(PC) Hillman v. Peery, No. 2:2017cv02178 - Document 15 (E.D. Cal. 2019)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/15/2019 ORDERING Clerk of Court to randomly assign a U.S. District Court judge to this action and RECOMMENDING 9 First Amended Complaint be dismissed with prejudice. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 21 days after being served with these findings and recommendations. (Henshaw, R)
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(PC) Hillman v. Peery Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE HILLMAN, 12 Plaintiff, 13 14 No. 2:17-cv-2178 AC P v. ORDER AND FINDINGS AND RECOMMENDATIONS SUZANNE M. PEERY, 15 Defendant. 16 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 17 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to this court 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Plaintiff’s first amended complaint 20 (“FAC”), ECF No. 9, is before the court. For the reasons stated below, the undersigned will 21 recommend that this action be dismissed for failure to state a claim upon which relief may be 22 granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(i). 23 I. 24 RELEVANT FACTS On October 19, 2017, plaintiff filed an initial civil rights complaint. ECF No. 1. In it, 25 plaintiff stated that on the morning of November 25, 2015, he broke his right femur when he 26 slipped and fell on ice as he was returning to his housing unit. See id. at 3. He contended that the 27 area where he fell was known to by staff to be dangerous. However, despite this knowledge, yard 28 staff failed to put cinder on the ground that day. See id. at 3. The complaint named defendant 1 Dockets.Justia.com 1 Peery, the warden of High Desert State Prison, as the sole defendant, and alleged that plaintiff’s 2 injury had been caused by defendant Peery’s negligence. See ECF No. 1 at 1-3. Plaintiff sought 3 compensatory and punitive damages. See id. at 3. 4 On October 25, 2017, on screening, the court found that plaintiff had failed to state a 5 cognizable claim. See ECF No. 6 at 3. Specifically, plaintiff was told that slip and fall claims 6 were not actionable under the Constitution. See id. at 3. The court went on to note that plaintiff 7 had not alleged that defendant Peery had actual knowledge of the icy conditions that had caused 8 his fall, and explained that the warden was not liable as a supervisor for the inaction of her staff. 9 See id. at 3. Because plaintiff had failed to allege any sort of cognizable claim, the court 10 dismissed the matter with leave to amend. See id. at 4. 11 Plaintiff filed the instant FAC on December 4, 2017. ECF No. 9. In it, plaintiff presents 12 the same statements of fact. See id. at 3-4. However, he has now identified an Officer Pickens 13 and a John Doe as the individuals who were responsible for putting cinder down on the walkways 14 the day he was hurt. See id. at 3-4. Plaintiff alleges that they “violated [his] right to be free from 15 cruel and unusual punishment by being deliberately indifferent to [his] saf[e]ty by failing to place 16 cinder and sand on the footpath . . . as per clearly established policy for [the] prison which 17 experiences snowy and icy conditions annually.” Id. at 4 (brackets added). Plaintiff also alleges 18 that because that morning defendants had “placed or had the yard crew workers place the cinder 19 and sand on the icy walkways which the C/Os and prison staff use [but not on the walkway he as 20 an inmate used],” defendants willfully, knowingly and deliberately disregarded his right to be free 21 from harm. See id. at 4 (brackets added). “Defendants knew the potential harm beforehand,” 22 plaintiff contends, “yet [chose] to do nothing.” See id. at 4 (brackets added). 23 II. APPLICABLE LAW 24 A. 25 “The Constitution does not mandate comfortable prisons, but neither does it permit Eighth Amendment: Deliberate Indifference 26 inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and 27 citations omitted). “[A] prison official violates the Eighth Amendment only when two 28 requirements are met. First, the deprivation alleged must be, objectively, sufficiently serious; a 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.” Id. at 834 (internal quotation marks and citations omitted). Second, the prison official must subjectively have a sufficiently culpable state of mind, “one of deliberate indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). The official is not liable under the Eighth Amendment unless he “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. Then, he must fail to take reasonable measures to abate the substantial risk of serious harm. Id. at 847. Mere negligent failure to protect an inmate from harm is