Dixie v. Castro et al

Filing 7

ORDER DISMISSING Action For Failure To State A Claim, signed by Magistrate Judge Barbara A. McAuliffe on 2/7/2015. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL DIXIE,

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Plaintiff,
v.
R. CASTRO, et al.,

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Defendants.

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) 1:14-cv-01255-BAM (PC)
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) ORDER DISMISSING ACTION FOR
) FAILURE TO STATE A CLAIM
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I.

Screening Requirement and Standard

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Plaintiff Earl Dixie (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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

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Magistrate Judge jurisdiction. (ECF No. 4.) Plaintiff’s complaint, filed on August 11, 2014, is

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currently before the Court for screening.

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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 the California Medical Facility in Vacaville, California.

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The events in the complaint are alleged to have occurred at Coalinga State Prison. Plaintiff

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names the following defendants: (1) Correctional Officer R. Castro; (2) Correctional Sergeant

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Valdez; and (3) Correctional Lieutenant S. Rousseau. Plaintiff sues defendants in their

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individual and official capacities.

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Plaintiff alleges that he is morbidly obese and suffers from diabetes. On November 16,

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2011, at about 7:30 a.m., Defendant Castro ordered Plaintiff to the lower “A” section shower.

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Plaintiff informed Defendant Castro that he required a medically authorized walking cane, leg

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brace and compression socks. Defendant Castro denied Plaintiff’s request for his authorized

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medical appliances.

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Plaintiff handed Defendant Castro a copy of a comprehensive accommodation chrono,
CDC 7410. After reading the CDC 7410, Defendant Castro handed the document back to
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Plaintiff and denied Plaintiff’s request to secure his cane, leg brace and compression socks.

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Plaintiff again informed Defendant Castro of his need for compression socks and glucose

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medical issued tube. Defendant Castro denied Plaintiff’s request for glucose tube and

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compression socks.

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Defendant Castro and the shift sergeant forced Plaintiff to stand in the lower “A” section

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shower without access to a toilet facility for a period exceeding 4-5 hours. Two hours after being

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placed in the lower “A” section shower, Plaintiff informed the shift sergeant that he could not

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withhold his bowels and needed to use the toilet. Plaintiff’s request was denied. Plaintiff could

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not restrain himself and discharged feces into his undershorts. Defendant Castro denied Plaintiff

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access to a towel and soap to clean the bowel discharge off of his body and clothing. Defendant

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Castro forced Plaintiff to remain with discharged feces in his shorts and running down his legs

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for a period exceeding 5 hours. Plaintiff contends that he suffered severe leg and back pain for

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more than 2 days because of the events. Plaintiff also contends that he concealed verbal abuse

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that Defendant Castro directed to him.

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Plaintiff asserts claims for discrimination, violation of the Americans with Disabilities

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Act and violation of his Eighth Amendment rights to be free from cruel and unusual punishment

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and deliberate indifference.

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III.

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A. Supervisory Liability

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Plaintiff appears to bring suit against Defendants Valdez and Rousseau based on their

Discussion

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roles as supervisors. However, supervisory personnel may not be held liable under section 1983

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for the actions of subordinate employees based on respondeat superior or vicarious liability.

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Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of

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Corr. and Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d

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896, 915–16 (9th Cir. 2012) (en banc). “A supervisor may be liable only if (1) he or she is

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personally involved in the constitutional deprivation, or (2) there is a sufficient causal connection

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between the supervisor's wrongful conduct and the constitutional violation.” Crowley, 734 F.3d

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at 977 (internal quotation marks omitted); accord Lemire, 726 F.3d at 1074–75; Lacey, 693 F.3d
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at 915–16. “Under the latter theory, supervisory liability exists even without overt personal

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participation in the offensive act if supervisory officials implement a policy so deficient that the

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policy itself is a repudiation of constitutional rights and is the moving force of a constitutional

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violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989))

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(internal quotation marks omitted).

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Plaintiff has not alleged that Defendants Valdez and Rousseau were involved in the

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offensive acts or they initiated a deficient policy. Given the nature of his claims, it does not

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appear that Plaintiff can cure this deficiency by amendment.

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B. Eighth Amendment - Cruel and Unusual Punishment

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

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prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041,

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1045 (9th Cir. 2006). Prison officials therefore have a “duty to ensure that prisoners are provided

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adequate shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis,

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217 F.3d 726, 731 (9th Cir.2000) (citations omitted).

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In order to establish a violation of this duty, a prisoner must show that he was subjected

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to an objectively serious deprivation that amounts to a denial of “the minimal civilized measure

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of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811

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(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)).

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A prisoner must also show that prison officials acted with sufficiently culpable states of mind in

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failing to satisfy their duties. Farmer, 511 U.S. at 834. Prison officials must have acted with

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deliberate indifference. Id. A prison official is liable under the Eighth Amendment only if he

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“knows of and disregards an excessive risk to inmate health or safety; the official must both be

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aware of facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw the inference.” Id. at 837.

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Plaintiff alleges that he was denied a toilet for 4-5 hours and he was forced to remain

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with discharged feces in his shorts and running down his legs for a period exceeding 5 hours.

