(PC) Smith v. CDCR ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TORIANO GERMAINE SMITH, No. 2:19-cv-2107 TLN CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA DEPARTMENT OF CORRECTIONS & REHABILITATION, 15 Defendant. 16 17 By order filed April 7, 2020, the undersigned screened the complaint and dismissed it with 18 leave to amend. (ECF No. 9.) Plaintiff has now filed a first amended complaint. (ECF No. 12.) 19 I. Statutory Screening of Prisoner Complaints 20 The court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 22 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 23 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 24 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 25 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 26 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 27 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 28 1 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 2 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 3 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 4 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 5 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 6 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 7 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 8 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 9 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 10 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 11 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 12 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 13 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 14 content that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 16 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 17 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the 18 light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 19 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 20 II. Complaint 21 The first amended complaint alleges that Chief Engineer Frost and Associate Warden 22 Thomas violated plaintiff’s Eighth Amendment rights. (ECF No. 12.) Plaintiff alleges that Frost 23 failed “to replace or troubleshoot and fix” the boilers at the prison which led to water restrictions 24 imposed by Thomas. (Id. at 3.) Under the water restrictions, inmates were not permitted to use 25 water for showers and Thomas instructed Frost to rent and install replacement boilers until the 26 unit boilers could be fixed. (Id.) As a result, plaintiff went six and a half days without a shower, 27 causing rashes between his thighs, cysts, boils, and humiliation from body odor. (Id.) 28 //// 1 III. Failure to State a Claim 2 “The Constitution does not mandate comfortable prisons, but neither does it permit 3 inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and 4 citation omitted). “[A] prison official violates the Eighth Amendment only when two 5 requirements are met. First, the deprivation alleged must be, objectively, sufficiently serious, a 6 prison official’s act or omission must result in the denial of the minimal civilized measure of 7 life’s necessities.” Id. at 834 (internal quotation marks and citations omitted). Second, the prison 8 official must subjectively have a sufficiently culpable state of mind, “one of deliberate 9 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). 10 The complaint fails to state a claim under the Eighth Amendment because being unable to 11 shower for six and a half days, while unpleasant, is not sufficiently serious to constitute an Eighth 12 Amendment violation. Davenport v. DeRobertis, 844 F.2d 1310, (7th Cir. 1988) (limiting 13 prisoners in segregation to one shower per week did not violate Eighth Amendment); Rice v. 14 King County, 243 F.3d 549 (9th Cir. 2000) (unpublished table decision) (denial of shower for ten 15 days not a serious deprivation); Richard v. Aldridge, No. 2:19-cv-2006 DB, 2020 WL 469348, at 16 *2, 2020 U.S. Dist. LEXIS 16813, at *5-6 (E.D. Cal. Jan. 29, 2020) (five-day denial of shower 17 did not rise to level of deliberate indifference ) (collecting cases). Furthermore, plaintiff has not 18 shown that either defendant was aware of a risk to plaintiff’s health or safety from the brief 19 deprivation and the allegations show that they took steps to fix the problem. 20 IV. No Leave to Amend 21 Leave to amend should be granted if it appears possible that the defects in the complaint 22 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 23 (9th Cir. 2000) (en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se 24 litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, 25 unless it is absolutely clear that the deficiencies of the complaint could not be cured by 26 amendment.” (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after 27 careful consideration, it is clear that a complaint cannot be cured by amendment, the court may 28 dismiss without leave to amend. Cato, 70 F.3d at 1005-06. wOASe 2 AVVO □□□ LUE PRIN INE MVOC tw POO Ve OY IT 1 Given the nature of the deprivation complained about, the undersigned finds that the 2 | complaint fails to state a claim for relief and that amendment would be futile. The complaint 3 | should therefore be dismissed without leave to amend. 4 V. Plain Language Summary of this Order for a Pro Se Litigant 5 The first amended complaint should be dismissed because not being able to shower for six 6 | anda half days is not serious enough to be a violation of your constitutional rights and defendants 7 | took steps to fix the problem. Because the temporary denial of a shower does not violate your 8 | Eighth Amendment rights, it is being recommended that the complaint be dismissed without leave 9 | to amend. 10 Accordingly, IT IS HEREBY RECOMMENDED that the first amended complaint be 11 || dismissed without leave to amend for failure to state a claim. 12 These findings and recommendations are submitted to the United States District Judge 13 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one days 14 | after being served with these findings and recommendations, plaintiff may file written objections 15 | with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 16 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 17 | time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 18 | (9th Cir. 1991). 19 | Dated: June 10, 2020 dp. A. fe 20 CAROLYN K DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 13:smit2107.ac.dimiss.f&r 24 25 26 27 28