(PC) Taylor v. Bird ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ARTHUR TAYLOR, No. 2:20-cv-2007 JAM DB P 11 Plaintiff, 12 v. ORDER 13 LANDON BIRD, 14 Defendant. 15 16 Plaintiff, a state prisoner, proceeds pro se with a civil rights action. Plaintiff’s amended 17 complaint filed on July 28, 2021 (ECF No. 24) is before the court for screening. 18 I. Screening Requirement 19 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion 20 thereof, that may have been paid, the court shall dismiss the case at any time if the court 21 determines that... the action or appeal... fails to state a claim upon which relief may be granted.” 22 28 U.S.C. § 1915(e)(2)(B)(ii). 23 II. Pleading Standard 24 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 25 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 26 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 27 substantive rights, but merely provides a method for vindicating federal rights conferred 28 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 1 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) a right 2 secured by the Constitution or laws of the United States was violated and (2) the alleged violation 3 was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 4 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 5 A complaint must contain “a short and plain statement of the claim showing that the 6 pleader is entitled to relief....” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 7 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 10 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial 11 plausibility demands more than the mere possibility that a defendant committed misconduct, and, 12 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78. 13 III. Plaintiff’s Allegations 14 Plaintiff brings this civil rights action against Landon Bird, Warden of the Deuel 15 Vocational Institution (DVI) in Tracy, California. He seeks damages. 16 Plaintiff was housed at DVI for 132 days sometime in 2016 or 2017. During that time, he 17 only drank water provided by the institution. Three weeks after his arrival, he received a flyer 18 indicating that the DVI water had not been tested in 2016. Apparently, plaintiff began to feel 19 unwell while at DVI, but he did not get diagnosed with Stage II renal failure until after he 20 transferred to another institution. Plaintiff attributes this diagnosis to his consumption of allegedly 21 contaminated water at DVI. Plaintiff accuses Warden Bird of failing to ensure safe drinking water 22 at DVI and alleges Warden Bird had “some kind of knowledge” that the pumps and wells at DVI 23 were providing bad water that was full of bacteria. 24 IV. Discussion 25 The Eighth Amendment requires prison officials to provide human conditions of 26 confinement, including adequate food, clothing shelter, and medical care, and to take reasonable 27 measures to guarantee the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); 28 Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A prisoner seeking relief for an Eighth 1 Amendment violation must show that the official acted with deliberate indifference to a threat of 2 serious harm or injury to an inmate. Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 3 2002). “Deliberate indifference” has both subjective and objective components. A prison official 4 must “be aware of facts from which the inference could be drawn that a substantial risk of serious 5 harm exists and... must also draw the inference.” Farmer, 511 U.S. at 837. Liability may follow 6 only of a prison official “knows that inmates face a substantial risk of serious harm and disregards 7 that risk by failing to take reasonable measures to abate it.” Id. at 837. The exposure to toxic 8 substances can support a claim under section 1983. See Wallis v. Baldwin, 70 F.3d 1074, 1076-77 9 (9th Cir. 1995) (exposure to asbestos); see also Helling v. McKinney, 509 U.S. 25, 35-37 (1993) 10 (using “demonstrably unsafe drinking water” as a hypothetical example of a potential conditions 11 of confinement claim). Mere negligence on the part of a prison official is not sufficient to 12 establish liability, but rather, the official’s conduct must have been wanton. Farmer, 511 U.S. at 13 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 14 Although plaintiff alleges the water at DVI was contaminated and attributes his renal 15 failure to contaminated water at DVI, plaintiff has not alleged any facts showing that he was 16 incarcerated under conditions posing a substantial risk of serious harm. The complaint also lacks 17 any plausible suggestion of causation. 18 Plaintiff was previously notified his original complaint failed to allege facts showing the 19 water was contaminated. The amended complaint likewise fails to plausibly suggest the water 20 was contaminated. Plaintiff now describes the contamination as bacterial but does not set forth a 21 basis for the assertion. It remains an unsupported and unwarranted inference, premised on the 22 flyer indicating DVI water was not tested in 2016 and plaintiff’s renal failure, which he attributes 23 to the water. 24 Plaintiff’s exhibits1 contradict his speculations. Plaintiff has provided the court with, 25 among other exhibits, pages from a 2017 DVI Water Quality Report. The report states DVI’s 26 1 The court references the exhibits to plaintiff’s original complaint, which he incorporated by 27 reference into his amended complaint. (See ECF No. 24 at 3.) Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (a court may consider materials “whose contents are alleged in a complaint 28 and whose authenticity no party questions, but which are not physically attached to the 1 water “meets or exceeds USEPA and California State Water Resource Control Board standards.” 2 (ECF No. 1 at 14-15.) 3 Plaintiff also attached at letter dated February 19, 2019 from the State Water Resources 4 Control Board responding to plaintiff’s inquiries. According to the Division’s records, there were 5 no Maximum Contaminant Level (“MCL”) exceedances on DVI’s Reverse Osmosis treated water 6 supplied to the distribution system in 2016. (ECF No. 1 at 16.) And further, the letter states “you 7 mentioned that a flyer was passed out stating that the water had not been tested during 2016. This 8 flyer was a public notification stating that DVI failed to monitor some of its wells for nitrate in 9 2016. Past and present monitoring show that DVI has not had any nitrate MCL exceedances.” 10 (Id.) 11 Thus, the exhibits provide no support for the speculative allegation about contaminated 12 water. In addition, plaintiff does not adequately allege facts to plausibly show that his renal 13 failure was caused by any contamination in water. Unfounded speculation that plaintiff’s renal 14 failure was caused by contaminated water is not enough on its own to state a claim. 15 Finally, the mere allegation that Warden Bird had some kind of knowledge about 16 allegedly contaminated drinking water at DVI is too vague and conclusory to adequately plead 17 the existence of the subjective component of a deliberate indifference claim. See Farmer, 511 18 U.S. at 837. Under all the circumstances, plaintiff’s claims still lack facial plausibility. 19 Speculative allegations are insufficient for “the court to draw the reasonable inference that the 20 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 21 V. Leave to Amend 22 Plaintiff’s amended complaint fails to state a claim on which relief may be granted. The 23 court will allow plaintiff one final opportunity to amend in the event plaintiff believes there are 24 additional facts he can allege in order to state a cognizable claim. Noll v. Carlson, 809 F.2d 1446, 25 1448-49 (9th Cir. 1987). This opportunity to amend is not for the purpose of adding new and 26 unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 27 28 [plaintiff’s] pleading” (internal citation and quotation marks omitted). 1 The amended complaint must be complete in itself without reference to any prior pleading. 2 See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967); Local Rule 220. The amended complaint should 3 be clearly titled “Second Amended Complaint” and reference the appropriate case number. 4 If plaintiff does not wish to amend or cannot allege additional consistent facts, he may file 5 a notice of voluntary dismissal and the action then will be terminated by operation of law. Fed. R. 6 Civ. P. 41(a)(1)(A)(i). Alternatively, plaintiff may again forego amendment and notify the court 7 that he wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 8 (9th Cir. 2004) (plaintiff may elect to forego amendment). If plaintiff elects to stand on his first 9 amended complaint, then the undersigned will issue findings and recommendations to dismiss the 10 complaint without further leave to amend; plaintiff will have an opportunity to object and the matter 11 will be decided by the district judge. If plaintiff fails to file a second amended complaint, notice of 12 election to stand on the complaint, or notice of voluntary dismissal, then the undersigned will 13 recommend the action be dismissed, with prejudice, for failure to obey a court order and failure to 14 state a claim. 15 V. Appointment of Counsel 16 Plaintiff has requested appointment of counsel. The United States Supreme Court has 17 ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 18 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional 19 circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 20 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 21 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 22 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 23 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 24 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 25 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 26 common to most prisoners, such as lack of legal education and limited law library access, do not 27 establish exceptional circumstances that would warrant a request for voluntary assistance of 28 counsel. In the present case, the court does not find the required exceptional circumstances. 1 | VI. Conclusion 2 Based on the foregoing, IT IS HEREBY ORDERED: 3 1. Plaintiff’s motion for the appointment of counsel (ECF No. 26) is denied; and 4 2. Within thirty days from the date of service of this order, plaintiff must file one of the 5 | following: a second amended complaint curing the deficiencies identified herein, a notice of 6 | voluntary dismissal, or a notice of election to stand on the first amended complaint. 7 | Dated: October 8, 2021 8 9 DLB7 10 emoorsemest ONIEED STA irs arGiSiN □□□□ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28