Gordon Bullock v. Nafeesah Tillman et al

Filing 5

ORDER DISMISSING COMPLAINT; 1 WITH LEAVE TO AMEND by Magistrate Judge Alka Sagar. The Court DISMISSES the Complaint WITH LEAVE TO AMEND. If Plaintiff still wishes to pursue this action, he shall file a First Amended Complaint no later than 30 days from the date of this Order, or no later than September 18, 2017. IT IS SO ORDERED. (Attachments: # 1 Civil Rights Complaint Form (Blank), # 2 Notice Of Dismissal Form (Blank)) (mz)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

) No. EDCV 17-1297-PA (AS)
)
) ORDER DISMISSING COMPLAINT
)
)
) WITH LEAVE TO AMEND
)
)
)
)

GORDON BULLOCK,
11

Plaintiff,
12
13
14

v.
NAFEESAH TILLMAN, Probation
Supervisor, et al.,
Defendants.

15
16

INTRODUCTION

17
18
19

On June 28, 2017, Gordon Bullock (“Plaintiff”), a California

20

state prisoner proceeding pro se, filed a civil rights Complaint

21

pursuant to 42 U.S.C. § 1983.

22

Complaint names the following seven Defendants: (1) Nafeesah Tillman,

23

a probation supervisor at the Riverside County Probation Department

24

(“RCPD”); (2) Aneka Amezcua, who works in the “Restitution Service

25

Unit” at the RCPD; (3) “City of Riverside, on behalf of Judge Becky

26

Duggins

27

Sheriff’s Department; (5) the Sacramento County Sheriff’s Department;

28

(6) “alleged victim” Brian Kinman; and (7) Mark A. Hake, the Chief

(sueing

City

of

(“Compl.,” Docket Entry No. 1).

Riverside)”;

1

(4)

the

Riverside

The

County

1

Probation Officer at the RCPD.

2

used

3

individual capacity only and names all other Defendants in their

4

official and individual capacities.

throughout

this

(Id. at 3-4 (continuous pagination

Order)).

Plaintiff

names

Kinman

in

his

(Id.).

5
6

The Court has screened the Complaint as prescribed by 28 U.S.C.

7

§ 1915A and 42 U.S.C. § 1997e.

For the reasons discussed below, the

8

Court DISMISSES Plaintiff’s Complaint WITH LEAVE TO AMEND.1

9

FACTUAL BACKGROUND AND PLAINTIFF’S ALLEGATIONS2

10
11
12

On March 29, 2016 at 6:45 A.M., the “dorm C.O.” in Plaintiff’s

13

housing unit instructed Plaintiff to “get ready” because “Riverside

14

sheriffs” had arrived to take Plaintiff to court.

15

Plaintiff said that his case was “over” but, after being instructed

16

again to “get ready,” Plaintiff went to the “chow hall,” where he did

17

not eat breakfast but received a boxed lunch.

18

returned to his housing unit but was then “rushed . . . out” to the

19

Receiving

20

property, including medication for a heart condition.

and

Release

Department

and

was

not

(Compl. at 5).

(Id.).

Plaintiff

permitted

to

pack

(Id.).

21
22
1

23
24
25
26
27

Magistrate judges may dismiss a complaint with leave to
amend without approval from a district judge. McKeever v. Block, 932
F.2d 795, 798 (9th Cir. 1991).
2

The Court’s description of this case’s factual background
and Plaintiff’s allegations is drawn from the Complaint itself. In
any First Amended Complaint, Plaintiff may further clarify the nature
of his allegations and, if necessary, correct any inaccuracies in
this description.

28
2

1

About an hour later, two sergeants brought Plaintiff to the

2

“Riverside sheriffs.”

(Id. at 6).

Plaintiff told the “sheriffs”

3

that he had no “case” and had not been served with any “papers,” but

4

Plaintiff was told that “they just want[ed] [him] in court.”

5

Plaintiff objected that he did not have his medication and had not

6

eaten, but one of the “sheriffs” told Plaintiff that they would be at

7

“Riverside Court” in about an hour and that Plaintiff should not

8

“worry.”

(Id.).

(Id.).

9
10

About an hour into the trip, the “sheriffs” stopped and bought

11

food and drinks.

(Id.).

