Singh v. Franke, et al, No. 2:2012cv00873 - Document 126 (D. Or. 2013)
Court Description: OPINION AND ORDER. The Court GRANTS Defendant Tom Clark's Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to FRCP 12 (b) (6) 96 . Because Plaintiff was previously granted leave to amend to state a claim against Defendant Clark, the dismissal is WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's Cross-Motion to Sever Mis-Joined Defendants is DENIED as moot. Signed on 12/20/2013 by Judge Anna J. Brown. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ROTISH VIKASH SINGH, Civil No. 2:12-cv-00873-BR Plaintiff, OPINION AND ORDER v. S. FRANKE, et al., Defendants. ROTISH VIKASH SINGH SID #11852604 Two Rivers Correctional Institution 82911 Beach Access Rd. Umatilla, OR 97882 Plaintiff Pro Se ELLEN F. ROSENBLUM Attorney General SHANNON M. VINCENT Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Defendants Belleque, Brown, Fanger, Franke, Gower, Gruenwald, Hansen, Jackson, Jhonston, Martinez, Mathisen, Perkins, Reynolds, Shelton, Taylor, and Wettlaufer 1 - OPINION AND ORDER - STEVEN A. KRAEMER MARK SHERMAN Hart Wagner LLP 1000 SW Broadway Suite 2000 Portland, OR 97205 Attorneys for Defendant Clark BROWN, Judge. Plaintiff, an inmate at the Two Rivers Correctional Institution, brings this civil rights action pursuant to 42 U.S.C. § 1983 pro se. Currently before the Court are Defendant Torn Clark's Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to FRCP 12 (b) (6) (#96) and Plaintiff's Cross-Motion to Sever Misjoined Defendants (#115). For the reasons that follow, the Court GRANTS Defendant Clark's Motion and DENIES Plaintiff's Motion. BACKGROUND Plaintiff's Second Amended Complaint alleges claims against various correctional Corrections ( "ODOC") employees of the Oregon and Defendant Torn Clark, Department of who is a private employee of a food broker and wholesaler providing foods to the 2 - OPINION AND ORDER - prison pursuant to a contract with ODOC. 1 Only one of Plaintiff's four claims for relief is directed against Defendant Clark. In his third claim, Plaintiff alleges prison officials acted with deliberate indifference when they knew of the potential risk of serious harm and served Plaintiff with outdated spoiled food. The claim is based on a single incident which occurred on May 21, 2010, in which Plaintiff consumed a packet of mayonnaise sold to Plaintiff alleges the mayonnaise was ODOC by Clark's employer. "out of date," and that he believes consuming it caused him to become ill. Plaintiff contaminated, Mathisen." alleges as he Defendant intentionally Clark "knew provided it the to food was [Defendant] Plaintiff also alleges Defendants Fanger and Mathisen "have a practice, custom, and usage of purchasing food items from defendant Clark and other wholesale food brokers," that Clark "accepted monetary bribes from Mathisen and other incentives for doing business with Mathisen," Mathisen's conduct as food and that services an investigation into manager showed "Clark's conspiratory [sic] involvement." 1 The Court previously granted Defendant Clark's motion to dismiss Plaintiff's original Complaint for failure to state a claim upon which relief may be granted. Due to Plaintiff's pro se status, the Court granted Plaintiff leave to file a Second Amended Complaint curing the deficiencies noted in the Court's order. 3 - OPINION AND ORDER - LEGAL STANDARDS Where a prisoner proceeding in forma pauperis files an action seeking redress from a governmental entity or officer or employee of a governmental entity, the court shall dismiss the case at any time if the court determines that: (B) the action . (I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §§ 1915 (e) (2) and 1915A(b). In order to state a claim, Plaintiff's complaint must contain sufficient factual allegations which, when accepted as true, give rise to a plausible inference that Defendants violated Plaintiff's constitutional (2009); Bell (2007) . pleads Ashcroft v. rights. Atlantic Corp. "A claim has factual reasonable facial content inference misconduct alleged." v. that that the Iqbal, Twombly, 556 550 U.S. plausibility when allows the defendant U.S. is 554, the court 662, to liable 678 556-57 plaintiff draw the for the Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). As the Ninth Circuit has instructed however, "continue to construe pro se filings liberally." 