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Donges v. Durrett

October 6, 2010

SHAWN CURTIS DONGES, PLAINTIFF,
v.
DON DURRETT, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Now pending before the court is plaintiff's third amended complaint, which the court has construed as a request by plaintiff for leave to file a third amended complaint.

BACKGROUND

Plaintiff is proceeding in this matter on his second amended complaint. Therein, plaintiff claims that defendants failed to provide him with adequate medical care in violation of the Eighth Amendment. Specifically, plaintiff alleges that defendant Perett failed to provide him with adequate medication for his human immunodeficiency virus (HIV) and chronic pain conditions. Plaintiff also alleges that defendant Flicker kept the jail cells at the Butte County Jail at extreme temperatures, exacerbating plaintiff's HIV condition. Finally, plaintiff alleges that defendant Baker failed to prescribe him adequate psychiatric medication. By order filed August 19, 2009, the court found that plaintiff's second amended complaint appeared to state cognizable civil rights claims and authorized service on defendants.

LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend a complaint should be given freely when justice so requires. However, "a district court need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile." AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citing Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999)).

Moreover, the court is required to screen complaints brought by prisoners seeking relief against a government entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint, or a 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. See 28 U.S.C. § 1915A(b)(1) & (2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).

ANALYSIS

In his proposed third amended complaint, plaintiff appears to add three new named defendants (Bronson, Brooks, and O'Hare) as well as various John Doe defendants. Plaintiff also appears to add three new claims for relief. However, this case has been pending before the court since February 9, 2009, all discovery is concluded and the time for filing additional motions has now passed. (Doc. No. 32.) It appears plaintiff had to have been aware of both his proposed new claims and defendants long ago. Yet, plaintiff has failed to address his delay in seeking further leave to amend at this late date. Relevant to evaluating the delay issue is "whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990). See also Chodos v. West Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002) (district court did not abuse its discretion in denying a motion to amend based on undue delay where facts were available to a plaintiff before previous amendments to the complaint). Plaintiff's request for further leave to amend at this time is properly denied on this basis alone.

Moreover, as explained below, plaintiff's proposed third amended complaint fails to state new cognizable claims under 42 U.S.C. § 1983. Accordingly, the court finds that granting plaintiff leave to amend his second amended complaint would be futile and that his request to do so should therefore be denied.

I. Defendant Bronson

In his third amended complaint plaintiff alleges that defendant Bronson, as First Coordinator, "is responsible for inspecting [Butte County Jail's] maintenance and maintenance workers. (Third Am. Compl. at 3.) Plaintiff also alleges that the Butte County Jail was kept at extreme temperatures, ranging from 42 to 98 degrees, thereby threatening his health. (Id. at 9.)

To sustain an Eighth Amendment claim contesting the conditions of confinement, a plaintiff must allege facts satisfying two elements. First, a plaintiff must allege facts demonstrating that an official deprived him of "the minimal civilized measure of life's necessities." Kennan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (quotations and citations omitted). In this regard, a prison official must provide an inmate with "adequate shelter, food, clothing, sanitation, medical care, and personal safety." Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). Second, a plaintiff must allege facts demonstrating that the prison official acted with "deliberate indifference." Wilson v. Seiter, 501 U.S. 294, 303 (1991). A prison official acts with deliberate indifference when he "knows of and disregards an excessive risk to [plaintiff's] health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id.

Here, in his proposed third amended complaint plaintiff has failed to allege specific facts demonstrating that defendant Bronson acted with deliberate indifference. Plaintiff does not allege that defendant Bronson knew of the extreme temperatures at the jail, knew of plaintiff's health condition, or in any way disregarded a risk posed by the jail's extreme temperatures to plaintiff's health. ...


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