Jones v. Arnette, et al.

Filing 12

ORDER DISMISSING COMPLAINT for Failure to State a Claim, WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 8/20/2017. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY JONES, 12 Plaintiff, 13 14 vs. ARNETTE, et al., 15 Defendants. 1:16-cv-01212-GSA-PC SCREENING ORDER ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (ECF No. 1.) THIRTY-DAY DEADLINE FOR PLAINTIFF TO FILE AMENDED COMPLAINT 16 17 ORDER FOR CLERK TO SEND PLAINTIFF A CIVIL COMPLAINT FORM 18 19 20 21 22 I. BACKGROUND 23 Jeremy Jones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 24 with this civil rights action pursuant to 42 U.S.C. § 1983. On August 16, 2016, Plaintiff filed 25 the Complaint commencing this action. (ECF No. 1.) 26 On August 31, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action 27 pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 6.) 28 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 1 1 California, the undersigned shall conduct any and all proceedings in the case until such time as 2 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). Plaintiff’s Complaint is now before the court for screening. 3 4 II. SCREENING REQUIREMENT 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 7 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 8 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 9 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 10 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 11 paid, the court shall dismiss the case at any time if the court determines that the action or 12 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint is required to contain “a short and plain statement of the claim showing 14 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 15 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are 18 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 19 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 20 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 21 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 22 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as 23 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting 24 this plausibility standard. Id. 25 III. SUMMARY OF COMPLAINT 26 Plaintiff is presently incarcerated at California State Prison-Los Angeles County in 27 Lancaster, California. The events at issue in the Complaint allegedly occurred at Corcoran 28 State Prison (CSP) in Corcoran, California, when Plaintiff was incarcerated there in the custody 2 1 of the California Department of Corrections and Rehabilitation. Plaintiff names as defendants 2 Correctional Officer (C/O) Arnette, C/O Flores, C/O Lopez, C/O Zamora, C/O Vasquez, 3 Sergeant Gonzalez, Lieutenant Keener, and Dr. Kim, who were employed at CSP during the 4 relevant time period. 5 6 Plaintiff’s allegations follow. Plaintiff suffers from a lower back condition causing chronic nerve irritation in both legs. Plaintiff ambulates using a wheelchair and walker. 7 On August 11, 2012, when Plaintiff was visiting with his parents at CSP, there was a 8 “pop” and his usual excruciating pain intensified greatly in his back and legs. This was during 9 Plaintiff’s first visit with his parents after a 2 1/2 year SHU term. Plaintiff’s mother ran to alert 10 the staff. The visit was terminated and medical staff transported Plaintiff to medical via a 11 wheelchair. At medical, Plaintiff was only given his noon medications and told to go back to 12 his cell. Plaintiff asked for a bed and to be seen by a doctor or nurse, but his requests were 13 denied and he was forcefully removed from the clinic, wheeled back to his cell, and nearly 14 dumped on the floor by defendant Flores. 15 The next day, on Plaintiff’s birthday, his parents returned to check on him. Defendant 16 Arnette cut up Plaintiff’s I.D. card and threw it out the window of the program office in order 17 to deny Plaintiff access to his visit. Plaintiff’s inmate caregiver ran back to retrieve Plaintiff’s 18 bedcard so he could attend the visit. 19 While Plaintiff was waiting, defendants Gonzales, Flores, Arnette, Lopez, and Zamora 20 surrounded Plaintiff and made threats, hurled insults, used profane language, and made fun of 21 Plaintiff’s disability, knowing he could not walk. They laughed and told him that if he couldn’t 22 walk, he couldn’t attend the visit. Another officer had compassion and radioed for Plaintiff’s 23 floor staff to retrieve his walker from his cell. 24 While the caregiver was retrieving his walker, Plaintiff told the officers that he had not 25 kissed his parents’ faces in more than 2 1/2 years, and if it took him another 2 1/2 years, he was 26 going to kiss his mother’s face. Defendants Lopez and Zamora then told Plaintiff that his 27 bedcard was not valid identification. With defendant Gonzales’ support, defendants Lopez and 28 Zamora discriminated against Plaintiff, refusing to allow him to use the basic form of 3 1 identification used in the towers, building offices, and program offices when an I.D. card is 2 lost, and until a new I.D. card is made. The officers denied Plaintiff access to his family visit 3 because he couldn’t walk, violating the ADA. 4 Plaintiff was immediately and abruptly moved out of the only building medically 5 equipped for Plaintiff to shower, by defendant Vasquez. The Building 5 tower staff somehow 6 got the move stopped when it was authorized by medical. This was brought to the attention of 7 defendants Keener and Gonzalez and they spoke to defendant Vasquez. Due to Plaintiff’s 8 medical emergency in the visiting room, he was discriminated against again and not 9 accommodated, leaving him unable to bathe. 