(PC) Tung v. Hartley et al, No. 1:2008cv00457 - Document 27 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissing Certain Defendants and Claims, signed by Magistrate Judge Gerald B. Cohn on 1/26/11: Recommending that this action proceed on Plaintiff's Third Amended Complaint, filed January 20, 2011, ag ainst Schwarzenegger and Cate; Any remaining claims be dismissed, with prejudice, for failure to state a claim under section 1983; and Doe Defendants be dismissed, with prejudice, based upon Plaintiff's failure to state a cognizable claim against them re 26 Amended Prisoner Civil Rights Complaint filed by Balwinder Singh Tung; Objections to F&R due by 2/28/2011. (Hellings, J)
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(PC) Tung v. Hartley et al Doc. 27 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CASE NO. 1:08-cv-00457-OWW-GBC PC BALWINDER SINGH TUNG, 10 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN DEFENDANTS AND CLAIMS Plaintiff, 11 v. 12 (Doc. 26) ROBERT DOYLE, et al., 13 THIRTY-DAY DEADLINE Defendants. 14 / 15 16 I. Screening Requirement 17 Plaintiff Balwinder Singh Tung (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 14, 2010, the 19 Court screened the second amended complaint and it was dismissed, with leave to amend, for failure 20 to state a claim. (Doc. 25.) Currently pending before the Court is the third amended complaint, filed 21 January 20, 2011. (Doc. 26.) 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 26 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 27 In determining whether a complaint states a claim, the Court looks to the pleading standard 28 under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and 1 Dockets.Justia.com 1 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 2 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it 3 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 4 Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 5 (2007)). 6 Under section 1983, Plaintiff must demonstrate that each defendant personally participated 7 in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires 8 the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. 9 at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that] 10 pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line 11 between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting 12 Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations 13 contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129 14 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555). 16 II. Complaint Allegations 17 Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and 18 is currently housed at Avenal State Prison. Plaintiff alleges that he is subjected to inhumane 19 conditions due to the policy and custom of allowing the prison population to be at 200 percent of 20 capacity. (Doc. 26, p. 6.) Defendants house inmates two to three to a cell which has subjected 21 Plaintiff to an increased risk of violence. (Id., pp. 6-7.) Defendants “are either policy makers or 22 enforcers and/or have/had final authority to approve or disapprove” the policies. (Id., p. 7.) 23 First Cause of Action 24 The policy of housing inmates above capacity has caused the air to be toxic to breathe 25 without developing a fatal illness and Defendants have failed to prevent a “pattern of blizzardous 26 [sic] assaults. (Id.) Plaintiff is being housed in a cell with two other inmates. The bunks have 27 approximately two and one half to three feet of space between them. There is a partitioning wall 28 between the bunks and the toilet. Plaintiff alleges he is provided with eighteen to twenty one square 2 1 feet of space, filthy air, and a wretched environment that is highly unsafe, causing his life expectancy 2 to be diminished by twenty years, subjecting him to cruel and unusual punishment. Plaintiff alleges 3 that he has suffered from shortness of breath, bronchopneumonia, pleuropneumonia, pleurisy, 4 parasitic, bacterial, viral, and fungal diseases and has diminished immunity due to being exposed to 5 the “highly obnoxious environment” for over a decade. (Id., p. 8.) 6 Second and Third Cause of Action 7 Plaintiff alleges that he has not been provided an adequate diabetic diet and as a result 8 developed cardiac, digestive, pulmonary, and other diseases. (Id., p. 9.) The meals provided include 9 syrup, jelly, candies, ice cream, etc., which are poison to Plaintiff since he is diabetic. (Id., p. 10.) 10 Plaintiff has developed problems with his feet, which could lead to other medical conditions. (Id., 11 p. 11.) The policy of providing an inadequate diet is “conscious, intentional, malicious, wanton, 12 retaliatory and conspired with deliberate indifference.” (Id., p. 13.) 13 Fourth Cause of Action 14 Plaintiff has been a victim of seven prisoner assaults due to the policies or customs 15 established by Defendants. On May 14, 2007, Plaintiff was assaulted and had his personal property 16 stolen. (Id., p. 14.) On March 4 and May 4, 2006, Plaintiff was assaulted. (Id., pp. 14, 15.) On 17 April 9, 2004 and May 18, 2004, Plaintiff was assaulted causing injuries. On July 7, 2002 and May 18 13, 2001, Plaintiff was assaulted. The policy of allowing overcrowding approved by Defendants 19 excessively increased the probability of assaults. (Id., p. 15.) If Plaintiff had been released on his 20 calculated parole date, which has long past, he would not have been subject to at least six of the 21 assaults. Defendant Schwarzenegger has the power to commute the sentences of prisoners who do 22 not have calculated parole dates. During the nineteen years that Plaintiff has been incarcerated 23 “multimillion inmate(s) had been released without any hearing(s).” (Id., p. 16.) 24 Plaintiff brings this suit naming Defendants Arnold Schwarzenegger, Matthew L. Cate, and 25 “Does One through an unknown number” in their individual and official capacities for deliberate 26 indifference in violation of the Eighth Amendment. (Id., pp. 1-2, 4.) Plaintiff is seeking 27 compensatory, punitive, and injunctive relief, including immediate release of Plaintiff. (Id., pp. 19- 28 20.) Plaintiff also requests appointment of counsel. (Id., p. 21.) 3 1 For the reasons set forth below, Plaintiff has stated a claim for relief against Defendants 2 Schwarzenegger and Cate in his first cause of action, but has failed to state a cognizable claim 3 against any other defendant or in any other cause of action. Plaintiff has been given two 4 opportunities to file an amended complaint, with guidance from the Court. The Court will 5 recommend that this action proceed against Defendant Schwarzenegger and Cate on the allegations 6 in the first cause of action and all other defendants and causes of actions be dismissed for failure to 7 state a claim. 8 III. 9 Discussion A. Respondent Superior 10 Plaintiff brings this action alleging Defendants are liable under a theory of respondeat 11 superior. Government officials may not be held liable for the actions of their subordinates under a 12 theory of respondeat superior. Iqbal, 129 S. Ct. at 1948. Since a government official cannot be held 13 liable under a theory of vicarious liability for section 1983 actions, Plaintiff must plead that the 14 official has violated the Constitution through his own individual actions. Id. at 1948. In other 15 words, to state a claim for relief under section 1983, Plaintiff must link each named defendant with 16 some affirmative act or omission that demonstrates a violation of Plaintiff’s federal rights. 17 18 B. First Cause of Action 1. Official Capacity 19 A suit brought against prison officials in their official capacity is generally equivalent to a 20 suit against the prison itself. McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986). Therefore 21 prison officials may be held liable if “‘policy or custom’ . . . played a part in the violation of federal 22 law.” (Id.) (quoting Kentucky v. Graham, 105 S. C. 3099, 3106 (1985). The official may be liable 23 where the act or failure to respond reflects a conscious or deliberate choice to follow a course of 24 action when various alternatives were available. Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 25 2002) (quoting City of Canton v. Harris, 498 U.S. 378, 389 (1989); see Long v. County of Los 26 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Waggy v. Spokane County Washington, 594 F.3d 27 707, 713 (9th Cir. 2010). 28 To prove liability for an action policy the plaintiff “must . . . demonstrate that his deprivation 4 1 resulted from an official policy or custom established by a . . . policymaker possessed with final 2 authority to establish that policy.” Waggy, 594 F.3d at 713. Liability for failure to act requires that 3 Plaintiff show that the “employee violated the plaintiff’s constitutional rights;” the agency “has 4 customs or policies that amount to deliberate indifference;” and “these customs or policies were the 5 moving force behind the employee’s violation of constitutional rights.” Long, 442 F.3d at 1186. 6 Plaintiff’s allegations that Defendants Schwarzeneggar and Cate approved policies that led to him 7 developing lung diseases is sufficient to state a cognizable official capacity claim. However the 8 allegations fail to state a claim against any other defendant. 9 2. Individual Capacity 10 Liability under section 1983 exists where a defendant “acting under the color of law” has 11 deprived the plaintiff “of a right secured by the Constitution or laws of the United States.” Jensen 12 v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000). To prove a violation of the Eighth Amendment 13 the plaintiff must “objectively show that he was deprived of something ‘sufficiently serious,’ and 14 make a subjective showing that the deprivation occurred with deliberate indifference to the inmate’s 15 health or safety.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted). 16 Deliberate indifference requires a showing that “prison officials were aware of a “substantial risk of 17 serious harm” to an inmates health or safety and that there was no “reasonable justification for the 18 deprivation, in spite of that risk.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994)). 19 Officials may be aware of the risk because it is obvious. Thomas, 611 F.3d at 1152. 20 Plaintiff’s allegations fail to show that Defendants were aware of a substantial risk of harm 21 to Plaintiff and acted or failed to act in response. Farmer, 511 U.S. at 847. Therefore Plaintiff has 22 failed to state a cognizable claim against Defendants in their individual capacity. 23 C. 24 Plaintiff’s allegations fail to show that Defendant Schwarzenegger, the Governor of the State 25 of California, or Defendant Cate, the Director of Prisons, established policies regarding the diet that 26 he received while incarcerated and, therefore, has failed to link Defendants to a violation of his 27 rights. Iqbal, 129 S. Ct. at 1948. Plaintiff’s complaint that he required a special diet for his health 28 conditions would be a medical issue. To state a cognizable claim Plaintiff would be required to Second and Third Cause of Action 5 1 show that the defendants had knowledge of a serious medical condition and failed to act in response. 2 Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010) (quoting Jett, 439 F.3d at 1096). The 3 complaint fails to state a cognizable claim for deliberate indifference to his dietary needs in violation 4 of the Eighth Amendment. 5 D. 6 Plaintiff alleges that due to overcrowding Defendants have failed to protect him from inmate Fourth Cause of Action 7 assaults. Allegations of overcrowding alone are insufficient to state a constitutional violation. 8 Rhodes v. Chapman, 452 U.S. 337, 348 (1981); Balla v. Idaho State Board of Corrections, 869 F.2d 9 461, 471 (9th Cir. 1989). Plaintiff alleges that he has been physically assaulted seven times since 10 2001. The fact that Plaintiff has been assaulted numerous times, between 2001 and 2007, fails to 11 state a plausible claim that the cause of the assaults is the overcrowded conditions at the prison. 12 While Plaintiff does describe his current living conditions, he fails to describe the conditions that 13 existed at the institutions he was incarcerated in at the time he was assaulted, nor does Plaintiff state 14 facts demonstrating how overcrowding caused him to be assaulted. While overcrowding may violate 15 the constitution when it causes an increase in violence or reduces the availability of other 16 constitutionally required services, Balla, 869 F.2d at 471; Akao v. Shimoda, 832 F.2d 119, 120 (9th 17 Cir. 1987), Plaintiff’s conclusory allegation that the policy of the prison resulted in his being 18 assaulted fails to state a cognizable claim. 19 Prison officials are required “to take reasonable steps to protect inmates from physical 20 abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982) (abrogated on other grounds by 21 Sandin v. O’Connor, 515 U.S. 472 (1995)). To establish a violation of this duty, the inmate must 22 establish that prison officials were “deliberately indifferent” to serious threats to the inmates safety. 23 See Farmer, 511 U.S. at 834. This requires that Plaintiff allege Defendants were aware of the danger 24 that he would be attached or should have made the inference. Although Plaintiff states that 25 Defendants should have known he sets forth no facts to indicate how Defendants should have known 26 that he was at a risk of being physically attacked. Plaintiff does not allege any facts that would state 27 a plausible claim that Defendants were aware that Plaintiff was at a risk of being physically attacked 28 by other inmates. 6 1 E. 2 Plaintiff alleges that the policy adopted by Defendants was retaliatory. A plaintiff may state 3 a claim for a violation of his First Amendment rights due to retaliation under section 1983. Pratt v. 4 Rowland, 65 F.3d 802, 806 (9th Cir. 1995). However, Plaintiff is not alleging that he engaged in any 5 protected conduct, that Defendants acted because of some protected conduct, and that the actions 6 taken by Defendants did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 7 408 F.3d 559, 567 (9th Cir. 2005). Therefore, Plaintiff has failed to state a cognizable claim for 8 retaliation. 