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Sherman v. Gonzalez

July 13, 2010

BRANDON L. SHERMAN, PLAINTIFF,
v.
F. GONZALEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS (Doc. 19) OBJECTIONS DUE WITHIN 30 DAYS

Plaintiff Brandon L. Sherman ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 11, 2010, Defendants Walker, Rocha, and Pinkerton (referred to collectively as "Defendants") filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the ground that Plaintiff's complaint fails to state a claim upon which relief can be granted under Section 1983. (Doc. #19.) Plaintiff filed an opposition on March 17, 2010. (Doc. #22.) Defendants filed a reply on March 18, 2010. (Doc. #23.)

I. Background

A. Plaintiff's Claims Against Defendants Walker, Rocha, and Pinkerton

This action proceeds on Plaintiff's complaint filed on March 5, 2009. (Doc. #1.) Plaintiff was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California at the time of the events described in his complaint. (Compl. ¶ 4.) Plaintiff claims that he suffered injury when sewage from his toilet flooded his cell on July 10, 2007. (Compl. ¶ 18.) Plaintiff complains that the correctional officers (including Defendants Walker, Rocha, and Pinkerton) ran out of the building when the flooding began and left all the prisoners locked in their cells. (Compl. ¶ 18.) Plaintiff alleges that the officers failed to check to see if any prisoners were suffering any ailments or injuries and needed to be evacuated. (Compl. ¶ 18.) Plaintiff was left in his cell for five (5) hours without fresh water to drink. (Compl. ¶ 18.) Plaintiff alleges that he suffered a severe asthma attack as a result of the smell from the sewage. (Compl. ¶ 18.)

When the officers returned after five (5) hours, Defendant Walker approached Plaintiff's cell and asked if Plaintiff was all right. (Compl. ¶ 18.) Plaintiff could not speak and shook his head "no." Defendant Rocha ordered Defendant Pinkerton to open the cell and Plaintiff was taken to the medical clinic. (Compl. ¶ 18.) Plaintiff had to be taken to a hospital outside the prison for emergency treatment. (Compl. ¶ 19.) Plaintiff claims that his heart had stopped and a tube had to be placed down his penis to allow him to urinate. (Compl. ¶ 19.)

B. Defendants' Motion to Dismiss

Defendants argue that they are entitled to dismissal under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff fails to state a claim against them. Defendants also argue that they are entitled to qualified immunity.

Defendants argue that Plaintiff has failed to state a claim under Section 1983 because the facts alleged do not amount to an Eighth Amendment violation. Defendants argue that Plaintiff has failed to allege facts to show that the alleged deprivation caused by Defendants was sufficiently serious under Eighth Amendment standards. (Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss 4:1-5:4.) Defendants argue that exposure to the smell of human feces and the deprivation of fresh water for five (5) hours is not a substantial deprivation. (P. & A. in Supp. of Defs.' Mot. to Dismiss 4:27-5:1.) Defendants argue that the temporary deprivation is not actionable under the Eighth Amendment. (P. & A. in Supp. of Defs.' Mot. to Dismiss 5:1-2.)

Defendants also argue that Plaintiff did not demonstrate that Defendants acted with deliberate indifference. (P. & A. in Supp. of Defs.' Mot. to Dismiss 5:5-23.) Defendants argue that Plaintiff has not plead facts to suggest that Defendants Walker, Rocha, and Pinkerton had actual knowledge of a substantial risk to Plaintiff's safety. (P. & A. in Supp. of Defs.' Mot. to Dismiss 5:7-9.) Defendants also argue that Plaintiff has not alleged a risk so obvious that knowledge of the risk could be inferred. (P. & A. in Supp. of Defs.' Mot. to Dismiss 5:7-9.) Defendants note that Plaintiff has not alleged that Walker, Rocha, or Pinkerton knew that Plaintiff had a medical condition or that the smell of human feces would trigger a serious asthma attack. (P. & A. in Supp. of Defs.' Mot. to Dismiss 5:17-19.) Defendants further contend that Plaintiff has not alleged facts to demonstrate that Defendants knew that Plaintiff was in need of drinking water. (P. & A. in Supp. of Defs.' Mot. to Dismiss 5:19-20.)

Finally, Defendants assert that they are entitled to qualified immunity. (P. & A. in Supp. of Defs.' Mot. to Dismiss 5:24-7:18.) Defendants argue that there is no clearly established law that would have placed a reasonable correctional officer on notice that the temporary deprivation of sanitation and drinking water amounted to a constitutional violation. (P. & A. in Supp. of Defs.' Mot. to Dismiss 7:3-5.)

C. Plaintiff's Opposition

Plaintiff argues in opposition that it was deliberately indifferent for Walker, Rocha, and Pinkerton to leave Plaintiff in his cell with overflowing sewage and no water or ventilation. (Mem. of P. & A. in Supp. of Pl.'s Mot. of Opp'n to Defs.' Mot. to Dismiss 4:26-5:8.) Plaintiff argues that leaving him in that unhealthy and inhumane environment for a five-hour period caused Plaintiff to suffer a near death experience. (Opp'n 4:26-5:8.) Plaintiff further argues that "Defendants had some type of knowledge that the situation could cause some type ...


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