They did not permit Plaintiff to eat or

12

drink during the trip, which lasted five or six hours and eventually

13

ended at the Sacramento County Detention Center.

14

Plaintiff also thought that the “sheriffs” might be planning to kill

15

him because they did not permit him to eat or drink or bring his

16

medication, they were driving in the “opposite direction” from the

17

“Riverside Court,” and Plaintiff had not been served with any papers

18

related to his court appearance.

19

began to cause him to have chest pain, but the “sheriffs” did nothing

20

to assist Plaintiff after being told about his chest pain.

21

One “sheriff” repeatedly said that the van would arrive at “Riverside

22

Court” in about twenty minutes.

(Id. at 6).

(Id. at 6-7).

Plaintiff’s anxiety

(Id.).

(Id.).

23
24

Upon arriving at the Sacramento County Jail, Plaintiff told a

25

nurse that he was having chest pains and did not have his medication,

26

but Plaintiff “was just put back in [the] tank.”

27

2:00 P.M. he told an officer that he had not eaten all day, and the

28

officer replied that Plaintiff “wouldn’t [want] one of those nasty
3

(Id. at 7).

At

1

sandwiches”

and

2

forced to drink water from a filthy moldy sink.”

3

was fed “a little food on a dirty tray about 2 and something later.”

4

(Id.).

5

received only a thin blanket and no sheets.

Two

returned

hours

Plaintiff

later,

he

was

to

the

taken

“tank,”

to

the

where

(Id.).

“hole,”

he

“was

Plaintiff

where

he

(Id.).

6

Plaintiff filed a grievance because he was not fed, was placed

7
8

in

the

“hole”

9

medication, and did not receive sheets or enough blankets to stay
(Id.).

for

nondisciplinary

reasons,

did

not

receive

his

10

warm.

On March 30, 2016, Plaintiff was denied a shower; when

11

he asked why, the officer who had refused to release Plaintiff said

12

“fuck you and your grievance.”

13

“fuck you” when Plaintiff requested another grievance form.

14

Plaintiff began experiencing chest pains and told the officer so; the

15

officer, with whom Plaintiff was communicating through a speaker in

16

the wall, said “fucking nigger” and turned off the speaker.

17

Plaintiff twice attempted to “call back,” but the officer refused to

18

speak with Plaintiff any further.

(Id. at 8).

The officer also said
(Id.).

(Id.).

(Id.).

19
20

On

April

1,

2016,

the

“Riverside

sheriffs”

again

up

21

Plaintiff to take him to Riverside County Jail.

22

appears to contend that he should not have been taken to Riverside

23

County Jail because he suffers from Valley Fever3 and should not be

24

taken “anyplace where it a risk for Valley Fever.”

25

the journey, the “sheriffs” picked up an inmate at Avenal State

26
27
28

3

(Id.).

picked

Plaintiff

(Id.).

During

Coccidioidomycosis, commonly known as “Valley Fever,” is an
infection caused by inhaling the spores of the fungus Coccidioides,
which is endemic to the soil throughout the southwestern United
States. See Nawabi v. Cates, 2015 WL 5915269 at *1 (E.D. Cal. 2015).
4

1

Prison.

(Id. at 9).

2

were going to Avenal State Prison, Plaintiff said that his Valley

3

Fever prevented him from going there, but the “sheriffs” said that

4

they would only be there “a few minutes” and went anyway.

5

was “real windy” at Avenal State Prison and the van’s windows were

6

partially open, causing Plaintiff to breathe in “a lot of dust” and

7

start

8

“f[ee]ling sick and having pains”; a few hours after that, Plaintiff

9

arrived at Riverside County Jail.

coughing.

When the “sheriffs” told Plaintiff that they

(Id.).

A

few

hours

later,

(Id.).

Plaintiff

It

began

(Id.).

10
11

Upon arriving at Riverside County Jail, Plaintiff was put in the

12

“holding tank” for four more hours even after telling officers that

13

he was having chest pains.

14

holding cell at 10:00 P.M.: at that time, he was “sick since [he]

15

left Avenal” and hungry because all he had eaten that day was a

16

sandwich, milk, and fruit at 3:00 A.M.

