(PC) Little v. Ribera

Opinion

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

10 SHAWN LITTLE, Case No. 1:19-cv-1563-DAD-EPG (PC)

11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 v. RECOMMENDING THAT THIS ACTION BE DISMISSED WITH PREJUDICE FOR 13 A. RIBERA, et al., FAILURE TO STATE A CLAIM, FAILURE TO PROSECUTE, AND FAILURE TO 14 Defendants. COMPLY WITH A COURT ORDER 15 (ECF NO. 1) 16 OBJECTIONS, IF ANY, DUE WITHIN 17 TWENTY-ONE (21) DAYS 18

20 21 Plaintiff, Shawn Little (“Plaintiff”), is a state prisoner proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 23 commencing this action on November 1, 2019. (ECF No. 1.) 24 The Court screened the complaint and found that it failed to state any cognizable 25 claims. (ECF No. 9). The Court provided Plaintiff with applicable legal standards, explained 26 why Plaintiff’s complaint failed to state a claim, and gave Plaintiff leave to file a First 27 Amended Complaint. (Id.). The Court also gave Plaintiff the option of standing on his 28 complaint, subject to the Court issuing findings and recommendations to a district judge 1 consistent with this order. (Id. at 9-10). 2 On May 4, 2020, Plaintiff filed a notice, notifying the Court that he wants to stand on 3 his complaint. (ECF No. 10). The Court entered findings and recommendations, 4 recommending dismissal of the action with prejudice for failure to state a claim, on May 5, 5 2020. (ECF No. 11). On June 2, 2020, Plaintiff filed a request for instructions, a request for 6 appointment of counsel, and a request for various forms. (ECF No. 12). The Court, with 7 instructions to Plaintiff, vacated its Findings and Recommendations and granted Plaintiff an 8 additional thirty days to consider his options from the Court’s original screening order. (ECF 9 No. 13). Over thirty days have elapsed and Plaintiff has not responded. Accordingly, for the 10 reasons set forth below, the Court recommends that this action be dismissed with prejudice for 11 failure to state a claim, failure to prosecute, and failure to comply with a court order. 12 Plaintiff has twenty-one days from the date of service of these findings and 13 recommendations to file his objections. 14 I. SCREENING REQUIREMENT 15 The Court is required to screen complaints brought by inmates seeking relief against a 16 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 17 The Court must dismiss a complaint or portion thereof if the inmate has raised claims that are 18 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 19 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 20 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis, the Court may also screen the 21 complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that 22 may have been paid, the court shall dismiss the case at any time if the court determines that the 23 action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 24 1915(e)(2)(B)(ii). 25 A complaint is required to contain “a short and plain statement of the claim showing 26 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 27 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 28 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 1 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 2 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 3 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 4 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are 5 not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 6 681 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 7 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 8 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 9 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 10 pro se complaints should continue to be liberally construed after Iqbal). 11 II. ALLEGATIONS IN THE COMPLAINT 12 Plaintiff’s Complaint alleges claims against three defendants: (1) A. Ribera, the Water 13 and Plant Supervisor at California Correctional Institution (“CCI”), (2) B. Cates, the Chief 14 Deputy Warden of CCI, and (3) C. Schuyler, Associate Warden at CCI (collectively, 15 “Defendants”). The claims against Defendants are all in their individual capacities. 16 Plaintiff alleges CCI’s water is contaminated with lead and/or coliform bacteria. The 17 water is used to prepare meals and wash clothing. Plaintiff is dependent upon water to bathe. 18 There is no other means to rely on for clean water. 19 Plaintiff alleges that it is common knowledge that CCI was erected at a period in time 20 when the population was not aware of the dangers of using lead pipes to carry water to supply 21 consumers, but that it is now common knowledge that no amount of lead and/or other 22 contaminants are acceptable in the world’s water supply. He alleges that is why employees 23 carry bottled water into the prison: for their own protection. 24 Plaintiff alleges he is being slowly poisoned due to excessive amounts of lead in the 25 water at CCI and that he suffers from headaches, stomach cramps, stiffness of joints, problems 26 urinating, hard stools, excessive phlegm, sore throats and a slowed thought process. 