Govind v. Felker et al

Filing 47

ORDER signed by District Judge Otis D. Wright, II on 06/18/11 GRANTING 41 Motion for Judgment; dft T. Felker DISMISSED. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DANIEL H. GOVIND,

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Plaintiff,

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vs.
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FELKER. D.L. RUNNELS, and
M. McDONALD

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Defendants

) No. 2:08 CV-01183 ODW Consolidated with
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2:06 CV 02467
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ORDER GRANTING FELKER’S
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MOTION FOR JUDGMENT
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ON THE PLEADINGS
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_________________________

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On May 24, 2011 Defendant Tom Felker, Warden, filed his motion for

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Judgment on the Pleadings. [41] No opposition has been filed. For reasons

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set forth herein, said motion is GRANTED.

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In his First Amended Complaint1 complaint for damages, Plaintiff

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. This may be more accurately described as the Second Amended Complaint. The original complaint
was filed May 22, 2008 [1]. On August 4, 2008 Plaintiff filed an Amended Complaint [12]. Finally,
on June 25, 2009 plaintiff filed his “First Amended Prisoner Civil Rights Complaint” [30]. It
perhaps bears noting that the allegations of this pleading are essentially identical to the complaint
in case 06-2467. Only the defendants are different.
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purports to state claims under 42 U.S.C §1983. Specifically, Plaintiff purports

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to assert to categories of conduct which plaintiff contends constitute a

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violation of his constitutionally protected rights by a person acting under color

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of state law. First, it is alleged that Defendant Felker has created inhumane

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conditions of confinement by altering the toilet. Second, it is alleged that

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Defendant Felker has denied him adequate access to the prison law library.

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Plaintiff alleges that sometime in early 2006 Warden Felker converted

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all the cell toilets to two flush every five minute (sic), and if accidently you

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made three flush (sic) than (sic) you have to wait one hour before the toilet

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would flush again. And when the power goes off the toilets will not flush and

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we still have to use the toilet and live in inhumane cell, exposed to noxious

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odor including human discharge and dreadful condition of the cell.” (Compl.

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p. 5-I).

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While a complaint attacked by a motion to dismiss does not need

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detailed factual allegations, “a plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will not do.” Bell

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Atlantic Corp. v. Twombly, -- U.S. --, 127 S.Ct. 1955, 1964-65 (2007) (citing

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Papasan v. Allain, 478 U.S. 265, 286 (1986)) (courts need not “accept as true

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a legal conclusion couched as a factual allegation”). “Factual allegations must

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be enough to raise a right to relief above the speculative level, [citations], on

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the assumption that all the allegations in the complaint are true (even if

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doubtful in fact).” Twombly, -- U.S --, 127 S.Ct. at 1965 (citations omitted).

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“Leave need not be granted where the amendment [ ] would cause the

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opposing party undue prejudice, is sought in bad faith, constitutes an exercise

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in futility, or creates undue delay.” Ascon Prop., Inc. v. Mobil Oil Co., 866

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F.2d 1149, 1160 (9th Cir. 1989) (“The district court’s discretion to deny leave

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to amend is particularly broad where plaintiff has previously amended the

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complaint.”)(citations omitted).

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A motion to dismiss tests the legal sufficiency of the claim stated in the

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complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1975); see also Federal

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Rules of Civil Procedure 12(b)(6). “A claim will not be dismissed for failure

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to state a claim unless it appears beyond doubt that the plaintiff can provide

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no set of facts in support of his claim that would entitle him to relief.” Conley,

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355 U.S. at 45-46; Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484

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(9th Cir. 1995). A Rule 12(b)(6) motion is granted where there is either a lack

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of a cognizable legal theory or the plaintiff fails to allege sufficient facts to

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support a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d

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696, 699 (9th Cir. 1990).

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“The motion to dismiss for failure to state a claim is viewed with disfavor

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and is rarely granted.” Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th

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Cir. 1997) (internal quotation marks and citation omitted). Additionally, this

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Court looks to the face of the complaint to determine whether there is a

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defect. See William W. Schwarzer et al., California Practice Guide: Federal

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Civil Procedure Before Trial, § 9:211 (2006). This Court must “take all the

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allegations of material fact as true and construe them in the light most

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favorable to the nonmoving party.” McNamara-Blad v. Assoc. of Prof. Flight

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Attendants, 275 F.3d 1165, 1169 (9th Cir. 2002).

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Applying these standards to the instant claim regarding the toilets the

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court finds that the allegations of the complaint, accepted as true, do not

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describe a condition that raises Eighth Amendment concerns. The inmate

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must demonstrate that his conditions of confinement have subjected him to

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deprivations which deny him the minimal civilized measure of life’s

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necessities. Rhodes v. Chapman, -452 U.S. 337.347 (1981). In addition, the

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inmate must demonstrate that the prison officials acted with a “sufficiently

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culpable state of mind” of one indifferent to inmate health or safety. See,

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Farmer v Brennan, 115 U.S. 832, 834.