17

“Riverside

18

assistance and to lie down; Richardson said “I don’t care” and told

19

Plaintiff

20

Plaintiff asked Richardson for a grievance form and Richardson said

21

“hell

22

Plaintiff would sue him.

sheriff”

to

no,

“sit

fuck

(Id.).

named

[his]

you.”

ass

Plaintiff was moved to another

(See id.).

Richardson

down

(Id.).

in

that

a

he

fuckin’

Plaintiff

told

Plaintiff told a
needed

corner.”

medical

(Id.).

Richardson

that

(Id.).

23
24

Plaintiff was later called before a “Corporal Harris,” who told

25

Plaintiff

that

he

was

being

26

Richardson.

27

lying.

28

Plaintiff’s threat but refused to show Plaintiff the tape.

(Id. at 10).

(Id.).

written

up

for

threatening

to

kill

Plaintiff told Harris that Richardson was

Harris told Plaintiff that she had a videotape of

5

(Id.).

1

Plaintiff

returned

2

(Id.).

Plaintiff pressed a button on the wall to request help, but

3

Harris,

who

4

speaker.

5

Plaintiff to go to the nurse’s station.

6

station, Plaintiff’s blood pressure was high and a nurse wanted to

7

send Plaintiff to an outside hospital, but “the doctor she called”

8

refused.

9

his chest pains “almost” stopped.”

was

(Id.).

(Id.).

to

“in

his

the

cell

and

bubble,”

started

said

having

“no”

and

chest

turned

pains.

off

the

After “over [five] minutes,” an officer permitted
(Id.).

At the nurse’s

Plaintiff’s blood pressure eventually went down and
(Id.).

10

On

11

April

4,

2016,

Plaintiff

appeared

in

court

before

Judge

12

Duggins, who told Plaintiff that he was there for “restitution.”

13

(Id.).

14

also argued that Judge Duggins had “intentionally” picked him up a

15

week

16

direction”; deprived him of medication, food, and sleep; and put him

17

in the “hole” so that Plaintiff would “plead guilty” to “whatever

18

this is.”

19

and ordered Plaintiff to pay $845 in restitution.

Plaintiff said that he was not ordered to pay restitution and

before;

drove

(Id.).

him

“300

and

something

miles

the

opposite

Judge Duggins laughed, said “I’ll send you back,”
(Id.).

20
21

Plaintiff replied that the judge at a preliminary hearing had

22

said that the car for which restitution was sought was worth less

23

than four hundred dollars and had “dents all over it.”

24

Plaintiff contended that he had not been ordered to pay restitution

25

because the car “wasn’t worth much” and Kinman, the “alleged victim,”

26

wanted almost one thousand dollars “for an alleged thrown bottle.”

27

(See id. (spelling altered)).

28

repair estimate; Judge Duggins did not provide one and did not “give

(Id. at 11).

Plaintiff also requested a receipt or

6

1

[Plaintiff] a hearing.”

(Id.).

Plaintiff contends that his 2011

2

plea agreement is “blank” regarding restitution.

(Id.).

3
4

While

Plaintiff

was

waiting

to

be

returned

to

his

prison

5

following his appearance before Judge Duggins, some papers were put

6

under his door; among the papers was a recommendation signed by

7

Tillman

8

Plaintiff pay restitution in the amount of $845.87.

and

Amezcua

and

“submitted”

by

Hake

recommending

that

(Id.).

9
10

Plaintiff contends that his plea agreement is “blank” regarding

11

restitution, he was not given any “paperwork” until 2016, and he was

12

not given a repair estimate substantiating the amount necessary to

13

cover repairs to the car.

14

during his journey he was deprived of food, water, medication, and a

15

shower; retaliated against for filing a grievance; and taken to a

16

place that aggravated his Valley Fever.

17

alleges violations of his First, Eighth, and Fourteenth Amendment

18

rights and seeks compensatory and punitive damages.

(See id.).

Plaintiff also argues that

(Id. at 11-12).

Plaintiff

(Id. at 12).

19

STANDARD OF REVIEW

20
21
22

Congress mandates that district courts initially screen civil

23

complaints filed by prisoners seeking redress from a governmental

24

entity or employee.

25

complaint, or any portion thereof, before service of process, if the

26

court concludes that the complaint (1) is frivolous or malicious;

27

(2) fails to state a claim upon which relief may be granted; or

28

(3) seeks monetary relief from a defendant who is immune from such

28 U.S.C. § 1915A.

7

A court may dismiss such a

1

relief.

