White v. Sherman et al

Filing 11

ORDER Dismissing First Amended Complaint, signed by Chief Judge Ralph R. Beistline on 07/7/15. ( Second Amended Complaint due by 8/14/2015) (Martin-Gill, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DE’WANN WHITE,
Case No. 1:14-cv-01971-RRB
Plaintiff,
ORDER DISMISSING
FIRST AMENDED COMPLAINT

vs.
STU SHERMAN, Warden, et al.,
Defendants.

At Docket 10 Plaintiff De’Wann White has filed Plaintiff’s First Amended Complaint
(hereinafter “FAC”) in response to the Court’s Dismissal Order.1 The Court reviews the
Amended Complaint applying the same standards it applied to the original.
I.

DISCUSSION
White has divided his FAC into six separate Causes of Action. The Court will

discuss each in seriatim.
In its Dismissal Order the Court specifically instructed White that with respect to
each claim he must specify who, what, when. The Court notes that throughout his FAC,
although he specifies the date and to some extent the what, White refers to “Defendant”
or “Defendants” without specifying which Defendant or Defendants to which reference is
made. Therefore, in reviewing the FAC the Court will assume that the factual allegations

1

Docket 9.

ORDER DISMISSING FIRST AMENDED COMPLAINT
White v. Sherman, 1:14-cv-01971-RRB – 1

in each cause of action are directed solely at the Defendant(s) specifically identified in
connection with that allegation, or specifically identified by name in the cause of action.
The Court also notes that in several instances to the extent he names individual
defendants he does so in their supervisory capacity. To impose liability on a supervisor,
the supervisor’s wrongful conduct must be sufficiently causally connected to the
constitutional violation.2 That is, the official must “implement a policy so deficient that the
policy itself is a repudiation of constitutional rights and is the moving force of the
constitutional violation.”3
A person deprives another “of a constitutional right, within the
meaning of section 1983, if he does an affirmative act, participates in
another's affirmative acts, or omits to perform an act which he is legally
required to do that causes the deprivation of which [the plaintiff complains].”
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978) (Johnson) (emphasis
added). The inquiry into causation must be individualized and focus on the
duties and responsibilities of each individual defendant whose acts or
omissions are alleged to have caused a constitutional deprivation. [Citations
omitted.]4
The acts of those Defendants sued in their supervisory capacity will be measured against
that standard.
For the most part White’s action purports to raise Eighth Amendment “cruel and
unusual” claims. It is clearly established that prison officials have a duty under the Eighth
Amendment to provide inmates with the necessities of life, including adequate shelter,
2

See Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en
banc) (abrogated in part on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994)).
3

Id. (internal quotation marks and citations omitted).

4

Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoted with approval in
Tennison v. City and County of San Francisco., 570 F.3d 1078, 1096 (9th Cir. 2009)).
ORDER DISMISSING FIRST AMENDED COMPLAINT
White v. Sherman, 1:14-cv-01971-RRB – 2

food, clothing, sanitation, medical care, and personal safety.5 On the other hand, “[t]he
Eighth Amendment is not a basis for broad prison reform. It requires neither that prisons
be comfortable nor that they provide every amenity that one might find desirable.”6 Prison
condition claims have both an objective and subjective element. The objective element is
based on the severity of the deprivation and the subjective on the prison official’s
knowledge of the risk of serious injury or pain being inflicted by consciously ignoring the
prisoner’s needs.7 The circumstances, nature, and duration of a deprivation of a necessity
must be considered in determining whether a constitutional violation has occurred.8
However, to rise to the dimension of a Constitutional violation, the “need” must be related
to a serious condition, i.e., one that adversely affects the person’s daily activities or causes
chronic and serious pain. 9 The Court will measure White’s claims against this standard.

5

See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Keenan v. Hall, 83 F.3d 1083,
1089 (9th Cir. 1996); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (abrogated on
other grounds by Sandlin v. Connor, 515 U.S. 472 (1995); Wright v. Rushen, 642 F.2d
1129, 1132–1133 (9th Cir. 1981).
6

Hoptowit, 682 F.2d at 1246 (abrogated on other grounds by Connor, 515 U.S. 472
(court may consider the length of time that a prisoner must go without benefits)); see
Rhodes v. Chapman, 452 U.S. 337, 349 (1981).
7

See, e.g., Collins v. State, 2006 WL 1587467, Slip Op. *2 (W.D. Va. June 6,
2006); Lavender v. Lampert, 242 F.Supp.2d 821, 845–846 (D. Or. 2002); ASHANN-RA v.
Commonwealth of Virginia, 112 F.Supp.2d 559, 562–63 (W .D. Va. 2000).
8

Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), citing Hoptowit, 682 F.2d at
1259 (“[t]he more basic the need, the shorter the time it may be withheld”).
9

See Lopez v. Smith, 203 F.3d 1122, 1131–32 (9th Cir. 2000) (en banc).

