Thomas Eugene Moore v. California Department of Corrections & Rehabilitations et al

Filing 7

ORDER re 1 Complaint, filed by Thomas Eugene Moore. Plaintiff's complaint is DISMISSED with leave to amend. If plaintiff can cure the pleading deficiencies described above, he shall file an AMENDED COMPLAINT within thirty days from the d ate this order is filed. See Order for more details. Failure to file an amended complaint within thirty days and in accordance with this order will result in a finding that further leave to amend would be futile and this action will be dismissed. Signed by Judge Hon. Lucy H. Koh on 10/6/2014. (sms, COURT STAFF) (Filed on 10/6/2014)

1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
11

THOMAS EUGENE MOORE,

12

Plaintiff,

13
14
15

vs.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATIONS DIRECTOR J.
BEARD, et al.,

16
Defendants.
17
18

)
)
)
)
)
)
)
)
)
)
)
)
)

No. C 14-2566 LHK (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint

19

pursuant to 42 U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis in a

20

separate order. For the reasons stated below, the court dismisses the complaint with leave to

21

amend.

22
23
24

DISCUSSION
A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

25

seeks redress from a governmental entity or officer or employee of a governmental entity. See

26

28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss

27

any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or

28

seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),
Order of Dismissal with Leave to Amend
P:\PRO-SE\LHK\CR.14\Moore566dwla.wpd

1

(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police

2

Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

3

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

4

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

5

the alleged deprivation was committed by a person acting under the color of state law. West v.

6

Atkins, 487 U.S. 42, 48 (1988).

7

B.

8
9

Plaintiff’s Claims
In July 2004, plaintiff alleges that defendants1 allowed drinking water within Monterey

County, Salinas, Soledad, and SVSP to become contaminated, toxic, and undrinkable for human

10

consumption. Between July 2004 and August 2004, while plaintiff was confined at SVSP,

11

plaintiff became ill on Facility C. The water became contaminated and warnings were given via

12

flyers and posters that plaintiff should not drink the water at SVSP facilities because of unsafe

13

conditions. But, it was too late because plaintiff had already been ingesting the water.

14

Defendants CDCR Director J. Beard, Warden Lamarque, Governor Brown Jr., and Doe #1

15

turned off the drinking water from plaintiff’s cell, and plaintiff was given bottled water by the

16

cup. Eight years later, on November 8, 2012, plaintiff was diagnosed with prostate cancer, and

17

on October 23, 2013, plaintiff discovered that the nitrate and other hazardous materials that were

18

present in the water in 2004 is one of the chemicals known to cause cancer. Plaintiff claims that

19

defendants exposed plaintiff to these chemicals, which caused plaintiff’s cancer.

20

The complaint has several deficiencies that require an amended complaint to be filed.

21

First, the Eighth Amendment’s prohibition of “cruel and unusual punishments” imposes a duty

22

on prison officials to, among other things, “‘take reasonable measures to guarantee the safety of

23

the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468

24

U.S. 517, 526-27 (1984)). A prison official violates the Eighth Amendment only when two

25
26
27
28

1

Plaintiff names as defendants the California Department of Corrections and
Rehabilitations (“CDCR”) Director J. Beard; Salinas Valley State Prison Warden Lamarque;
Governor J. Brown; the County of Monterey; the City of Soledad; the Monterey County Water
Resources Agency; the Monterey Peninsula Water Management District; and Doe Defendants.
Order of Dismissal with Leave to Amend
P:\PRO-SE\LHK\CR.14\Moore566dwla.wpd

2

1

requirements are met: (1) the deprivation is, objectively, sufficiently serious; and (2) the prison

2

official is, subjectively, deliberately indifferent to inmate safety. See Farmer, 511 U.S. at 834.

3

The test for deliberate indifference is the same as criminal recklessness, i.e., the official must

4

actually know of and disregard an excessive risk to inmate safety. See id. at 837. The official

5

“must both be aware of facts from which the inference could be drawn that a substantial risk of

6

serious harm exists, and he must also draw the inference.” Id. Neither negligence nor gross

7

negligence constitutes deliberate indifference. See id. at 835-36 & n.4; Estelle v. Gamble, 429

8

U.S. 97, 106 (1976).

9

Even with liberal construction, the complaint does not state a claim for an Eighth

10

Amendment violation against these defendants. Liability may be imposed on an individual

11

defendant under 42 U.S.C. § 1983 if the plaintiff can show that a defendant’s actions both

12

actually and proximately caused the deprivation of a federally protected right. Lemire v. Cal.

