Reed v. Hubach, et al

Filing 7

ORDER DISMISSING 1 Action (Strike)for Failure to State a Claim upon which Relief May be Granted; DISMISSAL COUNTS AS STRIKE signed by Magistrate Judge Dennis L. Beck on 9/26/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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STEPHEN C. REED,

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Plaintiff,

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CASE NO. 1:11-CV-00468-DLB PC
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED

v.
R. HUBACH, et al.,

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(DOC. 1)
Defendants.

DISMISSAL COUNTS AS STRIKE
PURSUANT TO 28 U.S.C. § 1915(G)

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Screening Order
I.

Background
Plaintiff Stephen C. Reed (“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 March 21, 2011. Doc. 1.

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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

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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

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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, 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 And Analysis
Plaintiff is incarcerated at California State Prison, Corcoran (“CSP-Cor”) in Corcoran,

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

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Hubach, captain of 3A Facility; V. Marmolejo, lieutenant at 3A facility; J. Gonzales, sergeant at

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3A facility; De La Cruz, correctional officer for 3A facility; and Royston, activities coach for 3A

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facility.

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Plaintiff alleges the following. On September 25, 2010, Plaintiff was a member of a

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prison-sanctioned prisoner softball game in Facility 3A. Compl. ¶ 9. Defendant Royston

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organized the game, and Defendants Hubach, Marmolejo, and Gonzales approved it via

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memorandum. Id. While playing center field, a fly ball was hit by one of the opposing team

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players to deep center right field. Id. ¶ 10. Plaintiff gave chase at full speed and was focused on

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the ball. Id. Plaintiff’s left foot slipped into one of many hidden sprinkler holes all over the

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playing field, which Plaintiff did not know existed. Id. Plaintiff broke his leg in three places,

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and slammed into another inmate. Id.

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Title 15 of the California Code of Regulations states that all physical recreation activities

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which involve unusual danger or potential for injury are prohibited. Id. ¶ 11. Plaintiff contends

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that the tournament should never have occurred without Defendant De La Cruz taking proper

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precautionary measures, such as warning signs or orange cones, or covering these hidden holes.

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Id. ¶ 12. Plaintiff has a permanent titanium rod in his left tibia and has mild to acute pain on a
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daily basis. Id. Plaintiff is aware of correctional officers being injured on these same grounds.

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Id.

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Plaintiff contends a violation of the Eighth Amendment. Plaintiff requests as relief

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declaratory judgment, a preliminary and permanent injunction that Defendants at CSP-Cor repair

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the field so no further injury occur to others, compensatory and punitive damages, and costs of

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suit.

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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) (citations and quotations omitted). In order to state a claim for violation of

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the Eighth Amendment, Plaintiff must allege facts sufficient to support a claim that officials

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knew of and disregarded a substantial risk of serious harm to him. E.g., Farmer v. Brennan, 511

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U.S. 825, 837 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Mere negligence on

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the part of the official is not sufficient to establish liability, but rather, the official’s conduct must

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have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128.

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Here, Plaintiff fails to state a cognizable Eighth Amendment claim. Plaintiff alleges that

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Defendant Royston organized the game, Defendants Hubach, Marmolejo, and Gonzales approved

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the game, and Defendant De La Cruz should have insured the safety of the field. Plaintiff alleges

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that the game was unsafe because of the hidden sprinklers. Plaintiff however fails to allege

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sufficient facts that demonstrate the Defendants knew of and disregarded an excessive risk of

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serious harm to Plaintiff’s health. Plaintiff fails to allege an excessive risk of serious harm, or

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that Defendants were aware of any such excessive risk. Plaintiff’s allegations amount at most to

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negligence, which is not actionable under § 1983. Farmer, 511 U.S. at 835.

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The Court finds that Plaintiff will not be able to cure the deficiencies identified herein.

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Accordingly, further leave to amend will not be granted. See Lopez v. Smith, 203 F.3d 1122,

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1127 (9th Cir. 2000) (en banc).
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III.

Conclusion And Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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This action is dismissed for failure to state a claim upon which relief may be
granted under 42 U.S.C. § 1983; and

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This dismissal should count as a strike pursuant to 28 U.S.C. § 1915(g).

IT IS SO ORDERED.
Dated:
3b142a

September 26, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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