Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bender v. Sullivan

September 17, 2009

FLOYD EUGENE BENDER, PLAINTIFF,
v.
ROBERT W. J. SULLIVAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY AGAINST DEFENDANTS AND CANNEDY WITHIN THIRTY DAYS (Doc. 1)

Screening Order

I. Screening Requirement

Plaintiff Floyd Eugene Bender, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 30, 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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted."

28 U.S.C. § 1915(e)(2)(B)(ii).

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.

II. Plaintiff's Allegations

Plaintiff, who is currently housed at California State Prison - Sacramento, brings this action for violation of the Eighth Amendment of the United States Constitution.

Plaintiff alleges that on October 13, 2004 at approximately 11:30 a.m., he was placed on 48 hour water restriction by defendant Reed. According to defendants Cannedy, Reed and Robert, Plaintiff was placed on water restriction because they believed Plaintiff liked to assault officers and throw feces. Plaintiff alleges that defendant Reed imposed a false and bogus water restriction. Plaintiff contends that pursuant to operational policy, he was to receive water every hour for approximately 5 minutes. Plaintiff states that the operational policy was violated, and he received water only once that day, and only to his toilet. Plaintiff alleges that defendants Robert and Cannedy refused his several requests for water.

On October 14, 2004, Plaintiff alleges that defendant Cannedy denied Plaintiff water at 7:00 a.m. because he did not feel like turning the water on. Defendant Lopez turned the water on at approximately 11:25 a.m. At approximately 12:30 a.m., Plaintiff asked defendant Robert to turn the water back on, since the water restriction had expired. Defendant Robert turned on the water only to Plaintiff's toilet and not to his sink, denying him access to drinking water.

A. Defendants Robert, Cannedy, and Lopez

The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. 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).

Plaintiff's allegations that defendants Robert and Cannedy: i) disliked and were angry with Plaintiff; ii) threatened to pepper spray him; iii) returned the following day with defendant Reed, who imposed the water restriction on Plaintiff, and iv) then repeatedly denied Plaintiff access to drinking water is sufficient to state a cognizable claim against them for violation of the Eighth Amendment.

Plaintiff, however, fails to state a claim against defendant Lopez. Plaintiff's allegation that defendant Lopez refused to turn on his water on October 14 at 11:08 a.m., but came back approximately 15-20 minutes and did so, does not support a claim that he knew and disregarded a substantial risk of serious harm to Plaintiff. Farmer, 511 U.S. at 837. "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). Plaintiff's allegations establish that defendant Lopez ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.