27 \\\ 28 \\\ 1 III. ANALYSIS OF PLAINTIFF’S CLAIMS 2 A. Legal Standards 3 “The treatment a prisoner receives in prison and the conditions under which he is 4 confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 5 825, 832 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993)). “It is cruel and unusual 6 punishment to hold convicted criminals in unsafe conditions.” Helling, 509 U.S. at 33. Prison 7 officials may not “ignore a condition of confinement that is sure or very likely to cause serious 8 illness and needless suffering the next week or month or year.” Id. Prison officials violate these 9 Eighth Amendment guarantees when they are deliberately indifferent to such conditions. Id. at 10 35. There are objective and subjective components of this test. 11 First, the objective standard requires that the alleged deprivation be “sufficiently 12 serious” and, where a failure to prevent harm is alleged, “the inmate must show that he is 13 incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 14 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). 15 A prisoner must allege both that he will be harmed and that “society considers the risk 16 that the prisoner complains of to be so grave that it violates contemporary standards of decency 17 to expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36. Therefore, a “prisoner 18 must show that the risk of which he complains is not one that today’s society chooses to 19 tolerate.” Id. 20 Second, the subjective standard requires that the prison official actually “know of and 21 disregard an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837; Anderson v. 22 County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). A prison official must ‘‘be aware of facts 23 from which the inference could be drawn that a substantial risk of serious harm exists, and . . . 24 must also draw the inference.” Farmer, 511 U.S. at 837. Liability may follow only if a prison 25 official “knows that inmates face a substantial risk of serious harm and disregards that risk by 26 failing to take reasonable measures to abate it.” Id. at 847. When extrapolated from 27 circumstantial evidence, the substantial risk of serious harm must be so blatantly obvious that 28 Defendants had to have been aware of it. Foster v. Runnels, 554 F.3d 807, 814 (1970); see also 1 Conn v. City of Reno, 591 F.3d 1081, 1097 (9th Cir. 2010) (holding that the magnitude of the 2 risk must be “so obvious that [the defendant] must have been subjectively aware of it”), 3 vacated, 563 U.S. 915 (2011), reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011). 4 The question under the Eighth Amendment is whether prison officials, acting with 5 deliberate indifference, exposed a prisoner to a sufficiently substantial “risk of serious damage 6 to his future health . . . .” Farmer, 511 U.S. at 843. “[D]eliberate indifference entails something 7 more than mere negligence . . . [but] something less than acts or omissions for the very purpose 8 of causing harm or with the knowledge that harm will result.” Id. at 835. This “deliberate 9 indifference” standard is equivalent to ‘‘recklessness,’’ in which ‘‘a person disregards a risk of 10 harm of which he is aware.’’ Id. at 836–37. 11 B. Application to Plaintiff’s Claims 12 The Court finds that Plaintiff’s complaint fails to state a cognizable claim under these 13 legal standards. 14 Beginning with the objective factor, Plaintiff has not alleged facts showing that he is 15 incarcerated under conditions posing a substantial risk of serious harm. Plaintiff alleges that 16 the water supply is contaminated, but not the facts that support this conclusion. It appears from 17 the complaint that the sole basis for this assertion is that “[i]t is common knowledge that the 18 California Correctional Institution was erected at a period in time when the population were 19 NOT aware of the dangers of using lead pipes to carry the water supply to consumers, however, 20 it is also common knowledge in the present that NO amount of lead and/or other contaminants 21 are acceptable in the worlds water supply.” Plaintiff’s reference to common knowledge is 22 insufficient to establish these critical facts. Moreover, merely being constructed at a certain 23 period of time does not mean that CCI itself used lead pipes when it was constructed, that the 24 original pipes are still are in place today, or that the pipes are leaking any substance into the 25 water. Plaintiff’s complaint does not allege any other facts that would lead to this conclusion, 26 such as any publication or notice of this danger or, indeed, any confirmation from any source. 27 Similarly, Plaintiff alleges that he “suffers from headaches, stomach cramps, stiffness of 28 joints, problems urinating, hard stools, excessive flem [sic], sore throats, slowed thought 1 process.” However, Plaintiff alleges no facts that would support the conclusion that these 2 symptoms result from lead poisoning at CCI. For example, Plaintiff does not claim that any 3 doctor or medical professional has informed him that he is suffering from lead poisoning. 