The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM AND AS FRIVOLOUS (Doc. 1) OBJECTIONS DUE WITHIN THIRTY DAYS
Recommendation of Dismissal Following Screening of Complaint
Plaintiff Gregory Norwood, a state prisoner proceeding pro se, filed this civil action in Kings County Superior Court on December 30, 2008.*fn1 Defendant Clark removed the action to this court on April 16, 2009.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
Plaintiff, who is incarcerated at the California Substance Abuse Treatment Facility in Corcoran, brings this action against Warden Ken Clark and California Department of Corrections and Rehabilitation Director Suzan Hubbard.*fn2 Plaintiff alleges that the installation of Flushometers in inmates' cells, which occurred on March 18, 2008, constitutes cruel and unusual punishment, in violation of his rights under the United States and California Constitutions. The Flushometers limit inmates to two toilet flushes within ten minutes. If a third toilet flush occurs within that time frame, a thirty minute lock-out occurs. Plaintiff alleges that inmates on that facility are double celled and receive their meals in their cells. Plaintiff complains that there are times when the cells smell of defecation during meal time, and that if two flushes within ten minutes have already occurred, inmates have to either refrain from relieving themselves, which causes physical problems, or relieve themselves in a toilet that already contains waste.
The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement.*fn3 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).
Extreme deprivations are required to make out a conditions of confinement claim, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). "[R]outine discomfort inherent in the prison setting" does not rise to the level of a constitutional violation. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006).
Plaintiff's claim that installation of the Flushometers violates his federal and state constitutional rights is frivolous, and trivializes the importance of the protection against conditions of confinement that rise to the level of cruel and unusual punishment. Two toilet flushes every ten minutes, twenty-four hours a day is more than adequate to satisfy the constitutional guarantee of adequate sanitation. Compare Johnson, 217 F.3d at 729-30 (prison officials not entitled to summary judgment on Eighth Amendment claim where inmates were kept on the yard for four days following a riot, some of that time without toilet facilities, leading some inmates to urinate and defecate in their clothes, which they were forced to wear for the four days).
III. Conclusion and Recommendation
Plaintiff's complaint fails to state a claim upon which relief may be granted. The deficiency is not curable through amendment, Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987), and therefore, the Court RECOMMENDS dismissal of this action, with prejudice, for failure to state a claim and as frivolous.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the ...