Opinion
Civil No. 08-0859 RTB (PCL).
January 9, 2009
I. PROCEDURAL HISTORY
On June 19, 2008, Plaintiff, an inmate currently incarcerated at Kern Valley State Prison located in Delano, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].
The Court granted Plaintiff's Motion to Proceed IFP on June 26, 2008 [Doc. No. 4]. Plaintiff then filed a "Emergency Motion for Injunctive Relief" on July 29, 2008 [Doc. No. 6]. On November 25, 2008, this matter was reassigned to District Judge Roger T. Benitez for all further proceedings [Doc. No. 7].
II. MOTION FOR PRELIMINARY INJUNCTION
Plaintiff has filed an "Emergency Motion for Injunctive Relief" which the Court construes to be a motion for preliminary injunction [Doc. No. 6].
Rule 65 of the Federal Rules of Civil Procedure provides that:
A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, is any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.
As a preliminary matter, Plaintiff's Motion for Injunction does not comply with Rule 65(b)'s important procedural notice requirement. Here, Plaintiff has not demonstrated that his Complaint, or his Motion have been served on any named Defendant. And while Defendants, as employees of the CDCR, may ultimately be represented by the Attorney General in this matter, there has been no appearance on any Defendant's behalf by the Attorney General at this preliminary stage of the proceedings. Moreover, Plaintiff has not submitted a sworn affidavit or declaration certifying that any efforts have been made to give notice of his Motion or Complaint to any named Defendant, which is required by Federal Rule of Civil Procedure 65(b).
As noted above, under Federal Rule of Civil Procedure 65(b), a temporary restraining order may be granted without notice to the adverse party or that party's attorney only if "it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition." FED.R.CIV.P. 65(b). Federal Rule of Civil Procedure 65(b) also requires the Plaintiff to certify to the Court "the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." Id.
Plaintiff's Motion does not comply with these elemental procedural requirements of Federal Rule of Civil Procedure 65(b). Thus, for all these reasons, the Court must DENY without prejudice Plaintiff's Emergency Motion for Injunctive Relief [Doc. No. 6] pursuant to FED.R.CIV.P. 65(b).
In addition, in this Motion Plaintiff appears to raise new claims that were not part of the original Complaint. If so, Plaintiff would likely be required to file a new action as it is unlikely that he was able to exhaust his administrative remedies with respect to the new claims prior to filing this action. See 42 U.S.C. § 1997e; see also See McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (finding that prisoner's civil rights action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if he fully exhausts while the suit is pending)
III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) 1915A(b)
The Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before effecting service of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 28 U.S.C. § 1915A).
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
A. Eighth Amendment claims
In his Complaint, Plaintiff alleges that while he was working in the kitchen of the prison, he was injured while pushing a "fully loaded pallet of vegetables." (Compl. at 3.) As a result, Plaintiff suffered an injury to his hand. ( Id.) These claims, as alleged, fail to state an Eighth Amendment claim. The Eighth Amendment, which prohibits "cruel and unusual punishments," imposes a duty on prison officials to provide humane conditions of confinement and to take reasonable measures to guarantee the safety of the inmates. Helling v. McKinney, 509 U.S. 25, 31-33 (1993). However, every injury suffered by an inmate does not necessarily translate into constitutional liability for prison officials. Osolinski v. Kane, 92 F.3d 934, 936-37 (9th Cir. 1996); Rhodes v. Chapman, 452 U.S. 337, 349 (1981) (noting that the U.S. Constitution "does not mandate comfortable prisons.").
Thus, to assert an Eighth Amendment claim for deprivation of humane conditions of confinement a prisoner must satisfy two requirements: one objective and one subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994). Under the objective requirement, the plaintiff must allege facts sufficient to show that "a prison official's acts or omissions . . . result[ed] in the denial of the 'minimal civilized measure of life's necessities.'" Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347). This objective component is satisfied so long as the institution "furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Farmer, 511 U.S. at 534; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981). The subjective requirement, relating to the defendant's state of mind, requires that the plaintiff allege facts sufficient to show "deliberate indifference." Allen, 48 F.3d at 1087. "Deliberate indifference" exists when a prison official "knows of and disregards an excessive risk to inmate health and safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
Here, Plaintiff's allegations fail to state an Eighth Amendment claim because they do not rise to the level of a serious safety hazard. See Osolinski, 92 F.3d at 939 (finding that prisoner's injury due to faulty oven door was not sufficient to state an Eighth Amendment cruel and unusual punishment claim because Plaintiff did not plead any "exacerbating conditions" which rendered him unable to "provide for [his] own safety," i.e., that prison officials precluded him from avoiding the faulty oven door or rendered him unable to perceive its defective condition); see also Tunstall v. Rowe, 478 F. Supp. 87, 89 (N. D. Ill. 1979) (the existence of a greasy staircase which caused a prisoner to slip and fall did not violate the Eighth Amendment). As currently pleaded, the Court finds that Plaintiff alleges no facts which are sufficient to show that the conditions of confinement were objectively and demonstrably unsafe, and further fails to allege facts which show that any of the named Defendants were actually aware and consciously disregarded the risk posed. See Helling, 509 U.S. at 36 (exposure to demonstrably unsafe conditions may violate the Eighth Amendment if the inmate can show that the risk he faced was "so grave that it violates contemporary standards of decency"); Farmer, 511 U.S. at 828-29 (deliberate indifference requires a showing that specific prison officials were "subjectively aware of the risk").
