United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND FOR
FAILURE TO STATE A CLAIM UNDER SECTION 1983 ORDER DISMISSING
L. BECK, UNITED STATES MAGISTRATE JUDGE
Steven Jon Smith, a state prisoner proceeding pro se and in
forma pauperis, filed this civil rights action pursuant to 42
U.S.C. § 1983 on July 2, 2014. He consented to the
jurisdiction of the Magistrate Judge on July 25, 2014.
March 17, 2015, the Court issued a screening order which
dismissed the complaint for failure to state a claim.
Plaintiff was granted an opportunity to file an amended
complaint. On August 13, 2015, Plaintiff filed a First
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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. §
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, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955 (2007)), and courts “are not required to
indulge unwarranted inferences, ” Doe I v. Wal-Mart
Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)
(internal quotation marks and citation omitted). While
factual allegations are accepted as true, legal conclusions
are not. Iqbal, 556 U.S. at 678.
section 1983, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of 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). Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
who is currently incarcerated at Taft Modified Community
Correctional Facility in Taft, California, is suing John Does
1 through 5, who are manufacturers of California Prison
Industry Authority (“CALPIA”) soap, for emotional
distress and possible future damages. Plaintiff’s claim
arises from his past use of bar soap that was recalled on
July 28, 2012, after it was found to contain an unidentified
chemical identified in Proposition 65. The Court takes
judicial notice that on July 30, 2012, CALPIA recalled bar
soap for the following stated reason: “During 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.” For the reasons which
follow, Plaintiff fails to state a claim for relief.
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, 114 S.Ct. 1970 (1994) and Rhodes v.
Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (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, 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346.
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); Foster v. Runnels, 554 F.3d 807, 812-14
(9th Cir. 2009); Morgan, 465 F.3d at 1045;
Johnson, 217 F.3d at 731; Frost v. Agnos,
152 F.3d 1124, 1128 (9th Cir. 1998).
unsafe or hazardous conditions of confinement may violate the
Eighth Amendment, there are no facts supporting a claim that
anyone acting under color of state law knowingly disregarded
a substantial risk of harm to Plaintiff’s health or
safety. Farmer v. Brennan, 511 U.S. 825, 847, 114
S.Ct. 1970 (1994); Thomas v. Ponder, 611 F.3d 1144,
1150-51 (9th Cir. 2010); Foster v. Runnels, 554 F.3d
807, 812-14 (9th Cir. 2009). Negligence does not suffice to
support an Eighth Amendment claim. Lemire v. California
Dep’t of Corr. and Rehab., 726 F.3d 1062, 1081-82
(9th Cir. 2013); Wilhelm v. Rotman, 680 F.3d 1113,
1122 (9th Cir. 2012); Hearns v. Terhune, 413 F.3d
1036, 1040 (9th Cir. 2005).
Plaintiff may not pursue a claim for emotional or mental
distress in the absence of a physical injury which is more
than de minimis. 42 U.S.C. § 1997e(e);
Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002);
accord Pierce v. County of Orange, 526 F.3d 1190,
1123-24 (9th Cir. 2008). In this case, Plaintiff has not
suffered from any physical injury and his assertion that he
may develop cancer someday is purely speculative.
Conclusion and Order
complaint fails to state a claim upon which relief may be
granted under section 1983. Plaintiff was previously provided
with the opportunity to amend and he was unable to cure the
deficiencies. Akhtar v. Mesa, 698 F.3d 1202, 1212-13
(9th Cir. 2012); Lopez, 203 F.3d at 1130. Based on
the nature of the ...