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Christian Lewis Castillo v. K. Harrington

October 29, 2012

CHRISTIAN LEWIS CASTILLO,
PLAINTIFF,
v.
K. HARRINGTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM CLERK SHALL CLOSE THE CASE (ECF No. 7) SCREENING ORDER

I. PROCEDURAL HISTORY

On August 21, 2009, Plaintiff Christian Lewis Castillo, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 5.)

On March 19, 2010, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 6.) Plaintiff's First Amended Complaint (ECF No. 7) is now before the Court for screening.

II. SCREENING REQUIREMENT

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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

The amended complaint identifies the following individuals as Defendants in this action: (1) R. Pennington, Appeals Examiner and Facility Captain; (2) K. Harrington, Warden, Kern Valley State Prison (KVSP); (3) G.D. Lewis, Chief Deputy Warden, KVSP; (4) T. Billings, Correctional Counselor II, KVSP; (5) N. Grannis, Chief of Inmate Appeals Branch; (6) R.J. Geller, M.D., M.P.H., California Poison Control System; and (7) S. Lopez, Chief Medical Officer.

Plaintiff alleges the following:

On March 10, 2008, the Environmental Protection Agency (EPA) notified KVSP prison officials that the concentration of arsenic in the prison's water exceeded new standards and was unsafe. The prison video channel reported the water contamination on April 8, 2008. "'Arsenic' is a poison and is known to cause cancer or other illness such as circulatory problems if consumed." (Compl. at 4.) Dr. Geller, of the California Poison Control System, conducted a review of the water at KVSP. He "concluded that the [arsenic] levels were insignificant" and "that 'the expected numbers of health problems, either acute or chronic, caused at KVSP by arsenic at concentrations of 22 [parts per billion] in drinking water is zero.'" (Id.)

Nevertheless, Plaintiff has suffered infections in his kidney and urinary tract as a result of consuming the contaminated water. He also experienced foul smelling urine, constant dry mouth, and problems swallowing. (Id. at 4, 5.) On December 29, 2008, Plaintiff filed an inmate grievance complaining that he had not been provided a clean alternative source of water. (Id. at 4.) Defendants Billings and Lewis reviewed Plaintiff's complaint. (Id. at 5, 6.) Lewis cited determinations made by the Department of Health Services and Dr. Geller in stating that an alternate water supply was not required. The response also indicated that KVSP's water treatment plant was being modified to comply with new EPA standards. (Id. at 20, 24, 25.) Defendant Pennington and Grannis reviewed Plaintiff's grievance at the Director's Level and affirmed the denial of Plaintiff's grievance. (Id. at 6, 17, 18.) The money allocated to improve the water treatment plant at KVSP was diverted for other purposes by Defendants Pennington and Harrington. (Id. at 6.)

Plaintiff contends that the Defendants have denied him safe drinking water in violation of his ...


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