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Bozeman v. Santoro

United States District Court, E.D. California

September 10, 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 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. (ECF No. 11.)

         On July 8, 2019, the court screened the First Amended Complaint and entered findings and recommendations to dismiss it for failure to state a claim. (ECF No. 13.) On August 5, 2019, Plaintiff filed objections to the findings and recommendations, requested leave to amend the complaint, and lodged a Second Amended Complaint. The court screened the proposed Second Amended Complaint and issued an order advising Plaintiff of the reasons that it failed to state a claim and allowing Plaintiff to file a Third Amended Complaint in an attempt to cure the deficiencies found by the court. On August 26, 2019, Plaintiff filed the Third Amended Complaint, which is now before the court for screening. (ECF No. 22.) 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 THIRD AMENDED COMPLAINT

         Plaintiff's allegations in the Third Amended Complaint arise from events allegedly occurring at North Kern State Prison (NKSP) in Delano, California, when Plaintiff was incarcerated there. Plaintiff names as defendants B. Kibler (Chief Deputy Warden) and B. Johnson (Correctional Counselor II) (“Defendants”).

         Plaintiff's allegations follow:

         During Plaintiff's shower time, he fell and injured his neck and back because Defendants failed to install a mat in the shower to prevent him from slipping. The Defendants were informed on a couple of occasions by Plaintiff, prior to him injuring himself, that they needed to install a preventative slip-mat in the showers. Defendants acted unreasonably when they failed to install a mat. Defendant Kibler stated that to his knowledge only three inmates had slipped in the showers. Defendant Johnson stated that he knew of only one inmate who slipped in a shower.

         Defendants were responsible for the safe custody and care of Plaintiff. Defendants had the authority and ability to have a preventative slip-mat installed. Defendants displayed deliberate indifference to Plaintiff's well being when they acknowledged that other inmates had slipped in the showers causing them to be injured, and consciously disregarded an excessive risk of harm to Plaintiff's safety.

         Defendants had prior knowledge that inmates were being injured from the shower not having a slip-mat. Defendants had actual knowledge of a “substantial risk of serious harm” to Plaintiff in regard to the showers not having a slip-mat because of their knowledge of inmates being injured from slipping in showers. Plaintiff put Defendants on notice by informing and alerting them that the showers posed a significant risk to him. Defendants were aware that the poorly maintained shower floor posed a risk to Plaintiff and other inmates' safety yet failed to take reasonable measures to avoid that risk until after Plaintiff was injured. Defendants ignored Plaintiff's request to install a slip-mat in the showers.

         Plaintiff is an ADA inmate with a mobility disability that requires relatively level terrain/path of travel accommodation to ambulate due to mobility. Defendants failed their duty to ensure that Plaintiff, who is housed at their facility, was safe from harm. The condition of the showers is a situation affecting the safety and security of the prisoners at NKSP, including Plaintiff. The condition is contrary to current standards of decency for anyone to be exposed to such against their will, and Defendants are deliberately indifferent to such conditions complained.

         The showers' conditions complained of are not isolated incidents, but a pattern that has continued over the past two years. Defendants are aware that the condition of the showers exposes Plaintiff to an unreasonable and foreseeable risk of serious injury. Plaintiff ...


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