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Singh v. Franke

United States District Court, Ninth Circuit

August 16, 2013

ROTISH VIKASH SINGH, Plaintiff,
v.
S. FRANKE, et al., Defendants.

ROTISH VIKASH SINGH, SID #11852604, Two Rivers Correctional Institution, Umatilla, OR, Plaintiff Pro Se.

ELLEN F. ROSENBLUM, Attorney General, SHANNON F. VINCENT, Assistant Attorney General, Oregon Department of Justice, Salem, OR, Attorneys for Defendants Brown, Fanger, Franke, Gower, Gruenwald, Hansen, Jackson, Martinez, Mathisen, Myrick, Perkins, Reynolds, Shelton, Taylor, and Wettlaufer, (the "State Defendants").

STEVEN A. KRAEMER, MARK SHERMAN, Hart Wagner LLP, Portland, OR, Attorneys for Defendant Tom Clark.

OPINION AND ORDER

ANN J. BROWN, District Judge.

Plaintiff, an inmate at the Two Rivers Correctional Institution, brings this civil rights action pro se. Currently before the Court is Defendant Tom Clark's Motion Dismiss for Failure to State a Claim (#36). For the reasons that follow, the Court GRANTS Defendant Clark's motion.

BACKGROUND

Plaintiff's Complaint alleges claims for civil rights vio lations under 42 U.S.C. ยง 1983. Plaintiff names as Defendants several Oregon Department of Corrections ("ODOC") state correctional officials and prison medical providers, who are referred to hereafter as the "State Defendants." Plaintiff also names one individual, Tom Clark, who is employed with a private company which provides food products to ODOC. Plaintiff alleges five separate and distinct claims for relief, only one of which concerns prison food. Plaintiff alleges prison officials acted with deliberate indifference by serving Plaintiff out-dated and spoiled food on one occasion, which caused Plaintiff to become ill.

For the most part, in each of his five claims for relief, Plaintiff identifies which of the prison employees named as the State Defendants participated in the alleged violation of Plaintiff's rights, and alleged the individual acts committed. Plaintiff does not, however, allege any personal involvement by Defendant Tom in providing or serving the allegedly tainted food. Nor does Plaintiff allege any knowledge Defendant Clark had that the food was tainted.

Defendant Clark moves to dismiss Plaintiff's claims against him for three reasons. First, Defendant Clark argues Plaintiff cannot prove he was acting under color of state law. Second, an isolated instance of food poisoning does not rise to the level of a constitutional violation. Third, Plaintiff fails to allege and cannot prove Defendant Clark was personally involved in the an action that violated Plaintiff's rights.

LEGAL STANDARDS

In order to state a claim, Plaintiff's complaint must contain sufficient factual allegations which, when accepted as true, give rise to a plausible inference that Defendants violated Plaintiff's constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556-57 (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 678; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

As the Ninth Circuit has instructed however, courts must "continue to construe prose filings liberally." Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

Before dismissing a pro se civil rights complaint for failure to state a claim, this Court supplies the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623-24 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se litigant will be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot ...


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