Meneweather v. Powell et al

Filing 5

ORDER OF SERVICE. Signed by Judge ARMSTRONG on 10/2/08. (lrc, COURT STAFF) (Filed on 10/3/2008) Modified on 10/6/2008 (jlm, COURT STAFF).

1 2 3 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) B. POWELL, et al., ) ) Defendants. ) ________________________________ ) No. C 07-04204 SBA (PR) ORDER OF SERVICE

5 TOMAS LOPEZ MENEWEATHER 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

INTRODUCTION Plaintiff Tomas Lopez Meneweather, a state prisoner currently incarcerated at Salinas Valley State Prison (SVSP), alleges a violation of his constitutional rights against the following Defendants: SVSP Correctional Officers B. Powell, D. Ferry, T.G. Miller, G. Bailey, A. Meyers, Rincon, Reyes, and J. Ippolito as well as SVSP Licenced Vocational Nurse O'Kelly. Plaintiff has since filed an amended complaint, which raises the same Eighth Amendment claim from his original complaint. He has been granted leave to proceed in forma pauperis. Venue is proper because a substantial part of the events giving rise to the action occurred at SVSP in Soledad, California, which is located in this judicial district. See 28 U.S.C. § 1391(b). The Court now reviews the claims raised in Plaintiff's action. BACKGROUND The following allegations are taken from Plaintiff's original and amended complaints: From July 18, 2006 to December 21, 2006 and from January 6, 2007 to July 12, 2007, Plaintiff was housed in administrative segregation and "unable to clean his cell." (Compl. at 3.) He alleges that he is an "A.D.A. inmate" because he is confined to a wheelchair. (Am. Compl. at 3.) Inmate workers are not allowed in administrative segregation, and "floor staff prison guards are supposed to clean Plaintiff's cell." (Compl. at 3.) Other inmates "often flooded their cells by overflowing their toilets," thus, "water, waste and human feces came into Plaintiff's cell and was left there until the air from the vent dried it up which sometimes took several days." (Id.) Plaintiff requested Defendants to

1 "clean [his] cell at numerous times over the days, weeks, and months of [his] administrative 2 segregation confinement, and they refused, causing Plaintiff to catch a[n] incurable sinus infection 3 and pnemonia [sic]." (Am. Compl. at 3.) Plaintiff further claims that on November 23, 2006 and 4 November 27, 2006, he asked Defendant O'Kelly, who was part of the SVSP medical staff, to draft a 5 "report on the conditions of [his] cell and [his] health problems caused by the filthy condition of [his] 6 cell, but [Defendant O'Kelly] refused . . . ." (Pl.'s Ex. A, Attach. to 602 Inmate Appeal at 2.) 7 8 9 I. 10 United States District Court For the Northern District of California Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks Plaintiff seeks monetary damages. (Am. Compl. at 3-4.) DISCUSSION

11 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 12 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that 13 are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief 14 from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, 15 however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 16 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 17 (1) that a right secured by the Constitution or laws of the United States was violated; and (2) that the 18 alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 19 U.S. 42, 48 (1988). 20 A supervisor may be liable under § 1983 upon a showing of personal involvement in the 21 constitutional deprivation or a sufficient causal connection between the supervisor's wrongful conduct 22 and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 23 1991) (en banc) (citation omitted). A supervisor therefore generally "is only liable for constitutional 24 violations of his subordinates if the supervisor participated in or directed the violations, or knew of 25 the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 26 A supervisor may be liable for implementing "a policy so deficient that the policy itself is a 27 repudiation of constitutional rights and is the moving force of the constitutional violation." Redman, 28 942 F.2d at 1446; see Jeffers v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001). 2

1 II. 2

Eighth Amendment Claim The Constitution does not mandate comfortable prisons, but neither does it permit inhumane

3 ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a prisoner receives in prison 4 and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. 5 See Helling v. McKinney, 509 U.S. 25, 31 (1993). 6 In determining whether a deprivation of a basic necessity is sufficiently serious to satisfy the

