Fields v. Vogel

Filing 14

ORDER Dismissing Complaint, with Leave to Amend, for Failure to State a Claim, signed by Magistrate Judge Barbara A. McAuliffe on 11/28/11. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEVIN E. FIELDS,

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Plaintiff,

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CASE NO. 1:10-cv–01701-AWI-BAM PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO
STATE A CLAIM

v.
RONALD VOGEL, et al.,

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(ECF No. 4)

Defendants.

THIRTY-DAY DEADLINE
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I.

Screening Requirement

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Plaintiff Kevin Fields is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the first amended

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complaint, filed September 22, 2010. (ECF No. 4.)

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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 “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
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Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555, 127 S. Ct. 1955 (2007)).

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]

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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line

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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting

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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations

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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129

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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).

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II.

Complaint Allegations

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and

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is incarcerated at California State Prison-Corcoran. This action is brought against Defendants Vogel,

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Mason, Hernandez, Pena, Callow, Rousseau, and Field alleging deliberate indifference in violation

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of the Eighth Amendment and retaliation in violation of the First Amendment. Plaintiff is seeking

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declaratory and monetary relief.

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On October 12, 2009, Plaintiff was interviewed by Defendants Vogel and Marsh regarding

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a staff complaint. Later that day when he returned to his cell, he noticed that when the prisoner in

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the cell above him flushed the toilet sewer water would run down a vent onto the spout of his sink.

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Plaintiff informed Defendant Vogel that he had an emergency plumbing need and wanted him to call

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a plumber or move him to another cell. Defendant Vogel told Plaintiff he was aware of the situation

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and wasn’t going to submit a work order or move Plaintiff. Later that evening Plaintiff informed

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Correctional Officers Kee, Tomlin, Tran, and Morrison about the problem and was informed that

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they would tell the sergeant. Plaintiff submitted an appeal because he was informed that he was not

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going to be moved to another cell and a plumber was not going to be called.

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Plaintiff complained about the situation on October 13, 2009 and was told that the facility
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lieutenant and captain were aware of the situation and were working on it. Plaintiff was informed

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that Defendant Hernandez had called in a plumber, but was not going to move Plaintiff. Plaintiff

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was unable to use the sink to drink water, brush his teeth, or wash until it was fixed on October 15,

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2009.

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Plaintiff alleges that Defendants Vogel, Mason, Hernandez, Callow, Rousseau, and Field

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subjected him to a substantial risk of harm in retaliation for his filing inmate grievances and lawsuits.

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Plaintiff states that as a result he suffered dehydration, a fungal rash on his back, mental and

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emotional pain and fear of contracting Hepatitis.

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For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief.

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Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies

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described by the Court in this order.

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III.

Discussion

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A.

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A plaintiff may state a claim for a violation of his First Amendment rights due to retaliation

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under section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable claim of

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retaliation in violation of the First Amendment consists of five elements: “(1) An assertion that a

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state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected

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conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and

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(5) the action did not reasonable advance a legitimate correctional goal.” Rhodes v. Robinson, 408

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F.3d 559, 567 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

Retaliation

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Plaintiff’s conclusory allegations that Defendants acted in retaliation for his exercising his

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First Amendment rights fails to state a claim. Iqbal, 129 S. Ct. at 1949. The first amended

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complaint is devoid of any factual allegations sufficient to state a plausible claim for retaliation.

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B.

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Liability under section 1983 exists where a defendant “acting under the color of law” has

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deprived the plaintiff “of a right secured by the Constitution or laws of the United States.” Jensen

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v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000). To prove a violation of the Eighth Amendment

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the plaintiff must “objectively show that he was deprived of something ‘sufficiently serious,’ and

Deliberate Indifference

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make a subjective showing that the deprivation occurred with deliberate indifference to the inmate’s

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health or safety.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted).

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Plaintiff’s allegation that when the toilet above his cell was flushed sewer water ran over the

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faucet in his sink does not rise to a deprivation of the ‘minimal civilized measure of life’s

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necessities.’ Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Routine discomfort that is

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inherent in the prison setting is insufficient to establish an Eighth Amendment violation, deprivations

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that deny “the minimal civilized measure of life’s necessities” are objectively sufficiently serious.

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Wilson v. Seiter, 501 U.S. 294, 298 (1991); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006).

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The circumstances, nature, and duration of the deprivations are critical in determining whether the

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conditions complained of are grave enough to form the basis of a viable Eighth Amendment claim,

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Id. Plaintiff’s allegation that when the toilet above his cell was flushed sewer water flowed over the

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faucet in his sink does not demonstrate a prolonged or severe deprivation that would rise to the level

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of a constitutional violation where the problem was corrected within three days.

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Nor has Plaintiff alleged facts to show that he was at a substantial risk of serious harm. The

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sewage problem was limited to the sink in Plaintiff’s cell and Plaintiff states in his complaint that

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he was unable to use the sink for the three days that the sewage problem existed. Plaintiff fails to

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state a plausible claim that he contracted a fungal infection on his back due to the sewage flowing

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over the facet in his sink.

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C.

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In addition to money damages, Plaintiff seeks a declaration that his rights were violated. “A

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declaratory judgment, like other forms of equitable relief, should be granted only as a matter of

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judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village,

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333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful

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purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford

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relief from the uncertainty and controversy faced by the parties.” United States v. Washington, 759

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F.2d 1353, 1357 (9th Cir. 1985). In the event that Plaintiff is able to state a cognizable claim and

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this action reaches trial, if the jury returns a verdict in favor of Plaintiff, that verdict will be a finding

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that Plaintiff’s constitutional rights were violated. Accordingly, a declaration that Defendants

Declaratory Relief

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violated Plaintiff’s rights is unnecessary, and this action shall proceed as one for money damages

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only.

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IV.

Conclusion and Order

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For the reasons stated, Plaintiff’s complaint does not state a cognizable claim for relief for

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a violation of his constitutional rights. Plaintiff is granted leave to file an amended complaint within

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thirty days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the

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nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,

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Iqbal, 129 S. Ct. at 1948-49. “The inquiry into causation must be individualized and focus on the

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duties and responsibilities of each individual defendant whose acts or omissions are alleged to have

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caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although

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accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the

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speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must

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be “complete in itself without reference to the prior or superceded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th

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Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Plaintiff’s first amended complaint, filed September 22, 2010, is dismissed for failure

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to state a claim upon which relief may be granted under section 1983;

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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4.

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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.

IT IS SO ORDERED.
Dated:
10c20k

November 28, 2011

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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