(PC) Zackery v. Eldridge ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RANDALL ZACKERY, No. 2:20-cv-0018-EFB P 12 Plaintiff, 13 v. ORDER 14 LAURA ELDRIDGE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action 18 brought under 42 U.S.C. § 1983. After two dismissals by the court (ECF Nos. 7 & 11), plaintiff 19 has filed a second amended complaint (ECF No. 16), which the court must screen. Congress 20 mandates that district courts engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 23 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 24 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 25 relief.” Id. § 1915A(b). 26 The court analyzed plaintiff’s original complaint pursuant to § 1915A as follows: 27 Plaintiff alleges he suffered injuries on February 19, 2019, when the pull- 28 up bar he was using broke, causing him to fall back and hit his back, hip, and head 1 on the cement ground. ECF No. 1 at 9. He claims that if defendant Marco Zeer, the supervisor of plant operations at the California Health Care Facility, “would 2 have monitored his staff and the exercise pull-up bars properly, the bars would 3 have not have broke[n] while plaintiff was using [them].” Id. at 2, 10. Plaintiff adds that defendant Warden Laura Eldridge failed in her capacity as a supervisor 4 to keep the institution safe “with checks and balances.” Id. at 12. Plaintiff claims defendants violated his Eighth Amendment right to personal safety, his right to be 5 free from cruel and unusual punishment, and his Fourteenth Amendment right to due process. Id. at 14-15. 6 7 These allegations cannot survive screening. A prison official violates the Eighth Amendment’s proscription of cruel and unusual punishment where he or 8 she deprives a prisoner of the minimal civilized measure of life’s necessities with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 9 (1994). To succeed on such an Eighth Amendment claim, a prisoner must show that (1) the defendant prison official’s conduct deprived him or her of the minimal 10 civilized measure of life’s necessities and (2) that the defendant acted with 11 deliberate indifference to the prisoner’s health or safety. Id. at 834. To show deliberate indifference, the prisoner must establish that the defendant knew of and 12 disregarded an excessive risk to inmate health or safety – “the official must both be aware of facts from which the inference could be drawn that a substantial risk 13 of serious harm exists, and he must also draw the inference.” Id. at 837. A prison official may thus be free from liability if he or she did not know of the risk or took 14 reasonable action in response to the risk. Id. at 844. 15 Even liberally construed, the complaint does not state a claim for an Eighth 16 Amendment violation as there are no facts supporting a finding of deliberate indifference. Moreover, a simple claim of negligence is not actionable under the 17 Eighth Amendment. Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989); see also Thompson v. McMahon, No, EDCV 12-1020-FMO (JEM), 2013 U.S. Dist. 18 LEXIS 132266 (C.D. Cal. Sept. 16, 2013) (negligence claim arising from 19 prisoner’s fall at work not elevated into a federal cause of action; listing similar cases); Brown v. Brasher, No. CIV S-10-0479-MCE-EFB, 2012 U.S. Dist. LEXIS 20 24379 (E.D. Cal. Feb. 27, 2012) (mobility impaired inmate’s claim regarding slipping and falling in a puddle caused by a water leak could only support a tort 21 claim of negligence). Here, plaintiff’s allegations that the pull-up bar broke while he was using it demonstrate negligence at worst. There are no facts demonstrating 22 that any individual defendant knew of an objectively serious risk to plaintiff – i.e., 23 that plaintiff would be using the bar and that the bar was likely to break -- and disregarded that risk. 24 25 ECF No. 7 at 3-4. 26 In his second amended complaint, plaintiff now alleges that the officer assigned to the 27 recreation area when plaintiff was injured had previously been made aware by a “inmate/patient 28 John Doe” that the pull up bar “should be checked for possible repair . . . .” ECF No. 16 at 5, 10. MwA 2 CUVEE EOE MMU ea PIC eer PY VI 1 | This new allegation is not enough to transform a traditional state law negligence claim into a 2 || constitutional violation. See Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) (“Not 3 || every deviation from ideally safe conditions amounts to a constitutional violation.”); Pauley v. 4 | California, No. 18-cv-2595-KJN, 2018 U.S. Dist. LEXIS 193388, at *10 & n.1-2 (E.D. Cal. Nov. 5 | 13, 2018) (listing cases involving prisoner injuries resulting from poorly maintained facilities and 6 || noting that courts have generally concluded that their claims sound in negligence, even where the 7 | hazard had been known to prison officials). In an abundance of caution, however, the court will 8 || grant plaintiff another chance to amend. If plaintiff can show that the correctional officer was 9 | warned that the pull-up bar posed a specific and excessive risk to plaintiff's safety — as opposed to 10 || receiving a vague suggestion from an unidentified inmate that the bar might need an unspecified 11 || repair — the allegations could potentially survive screening. See Frost v. Agnos, 152 F.3d 1124, 12 | 1129 (th Cir. 1998), citing LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (inmates 13 | entitled to protection from unsafe prison conditions). 14 Accordingly, IT IS ORDERED that: 15 1. Plaintiff’s second amended complaint (ECF No. 16) is dismissed with leave to amend 16 within 30 days from the date of service of this order; and 17 2. Failure to comply with this order may result in dismissal of this action for the reasons 18 stated herein. 19 | DATED: September 29, 2020. Doolin 7 Sod 4 “2 20 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28