(PC) Perkins v. Saipher

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 CALVIN PERKINS, No. 2:19-cv-2096 CKD P

12 Plaintiff,

13 v. ORDER &

14 MARSHALL SAIPHER, FINDINGS AND RECOMMENDATIONS

15 Defendant.

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17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

19 636(b)(1) and plaintiff has consented to have all matters in this action before a United States

20 Magistrate Judge. See 28 U.S.C. § 636(c).

21 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a

22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

23 The court is required to screen complaints brought by prisoners seeking relief against a

24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

28 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

1 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

2 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

3 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

4 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

5 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

6 Cir. 1989); Franklin, 745 F.2d at 1227.

7 In his complaint, plaintiff alleges that defendant Dr. Saipher at one point failed to issue

8 him “a special pair of orthopedic shoes,” saying they were not “medically necessary.” (ECF No.

9 1 at 3.) Plaintiff alleges that he had to “walk around for seven months” in pain before Dr. Saipher

10 issued him a pair of orthopedic shoes. (Id.) Plaintiff asserts that these conditions violated his

11 rights under the Eighth Amendment. (Id.)

12 The treatment a prisoner receives in prison and the conditions under which the prisoner is

13 confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual

14 punishment. Prison officials must provide prisoners with “food, clothing, shelter, sanitation,

15 medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986).

16 But conditions of confinement may be harsh and restrictive. See Rhodes v. Chapman, 452 U.S.

17 337, 347 (1981).

18 In order for a prison official to be held liable for alleged unconstitutional conditions of

19 confinement, the prisoner must allege facts that satisfy a two-prong test. Peralta v. Dillard, 744

20 F.3d 1076, 1082 (9th Cir. 2014) (citing Farmer, 511 U.S. at 837). The first prong is an objective

21 prong, which requires that the deprivation be “sufficiently serious.” Lemire v. Cal. Dep’t of Corr.

22 & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (citing Farmer, 511 U.S. at 834). In order to be

23 sufficiently serious, the prison official’s “act or omission must result in the denial of the ‘minimal

24 civilized measure of life’s necessities.” Lemire at 1074. The objective prong is not satisfied in

25 cases where prison officials provide prisoners with “adequate shelter, food, clothing, sanitation,

26 medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quoting

27 Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). “[R]outine discomfort inherent in the

28 prison setting” does not rise to the level of a constitutional violation. Johnson v. Lewis, 217 F.3d

1 at 732 (“[m]ore modest deprivations can also form the objective basis of a violation, but only if

2 such deprivations are lengthy or ongoing”). Rather, extreme deprivations are required to make

3 out a conditions of confinement claim, and only those deprivations denying the minimal civilized

4 measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment

5 violation. Farmer, 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9 (1992). The

6 circumstances, nature, and duration of the deprivations are critical in determining whether the

7 conditions complained of are grave enough to form the basis of a viable Eighth Amendment

8 claim. Johnson v. Lewis, 217 F.3d at 731.

9 The second prong focuses on the subjective intent of the prison official. Peralta, 774 F.3d

10 at 1082 (9th Cir. 2014) (citing Farmer, 511 U.S. at 837). The deliberate indifference standard

11 requires a showing that the prison official acted or failed to act despite the prison official’s

12 knowledge of a substantial risk of serious harm to the prisoner. Id. (citing Farmer, 511 U.S. at

13 842); see also Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991). Mere

14 negligence on the part of the prison official is not sufficient to establish liability. Farmer, 511

15 U.S. at 835.

16 Here, plaintiff fails to set forth facts demonstrating an extreme deprivation that would

17 support a conditions of confinement claim under the Eighth Amendment. Thus, the undersigned

18 will recommend that this action be dismissed for failure to state a claim upon which relief can be

19 granted.

20 If the court finds that a complaint should be dismissed for failure to state a claim, the court

21 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-

22 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the

23 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see

24 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given

25 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely

26 clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v.

27 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear

28 that a complaint cannot be cured by amendment, the court may dismiss without leave to amend.

1 | Cato, 70 F.3d at 1005-06. Here, as it appears amendment would be futile, the undersigned will

2 || recommend that the complaint be dismissed without leave to amend.

3 In accordance with the above, IT IS HEREBY ORDERED that:

4 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted; and

5 2. The Clerk of Court shall assign a district judge to this action.

6 IT IS HEREBY RECOMMENDED THAT this action be dismissed with prejudice for

7 | failure to state a claim and that the Clerk of Court be directed to close this case.

8 These findings and recommendations are submitted to the United States District Judge

9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

10 | after being served with these findings and recommendations, plaintiff may file written objections

11 || with the court. Such a document should be captioned “Objections to Magistrate Judge's Findings

12 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified

13 | time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

14 | (9th Cir. 1991).

15 |) Dated: April 3, 2020 eo dp. A Gx

16 CAROLYN K.DELANEY 7

17 UNITED STATES MAGISTRATE JUDGE

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