Harrison v. Diaz et al

Filing 32

FINDINGS and RECOMMENDATIONS that this 26 Action be Dismissed for Failure to State a Claim upon which Relief Could be Granted and that this Action Count as a Strike signed by Magistrate Judge Stanley A. Boone on 02/08/2016. Referred to Judge O'Neill; Objections to F&R due by 3/14/2016.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 MICHAEL D. HARRISON, Case No. 1:13-cv-01335-LJO-SAB-PC Plaintiff, 15 16 v. 17 FINDINGS AND RECOMMENDATION THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED AND THAT THIS ACTION COUNT AS A STRIKE UNDER 28 U.S.C. §1915(g). R. DIAZ, et al., 18 Defendants. OBJECTIONS DUE IN THIRTY DAYS 19 20 Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. 21 § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 22 636(1)(B) and Local Rule 302. Pending before the Court is the August 18, 2014, first amended 23 complaint, filed in response to the July 17, 2014, order dismissing the original complaint and 24 granting Plaintiff leave to file an amended complaint. (ECF No. 23.) 25 I. 26 PROCEDURAL HISTORY 27 Plaintiff is currently housed at Atascadero State Hospital. Plaintiff filed this action while 28 he was an inmate in the custody of the California Department of Corrections and Rehabilitation 1 1 (CDCR) at Corcoran State Prison. Plaintiff claimed that he was subjected to conditions of 2 confinement so inadequate that they violated the Eighth Amendment prohibition on cruel and 3 unusual punishment. Plaintiff named as Defendants Acting Wardens R. Diaz and K. Allison, and 4 Sergeant Black. 5 Plaintiff alleged that he was housed in Corcoran‟s Receiving and Release unit from 6 September 26, 2011, to October 5, 2011. Due to a lack of bed space at Corcoran, Plaintiff spent 7 the entire time in holding cells. Plaintiff alleged that the holding cells were near a generator that 8 “continuously stopped and started subjecting me to an inordinate amount of loud noise from the 9 generator and people coming in and out all through the day and the night damaged my nervous 10 condition of myoclonus seizures and exasperated my nervous condition to where I was a nervous 11 wreck.” (Compl. ¶ 9.) 12 (Id.) Plaintiff alleged that he was denied his medication and “left to suffer.” Plaintiff alleged that his Eighth Amendment rights were violated because he was not 13 allowed to be housed in general population. 14 In the order dismissing the original complaint, the Court analyzed Plaintiff‟s conditions 15 of confinement, medical care and supervisory liability claims. The Court provided Plaintiff with 16 the appropriate legal standards, and advised Plaintiff that the complaint failed to state a claim 17 upon which relief could be granted. The gravamen of Plaintiff‟s complaint was that he was 18 housed in a noisy holding cell as opposed to being housed on a regular yard as he requested. 19 Plaintiff was advised that the fact that officials knew of his request and denied it did not subject 20 them to liability. Plaintiff was told that he must allege facts indicating that officials were aware 21 of a particular condition that violated the Eighth Amendment and acted with deliberate 22 indifference to that condition. Plaintiff was specifically advised that an allegation that he was 23 temporarily housed in a noisy cell did not, of itself, state a claim for relief. 24 Regarding Plaintiff‟s medical care claim, Plaintiff was advised that a generalized 25 allegation that he did not get his medication was insufficient to state a claim for relief under the 26 Eighth Amendment. Plaintiff failed to allege facts indicating that any of the named Defendants 27 knew of and disregarded an objectively serious medical condition of Plaintiff‟s. Plaintiff also 28 failed to allege any facts indicating personal participation in the deprivation of Plaintiff‟s rights 2 1 by any of the supervisory Defendants. 2 II. 3 ANALYSIS 4 In the August 18, 2014, first amended complaint, Plaintiff names the same Defendants: 5 Acting Warden R. Diaz; Acting Warden K. Allison; Sergeant V. Black. Plaintiff re-states the 6 allegations of the original complaint. Plaintiff alleges that he was housed in Receiving and 7 Release from September 26, 2011, to October 5, 2011, and “was forced by the defendants to stay 8 in the holding cells the entire time subjected deliberately to loud noise which damaged my 9 nervous condition of multifocal myoclonus seizures and exasperated my nervous condition to 10 where I was a nervous wreck from all the repeated multifocal myoclonus seizures which all the 11 defendants left me in the cell deliberately to suffer & gave me nothing but pain & suffering.” 