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Pettus v. United States Bureau of Prisons

June 9, 2009

NAKIA PETTUS, PLAINTIFF,
v.
UNITED STATES BUREAU OF PRISONS, ET AL., DEFENDANT(S).



The opinion of the court was delivered by: Charles R. Breyer United States District Judge

ORDER OF SERVICE

Plaintiff, a prisoner at Florence United States Penitentiary in Colorado ("Florence"), has filed a pro se complaint under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging numerous violations of his federal rights while he was incarcerated at Atwater United States Penitentiary ("Atwater") and Herlong Federal Correctional Institution ("Herlong"), both in California.

Plaintiff's nine claims are as follows. First, Plaintiff alleges that he was deprived of his specific status while in a Special Housing Unit at Atwater and that his life was endangered when three prisoners threatened him with shanks and forced him to reassign himself to the Special Housing Unit. Second, he alleges that he was denied psychiatric evaluation and care at Atwater. Third, Plaintiff alleges that he did not receive all of his mail when he transferred from a previous institution, and was without postage stamps for 48 days once while in lockdown at Atwater. Fourth, he alleges that he was denied a mop, broom, toilet brush other supplies at times while at Atwater. Fifth, Plaintiff alleges that he was denied forms to initiate a grievance process while at Atwater. Sixth, he alleges that he was denied placement in the Special Housing Unit law library, and that the amount of legal materials he was able to receive at Atwater was otherwise restricted. Seventh, Plaintiff alleges that he had to wait from August 27, 2008 until September 16, 2008 to receive a prescribed antidepressant at Herlong. Eighth, he alleges that he had to endure cold showers numerous times at Herlong. Ninth, Plaintiff alleges that a knit cap, two inches of letters, and some legal materials were improperly confiscated upon his transfer from Atwater.

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under Bivens and its progeny, plaintiff must allege:

(1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor. See Van Strum v Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (42 U.S.C. § 1983 and Bivens actions are identical save for replacement of state actor under § 1983 by federal actor under Bivens).

B. Legal Claims

Plaintiff's first claim, liberally construed, is a cognizable claim under Bivens that Defendant D. Smith, warden of Atwater, was deliberately indifferent to his personal safety by allowing him to be threatened by three inmates and essentially forced into moving to a Special Housing Unit. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (8th Amendment imposes duty on prison officials to provide all prisoners with basic necessities of life such as food, clothing, shelter, sanitation, medical care and personal safety).

Plaintiff's second claim also is a cognizable claim under Bivens that Defendant D. Smith, warden of Atwater, was deliberately indifferent to Plaintiff's mental health by failing to provide him with psychiatric care despite his attempts to seek treatment. Id.

However, Plaintiff's remaining claims lack merit.

Although intentional interference with the processing of inmate mail may rise to the level of a constitutional violation, the isolated instances of delay which Plaintiff alleges here are insufficient to state a claim for which relief may be granted. See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (isolated incidents of mail interference without evidence of improper motive do not give rise to a constitutional violation); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (short-term and sporadic delays in prisoner's receipt of mail did not violate his First Amendment rights); see also Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (diverting publications through property room reasonably related to prison's interest in inspecting mail for contraband). Plaintiff's third claim fails to state a claim under Bivens and is dismissed.

In determining whether deprivation of a basic necessity is sufficiently serious to satisfy the objective component of an Eighth Amendment claim, a court must consider the circumstances, nature, and duration of the deprivation. The more basic the need, the shorter the time it can be withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); see also Hearns v. Terhune, 413 F.3d 1036, 1041-42 (9th Cir. 2005) (allegations of serious health hazards in disciplinary segregation yard for a period of nine months, including toilets that did not work, sinks that were rusted and stagnant pools of water infested with insects, and a lack of cold water even though the temperature in the prison yard exceeded 100 degrees, enough to state a claim of unconstitutional prison conditions). In contrast, less substantial and less lengthy deprivations of such necessities, or deprivations that are simply inconveniences or de minimis injuries, do not satisfy the objective component of the Eighth Amendment. See, e.g., Anderson v. County of Kern, 45 F.3d 1310, 1314-15 (9th Cir.) (temporary placement in safety cell that was dirty and smelled bad did not constitute infliction of pain), amended, 75 F.3d 448 (9th Cir. ...


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