Thompson v. DePond

Filing 12

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Complaint for Failure to State a Claim 1 , signed by Magistrate Judge Barbara A. McAuliffe on 4/24/14: Fifteen-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEWAYNE THOMPSON,

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Plaintiff,

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v.

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J. DEPOND,

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Defendant.

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1:13-cv-00527-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF
COMPLAINT FOR FAILURE TO STATE A
CLAIM
(ECF No. 1)
FIFTEEN-DAY DEADLINE

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I.

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Plaintiff DeWayne Thompson (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint,

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filed on April 12, 2013, is currently before the Court for screening.

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Screening Requirement and Standard

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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

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U.S.C. § 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, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at California State Prison, Sacramento. The events alleged in

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Plaintiff’s complaint occurred while he was housed at Corcoran State Prison. Plaintiff names

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Correctional Officer J. DePond in his individual capacity.

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Plaintiff alleges as follows: On November 7, 2011, inmates were serving dinner to other

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inmates’ cells while Defendant DePond was outside monitoring. When Plaintiff received his

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dinner tray, Defendant DePond noticed that Plaintiff had an extra hot link, so he asked for the

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tray back. After removing the hot links, Plaintiff provided Defendant DePond with the tray.

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Defendant DePond ordered Plaintiff to put the links on the tray and Plaintiff questioned

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Defendant DePond. Defendant DePond then took the tray and slammed and locked the porthole

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to Plaintiff’s cell. Observing Defendant DePond through a crack, Plaintiff saw Defendant

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DePond walk away and set the tray on the ground in a channel of drainage subjected to waste.

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Convinced that Defendant DePond was not going to provide him with a full meal,

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Plaintiff began hollering for full issue. Defendant DePond ignored Plaintiff and finished
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monitoring dinner for other inmates. Thereafter, Defendant DePond responded to Plaintiff’s

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hollering and retrieved the dinner tray from the ground. Defendant DePond came to Plaintiff’s

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cell. When Plaintiff demanded a sanitized tray, Defendant DePond told Plaintiff that he was

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only going to get the original tray. Defendant DePond set the tray down on the ground and

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opened the porthole. Being hungry, Plaintiff accepted the tray and devoured the food. Sometime

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after that, Plaintiff began feeling nauseous with a migraine. Assuming that Defendant DePond

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did something to the food or that the food was contaminated by being in an exposed drainage

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channel, Plaintiff immediately submitted a medical request for treatment. Plaintiff was treated

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by a Licensed Psych Tech and scheduled to see the physician the following day. The physician

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examined Plaintiff, diagnosed him with possible food poisoning and prescribed medication.

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According to exhibits submitted with the complaint, and despite a contrary declaration, Plaintiff

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reported to the physician that he had “no nausea, vomiting, or diarrhea . . . [and] no abdominal

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pain.” (ECF No. 1, p. 24.)

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Plaintiff asserts a claim for violation of the Eighth Amendment. He seeks declaratory
relief, along with compensatory and punitive damages.

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III.

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The Eighth Amendment’s prohibition against cruel and unusual punishment protects

Discussion

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prisoners not only from inhumane methods of punishment but also from inhumane conditions of

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confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v.

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Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347,

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101 S.Ct. 2392 (1981)) (quotation marks omitted). While conditions of confinement may be, and

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often are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of

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pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted).

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Thus, conditions which are devoid of legitimate penological purpose or contrary to evolving

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standards of decency that mark the progress of a maturing society violate the Eighth

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Amendment. Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer,

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536 U.S. 730, 737, 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346.

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Plaintiff alleges that Defendant DePond served him contaminated food and that he

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subsequently contracted food poisoning. However, allegations of a temporary lapse in sanitary

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food service and an isolated instance of food poisoning, where Plaintiff did not suffer significant

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injury, are not sufficient to state a cognizable Eighth Amendment claim. The Ninth Circuit has

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concluded that prisoners need only receive food that is adequate to maintain health; it need not

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be tasty or aesthetically pleasing. LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993).

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Isolated instances of food poisoning or temporary lapses in sanitary food service are not

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sufficiently serious to constitute an Eighth Amendment violation. See, e.g., Islam v. Jackson,

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782 F.Supp. 1111, 1114–15 (E.D. Va.1992) (serving one meal contaminated with maggots and

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meals under unsanitary conditions for thirteen days was not cruel and unusual punishment);

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Singh v. Franke, 2013 WL 6827917, *2 (D. Or. Dec. 20, 2013) (“isolated incident of food

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poisoning, particularly where the plaintiff did not suffer serious injury, is not sufficient to

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constitute an Eighth Amendment violation”); Morris v. Jennings, 2013 WL 5970444, *2 (E.D.

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Cal. Nov. 8, 2013) (prisoner’s allegations of unidentified foreign object, hair or sweat in food,

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along with stomach problems, failed to state a cognizable Eighth Amendment claim); Bennett v.

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Misner, 2004 WL 2091473, *20 (D. Or. Sept. 17, 2004) (“Neither isolated instances of food

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poisoning, temporary lapses in sanitary food service, nor service of meals contaminated with

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maggots are sufficiently serious to constitute an Eighth Amendment violation.”).

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IV.

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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

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1983. The Court does not find that leave to amend is warranted. The Court is mindful that leave

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to amend should be granted “unless it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)

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(internal quotation marks and citation omitted). In this instance, however, Plaintiff’s factual

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allegations are comprehensive and the underlying incident itself does not rise to the level of a

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constitutional violation. For Plaintiff to cure the deficiencies identified and state a cognizable

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claim, Plaintiff would have to allege facts that directly contradict those currently set forth in his

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complaint.

Conclusion and Recommendation

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, with
prejudice, for failure to state a claim under section 1983.
These Findings and Recommendations will be submitted to the United States District

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

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fifteen (15) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 24, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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