12 (Am. Compl. ¶ 8.) Plaintiff alleges that defendants knew there was a loud generator that would 13 go on and off, and would “wake you up and keep you awake for days.” (Id.) 14 Plaintiff alleges that Defendants Diaz and Allison had a policy of housing prisoners in 15 Receiving and Release, knowing that Defendant Black “will take the prisoner off all medications 16 and subject them to loud noise.” (Id.) Plaintiff asserts conclusory allegations that Defendants 17 knew of the conditions that Plaintiff was subjected to, and knew of the damage that it caused 18 Plaintiff. 19 A. Conditions of Confinement 20 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 21 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 22 452 U.S. 337, 347 (1981). A prisoner‟s claim does not rise to the level of an Eighth Amendment 23 violation unless (1) “the prison official deprived the prisoner of the „minimal civilized measure 24 of life‟s necessities,‟” and (2) “the prison official „acted with deliberate indifference in doing 25 so.‟” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)(quoting Hallett v. Morgan, 296 26 F.3d 732, 744 (9th Cir. 2002)(citation omitted)). In order to find a prison official liable under the 27 Eighth Amendment for denying humane conditions of confinement within a prison, the official 28 must know “that inmates face a substantial risk of serious harm and disregarded that risk by 3 1 failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). 2 “Public conceptions of decency inherent in the Eighth Amendment require that inmates be 3 housed in an environment that, if not quiet, is at least reasonably free of excess noise.” Keenan 4 v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996)(amended by 135 F.3d 1318 (9th Cir. 1998). 5 Plaintiff‟s first amended complaint alleges, at most, that Plaintiff spent eleven days in 6 receiving and release, where a loud generator would intermittently run. Such an allegation, with 7 nothing more, fails to state a claim for relief. In order to hold Defendants liable, Plaintiff must 8 allege some facts indicating an objectively serious condition that Defendants disregarded. That 9 Plaintiff was unusually susceptible to loud noises does not subject Defendants to liability under 10 the Eighth Amendment. Plaintiff does not allege facts indicating that Sergeant Black knew of a 11 diagnosed medical condition of his, or that Plaintiff had any medical authorization or orders that 12 prohibited him from being exposed to noisy conditions. That Plaintiff, in his view, did not 13 belong in Receiving and Release and should be housed in general population does not subject 14 Sergeant Black to liability for his refusal to grant Plaintiff‟s request. Plaintiff must allege facts 15 from which “an inference could be drawn that a substantial risk of serious harm exists, and he 16 [Sergeant Black] must draw the inference.” Farmer, 511 U.S. at 837. Plaintiff has failed to do 17 so here. Plaintiff‟s allegations indicate, at most, that Sergeant Black knew that Plaintiff, in his 18 opinion, did not belong in Receiving and Release, and was susceptible to psychological harm 19 from loud noises. Plaintiff has not alleged facts indicating that Sergeant Black was aware of an 20 objectively serious harm to Plaintiff that he disregarded. Plaintiff‟s Eighth Amendment 21 conditions of confinement claim should therefore be dismissed. 22 B. Medical Care 23 A prisoner‟s claim of inadequate medical care does not constitute cruel and unusual 24 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 25 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 26 2006)(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate 27 indifference requires Plaintiff to show (1) “a „serious medical need‟ by demonstrating that failure 28 to treat a prisoner‟s condition could result in further significant injury or the „unnecessary and 4 1 wanton infliction of pain,‟” and (2) “the defendant‟s response to the need was deliberately 2 indifferent.” Jett, 439 F.3d at 1096. A defendant does not act in a deliberately indifferent 3 manner unless the defendant “knows of and disregards an excessive risk to inmate health or 4 safety.” Farmer, 511 U.S. at 837. “Deliberate indifference is a high legal standard,” Simmons v. 5 Navajo County Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 6 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to respond to a 7 prisoner‟s pain or possible medical need” and the indifference caused harm. Jett, 439 F.3d at 8 1096. 