Millsap v. Cate et al

Filing 32

MEMORANDUM and ORDER signed on 3/27/2012 by Judge Morrison C. England, Jr. REJECTING 22 Findings and Recommendations; GRANTING 17 Motion to Dismiss Plaintiff's 1 Prisoner Civil Rights Complaint, with leave to amend. Amended pleading due within 20 days. (Michel, G)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

FERNANDO MILLSAP,

12

No. 2:10-cv-02008-MCE-EFB

Plaintiff,

13

v.

MEMORANDUM AND ORDER

14

MATTHEW CATE, et al.,

15

Defendants.

16
----oo0oo---17
18

Plaintiff, a state prisoner proceeding pro se, has filed

19

this civil rights action against Mathew Cate, Director of the

20

California Department of Corrections and Rehabilitation, Tim

21

Virga, ex-Warden of the California State Prison-Sacramento

22

(“CSP-Sacramento”), and James Walker, current Warden of

23

CSP-Sacramento (collectively, “Defendants”), alleging that

24

Defendants violated Plaintiff’s Eighth Amendment right for safe

25

conditions of confinement.

26

Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure

27

12(b)(6).

28

///

Defendants filed a Motion to Dismiss

1

1

The matter was referred to a United States Magistrate Judge

2

pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302.

3

September 1, 2011, the Magistrate Judge filed findings and

4

recommendations, which were served on all parties and contained

5

notice to all parties that any objections were to be field within

6

fourteen days.

7

objections to the findings and recommendations.

8
9

On

After the extension of time, Defendants filed

In accordance with the provisions of 28 U.S.C. § 636
(b)(1)(c) and Local Rule 304, this Court has conducted a de novo

10

review of this case.

Having carefully reviewed the entire file,

11

the Court respectfully rejects Magistrate Judge’s findings and

12

recommendations and grants Defendants’ motion to dismiss.

13
BACKGROUND

14
15
16

Defendants do not object to the factual background presented

17

in the findings and recommendations (“F & R”), but rather

18

challenge the legal conclusions reached by the Magistrate Judge.

19

Thus, the Court adopts the following facts as established by the

20

Magistrate Judge in his F & R.

21

Plaintiff alleges that he was assigned to the upper bunk of

22

a double-cell at CSP-Sacramento that was originally designed to

23

hold only one inmate.

24

5.5 feet above the floor.

25

upper bunk by means of a metal desk stool on the wall opposite

26

the bunks.

27

3-4 feet away from the bunk and is about 1.5 feet above the

28

ground.

The upper bunk is placed approximately
Inmates ascend to and descend from the

The stool is welded to the wall.

2

The stool is

1

According to Plaintiff, to get to the upper bunk, an inmate must

2

step onto the stool and then move or jump three feet across and

3

four feet up onto the upper bunk.

4

must jump four feet down onto steel.

5

On the way down, an inmate

Plaintiff alleges that he was injured trying to ascend to

6

the upper bunk on November 16, 2009.

He says that the stool

7

collapsed while he was standing on it, causing him to fall

8

backwards on the desk and then onto the floor.

9

Byron Harris, who came a few days later to repair the stool, told

Maintenance staff

10

Plaintiff that the stool’s weld had become weak over time.

11

Plaintiff was transported to medical after the incident, doctors

12

determined that he had suffered multiple muscle contusions and

13

swelling to his rib cage.

14

When

Plaintiff alleges that Defendants had been made aware of the

15

unsafe conditions that resulted in his injury.

16

copy of another inmate’s internal appeal, which was denied at the

17

Director’s Level on October 26, 2009.

18

inmate, Harrison Scott, complained that climbing up and jumping

19

down from his upper bunk was unsafe and exposed him to injury.

20

Scott asked that ladders be installed in the cells.

21

was denied at the Director’s Level by N. Grannis, and copies of

22

the denial were sent to the prison’s Warden and Appeals

23

Coordinator.

24

///

25

///

26

///

27

///

28

///
3

He attaches a

(Compl. Ex. E.)

The other

The appeal

STANDARDS

1
A.

2

Standard under 28 U.S.C. § 636 (b)(1)

3
4

The Court must conduct a de novo review of portions of the

5

magistrate judge’s findings and recommendations to which a party

6

objects. 28 U.S.C. § 636 (b)(1); Fed. R. Civ. P. 72(b)(3);

7

U.S. v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989).

8

may “accept, reject, or modify, in whole or in part, the findings

9

or recommendations” made by the magistrate judge.

The Court

28 U.S.C.

10

§ 636(b)(1).