7 objective component of an Eighth Amendment claim, a court must consider the circumstances, nature, 8 and duration of the deprivation. The more basic the need, the shorter the time it can be withheld. See 9 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). Substantial deprivations of shelter, food, 10 drinking water or sanitation for four days, for example, are sufficiently serious to satisfy the objective United States District Court For the Northern District of California 11 component of an Eighth Amendment claim. See id. at 732-73. The requisite state of mind to 12 establish an Eighth Amendment violation depends on the nature of the claim. In prison-conditions 13 cases, the necessary state of mind is one of "deliberate indifference." See, e.g., Farmer, 511 U.S. at 14 834 (inmate safety); Helling, 509 U.S. at 32-33 (inmate health); Estelle v. Gamble, 429 U.S. 97, 104 15 (1976) (inmate health). 16 Neither negligence nor gross negligence will constitute deliberate indifference. See Farmer, 17 511 U.S. at 835-36 & n.4; see also Estelle, 429 U.S. at 106 (establishing that deliberate indifference 18 requires more than negligence). A prison official cannot be held liable under the Eighth Amendment 19 for denying an inmate humane conditions of confinement unless the standard for criminal 20 recklessness is met, i.e., the official knows of and disregards an excessive risk to inmate health or 21 safety. See Farmer, 511 U.S. at 837. The official must both be aware of facts from which the 22 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 23 inference. See id. An Eighth Amendment claimant need not show, however, that a prison official 24 acted or failed to act believing that harm actually would befall an inmate; it is enough that the official 25 acted or failed to act despite his knowledge of a substantial risk of serious harm. See id. at 842. This 26 is a question of fact. See Farmer, 511 U.S. at 842. A heightened pleading standard applies to the 27 subjective prong of Eighth Amendment claims: the plaintiff must make nonconclusory allegations 28 supporting an inference of unlawful intent. Alfrey v. United States, 276 F.3d 557, 567-68 (9th Cir. 3

1 2002) (applying standard to Bivens Eighth Amendment claim). 2 Although the Eighth Amendment protects against cruel and unusual punishment, this does not

3 mean that federal courts can or should interfere whenever prisoners are inconvenienced or suffer de 4 minimis injuries. See, e.g., Holloway v. Gunnell, 685 F.2d 150 (5th Cir. 1985) (no claim stated 5 where prisoner forced to spend two days in hot dirty cell with no water); Evans v. Fogg, 466 F. Supp. 6 949 (S.D.N.Y. 1979) (no claim stated by prisoner confined for twenty-four hours in refuse strewn cell 7 and for two days in flooded cell). Federal courts instead should avoid enmeshing themselves in the 8 minutiae of prison operations in the name of the Eighth Amendment. See Wright v. Rushen, 642 F.2d 9 1129, 1132 (9th Cir. 1981). 10 United States District Court For the Northern District of California Plaintiff alleges that the named Defendants, who are mostly SVSP correctional officers, were

11 responsible for cleaning his cell; however, they "refused" Plaintiff's requests to have his cell cleaned. 12 (Am. Compl. at 3.) Plaintiff alleges that he is disabled and cannot adequately clean his own cell. He 13 claims that "waste and human feces" from neighboring cells flooded into his cell, and Defendants 14 refused to clean his cell for up to "several days." (Compl. at 3.) Plaintiff also alleges that Defendant 15 O'Kelly acted with deliberate indifference by refusing to file a report about the "filthy" conditions in 16 Plaintiff's cell. Plaintiff alleges that Defendants' actions caused him to become ill. 17 Liberally construed, Plaintiff states a COGNIZABLE Eighth Amendment claim that 18 Defendants Powell, Ferry, Miller, Bailey, Meyers, Rincon, Reyes, Ippolito and O'Kelly acted with 19 deliberate indifference to his health and safety needs. 20 21 22 CONCLUSION For the foregoing reasons, the Court orders as follows: 1. The Court finds COGNIZABLE Plaintiff's Eighth Amendment deliberate indifference

23 claim against Defendants Powell, Ferry, Miller, Bailey, Meyers, Rincon, Reyes, Ippolito and O'Kelly. 24 2. The Clerk of the Court shall issue summons and the United States Marshal shall serve, 25 without prepayment of fees, copies of: (1) the complaint and amended complaint as well as copies of 26 all attachments thereto (docket nos. 1, 4); and (2) a copy of this Order upon SVSP Correctional 27 Officers B. Powell, D. Ferry, T.G. Miller, G. Bailey, A. Meyers, J. Ippolito, Reyes and Rincon as 28 well as SVSP Licensed Vocational Nurse O'Kelly. The Clerk shall also mail copies of these 4