ORDER DISMISSING FIRST AMENDED COMPLAINT
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First Cause of Action
In his First Cause of Action, an Eighth Amendment claim, White contends that
prison officials disregarded dirty and/or unsanitary blankets, and failed to enforce a proper
exchange policy. White specifically identifies three individuals: H. Vaca (in charge of the
laundry); Sgt. B. Castelle, and Stu Sherman (Warden). In all other respects White simply
refers to unnamed Defendants.
For the most part White’s allegations concern his attempts to exhaust his
administrative remedies during the period February 11 through September 23, 2014. As
relevant to his Eighth Amendment claim, White challenges the once or twice a year blanket
exchange policy at the California Substance Abuse Treatment Facility, Corcoran,
(“CSATF”).10 In the interim between exchanges inmates are required to wash their own
blankets. As a result, White alleges that he suffered from a skin ailment, fungal sepsis.
In this respect, the Court notes that the California prison regulations provide that
inmates are provided two blankets.11 The regulations also provide for a weekly exchange
of sheets and pillow cases, but are silent on the question of blanket exchanges.12 Thus, for
the purposes of this Order the Court assumes without deciding that the blanket exchange
policy at issue in this case was made at the institutional level. Accordingly, the proper
Defendant with respect to White’s First Cause of Action is the warden, Stu Sherman.

10

Docket 10, p. 31.

11

Cal. Code Regs., tit. 15, § 3030(b)(1)(E).

12

Cal. Code Regs., tit. 15, § 3031(b).

ORDER DISMISSING FIRST AMENDED COMPLAINT
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The fatal flaws with respect to his First Cause of Action as presently pleaded are
twofold. First, the injury White contends he suffered as result of the failure to exchange
blankets on a more frequent basis is based upon his own diagnosis of the both the ailment
(fungal sepsis) and the cause, not that of a licensed medical practitioner.13 In the absence
of any competent medical evidence that White suffered some debilitating injury or ailment
as result of the failure to more frequently exchange his blankets, White has failed to plead
a viable claim.
Second, although White apparently attempted to exhaust his administrative
remedies with respect to the blanket exchange policy, he simply contended it was
unsanitary without further elucidation. At no point does it appear that he contended that he
suffered any identifiable adverse medical condition as a result of the failure to more
frequently exchange blankets. It being obvious that White is unable to plead a viable Eighth
Amendment claim for the failure to more frequently exchange blankets, the First Cause of
Action will be dismissed without leave to amend.14

13

The medical records attached to the FAC covering the period December 2013
through June 2014 reveal numerous treatments for musculoskeletal complaints, as well
as headaches, there is no mention of any skin ailment. The Court also notes that White
attached copies of his medical and dental records for 2014 to his original Complaint. The
Court’s review of those records, while they also reveal treatments for musculoskeletal
complaints, as well as headaches, there is no mention of any skin ailment.
14

See Hartman v. California Dept. of Corr. and Rehab., 707 F.3d 1141, 1130 (9th
Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”);
Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (explaining that leave
to amend should be given unless amendment would be futile); Chodos v. West Publ’g Co.,
292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a plaintiff
leave to amend, its discretion in deciding subsequent motions to amend is particularly
broad.”) (citation and internal quotation marks omitted).
ORDER DISMISSING FIRST AMENDED COMPLAINT
White v. Sherman, 1:14-cv-01971-RRB – 5

Second Cause of Action
In the Second Cause of Action White alleges that on several occasions the cell in
which he was confined lacked adequate heat and ventilation. As a result of this lack of
adequate ventilation White allegedly suffered various aliments, including giddiness,
difficulty breathing, ear pain, nausea, sinus infections, anxiety, fatigue, insomnia, and
chronic migraines.
With respect to the lack of heat, White’s allegations fall short of pleading a viable
action under the Eighth Amendment. The Eighth Amendment only requires adequate heat,
not a comfortable temperature.15 White has not alleged that the lack of heat posed a
substantial risk of serious harm, only that it was uncomfortable.16
As presently constituted, accepted as true, White’s Second Cause of Action as
stated in the body of his FAC pleads the necessary elements of an Eighth Amendment
violation with respect to the inadequacy of the ventilation. On the other hand, by its vague
reference to “defendants” it does not sufficiently identify the persons responsible for those
conditions. White refers to Lt. D. Stohl, but does not allege any act upon the part of
Lt. Stohl that infringed upon a constitutionally protected right. White also specifically
identifies Warden Sherman by name, but names the Warden solely in his supervisory
capacity.

