United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, seeks relief pursuant to
42 U.S.C. § 1983 and has requested authority pursuant to
28 U.S.C. § 1915 to proceed in forma pauperis. (ECF Nos.
1, 11). This proceeding was referred to this court by Local
Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
7, 2019, the court issued an order and findings and
recommendations in this matter. (ECF No. 10). The order
recommended that this action be dismissed without prejudice
for failure to timely file an application to proceed in forma
pauperis. (See id. at 1). Given that plaintiff has
since filed an updated application to proceed in forma
pauperis (see ECF No. 11), the court shall vacate
its June 7, 2019 order. It shall also dismiss the complaint
with leave to amend.
FORMA PAUPERIS APPLICATION
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). (See ECF No. 11).
Accordingly, the request to proceed in forma pauperis will be
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of Court. Thereafter, plaintiff will be obligated for
monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be forwarded by the appropriate
agency to the Clerk of Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
complaint, or portion thereof, should only be dismissed for
failure to state a claim upon which relief may be granted if
it appears beyond doubt that plaintiff can prove no set of
facts in support of the claim or claims that would entitle
him to relief. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984) (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake
Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir.
1981). In reviewing a complaint under this standard, the
court must accept as true the allegations of the complaint in
question, Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425
U.S. 738, 740 (1976), construe the pleading in the light most
favorable to the plaintiff, and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
1983 “provides a cause of action for the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws of the United States.” Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983). Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights conferred elsewhere.
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
state a claim under Section 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda
Cty., 811 F.2d 1243, 1245 (9th Cir. 1987).
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 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Id. Facial
plausibility demands more than the mere possibility that a
defendant committed misconduct and, while factual allegations
are accepted as true, legal conclusions are not. Id.
Section 1983, a plaintiff bringing an individual capacity
claim must demonstrate that each defendant personally
participated in the deprivation of his rights. See Jones
v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There
must be an actual connection or link between the actions of
the defendants and the deprivation alleged to have been
suffered by plaintiff. See Ortez v. Washington County,
State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996);
see also Taylor v. List, 880 F.2d 1040, 1045 (9th
review of the complaint and its attached documents indicates
that in January 2016, plaintiff was exposed to chemicals from
an “OC expulsion grenade” when a fight between
two other inmates occurred outside his cell. (See
ECF No. 1 at 3-5, 11, 14). In the course of prison officials
attempting to stop the fighting, defendant Krause threw the
chemical grenade against plaintiff's cell door, where it
exploded, causing the chemical agent to seep through the
cracks in two cell doors, one of which was plaintiff's.
(See id. at 3, 11, 14). As a result, plaintiff, and
two other inmates who were in their cells at the time and
were not involved in the fight were contaminated by the
chemical grenade. (See id. at 14-15).
states that after being exposed to the chemical grenade, four
to five hours elapsed before he was permitted to take a
shower. (See id. at 3). He contends that as a result
of this delay and of the prison's failure to give him
clean linens, his skin burned for five days after the
incident. (See id. at 3-4). Plaintiff also takes
issue with the fact that High Desert State Prison does not
have a decontamination shower. (See id. at 3).
contends that he should not have been exposed to the chemical
grenade. (See Id. at 10). As a result of the
incident, plaintiff raises three claims of violation of right
under federal law, including, but not limited to: cruel and
unusual punishment and deliberate indifference in violation
of the Eighth Amendment, and a violation of the Americans
with Disabilities Act. (See id. at 3-5). He requests
damages in the amount of $200, 000.00. He also requests that
High Desert State Prison be ordered to install a
decontamination shower on its premises in compliance
“with [the] policy [that governs] OC chemical
exposure.” (See id. at 6) (brackets added).
The court takes these facts into consideration when
evaluating the viability of plaintiff's claims.
Cruel and Unusual Punishment - General Standard
Eighth Amendment proscribes the infliction of cruel and
unusual punishment on prisoners. Whether a particular event
or condition in fact constitutes ‘cruel and unusual
punishment' is gauged against ‘the evolving
standards of decency that mark the progress of a maturing
society.' ” Schwenk v. Hartford, 204 F.3d
1187, 1196 (9th Cir. 2000) (quoting Hudson v.
McMillian, 503 U.S. 1, 8 (1992)). “After
incarceration, only the unnecessary and wanton infliction of
pain . . . constitutes cruel and unusual punishment forbidden
by the Eighth Amendment.” Whitley v. Albers,
475 U.S. 312, 319 (1986) (alteration in original) (internal
quotation marks omitted) (quoting Ingraham v.
Wright, 430 U.S. 651, 670 (1977)).
every governmental action affecting the interests or
well-being of a prisoner is subject to Eighth Amendment
scrutiny. Whitley, 475 U.S. at 319. “It is
obduracy and wantonness, not inadvertence or error in good
faith, that characterize the conduct prohibited by the Cruel
and Unusual Punishments Clause, whether that conduct occurs
in connection with establishing conditions of confinement,
supplying medical needs, or restoring official control over a
tumultuous cellblock.” Id. “To be cruel
and unusual punishment, conduct that does not purport to be
punishment at all must involve more than ordinary lack of due
care for the prisoner's interests or safety.”
Id. Accordingly, “courts considering a
prisoner's claim must ask: 1) if the officials acted with
a sufficiently culpable state of mind; and 2) if the alleged
wrongdoing was objectively harmful enough to establish a
constitutional violation.” Somers v. Thurman,
109 F.3d 614, 622 (9th Cir. 1997) (citing Hudson,
503 U.S. at 8).
Cruel and Unusual Punishment - Prison Security Measure
infliction of pain in the course of a prison security measure
. . . does not amount to cruel and unusual punishment simply
because it may appear in retrospect that the degree of force
authorized or applied for security purposes was unreasonable,
and hence unnecessary in the strict sense.”
Whitley, 475 U.S. at 319. “[I]n making and
carrying out decisions involving the use of force to restore
order in the face of a prison disturbance, prison officials
undoubtedly must take into account the very real threats the
unrest presents to inmates and prison officials alike, in
addition to the possible harms to inmates against whom force
might be used.” Id. at 320.
prison security measure is undertaken to resolve a
disturbance that indisputably poses significant risks to the
safety of inmates and prison staff, the question as to
whether the measure taken inflicted unnecessary and wanton
pain and suffering ultimately turns on whether force was
applied in a good faith effort to maintain or restore
discipline or the measure was taken maliciously and
sadistically for the very purpose of causing harm.
Whitley, 475 U.S. at 320-21. (quotation marks
omitted) (citation omitted).
administrators . . . should be accorded wide-ranging
deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security.” Bell v. Wolfish, 441 U.S. 520, 547
(1979). That deference extends to a prison security measure
taken in response to an actual confrontation with riotous
inmates. Whitley, 475 U.S at 322.
Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (internal quotation
marks and citations omitted). “[A] prison official
violates the Eighth Amendment only when two requirements are
met. First, the deprivation alleged must be, objectively,
sufficiently serious; a prison official's act or omission
must result in the denial of the minimal civilized measure of
life's necessities.” Id. at 834 (internal
quotation marks and citations omitted). Second, the prison
official must subjectively have a sufficiently culpable state
of mind, “one of deliberate indifference to inmate
health or safety.” Id. (internal quotation
marks and citations omitted). This second prong... “is
satisfied by showing (a) a purposeful act or failure to
respond to a prisoner's pain or possible medical need and
(b) harm caused by the ...