4 - OPINION AND ORDER - courts must Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" 551 U.S. 89 , 94 (2007) (quoting Erickson v . Pardus, Id. (per curiam)) . Before dismissing a pro se civil rights complaint for failure to state a claim, this Court supplies the statement of the complaint's deficiencies. Angeles Police 839 Dept., F.2d 621, plaintiff with Karim-Panahi v. 623 - 24 (9th Cir . Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1 98 7). a Los 1988); A pro se litigant will be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint Karim-Panahi, cannot be cured by amendment. 839 F.2d at 623; Lopez v. Smith, 203 F. 3d 1122, 1130-31 (9th Cir . 2000) . DISCUSSION Plaintiff's Second Amended Complaint fails to cure the deficiencies noted in the Order granting Defendant Clark 's Motion to Dismiss the original Complaint. Specifically, Plaintiff fails to allege facts supporting a claim that Defendant Clark was acting under color of state law, or that the harm alleged rises to the level of a constitutional violation. As noted generally, law. by the Court in the prior Opinion and Order, private parties are not acting under color of state Price v. Hawaii, 939 5 - OPINION AND ORDER - F.2d 702, 707-08 (9th Cir. 1991). Where a private party conspires with state officials to deprive others of constitutional rights, however, the private party is acting under color of state law. Tower v . Glover , 467 U.S. 914, 920 (1984); Franklin v. Fox, 312 F. 3d 423, 441 (9th Cir. 2002). "To prove a conspiracy between the state and private parties under [§] 1983, the [plaintiff] must show an agreement or meeting of the minds to violate constitutional rights. To be liable, each participant in the conspiracy need not know the exact details of the plan, but each must at least share the common objective of the conspiracy." United Steel workers of Am. 865 F.2d 1539, 1540-41 internal quotations insufficient to (9th Cir. omitted). state a claim Sacramento County Superior Court, 1989) v. Phelps Dodge Corp., (en bane) Conclusory of (citations and allegations conspiracy. 318 F.3d 1156, Simmons 1161 are v. (9th Cir. 2003). Plaintiff alleges only conclusory statements that Defendant Clark conspired with prison officials. He does not allege facts supporting the claim. Moreover, even if Plaintiff alleged facts sufficient to establish a conspiracy between Defendant Clark and ODOC officials, Plaintiff violation. fails The to allege facts Eighth Amendment establishing a requires constitutional only that prisoners receive food that is adequate to maintain health; the food need not be tasty or aesthetically pleasing. 6 - OPINION AND ORDER - LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). An isolated incident of food poisoning, particularly where the plaintiff did not suffer serious injury, is not sufficient to constitute an Eighth Amendment violation. See Islam v. Jackson, 782 F.Supp. 1111, 1114-15 (E.D. Va. 1992) (serving one meal contaminated with maggots and meals under unsanitary conditions for thirteen days was not cruel and unusual punishment); see also Bennett v. Misner, 2004 WL 2091473, *17 (D.Or. Sept. 17, 2004) (inmates served ketchup packages marked for use one year before failed to state Eighth Amendment violation where they did not allege they suffered significant injury or illness, such as specific, repeated instances of food poisoning). Finally, Defendant to the extent Plaintiff argues his claims against Clark negligence, are fraud, based and upon breach common of law contract principles under jurisdiction, Plaintiff's argument lacks merit. of diversity Plaintiff makes no such allegations; his claim against Defendant Clark is based solely on an alleged Eighth Amendment violation. To the extent Plaintiff attempts to invoke diversity jurisdiction, his Second Amended Complaint fails. See 28 U.S.C. § 1332(a) (diversity jurisdiction requires that all parties to an action be "citizens of different states" and that the amount in controversy exceed $75,000.00). 7 - OPINION AND ORDER - CONCLUSION For these reasons, the Court GRANTS Defendant Tom Clark's Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to FRCP 12 (b) ( 6) (#96). leave to amend to Because Plaintiff was previously granted state a claim against Defendant Clark, the dismissal is WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's Cross-Motion to Sever Mis-Joined Defendants is DENIED as moot. IT IS SO ORDERED. DATED this J.D ~ day of 8 - OPINION AND ORDER -
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