1 documents to the Attorney General of the State of California. Additionally, the Clerk shall serve a 2 copy of this Order on Plaintiff. 3 4 3. In order to expedite the resolution of this case, the Court orders as follows: a. Defendants shall answer the complaint in accordance with the Federal Rules of

5 Civil Procedure. In addition, no later than thirty (30) days from the date their answer is due, 6 Defendants shall file a motion for summary judgment or other dispositive motion. The motion shall 7 be supported by adequate factual documentation and shall conform in all respects to Federal Rule of 8 Civil Procedure 56. If Defendants are of the opinion that this case cannot be resolved by summary 9 judgment, they shall so inform the Court prior to the date their summary judgment motion is due. All 10 papers filed with the Court shall be promptly served on Plaintiff. United States District Court For the Northern District of California 11 b. Plaintiff's opposition to the dispositive motion shall be filed with the Court and

12 served on Defendants no later than forty-five (45) days after the date on which Defendants' motion is 13 filed. The Ninth Circuit has held that the following notice should be given to plaintiffs: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The defendants have made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted [in favor of the defendants], your case will be dismissed and there will be no trial.

28 See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). Plaintiff is advised to read 5

1 Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 2 (party opposing summary judgment must come forward with evidence showing triable issues of 3 material fact on every essential element of his claim). Plaintiff is cautioned that because he bears the 4 burden of proving his allegations in this case, he must be prepared to produce evidence in support of 5 those allegations when he files his opposition to Defendants' dispositive motion. Such evidence may 6 include sworn declarations from himself and other witnesses to the incident, and copies of documents 7 authenticated by sworn declaration. Plaintiff is advised that if he fails to submit declarations 8 contesting the version of the facts contained in Defendants' declarations, Defendants' version may be 9 taken as true and the case may be decided in Defendants' favor without a trial. Plaintiff will not be 10 able to avoid summary judgment simply by repeating the allegations of his complaint. 11 c. If Defendants wish to file a reply brief, they shall do so no later than fifteen 12 (15) days after the date Plaintiff's opposition is filed. 13 d. The motion shall be deemed submitted as of the date the reply brief is due. No 14 hearing will be held on the motion unless the Court so orders at a later date. 15 4. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 16 Leave of Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff and any 17 other necessary witnesses confined in prison. 18 5. All communications by Plaintiff with the Court must be served on Defendants, or their 19 20 counsel once counsel has been designated, by mailing a true copy of the document to Defendants or 21 their counsel. 22 6. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

United States District Court For the Northern District of California

23 informed of any change of address and must comply with the Court's orders in a timely fashion. 24 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal 25 Rule of Civil Procedure 41(b). 26 7. Extensions of time are not favored, though reasonable extensions will be granted. The

27 party making the motion must still meet the deadlines set by the Court until an order addressing the 28 motion for an extension of time is issued. Any motion for an extension of time must be filed no later 6

1 than fifteen (15) days prior to the deadline sought to be extended. 2 IT IS SO ORDERED. SAUNDRA BROWN ARMSTRONG United States District Judge

3 DATED: 10/2/08 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

P:\PRO-SE\SBA\CR.07\Meneweather4204.service.frm 7

1 UNITED STATES DISTRICT COURT FOR THE 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 v. TOMAS L MENEWEATHER, Plaintiff, Case Number: CV07-04204 SBA CERTIFICATE OF SERVICE

7 B POWELL et al, Defendant. 8 9

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United States District Court For the Northern District of California

10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 11 That on October 3, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said 12 copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located 13 in the Clerk's office. 14 15 Tomas Lopez Meneweather D35219 16 Salinas Valley State Prison P.O. Box 1050 17 Soledad, CA 93960 18 Dated: October 3, 2008 19 20 21 22 23 24 25 26 27 28 P:\PRO-SE\SBA\CR.07\Meneweather4204.service.frm 8 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk