Bonneau v. Thomas et al - Document 11
ORDER TO DISMISS: Dismissing, w/ prejudice & w/o leave to amend, Complaint 2 for failure to state a claim; Denying plaintiff's request for class certification; Denying Motion for a Temporary Restraining Order 3 ; Denying Motion for a Preliminary Injunction 3 . Ordered & Signed on 3/16/12 by Judge Owen M. Panner. (kf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:12-CV-378-PA
ORDER TO DISMISS
J.E. THOMAS, et al.,
PANNER, District Judge.
Plaintiff, an inmate at FCI-Sheridan, brings this civil rights
action pursuant to Bivens v. Six Unknown Federal Narcotics Agents,
Pursuant to an
was granted leave to proceed in forma pauperis.
the reasons set forth below, plainti
entered by the court,
's Complaint is dismissed
lure to state a claim upon which rel
28 U.S.C. § 1915(e) (2).
1 - ORDER TO DISMISS
f may be granted.
toilets within FCI-Sheridan which limit the number of times an
inmate is able to flush
an inmate may only flush his toilet once every five
A second flush in less than the next five-minute period
in no more
further alleges the restriction is escalated within the Segregated
Housing Unit ("SHUff) where inmates are
11 allowed to flush the
toilet after five minutes, but two flushes in less than ten minutes
flushing mechanism for one hour.
Pursuant to 28 U.S.C.
isoner complaints seeking relief against a governmental
cer, or employee and must dismiss a complaint if the
action is frivolous,
relief may be
the court is required to
or fails to state a claim upon
In order to state a claim, plainti
cient factual matter which,
plaintiff's constitutional rights.
2 - ORDER TO DISMISS
1915(e) (2) (B)
's complaint must
when accepted as true,
1937, 1949 (2009);
1 Atlantic Corp.
550 U.S. 554,
"Threadbare recitals of the elements of a cause
action, supported by mere conclusory statements, do not suffice."
Iqbal, 129 S.Ct. at 1949.
Dismissal for failure to state a claim is proper if it appears
beyond doubt that plaintiff can prove no set
facts in support of
his claims that would entitle him to relief.
Ortez v. Washington
County, 88 F.3d 804, 806 (9th Cir. 1996); Cervantes v. City of San
5 F.3d 1273,
Because plaintiff is
proceeding pro se, the court construes his pleadings liberally and
affords him the benefit of any doubt.
Erickson v. Pardus, 551 U.S.
89, 94 (2007); Ortez, 88 F.3d at 806.
cials must ensure that inmates rece
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
an Eighth Amendment violation,
In order to establish
an inmate must make an objective
showing that he was deprived of something "sufficien
Id; Rhodes v.
so make a subjective showing that the deprivation
he endured was the resu
3 - ORDER TO DISMISS
rence to his health
or safety on the part of the defendants.
Farmer, 511 U.S. at 834
[D] eliberate indifference describes a
blameworthy than negligence."
Id at 835.
state of mind more
Anderson v. County
45 F. 3d
required to make out a conditions of confinement claim.
Hudson v. McMillian, 503 U.S. 1, 9 (1992).
the prison setting" does not offend the Constitution.
Johnson v. Lewis, 217 F.3d 726, 731
(9th Cir. 2006).
The defendants' implementation of water-saving devices at FCISheridan which has the ancillary ef
ct of limiting
flushes described above does not result in a prolonged or severe
population or the SHU may flush the toilet in their cells every
five minutes around
If they do so more frequently,
general population inmates must wait ten minutes for the system to
reset itself, and those in the SHU must wait one hour for the same.
This temporary situation does not arise to a sufficiently serious
deprivation to implicate
Eighth Amendment. 1
While plaintiff asserts that the limitation on flushes in
the SHU appears to be punitive because
is greater than the
on the general population, such an inquiry is
irrelevant as to whether
flushing mechanism as programmed
wi thin the SHU is sufficiently severe or prolonged so as to
implicate the Eighth Amendment, which it is not.
4 - ORDER TO DISMISS
deliberately indifferent to sanitation when inmates are allowed to
flush their toilets every five minutes.
As a result, the Complaint
is dismissed for failure to state a claim.
Complaint (#2) is DISMISSED for failure to state a claim.
plaintiff cannot cure the deficiencies identified above through
the dismissal is with prejudice and without leave to
Plaintiff's request for class certification is DENIED, and his
pending Motion for Temporary Restraining Order and/or Preliminary
Injunction (#3) is also DENIED.
IT IS SO ORDERED.
~ day of March, 2012.
United States Dist
5 - ORDER TO DISMISS