TOWNSEND v. SISTO, 10-16708 (9th Cir. 11-2-2011)
WILLIAM TOWNSEND, Jr., Plaintiff-Appellant, v. D. K. SISTO; et al.,Defendants-Appellees.
No. 10-16708.United States Court of Appeals, Ninth Circuit.Submitted October 25, 2011.[fn***]
November 2, 2011.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.][fn***] The panel unanimously concludes this case is suitable for decision without oral argument. See
Fed.R.App.P. 34(a)(2).
MEMORANDUM[fn*]
[fn*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Magistrate Judge, Presiding[fn**] D.C. No. 2:09-cv-02342-KJM.
[fn**] Townsend consented to proceed before a magistrate judge.See 28 U.S.C. § 636(c).
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
California state prisoner William Townsend, Jr. appeals pro se from the district court's judgment dismissing his42 U.S.C. § 1983 action alleging EighthPage 2
Amendment violations in connection with a fall he sustained in the prison showers. We have jurisdiction under28 U.S.C. § 1291. We review de novo a dismissal under28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We reverse and remand.
Dismissal of Townsend's action was improper, at this early stage, because Townsend alleged that prison officials were aware that the poorly maintained shower floors posed a significant threat to inmate safety yet failed to take reasonable measures to avoid that threat. See Farmer v.Brennan, 511 U.S. 825, 847 (1994) (a prison official violates the Eighth Amendment prohibition against inhumane conditions of confinement if he or she knows of a substantial risk of serious harm to an inmate and fails to take reasonable measures to avoid the harm); Frost v. Agnos,152 F.3d 1124, 1129 (9th Cir. 1998) ("Slippery floors without protective measures could create a sufficient danger to warrant relief.").
Accordingly, we reverse the judgment, and remand with instructions for the district court to order service of the operative second amended complaint by the United States Marshal.
We deny Townsend's request to remand this case to a different judge or court because the record does not indicate that the case presents the rarePage 3
circumstances necessary to warrant reassignment. SeeHernandez v. City of El Monte, 138 F.3d 393, 402-03 (9th Cir. 1998).
Townsend shall bear his own costs on appeal.
REVERSED and REMANDED.Page 1