9 F. Retaliation Injunctive Relief 10 Plaintiff requests an injunction requiring CDCR to immediately stop providing unhealthy and 11 inadequate meals, provide him an adequate diabetic diet, provide single bunk or single cell housing, 12 and release Plaintiff from custody. The Prison Litigation Reform Act places limitations on 13 injunctive relief. Section 3626(a)(1)(A) provides in relevant part, “Prospective relief in any civil 14 action with respect to prison conditions shall extend no further than necessary to correct the violation 15 of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any 16 prospective relief unless the court finds that such relief is narrowly drawn, extends no further than 17 necessary to correct the violation of the Federal right, and is the least intrusive means necessary to 18 correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). 19 Plaintiff has failed to state a cognizable claim that his rights are being violated due to 20 overcrowding at the prison because he is double celled and has been assaulted, and the Court is 21 limited to relief to correct a constitutional violation. 18 U.S.C. § 3626(a)(1)(A); Summers v. Earth 22 Island Institute, 129 S. Ct. 1142, 1149-50 (2009) (citation omitted) Price v. City of Stockton, 390 23 F.3d 1105, 1112 (9th Cir. 2004). Accordingly, Plaintiff’s requests for a Court order that he be 24 provided with adequate meals and be housed in a single cell are not cognizable. Additionally, 25 Plaintiff’s request that he be immediately released from custody would be relief that would extend 26 further than necessary to correct the constitutional violation and is not available in this action. To 27 the extent that Plaintiff is attempting to be released due to being confined beyond his calculated 28 parole date his sole remedy would lie in a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 7 1 81-82 (2005); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). 2 G. 3 Plaintiff has requested the appointment of counsel. The United States Supreme Court has 4 ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 5 cases. Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 6 109 S.Ct. 1814, 1816 (1989). In certain exceptional circumstances, the court may request the 7 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Rand v. Rowland, 113 F.3d 8 1520, 1525 (9th Cir. 1997). Without a reasonable method of securing and compensating counsel, 9 this court will seek volunteer counsel only in the most serious and exceptional cases. Appointment of Counsel 10 In the present case, the Court does not find the required exceptional circumstances. See 11 Rand, 113 F.3d at 1525. Even if it is assumed that Plaintiff is not well versed in the law and that he 12 has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 13 This court is faced with similar cases almost daily. Therefore, Plaintiff's request for the appointment 14 of counsel shall be denied. 15 IV. Conclusion and Recommendations 16 Plaintiff’s third amended complaint sets forth a cognizable claim against Defendants 17 Schwarzenegger and Cate for adopting policies that violated the Eighth Amendment while acting 18 in their official capacity, but does not state any other claims for relief under section 1983. Because 19 Plaintiff has previously been notified of the deficiencies and given leave to amend, the Court 20 recommends that the non-cognizable claims be dismissed, with prejudice. Noll, 809 F.2d at 1448- 21 49. Based on the foregoing, it is HEREBY RECOMMENDED that: 22 1. This action proceed on Plaintiff’s third amended complaint, filed January 20, 2011, 23 against Schwarzenegger and Cate for adopting policies that violated the Eighth 24 Amendment while acting in their official capacity; 25 2. 26 27 28 Any remaining claims be dismissed, with prejudice, for failure to state a claim under section 1983; and 3. Doe Defendants be dismissed, with prejudice, based upon Plaintiff’s failure to state a cognizable claim against them. 8 1 These findings and recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 3 days after being served with these findings and recommendations, Plaintiff may file written 4 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 6 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 7 1153 (9th Cir. 1991). 8 IT IS SO ORDERED. 9 10 Dated: cm411 January 26, 2011 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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