“If neither party contests the magistrate’s

11

findings of fact, the court may assume their correctness and

12

decide the motion on the applicable law.” Remsing, 874 F.2d at

13

617.

14
B.

15

Standard under Rule 12(b)(6)

16
17

On a motion to dismiss for failure to state a claim under

18

Federal Rule of Civil Procedure 12(b)(6),1 all allegations of

19

material fact must be accepted as true and construed in the light

20

most favorable to the nonmoving party.

21

Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

22

“requires only ‘a short and plain statement of the claim showing

23

that the pleader is entitled to relief,’ in order to ‘give the

24

defendant a fair notice of what the [. . .] claim is and the

25

grounds upon which it rests.’”

26

///

Cahill v. Liberty Mut.
Rule 8(a)(2)

27
1

28

All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
4

1

Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

2

Conley v. Gibson, 355 U.S. 41, 47 (1957)).

3

by a Rule 12(b)(6) motion to dismiss does not require detailed

4

factual allegations.

5

provide the grounds of his entitlement to relief requires more

6

than labels and conclusions, and a formulaic recitation of the

7

elements of a cause of action will not do.”

8

citations and quotations omitted).

9

accept as true a “legal conclusion couched as a factual

Id.

A complaint attacked

However, “a plaintiff’s obligation to

Id.

(internal

A court is not required to

10

allegation.”

Ashcroft v. Iqbal,129 S. Ct. 1937, 1950 (2009)

11

(quoting Twombly, 550 U.S. at 555).

12

enough to raise a right to relief above the speculative level.”

13

Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur

14

R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)

15

(stating that the pleading must contain something more than a

16

“statement of facts that merely creates a suspicion [of] a

17

legally cognizable right of action.”)).

“Factual allegations must be

18

Furthermore, “Rule 8(a)(2) . . . requires a ‘showing,’

19

rather than a blanket assertion, of entitlement to relief.”

20

Twombly, 550 U.S. at 556 n.3 (internal citations and quotations

21

omitted).

22

is hard to see how a claimant could satisfy the requirements of

23

providing not only ‘fair notice’ of the nature of the claim, but

24

also ‘grounds’ on which the claim rests.”

25

Alan Wright & Arthur R. Miller, supra, at § 1202).

26

must contain “only enough facts to state a claim to relief that

27

is plausible on its face.”

28

///

“Without some factual allegation in the complaint, it

5

Id.

(citing 5 Charles
A pleading

1

Id. at 570.

2

claims across the line from conceivable to plausible, their

3

complaint must be dismissed.”

4

complaint may proceed even if it strikes a savvy judge that

5

actual proof of those facts is improbable, and ‘that a recovery

6

is very remote and unlikely.’”

7

Rhodes, 416 U.S. 232, 236 (1974)).

8
9

If the “plaintiffs . . . have not nudged their

Id.

However, “a well-pleaded

Id. at 556 (quoting Scheuer v.

Pro se pleadings are held to a less stringent standard than
those drafted by lawyers.

Haines v. Kerner, 404 U.S. 519, 520-21

10

(1972). “In civil rights cases where the plaintiff appears

11

pro se, the court must construe the pleadings liberally and must

12

afford plaintiff the benefit of any doubt.”

13

Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).

14

A court granting a motion to dismiss a complaint must then decide

15

whether to grant a leave to amend.

16

“freely given” where there is no “undue delay, bad faith or

17

dilatory motive on the part of the movant, . . . undue prejudice

18

to the opposing party by virtue of allowance of the amendment,

19

[or] futility of the amendment . . . .”

20

178, 182 (1962).

21

if it is clear that “the complaint could not be saved by any

22

amendment.”

23

499 F.3d 1048, 1056 (9th Cir. 2007).

24

///

25

///

26

///

27

///

28

///

Karim-Panahi v.

Leave to amend should be

Foman v. Davis, 371 U.S.

Dismissal without leave to amend is proper only

Intri-Plex Techs., Inc. v. Crest Group, Inc.,

6

ANALYSIS

1
2
3

Plaintiff alleges that Defendants “acted with deliberate

4

indifference in denying his right to the basic human need for

5

safe and adequate living conditions and failing to maintain the

6

structure of the living quarters as to ensure his safety.”

7

(Compl. ¶ 10.)

8

aware of the inmates’ unsafe living conditions that resulted in

9

the Plaintiff’s injuries because of other inmates’ complaints,

Plaintiff further alleges that Defendants were

10

appeals and serious injuries.

11

that Plaintiff has not pled facts sufficiently showing that

12

Defendants violated Plaintiff’s Eighth Amendment rights “by

13

failing to maintain in good repair, and prevent the collapse of,

14

the step stool by [Plaintiff] to access the upper bunk”.