15

See Graves v. Arpaio, 623 F.3d 1043, 1048–49 (9th Cir. 2010) (per curium ).

16

Id. at 1049.

ORDER DISMISSING FIRST AMENDED COMPLAINT
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More importantly, however, the Exhibits evidencing his medical treatment attached
to the FAC not only do not support, but eviscerate, any causal connection between White’s
alleged injuries and the conditions described. The medical records show that White was
treated for migraines on five dates: September 17 and December 3, 2013, and March 14,
May 19, and July 16, 2014,17 on the other dates White was treated for an unrelated
musculoskeletal complaint. The July 16 entry indicates that with respect to his migraines
and allergies White was “at goal.” The medical records attached to both the Complaint and
the FAC also establish that the migraines and allergies predated the environmental
conditions of which he complains.
Consequently, although it is highly unlikely that White can truthfully plead a viable
claim arising out of the allegedly inadequate ventilation, the Second Cause of Action will
be dismissed with leave to amend.18 In amending White must identify the responsible
person(s) by name, not simply by the generic defendant(s). White must also plead more
than a conclusory allegation that he suffered a serious adverse medical condition, but
allege the existence of some competent medical evidence supporting that claim.
Third Cause of Action
White’s Third Cause of Action, also an Eighth Amendment claim, alleges that on
numerous dates he was denied a shower and forced to bathe in a sink without hot water,
deprived of outdoor exercise, and access to a telephone to contact his attorney and family.

17

Docket 10, pp. 269–75.

18

In further amending with respect to this claim White should include the relevant
factual allegations regarding the issue that are included in his Third Cause of Action.
ORDER DISMISSING FIRST AMENDED COMPLAINT
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White also appears to challenge his classification as a “Crip.”19 White further elaborates
on the issue raised in his Second Cause of Action, i.e., the lack of adequate ventilation.20
White’s allegations cover the 13-month period September 11, 2013, through October 8,
2014. The periods of deprivation were sporadic and ranged in time from a single day to two
weeks. The two-week period involved a lockdown related to a race-related stabbing
incident in which it appears White was not involved. It also appears that on two other
occasions the alleged deprivations occurred during lockdowns related to violence between
inmates. White alleges that these lockdowns were not required for penological purposes:
conclusory statements unsupported by facts. Furthermore, the Court must accord “wideranging deference to the judgment of prison officials in the adoption and execution of
policies and practices that in their judgment are needed to preserve internal order and
discipline and maintain institutional security.”21 White has not alleged any factual basis
upon which the Court could substitute its judgment for that of the prison officials.
Accordingly, the lockdowns do not support granting White any relief in any form.

19

One of the documents attached to the FAC indicate that White’s gang affiliation
was removed. Docket 10, p. 78. Consequently, the relevance of White’s allegation
concerning his gang affiliation to the matters at issue in this action is unexplained and
inexplicable.
20

The Court considered those allegations in reviewing the Second Cause of Action,
and does not reconsider them in connection with the Third Cause of Action..
21

Bell v. Wolfish, 441 U.S. 520, 547 (1979).

ORDER DISMISSING FIRST AMENDED COMPLAINT
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Whether taken individually or collectively, while no doubt establishing that his
conditions of confinement were less than comfortable,22 White’s remaining allegations do
not rise to the level necessary to establish an Eighth Amendment cruel and unusual
punishment violation. In several instances White refers to a single occurrence, e.g., denial
of telephone contact with his family or lawyer, attendance at religious services, lack of
electrical power, but does allege any specific compensable harm or injury that may have
occurred as a result of that denial. The Court further notes that in several instances the
factual allegations asserted in the body of the FAC are contradicted by the very documents
attached to and referred to in FAC.23 It does not appear that White can truthfully plead facts
sufficient to warrant the granting of relief. Therefore the Third Cause of Action must be
dismissed without leave to amend.
Fourth Cause of Action
The Fourth Cause of Action alleges a denial of access to the law library in violation
of the Eighth Amendment. Although not within the ambit of the Eighth Amendment, the
Court starts with the proposition that the right of access to the courts is a well established
fundamental constitutional right.24 It is, however, also well established that there must be

