William Townsend, Jr. v. D. Sisto , 457 F. App'x 653 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIAM TOWNSEND, Jr., No. 10-16708
Plaintiff - Appellant, D.C. No. 2:09-cv-02342-KJM
v.
MEMORANDUM *
D. K. SISTO; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Magistrate Judge, Presiding **
Submitted October 25, 2011 ***
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
California state prisoner William Townsend, Jr. appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging Eighth
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Townsend consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Amendment violations in connection with a fall he sustained in the prison showers.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal
under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
We reverse and remand.
Dismissal of Townsend’s action was improper, at this early stage, because
Townsend alleged that prison officials were aware that the poorly maintained
shower floors posed a significant threat to inmate safety yet failed to take
reasonable measures to avoid that threat. See Farmer v. Brennan, 511 U.S. 825,
847 (1994) (a prison official violates the Eighth Amendment prohibition against
inhumane conditions of confinement if he or she knows of a substantial risk of
serious harm to an inmate and fails to take reasonable measures to avoid the harm);
Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998) (“Slippery floors without
protective measures could create a sufficient danger to warrant relief.”).
Accordingly, we reverse the judgment, and remand with instructions for the
district court to order service of the operative second amended complaint by the
United States Marshal.
We deny Townsend’s request to remand this case to a different judge or
court because the record does not indicate that the case presents the rare
2 10-16708
circumstances necessary to warrant reassignment. See Hernandez v. City of El
Monte, 138 F.3d 393, 402-03 (9th Cir. 1998).
Townsend shall bear his own costs on appeal.
REVERSED and REMANDED.
3 10-16708