Bell v. Harrington

Filing 17

FINDINGS And RECOMMENDATIONS Recommending That Plaintiff's Claims Be Dismissed With Prejudice (ECF No. 15 ) Objections Due Within Thirty (30) Days, signed by Magistrate Judge Stanley A Boone on 4/19/2013. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 5/23/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COREY L. BELL,

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Case No. 1:10-cv-00714-AWI-SAB
Plaintiff,

v.
K. HARRINGTON,
Defendant.

FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT PLAINTIFF’S
CLAIMS BE DISMISSED WITH PREJUDICE
ECF NO. 15
OBJECTIONS DUE WITHIN THIRTY (30)
DAYS

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I.

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INTRODUCTION

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Plaintiff Corey L. Bell (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. For the reasons set forth below,

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the Court finds that Plaintiff’s amended complaint fails to state any cognizable claims. The Court

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further finds that the deficiencies in Plaintiff’s claims cannot be cured by amendment. The Court

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recommends that Plaintiff’s claims be dismissed with prejudice.

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II.

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SCREENING

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that

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“seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1915(e)(2)(B).

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A complaint 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). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to

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survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual

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detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged, Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,

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and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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III.

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COMPLAINT ALLEGATIONS

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Plaintiff names K. Harrington (warden), S. Lopez (chief medical official), A. Hedgepeth

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(former warden), and Does 1-5 (CDCR employees) as defendants. (First Am. Compl. 2:2-18.)

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Plaintiff is a state prisoner and was incarcerated at Kern Valley State Prison (“KVSP”) at the time

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of the events described in his complaint. (First Am. Compl. 4:13-14.)

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Plaintiff alleges that “[i]n December of 2008, the drinking water supply at KVSP[] was

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cited by the State Department of Public Health (DPH) for arsinic[sic] contamination that

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exceeded twice the maximum allowable level for drinking.”

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Plaintiff further alleges that “KVSP Administration sent out warnings to staff and prisoners” and

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“staff were able to drink bottled water while plaintiff, and other prisoners similarly situated were
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(First Am. Compl. 2:21-24.)

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forced to drink the contaminated water for another 2 years.” (First Am. Compl. 2:25-28.)

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Plaintiff alleges that “DPH ordered KVSP to come into compliance with a corrective plan by

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February 1, 2009[,] [w]hich they failed to do.” (First Am. Compl. 3:6-7.) Plaintiff further alleges

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that “defendants were aware the whole time that arcenic[sic] causes cancer, yet they did nothing

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to provide clean drinking water for prisoners.” (First Am. Compl. 3:9-10.) Plaintiff contends that

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he suffered from dehydration, nausea and headaches because he was not given clean drinking

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water and his “stomach still is affected even though he was transfer[r]ed to a different CDCR

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institution in August 2010.” (First Am. Compl. 4:16-17.)

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Plaintiff seeks declaratory relief, compensatory damages, punitive damages and an award
of costs and expenses.

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IV.

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DISCUSSION

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A.

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Plaintiff raises claims under Section 1983 for the violation of the Eighth Amendment’s

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prohibition against cruel and unusual punishments. To constitute cruel and unusual punishment

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in violation of the Eighth Amendment, prison conditions must involve “the wanton and

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unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prisoner’s

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claim does not rise to the level of an Eighth Amendment violation unless (1) “the prison official

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deprived the prisoner of the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison

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official ‘acted with deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057

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(9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)).

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In order to find a prison official liable under the Eighth Amendment for denying humane

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conditions of confinement within a prison, the official must know “that inmates face a substantial

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risk of serious harm and disregard[] that risk by failing to take reasonable measures to abate it.”

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Farmer v. Brennan, 511 U.S. 825, 847 (1994).

Eighth Amendment Deliberate Indifference Claims

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Plaintiff’s amended complaint fails to state any claims under the Eighth Amendment

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against any defendant. Plaintiff fails to allege a causal link between any of the defendants and the

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harm Plaintiff allegedly suffered. Plaintiff does not allege any specific action or inaction by any
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of the defendants and instead only vaguely alleges that each defendant “did nothing.” (Am.

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Compl. 3:10-11.) Moreover, Plaintiff does not allege any specific facts that plausibly support the

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conclusion that any individual defendant had actual knowledge of a substantial risk of serious

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harm or actually believed that one existed. Notably, Plaintiff alleges that K. Harrington was the

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warden at KVSP “during all times mentioned in the complaint” and that A. Hedgpeth was a

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former warden. It is unclear how Hedgpeth is liable simply because he is a former warden during

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some undisclosed period of time at KVSP. Plaintiff alleges that S. Lopez was the chief medical

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officer, but fails to explain how he/she has any involvement in the drinking water issues at KVSP.

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Furthermore, Plaintiff does not allege any specific acts by any individual that put Plaintiff

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in harm’s way and does not allege any actions that any specific individual should have taken but

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did not. Plaintiff does not identify how any of the named defendants caused or contributed to the

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drinking water problem or caused or contributed to any delay in the rectification of the drinking

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water problem. Even assuming, for the sake of argument, that the drinking water issue rises to

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the level of an Eighth Amendment violation, Plaintiff fails to allege any facts that show how any

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of the individuals named in this lawsuit are responsible for the problem. Accordingly, Plaintiff

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fails to state any cognizable claims.

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B.

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The Court must grant leave to amend, even if no request to amend the pleading was made,

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unless the Court determines that the pleading could not possibly be cured by the allegation of

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other facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Generally, the Court may

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dismiss a complaint with prejudice where the plaintiff was previously notified of the deficiencies

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in the claims and given leave to amend, but did not cure them. See Hendon v. Witcher, 308 Fed.

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Appx. 43, 44-45 (9th Cir. 2008).

Dismissal Without Leave To Amend

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Here, the Court dismissed Plaintiff’s original complaint on April 27, 2011 and expressly

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informed Plaintiff that, to state a cognizable claim, he must allege how each defendant personally

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participated in the deprivation of Plaintiff’s constitutional rights. (ECF No. 14.) Since Plaintiff

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failed to cure these same deficiencies in his amended complaint, the Court finds that these

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deficiencies are not capable of being cured by granting further leave to amend. The Court will
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dismiss Plaintiff’s complaint with prejudice.

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V.

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CONCLUSION AND RECOMMENDATION

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As set forth above, the Court finds that Plaintiff’s amended complaint fails to state any

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cognizable claims. The Court further finds that Plaintiff’s claims are not capable of being cured

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by granting further leave to amend.
Based upon the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s amended

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complaint be DISMISSED WITH PREJUDICE.

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These findings and recommendations are submitted to the district judge assigned to this

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action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30)

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days of service of this recommendation, Plaintiff may file written objections to these findings and

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recommendations with the Court.

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Magistrate Judge’s Findings and Recommendations.”

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magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff

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is advised that failure to file objections within the specified time may waive the right to appeal the

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district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Such a document should be captioned “Objections to
The district judge will review the

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IT IS SO ORDERED.

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Dated:
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April 19, 2013

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DEAC_Signature-END:

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UNITED STATES MAGISTRATE JUDGE
i1eed4

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