15

Mot. at 3.)

16

qualified immunity. (Id. at 7-9.)

17

(Id. ¶ 12.)

Defendants contend

(Defs.’

Defendants also argue that they are entitled to

The Eighth Amendment’s prohibition of cruel and unusual

18

punishment requires that prison officials take reasonable

19

measures for the safety of inmates.

20

825, 832 (1994).

21

violation has to demonstrate that: (1) the deprivation alleged is

22

sufficiently serious (objective prong); and (2) the defendant

23

acted with deliberate indifference to plaintiff’s safety

24

(subjective prong).

25

prong, Plaintiff must demonstrate that prison officials’ conduct

26

deprived him of “the minimal civilized measure of life’s

27

necessities.”

28

///

Farmer v. Brennan, 511 U.S.

A prisoner claiming an Eighth Amendment

Id. at 834.

Under the test’s objective

Id.

7

1

In determining whether the alleged deprivation is objectively

2

sufficiently serious, the Court must assess “whether society

3

considers the risk that the prisoner complains of to be so grave

4

that it violates contemporary standards of decency to expose

5

anyone unwilling to such a risk.”

6

833 (9th Cir. 1997) (quoting

7

36 (1993)) (emphasis in the original).

Neal v. Shimoda, 131 F.3d 818,

Helling v. McKinney, 509 U.S. 25,

8

To satisfy the test’s subjective prong, Plaintiff must show

9

that Defendants knew of and disregarded an excessive risk to his

10

health or safety.

11

prison officials “must both be aware of facts from which the

12

inference could be drawn that a substantial risk of the harm

13

exists, and [they] must also draw the inference.”

14

Farmer, 511 U.S. at 837.

In other words, the

Id.

The Magistrate Judge has concluded that Plaintiff

15

sufficiently alleged a claim of deliberate indifference against

16

Defendants because (1) the design of Plaintiff’s prison cell

17

posed a risk of substantial harm;2 and (2) Defendants were aware

18

of the danger of the cell design by virtue of processing

19

Plaintiff’s and other inmates’ appeals complaining about the

20

faulty design, but failed to correct it.

21

///

22

///

23

///

24

///

(F & R at 3-6.)

25
26
27
28

2

The Magistrate Judge specifically disagreed with
Defendants’ narrow focus on the broken stool as the sole cause of
Plaintiff’s injuries, and concluded that the proper inquiry is
whether the design of the cell itself posed a risk of substantial
harm. (F & R at 3-4.)
8

1

While the Court agrees with the Magistrate Judge that Defendants

2

improperly narrowed the focus of the inquiry to the broken stool

3

as a cause of Plaintiff’s alleged constitutional deprivation, the

4

Court disagrees with the Magistrate Judge’s conclusion that

5

Plaintiff’s claim of dangerous cell design, even if viewed

6

liberally, states a viable claim for deliberate indifference.3

7

Even if afforded the most liberal interpretation,

8

Plaintiff’s “structural design” claim boils down to Defendants’

9

alleged failure to install ladders or other “safety apparatus” to

10

assist Plaintiff and other inmates in getting on and off upper

11

bunks.

12

district courts in the Ninth Circuit have held that the failure

13

of prison officials to equip prison cells with a ladder or some

14

other “safety apparatus” to assist inmates in ascending to and

15

descending from bunk beds does not amount to the deprivation of

16

“a minimally civilized measure of life’s necessities.”

17

///

18

///

19

///

20

///

(See Compl. ¶¶ 13,18; Pl.’s Opp. at 8:15-19.)

Multiple

21
3

22
23
24
25
26
27
28

Although Defendants’ motion to dismiss, which focuses
entirely on the broken stool as a cause of Plaintiff’s injury,
does not address the sufficiency of Plaintiff’s claim in light of
the “dangerous cell design” theory articulated by the Magistrate
Judge, the Court can review the sufficiency of Plaintiff’s
complaint based upon the “dangerous cell design” theory and
dismiss the claim on this basis even if Defendants have not
analyzed this particular theory in their motion to dismiss. See
28 U.S.C. § 1915(e)(2)(B)(ii) (“Notwithstanding any filing fee,
or any portion thereof, that may have been paid, the court shall
dismiss the case [brought by a prisoner proceeding in forma
pauperis] at any time if the court determines that . . . the
action or appeal . . . fails to state a claim upon which relief
may be granted.”) (emphasis added).
9

