Singh v. Franke, et al
Filing
126
OPINION AND ORDER. The Court GRANTS Defendant Tom Clark's Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to FRCP 12 (b) (6) 96 . Because Plaintiff was previously granted leave to amend to state a claim against Defendant Clark, the dismissal is WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's Cross-Motion to Sever Mis-Joined Defendants is DENIED as moot. Signed on 12/20/2013 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROTISH VIKASH SINGH,
Civil No. 2:12-cv-00873-BR
Plaintiff,
OPINION AND ORDER
v.
S. FRANKE, et al.,
Defendants.
ROTISH VIKASH SINGH
SID #11852604
Two Rivers Correctional Institution
82911 Beach Access Rd.
Umatilla, OR 97882
Plaintiff Pro Se
ELLEN F. ROSENBLUM
Attorney General
SHANNON M. VINCENT
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Defendants Belleque,
Brown, Fanger, Franke, Gower, Gruenwald,
Hansen, Jackson, Jhonston, Martinez,
Mathisen, Perkins, Reynolds, Shelton,
Taylor, and Wettlaufer
1 - OPINION AND ORDER -
STEVEN A. KRAEMER
MARK SHERMAN
Hart Wagner LLP
1000 SW Broadway
Suite 2000
Portland, OR 97205
Attorneys for Defendant Clark
BROWN, Judge.
Plaintiff,
an
inmate
at
the
Two
Rivers
Correctional
Institution, brings this civil rights action pursuant to 42 U.S.C.
§
1983 pro se.
Currently before the Court are
Defendant Torn
Clark's Motion to Dismiss
Plaintiff's Second Amended Complaint
Pursuant to FRCP 12 (b) (6)
(#96)
and Plaintiff's Cross-Motion to
Sever Misjoined Defendants (#115).
For the reasons that follow,
the Court GRANTS Defendant Clark's Motion and DENIES Plaintiff's
Motion.
BACKGROUND
Plaintiff's Second Amended Complaint alleges claims against
various
correctional
Corrections
( "ODOC")
employees
of
the
Oregon
and Defendant Torn Clark,
Department
of
who is a private
employee of a food broker and wholesaler providing foods to the
2 - OPINION AND ORDER -
prison pursuant to a contract with ODOC. 1
Only one of Plaintiff's
four claims for relief is directed against Defendant Clark.
In his third claim, Plaintiff alleges prison officials acted
with deliberate indifference when they knew of the potential risk
of serious harm and served Plaintiff with outdated spoiled food.
The claim is based on a single incident which occurred on May 21,
2010, in which Plaintiff consumed a packet of mayonnaise sold to
Plaintiff alleges the mayonnaise was
ODOC by Clark's employer.
"out of date," and that he believes consuming it caused him to
become ill.
Plaintiff
contaminated,
Mathisen."
alleges
as
he
Defendant
intentionally
Clark
"knew
provided
it
the
to
food
was
[Defendant]
Plaintiff also alleges Defendants Fanger and Mathisen
"have a practice, custom, and usage of purchasing food items from
defendant Clark and other wholesale
food brokers,"
that Clark
"accepted monetary bribes from Mathisen and other incentives for
doing business with Mathisen,"
Mathisen's
conduct
as
food
and that
services
an
investigation into
manager
showed
"Clark's
conspiratory [sic] involvement."
1
The Court previously granted Defendant Clark's motion to
dismiss Plaintiff's original Complaint for failure to state a claim
upon which relief may be granted.
Due to Plaintiff's pro se
status, the Court granted Plaintiff leave to file a Second Amended
Complaint curing the deficiencies noted in the Court's order.
3 - OPINION AND ORDER -
LEGAL STANDARDS
Where a prisoner proceeding in forma pauperis files an action
seeking redress from a governmental entity or officer or employee
of a governmental entity, the court shall dismiss the case at any
time if the court determines that:
(B)
the action .
(I)
is frivolous or malicious;
(ii) fails to state a claim on which relief may be
granted; or
(iii)
seeks monetary relief against a defendant
who is immune from such relief.
28 U.S.C. §§ 1915 (e) (2) and 1915A(b).
In order to state a claim, Plaintiff's complaint must contain
sufficient factual allegations which, when accepted as true, give
rise to a plausible inference that Defendants violated Plaintiff's
constitutional
(2009);
Bell
(2007) .
pleads
Ashcroft v.
rights.
Atlantic Corp.
"A claim has
factual
reasonable
facial
content
inference
misconduct alleged."
v.
that
that
the
Iqbal,
Twombly,
556
550
U.S.
plausibility when
allows
the
defendant
U.S.
is
554,
the
court
662,
to
liable
678
556-57
plaintiff
draw
the
for
the
Iqbal, 556 U.S. at 678; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
As
the
Ninth Circuit has
instructed however,
"continue to construe pro se filings liberally."
