UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 9, 2013
CLARENCE LEON DEWS, PLAINTIFF,
STATE WATER SYSTEM, I.D. #1510802, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ralph R. Beistline United States District Judge
Clarence Leon Dews, a state prisoner appearing pro se and in forma pauperis, filed a civil rights action under 42 U.S.C. § 1983.*fn1 Dews is currently incarcerated at the Kern Valley State Prison. This action arises out of an alleged unsafe level of arsenic in the potable water consumed by inmates at the Kern Valley State Prison, North Kern Valley State Prison, and Wasco State Prison.*fn2 In this action Dews has sued various California state entities and officials in their individual capacities for injunctive relief and damages caused by his consumption of the contaminated water over a period of several years.*fn3
I. SCREENING REQUIREMENT
This Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity.*fn4 This Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief."*fn5 Likewise, a prisoner must exhaust all administrative remedies as may be available,*fn6 irrespective of whether those administrative remedies provide for monetary relief.*fn7
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."*fn8 "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."*fn9 Failure to state a claim under § 1915A incorporates the familiar standard applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any doubt, and dismissal should be granted only where it appears beyond doubt that the plaintiff can plead no facts in support of his claim that would entitle him or her to relief.*fn10
This requires the presentation of factual allegations sufficient to
state a plausible claim for relief.*fn11 "[A]
complaint [that] pleads facts that are 'merely consistent with' a
defendant's liability . . . 'stops short of the line between
possibility and plausibility of entitlement to relief.'"*fn12
Further, although a court must accept as true all factual
allegations contained in a complaint, a court need not accept a
plaintiff's legal conclusions as true.*fn13
"Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice."*fn14
II. GRAVAMEN OF COMPLAINT
The water supply to the three state prisons located in Kern County is provided by the State Water System #151082. That water system has been determined to contain unsafe levels of arsenic and mercury, a condition that has yet to be rectified. Dews contends that as a result of the toxic substances in the water system he has suffered rectal bleeding, hemorrhaging/hemorrhoids, and has cancer of the stomach.
Plaintiff seeks: (1) injunctive relief compelling the wardens of North Kern County State Prison, Kern County State Prison, and Wasco State Prison to provide bottled drinking water; (2) compensatory damages of $150,000.00, and (3) punitive damages of $200,000.00.
III. OTHER ACTIONS PENDING
Dews has three other actions under 42 U.S.C. § 1983 pending in this Court: Dews v. Kern Radiology Medical Group, Inc., 1:12-cv-00242-AWI-MJS (Dews I"); Dews v. County of Kern, 1:12-cv-00245-AWI-MJS ("Dews II"); and Dews v. Chen, 1:12-cv-01221-RRB ("Dews III").*fn15
In Dews I, Dews has also sued various officials of the North Kern County Prison for violation of the Eighth Amendment proscription of cruel and unusual punishment in denying him necessary medical treatment for a torn rotator cuff. That action was dismissed during screening with leave to amend; however, in lieu of filing an amended complaint Dews has appealed from the dismissal.
In Dews II, Dews has sued various officials of the Wasco State Prison for use of excessive force and denial of necessary medical treatment. That action has not been screened.
In Dews III, Dews has sued various prison officials in their official and representative capacities and two California municipalities for deliberate indifference to serious medical needs in violation of the Eighth Amendment. That action was dismissed by this Court during screening with leave to amend.
Dews Complaint as presently constituted is defective in several respects. Attached to Dew's Complaint is a copy of a CDCR 602 Inmate/Parolee Appeal Form dated June 25, 2012, a month prior to the time this action was filed. Dews has failed to attach any documentation evidencing his appeal was processed through the three levels of appeal provided under California law.*fn16 As noted above, a prerequisite to bringing an action under § 1983 is that the prisoner must have exhausted his administrative remedies.*fn17 It is plainly evident that, at the time Dews initiated this action, he not only had not exhausted his available administrative remedies, but could not have exhausted them. Accordingly, this Court must dismiss this action as to Defendants Maurice Junious, Warden, North Kern Valley State Prison; K. Harrington, Warden (A), Kern Valley State Prison; D. Martin Biter, Warden (A), Kern Valley State Prison; John Doe, Warden, Wasco State Prison; E. Borreno,
B. Da Veiga, and S. Tallerico for failure to exhaust available state administrative remedies. A second defect is that the allegations of the Complaint only supports relief against
the prison officials in their official, not their individual
capacities. A claim against an official in his or her official
capacity is treated as a claim against the state itself.*fn18
To the extent that Dews seeks monetary damages, it is against
the State, barred by the Eleventh Amendment.*fn19
Eleventh Amendment immunity does not, however, preclude the granting of prospective relief.*fn20 The State Water Board and CPIA, state agencies, are also immune from suit under the Eleventh Amendment.*fn21 Because the claims against them do seek injunctive relief, the claims against the State Water Board and CPIA will be dismissed without leave to amend.
With respect to Defendants E. Borreno, B. Da Veiga, and S. Tallerico, Dews' complaint suffers from a second defect: he has failed to allege how they are responsible for the quality of the water at the prisons either individually or in their official capacities. Nor, does it appear that Dews could plead a plausible claim against them. Consequently, the claims against those three defendants will also be dismissed without leave to amend.
Finally, to the extent Dews seeks injunctive relief against the wardens of North Kern County and Wasco Prisons, because he is no longer incarcerated in either prison, Dews lacks standing to assert those claims.*fn22 It is clear that a favorable decision compelling the wardens of the North Kern County and Wasco State Prisons to provide uncontaminated water would not benefit Dews.*fn23 Accordingly, the claims against them will be dismissed without leave to amend.
For the reasons set forth above, the Court hereby ORDERS as follows:
1. The Complaint on file herein is hereby DISMISSED without prejudice;
2. The Complaint as against the State Water System #1510802; California Prison Industry Authority ("CPIA"); Maurice Junious, Warden, North Kern Valley State Prison; D. Martin Biter, Warden (A), Kern Valley State Prison; John Doe, Warden, Wasco State Prison; E. Borreno, B. Da Veiga, and S. Tallerico is DISMISSED without leave to amend;
3. On or before June 17, 2013, Plaintiff may file an Amended Complaint under 42 U.S.C. § 1983 against K. Harrington, Warden, Kern Valley State Prison, consistent with Part IV, above; provided however, that Plaintiff must affirmatively plead and establish either:
(1) that he has exhausted his available administrative remedies; or (2) that he is excused from such exhaustion under California law;
4. If Plaintiff has not filed an Amended Complaint by June 17, 2013, or such further time as the Court may grant, the Clerk of the Court is directed to enter a judgment of dismissal without further order of the Court.