not actionable under § 1983. See id. at 835. B. Fourteenth Amendment: Right to Personal Security The right to personal security is a “historic liberty interest” that is protected substantively by the Due Process Clause. Youngberg v. Romero, 457 U.S. 307, 315 (1982) (citing Ingraham v. Wright, 430 U.S. 651, 673 (1977)). The right is not extinguished by lawful confinement, even for penal purposes. Youngberg, 457 U.S. at 315. On the contrary, prison officials must take reasonable measures to guarantee the safety of inmates. See Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). A prison official can be liable for failing to protect inmates only if (1) there is an “excessive” and “substantial risk of serious harm,” and (2) the official is subjectively aware of that risk but deliberately ignores it. Farmer, 511 U.S. at 828-29. A single, isolated incident does not amount to an “excessive” or “substantial” risk to inmate safety. See, e.g., LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (finding shackling dangerous inmate in shower does not create sufficiently unsafe condition even if inmate might fall; slippery prison floors do not state arguable claim for cruel and unusual punishment). Negligence and gross negligence do not constitute deliberate indifference. Farmer, 511 U.S. at 835-36 (negligence); see Dent v. Sessions, 900 F.3d 1075, 1083 (9th Cir. 2018) (citation omitted) (gross negligence). “Accidents” and “inadvertent failure” do not rise to the level of 28 3 1 deliberate indifference, either. See Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see, e.g., 2 Daniels v. Williams, 474 U.S. 327, 328 (1986) (finding sheriff’s deputy not liable under Section 3 1983 for injuries sustained by inmate who slipped on pillow negligently left on stairs); Wood v. 4 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (finding gross negligence insufficient to state 5 claim for denial of medical needs to prisoner). 6 C. 7 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate Linkage Requirement 8 that each defendant personally participated in the deprivation of his rights. See Jones v. 9 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between 10 the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 11 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor 12 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 13 Government officials may not be held liable for the actions of their subordinates under a 14 theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (stating vicarious 15 liability is inapplicable in Section 1983 suits). Since a government official cannot be held liable 16 under a theory of vicarious liability in Section 1983 actions, plaintiff must plead sufficient facts 17 showing that the official has violated the Constitution through his own individual actions by 18 linking each named defendant with some affirmative act or omission that demonstrates a violation 19 of plaintiff's federal rights. Iqbal, 556 U.S. at 676. 20 Liability may be imposed on supervisory defendants under Section 1983 only if the 21 supervisor (1) personally participated in the deprivation of constitutional rights or directed the 22 violations, or (2) knew of the violations and failed to act to prevent them. Taylor, 880 F.2d at 23 1045. A sufficient causal connection between the supervisor’s wrongful conduct and the 24 constitutional violation permits supervisorial liability. Hansen v. Black, 885 F.2d 642, 646 (9th 25 Cir. 1989) (citing Thompkins v. Bell, 828 F.2d 298, 303-304 (5th Cir. 1987)). Defendants cannot 26 be held liable for being generally deficient in their supervisory duties. 27 //// 28 //// 4 1 III. 2 3 DISCUSSION Plaintiff’s FAC fails to state a claim upon which relief may be granted. Consequently, for the reasons stated below, the undersigned shall recommend dismissal. 4 A. 5 Plaintiff claims that defendants Pickens and Doe demonstrated deliberate indifference to Deliberate Indifference Claim 6 his right to personal security. However, these defendants’ failure to put down cinder and sand on 7 the icy walkway does not constitute an objectively serious deprivation that denied plaintiff the 8 minimal civilized measure of life’s necessities. Farmer, 511 U.S. at 834. Even if defendants’ 9 conduct did constitute an objectively serious deprivation, plaintiff alleges no facts which show 10 that defendants acted with a sufficiently culpable state of mind. See id. The circumstances 11 alleged do not support an inference that either defendant intended to harm plaintiff, or that the 12 defendants knew on the morning in question that the walkway was slippery and that plaintiff was 13 going to use it.1 Nor does plaintiff indicate that defendants forced him to use the walkway against 14 his wishes. See generally ECF No. 9. The allegations support no more than negligence, and 15 therefore do not state a claim for relief under the Eighth Amendment. 