-CMK (PC) Wilson v. Echevarriia et al, No. 2:2011cv00973 - Document 13 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 07/12/11 recommending that this action be dismissed with prejudice. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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-CMK (PC) Wilson v. Echevarriia et al Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENNIE WILSON, 12 13 No. CIV S-11-0973-JAM-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATIONS 14 C. ECHEVARRIIA, et al., 15 Defendants. 16 17 18 19 / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 26 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 1 Dockets.Justia.com 1 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied 2 if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon 3 which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must 4 allege with at least some degree of particularity overt acts by specific defendants which support 5 the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 9 10 11 Plaintiff names Echevarria and Rupio, both correctional officers, as defendants to this action. Plaintiff claims: On 11-24-10 C. Echevarria and V. Rupio left me in a health and safety hazardous zone for eight hours. C. Echevarria and V Rupio left the building without informing co-workers of the hazardous zone. 12 Documents attached to the complaint reveal that the “hazardous zone” referenced by plaintiff 13 was created by a temporary flooding of his cell due to a heavy rainfall. 14 The treatment a prisoner receives in prison and the conditions under which the 15 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 16 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 17 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 18 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 19 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 20 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 21 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 22 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only 23 when two requirements are met: (1) objectively, the official’s act or omission must be so serious 24 such that it results in the denial of the minimal civilized measure of life’s necessities; and 25 (2) subjectively, the prison official must have acted unnecessarily and wantonly for the purpose 26 of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a 2 1 prison official must have a “sufficiently culpable mind.” See id. 2 In this case, the court finds that, on the facts alleged by plaintiff, he cannot meet 3 the objective element. It is appropriate when considering whether a condition of confinement 4 violates the Eighth Amendment to consider the amount of time to which the prisoner was 5 subjected to the condition. See Hutto v. Finney, 437 U.S. 678, 686-87 (1978). Here, plaintiff 6 states that he was confined in a flooded cell for eight hours. In Hutto, the Supreme Court stated 7 that “[a] filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and 8 intolerably cruel for weeks or months.” The flooding complained of in this case simply did not 9 affect plaintiff long enough to rise to the level of an Eighth Amendment violation. 10 Because it does not appear possible that the deficiencies identified herein can be 11 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 12 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 13 14 Based on the foregoing, the undersigned recommends that this action be dismissed with prejudice. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court. Responses to objections shall be filed within 14 days after service of 19 objections. Failure to file objections within the specified time may waive the right to appeal. 20 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 23 24 DATED: July 12, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 25 26 3

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