10 Plaintiff had to endure cancelling his visit, only to be denied treatment in an emergency 11 situation by Dr. Kim, the on-call doctor, leaving him in excruciating pain without further care. 12 Defendants used “Greenwall tactics,” discrimination, and other ADA violations. Plaintiff 13 suffered mental anguish not knowing if this was his last opportunity to see his father alive. His 14 father was diagnosed with a brain tumor shortly after he was deprived of seeing his son, lost 15 some eyesight, and was diagnosed with Parkinson’s disease, dementia, and Alzheimer’s 16 disease. These officers, under the direct supervision of Sergeant Gonzalez, cost Plaintiff his 17 last opportunity to have a meaningful visit with his father before his health deteriorated. 18 Plaintiff is in the mental health program and deals with anguish daily. 19 20 Plaintiff requests monetary damages. IV. PLAINTIFF’S CLAIMS 21 The Civil Rights Act under which this action was filed provides: 22 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 23 24 25 26 42 U.S.C. § 1983. 27 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 28 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 4 1 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman 2 v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 3 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 4 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of 5 a state law amounts to the deprivation of a state-created interest that reaches beyond that 6 guaranteed by the federal Constitution, Section 1983 offers no redress.” Id. 7 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 8 color of state law and (2) the defendant deprived him or her of rights secured by the 9 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 10 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 11 “under color of state law”). A person deprives another of a constitutional right, “within the 12 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 13 omits to perform an act which he is legally required to do that causes the deprivation of which 14 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 15 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 16 causal connection may be established when an official sets in motion a ‘series of acts by others 17 which the actor knows or reasonably should know would cause others to inflict’ constitutional 18 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 19 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 20 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 21 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 22 A. 23 Plaintiff seeks to bring a claim under the Title II of the Americans with Disabilities Act 24 (ADA), 42 U.S.C. § 12132. Title II of the ADA “prohibit[s] discrimination on the basis of 25 disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). “To establish a violation 26 of Title II of the ADA, a plaintiff must show that (1) [he] is a qualified individual with a 27 disability; (2) [he] was excluded from participation in or otherwise discriminated against with Americans With Disabilities Act (ADA) 28 5 1 regard to a public entity’s services, programs, or activities; and (3) such exclusion or 2 discrimination was by reason of [his] disability.” Lovell, 303 F.3d at 1052. 3 Regarding Plaintiff’s treatment, or lack of treatment, concerning his medical condition, 4 does not provide a basis upon which to impose liability under the ADA. Burger v. Bloomberg, 5 418 F.3d 882, 882 (8th Cir. 2005) (medical treatment decisions not a basis for RA or ADA 6 claims); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (medical 7 decisions not ordinarily within scope of ADA or RA); Bryant v. Madigan, 84 F.3d 246, 249 8 (7th Cir. 1996) (“The ADA does not create a remedy for medical malpractice.”). 9 Further, Plaintiff may name the appropriate entity or state officials in their official 10 capacities, but he may not name individual prison employees in their personal capacities. 11 Shaughnessy v. Hawaii, No. 09-00569 JMS/BMK, 2010 WL 2573355, at *8 (D.Hawai=i Jun. 12 24, 2010); Anaya v. Campbell, No. CIV S-07-0029 GEB GGH P, 2009 WL 3763798, at *5-6 13 (E.D.Cal. Nov. 9, 2009); Roundtree v. Adams, No. 1:01-CV-06502 OWW LJO, 2005 WL 14 3284405, at *8 (E.D.Cal. Dec. 1, 2005). Individual liability is precluded under the ADA. 15 Shaughnessy, 2010 WL 2573355, at *8; Anaya, 2009 WL 3763798, at *5-6; Roundtree, 2005 16 WL 3284405, at *5. 17 Therefore, Plaintiff fails to state a claim under the ADA. 18 B. 19 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 20 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 21 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part 22 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 23 demonstrating that ‘failure to treat a prisoner=s condition could result in further significant 24 injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant=s response to 25 the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 26 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 27 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate 28 indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible Eighth Amendment Medical Claim 6 1 medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). 