson v. Lewis, 217 F.3d 726, 731 (9th

The Eighth Amendment thus protects prisoners from a

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If a necessity of this severity

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was denied, a plaintiff must demonstrate that prison officials acted

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with

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indifference.”

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prison official is liable for denying an inmate humane conditions of

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confinement

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excessive risk to inmate health and safety; the official must both be

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aware

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substantial risk of serious harm exists, and he must also draw the

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inference.”

a

sufficiently

of

culpable

state

of

mind,

that

of

“deliberate

Wilson, 501 U.S. at 303; Johnson, 217 F.3d at 733.

only

facts

if

“the

from

official

which

the

knows

inference

of

and

could

A

disregards

be

drawn

an

that

a

Farmer, 511 U.S. at 837.

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As

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explained

in

this

Court’s

prior

Order

dismissing

the

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complaint with leave to amend, Plaintiff fails to allege an Eighth

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Amendment claim.

(Docket Entry No. 5).

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he

objectively

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civilized measures of life’s necessities” when he fractured his foot

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on a poorly maintained track as a prisoner at ISP.

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at 1089 (quoting Rhodes, 452 U.S. at 346 (1981)).

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include adequate food and heat — not a maintained track for exercise.

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See Johnson, 217 F.3d at 731.

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determined to be one of the basic human necessities protected by the

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Eighth Amendment,” but Plaintiff does not allege that he was denied

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an opportunity to exercise.

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1993).

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exercise

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Plaintiff

has

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objective

component

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conditions

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defendants must be dismissed with leave to amend.

suffered

an

serious

Plaintiff does not show that
deprivation

of

“the

minimal

Keenan, 83 F.3d

Life’s necessities

Access to regular “[e]xercise has been

LeMaire v. Maass, 12 F.3d 1444 (9th Cir.

Rather Plaintiff alleges that he was given the opportunity to
and

of

fractured
not

his

stated
of

an

confinement.

foot

in

facts

the

that

Eighth

could

Amendment

Therefore,

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process.

(FAC

plausibly
claim

Plaintiff’s

at
meet

6-8).
the

for

inhumane

claim

against

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V.

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ORDER

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For the reasons discussed above, the Court DISMISSES the FAC

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WITH

LEAVE

TO

AMEND.

If

Plaintiff

still

wishes

to

pursue

this

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action, he shall file a Second Amended Complaint no later than 30

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days from the date of this Order.

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cure the pleading defects discussed above and shall be complete in

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itself without reference to the original Complaint.

The Second Amended Complaint must

See L.R. 15-2

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(“Every amended pleading filed as a matter of right or allowed by

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order of the Court shall be complete including exhibits.

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pleading shall not refer to the prior, superseding pleading.”).

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means that Plaintiff must allege and plead any viable claims in the

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FAC again.

The amended
This

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In any amended complaint, Plaintiff should identify the nature

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of each separate legal claim and confine his allegations to those

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operative facts supporting each of his claims.

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Rule of Civil Procedure 8(a), all that is required is a “short and

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plain statement of the claim showing that the pleader is entitled to

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relief.”

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Second Amended Complaint should be consistent with the authorities

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discussed above.

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include

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allegations

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strongly encouraged to once again utilize the standard civil rights

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complaint form when filing any amended complaint, a copy of which is

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attached.

Pursuant to Federal

However, Plaintiff is advised that the allegations in the

new

In addition, the Second Amended Complaint may not

Defendants
in

the

or

claims

previously

not

filed

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reasonably
complaints.

related

to

Plaintiff

the
is

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Plaintiff is explicitly cautioned that failure to timely file a

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Second

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described above, may result in a recommendation that this action, or

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portions

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prosecute and/or failure to comply with court orders.

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Civ. P. 41(b).

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wishes to pursue this action in its entirety or with respect to

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particular Defendants or claims, he may voluntarily dismiss all or

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any part of this action by filing a Notice of Dismissal in accordance

Amended

Complaint,

thereof,

be

or

failure

dismissed

with

to correct the deficiencies

prejudice

for

failure

to

See Fed. R.

Plaintiff is further advised that if he no longer

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with Federal Rule of Civil Procedure 41(a)(1).

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A form Notice of

Dismissal is attached for Plaintiff’s convenience.

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IT IS SO ORDERED.

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Dated: January 25, 2017

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_____________/s/_______
ALKA SAGAR
UNITED STATES MAGISTRTE JUDGE

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