1

See, e.g., Hiscox v. Martel, No. CIV S-10-0467 JAM CKD, 2011 WL

2

5241277, at **2-3 (E.D. Cal. Nov. 1, 2011) (dismissing prisoner’s

3

complaint which alleged that the upper bunk was a “hazardous

4

condition” as it “lack[ed] grab-bars, rails, ladders and other

5

safety features,” and explaining that “prison officials’ failure

6

to provide a ladder or other safety features may not reasonably

7

be characterized as deliberate deprivation of a human need or as

8

a condition that placed plaintiff’s health or welfare in imminent

9

danger”); Wiseman v. Cate, No. 1:10-cv-00024-OWW-SMS, 2011 WL

10

846208, at *2 (E.D. Cal. March 4, 2011) (“The failure to provide

11

bunk ladders is simply not a condition so grave that it deprives

12

Plaintiff of the minimal civilized measure of life’s

13

necessities.”); Robinett v. Correctional Training Facility,

14

No. C 09-3845 SI, 2010 WL 286 7696, at **2-3 (N.D. Cal. July 20,

15

2010 (“Requiring an able-bodied inmate to use a bunk bed with two

16

climbing steps without a ladder or handrail does not deny him the

17

minimal civilized measure of life’s necessities.”).

18

Federal courts in other circuits also “universally espouse

19

the view that ladderless bunk is not a sufficiently unsafe living

20

condition warranting Eighth Amendment protection.”

21

Fischer, No. 9:08-CV-0045, 2010 WL 6230517, at *5 (N.D.N.Y.

22

Sept. 8, 2010); see also Connolly v. County of Suffolk,

23

533 F. Supp. 2d 236, 241 (D. Mass. 2008) (holding that absence of

24

ladders for bunk beds does not amount to the deprivation of “a

25

minimal civilized measure of life’s necessities”);

26

///

27

///

28

///
10

Jenkins v.

1

Armstrong v. Terrebonne Parish Sheriff, No. 06-573, 2006 WL

2

1968887, at **1,6 (E.D. La. June 6, 2006) (holding that the U.S.

3

Constitution does not require ladders for bunk beds, and that a

4

swivel chair and table to step on provided “[a] reasonable means

5

of getting into the top bunk, if the inmate would have taken

6

reasonable care for his own safety”); Wilson v. State, No. Civ.

7

A. 7:00-cv-00966, 2002 WL 31499736, at *7 (W.D. Va. May 6, 2002)

8

(holding that, notwithstanding plaintiff’s diagnosed knee

9

condition and complaint of prior falls, “the lack of ladders

10

. . . in the jail cells does not constitute a dangerous condition

11

in and of itself”); McDaniel v. Walsh, No. 09-2170, 2011 WL

12

489787, at *5 (C.D. Ill. Feb. 7, 2011) (“A ladder to the

13

upper/top bunk is not one of life’s necessities and therefore

14

Plaintiff fails to satisfy the objective component applicable to

15

his claim.

16

constitutionally guaranteed a ladder to an upper bunk.”).

17

Inmates and pretrial detainees are not

This Court similarly concludes that Defendants’ alleged

18

failure to provide Plaintiff and other inmates with “safety

19

apparatus” to access top bunks does not violate “contemporary

20

standards of decency” to amount to cruel and unusual punishment

21

under the Eighth Amendment.

22

833.

23

otherwise.

24

any difficulties getting on and off the top bunk until the

25

alleged incident.

26

///

27

///

28

///

See Neal v. Shimoda, 131 F.3d at

Plaintiff has failed to present any facts to demonstrate
Nothing in the Complaint suggests that Plaintiff had

11

1

Although Plaintiff generally blames the dangerous cell design for

2

his injury, Plaintiff acknowledges that he fell because the stool

3

collapsed underneath him, and not because the stool was located

4

too far or too low to allow Plaintiff’s access to his bunk.

5

Moreover, the Complaint does not plausibly demonstrate that

6

Plaintiff could not use some alternative means of ascending and

7

descending, e.g., pulling himself up to climb onto his bunk and

8

easing himself down, or using the lower bunk to assist him in

9

accessing the top bunk.

Short of conclusory statements about

10

inherent dangers of ladderless bunk beds, which were found

11

insufficient to state an Eighth Amendment claim by numerous

12

courts across the country, the Complaint is devoid of any facts

13

plausibly demonstrating that the absence of ladders or other

14

safety devices deprived Plaintiff of “the minimal civilized

15

measure of life’s necessities.”

16

See Farmer, 511 U.S. at 834.