22

See Hoptowit, 682 F.2d at 1246 (noting that the Eighth Amendment does not
requires that prisons be comfortable).
23

For example days upon which he claims he was denied a shower where the
attachments indicate showers were available. White does not explain this discrepancy.
24

Bounds v. Smith, 430 U.S. 817, 821, 828 (1977).

ORDER DISMISSING FIRST AMENDED COMPLAINT
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some injury and that requirement is not satisfied by just any type of frustrated legal claim.25
Access to the courts in the Constitutional context is the opportunity to prepare, serve, and
file such pleadings and documents necessary or appropriate to commence or prosecute
court proceedings affecting one’s personal liberty.26 Access to court claims are of two
types—a forward-looking claim, i.e., one in which the action seeks to remove impediments
or road blocks to future litigation, and a backward-looking claim, i.e., one in which specific
litigation ended poorly, or could not have commenced, or could have produced a result
subsequently unobtainable. 27
The Court noted in dismissing the Complaint that White alleged that he was denied
access to the law library on two dates: May 23 and July 3, 2014. Conspicuously lacking
was any allegation that White suffered any injury as a result of the claimed denial of access
on those two dates, i.e., suffered some adverse action or that he was precluded from
exercising some constitutionally protected right. In the body of his FAC White does not
specifically refers to any specific date on which he was denied access to the law library.
Instead, White attaches and refers to internal grievances.28

25

Lewis v. Casey, 518 U.S. 343, 351–54 (1996) (actual injury requirement in
access-to-courts claim requires showing frustration of the pursuit of a nonfrivolous claim).
26

Id. at 384 (Thomas, J. concurring); Philips v. Hust, 477 F.3d 1070, 1075–76 (9th
Cir. 2007); Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1159–60 (9th
Cir. 2003).
27

See Christopher v. Harbury, 536 U.S. 403, 413–14 (2002).

28

FAC, Exh. 5, Docket 10, pp. 193–213.

ORDER DISMISSING FIRST AMENDED COMPLAINT
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Initially the Court notes that White alleges in purely conclusory terms that as a result
of this denial of access he was unable to aggrieve legal matters thereby precluding him
from completing a meritorious suit. White does not, however, identify the factual basis
underlying the “meritorious suit.” Conclusory allegations standing alone are insufficient to
support a claim.29
More importantly, White’s internal grievances are based upon an alleged denial of
the minimum of two hours of law library time weekly required by California regulations.30
The internal grievances attached to the FAC indicate that between November 19, 2013 and
April 11, 2014, White was ducated for two-hour library sessions on nine occasions, and
attended on seven of those dates. On one of the dates White was ducated for a library
session the prison was on partial lock-down. On two of the dates the library was closed,
but White was allowed to make up one of the missed dates.31
The allegations of the FAC fall far short of pleading a viable claim that the acts of
Defendants, either individually or collectively, denied White access to the courts. Indeed,
on the facts as presented, White’s claim is frivolous. Therefore, the Fourth Cause of
Action will also be dismissed without leave to amend.

29

Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); see Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 555–57 (2007)
30

Cal. Code Regs., tit. 15, § 3134(b). White also inexplicably refers to an alleged
denial of legal supplies. The attachments to the Complaint clearly establish that his
grievance regarding this issue was granted and legal supplies were supplied. White does
not identify any injury he suffered as a result of the delay.
31

Notably, White does not dispute those facts.