28

U.S.C.

§

1915A(b)(1)–(2);

see

also

Lopez

2

v.

Smith,

203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) (en banc).

3
4

Dismissal for failure to state a claim is appropriate if a

5

complaint fails to proffer “enough facts to state a claim for relief

6

that

is

7

550

U.S.

8

(2009).

“A claim has facial plausibility when the plaintiff pleads

9

factual

content

plausible
544,

on

570

its

face.”
Ashcroft

(2007);

that

Bell
v.

allows

the

Atl.

Corp.

Iqbal,

court

to

556

draw

v.

U.S.

the

Twombly,
662,

678

reasonable

10

inference that the defendant is liable for the misconduct alleged.”

11

Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr.

12

& Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

13

provide “more than labels and conclusions” or a “formulaic recitation

14

of the elements” of his claim.

15

556 U.S. at 678.

16

[complaint] need only ‘give the defendant fair notice of what the

17

. . . claim is and the grounds upon which it rests.’”

18

Pardus,

19

550 U.S. at 555).

551

U.S.

A plaintiff must

Twombly, 550 U.S. at 555; Iqbal,

However, “[s]pecific facts are not necessary; the

89,

93

(2007)

(per

curiam)

Erickson v.

(quoting

Twombly,

20

In

21

considering

whether

to

dismiss

a

complaint,

a

court

is

22

generally limited to the pleadings and must construe all “factual

23

allegations set forth in the complaint . . . as true and . . . in the

24

light

25

250 F.3d 668, 688 (9th Cir. 2001).

26

“to be liberally construed” and held to a less stringent standard

27

than those drafted by a lawyer.

28

Hebbe

most

v.

favorable”

Pliler,

627

to

the

F.3d

plaintiff.

Lee

v.

City

of

L.A.,

Moreover, pro se pleadings are

Erickson, 551 U.S. at 94; see also

338,
8

342

(9th

Cir.

2010)

(“Iqbal

1

incorporated the Twombly pleading standard and Twombly did not alter

2

courts’ treatment of pro se filings; accordingly, we continue to

3

construe

4

Iqbal.”).

5

be warranted based on either the lack of a cognizable legal theory or

6

the

7

Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.

8

2008).

9

claim

pro

se

filings

liberally

when

evaluating

them

under

Nevertheless, dismissal for failure to state a claim can

absence

of

factual

support

for

a

cognizable

legal

theory.

A complaint may also be dismissed for failure to state a
if

it

discloses

some

fact

10

necessarily defeat the claim.

11

or

complete

defense

that

will

Franklin v. Murphy, 745 F.2d 1221,

1228–29 (9th Cir. 1984).

12

DISCUSSION

13
14
15

The Complaint contains deficiencies warranting dismissal, but

16

leave to amend will be granted to permit Plaintiff to correct these

17

deficiencies.

See 28 U.S.C. § 1915A(b)(1).

18
19

A.

Plaintiff Fails To State A Claim Against Any Municipality

20
21

Plaintiff

names

22

Riverside

County

23

Sheriff’s Department.

as

Defendants

Sheriff’s

the

Department,

City
and

of

the

Riverside,4

Sacramento

the

County

(Compl. at 3-4).

24
4

25
26
27
28

The Court assumes that Plaintiff intends to name the City
of Riverside by naming “City of Riverside, on behalf of Judge Becky
Duggins (sueing City of Riverside).”
(Compl. at 3).
The Court
observes that any claims against Judge Duggins for money damages
related to her conduct as a judicial officer would likely be barred
by judicial immunity.
Ashelman v. Pope, 793 F.2d 1072, 1075 (9th
Cir. 1986) (en banc). However, the likely immunity of Judge Duggins
9

Preliminarily,

1

a

department,

agency

or

unit

of

a

local

2

government is generally an improper defendant.

3

65 F.3d 784, 791-92 (9th Cir. 1995) (police narcotics task force not

4

a “person” or entity subject to suit under § 1983).

5

claims

6

Sacramento County Sheriff’s Department are therefore dismissed with

7

leave to amend.

8

the County of Riverside or the County of Sacramento as a Defendant if

9

he wishes to continue to pursue claims against these entities or

10

against

the

Riverside

County

See Hervey v. Estes,

Sheriff’s

Plaintiff’s

Department

and

the

In any First Amended Complaint, Plaintiff may name

their departments or agencies.

