United States District Court, E.D. California
CLARENCE E. REESE, Plaintiff,
P. LLAMAS, Acting Captain,, Defendants.
SCREENING ORDER REQUIRING PLAINTIFF TO EITHER FILE A
THIRD AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO
PROCEED ONLY ON COGNIZABLE CLAIMS (ECF NO. 13)
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
Screening Requirement and Standard
Clarence E. Reese (“Plaintiff”) is a state
prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed this action on September 1, 2015 and without
the Court screening the original complaint, filed a first
amended complaint on March 25, 2016. The Court screened the
first amended complaint and granted leave to amend.
Plaintiff's second amended complaint, filed on January 6,
2017, is currently before the Court for screening.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, 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).
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss
v. United States Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
is currently housed at Pelican Bay State Prison. The events
in the complaint are alleged to have occurred at Corcoran
State Prison. Plaintiff names Acting Captain P. Llamas, Sgt.
Sarah Leon and Ric Pavich, Maintenance Engineer, as
defendants. Plaintiff alleges as follows: Plaintiff alleges
that while he was housed in solitary confinement between May
18, 2015 and July 25, 2015, Plaintiff suffered a deprivation
of hot/warm water in his cell and shower area. (ECF No. 13,
p. 7.) Plaintiff did not have water at the required
temperature to sanitize his clothes, eating utensils,
cell/living area and body. Plaintiff alleges he informed
Defendant Llamas of his living condition through a CDCR 22
form, by his CDCR 602 and on June 6, 2015, he spoke
personally to Defendant Llamas and informed her of his health
issues due to lack of hot/war running water. He said he
needed to be moved to a cell with hot/war running water by
Defendant Llamas told him to “stop crying and be glad
its summer.” Plaintiff alleges that he told Defendant
Leon of Plaintiff's living conditions numerous times
between May 18, 2015 and July 25, 2015 as Defendant escorted
Plaintiff to yard. (ECF NO. 14, ¶5.) Defendant Leon
refused to reassign Plaintiff. Plaintiff was forced to live
with unsanitized utensils and bowls, shower in unsanitary
area, and “live in human waste.” Defendants did
not “redline” his cell and they had the
“authority to correct Plaintiff's living
conditions” and knew of the conditions yet refused to
take reasonable corrective steps. Plaintiff alleges that
Defendants acted with deliberate indifference and also
negligently under state law. Plaintiff alleges he complied
with California Government Claims Act. In declarations
attached as Exhibits to the complaint, other inmates state
that they saw Plaintiff with rashes and other conditions
which were not present before the water was limited.
seeks compensatory and declaratory judgment that his rights
constitute cruel and unusual punishment in violation of the
Eight Amendment, prison conditions must involve “the
wanton and unnecessary infliction of pain.” Rhodes
v. Chapman, 452 U.S. 337, 347 (1981). A prisoner's
claim does not rise to the level of an Eighth Amendment
violation unless (1) “the prison official deprived the
prisoner of the ‘minimal civilized measure of
life's necessities, '” and (2) “the
prison official ‘acted with deliberate indifference in
doing so.'” Toguchi v. Chung, 391 F.3d
1051, 1057 (9th Cir. 2004) (quoting Hallett v.
Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation
omitted)). A prison official does not act in a deliberately
indifferent manner unless the official “knows of and
disregards and excessive risk to inmate health or
safety.” Farmer v. Brennan, 511 U.S. 825, 834
(1994); See, e.g., Hearns v. Terhune, 413 F.3d 1036,
1042-43 (9th Cir. 2005) (holding that plaintiff's
allegation that he was confined in administrative segregation
for nine months, during which time he was deprived of clean
running water, was sufficient to make out a conditions of
confinement claim); see Preayer v. Ryan, 2016 WL
5341177 (D.Ariz 2016) (lack of running water for two months
sufficient to satisfy the objective component of the
deliberate indifferent analysis).
Plaintiff alleges that he was held in a solitary cell without
running hot/warm water for approximately two months, and
could not properly sanitize clothes, eating utensils,
cell/living area and body. This is sufficient to allege that