Milliken v. Lopez et al

Filing 12

ORDER DISREGARDING Plaintiff's 10 Motion to Amend as Unnecessary; ORDER Requiring Plaintiff Either to File a Second Amended Complaint OR Notify Court of Willingness to Proceed Only on Claims Found to be Cognizable, signed by Magistrate Judge Dennis L. Beck on 8/8/2011. Response Due Within Thirty Days. (Attachments: # 1 1983 Amended Complaint) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES MILLIKEN,

CASE NO. 1:11-CV-00093-DLB PC

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Plaintiff,

ORDER DISREGARDING PLAINTIFF’S
MOTION TO AMEND AS UNNECESSARY
(DOC. 10)

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v.
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R. LOPEZ, et al.,

ORDER REQUIRING PLAINTIFF EITHER
TO FILE A SECOND AMENDED
COMPLAINT OR NOTIFY COURT OF
WILLINGNESS TO PROCEED ONLY ON
CLAIMS FOUND TO BE COGNIZABLE
(DOC. 11)

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Defendants.
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/

RESPONSE DUE WITHIN THIRTY DAYS

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Screening Order
I.

Background
Plaintiff James Milliken (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action by filing his complaint on January 10, 2011. Plaintiff filed his first amended complaint on

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July 11, 2011. Doc. 11.1

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The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Plaintiff also filed a motion to amend his complaint concurrently with his amended
complaint. Doc. 10. Plaintiff may amend his pleadings once as a matter of course. Fed. R. Civ.
P. 15(a). Accordingly, Plaintiff’s motion is HEREBY ORDERED disregarded as unnecessary.
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the
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, 129 S. Ct. 1937, 1949 (2009) (citing

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly,

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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

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II.

Summary of Complaint

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Plaintiff is currently incarcerated at Corcoran State Prison (“CSP”) in Corcoran,

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California, where the events giving rise to this action occurred. Plaintiff names as Defendants

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Warden Raul Lopez, sergeant R. Vogel, and supervisors of building trades S. A. Marshall and L.

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Cruz.

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Plaintiff alleges the following. On June 24, 2010, Plaintiff was moved to cell 4-B-1-R

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#06. The plumbing was in disrepair such that sewer water was leaking into the cell, forming

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puddles on the floor and filling a large hole adjacent to the toilet.

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On June 25, 2010, Plaintiff informed Defendants through an inmate request that he and

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his cell mate, inmate Bishop, were being exposed to unconstitutional conditions in their cell.

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Plaintiff requested to be moved to a more habitable cell. Plaintiff requested an interview with

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Defendant Lopez. This request was denied. On June 29, 2010, Defendant Vogel was in charge

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of a building search. When he approached Plaintiff’s cell, Plaintiff told Defendant Vogel of the

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leak. Plaintiff asked to have a plumber come and fix the leak/hole or to be moved to a safer cell.
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Defendant Vogel denied the move request, but did say he would contact plumbers to have the

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leak fixed. The leak/hole was not fixed. Plaintiff and his cell mate mopped up the cell with their

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bare hands, and without cleaning supplies. Plaintiff became ill, suffering diarrhea, stomach

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cramps, chest congestion, and migraines. Plaintiff requested to be seen by a doctor on July 12,

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2010, and was seen on July 14 and July 23.

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Mosquitos also infested the cell because of the stagnant water inside. On July 23, 2010,

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Defendant Vogel again was conducting a search of all the cells in the building. Plaintiff again

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expressed his concerns to Defendant Vogel, and mentioned becoming ill. Defendant Vogel again

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said he would see what he could do, but nothing was done.

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Plaintiff was provided only two towels every six months, and only a half bar of soap per

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week. Plaintiff used one of his towels and the half bar of soap to mop the sewage and disinfect

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the cell. Plaintiff was never given additional cleaning supplies. Plaintiff’s soap was used up

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within 48 hours, leaving Plaintiff without soap 5 days a week.

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On August 9, 2010, Plaintiff requested an interview with Defendant S. A. Marshall

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regarding the leak. Defendant Vogel came to their cell on August 9, 2010, in response to inmate

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Bishop’s request. Defendant Vogel ordered the Plaintiff and his cell mate out of the cell, and

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sprayed the entire area with some red spray paint. Defendant Vogel told two correctional officers

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to properly document the leak/hole and to not issue any rules violations reports against the

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inmates for property damage. Defendant Vogel assured Plaintiff he would issue a work order.

