Appeal from the United States District Court for the District of Arizona. D.C. No. CV-91-00395-RMB. Richard M. Bilby, Chief Judge, Presiding
Before: Canby, Fernandez, and T.g. Nelson, Circuit Judges.
Lawrence J. Mayer appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Mayer alleged numerous constitutional violations arising from his incarceration as a pretrial detainee at Pima County Adult Detention Center (PCADC). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, vacate in part, and remand.
We review de novo the district court's dismissal of an action for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Oscar v. University Students Co-operative Ass'n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, 113 S. Ct. 655 (1992). All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the plaintiff. Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given notice of the deficiencies and leave to amend unless it is "'absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Id. at 623-24 (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).
If matters outside the pleadings are considered, the district court must treat a motion to dismiss under Rule 12(b)(6) as one for summary judgment under Rule 56. See Tanner, 879 F.2d at 576. Further, if the nonmoving party is pro se, the district court must give that party notice that the motion will be treated as one for summary judgment and an opportunity to submit relevant material in opposition to summary judgment. Garaux v. Pulley, 739 F.2d 437, 438-40 (9th Cir. 1984).
Here, the defendants submitted affidavits with their motion to dismiss. The district court gave Mayer notice that it might treat the motion as one for summary judgment under Rule 56. See id. Mayer submitted his own affidavit with his opposition. Although the district court stated in its order that it was dismissing Mayer's action for failure to state a claim, matters outside the pleadings were considered in deciding some of the claims. Accordingly, we construe the district court's dismissal as a grant of summary judgment where appropriate. See Tanner, 879 F.2d at 576.
Summary judgment is appropriate if the evidence, construed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).
To state a claim for relief under section 1983, a plaintiff must show that a person acting under color of state law deprived plaintiff of a right protected by the constitution or federal law. Karim-Panahi, 839 F.2d at 624.
II. Conditions of Confinement
To comply with the eighth amendment's prohibition against cruel and unusual punishment, a prison must provide prisoners with "adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). In evaluating an eighth amendment claim based on conditions of confinement, a court must look at each alleged condition individually rather than at the totality of conditions. Id. at 1246-47.
Mayer alleged that the practice of double bunking inmates at PCADC violated his constitutional rights. Double bunking of pretrial detainees is not a per se violation of the constitution. Rhodes v. Chapman, 452 U.S. 337, 348 (1981) (double bunking does not violate the eighth amendment); Bell v. Wolfish, 441 U.S. 520, 542 (1979) (pretrial detainees have no due process right to private cells). In order to allege a constitutional violation based on double bunking, a prisoner must allege that the double bunking subjected him to the unnecessary or wanton infliction of pain or lead to a deprivation of essentials such as safety or sanitation. See Rhodes, 452 U.S. at 348; Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984). Here, Mayer alleged that double bunking "violated his health and welfare, by subjecting him to climatic conditions particularly to cubic content of air, minimum floor space, lighting, heating and ventilation." These allegations are not sufficient to state a claim for a constitutional violation. See Rhodes, 452 U.S. at 349 (although double bunking may result in discomfort, that is not sufficient to rise to the level of a ...