11
12

However, even construing Plaintiff’s municipal liability claims

13

as brought against the City of Riverside, the County of Riverside,

14

and the County of Sacramento, Plaintiff’s allegations are inadequate.

15

A

16

violations occurring as the result of an official government policy

17

or custom.

18

121 (1992).

19

must

20

departmental policy, custom, or practice that was the “moving force”

21

behind

22

Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008).

23

“direct causal link between a municipal policy or custom and the

24

alleged constitutional deprivation.”

25

of

26
27
28

municipality

show

the

is

liable

under

§

1983

only

for

constitutional

Collins v. City of Harker Heights, Tex., 503 U.S. 115,
To prove municipal liability under § 1983, Plaintiff
both

a

deprivation

constitutional

unconstitutional

of

a

constitutional

violation.

activity,

or

Villegas

Id.
even

v.

right

Gilroy

and

a

Garlic

There must be a

Proof of a single incident
a

series

of

“isolated

or

does not necessarily bar a suit against her municipal employer. See
Kentucky v. Graham, 473 U.S. 159, 166-67 (1985) (suit against public
official’s employer is not barred by immunity defenses personal to
the official).
10

1

sporadic incidents,” will not give rise to liability under § 1983.

2

Gant v. Cnty. of Los Angeles, 772 F.3d 608, 618 (9th Cir. 2014).

3

Rather,

4

duration, frequency and consistency that the conduct has become a

5

traditional method of carrying out policy.”

6

F.3d 911, 918 (9th Cir. 1996).

liability

must

be

“founded

upon

practices

of

sufficient

Trevino v. Gates, 99

7
8

At most, Plaintiff’s Complaint alleges against each municipal

9

Defendant a single incident of unconstitutional activity or a series

10

of isolated and sporadic incidents over the course of a few hours or

11

days.

12

out

13

Plaintiff’s

14

municipal liability, and these claims must be dismissed with leave to

15

amend.5

Plaintiff does not allege that these deprivations were carried
pursuant

to

municipal

allegations

are

policies,
therefore

customs,

or

insufficient

to

practices.
establish

Gant, 772 F.3d at 618.

16
17

B.

Defendant Kinman Was Not Acting “Under Color Of State Law”

18
19

Plaintiff claims that Brian Kinman, the “alleged victim” to whom

20

restitution was ordered, “knowingly went and got a fake estimate and

21

presented [it] to [the] probation department” and “conspired with”

22

the

23

(Compl. at 4, 12 (spelling altered)).

RCPD

and

Judge

Duggins

to

“embezzle”

money

from

Plaintiff.

24
5

25
26
27
28

Plaintiff is also advised that “individual” and “official”
capacity clarify the role in which a government official is sued:
claims against a city or county are necessarily “official capacity”
claims. See Kentucky, 473 U.S. at 165-66 (“Official-capacity suits .
. . generally represent only another way of pleading an action
against an entity of which an officer is an agent.” (internal
quotation marks omitted)).
11

In order to obtain relief under § 1983, a plaintiff must show

1
2

that:

“(1)

[an]

action

occurred

‘under

color

of

state

law’

and

3

(2) the action resulted in the deprivation of a constitutional right

4

or federal statutory right.”

5

934 (9th Cir. 2002).

6

under § 1983, but it is often alleged to “draw in private parties who

7

would otherwise not be susceptible to a § 1983 action because of the

8

state action doctrine.”

9

(9th Cir. 2012) (en banc).

See Jones v. Williams, 297 F.3d 930,

Conspiracy itself is not a constitutional tort

Lacey v. Maricopa County, 693 F.3d 896, 935

10

Plaintiff’s

11

conspiracy

claims

against

Kinman

are

vague

and

12

entirely conclusory, and Plaintiff’s allegations are insufficient to

13

implicate Kinman in a conspiracy to violate his civil rights.

14

Lacey,

15

insufficient to implicate defendant in conspiracy to violate civil

16

rights).

17

acted “under color of state law” as required to state a § 1983 claim

18

against

19

dismissed with leave to amend.

693

F.3d

at

937

(“conclusory

conspiracy

allegations”

See
were

Therefore, Plaintiff has not plausibly pled that Kinman

him.

