Millsap v. Cate et al

Filing 36

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/10/12 ORDERING that the amended complaint is dismissed with a final opportunity to amend within 30 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FERNANDO MILLSAP,
Plaintiff,

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No. 2:10-cv-2008 MCE EFB P

vs.

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MATTHEW CATE, et al.,

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Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action under 42

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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). Before the court is plaintiff’s amended complaint. Dckt. No. 35.

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I.

Background
On July 28, 2010, plaintiff filed a complaint alleging that defendants had violated his

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Eighth Amendment rights by failing to provide him with a safe method of accessing the upper

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bunk to which he was assigned. Dckt. No. 1. Plaintiff claimed that on November 16, 2009, he

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was injured when the stool that he was using to access the upper bunk collapsed underneath him.

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Id. On October 21, 2010, the court screened plaintiff’s complaint pursuant to § 1915A, and

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determined that plaintiff had stated a cognizable claim for relief against all defendants. Dckt.

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No. 7.
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Thereafter, defendants moved to dismiss the complaint for failure to state a claim upon

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which relief could be granted. Dckt. No. 17. The undersigned recommended that defendants’

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motion be denied, finding that plaintiff’s allegations were adequate to state an Eighth

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Amendment deliberate indifference claim based upon the structural design of the cell, and also

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finding that defendants were not entitled to qualified immunity. Dckt No. 22.

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On March 27, 2012, however, the district judge declined to adopt those findings. Dckt.

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No. 32. The district judge determined that plaintiff’s “structural design” claim “boil[ed] down to

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Defendants’ alleged failure to install ladders or other ‘safety apparatus’ to assist Plaintiff and

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other inmates in getting on and off upper bunks.” Id. at 9. The district judge, citing to numerous

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district court cases for support, concluded that “Defendants’ alleged failure to provide Plaintiff

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and other inmates with ‘safety apparatus’ to access top bunks does not violate ‘contemporary

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standards of decency’ to amount to cruel and unusual punishment under the Eighth

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Amendment.” See id. at 11 (noting that plaintiff failed to present any facts to demonstrate

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otherwise or to suggest that he had any difficulties getting on and off the top bunk until the

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alleged incident).

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The district judge also determined that defendants were entitled to qualified immunity

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because a reasonable officer would not “would believe that his decision to refuse Plaintiff’s

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request for a ladder or other ‘safety apparatus’ was in violation of Plaintiff’s clearly established

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constitutional right.” Id. at 14. The district judge therefore granted defendants’ motion to

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dismiss and granted plaintiff leave to amend. Id. at 15. Now before the court is plaintiff’s

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amended complaint. Dckt. No. 35.

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II.

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Summary of Allegations in Amended Complaint (Dckt. No. 35)
Like the original complaint, the amended complaint alleges that plaintiff was injured

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when the stool he was using to access the upper bunk snapped off from the wall. It also alleges

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that plaintiff suffers from chronic neuropathy in his left arm and that because of this disability,

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he had a “medically necessary lower bunk designation” in his file. According to the allegations
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in the complaint, the defendants were aware that the stools “had the tendency to break off from

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the wall mount[s], due to the numerous occurrences where they have broken off and caused

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injuries.” Dckt. No. 35 at 4. Plaintiff alleges that defendant Baker violated his rights under the

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Eighth Amendment and the Americans with Disabilities Act, and that defendants Virga, Walker,

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and Albee also violated his rights under the Eighth Amendment. Id. at 7.

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III.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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Furthermore, a claim upon which the court can grant relief has facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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IV.

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Screening Pursuant to 28 U.S.C. § 1915A
The court has reviewed plaintiff’s amended complaint and finds that it must be dismissed

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for failure to state a claim. According to the complaint, defendants Walker and Virga were the

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wardens of CSP-Sacramento, and were responsible for “the supervision of staff, monitoring

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inmate safety and security . . . .” Dckt. No. 35 at 1. They allegedly reviewed inmate appeals

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regarding the dangers posed by the stools. Id. at 5. Plaintiff claims they violated his Eighth

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Amendment rights because “they implemented, adopted, failed to correct, and/or perpetuated

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policies and practices which placed the plaintiff in living conditions that were adverse to his

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serious medical need.” Id. at 7. Plaintiff also alleges that defendant Albee was “the Supervisor

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of Buildings” and “is responsible for the maintenance of buildings . . . .” Dckt. No. 35 at 2.

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Plaintiff claims that “by failing to take action to ensure plaintiff’s safety by regular inspection [of

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the stools], his actions were deliberately indifferent” and “contributed” to plaintiff’s injury. Id.

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at 4, 7. Defendant Baker allegedly supervised housing assignments and was aware that plaintiff

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had a medical need for a lower bunk. Id. at 3.