4 - OPINION AND ORDER -
courts must
Hebbe v. Pliler,
627 F.3d 338, 341 (9th Cir. 2010).
A "complaint [filed by a pro
se prisoner] 'must be held to less stringent standards than formal
pleadings drafted by lawyers.'"
551 U.S. 89 , 94
(2007)
(quoting Erickson v . Pardus,
Id.
(per curiam)) .
Before dismissing a pro se civil rights complaint for failure
to
state
a
claim,
this
Court
supplies
the
statement of the complaint's deficiencies.
Angeles
Police
839
Dept.,
F.2d
621,
plaintiff
with
Karim-Panahi v.
623 - 24
(9th
Cir .
Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1 98 7).
a
Los
1988);
A pro se
litigant will be given leave to amend his or her complaint unless
it is absolutely clear that the deficiencies of the complaint
Karim-Panahi,
cannot be cured by amendment.
839 F.2d at
623;
Lopez v. Smith, 203 F. 3d 1122, 1130-31 (9th Cir . 2000) .
DISCUSSION
Plaintiff's
Second
Amended
Complaint
fails
to
cure
the
deficiencies noted in the Order granting Defendant Clark 's Motion
to Dismiss the original Complaint.
Specifically, Plaintiff fails
to allege facts supporting a claim that Defendant Clark was acting
under color of state law, or that the harm alleged rises to the
level of a constitutional violation.
As
noted
generally,
law.
by
the
Court
in
the
prior
Opinion
and
Order,
private parties are not acting under color of state
Price v.
Hawaii,
939
5 - OPINION AND ORDER -
F.2d 702,
707-08
(9th Cir.
1991).
Where a private party conspires with state officials to deprive
others of constitutional rights,
however,
the private party is
acting under color of state law.
Tower v . Glover , 467 U.S. 914,
920 (1984); Franklin v. Fox, 312 F. 3d 423, 441 (9th Cir. 2002).
"To prove a conspiracy between the state and private parties
under [§] 1983, the [plaintiff] must show an agreement or meeting
of the minds to violate constitutional rights.
To be liable, each
participant in the conspiracy need not know the exact details of
the plan, but each must at least share the common objective of the
conspiracy."
United Steel workers of Am.
865 F.2d 1539, 1540-41
internal
quotations
insufficient
to
(9th Cir.
omitted).
state
a
claim
Sacramento County Superior Court,
1989)
v.
Phelps Dodge Corp.,
(en bane)
Conclusory
of
(citations and
allegations
conspiracy.
318 F.3d 1156,
Simmons
1161
are
v.
(9th Cir.
2003).
Plaintiff alleges only conclusory statements that Defendant
Clark conspired with prison officials.
He does not allege facts
supporting the claim.
Moreover,
even
if
Plaintiff
alleged
facts
sufficient
to
establish a conspiracy between Defendant Clark and ODOC officials,
Plaintiff
violation.
fails
The
to
allege
facts
Eighth Amendment
establishing a
requires
constitutional
only that prisoners
receive food that is adequate to maintain health; the food need
not be tasty or aesthetically pleasing.
6 - OPINION AND ORDER -
LeMaire v. Maass, 12 F.3d
1444,
1456
(9th
Cir.
1993).
An
isolated
incident
of
food
poisoning, particularly where the plaintiff did not suffer serious
injury,
is
not
violation.
Va. 1992)
sufficient
to
constitute
an
Eighth
Amendment
See Islam v. Jackson, 782 F.Supp. 1111, 1114-15 (E.D.
(serving one meal contaminated with maggots and meals
under unsanitary conditions for thirteen days was not cruel and
unusual punishment); see also Bennett v. Misner, 2004 WL 2091473,
*17 (D.Or. Sept. 17, 2004)
(inmates served ketchup packages marked
for use one year before failed to state Eighth Amendment violation
where they did not allege they suffered significant injury or
illness, such as specific, repeated instances of food poisoning).
Finally,
Defendant
to the extent Plaintiff argues his claims against
Clark
negligence,
are
fraud,
based
and
upon
breach
common
of
law
contract
principles
under
jurisdiction, Plaintiff's argument lacks merit.
of
diversity
Plaintiff makes
no such allegations; his claim against Defendant Clark is based
solely on an alleged Eighth Amendment violation.
To the extent
Plaintiff attempts to invoke diversity jurisdiction, his Second
Amended Complaint
fails.
See
28
U.S.C.
§
1332(a)
(diversity
jurisdiction requires that all parties to an action be "citizens
of different states" and that the amount in controversy exceed
$75,000.00).
7 - OPINION AND ORDER -
CONCLUSION
For these reasons,
the Court GRANTS Defendant Tom Clark's
Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to
FRCP 12 (b) ( 6)
(#96).
leave to amend to
Because Plaintiff was previously granted
state a
claim against
Defendant Clark,
the
dismissal is WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff's Cross-Motion to Sever
Mis-Joined Defendants is DENIED as moot.
IT IS SO ORDERED.
DATED this
J.D
~
day of
8 - OPINION AND ORDER -
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