2 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally 3 interfere with medical treatment, or it may be shown by the way in which prison physicians 4 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, 5 the delay must have led to further harm in order for the prisoner to make a claim of deliberate 6 indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of 7 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 8 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 9 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 10 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ 11 but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 12 U.S. 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, 13 then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. 14 (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A 15 showing of medical malpractice or negligence is insufficient to establish a constitutional 16 deprivation under the Eighth Amendment.” 17 insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 18 1332, 1334 (9th Cir. 1990)). Id. at 1060. “[E]ven gross negligence is 19 “A difference of opinion between a prisoner-patient and prison medical authorities 20 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 21 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the 22 course of treatment the doctors chose was medically unacceptable under the circumstances . . . 23 and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff’s 24 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 25 Plaintiff’s alleges that defendant Dr. Kim refused to give Plaintiff medical treatment in 26 an emergency situation when Plaintiff was suffering from back and leg pain. Plaintiff has 27 demonstrated that he has serious medical needs. However, Plaintiff has not alleged facts from 28 which the court can infer that any of the Defendants were aware of a substantial risk of serious 7 1 harm to Plaintiff’s health and deliberately and unreasonably disregarded the risk, causing him 2 harm. 3 discharged. The fact that Plaintiff was not placed in a bed or seen by a doctor or nurse, without 4 more, does not show deliberate indifference. 5 Amendment medical claim against any of the Defendants. Plaintiff was taken to medical, evaluated, and given medication before he was Therefore, Plaintiff fails to state an Eighth 6 7 C. Discrimination – Fourteenth Amendment Equal Protection Clause and 42 U.S.C. § 1981 8 Plaintiff claims that he was discriminated against by defendant Vasquez when Vasquez 9 moved him to another part of the prison which did not have accommodations for Plaintiff to 10 take a shower, and by defendants Lopez and Zamora when they told Plaintiff that his bedcard 11 was not proper identification for Plaintiff to attend a visit with his parents at the prison. 12 Plaintiff claims that his rights under the Fourteenth Amendment and 42 U.S.C. § 1981 were 13 violated. 14 The Equal Protection Clause requires that persons who are similarly situated be treated 15 alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249 16 (1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may 17 be established by showing that Defendants intentionally discriminated against Plaintiff based 18 on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of 19 Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th 20 Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly 21 situated individuals were intentionally treated differently without a rational relationship to a 22 legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128 23 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 24 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC 25 v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 26 Section 1981 states, in relevant part: “All persons within the jurisdiction of the United 27 States shall have the same right . . . to make and enforce contracts, to sue, be parties, give 28 evidence, and to the full and equal benefit of all laws and proceedings for the security of 8 1 persons and property as is enjoyed by white citizens. . . .” 42 U.S.C. § 1981(a). The United 2 States Supreme Court explained in Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) 3 that “[a]mong the many statutes that combat racial discrimination, § 1981. . . has a specific 4 function: It protects the equal right of ‘[a]ll persons within the jurisdiction of the United States’ 5 to ‘make and enforce contracts’ without respect to race.” Id. at 474. “Any claim brought under 6 § 1981, therefore, must initially identify an impaired contractual relationship under which the 7 plaintiff has rights.” Id. at 476 (internal citation omitted). The Ninth Circuit has held that “a 8 prima facie section 1981 case, like a prima facie disparate treatment case under Title VII, 9 requires proof of intentional discrimination.” Gay v. Waiters' & Dairy Lunchmen's Union, 10 Local No. 30, 694 F.2d 531, 538 (9th Cir. 1982). Thus, a section 1981 plaintiff, like a Title VII 11 plaintiff, must allege facts that plausibly indicate defendant was “motivated by a discriminatory 12 animus.” Id. 13 Plaintiff claims it was discrimination when he was housed in a part of the prison 14 without shower accommodations, and when he was not allowed to attend a family visit because 15 he did not have proper I.D. However, Plaintiff has not alleged any facts demonstrating that he 16 was intentionally discriminated against on the basis of his membership in a protected class, or 17 that he was intentionally treated differently than other similarly situated inmates without a 18 rational relationship to a legitimate state purpose. Nor has Plaintiff identified an impaired 19 contractual relationship under which Plaintiff has rights, as required under § 1981. Therefore, 20 Plaintiff fails to state a claim for relief for violation of his right to equal protection or his rights 21 under 42 U.S.C. § 1981. 