Smith v. Chapell et al

Filing 8

ORDER OF DISMISSAL. For the foregoing reasons, the complaint is DISMISSED without leave to amend. Signed by Judge Edward J. Davila on 1/28/2013. (ecg, COURT STAFF) (Filed on 1/29/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 JERRY E. SMITH, Plaintiff, 12 13 vs. 14 SERGEANT M. BLOISE, et al., 15 Defendants. 16 No. C 12-04859 EJD (PR) ) ) ) ) ) ) ) ) ) ) ) ORDER OF DISMISSAL 17 Plaintiff, a state prisoner at San Quentin State Prison, filed the instant civil rights 18 19 action in pro se pursuant to 42 U.S.C. § 1983. The original complaint was dismissed with 20 leave to amend and Plaintiff has filed an amended complaint. (Docket No. 6.) DISCUSSION 21 22 23 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a 24 prisoner seeks redress from a governmental entity or officer or employee of a 25 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 26 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 27 claim upon which relief may be granted or seek monetary relief from a defendant who is 28 immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be Order of Dismissal 04859Smith_dsm.wpd 1 1 liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 2 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 3 4 elements: (1) that a right secured by the Constitution or laws of the United States was 5 violated, and (2) that the alleged violation was committed by a person acting under the 6 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 7 B. Plaintiff’s Claims 8 In the original complaint, Plaintiff stated the sanitation and ventilation in the 9 showers in his cell block were unhealthy due to drainage problems. A prison official said 10 it would be repaired, but it was never fixed. Plaintiff provided no other information 11 regarding the problem with the drainage. The complaint was dismissed with leave to 12 amend for Plaintiff to describe in more detail how the drainage problem violated his 13 Constitutional rights. 14 Unfortunately, Plaintiff has failed to cure the deficiencies cited in the Court’s 15 screening order in this amended complaint. Plaintiff has just repeated the same 16 allegations of the original complaint. Plaintiff states that he filed a notice due to poor 17 drainage, heating, plumbing, lighting and sanitation. (Am. Compl. at 3.) The Defendant 18 in this case, a correctional sergeant said it would be fixed, but it was not fixed. (Id.) 19 Plaintiff seeks an inunction for the necessary repairs to be made. (Id.) 20 Plaintiff is again informed that the Eighth Amendment to the U.S. Constitution 21 prohibits the infliction of cruel and unusual punishments. “The Constitution does not 22 mandate comfortable prisons, ... but neither does it permit inhumane ones.” See Farmer 23 v. Brennan, 511 U.S. 825, 832 (1994) (internal citations and quotation marks omitted). 24 The treatment a prisoner receives in prison and the conditions under which he is confined 25 are subject to scrutiny under the Eighth Amendment. Id. Prison authorities may not deny 26 prisoners “‘the minimal civilized measure of life's necessities.’” Farmer, 511 U.S. at 834 27 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In determining whether a 28 deprivation of a basic necessity is sufficiently serious to satisfy the objective component Order of Dismissal 04859Smith_dsm.wpd 2 1 of an Eighth Amendment claim, a court must consider the circumstances, nature, and 2 duration of the deprivation. The more basic the need, the shorter the time it can be 3 withheld. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). Although the Eighth 4 Amendment protects against cruel and unusual punishment, this does not mean that 5 federal courts can or should interfere whenever prisoners are inconvenienced or suffer de 6 minimis injuries. See, e.g., Hudson v. McMillian, 503 U.S. 1, 9–10 (1992) (8th 7 Amendment excludes from constitutional recognition de minimis uses of force). 8 Plaintiff’s amended complaint fails to state a claim as Plaintiff has simply again 9 said that there are poor conditions in the shower. Plaintiff was previously informed that 10 he needed to provide additional information to set forth an Eighth Amendment claim, but 11 he has failed to even attempt to provide such information. Thus, Plaintiff has again only 12 made an allegation of inconvenience which fails to set forth a constitutional violation. As 13 it is clear from both the original and amended complaint that further amendment would be 14 futile, this case is dismissed without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 15 1129 (9th Cir. 2000) CONCLUSION 16 17 For the foregoing reasons, the complaint is DISMISSED without leave to amend. 18 19 DATED: 1/28/2013 EDWARD J. DAVILA United States District Judge 20 21 22 23 24 25 26 27 28 Order of Service; Directing Ds to file Disp. Motion 04859Smith_dsm.wpd 3

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