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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GRANT GORDON OTTE, 12 v. 13 14 ) No. CV 16-1832 DMG (AS) ) ) ORDER DISMISSING FIRST AMENDED ) ) ) COMPLAINT WITH LEAVE TO AMEND ) ) ) ) Plaintiff, W. HAWKINS, ET AL. Defendants. 15 16 17 I. 18 INTRODUCTION 19 20 On December 19, 2016, Plaintiff Grant Gordon Otte (“Plaintiff”), 21 a prisoner at California State Prison, in Corcoran, California, filed 22 a 23 (Docket Entry No. 9). 24 Captain of Ironwood State Prison (“ISP”); (2) E. Best, correctional 25 lieutenant; (3) 26 McCallister, correctional 27 sergeant; and (6) C. Sauceda, correctional sergeant. 28 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; 1 (5) R. lieutenant; Kellog, (4) J. correctional (See FAC 3−4). (Id.). 1 Plaintiff alleges that Defendants subjected him to cruel and unusual 2 punishment in 3 Plaintiff seeks 4 damages from each defendant. violation of the declaratory and Eighth Amendment. injunctive relief (Id. and at 5). $50,000 in (Id. at 8). 5 The 6 Court has screened the FAC as prescribed by 28 U.S.C. 7 § 1915A and 42 U.S.C. § 1997e. For reasons discussed below, the 8 Court DISMISSES the FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND.1 9 10 II. 11 ALLEGATIONS OF THE FIRST AMENDED COMPLAINT 12 13 Plaintiff alleges that, while he was housed at ISP, Defendants 14 deliberately failed to fix potholes and cracks on an ISP jogging 15 track for inmates. 16 Plaintiff to fracture his foot while running on the track. 17 5-8). (FAC 7, 8). These cracks and potholes caused (Id. at 18 19 On September 5, 2015, Plaintiff was running on the ISP track, 20 and while attempting to avoid a pothole, he inadvertently stepped 21 into a large crack and fractured his foot. 22 was examined by medical staff and referred to a doctor who took x- 23 rays, issued a “cam boot,” and prescribed painkillers. 24 Plaintiff has allegedly not been able to exercise or walk normally 25 because of his broken foot. (Id. at 5). Plaintiff (Id. at 5-6). (Id. at 7). 26 27 28 1 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 1 2 were correctional officers assigned to the ISP Facility A yard; 3 conducted daily inspections of the ISP track; were “fully aware” of 4 cracks and potholes on the track; and “have deliberately ignored 5 these safety issues/hazards, and have deliberately failed to take any 6 corrective/protective measures of any kind to order or make work 7 orders to permanently repair these hazards,” (id. at 6). 8 9 III. 10 STANDARD OF REVIEW 11 12 Congress mandates that district courts initially screen civil 13 complaints filed by prisoners seeking redress from a governmental 14 entity or employee. 15 complaint, or any portion thereof, before service of process, if the 16 court concludes that the complaint (1) is frivolous or malicious; 17 (2) fails to state a claim upon which relief may be granted; or 18 (3) seeks monetary relief from a defendant who is immune from such 19 relief. 20 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) (en banc). 28 U.S.C. 28 U.S.C. § 1915A. § 1915A(b)(1)–(2); A court may dismiss such a see also Lopez v. Smith, 21 22 Dismissal for failure to state a claim is appropriate if a 23 complaint fails to proffer “enough facts to state a claim for relief 24 that is 25 550 U.S. 26 (2009). “A claim has facial plausibility when the plaintiff pleads 27 factual content 28 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. 2 & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). 3 provide more than “labels and conclusions” or a “formulaic recitation 4 of the elements” of his claim. 5 556 U.S. at 678. 6 [complaint] need only ‘give the defendant fair notice of what the 7 . . . claim is and the grounds upon which it rests.’” 8 Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 9 U.S. at 555). A plaintiff must Twombly, 550 U.S. at 555; Iqbal, However, “[s]pecific facts are not necessary; the Erickson v. 10 In 11 considering whether to dismiss a complaint, a court is 12 generally limited to the pleadings and must construe all “factual 13 allegations set forth in the complaint . . . as true and . . . in the 14 light 15 250 F.3d 668, 679 (9th Cir. 2001). 16 “to be liberally construed” and held to a less stringent standard 17 than those drafted by a lawyer. 18 Hebbe 19 incorporated the Twombly pleading standard and Twombly did not alter 20 courts’ treatment of pro se filings; accordingly, we continue to 21 construe 22 Iqbal.”). 23 be warranted based on either the lack of a cognizable legal theory or 24 the 25 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 26 2008). 