Accordingly, Plaintiff's Eighth Amendment claims are dismissed for failing to state a claim upon which § 1983 relief can be granted.
B. Respondeat Superior
In his Complaint, Plaintiff names Warden Hedgpeth as a Defendant and claims Defendant Hedgpeth should be held liable for his injuries because "Hedgpeth was responsible for the policies, practices and overall operation at [Kern Valley State Prison]." (Compl. at 4.) Accordingly, to the extent that Plaintiff is seeking hold Defendant Hedgpeth liable solely due to his supervisory capacity, these claims must be dismissed. There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)).
In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). As a supervisor, a Defendant may only be held liable for the allegedly unconstitutional violations of his subordinates if Plaintiff alleges specific facts which show: (1) how or to what extent this supervisor personally participated in or directed Defendants' actions, and (2) in either acting or failing to act, the supervisor was an actual and proximate cause of the deprivation of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, however, Plaintiff's Complaint in no way sets forth facts which might be liberally construed to support an individualized constitutional claim against Defendant Hedgpeth.
Accordingly, Plaintiff's Complaint is dismissed for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(b) 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446, n. 1. However, because Plaintiff could possibly cure the defects of pleading identified in this Order, he is hereby granted an opportunity to amend. Lopez, 203 F.3d at 1127 (leave to amend is generally appropriate unless the court has determined, "that the pleading could not possibly be cured by the allegation of other facts.").
IV. CONCLUSION AND ORDER
Good cause appearing, IT IS HEREBY ORDERED that:
(1) Plaintiff's Emergency Motion for Injunctive Relief [Doc. No. 6] is DENIED without prejudice for failing to comply with FED.R.CIV.P. 65(b); and
(2) Plaintiff's Complaint is DISMISSED without prejudice for failing to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(b) 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is "Filed" in which to file a First Amended Complaint which cures all the deficiencies of pleading noted above. Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Further, if Plaintiff's Amended Complaint still fails to state a claim upon which relief may be granted, it may be dismissed without further leave to amend and may hereafter be counted as a "strike" under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).
IT IS SO ORDERED. 42 U.S.C. § 1983 I. Previous Lawsuits (list all other previous or pending lawsuits on back of this form): II. Exhaustion of Administrative Remedies ALL NOTICE: 42 U.S.C. § 1983 42 U.S.C. § 1997ebefore Booth v. Churner 532 U.S. 731 741 McKinney v. Carey 311 F.3d 1198 1999 Even if you are seeking only money damages and the inmate appeal or administrative remedy process does not provide money, you must exhaust the process before filing suit. Booth 532 U.S. at 734 III. Defendants IV. Statement of Claim facts V. Relief.
Plaintiff's Name _________________________ Inmate No. ___________________________________ Address ______________________________________ ______________________________________________ ______________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ____________________________________________________________________________________________________________________ (Name of Plaintiff) (Case Number) vs. AMENDED COMPLAINT __________________________________ Civil Rights Act, __________________________________ __________________________________ __________________________________ __________________________________ __________________________________ __________________________________ (Names of all Defendants) A. Have you brought any other lawsuits while a prisoner? Yes ___ No ___ B. If your answer to A is yes, how many? __________ Describe previous or pending lawsuits in the space below. (If more than one, use back of paper to continue outlining all lawsuits.) 1. Parties to previous lawsuit: Plaintiff _______________________________________________________________________________________________ Defendants ______________________________________________________________________________________________ ____________________________________________________________________________________________________________________ _________________________________________________________________________________________________________ ________________________________________ 2. Court (if Federal Court, give name of District; if State Court, give name of County) _________________________________________________________________________________________________________ 3. Docket Number _______________ 4. Assigned Judge _______________ 5. Disposition (For example: Was the case dismissed? Was it appealed? Is it still pending?) _________________________________________________________________________________________________________ 6. Filing date (approx.) __________ 7. Disposition date (approx.) __________ A. Is there an inmate appeal or administrative remedy process available at your institution? Yes ___ No ___ B. Have you filed an appeal or grievance concerning of the facts contained in this complaint? Yes ___ No ___ If your answer is no, explain why not ____________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _______________________________________________________________________________________ C. Is the process completed? Yes ___ If your answer is yes, briefly explain what happened at each level. _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ No ___ If your answer is no, explain why not. _________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ _________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions under [], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." (a). If there is an inmate appeal or administrative remedy process available at your institution, you may not file an action under Section 1983, or any other federal law, until you have first completed (exhausted) the process available at your institution. You are required to complete (exhaust) the inmate appeal or administrative remedy process filing suit, regardless of the relief offered by the process. , , (2001); , , (9th Cir. 2002). , . (In Item A below, place the full name of the defendant in the first blank, his/her official position in the second blank, and his/her place of employment in the third blank. Use item B for the names, positions and places of employment of any additional defendants.) A. Defendant ______________________________ is employed as _________________________________________________ _______________ at __________________________________________________________________________ B. Additional defendants ___________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _____________________________________________________________________________________________ (State here as briefly as possible the of your case. Describe how each defendant is involved, including dates and places. Do not give any legal arguments or cite any cases or statutes. Attach extra sheets if necessary.) ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ___________________________________________________________ (State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases or statutes.) ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ ______________________________________________________________________ I declare under penalty of perjury that the foregoing is true and correct. Date ____________________ Signature of Plaintiff ________________________________________