13

Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1085 (9th Cir. 2013); Leer v. Murphy,

14

844 F.2d 628, 634 (9th Cir. 1988). Either personal involvement or integral participation of the

15

officers in the alleged constitutional violation is required before liability may be imposed;

16

liability may not be imposed based solely on an officer’s presence during the incident. See

17

Hopkins v. Bonvicino, 573 F.3d 752, 769-70 (9th Cir. 2009) (holding that although “integral

18

participant” rule may not be limited to officers who provide armed backup, officer who waits in

19

front yard and does not participate in search of residence not an integral participant).

20

Here, plaintiff does not link each individual defendant to any action or inaction that

21

would demonstrate that defendant is liable for any wrongdoing. Plaintiff’s own allegations

22

appear to show that defendants Beard, Lamarque, Brown, and Doe #1 warned inmates about not

23

drinking the water, and then they shut down the drinking water in plaintiff’s cell and began

24

issuing bottled water in its stead. Liberally construed, those allegations do not demonstrate that

25

defendants were criminally reckless regarding plaintiff’s safety. As stated, at most plaintiff

26

states a claim for negligence or gross negligence, neither of which are cognizable under § 1983.

27

Even at the pleading stage, “[a] plaintiff must allege facts, not simply conclusions, that show that

28

an individual was personally involved in the deprivation of his civil rights.” Barren v.
Order of Dismissal with Leave to Amend
P:\PRO-SE\LHK\CR.14\Moore566dwla.wpd

3

1

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff will be given an opportunity to

2

amend his complaint to allege specifics.

3

Second, to the extent plaintiff is raising a claim of supervisory liability, again, plaintiff

4

has not alleged sufficient facts to support such a claim. “In a § 1983 . . . action – where masters

5

do not answer for the torts of their servants – the term ‘supervisory liability’ is a misnomer.

6

Absent vicarious liability, each Government official, his or her title notwithstanding, is only

7

liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A

8

supervisor may be liable under section 1983 upon a showing of (1) personal involvement in the

9

constitutional deprivation or (2) a sufficient causal connection between the supervisor’s

10

wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04

11

(9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). If plaintiff believes

12

he can allege facts sufficient to establish supervisory liability, he may amend his complaint to do

13

so.

14

Third, to raise a claim of municipal liability, a plaintiff must show: (1) that the plaintiff

15

possessed a constitutional right of which he or she was deprived; (2) that the municipality had a

16

policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional

17

rights; and (4) that the policy is the moving force behind the constitutional violation. See

18

Plumeau v. School Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). Plaintiff has

19

not alleged any of these elements. If plaintiff believes he can allege facts sufficient to establish

20

municipal liability, he may amend his complaint to do so.

21

Accordingly, the complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff will

22

be provided with thirty days in which to amend to correct the deficiencies in his complaint if he

23

can do so in good faith.

24

CONCLUSION

25

For the foregoing reasons, the court hereby orders as follows:

26

1.

Plaintiff’s complaint is DISMISSED with leave to amend.

27

2.

If plaintiff can cure the pleading deficiencies described above, he shall file an

28

AMENDED COMPLAINT within thirty days from the date this order is filed. The amended
Order of Dismissal with Leave to Amend
P:\PRO-SE\LHK\CR.14\Moore566dwla.wpd

4

1

complaint must include the caption and civil case number used in this order (C 14-2566 LHK

2

(PR)) and the words AMENDED COMPLAINT on the first page. Plaintiff may not incorporate

3

material from the prior complaint by reference. Failure to file an amended complaint within

4

thirty days and in accordance with this order will result in a finding that further leave to

5

amend would be futile and this action will be dismissed.

6

3.

Plaintiff is advised that an amended complaint supersedes the original complaint.

7

“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

8

in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

9

Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

10
11

Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
4.

It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

12

court informed of any change of address by filing a separate paper with the clerk headed “Notice

13

of Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to

14

do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule

15

of Civil Procedure 41(b).

16
17

IT IS SO ORDERED.
DATED:
LUCY H. KOH
United States District Judge

18
19
20
21
22
23
24
25
26
27
28
Order of Dismissal with Leave to Amend
P:\PRO-SE\LHK\CR.14\Moore566dwla.wpd

5