Plaintiff’s

claims

against

Kinman

are

therefore

20
21

C.

The Probation Officer Defendants Are Likely Entitled To Immunity

22
23

Plaintiff names as Defendants Mark A. Hake, Nafeesah Tillman,

24

and Aneka Amezcua, all of whom work at the RCPD and appear to have

25

been involved in preparing a “Memorandum” determining the amount of

26

restitution that Plaintiff should pay.

27
28
12

(Compl. at 3-4, 14-15).

1

State

judges

are

entitled

to

absolute

immunity

for

their

2

judicial acts.

3

2004).

4

“judgments are functionally comparable to those of judges - that is,

5

because they, too, exercise a discretionary judgment as part of their

6

function.”

7

Probation officers preparing reports for the use of state courts may

8

possess judicial immunity for acts performed within the scope of

9

their official duties.

Swift v. California, 384 F.3d 1184, 1188 (9th Cir.

Judicial immunity may be extended to other officials if their

Id. (alterations and internal quotation marks omitted).

See Demoran v. Witt, 781 F.2d 155, 157–158

10

(9th Cir. 1986).

11

immunity for their role in preparing presentence reports because, in

12

preparing these reports, probation officers act as “an arm of the

13

sentencing

judge;”

engage

14

sentencing

judge”,

the

15

aggravation

16

“integral to the independent judicial process.”

or

For example, probation officers receive judicial

in

“impartial

results

mitigation

of

of

a

fact-gathering

which

can

punishment;

be

and

for

the

considered

serve

a

in

function

See id.

17
18

Here, the report prepared by the Defendants associated with the

19

RCPD indicates that it was prepared upon a November 2011 court order

20

to “determine Victim Restitution” and was prepared using a police

21

report and information provided by Kinman.

22

Duggins reviewed the report and imposed the amount of restitution

23

recommended.

24

the amount of restitution is blank on his plea agreement, the same

25

provision

26

restitution if the victim suffered economic harm and that, if the

27

parties

28

department will determine the appropriate amount.

of

do

(See id. at 10).

the

not

plea

agree

a

Judge

Although Plaintiff is correct that

agreement

on

(Compl. at 15).

agrees

that

restitution

13

Plaintiff

amount,

the

will

pay

probation

(Id. at 16).

1

Therefore, it appears that the Defendant probation officers were

2

acting at the direction of the sentencing court in preparing the

3

report, as contemplated in Plaintiff’s plea agreement, and serving a

4

function

5

Demoran, 781 F.2d at 157–158.

6

officers are likely entitled to judicial immunity for their role in

7

investigating and recommending a particular amount of restitution.

8

Plaintiff’s

9

dismissed with leave to amend.

“integral

claims

to

the

against

independent

judicial

process.”

See

Accordingly, the Defendant probation

these

Defendants

should

therefore

be

In any First Amended Complaint,

10

Plaintiff should omit allegations against these Defendants or include

11

allegations plausibly showing that immunity does not apply.

12
13
14

D.

Plaintiff’s “Conditions Of Confinement” Claims Are Inadequately
Pled

15
16

Plaintiff appears to allege that he received inadequate food and

17

water while being driven to and from Sacramento, was deprived of a

18

shower on March 30, 2016, and possibly that he spent a night without

19

enough blankets to keep warm.6

(Compl. at 5-10, 12).

20
21

The Eighth Amendment’s prohibition against cruel and unusual

22

punishment

23

confinement.

24

2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

25

officials

26
27
28

protects

prisoners

from

inhumane

conditions

of

Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

therefore

have

a

“duty

6

to

ensure

that

Prison

prisoners

are

It is unclear whether Plaintiff’s allegations regarding
his access to blankets are intended to state an Eighth Amendment
claim or are provided as background to his claims that he was
retaliated against for complaining about prison conditions.
14

1

provided with adequate shelter, food, clothing, sanitation, medical

2

care, and personal safety.”

3

Cir. 2000).

4

satisfy both an objective and subjective component.

5

Seiter, 501 U.S. 294, 298 (1991).

6

an objectively serious deprivation, one that amounts to the denial of

7

“the minimal civilized measures of life’s necessities.”