16 The extent of plaintiff’s injury (a broken femur) and resulting degree of pain, to which the 17 court is not insensitive, do not change the analysis. See Estelle, 429 U.S. at 106 (“An accident, 18 although it may produce added anguish, is not on that basis alone to be characterized as wanton 19 infliction of unnecessary pain” necessary to demonstrate deliberate indifference). 20 B. 21 With respect to plaintiff’s claim that his right to personal security has been violated, the Right to Personal Security Claim 22 allegations of the FAC do not make a threshold showing that there was an excessive and 23 substantial risk of serious harm on the walkway where plaintiff fell. See Farmer, 511 U.S. at 834. 24 This is not a case in which plaintiff alleges, for example, that other individuals on the walkway 25 26 27 28 1 Plaintiff suggests that access to the discovery process will enable him to identify facts showing that defendants Pickens and Doe acted with willful, knowing and deliberate disregard of his right to be free from harm. See ECF No. 9 at 4. However, plaintiff may not use discovery as a fishing expedition to identify facts that might support a claim. See generally Rivera v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004). 5 1 fell because of the ice and were seriously harmed prior to plaintiff’s fall, or that the walkway had 2 some sort of defect that made the area exceptionally dangerous in icy conditions and which 3 required defendants to provide notice of it to passersby. A single, isolated incident does not 4 amount to an excessive or substantial risk to inmate safety as a matter of law. See, e.g., LeMaire, 5 12 F.3d at 1457. Neither is this a case in which plaintiff alleges that he had a physical limitation 6 that required assistance in navigating the walkway or specific warnings about conditions. See 7 generally LaFaut v. Smith, 834 F.2d 389, 392-94 (4th Cir. 1987) (stating disabled inmates must 8 be provided with physical accommodations necessary because of their disabilities); Casey v. 9 Lewis, 834 F. Supp. 1569, 1581 (D. Ariz. 1993) (citing LaFaut). 10 Moreover, as already noted in the Eighth Amendment context, plaintiff has not alleged 11 any specific facts indicating that defendants were subjectively aware of the risk on the walkway 12 where plaintiff fell – i.e., the presence that day of unreasonably unnavigable ice – and deliberately 13 ignored or were indifferent to it. See Farmer, 511 U.S. at 834. The fact that cinder and sand was 14 put down on other walkways used by prison employees, while none was put down where plaintiff 15 fell, does not support a conclusion that defendants were actually aware that there was a significant 16 ice problem in the location where plaintiff slipped and fell. As previously noted, defendants’ 17 failure to exercise reasonable care does not rise to the level of a constitutional violation. See id. 18 at 835-36. 19 20 21 For all these reasons, plaintiff’s allegations fail to state a claim on a due process theory. IV. CONCLUSION For the reasons explained above, the allegations of the complaint fail to state a claim 22 under § 1983. Plaintiff has previously been provided an opportunity to amend with instructions 23 regarding the applicable constitutional standards, and the amended complaint presents the same 24 underlying factual allegations. These allegations do not take plaintiff’s accident outside the 25 negligence context. Because the incident of which plaintiff complains does not constitute a 26 constitutional violation as a matter of law, further amendment would be futile. Accordingly, the 27 action must be dismissed for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 28 U.S.C. § 1915A(b)(i). 6 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Clerk of Court randomly assign a United States District Court judge to this action. 3 IT IS FURTHER RECOMMENDED that the First Amended Complaint be DISMISSED 4 with prejudice for failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 5 1915(e)(2)(B)(ii), 1915A(b)(i). 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 8 after being served with these findings and recommendations, plaintiff may file written objections 9 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 10 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 11 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 12 (9th Cir. 1991). 13 DATED: April 15, 2019 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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