22 D. 23 Plaintiff alleges that some of the defendants surrounded him, harassed him, and 24 threatened him. Mere verbal harassment or abuse alone is not sufficient to state a constitutional 25 deprivation under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 26 1987); accord Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). Therefore, Plaintiff does 27 not state a § 1983 claim against any of the Defendants for harassment or threats. 28 /// Harassment and Threats 9 1 E. 2 Plaintiff seeks to bring a claim under 42 U.S.C. § 1985. Section 1985 proscribes 3 conspiracies to interfere with an individual’s civil rights. To state a cause of action under 4 section 1985(3), plaintiff must allege: (1) a conspiracy, (2) to deprive any person or class of 5 persons of the equal protection of the laws, (3) an act by one of the conspirators in furtherance 6 of the conspiracy, and (4) a personal injury, property damage or deprivation of any right or 7 privilege of a citizen of the United States. Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 8 1980); Giffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Section 1985 applies only where 9 there is a racial or other class-based discriminatory animus behind the conspirators’ actions. 10 Conspiracy -- § 1985 Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). 11 In interpreting these standards, the Ninth Circuit has held that a claim under § 1985 12 must allege specific facts to support the allegation that defendants conspired together. Karim- 13 Panahi, 839 F.2d at 626. 14 insufficient to state a claim under 42 U.S.C. ' 1985. Id.; Sanchez v. City of Santa Ana, 936 15 F.2d 1027, 1039 (9th Cir. 1991). A mere allegation of conspiracy without factual specificity is 16 Plaintiff does not allege facts to support the allegation that any of the Defendants 17 entered into a conspiracy. Therefore, Plaintiff fails to state a claim for conspiracy for which 18 relief can be granted under § 1985 against any of the Defendants. Damages for Emotional Distress – Physical Injury Requirement 19 F. 20 Plaintiff alleges that he deals with mental anguish daily. Plaintiff is advised that the 21 Prison Litigation Reform Act provides that “[n]o Federal civil action may be brought by a 22 prisoner confined in jail, prison, or other correctional facility, for mental and emotional injury 23 suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). 24 The physical injury “need not be significant but must be more than de minimis.” Oliver v. 25 Keller, 289 F.3d 623, 627 (9th Cir. 2002) ) (back and leg pain and canker sore de minimis); see 26 also Pierce v. County of Orange, 526 F.3d 1190, 1211-13 (9th Cir. 2008) (bladder infections 27 and bed sores, which pose significant pain and health risks to paraplegics such as the plaintiff, 28 were not de minimis). The physical injury requirement applies only to claims for mental or 10 1 emotional injuries and does not bar claims for compensatory, nominal, or punitive damages. 2 Id. at 630. Therefore, Plaintiff is not entitled to monetary damages in this case for emotional 3 distress unless he also shows a physical injury. 4 G. 5 The Eighth Amendment’s prohibition against cruel and unusual punishment protects 6 prisoners not only from inhumane methods of punishment but also from inhumane conditions 7 of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. 8 Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 9 347, 101 S.Ct. 2392 (1981)) (quotation marks omitted). While conditions of confinement may 10 be, and often are, restrictive and harsh, they must not involve the wanton and unnecessary 11 infliction of pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks 12 omitted). Thus, conditions which are devoid of legitimate penological purpose or contrary to 13 evolving standards of decency that mark the progress of a maturing society violate the Eighth 14 Amendment. Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. 15 Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346. Prison officials 16 have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, 17 medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) 18 (quotation marks and citations omitted), but not every injury that a prisoner sustains while in 19 prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks 20 omitted). Conditions of Confinement 21 To maintain an Eighth Amendment claim, a prisoner must show that prison officials 22 were deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer, 23 511 U.S. at 847; Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 24 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; 25 Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference standard 26 involves an objective and a subjective prong. 