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On October 11, 2010, no repairs had been done. Plaintiff wrote to Defendants Marshall

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and Cruz, again informing them of conditions in the cell, and asking that they fix it. The pipe

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continued to leak until it was fixed on January 10, 2011. Plaintiff was exposed to these

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conditions for 200 days. The hole was not fixed until March 21, 2011, 270 days after Plaintiff

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had moved into the cell.

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Plaintiff alleges a violation of the Eighth Amendment for being kept in a cell with a

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damaged floor, sewage leak, and mosquitos for 200 days, and for being deprived of reasonable

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access to basic personal hygiene supplies and no cleaning supplies for 200 days. Plaintiff

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requests as relief monetary damages, and all court fees.
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III.

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Analysis
The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Extreme deprivations are required to make out a conditions of confinement claim, and

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only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992). In order to state a claim for violation of the Eighth Amendment, Plaintiff

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must allege facts sufficient to support a claim that officials knew of and disregarded a substantial

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risk of serious harm to him. Farmer v. Brennan, 511 U.S. 825, 837 (1994); see Frost v. Agnos,

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152 F.3d 1124, 1128 (9th Cir. 1998). “[S]ubjection of a prisoner to lack of sanitation that is

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severe or prolonged can constitute an infliction of pain within the meaning of the Eighth

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Amendment.” Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995); see also

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Johnson v. Lewis, 217 F.3d 726, 731-32 (9th Cir. 2000) (“The circumstances, nature, and

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duration of a deprivation of [life’s] necessities must be considered in determining whether a

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constitutional violation has occurred. ‘The more basic the need, the shorter the time it can be

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withheld.’”) (citing Hoptowit v. Ray, 682 F.2d1237, 1259 (9th Cir. 1982)).

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Plaintiff does not state a claim for relief regarding lack of hygienic items, as Plaintiff

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makes no allegations that any Defendants knew of and disregarded a substantial risk of serious

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harm to Plaintiff’s health regarding his hygiene.

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Plaintiff states a cognizable claim for relief under the Eighth Amendment against

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Defendant Vogel for Plaintiff remaining in a cell with a damaged floor, sewage leak, and

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mosquitos for 200 days. Plaintiff alleges sufficient facts to demonstrate that Defendant Vogel

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knew of and disregarded a substantial risk of serious harm to Plaintiff’s health.

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Plaintiff does not state a claim a claim for relief against Defendants Lopez, Marshall, and

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Cruz. Plaintiff alleges only that he sent requests for inmate interviews with these Defendants.

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This is insufficient to demonstrate that Defendants Lopez, Marshall, and Cruz actually knew of

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and disregarded a substantial risk of serious harm to Plaintiff’s health.

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IV.

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Conclusion And Order
Plaintiff states a cognizable claim against Defendant R. Vogel for deliberate indifference

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in violation of the Eighth Amendment for Plaintiff remaining in a cell with a damaged floor,

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sewage leak, and mosquitos for 200 days. Plaintiff fails to state any other claims against any

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other Defendants.

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The Court will provide Plaintiff with an opportunity to file an amended complaint curing

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the deficiencies identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims

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in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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If Plaintiff decides not to amend and is willing to proceed only on the claims found to be

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cognizable, the Court will issue an order dismissing Defendants Lopez, Marshall, and Cruz, and

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forward service documents to Plaintiff for completion and return as to Defendant Vogel. The

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Court will then direct the United States Marshal to effect service of process of both the amended

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complaint on Defendant Vogel.

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If Plaintiff decides to amend, Plaintiff’s amended complaint should be brief, Fed. R. Civ.

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P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s

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constitutional or other federal rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the

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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . .

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

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987), and must be “complete in itself without reference to the prior or superseded

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pleading,” L. R. 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567

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(citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth,

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114 F.3d at 1474.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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

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2.

Within thirty (30) days from the date of service of this order, Plaintiff shall

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either:

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(a) file a second amended complaint curing the deficiencies identified herein; or

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(b) notify the Court of willingness to proceed only on claims found to be

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cognizable as stated herein; and

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3.

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If Plaintiff fails to comply with this order, the Court will dismiss this action for
failure to obey a court order.

IT IS SO ORDERED.
Dated:

August 8, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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