8

Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (quoting Rhodes v. Chapman,

9

452 U.S. 337, 346 (1981)).

Johnson v. Lewis, 217 F.3d 726, 731 (9th

To establish a violation of this duty, a prisoner must
See Wilson v.

First, a prisoner must demonstrate

Keenan v.

Second, a prisoner must also demonstrate

10

that prison officials acted with a sufficiently culpable state of

11

mind, that of “deliberate indifference.”

12

Johnson, 217 F.3d at 733.

Wilson, 501 U.S. at 303;

13

A

14

prison

official

is

liable
only

for

confinement

16

disregards

an

excessive

17

official must both be aware of facts from which the inference could

18

be drawn that a substantial risk of serious harm exists, and he must

19

also draw the inference.”

health

knows

humane

of

inmate

official

inmate

conditions

to

“the

an

15

risk

if

denying

and

of

and

safety;

the

Farmer, 511 U.S. at 837.

20

Here,

21

many

of

the

conditions

of

confinement

challenged

by

22

Plaintiff were isolated deprivations lasting part of a day or a

23

single

24

deprivations caused pain or injury sufficient to state a cognizable

25

Eighth Amendment claim.

26

814 (9th Cir. 2009) (“The sustained deprivation of food can be cruel

27

and

28

penological purpose . . . The repeated and unjustified failure to

night.

unusual

Plaintiff

punishment

has

not

plausibly

pled

that

these

See, e.g., Foster v. Runnels, 554 F.3d 807,

when

it

15

results

in

pain

without

any

1

[provide

adequate

2

(emphasis added)); see also Bartholomew v. Muhammad, 599 F. App’x

3

313, 313-14 (9th Cir. 2015) (prisoner did not raise genuine dispute

4

of material fact as to whether failure to provide him with soap, a

5

shower, or a blanket on one day was sufficiently serious to state

6

Eighth Amendment claim); Garrett v. Gonzalez, 588 F. App’x 692, 692

7

(9th

8

insufficient showing that deprivation of food “resulted in any pain

9

or injury to his health”); Bartholomew v. Solorzano, 2014 WL 1232236,

10

at *3 (E.D. Cal. 2014) (daily showers are not required and complete

11

denial of showers for a week does not violate the Eighth Amendment);

12

Gunn v. Tilton, 2011 WL 1121949 at *3-*4 (E.D. Cal. 2011) (collecting

13

cases

14

water, and shelter that last “a short amount of time” and do not pose

15

a “serious threat of harm” do not give rise to Eighth Amendment

16

claim); Centeno v. Wilson, 2011 WL 836747 at *3 (E.D. Cal. 2011)

17

(depriving prisoner of mattress, blanket, and shower access for seven

18

days

19

aforementioned conditions gave rise to “a substantial risk of serious

20

harm,” Plaintiff also has not shown that any Defendant or potential

21

Defendant was aware of that risk.

Cir.

for

did

2014)

food]

(case

proposition

not

violate

amounts

properly

that

to

serious

dismissed

temporary

Eighth

a

where

deprivations

Amendment).7

Even

depr[i]vation.”

prisoner

of

if

made

sanitation,

any

of

the

Farmer, 511 U.S. at 837.

22
23

The

“conditions

of

confinement”

claims

described

above

must

24

therefore be dismissed with leave to amend.

If Plaintiff chooses to

25

re-assert these claims in any First Amended Complaint, Plaintiff must

26
27
7

28

The Court cites
persuasive value only.

non-precedential
16

opinions

for

their

1

include allegations establishing that any deprivations complained of

2

were sufficiently serious to give rise to an Eighth Amendment claim.

3
4

E.

Plaintiff

Has

No

Constitutional

Right

To

A

Prison

Grievance

Procedure

5
6
7

Plaintiff alleges that, in refusing to give him a grievance

8

form, a correctional officer “clearly violat[ed] [his] due process.”

9

(Compl. at 8).

However, an inmate has no constitutionally protected

10

interest in a prison grievance procedure.

Mann v. Adams, 855 F.2d

11

639,

a

12

individual must have a legitimate claim of entitlement to it. . . .