9 As with Plaintiff‟s conditions of confinement claim, he fails to allege facts indicating that 10 any of the Defendants knew of an objectively serious medical condition of Plaintiff‟s, and acted 11 with deliberate indifference to that condition. That Plaintiff suffered psychological trauma 12 because of the generator and staff coming and going, does not subject Sergeant Black to liability. 13 Plaintiff has not alleged any facts suggesting that Sergeant Black knew of a condition diagnosed 14 by a medical professional that would cause Plaintiff psychological injury by being housed in 15 Receiving and Release. Plaintiff does not allege that he had a medical authorization that 16 Sergeant Black knew of that authorized him to be housed in a unit without excessive noise. That 17 Plaintiff was, in his view, susceptible to psychological harm from excess noise does not, of itself, 18 state a claim for relief. Plaintiff must allege facts indicating that Sergeant Black was aware of an 19 objectively serious medical condition of Plaintiff‟s, and disregarded that condition. Plaintiff has 20 failed to do so. Plaintiff‟s medical care claim should therefore be dismissed. 21 C. Supervisory Liability 22 In the order dismissing the original complaint, Plaintiff was advised that government 23 officials may not be held liable for the actions of their subordinates under a theory of respondeat 24 superior. Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009). Since a government official cannot be 25 held liable under a theory of vicarious liability for section 1983 actions, Plaintiff must plead that 26 the official has violated the Constitution through his own individual actions. Id. at 673. In other 27 words, to state claim for relief under section 1983, Plaintiff must link Defendants Allison and 28 Diaz with some affirmative act or omission that demonstrates a violation of Plaintiff‟s federal 5 1 rights. Plaintiff alleges generally that they had a policy of housing inmates in Receiving and 2 Release in a noisy area. 3 The Court finds these allegations to be vague. Plaintiff must allege facts indicating that 4 Defendants personally participated in the deprivation at issue. A vague allegation that 5 Defendants had a policy of housing inmates in Receiving and Release where it is noisy is 6 insufficient to state a claim for relief. Plaintiff does not allege any facts suggesting that the 7 Defendants were responsible for any specific policy or practice that subjected Plaintiff to a 8 serious risk of harm. Defendants Allison and Diaz should therefore be dismissed. 9 III. 10 CONCLUSION AND RECOMMENDATION 11 For the reasons noted, Plaintiff‟s August 18, 2014, first amended complaint fails to state a 12 claim for relief. Plaintiff was previously notified of the applicable legal standards and the 13 deficiencies in his pleading, and despite guidance from the Court, Plaintiff‟s first amended 14 complaint is largely identical to the original complaint. Based upon the allegations in Plaintiff‟s 15 original and first amended complaint, the Court is persuaded that Plaintiff is unable to allege any 16 additional facts that would support a claim for unconstitutional confinement or deliberate 17 indifference to serious medical needs, and further amendment would be futile. See Hartmann v. 18 CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may not deny leave to amend 19 when amendment would be futile.”) Based on the nature of the deficiencies at issue, the Court 20 finds that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. 21 Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987). 22 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure 23 to state a claim upon which relief could be granted, and this action count as a strike pursuant to 24 28 U.S.C. § 1915(g). 25 These findings and recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provision of Title 28 U.S.C. §636 (b)(1)(B). Within 27 thirty (30) days after being served with these Finding and Recommendations, the parties may 28 file written objections with the Court. The document should be captioned “Objections to 6 1 Findings and Recommendations.” The parties are advised that failure to file objections within 2 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.2d 3 F.3d 834, 838-39 (9th Cir. 2014)(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6 Dated: February 8, 2016 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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