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Fernando Millsap v. Matthew Cate

March 27, 2012

FERNANDO MILLSAP,
PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action against Mathew Cate, Director of the California Department of Corrections and Rehabilitation, Tim Virga, ex-Warden of the California State Prison-Sacramento ("CSP-Sacramento"), and James Walker, current Warden of CSP-Sacramento (collectively, "Defendants"), alleging that Defendants violated Plaintiff's Eighth Amendment right for safe conditions of confinement. Defendants filed a Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. On September 1, 2011, the Magistrate Judge filed findings and recommendations, which were served on all parties and contained notice to all parties that any objections were to be field within fourteen days. After the extension of time, Defendants filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(c) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court respectfully rejects Magistrate Judge's findings and recommendations and grants Defendants' motion to dismiss.

BACKGROUND

Defendants do not object to the factual background presented in the findings and recommendations ("F & R"), but rather challenge the legal conclusions reached by the Magistrate Judge. Thus, the Court adopts the following facts as established by the Magistrate Judge in his F & R. Plaintiff alleges that he was assigned to the upper bunk of a double-cell at CSP-Sacramento that was originally designed to hold only one inmate. The upper bunk is placed approximately 5.5 feet above the floor. Inmates ascend to and descend from the upper bunk by means of a metal desk stool on the wall opposite the bunks. The stool is welded to the wall. The stool is 3-4 feet away from the bunk and is about 1.5 feet above the ground.

According to Plaintiff, to get to the upper bunk, an inmate must step onto the stool and then move or jump three feet across and four feet up onto the upper bunk. On the way down, an inmate must jump four feet down onto steel.

Plaintiff alleges that he was injured trying to ascend to the upper bunk on November 16, 2009. He says that the stool collapsed while he was standing on it, causing him to fall backwards on the desk and then onto the floor. Maintenance staff Byron Harris, who came a few days later to repair the stool, told Plaintiff that the stool's weld had become weak over time. When Plaintiff was transported to medical after the incident, doctors determined that he had suffered multiple muscle contusions and swelling to his rib cage.

Plaintiff alleges that Defendants had been made aware of the unsafe conditions that resulted in his injury. He attaches a copy of another inmate's internal appeal, which was denied at the Director's Level on October 26, 2009. (Compl. Ex. E.) The other inmate, Harrison Scott, complained that climbing up and jumping down from his upper bunk was unsafe and exposed him to injury. Scott asked that ladders be installed in the cells. The appeal was denied at the Director's Level by N. Grannis, and copies of the denial were sent to the prison's Warden and Appeals Coordinator.

STANDARDS

A. Standard under 28 U.S.C. § 636 (b)(1)

The Court must conduct a de novo review of portions of the magistrate judge's findings and recommendations to which a party objects. 28 U.S.C. § 636 (b)(1); Fed. R. Civ. P. 72(b)(3);

U.S. v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations" made by the magistrate judge. 28 U.S.C. ยง 636(b)(1). "If neither party contests the magistrate's findings of fact, the court may assume their ...


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