Accordingly, even if the Court agrees with the Magistrate

17

Judge’s conclusion that Defendants were aware of the “danger” of

18

Plaintiff’s cell design, Plaintiff’s claim fails under the

19

objective prong of the Eighth Amendment’s test.

20

Further, the Court disagrees with the Magistrate Judge’s

21

conclusion that Defendants are not entitled to qualified

22

immunity.

23

functions are shielded from liability for civil damages insofar

24

as their conduct does not violate clearly established statutory

25

or constitutional rights of which a reasonable person would have

26

known.”

27

///

28

///

“[G]overnment officials performing discretionary

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

12

1

Courts have “discretion to grant qualified immunity on the basis

2

of the ‘clearly established’ prong alone, without deciding in the

3

first instance whether any right has been violated.”

4

Rowlands, 606 F.3d 646, 651 (9th Cir. 2010) (citing Pearson v.

5

Callahan, 555 U.S. 223, 236 (2009)).

6

to be clearly established, its contours must be sufficiently

7

clear that a reasonable official would understand that what he

8

was doing violated that right.”

9

739 (2002).

James v.

“For a constitutional right

Hope v. Pelzer, 536 U.S. 730,

The court should undertake this inquiry in light of

10

the specific context of the case, and not as a broad general

11

proposition.

12

Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1989).

13

Anderson v. Creighton, 483 U.S. 635, 639 (1987);

The Magistrate Judge concluded that Defendants are not

14

entitled to qualified immunity in light of Plaintiff’s clearly

15

established constitutional right to be free from bodily injury

16

that serves no penological purpose. (F & R at 7.)

17

his inquiry on such a broad constitutional principle, the

18

Magistrate Judge has failed to conduct a particularized inquiry

19

into the applicability of qualified immunity in the context of

20

the specific facts of the case at issue. See Anderson, 483 U.S.

21

at 639; Baker, 887 F.2d at 186.

22

The Supreme Court explained:

The operation of [the qualified immunity] standard
. . . depends substantially upon the level of
generality at which the relevant “legal rule” is to be
identified. For example, the right to due process of
law is quite clearly established by the Due Process
Clause, and thus there is a sense in which any action
that violates that Clause (no matter how unclear it may
be that the particular action is a violation) violates
a clearly established right. Much the same could be
said of any other constitutional or statutory
violation.

23
24
25
26
27
28

By focusing

///
13

1

But if the test of “clearly established law” were to be
applied at this level of generality, it would bear no
relationship to the “objective legal reasonableness” .
. . . Plaintiffs would be able to convert the rule of
qualified immunity that our cases plainly establish
into a rule of virtually unqualified liability simply
by alleging violation of extremely abstract rights.
. . . It should not be surprising, therefore, that our
cases establish that the right the official is alleged
to have violated must have been “clearly established”
in a more particularized, and hence more relevant,
sense . . . . This is not to say that an official
action is protected by qualified immunity unless the
very action in question has previously been held
unlawful, . . . but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.

2
3
4
5
6
7
8
9
10

Anderson, 483 U.S. at 639 (emphasis added).

11

The gravamen of Plaintiff’s complaint is that Defendants

12

participated in the decision not to equip bunk beds in prison

13

cells with a “safety apparatus.”

14

is whether it is clearly established that top bunks not equipped

15

with ladders or other safety features pose a substantial risk of

16

serious harm that society would consider so grave as to amount to

17

an Eighth Amendment’s violation.

18

in the negative.

19

recognition that the absence of ladders or other safety devices

20

in prison cells with bunk beds does not present a sufficiently

21

unsafe condition of confinement, the Court cannot find that the

22

unlawfulness of ladderless bunk beds in prison cells is apparent.

23

Accordingly, the Court cannot conclude that a reasonable officer

24

would believe that his decision to refuse Plaintiff’s request for

25

a ladder or other “safety apparatus” was in violation of

26

Plaintiff’s clearly established constitutional right.

27

Defendants are entitled to qualified immunity.

28

///

Thus, the inquiry for the Court

The Court answers this question

In light of an almost universal judicial

14

Thus,

1
2

Accordingly, the Court grants Defendants’ Motion to Dismiss
with leave to amend.

3
CONCLUSION

4
5
6

For the reasons set forth above, the Court respectfully

7

rejects the Magistrate Judge’s findings and recommendations and

8

GRANTS Defendants’ Motion to Dismiss Plaintiff’s Complaint with

9

leave to amend.

Any amended pleading consistent with the terms

10

of this Memorandum and Order must be filed not later than twenty

11

(20) days following the date of this Memorandum and Order.

12
13

IT IS SO ORDERED.
Dated: March 27, 2012

14
15
16

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
15