1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA

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11 Case No. 24-cv-02478 BLF JUAN T. TYL ER, 12 ORDER OF DISMISSAL WITH Plaintiff, LEAVE TO AMEND 13 v. 14

15 GOV. GAVIN NEWSOM, et al., 16 Defendants. 17 18 Plaintiff, a state prisoner, filed a civil rights complaint pursuant to

19 against various state officials, the Warden of the Correctional Training Facility (“CTF”) 20 where he is currently incarcerated, as well as the County of Monterey and City of Soledad. 21 Dkt. No. 1. Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in 22 a separate order. 23 24 DISCUSSION 25 I. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 6 To state a claim under

, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins,

(1988). 10 II. Plaintiff’s Claims 11 Plaintiff claims that since August 2021, he has been exposed to “contaminated 12 shower and drinking water that has caused ongoing skin conditions that were not pre- 13 existing” before he was housed at CTF. Dkt. No. 1 at 3. He claims that the water contains 14 “high levels of lead, nitrates, arsenic, and chromium plus other contaminants.”

He 15 claims that “[a]ll parties involved have worked to cover up or disregard my health and well 16 being” and that the water can lead to “future health issues, kidney diseases, different forms 17 of cancers, and Parkinson’s disease.”

Plaintiff seeks damages. 18 The Constitution does not mandate comfortable prisons, but neither does it permit 19 inhumane ones. See Farmer v. Brennan,

(1994). The treatment a 20 prisoner receives in prison and the conditions under which he is confined are subject to 21 scrutiny under the Eighth Amendment. See Helling v. McKinney,

(1993). 22 The Eighth Amendment imposes duties on these officials, who must provide all prisoners 23 with the basic necessities of life such as food, clothing, shelter, sanitation, medical care 24 and personal safety. See Farmer,

; DeShaney v. Winnebago County Dep't 25 of Social Servs.,

(1989). A prison official violates the Eighth 26 Amendment when two requirements are met: (1) the deprivation alleged must be, 1 objectively, sufficiently serious, Farmer,

(citing Wilson v. Seiter,

294, 298 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind, 3 id. (citing Wilson, 501 U.S. at 297). 4 A prison official is deliberately indifferent if he knows that a prisoner faces a 5 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 6 to abate it. Farmer,

. The prison official must not only “be aware of facts 7 from which the inference could be drawn that a substantial risk of serious harm exists,” but 8 “must also draw the inference.”

If a prison official should have been aware of the risk, 9 but did not actually know, the official has not violated the Eighth Amendment, no matter 10 how severe the risk. Gibson v. County of Washoe,

(9th Cir. 2002). In 11 order for deliberate indifference to be established, therefore, there must be a purposeful act 12 or failure to act on the part of the defendant and resulting harm. See McGuckin v. Smith, 13

(9th Cir. 1992), overruled in part on other grounds by WMX 14 Technologies, Inc. v. Miller,

(9th Cir. 1997) (en banc); Shapley v. 15 Nevada Bd. of State Prison Comm’rs,

(9th Cir. 1985). 16 Plaintiff’s allegations are insufficient to state an Eighth Amendment claim. First of 17 all, his allegations regarding the state of the water are conclusory and unsupported by any 18 factual allegations. Furthermore, his allegation that the water is causing his ongoing skin 19 conditions are also conclusory without any factual support. Nor is there any factual 20 support regarding the alleged future injury, which are otherwise mere speculation. Lastly, 21 Plaintiff fails to allege how each named Defendant is directly responsible for the alleged 22 danger to his health and safety. See Farmer,

. Nowhere in his statement of 23 claim does he describe the individual actions of any of the named defendants to establish 24 that they were each personally involved in the alleged injury, or much less that they each 25 acted with deliberate indifference. Plaintiff shall be granted leave to file an amended 26 complaint to attempt to state sufficient facts to state a cognizable claim. 1 In preparing an amended complaint, Plaintiff should keep the following principles 2 in mind. Liability may be imposed on an individual defendant under § 1983 only if 3 Plaintiff can show that the defendant proximately caused the deprivation of a federally 4 protected right. See Leer v. Murphy,

(9th Cir. 1988); Harris v. City of 5 Roseburg,

(9th Cir. 1981). A person deprives another of a 6 constitutional right within the meaning of section 1983 if he does an affirmative act, 7 participates in another’s affirmative act or omits to perform an act which he is legally 8 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 9 F.2d at 633. 10 11 CONCLUSION 12 For the reasons state above, the Court orders as follows: 13 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 14 (28) days from the date this order is filed, Plaintiff shall file an amended complaint using 15 the court’s form complaint to correct the deficiencies described above. The amended 16 complaint must include the caption and civil case number used in this order, i.e., Case No. 17 C 24-cv-02478 BLF (PR), and the words “AMENDED COMPLAINT” on the first page. 18 Plaintiff must answer all the questions on the form in order for the action to proceed. 19 Plaintiff is reminded that the amended complaint supersedes the original, and Plaintiff may 20 not make references to the original complaint. Claims not included in the amended 21 complaint are no longer claims and defendants not named in an amended complaint are no 22 longer defendants. See Ferdik v. Bonzelet,

(9th Cir. 1992). 23 2. Failure to respond in accordance with this order by filing an amended 24 complaint in the time provided will result in the dismissal of this action with 25 prejudice for failure to state a claim without further notice to Plaintiff. 26 3. The Clerk shall include two copies of the court’s complaint with a copy of 1 this order to Plaintiff. 2 IT IS SO ORDERED. 3 || Dated: _ October 1, 2024 Ais / Wh, (ah 4 BETH LABSON FREEMAN United States District Judge 5 6 7 8 9 10 11 12

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