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Frederick Karl Jost v. Jerry Brown

December 27, 2010

FREDERICK KARL JOST,
PLAINTIFF,
v.
JERRY BROWN, ET AL.,
DEFENDANTS.



ORDER DISMISSING COMPLAINT, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM AND DIRECTING CLERKS OFFICE TO ENTER JUDGMENT (Doc. 15)

I. Screening Requirement

Plaintiff Frederick Karl Jost ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was transferred from the Central District of California on March 18, 2009. The Court issued an order dismissing the first amended complaint, with leave to amend, for failure to state a claim on December 6, 2010. (Doc. 14.) Currently pending before the Court is the second amended complaint, filed December 22, 2010. (Doc. 15.)

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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

II. Complaint Allegations

Plaintiff is incarcerated at Avenal State Prison. He is bringing suit against Defendants Jerry Brown, James Hartley, N. Grannis, E. McCant, and Paula Ransom, in their individual and official capacities, for violations of the Eighth, Fourteenth, and Fifteenth Amendments. He is seeking punitive damages in the amount of $10,000. (Doc. 15, p. 12.)

Despite being previously informed that he was to submit a short and plain statement of the facts without any legal citations or argument, Plaintiff's complaint is thirteen pages of legal argument and case citation, with some factual statements interspersed.

Plaintiff alleges that new shoes are given to inmates at least once per year. (Id., p. 7.) For the last fourteen years, Plaintiff has been authorized to wear soft soled shoes due to ankle and knee pain. (Id., pp. 5, 8.) Plaintiff filed an inmate appeal requesting he be issued a new pair of shoes due to orthopedic necessity. (Id., pp. 5, 10.) Defendants Hartley, Grannis, McCant, and Ransom denied Plaintiff's request for soft soled shoes due to prison overcrowding and budgetary constraints. (Id., pp. 4-5, 9, 10.) Although Plaintiff was provided with the legal standards that apply to his claim in the orders issued on June 22 and December 6, 2010, he has failed to state a cognizable claim.

III. Discussion

A. Eighth Amendment

To prove a violation of the Eighth Amendment the plaintiff must "objectively show that he was deprived of something 'sufficiently serious,' and make a subjective showing that the deprivation occurred with deliberate indifference to the inmate's health or safety." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)(citations omitted). Deliberate indifference requires a showing that "prison officials were aware of a "substantial risk of serious harm" to an inmates health or safety and that there was no "reasonable justification for the deprivation, in spite of that risk.." Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994).

Plaintiff's complaint, that he did not receive new shoes, fails to show that he was deprived of something sufficiently serious or that he was at risk of serious harm. Additionally nothing indicates that any named defendant was aware of a substantial risk of serious harm to Plaintiff by not providing him with new shoes. ...


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