The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDING AND RECOMMENDATION THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED OBJECTIONS DUE IN THIRTY DAYS
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 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
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)).
Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at CSP Sacramento, brings this civil rights action against defendant correctional officials employed by the CDCR at Corcoran State Prison. Plaintiff names as defendants Correctional Officers Braswell and Delanda.
Plaintiff's sole claim in this action is that he was deprived of his evening meal on January 11 and 12, 2007. Plaintiff claims that such conduct constituted cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff also claims that the deprivation deprived him of equal protection in violation of the Due Process Clause of the Fourteenth Amendment.
Plaintiff specifically alleges that at the beginning of Defendant Braswell's shift, he approached Plaintiff's cell and told Plaintiff that he was going to punish him for asking an officer during an earlier shift why he pushed him during an escort to the law library. Plaintiff alleges that when he was passing out the dinner trays, Braswell intentionally passed his cell.
Plaintiff further alleges that Braswell refused to give Plaintiff his dinner on the above occasions "as a result of racial prejudice towards me as an African American." Plaintiff alleges that he asked Braswell why he did not receive his meal, and Braswell told him that it was because he said something disrespectful to a white female. Plaintiff alleges that a white inmate housed next to him was charged with a disciplinary violation for indecent exposure, exposing himself to a white female correctional officer while Braswell was on duty. Braswell served that inmate his dinner. Plaintiff's allegation is stated as follows "Defendant Braswell heritage racial conscious compelled him to feed the white inmate, but the defendant did not feed me for two days for a lesser alleged verbal offense. I was subjected to racial profiling by Defendant Braswell" (Compl. p. 5.). This is too conclusory.
For an Eighth Amendment claim for cruel and unusual punishment, Plaintiff must allege facts indicating that (1) there was a denial of "the minimal civilized measure of life's necessities" which (2) was caused by prison officers' "deliberate indifference" to Plaintiff's health or safety. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). To determine whether there has been a denial of the minimal civilized level of life's necessities, the court conducts an objective inquiry: was the deprivation sufficiently serious? The court conducts a subjective inquiry to determine whether the prison official acted with a sufficiently culpable state of mind; that is, with deliberate indifference to the health or safety of the prisoner. Wilson, 501 U.S. at 302-03. To establish an officer's deliberate indifference, a prisoner must show that (1) the officer was aware of the risk to the prisoner's health or safety, and (2) the officer deliberately disregarded that risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009). Mere negligence is not sufficient to establish deliberate indifference; rather, the official's conduct must have been wanton. Id. at 835.
The Eighth Amendment protects a prisoner's right to receive food "adequate to maintain health." LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). The Ninth Circuit has held that a denial of 16 meals in 23 days "is a sufficiently serious deprivation because food is one of life's basic necessities." Foster, 554 F.3d at 812-13. Other cases finding a sufficiently serious deprivation involve the plaintiff being deprived of food entirely for more than two consecutive days. See Dearman v. Woodson, 429 F.2d 1288, 89 (10th Cir. 1970)(no food for 50 hours); Cooper v. Sheriff of Lubbock Co., 929 F.2d 1078, 1082-83 (5th Cir. 1991)(no food for twelve days); Reed v. McBride, 178 F.3d 849, 53 (7th Cir. 1999)("infirm" plaintiff did not receive food for 3-4 days at a time); Robles v. Coughlin, 725 F.2d 12, 16 (2d. Cir. 1983)(no food for 12 days, some consecutive, out of 53 day period). In another case, the court found that depriving a plaintiff of four consecutive meals in two days is a sufficiently serious deprivation. Simmons v. Cook, 154 F.3d 805, 809 (8th Cir. 1998).
Here, Plaintiff alleges, at most, that he was deprived of dinner on two consecutive days. There are no allegations that officers on any other shifts deprived Plaintiff of his meals, or that Plaintiff did not have any access to food as a result of Defendant Braswell's conduct, such that it constituted an Eighth Amendment violation as defined above. Simply put, a denial of dinner two days in a row does not constitute a constitutional violation. Further, the Court finds that this deficiency can not be cured by amendment. Plaintiff was specific in his allegation that the conduct occurred on two specific days. There is therefore no ambiguity as to the amount of ...