Opinion
Case No. 2:07-cv-01476-RCJ-GWF.
January 31, 2008
ORDER Application to Proceed In Forma Pauperis and Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 (# 1)
This matter is before the Court on Plaintiff's Application to Proceed In Forma Pauperis and a Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 (#1), filed on November 2, 2007. Pursuant to 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to make the initial installment payment toward the filing fee of three hundred fifty dollars ($350.00).
DISCUSSION
I. Prison Litigation Reform Act of 1995 — Fees
Pursuant to the Prison Litigation Reform Act (PLRA) of 1995, the district court is required to assess a fee where a prisoner is granted leave to proceed in forma pauperis in a civil action, and the prison officials are required to collect and remit the money to the court. See 28 U.S.C. § 1915(b)(1)(2). Pursuant to the IFP Motion Financial Certificate, a plaintiff must pay a filing fee of $350.00. If the plaintiff does not have $350.00, the plaintiff will not be allowed to proceed with the action until the plaintiff pays the appropriate fees. The plaintiff will be required to pay either 20% of the average monthly balance or 20% of the average monthly deposits, whichever is greater. Furthermore, the plaintiff will be required to pay installments of 20% of the preceding month's deposits to the account in months that the account balance exceeds $10.00.
Plaintiff attached a Financial Certificate to his application. After viewing the statement, the Court finds that Plaintiff does not have $350.00 in his account to pay the filing fee; Plaintiff's current account balance is $0.00. The Court further finds that Plaintiff's average monthly balance is $0.00, and Plaintiff's average monthly deposits are $0.00.
II. Screening the Complaint
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, pursuant to the PLRA, a federal court must dismiss a prisoner's claims, "if the allegation of poverty is untrue," or if the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint.
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-1965 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id., See Papasan v. Allain, 478 U.S. 265, 286 (1986).
All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
A. Count I
Count I of Plaintiff's civil rights complaint alleges that his Fourteenth Amendment right was violated when he was confined in a holding cell that he had to share with ten (10) to fifteen (15) other inmates for approximately five (5) days. Plaintiff alleges that on July 28, 2007, he was taken to the Clark County Detention Center (CCDC), where he was placed in a holding cell by John Doe #1, the booking county officer. Plaintiff alleges that the cell was ten (10) feet by fifteen (15) feet. Plaintiff alleges that soap was not provided, and he ate all three meals in the jail cell within the sight and smell of a toilet. Plaintiff further alleges that he was neither provided a mat to sleep on nor a blanket to use. Plaintiff alleges that he was forced to sleep on the cold concrete floor for approximately five (5) days.
Plaintiff may rely on the Due Process Clause of the Fourteenth Amendment, which ensures that no state shall "deprive any person of life, liberty or property, without due process of law." U.S. Const. Amend. XIV; see Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987). The Due Process Clause permits the state to subject pre-trial detainees to conditions and restrictions of a detention facility as long as those conditions and restrictions do not amount to punishment. Bell v. Wolfish, 441 U.S. at 535-37. "[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to `punishment.'" Id. at 539. The Supreme Court has held that courts may apply Eighth Amendment principles in shaping standards applicable to pre-trial detainees. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983), Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996).
Prison officials violate the Due Process Clause of the Fourteenth Amendment if they do not provide pretrial detainees with a bed or mattress. Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989). In this case, Plaintiff alleges that he was forced to sleep on a concrete floor without a mat or blanket for five (5) days while he was in a holding cell at the CCDC.
Inmates have the right to personal hygiene supplies such as soap. Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998). Not providing soap to prisoners for an extended period of time is more significant than a de minimus intrusion and constitutes a denial of the "minimal civilized measure of life's necessities." See Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). In this case, Plaintiff alleges that he was not provided with soap for five (5) days while he was in the holding cell at the CCDC. Plaintiff's Count I allegations that the CCDC failed to provide Plaintiff with personal hygiene supplies and a bed or mattress are sufficient to state an Fourteenth Amendment violation under § 1983.
B. Count II
Count II of Plaintiff's civil rights complaint alleges that his Fourteenth Amendment right was violated when he was subjected to unsafe and unsanitary conditions at the CCDC by being forced to sleep on a folding cot at the CCDC. Plaintiff alleges on August 2, 2007, he was transferred from the holding cell of the CCDC to the ninth floor housing unit E-F. Plaintiff alleges he was provided a folding cot by John Doe #2. Plaintiff alleges that the cot had no padding and was twelve (12) inches off the ground. Plaintiff alleges that approximately twenty (20) cots were placed together in the middle of a room where the inmates were required to walk past the cots to get their meals and medications. Plaintiff further alleges that as the inmates walked past his cot, they would stir up dust and dirt, which landed on his cot. Plaintiff alleges that he had to eat his meals in the area where the cots were housed, and he had to share a filthy toilet with twenty (20) other inmates.
Under the PLRA, an actual physical injury must be shown: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). This provision "requires a showing of physical injury that need not be significant but must be more than de minimus." Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002).
The Ninth Circuit has yet to interpret the meaning of "physical injury" in § 1997e(e). However, the Fifth Circuit in Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997), said that under the Eighth Amendment, § 1997e(e) excludes from Constitutional recognition a de minimis injury. In Siglar, the injury was a sore bruised ear which lasted for about 3 days. The Court found it to be a de minimis injury. The dirtiness of a prison facility, given the temporary confinement and lack of physical harm, would not support a claim against the prison. See Morrissette v. Peters, 45 F.3d 1119, 1122-23, n. 6 (7th Cir. 1995).
