Lorenzo Stewart v. J. Carzon

Filing 9

ORDER REOPENING CASE. Plaintiff's complaint is dismissed with leave to amend. If plaintiff can cure deficiencies, he shall file an amended complaint within 30 days from the date this order is filed. See details in this Order and Docket 8. Signed by Judge Hon. Lucy H. Koh on 10/6/2014. (sms, COURT STAFF) (Filed on 10/6/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LORENZO STEWART,

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Plaintiff,

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vs.
J. CARZON,

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Defendant.

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No. C 14-2625 LHK (PR)
ORDER RE-OPENING CASE;
DISMISSING CASE WITH LEAVE
TO AMEND

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Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint
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pursuant to 42 U.S.C. § 1983. On July 17, 2014, the court dismissed this action for failure to file
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a timely application for leave to proceed in forma pauperis. That same day, the court received
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plaintiff’s completed application for leave to proceed in forma pauperis. For good cause, the
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court RE-OPENS this action. Plaintiff is granted leave to proceed in forma pauperis in a
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separate order. For the reasons stated below, the court dismisses the complaint with leave to
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amend.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity. See
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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss
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Order Re-Opening Case; Dismissing with Leave to Amend
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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or

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seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),

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

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

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

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

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

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

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B.

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Plaintiff’s Claims
Plaintiff alleges that he is mobility impaired and must be housed in a place with level

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terrain. Plaintiff states that while he was housed in San Quentin State Prison, he was being

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escorted while he was double handcuffed and using a wheeled walker. Along the floor was a

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plate which was one half inch off the ground. Plaintiff’s wheel got caught on a piece of metal

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that was missing, and plaintiff fell onto the ground and injured himself. Plaintiff requests

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damages and names Warden J. Carzon of San Quentin State Prison.

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

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First, liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the plaintiff

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can show that the defendant’s actions both actually and proximately caused the deprivation of a

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federally protected right. Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062,

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1085 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Either personal

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involvement or integral participation of the officers in the alleged constitutional violation is

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required before liability may be imposed; liability may not be imposed based solely on an

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officer’s presence during the incident. See Hopkins v. Bonvicino, 573 F.3d 752, 769-70 (9th Cir.

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2009) (holding that although “integral participant” rule may not be limited to officers who

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provide armed backup, officer who waits in front yard and does not participate in search of

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residence not an integral participant). Here, plaintiff names Warden Carzon, but plaintiff does

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not link the defendant to any action or inaction that would demonstrate that defendant is liable

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for any wrongdoing.
Order Re-Opening Case; Dismissing with Leave to Amend
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Second, the Eighth Amendment’s prohibition of “cruel and unusual punishments”

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imposes a duty on prison officials to, among other things, “‘take reasonable measures to

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guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting

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Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). A prison official violates the Eighth

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Amendment only when two requirements are met: (1) the deprivation is, objectively, sufficiently

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serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate safety. See

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Farmer, 511 U.S. at 834. The test for deliberate indifference is the same as criminal

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recklessness, i.e., the official must actually know of and disregard an excessive risk to inmate

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safety. See id. at 837. The official “must both be aware of facts from which the inference could

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be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id.

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Neither negligence nor gross negligence constitutes deliberate indifference. See id. at 835-36 &

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n.4; Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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

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Amendment violation. Claims regarding a bump or hole in the floor, without more, “do not state

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even an arguable claim for cruel and unusual punishment.” See Jackson v. Arizona, 885 F.2d

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639, 641 (9th Cir. 1989), superseded by statute on other grounds as stated in Lopez v. Smith, 203

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F.3d 1122, 1130-31 (9th Cir. 2000). Instead, to state a cognizable claim for relief, there must be

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a confluence of exacerbating conditions such that the floor posed a serious, unavoidable threat to

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plaintiff’s safety. See Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998) (“[s]lippery floors

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without protective measures could create a sufficient danger to warrant relief” when an inmate

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alleges facts that exacerbate the danger resulting from such conditions); Osolinski v. Kane, 92

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F.3d 934, 938 (9th Cir. 1996) (a single, minor safety hazard does not violate the Eighth

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Amendment but allegations of conditions which “exacerbate[] the inherent dangerousness of

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already-existing hazards” or “render[] [an inmate] unable to provide for his own safety” are

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sufficient to state a cognizable claim for relief (internal quotations, brackets and citation

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omitted)). Here, there is no allegation that any prison official knew about the damaged floor

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prior to plaintiff’s injury. Moreover, as stated, at most plaintiff states a claim for negligence or

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gross negligence, neither of which are cognizable under § 1983.
Order Re-Opening Case; Dismissing with Leave to Amend
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Accordingly, the complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff will

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

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can do so in good faith.

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CONCLUSION

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

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1.

Plaintiff’s complaint is DISMISSED with leave to amend.

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2.

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

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AMENDED COMPLAINT within thirty days from the date this order is filed. The amended

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complaint must include the caption and civil case number used in this order (C 14-2625 LHK

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

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

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

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amend would be futile and this action will be dismissed.

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3.

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

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

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

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

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

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4.

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

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

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

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

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of Civil Procedure 41(b).

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

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Order Re-Opening Case; Dismissing with Leave to Amend
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