Castro v. Olmos et al

Filing 10

FINDINGS and RECOMMENDATIONS Recommending that this 9 Action be Dismissed for Failure to State a Claim upon which Relief could be Granted signed by Magistrate Judge Gary S. Austin on 06/13/2012. Referred to Judge Ishii; Objections to F&R due by 7/9/2012.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RICKEY CASTRO,

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Plaintiff,

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CASE NO. 1:11-cv-01985 AWI GSA PC
FINDINGS AND RECOMMENDATION THAT
THIS ACTION BE DISMISSED FOR FAILURE
TO STATE A CLAIM UPON WHICH RELIEF
COULD BE GRANTED

v.
MR. OLMOS, et al.,

OBJECTIONS DUE IN THIRTY DAYS
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Defendants.
/

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I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant

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to 28 U.S.C. § 636(b)(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 legally

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

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Plaintiff’s Claims

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This action proceeds on the May 29, 2012, first amended complaint, filed in response to an

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earlier order dismissing the original complaint and granting Plaintiff leave to file an amended

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complaint. Plaintiff, an inmate in the custody of the California Department of Corrections and

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Rehabilitation at the California Institute for Men at Chino, brings this civil rights action against

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correctional officials employed by the CDCR at CCI Tehachapi. Plaintiff’s claim in this action

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stems from the conditions of his confinement. Plaintiff alleges that between the dates of July 3rd and

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September 19, 2011, he was only allowed to shower 10 times. Plaintiff alleges that the Defendants

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in this action are the correctional officers in charge of the level III yard shower program for inmates

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in the unit where Plaintiff was housed. Plaintiff specifically alleges that he was allowed 10 showers

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over the course of approximately 88 days.

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A.

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

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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Extreme deprivations are required to make out a conditions of confinement claim, and only those

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deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form

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the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations

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and quotations omitted). In order to state a claim for violation of the Eighth Amendment, the

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

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a substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825,847 (1994);

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Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

Conditions of Confinement

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“[S]ubjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an

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infliction of pain within the meaning of the Eighth Amendment.” Anderson v. County of Kern, 45

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F.3d 1310, 1314 (9th Cir. 1995); see also Johnson v. Lewis, 217 F.3d 726, 731-32 (9th Cir. 2000);

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Hoptowit v. Spellman, 753 F.2d 779, 783 (9th Cir. 1985). Each condition being challenged must be

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sufficiently serious to constitute a substantial risk of harm to Plaintiff. Hoptowit v. Ray, 682 F.2d

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1237, 1254 (9th Cir.1986) (Eighth Amendment violations may not be premised on a totality of

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conditions at the prison), abrogated in part on other grounds by Sandin v. Conner, 5154 U.S. 472,
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(1995). The circumstances, nature, and duration of the deprivations are critical in determining

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whether the conditions complained of are grave enough to form the basis of a viable Eighth

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Amendment claim. Johnson, 217 F.3d at 731.

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Although the Eighth Amendment guarantees sanitation, Johnson, 217 F.3d at 731, lack of

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access to the showers for two weeks, in and of itself, does not suggest that Plaintiff was unable to

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attend to his basic hygiene needs during the time frame at issue. Plaintiff’s conclusory allegation

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that his reduced access to showers constitutes deliberate indifference is unsupported by factual

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allegation. There are no allegations that Plaintiff was completely deprived of showers, or that

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Plaintiff did not have any other means of sanitation.

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Accordingly, on May 4, 2012, an order was entered, dismissing the complaint and granting

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Plaintiff leave to file an amended complaint. On May 29, 2012, Plaintiff filed the first amended

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complaint that is now before the Court.

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In the first amended complaint, Plaintiff re-asserts the allegations set forth in the original

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complaint. Plaintiff’s allegations indicate that he was not afforded a shower every three days as

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mandated by prison regulations. Plaintiff’s central claim is that Defendants are liable because

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Plaintiff was only allowed to shower approximately once every 8 days. Such an allegation fails to

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state a claim for relief under the Eighth Amendment. That prison officials may have failed to

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provide regular showers as mandated by prison regulations does not subject them to liability for a

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violation of the Eighth Amendment. As noted in the order dismissing the original complaint,

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Plaintiff has not alleged that he was completely deprived of showers, or that he had no means of

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sanitation. Plaintiff fails to allege any additional facts regarding his access to sanitation.

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III.

Conclusion and Order

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The Court has screened Plaintiff’s complaint and finds that it does not state any claims upon

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which relief may be granted under section 1983. Because Plaintiff has not cured the deficiencies

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identified in the order dismissing the original complaint, the Court recommends dismissal of this

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action with prejudice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)(dismissal with

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prejudice upheld where court had instructed plaintiff regarding deficiencies in prior order dismissing

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claim with leave to amend).
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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to

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state a claim upon which relief can be granted, and that this action count as a strike under 28 U.S.C.

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§ 1915(g).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within twenty

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time waives all objections to the judge’s findings of fact. See Turner v. Duncan, 158 F.3d

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449, 455 (9th Cir. 1998). Failure to file objections within the specified time may waive the right to

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appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

June 13, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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