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As plaintiff is aware, a prison official violates the Eighth Amendment’s proscription of

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cruel and unusual punishment where he or she deprives a prisoner of the minimal civilized

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measure of life’s necessities with a “sufficiently culpable state of mind.” Farmer v. Brennan,

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511 U.S. 825, 834, (1994). A prisoner must allege facts showing that (1) the defendant prison

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official’s conduct deprived him or her of the minimal civilized measure of life’s necessities and

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(2) that the defendant acted with deliberate indifference to the prisoner’s health or safety. Id. at

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834. To show deliberate indifference, the prisoner must allege that the defendant knew of and
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disregarded an excessive risk to inmate health or safety; “the official must both be aware of facts

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from which the inference could be drawn that a substantial risk of serious harm exists, and he

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must also draw the inference.” Id. at 837.

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To prevail on a claim for violation of the Eighth Amendment based on inadequate

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medical care, plaintiff must show both that his medical needs were objectively serious, and that

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defendant possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99

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(1991); McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). A serious medical need is one

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that significantly affects an individual’s daily activities, an injury or condition a reasonable

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doctor or patient would find worthy of comment or treatment, or the existence of chronic and

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substantial pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992),

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overruled on other grounds by WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir.1997) (en

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banc).

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Here, plaintiff alleges that defendants Walker and Virga were aware of the alleged

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dangers presented by the stools. The court has concluded, however, that this condition of

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confinement does not violate “contemporary standards of decency” to amount to cruel and

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unusual punishment under the Eighth Amendment. See Dckt. No. 32. While plaintiff’s

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allegations suggest that the danger posed by the stools was exacerbated in light of his physical

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disability and the lack of alternate means for accessing the upper bunk, he pleads no facts

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suggesting that either Walker or Virga were aware of plaintiff’s disability, his need for a lower

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bunk, or the fact that he was being forced to use the stool to access the upper bunk. Nor does

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plaintiff explain how his arm condition interferes with his ability to access the upper bunk

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through means other than the stool. Plaintiff fails to plausibly allege that the defendants were

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aware of a dangerous condition in plaintiff’s cell, or otherwise show that these defendants acted

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with the requisite deliberate indifference for an Eighth Amendment claim. Rather, plaintiff seeks

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to hold these defendants liable because of their alleged positions as supervisors and/or policy-

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makers. But plaintiff may not sue any official on the theory that the official is liable for the
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unconstitutional conduct of his or her subordinates. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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(2009).

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Like his claims against Walker and Virga, plaintiff alleges that at most, Albee was aware

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that the stools could be unsafe, but fails to set forth any facts showing that Albee knew about

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plaintiff’s disability, how it interfered with his ability to access the upper bunk, if at all, or that

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plaintiff was being forced to use a potentially unsafe stool to access the upper bunk. Deliberate

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indifference describes “a state of mind more blameworthy than negligence” and “requires more

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than ordinary lack of due care for the prisoner’s interests or safety.” Farmer, 511 U.S. at 835

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(internal quotations omitted). Here, plaintiff cannot hold Albee liable for his injuries under a

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theory of deliberate indifference where plaintiff has not even shown that the stool presented a

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substantial risk of serious harm to him, or that Albee actually knew that the stool presented a

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substantial risk of harm to plaintiff.

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Plaintiff also seeks to hold Baker liable because of his role as housing supervisor, but

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fails to plead facts showing that Baker personally participated in depriving plaintiff of his rights.

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An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection

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between the defendant’s wrongful conduct and the alleged constitutional deprivation. See

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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

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Cir. 1978). The allegations do not show that Baker himself caused plaintiff to be assigned to an

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upper bunk knowing that plaintiff’s physical condition required assignment to a lower bunk, or

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that Baker actually knew that plaintiff’s only means of accessing the upper bunk was through use

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of a stool known to be dangerous. Plaintiff fails to allege facts sufficient to show that Baker

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knowingly exposed plaintiff to a substantial risk of serious harm.

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Plaintiff also fails to state an ADA claim. In order to state a claim that a public program

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or service violated Title II of the ADA, a plaintiff must show: (1) he is a “qualified individual

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with a disability”; (2) he was either excluded from participation in or denied the benefits of a
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public entity’s services, programs, or activities, or was otherwise discriminated against by the

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public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his

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disability. McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). Damages are only

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available under Title II of the ADA where a plaintiff proves the defendant acted with deliberate

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indifference. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). Plaintiff claims

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only that he suffers from neuropathy but does not describe how that condition substantially limits

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his activities. He does not alleges any facts showing that he was discriminated against because

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of his alleged disability or even express what benefit he claims to have been denied or how he

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claims to have been discriminated against. Moreover, plaintiff seeks damages as relief, but as

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discussed, fails to adequately allege the requisite deliberate indifference.
Although it appears unlikely, to the extent plaintiff can allege specific facts supporting a

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deliberate indifference or ADA claim, plaintiff should be granted leave to amend to do so. See

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Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc) (Unless it is clear that no

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amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend

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the complaint before dismissal).

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Accordingly, IT IS HEREBY ORDERED that the amended complaint is dismissed with a

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final opportunity to amend within 30 days. The amended complaint must bear the docket

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number assigned to this case and be titled “Second Amended Complaint.” Failure to comply

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with this order will result in a recommendation that this action be dismissed. If plaintiff files an

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amended complaint stating a cognizable claim the court will proceed with service of process by

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the United States Marshal.

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DATED: September 10, 2012.

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