Balzarini v. Diaz
| Decision Date | 14 December 2018 |
| Docket Number | Case No. 5:18-cv-01962-RGK (MAAx) |
| Court | U.S. District Court — Central District of California |
| Parties | ST. MICHAEL BALZARINI, Plaintiff, v. RALPH DIAZ and DEAN BORDERS, Defendants. |
On September 13, 2018, Plaintiff St. Michael Balzarini ("Plaintiff"), currently incarcerated at the California Institution for Men in Chino, San Bernardino County, California (the "Prison"), proceeding pro se and in forma pauperis, filed a civil Complaint alleging violations of his civil rights pursuant to 42 U.S.C. § 1983 ("Section 1983"). (ECF No. 1.) On October 5, 2018, Plaintiff filed a First Amended Complaint. ("FAC," ECF No. 7.) The Court has screened the FAC as prescribed by 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B). For the reasons stated below, the FAC is DISMISSED WITH LEAVE TO AMEND.
Plaintiff is a prisoner who suffers from end-stage Cirrhosis, which he contends makes him sensitive to heat and cold. (FAC 221.) The Prison is a facility that primarily houses prisoners who are disabled, elderly or have medical conditions, including inmates with heat and cold sensitivities. (Id. at 9, 10.) Plaintiff alleges that the Prison's heating and ventilation system is inadequate. (Id. at 8.) Specifically, he claims that the lack of ventilation in the building caused him to suffer a second-degree burn on his back or other unspecified harm. (Id.) In what appears to be an unfiled grievance or appeal listing a number of grievances (all but one unrelated to his FAC), Plaintiff explains further:
(Id. at 12-13.)
Plaintiff submitted a Health Care Grievance on July 14, 2018 complaining that there was no air in the cells and claiming that it felt like a sweat box in that it was hotter in the cells than outside. (Id. at 18.) The grievance was rejected on July 20, 2018 with a reference to an attached letter with instructions. (Id.) A letter attached to the FAC, bearing the same date, directs Plaintiff to raise his concerns regarding inadequate living conditions with the Custody Staff rather than the Health Care Staff. (Id. at 16.)
In the meantime, on July 16, 2018, Plaintiff requested to be seen by the medical staff to care for a blister on his upper back allegedly caused by a "burn[] from heat in the building." (Id. at 27.) He was treated on July 17, 2018. (Id. at 27, 28, 30, 31.) Again on August 14, 2018, Plaintiff was seen by the medical staff for a burn to his upper back that occurred on August 7, 2018.2 (Id. at 29.)
On August 8, 2018, during what he described as a "Level II" heat wave, Plaintiff submitted an Inmate/Parolee Appeal grievance requesting an emergency policy to lower temperatures at Facility C to a heat index of no more than 88 degrees, a policy for taking action during heat waves, and the repair of the air ventilation system in the building. (Id. at 22, 24.) He explained that:
According to the Centers for Disease Control, fans are ineffective at temperatures over 95-degrees and actually increase body heat. Both cool-down showers and cold waterare effective only for brief periods and drinking large quantities of water can cause other medical complications.
(Id. at 24.)
On September 4, 2018, Plaintiff was interviewed regarding his August 8, 2018 grievance and received a written Second Level Appeal Response partially granting his requests to have prison officials create a policy for taking action during a heat wave and to fix the air and ventilation in the buildings ("Appeal Response"). (Id. at 20-21.) In this Appeal Response, Warden Borders and Associate Warden Ellis indicated that the Prison was "undergoing a project to replace and upgrade the cooling and ventilation systems." (Id. at 21.) The Appeal Response also explained the additional measures that the Prison had in place for Stage II heat alerts - "increased access to cool running water (showers), along with ice water . . . in the housing units . . . [and] from the hours 0600-2100 unit staff shall have the discretion to open the cell doors for all inmates housing in a Facility C housing unit." (Id.)3
Dissatisfied with the Appeal Response, Plaintiff submitted his comments for a Third Level Review on September 20, 2018. (Id. at 23.) There, he stated:
You stated in interview, there's no funds now, nor will their [sic] be in the future to fix air-ventilation and heating in the cell's [sic]. So we continue to do without both. Making this not a medical facility, it should be close [sic] down then.
(Id.) The FAC does not contain a final response to Plaintiff's Third Level Review request.
Based on the foregoing allegations and supporting documents, Plaintiff brings claims pursuant to the Eighth Amendment of the United States Constitution and the California Elder Abuse and Dependent Adult Civil Protection Act, Cal. Welf. & Inst. Code §§ 15610, et seq. ("Elder Abuse Act"), alleging that Defendants Secretary of CDCR Ralph Diaz and Prison Warden Dean Borders violated Plaintiff's rights by failing to provide adequate heating and ventilation. (Id. at 3, 5, 6.)4 Plaintiff sues these defendants in both their individual and official capacities. (Id. at 3.) He seeks (1) prospective relief in the form of (a) an emergency injunction to lower temperatures at the facility, (b) a policy for taking action during a heat or cold wave, and (c) a practice of maintaining temperatures between 60 and 88 degrees Fahrenheit for the benefit of heat- and cold-sensitive prisoners (Id. at 9, 10); and (2) costs of proceedings (Id. at 5.)
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Federal courts must conduct a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, or in which a plaintiff proceeds in forma pauperis. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). The court must identify cognizable claims and dismiss any complaint, or any portion thereof, that is: (1) frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. Id.
When screening a complaint to determine whether it fails to state a claim upon which relief can be granted, courts apply the Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") standard. See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).
Rule 12(b)(6) is read in conjunction with Federal Rule of Civil Procedure 8(a) ("Rule 8"), which requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Li v. Kerry, 710 F.3d 995, 998 (9th Cir. 2013). In reviewing a motion to dismiss, the court will accept factual allegations as true and view them in the light most favorable to the plaintiff. See Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017) (citing N.M. State Inv. Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). Although "detailed factual allegations" are not required, "[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). "Conclusory allegations of law . . . areinsufficient . . . ." Park, 851 F.3d at 918 () (quoting Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001)). Rather, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 662. "If there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6)." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Where a plaintiff is pro se, particularly in civil rights cases, courts should construe pleadings liberally and afford the plaintiff any benefit of the doubt. See Wilhelm, 680 F.3d at 1121 (9th Cir. 2012). "[B]efore dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). A court should grant a pro se plaintiff leave to amend a defective complaint "unless it is absolutely clear that the deficiencies of the...
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