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Hernandez v. Olmos

United States District Court, Ninth Circuit

October 18, 2013

NESTOR DANIEL HERNANDEZ, Plaintiff,
v.
OLMOS, et al., Defendants.

FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION THIRTY-DAY DEADLINE

DENNIS L. BECK, Magistrate Judge.

Plaintiff Nestor Daniel Hernandez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis. Plaintiff filed this civil rights action pursuant to 28 U.S.C. § 1983 on September 7, 2011.

On December 17, 2012, the Court issued a screening order dismissing the complaint with leave to amend for failure to state a claim for which relief may be granted. Plaintiff filed a First Amended Complaint on March 4, 2013. Plaintiff names California Correctional Institution, Tehachapi ("CCI") Correctional Officers Olmos, Acosta and Clinerd as Defendants.

A. LEGAL STANDARD

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).

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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim that is plausible on its face.'" Id . (quoting Twombly , 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead , 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles , 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams , 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz. , 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton , 588 F.3d 1218, 1235 (9th Cir. 2009); Jones , 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss , 572 F.3d at 969.

B. PLAINTIFF'S ALLEGATIONS

Plaintiff is currently incarcerated at North Kern State Prison in Delano, California. The events at issue occurred while Plaintiff was incarcerated at CCI.

Plaintiff alleges that between June 28, 2011 and August 30, 2011, he was denied showers on "multiple days." Compl. 1. He alleges that Defendants Olmos, Acosta and Clinerd denied Plaintiff his "regular showers, " to which he is entitled under California Code of Regulations, Title 15, Sections 3004(b) and (c), 3060, 3061, 3064 and 3331(g). Plaintiff argues that the prison system allows daily showers, and that the denial of regular showers constitutes cruel and unusual punishment.

Plaintiff also alleges that from June 28, 2011, through August 30, 2011, Defendants physically altered multiple meals by "personally down size inmate meals by taking the law into their own hands." Compl. 2. Plaintiff cites California Code of Regulations, Title 15, Sections 3050(A)(1) and 3331(d) and contends that this denial violated his Eighth Amendment rights.

C. DISCUSSION

The Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners not only from inhumane methods of punishment but also from inhumane conditions of confinement. Morgan v. Morgensen , 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan , 511 U.S. 825, 847 (1994) and Rhodes v. Chapman , 452 U.S. 337, 347 (1981)) (quotation marks omitted). While conditions of confinement may be, and often are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan , 465 F.3d at 1045 (citing Rhodes , 452 U.S. at 347) (quotation marks omitted). Thus, conditions which are devoid of legitimate penological purpose or contrary to evolving standards of decency that mark the progress of a maturing society violate the Eighth Amendment. Morgan , 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer , 536 U.S. 730, 737 (2002); Rhodes , 452 U.S. at 346.

Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety, Johnson v. Lewis , 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in prison represents a constitutional violation, Morgan , 465 F.3d at 1045 (quotation marks omitted). To maintain an Eighth Amendment claim, a prisoner must show that prison officials were deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer , 511 U.S. at 847; Thomas v. Ponder , 611 F.3d 1144, 1150-51 (9th Cir. 2010); ...


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