27 objective terms, “sufficiently serious . . . .” Farmer, 511 U.S. at 834. “[R]outine discomfort 28 inherent in the prison setting” does not rise to the level of a constitutional violation. Johnson, 11 First, the alleged deprivation must be, in 1 217 F.3d at 731. Rather, extreme deprivations are required to make out a conditions of 2 confinement claim, and only those deprivations denying the minimal civilized measure of life’s 3 necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Farmer, 4 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). 5 circumstances, nature, and duration of the deprivations are critical in determining whether the 6 conditions complained of are grave enough to form the basis of a viable Eighth Amendment 7 claim. Johnson, 217 F.3d at 731. Second, the prison official must “know[] of and disregard[] 8 an excessive risk to inmate health or safety . . . .” Farmer, 511 U.S. at 837. Thus, a prison 9 official may be held liable under the Eighth Amendment for denying humane conditions of 10 confinement only if he knows that inmates face a substantial risk of harm and disregards that 11 risk by failing to take reasonable measures to abate it. Id. at 837-45. Mere negligence on the 12 part of the prison official is not sufficient to establish liability, but rather, the official’s conduct 13 must have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128. The 14 The Eighth Amendment guarantees sanitation, Hoptowit v. Ray, 682 F.2d 1237, 1246 15 (9th Cir. 1982), including personal hygiene supplies such as soap and toothpaste. Keenan v. 16 Hall, 83 F.3d 1083, 1091 (9th Cir. 1996). However, the Constitution only requires a prison to 17 provide a prisoner with Aadequate@ hygiene, Hoptowit, 682 F.2d at 1246, and “‘[T]he 18 circumstances, nature, and duration of a deprivation of [ ] necessities must be considered in 19 determining whether a constitutional violation has occurred,’” Hearns v. Terhune, 413, F.3d 20 1036, 1042 (9th Cir. 2005) (quoting Johnson, 217 F.3d at 731). 21 Plaintiff’s allegations do not rise to the level of an Eighth Amendment violation. 22 Plaintiff alleges that he was moved to a location at the prison which does not have shower 23 accommodations for him to use, so he is unable to bathe. To state an Eighth Amendment 24 claim, Plaintiff must show he was subject to an extreme deprivation denying the minimal 25 civilized measure of life’s necessities, devoid of legitimate penological purpose or contrary to 26 evolving standards of decency. Plaintiff has not done so. Plaintiff has not alleged facts 27 addressing all of his circumstances, such as how long he was housed in that location, why he 28 was taken to that location, and whether he had other ways to wash himself. Therefore, Plaintiff 12 1 fails to state a claim for adverse conditions of confinement because he lacked shower 2 accommodations. 3 V. CONCLUSION AND ORDER 4 The court finds that Plaintiff’s Complaint fails to state any claim upon which relief may 5 be granted under § 1983. The court will dismiss the Complaint for failure to state a claim and 6 give Plaintiff leave to file an amended complaint addressing the issues described above. 7 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely 8 give leave to amend when justice so requires.” Accordingly, the court will provide Plaintiff an 9 opportunity to file an amended complaint curing the deficiencies identified above. Lopez v. 10 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file the First 11 Amended Complaint within thirty days. 12 The First Amended Complaint must allege facts showing what each named defendant 13 did that led to the deprivation of Plaintiff’s constitutional rights. Fed. R. Civ. P. 8(a); Iqbal, 14 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 15 demonstrate that each defendant personally participated in the deprivation of his rights by their 16 actions. Id. at 676-77 (emphasis added). Plaintiff must 17 Plaintiff should note that although he has been given the opportunity to amend, it is not 18 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 19 507 F.3d 605, 607 (no “buckshot” complaints). Plaintiff is not granted leave to add allegations 20 of events occurring after the date he filed the Complaint, August 16, 2016. 21 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey 22 v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete 23 in itself without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an 24 amended complaint, as in an original complaint, each claim and the involvement of each 25 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 26 titled “First Amended Complaint,” refer to the appropriate case number, and be an original 27 signed under penalty of perjury. 28 /// 13 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. 3 Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to amend; 4 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 5 3. Plaintiff is granted leave to file a First Amended Complaint curing the 6 deficiencies identified by the court in this order, within thirty (30) days from 7 the date of service of this order; 8 4. 9 10 Plaintiff shall caption the amended complaint “First Amended Complaint” and refer to the case number 1:16-cv-01212-GSA-PC; and 5. 11 If Plaintiff fails to file a First Amended Complaint within thirty days, this case shall be dismissed for failure to state a claim. 12 13 14 15 IT IS SO ORDERED. Dated: August 20, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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