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Plaintiff has alleged harsh conditions, but not a sufficiently serious deprivation to state an Eighth

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Amendment claim. See Hartsfield v. Vidor, 199 F.3d 305, 309-10 (6th Cir. 1999) (finding no
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constitutional violation where prisoner was not allowed to use toilet, was forced to sit in his own

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urine and was not provided with fresh drinking water for two 8-hour periods; noting court had

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previously held that deprivations of fresh water and access to a toilet for 20 hours was harsh, but

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not cruel and unusual punishment); see also Saenz v. Reeves, 2012 WL 4049975, * 14-15 (E.D.

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Cal. Sept. 13, 2012) (denial of toilet access for five and one half hours on one occasion and four

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and one half hours on separate occasion not sufficiently serious deprivation); Cf. Johnson v.

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Lewis, 217 F.3d 726, 733 (9th Cir.2000) (“[W]e have no doubt that toilets can be unavailable for

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some period time without violating the Eighth Amendment ....”) Further, Plaintiff has not

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alleged any resultant harm from the inability to use the toilet or clean himself for a period of

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time. Plaintiff’s allegations of harm relate to his standing without the benefit of his medical

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appliances. These deficiencies cannot be cured by amendment.

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C. Eighth Amendment - Deliberate Indifference to Serious Medical Needs

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006 ) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50

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L.Ed.2d 251 (1976)). The two part test for deliberate indifference requires the plaintiff to show

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(1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner's condition could

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result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2)

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“the defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096;

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1018 (9th Cir.

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2010). “Deliberate indifference is a high legal standard.” Simmons, 609 F.3d at 1019; Toguchi v.

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Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from

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which he could make an inference that “a substantial risk of serious harm exists” and he must

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make the inference. Farmer, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994).

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Plaintiff alleges a one-time occurrence in which Defendant Castro denied him a
medically authorized walking cane, leg brace, compression socks and glucose tube, forced him to
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stand for approximately 7 to 10 hours and prevented him from cleaning himself of feces for

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approximately 5 hours. Plaintiff has alleged an isolated occurrence of neglect, which does not

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constitute deliberate indifference to serious medical needs. See Jett, 439 F.3d at 1096; see also

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Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (“In determining deliberate

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indifference, we scrutinize the particular facts and look for substantial indifference in the

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individual case, indicating more than mere negligence or isolated occurrences of neglect.”).

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Indeed, “[i]f the harm is an isolated exception to the defendant’s overall treatment of the prisoner

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it ordinarily militates against a finding of deliberate indifference.” Jett, 439 F.3d at 1096. This

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deficiency cannot be cured by amendment.

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D. Americans with Disabilities Act

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Plaintiff appears to allege discrimination in violation of the Americans with Disabilities

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Act (“ADA”) resulting from the one-time denial of his medically-authorized walking cane, leg

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brace, and compression socks. Title II of the ADA provides that “no qualified individual with a

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disability shall, by reason of such disability, be excluded from participation in or be denied the

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benefits of the services, programs, or activities of a public entity, or be subject to discrimination

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by such entity.” 42 U.S.C. § 12132. Title II applies to the services, programs, and activities

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provided for inmates by jails and prisons. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206,

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208-13, 118 S.Ct. 1952 (1998); Simmons, 609 F.3d at 1021-22; Pierce v. Cnty. of Orange, 526

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F.3d 1190, 1214-15 (9th Cir. 2008). “To establish a violation of Title II of the ADA, a plaintiff

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must show that (1) [he] is a qualified individual with a disability; (2) [he] was excluded from

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participation in or otherwise discriminated against with regard to a public entity’s services,

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programs, or activities; and (3) such exclusion or discrimination was by reason of [his]

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disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002); accord Simmons, 609 F.3d

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at 1021; McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).

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Plaintiff’s complaint fails to support a claim that he was excluded from or discriminated

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against with regard to services, programs, or activities at Corcoran State Prison by reason of his

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disability. To the contrary, the events underlying this action relate to the inadequate treatment of

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Plaintiff’s medical condition and the handling of Plaintiff’s medical care as it relates to his
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hygiene, obesity and diabetes, which do not provide a basis upon which to impose liability under

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the ADA. Simmons, 609 F.3d at 1022 (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.

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1996)). This defect cannot be cured by amendment.

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E. Verbal Harassment

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To the extent Plaintiff alleges that Defendant Castro made threatening statements, such

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allegations are not sufficient to state a cognizable section 1983 claim. Mere verbal harassment or

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abuse, including the use of racial epithets, does not violate the Constitution and, thus, does not

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give rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136,

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139 (9th Cir. 1987). Threats do not rise to the level of a constitutional violation. Gaut v. Sunn,

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810 F.2d 923, 925 (9th Cir. 1987).

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IV.

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For the above reasons, Plaintiff’s complaint fails state a claim upon which relief may be

Conclusion and Order

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granted. The above deficiencies cannot be cured by amendment and further leave to amend is

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not warranted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Accordingly,

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Plaintiff’s complaint is HEREBY DISMISSED for failure to state a cognizable claim.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

February 7, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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