13

There

14

procedure.” (citations omitted)); see also Ramirez v. Galaza, 334

15

F.3d

16

constitutional

17

procedure.”) (citing Mann, 855 F.2d at 640); Antonelli v. Sheahan, 81

18

F.3d 1422, 1430 (7th Cir. 1996) (“With respect to the Due Process

19

Clause, any right to a grievance procedure is a procedural right, not

20

substantive one. Accordingly, a state’s inmate grievance procedures

21

do not give rise to a liberty interest protected by the Due Process

22

Clause.”) (citations omitted).

640

is

(9th

no

850,

Cir.

1988)

legitimate

860

(9th

(“[T]o

claim

Cir.

entitlement

obtain

of

2003)
to

protectable

entitlement

(“[I]nmates
a

specific

to

a

lack

a

prison

right

an

grievance

separate
grievance

23
24

Because

Plaintiff

procedure,

has

no

Plaintiff’s

federally
Due

protected

regarding

a

grievance

26

access to a grievance procedure must fail and should be omitted from

27

any First Amended Complaint.

17

claim

to

25

28

Process

right

his

1

F.

Plaintiff’s “Abuse Of Power” Claim Appears Redundant

2

Plaintiff raises “abuse of power” claims against all Defendants

3
4

other than Kinman.

5

underlying

6

deprivation of federal rights and prevention of abuses of power by

7

those acting under color of state law,” Robertson v. Wegmann, 436

8

U.S. 584, 590—91 (1978), the Court cannot identify any authority

9

giving rise to a freestanding “abuse of power” claim.

§

1983

(Compl. at 5).
include

However, although “[t]he policies

compensation

of

persons

injured

by

Instead, it

10

appears that Plaintiff’s “abuse of power” claims are redundant and

11

duplicative of his other claims.

12

“abuse of power” claims with leave to amend so that Plaintiff may

13

clarify and distinguish these claims if necessary.

Thus, the Court dismisses the

14

CONCLUSION

15
16

For

17
18

the

reasons

discussed

above,

the

Court

DISMISSES

the

Complaint WITH LEAVE TO AMEND.

19
20

If Plaintiff still wishes to pursue this action, he shall file a

21

First Amended Complaint no later than 30 days from the date of this

22

Order, or no later than September 18, 2017.

23

Complaint must cure the pleading defects discussed above and shall be

24

complete in itself without reference to any prior pleading.

25

Cal. L.R. 15-2 (“Every amended pleading filed as a matter of right or

26

allowed by order of the Court shall be complete including exhibits.

27

The

amended

pleading

shall

not

refer

28
18

to

the

The

First

prior,

Amended

See C.D.

superseded

1

pleading.”).

This means that Plaintiff must allege and plead any

2

viable claims asserted in prior pleadings again.

3
4

In any amended complaint, Plaintiff should identify the nature

5

of each separate legal claim and confine his allegations to those

6

operative facts supporting each of his claims.

7

legal claim, Plaintiff should state the civil right that has been

8

violated and the supporting facts for that claim only.

9

Federal Rule of Civil Procedure 8(a), all that is required is a

10

“short and plain statement of the claim showing that the pleader is

11

entitled

12

allegations in the First Amended Complaint should be consistent with

13

the authorities discussed above.

14

Complaint may not include new Defendants or claims not reasonably

15

related

16

Plaintiff is strongly encouraged to once again utilize the standard

17

civil rights complaint form when filing any amended complaint, a copy

18

of which is attached.

to

to

relief.”

the

However,

allegations

in

Plaintiff

is

For each separate

Pursuant to

advised

that

the

In addition, the First Amended

the

previously

filed

complaints.

19
20

Plaintiff is explicitly cautioned that failure to timely file a

21

First

Amended

Complaint,

22

described above, may result in a recommendation that this action, or

23

portions

24

prosecute and/or failure to comply with court orders.

25

Civ. P. 41(b).

26

wishes to pursue this action in its entirety or with respect to

27

particular Defendants or claims, he may voluntarily dismiss all or

28

any part of this action by filing a Notice of Dismissal in accordance

thereof,

be

or

failure

dismissed

with

to

correct

prejudice

the

for

deficiencies

failure

to

See Fed. R.

Plaintiff is further advised that if he no longer

19

1

with Federal Rule of Civil Procedure 41(a)(1).

2

A form Notice of

Dismissal is attached for Plaintiff’s convenience.

3
4

IT IS SO ORDERED.

5
6

Dated: August 16, 2017.

7
8
9

______________/s/_____________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20