In this case, Plaintiff alleges that he was forced to sleep on a cot, exposed to dust and dirt, and had to share a filthy toilet with twenty (20) other inmates. The Court finds, however, that Plaintiff has suffered no physical injury, and thus, Plaintiff having to sleep on a cot, being exposed to dust and dirt, having to share a toilet with twenty (20) other inmate is de minimus. Plaintiff's Count II allegations do not support a Fourteenth Amendment claim.
C. Count III
Count III of Plaintiff's civil rights complaint alleges that his Fourteenth Amendment right was violated when he was subjected to unsafe and unsanitary conditions by being forced to sleep on a folding cot in a different housing unit. On August 16, 2007, Plaintiff alleges that he was transferred to housing unit 3A and provided another folding cot by John Doe #3 that was twelve (12) inches off the ground. Plaintiff again alleges that approximately twenty (20) cots were placed in the middle of a room where the inmates were required to walk past the cots to get their meals, medications, access to the recreation yard, and access to the library. Plaintiff again alleges that the inmates would stir up dust and dirt. Plaintiff further alleges that from seventeen (17) to twenty-two (22) hours a day, he was not allowed to leave the room where his cot was located. Plaintiff alleges that he contracted strep throat as a result of these conditions.
In this case, Plaintiff's Count III allegations are similar to Plaintiff's Count II allegations. Furthermore, Plaintiff alleges that he contracted strep throat as a result of these conditions. The Court finds that Plaintiff has failed to demonstrate any physical injury that is not de minimus pursuant to 42 U.S.C. § 1997e(e). Contracting strep throat is not a showing of physical injury, and is therefore de minimus. The Court finds Plaintiff's Count III allegations do not support a Fourteenth Amendment claim.
D. Count IV
Count IV of Plaintiff's civil rights complaint alleges that his Eighth Amendment right was violated when he was subjected to unsafe and unsanitary conditions by being forced to sleep on a folding cot in a different housing unit. On October 11, 2007, Plaintiff alleges that he was transferred to housing unit 9B and provided a plastic cot by John Doe #4. Plaintiff alleges that the cots were only eight (8) inches off the ground. Plaintiff again alleges that approximately twenty (20) cots were placed in the middle of a room where the inmates were required to walk past the cots to get their meals, medications, access to the recreation yard, and access to the library. Again, Plaintiff alleges that the inmates would stir up the dust and dirt that would surround the Plaintiff. Plaintiff again alleges that he had to eat three meals in this unsanitary condition, and from seventeen (17) to twenty-two (22) hours a day, he was not allowed to leave the room where his cot was located.
In this case, Plaintiff's Count IV allegations are similar to Plaintiff's Count II and Count III allegations. The Court finds that Plaintiff's Count IV allegations are de minimus and do not support an Eighth Amendment claim.
The screening of Plaintiff's Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 (#1) has been completed pursuant to 28 U.S.C. § 1915A. Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis is granted. Plaintiff shall not be required to pay an initial partial filing fee. However, even if this action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that the movant herein is permitted to maintain this action to conclusion without the necessity of prepayment of any additional fees or costs or the giving of security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the issuance of subpoenas at government expense.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposits to Plaintiff's account (inmate #82432), in the months that the account exceeds $10.00, until the full $350 filing fee has been paid for this action. The Clerk of the Court shall send a copy of this Order to the Finance Division of the Clerk's Office. The Clerk shall also send a copy of this Order to the attention of the Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702.
IT IS FURTHER ORDERED that the Clerk of the Court shall file the Complaint.
IT IS FURTHER ORDERED that Counts II, III, and IV of the Complaint against Defendant are dismissed for failure to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have thirty (30) days from the date that this Order is entered to file his Amended Complaint, if he believes he can correct the noted deficiencies in regard to Counts II, III, and IV. Failure to comply with this Order will result in the dismissal of this action.
IT IS FURTHER ORDERED that this action shall proceed upon Count I of the Complaint.
IT IS FURTHER ORDERED that the Clerk shall send a copy of the Complaint and this Order to the Office of the Attorney General, c/o Carol Sweeney, 100 North Carson St., Carson City, NV 89701-4717. The Attorney General shall advise the Court within thirty (30) days from the date that this Order is entered whether service of process for the named defendant(s) is accepted. Counsel shall file an answer or otherwise respond to the complaint within sixty (60) days from the date that this Order is entered. If service cannot be accepted for any of the named defendant(s), then Plaintiff will need to file a motion identifying the unserved defendant(s), requesting the issuance of a summons, and specifying a full name and address for said defendant(s). Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service must be accomplished within one hundred twenty (120) days from the date that this Order is entered.
IT IS FURTHER ORDERED that, after defendant(s), or counsel for defendant(s), make an appearance in this action, Plaintiff must serve upon defendant(s) or their counsel if counsel has appeared, a copy of every pleading, motion, or other document submitted for consideration by the court. Plaintiff shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the defendant(s) or his counsel. The court may disregard any paper that does not include a certificate of service.
IT IS FURTHER ORDERED that, henceforth, any paper submitted to the court by Plaintiff shall be submitted to the Clerk's office for filing. The court may disregard any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk.