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Gregory H. Brooks v. Scott Perkins

April 18, 2013

GREGORY H. BROOKS, PLAINTIFF,
v.
SCOTT PERKINS, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis on his complaint seeking damages and injunctive relief pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned. See ECF No. 5.

On February 15, 2013, the court screened plaintiff's complaint, and dismissed it with leave to amend. See ECF No. 8. In particular, the court found that plaintiff's claims against the California Department of Corrections and Rehabilitation ("CDCR") and Prison Industry Authority ("CAL PIA") were barred by the Eleventh Amendment. See id. at 4. The court further found that there was no indication that plaintiff had exhausted his administrative remedies. Id. The court specifically advised plaintiff that, if he chose to amend the complaint, he "must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights." See ECF No. 8 at 4.

Plaintiff has now filed an amended complaint. ECF No. 11. The amended complaint not cure the deficiencies raised in the court's February 15, 2013 order. Accordingly, the court will dismiss the action for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(1)(b)(1).

Summary of the Amended Complaint

Plaintiff alleges that defendants Scott Perkins, Eric Reslock, and Tim Hart, all apparent employees of CAL PIA, were negligent in manufacturing and distributing "Bar and Bitz" brand soap because the soap contained a carcinogen in violation of state law, and the Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution. ECF No. 14 at 1.

Plaintiff alleges that PIA soap "was discovered to possess an ingredient called (CARCINOGEN) which is a cancer forming agent." Id. at 3. Specifically, Plaintiff claims that the soap contains a substance called "ESTROGLE [sic] which is a compnant [sic] that violates California Prop 65." ECF No. 11 at 2; 16.*fn1

On July 29, 2012, PIA issued a memorandum recalling the soap. Id. Plaintiff appears to allege that defendants knew that the soap was toxic before July 29, 2012. Id. at 4. Specifically, plaintiff claims that defendant Tim Hart told non-party Mario Williams that CALPIA tested the soap for toxic substances in 2007; that CALPIA did not care about Mr. Williams, and that CALPIA is trying to kill Mr. Williams. Id. at 2.

Notably plaintiff does not allege that he himself ever used the soap, or was otherwise exposed to the alleged carcinogen. However, plaintiff claims that "the damage has been done," but that any "medical issues won't arrive for years to come." Id. at 4. Plaintiff claims that he "has suffered symptoms of Frequent Urination, Nightime [sic] Urination, Bone aches, headaches and changing of the skin which is consistent with symptoms placing Plaintiff 'at risk' for Bladder, Lung, Neorologic [sic] and Muscular Cancer. . . ." Id. at 5. Plaintiff attaches a bare list of medications which were apparently prescribed to him; however, he provides no information about why these medications were prescribed. ECF No. 11 at 20-21. He accordingly seeks: (1) monetary damages of $1 million; (2) punitive damages of $10 million "for the mental anguish suffered due to the slow and agonizing MURDER of my existence as the Cancer eats away may [sic] Tissues, and organs," (3) compassionate release; and (4) payment for treatment and care. Id. at 6.

Attached to the Amended Complaint are several exhibits. Exhibit A is a Memorandum dated July 29, 2012 from the Warden at California State Prison-Solano which reads that "[d]uring CAPLIA's annual review of product Material Safety Data Sheets a trace amount of chemical that is listed for review under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) as a carcinogen was found to be present in CALPIA's bar soaps." ECF No. 11 at 7.

Exhibit B is an "Updated CAPILA Customer Alert: Bar Soap Products" dated July 30, 2012 from CALPIA which reads that

[d]uring an annual inspection, a trace amount of a chemical listed as a carcinogen under Proposition 65 was found to be present in the soap's fragrance.

This chemical is a natural organic compound that is listed as a third tier priority for the State of California to study. It may be 3-5 years before the State issues guidelines with respect to maximum exposure levels. This product is not hazardous by OSHA criteria and does not contain any carcinogens or potential carcinogens as listed by ACGIH, IARC, OSHA, or NTP.

In the absence of guidance under Proposition 65, CALPIA discontinued using the chemical in this product and recommends that unused products ...


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