27 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 28 4 or complete defense that will 1 necessarily defeat the claim. 2 Franklin v. Murphy, 745 F.2d 1221, 1228–29 (9th Cir. 1984). 3 4 IV. 5 DISCUSSION 6 The 7 8 FAC contains deficiencies leave to amend will be granted. warranting dismissal, although See 28 U.S.C. § 1915A(b)(1). 9 10 11 A. The FAC Fails To State An Eighth Amendment Claim For Inhumane Conditions Of Confinement 12 13 Plaintiff maintains that Defendants violated his Eighth 14 Amendment rights by failing to fill potholes and cracks on an ISP 15 jogging track for inmates. 16 fractured his foot as a result of the unmaintained track. (FAC 5-8). Plaintiff alleges that he (Id. 6-7). 17 18 The Eighth Amendment’s prohibition against cruel and unusual 19 punishment protects prisoners from inhumane conditions of 20 confinement. 21 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994). 22 officials 23 provided with adequate shelter, food, clothing, sanitation, medical 24 care, and personal safety.” 25 Cir. 2000). 26 denial of “the minimal civilized measures of life’s necessities.” 27 Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (quoting Rhodes v. 28 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 5 If a necessity of this severity 1 was denied, a plaintiff must demonstrate that prison officials acted 2 with 3 indifference.” 4 prison official is liable for denying an inmate humane conditions of 5 confinement 6 excessive risk to inmate health and safety; the official must both be 7 aware 8 substantial risk of serious harm exists, and he must also draw the 9 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. 10 As 11 explained in this Court’s prior Order dismissing the 12 complaint with leave to amend, Plaintiff fails to allege an Eighth 13 Amendment claim. (Docket Entry No. 5). 14 he objectively 15 civilized measures of life’s necessities” when he fractured his foot 16 on a poorly maintained track as a prisoner at ISP. 17 at 1089 (quoting Rhodes, 452 U.S. at 346 (1981)). 18 include adequate food and heat — not a maintained track for exercise. 19 See Johnson, 217 F.3d at 731. 20 determined to be one of the basic human necessities protected by the 21 Eighth Amendment,” but Plaintiff does not allege that he was denied 22 an opportunity to exercise. 23 1993). 24 exercise 25 Plaintiff has 26 objective component 27 conditions 28 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, 6 process. (FAC plausibly claim Plaintiff’s at meet 6-8). the for inhumane claim against 1 V. 2 ORDER 3 For the reasons discussed above, the Court DISMISSES the FAC 4 5 WITH LEAVE TO AMEND. If Plaintiff still wishes to pursue this 6 action, he shall file a Second Amended Complaint no later than 30 7 days from the date of this Order. 8 cure the pleading defects discussed above and shall be complete in 9 itself without reference to the original Complaint. The Second Amended Complaint must See L.R. 15-2 10 (“Every amended pleading filed as a matter of right or allowed by 11 order of the Court shall be complete including exhibits. 12 pleading shall not refer to the prior, superseding pleading.”). 13 means that Plaintiff must allege and plead any viable claims in the 14 FAC again. The amended This 15 16 In any amended complaint, Plaintiff should identify the nature 17 of each separate legal claim and confine his allegations to those 18 operative facts supporting each of his claims. 19 Rule of Civil Procedure 8(a), all that is required is a “short and 20 plain statement of the claim showing that the pleader is entitled to 21 relief.” 22 Second Amended Complaint should be consistent with the authorities 23 discussed above. 24 include 25 allegations 26 strongly encouraged to once again utilize the standard civil rights 27 complaint form when filing any amended complaint, a copy of which is 28 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 7 reasonably complaints. related to Plaintiff the is 1 Plaintiff is explicitly cautioned that failure to timely file a 2 Second 3 described above, may result in a recommendation that this action, or 4 portions 5 prosecute and/or failure to comply with court orders. 6 Civ. P. 41(b). 7 wishes to pursue this action in its entirety or with respect to 8 particular Defendants or claims, he may voluntarily dismiss all or 9 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 10 with Federal Rule of Civil Procedure 41(a)(1). 11 A form Notice of Dismissal is attached for Plaintiff’s convenience. 12 13 IT IS SO ORDERED. 14 15 Dated: January 25, 2017 16 17 18 _____________/s/_______ ALKA SAGAR UNITED STATES MAGISTRTE JUDGE 19 20 21 22 23 24 25 26 27 28 8 _

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