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Ari Tomasian v. K. Allison

September 28, 2012

ARI TOMASIAN,
PLAINTIFF,
v.
K. ALLISON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (ECF No. 1)

Screening Order

I. Screening Requirement

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).

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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

This action proceeds on the complaint filed on February 25, 2011. Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Corcoran State Prison, brings this civil rights action against defendant correctional officials employed by the CDCR at CSP Corcoran. Plaintiff names the following individual defendants: K. Allison; D. Goss; P. Hernandez; V. Vasquez. Plaintiff's claims stem from a disturbance between rival prison groups. Plaintiff sets forth claims under the Eighth Amendment.

Plaintiff alleges that on June 21, 2009, there was an incident involving Southern Hispanics and Northern Hispanics. Plaintiff alleges that Defendants decided to place all Southern Hispanic inmates on lockdown. As a result, all privileges were lost, including access to outside recreation. Plaintiff alleges generally that "from 6-21-09 the authorities in this prison has discriminated against all inmates that are label as Southern Hispanics and continually use 'security concerns' as the reasons for locking Plaintiff down and all my privileges taken from me."

Plaintiff alleges that C yard, where he is housed, includes and upper yard and lower yard. The yards are separated by a wall, precluding any contact between inmates. All of the Northern Hispanic inmates are housed on the upper yard and Plaintiff is housed on the lower yard. Despite the housing arrangement, "the authorities" continue to keep Southern Hispanics on lockdown. Plaintiff alleges that due the lack of recreational activity and "unableness," he continues to suffer back problems and is in constant pain.

A. Eighth Amendment

The routine discomfort inherent in the prison setting is inadequate to satisfy the objective prong of an Eighth Amendment inquiry. "Those deprivations denying 'the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.'" Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). "The circumstances, nature, and duration of a deprivation of one of these necessities must be considered in determining whether a constitutional violation has occurred. The more basic the need, the shorter the time it can be withheld." Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000).

Regarding outdoor exercise, the Ninth Circuit has consistently held that "ordinarily the lack of outside exercise for extended periods is a sufficiently serious deprivation" for Eighth Amendment purposes. LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). A prohibition on outdoor exercise of six weeks is a "sufficiently serious" deprivation to support an Eighth Amendment claim. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000)(en banc); Allen v. Sakai, 48 F.3d 1082, 1086 (9th Cir. 1994).

Plaintiff has alleged facts, liberally construed, indicating that has been deprived of outdoor exercise for an extended period of time. Plaintiff has not, however, specifically alleged conduct by any of the individual defendants specifically caused the deprivation at issue. Plaintiff lists the defendants, but refers to "them" or correctional officials in general. All of the named defendants are employed in a supervisory capacity. Liability may be imposed on supervisory defendants under ยง 1983 only if (1) the supervisor personally participated in the deprivation of constitutional rights or (2) the supervisor knew of the violations and failed to act to prevent them. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Taylor v. Lst, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff does not allege that facts indicating that the ...


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