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Subjecting a prisoner to lack of sanitation that is severe or prolonged can

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constitute an infliction of pain within the meaning of the Eighth Amendment.

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Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir.1995). Here, it is

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alleged that the condition persists, if at all, no more than one hour. The court

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notes that Plaintiff does not actually allege that he has suffered any

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consequences himself from the accidental third flush within a five minute

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period. He merely describes the new system, but does not allege that he

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himself has been adversely affected by it. However, in this case the result

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would be the same.

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This is not a novel situation nor is this the first time courts have been

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called upon to determine the constitutionality of prison toilets with control flush

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systems installed. Plaintiff’s allegations are analogous to those in Norwood v.

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Hubbard, 2009 U.S. Dist. LEXIS 82921 (E.D. Cal. 2009). The plaintiff in

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Norwood brought suit against the warden of California Department of

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Corrections and Rehabilitation’s Substance Abuse Treatment Facility. There,

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plaintiff claimed that the installation of Flushometers in inmates’ cells

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constituted cruel and unusual punishment because the Flushometers limited

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inmates to two toilet flushes within ten minutes. If a third toilet flush were to

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occur it would result in a 30-minute lockout.. Plaintiff complained that there

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were times when the cells smelled of defecation during meal time, and that if

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two flushes within ten minutes had already occurred, inmates had to either

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refrain from relieving themselves, which caused physical problems or relieve

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themselves in a toilet that already contained waste.

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The court found that two toilet flushes every ten minutes, twenty-four

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hours a day is more than adequate to satisfy the constitutional guarantee of

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adequate sanitation and dismissed the action, with prejudice, for failure to state

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a claim and as frivolous.

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Likewise in Craft v. Dir. of Cal. State Dept. Of Corrections & Rehab.,

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2011 U.S. Dist. LEXIS 30704, *4-5 (C.D. Cal. 2011) the issue of whether the

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Eighth Amendment was violated when prison toilets shut off for an hour when

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the toilet is flushed more than twice in a five minute period was considered by

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the district court. The court concluded that plaintiff had failed to state a claim

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upon which relief can be granted. The conditions of confinement created by

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the automatic lockout did not rise to the level of deliberate indifference under

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the Eighth Amendment and that two toilet flushes every five minutes, twenty

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four hours per day are more than adequate as a matter of law. That is the

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precise situation here, and this court, like the Craft court, finds that two flushes

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in a five minute period is adequate as a matter of law and no cause of action

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is stated against Warden Felker on this claim.

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Under the heading: Right to File Papers and Communicate with Courts,

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plaintiff mentions Warden Felker, but only in passing. Specifically, plaintiff

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complains to being placed in the segregation unit for long periods of time “to

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block the preparation and filing of lawsuits, refuse to mail legal papers, deny

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active legal materials and deny access to law library and law books.

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Confiscate legal material and hold it for no reason.” As for Warden Felker, it

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is alleged that it is the Warden’s rule “to allow 2 hours law library a week and

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if the institution is on lock down, appellant [Plaintiff] don’t (sic) get access to

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law library at all.” It is also noted that the librarians are not trained in providing

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legal assistance; they do not have any knowledge of case law or references

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to law books. There are insufficient computers for all those who use the law

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library and lastly, there are no law books at all in the law library. (Compl at p.

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5-U.)

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Prisoners are entitled to meaningful access to the courts through

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adequate law libraries or assistance from persons trained in the law. Bounds

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v. Smith, 430 U.S. 817, 828 (1977). This does not mean that prisoners are

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entitled to unlimited access. Prisons must only provide access to a library that

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meets minimum constitutional standards. Sands v. Lewis, 886 F.2d 166, 1169

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(9th Cir. 1988). Prison officials may also regulate the time, manner and place

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in which library facilities are used. Lindquist v. Idaho State Bd. Of Corrections,

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776 F.2d 851, 858 (9th Cir. 1985).

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To state a viable claim for denial of meaningful access to the courts a

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plaintiff must show, first, that his ability to access the library was so limited that

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it was unreasonable, and two, that this limited access caused him actual injury,

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such as the inability to present a claim or meet a filing deadline. Casey v.

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Lewis, 518 U.S. 343, 348; Vandelft v. Moses, 31 F.3d 794, 797 (9th Cir.

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1994).

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Plaintiff has failed to allege how the time limits placed on library usage

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have prejudiced him. He has also failed to allege whether any prison lock-

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down occurred and whether his library privileged were affected. From the

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court’s view of the docket, it is evident that plaintiff’s access to the courts has

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not been impeded, nor has plaintiff alleged that it has. He has not alluded to

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any claim he has been prevented from pursuing or any deadline he has missed

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by virtue of his limited library access.
He may not simply rely on conclusory allegations without showing a

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resulting injury to himself.

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The court finds that Plaintiff has failed to state a claim against Warden Felker

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upon which relief can be granted, and his motion for Judgment on the

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Pleadings is GRANTED.

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DATED: June 18, 2011

______________________________
OTIS D. WRIGHT, II, DISTRICT JUDGE

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