4 Plaintiff’s complaint also fails to state a claim for violation of the Eighth Amendment 5 because Plaintiff has not alleged any facts satisfying the subjective standard by demonstrating 6 that any of the individual Defendants knows that inmates face a substantial risk of serious harm 7 and yet have disregarded that risk by failing to take reasonable measures to abate it. Plaintiff 8 does not include any facts regarding what any defendant knows regarding the alleged risk of 9 lead poisoning. While Plaintiff does allege that employees carry water bottles, this fact alone 10 does not establish that the individual defendants are aware of a serious risk of lead poisoning. 11 There are many other reasons why employees might wish to carry water bottles. Plaintiff also 12 has not alleged sufficient facts to establish that the risk is so blatantly obvious that the 13 individual defendants must know of it. 14 IV. FAILURE TO COMPLY WITH COURT ORDER 15 Plaintiff requested, and the Court granted, additional time to consider his options after 16 screening. Despite the grant of an additional thirty days, Plaintiff never responded to the 17 Court’s offer. Therefore, the Court will also recommend dismissing this action for failure to 18 comply with a court order and failure to prosecute. 19 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 20 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 21 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 22 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 23 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 24 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 25 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 26 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 27 this factor weighs in favor of dismissal. 28 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 1 determine whether the delay in a particular case interferes with docket management and the 2 public interest…. It is incumbent upon the Court to manage its docket without being subject to 3 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Plaintiff has failed to respond 4 to the Court’s screening order. This failure to respond is delaying the case and interfering with 5 docket management. Therefore, the second factor weighs in favor of dismissal. 6 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 7 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, 8 “delay inherently increases the risk that witnesses’ memories will fade and evidence will 9 become stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to 10 prosecute this case that is causing delay. Therefore, the third factor weighs in favor of 11 dismissal. 12 As for the availability of lesser sanctions, at this stage in the proceedings there is little 13 available to the Court which would constitute a satisfactory lesser sanction while protecting the 14 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s 15 incarceration and in forma pauperis status, monetary sanctions are of little use. And, given the 16 stage of these proceedings, the preclusion of evidence or witnesses is not available. 17 Finally, because public policy favors disposition on the merits, this factor weighs 18 against dismissal. Id. However, the Court also recommends dismissing this claim for failure to 19 state a claim, which mitigates this factor. 20 After weighing the factors, the Court finds that dismissal with prejudice is appropriate. 21 V. CONCLUSION AND RECOMMENDATIONS 22 The Court has screened Plaintiff’s complaint and finds that it fails to state any 23 cognizable claims. The Court provided Plaintiff with applicable legal standards, explained why 24 Plaintiff’s complaint failed to state a claim, and gave Plaintiff leave to file a First Amended 25 Complaint, but Plaintiff chose to stand his complaint. Then after asking for additional time to 26 reconsider his options, Plaintiff did not file an amended complaint or otherwise communicate 27 with the Court. 28 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that: 4:40 UV VEY EAR SOM ePIC eT OY OMI

1 1. This action be dismissed with prejudice for failure to state a claim, failure to 2 prosecute, and failure to comply with a court order; and 3 2. The Clerk of Court be directed to close the case. 4 These findings and recommendations will be submitted to the United States district 5 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 6 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 7 || may file written objections with the Court. The document should be captioned “Objections to 8 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 9 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 10 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 11 || (9th Cir. 1991)). 12 B IT IS SO ORDERED. Dated: _ July 14, 2020 [Je hey 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28