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Bozeman v. Santoro

United States District Court, E.D. California

July 3, 2019

DAVID BOZEMAN, Plaintiff,
v.
KELLY SANTORO, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF NO. 11.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         David Bozeman (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. On September 18, 2017, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On July 23, 2018, the court screened the Complaint and issued an order dismissing the Complaint for failure to state a claim, with leave to amend. (ECF No. 9.)

         On August 23, 2018, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (ECF No. 11.) 28 U.S.C. § 1915A.

         II. SCREENING REQUIREMENT

         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 is required to 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         III. SUMMARY OF FIRST AMENDED COMPLAINT

         Plaintiff is presently incarcerated at Salinas Valley State Prison in Soledad, California. The events at issue occurred at North Kern State Prison (NKSP) in Delano, California, when Plaintiff was incarcerated there in the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff names as defendants Kelly Santoro (Warden, NKSP), B. Kibler (Chief Deputy Warden, NKSP), B. Johnson (Correctional Counselor II, NKSP), and Matthew Cate (Secretary, CDCR). Plaintiff's allegations follow.

         Plaintiff alleges that Defendants were deliberately indifferent, in violation of Plaintiff's Eighth and Fourteenth Amendment rights when they failed to take obvious and necessary precautions to protect Plaintiff from injury. Defendants failed to install a preventative slip-mat in the shower causing Plaintiff to hurt his neck and back.

         Notwithstanding the Americans with Disabilities Act's (ADA) mandate that Defendants provide safe showering facilities for ADA inmates, Defendants failed again and again to provide a requested slip-mat for the shower designated for ADA inmates, such as those confined to wheelchairs, using canes or crutches, etc. Defendants failed to provide said slip-mat until after Plaintiff, an ADA inmate, slipped and fell in the shower and hurt his neck and back. The Warden was aware that there was an ADA prisoner in her prison. The Warden failed to enforce a policy to upgrade the shower or take steps to prevent Plaintiff's injuries.

         Defendant B. Kibler, who was responsible for Plaintiff's well-being as part of his ministerial duties, violated Plaintiff's First and Eighth Amendment constitutional rights. Defendant B. Johnson violated Plaintiff's Eighth Amendment rights based on the condition of the shower on Facility A, showing deliberate indifference. Defendant Matthew Cate, Secretary of the Department of Corrections, was responsible within his ministerial duties and violated Plaintiff's First and Eighth Amendment rights.

         Plaintiff requests compensatory and punitive damages.

         IV. PLAINTIFF'S CLAIMS

         A. 42 ...


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