ORDER DISMISSING FIRST AMENDED COMPLAINT
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Fifth Cause of Action
In his Fifth Cause of Action White renews his claim that prison officials improperly
opened his legal mail. In an attempt to circumvent the defect noted in the Court’s Dismissal
Order, i.e., that it was read, White now alleges that his legal correspondence was “opened
and read to plaintiff’s knowledge” by unidentified defendants. White also alleges that he
was injured by the breach of his clearly established right to confidentiality and delay in
receiving his legal mail. White further alleges that Warden Sherman, the only identified
defendant, failed to properly train and supervise his subordinates.
As the Court noted in its Dismissal Order White has not alleged any actual injury
from the opening of his incoming legal mail. To be entitled to injunctive relief, White “must
demonstrate that he is realistically threatened by a repetition of [the violation].”32
A threat of repetition can be shown at least two ways. First, a plaintiff may
show that the defendant had, at the time of the injury, a written policy, and
that the injury stems from that policy. Second, the plaintiff may demonstrate
that the harm is part of a pattern of officially sanctioned . . . behavior,
violative of the plaintiffs’ [federal] rights.33
Because White is no longer incarcerated at CSATF, his claim for injunctive relief is moot.34
Consequently, White’s Complaint does not allege facts entitling him to injunctive relief.
Accordingly, White’s Fifth Cause of Action will be dismissed without leave to amend.

32

Nordstrom, 762 F.3d at 911 (alterations and emphasis in the original) (citations
and internal quotation marks omitted).
33

Id. (emphasis in the original) (citations and internal quotation marks omitted).

34

See Dilley v. Gunn, 64 F.3d 1365, 1367 (9th Cir. 1995); Johnson v. Moore, 948
F.2d 517, 519 (9th Cir. 1991) (per curiam); Darring v. Kincheloe, 783 F.2d 874, 876 (9th
Cir. 1986).
ORDER DISMISSING FIRST AMENDED COMPLAINT
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Sixth Cause of Action
White’s Sixth Cause of Action appears to be amalgam of unrelated grievances: staff
misconduct in the processing of his internal grievances; staff misconduct in labeling him
a “snitch”; a coverup of staff misconduct; and the destruction of personal property (hair
clippers) during a cell search.
Assuming without deciding that the pleaded facts establish staff misconduct in the
processing of his internal grievances, White still falls far short of establishing a viable claim
for relief in this Court. At most, White has pleaded facts sufficient to establish cause for
excusing compliance with the internal grievance procedures as a prerequisite to filing a
complaint in this Court. White does not, however, allege any injury independent of the
failure to properly process his grievances, including their destruction. While this is a matter
of serious concern, it is more properly the subject of internal prison disciplinary
proceedings against the correctional officers concerned; not a civil rights proceeding in this
Court.
The allegation that White was labeled a “snitch” on the other hand raises a different
issue. White quoted Davis as stating: “I heard about you, only a ‘snitch’ writes all of those
things for nothing. The log book shows that program was given and if there’s a problem I
can have you moved.”35 White further alleges that the statement was made in front of
inmates and that he, White, was threatened with bodily harm by black inmates. Taken in
context the quoted remark more likely than not cannot logically be construed as labeling

35

Docket 10, p. 25 (quotation marks in the original).

ORDER DISMISSING FIRST AMENDED COMPLAINT
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White as a “snitch” with respect to other inmates. This Court cannot however
unequivocally hold that a properly instructed, reasonable jury could not plausibly reach that
conclusion. On the other hand, the mere conclusory statements that White was threatened
by other black inmates is patently insufficient.36 In amending his complaint White must
plead specific facts, including the nature of the threat and, where known, the identity of the
inmates who threatened him.
With respect to the alleged destruction of White’s hair clippers, even accepting
White’s allegations on their face as true, the loss incurred was, at most, minimal—hardly
the matter of a federal civil rights action.
Although it is highly unlikely that White can truthfully plead plausible facts sufficient
to establish any compensable injury, the Sixth Cause of Action will also be dismissed with
leave to amend with respect to the alleged labeling as a “snitch.”
II.

ORDER
The First, Third, Fourth, and Fifth Causes of Action in the First Amended Complaint

are hereby DISMISSED, without leave to amend.
The Second and Sixth Causes of Action are hereby DISMISSED with leave to
amend.

36

The allegation that an unidentified inmate “warned” White not to talk to the guards
without the presence of another prisoner, while indicative of the possibility of a threat, does
not itself establish the existence of a threat to White’s safety.
ORDER DISMISSING FIRST AMENDED COMPLAINT
White v. Sherman, 1:14-cv-01971-RRB – 14

White is hereby granted through and including Friday, August 14, 2015, within
which to file a Second Amended Complaint consistent with this and the Court’s earlier
order. In further amending his complaint White is reminded that he must:
1. Separate each claim including, where appropriate, a caption for the claim;
2. sequentially number the paragraphs; and
3. with respect to each claim identify the constitutionally protected right violated,
describe the act(s) that violated that right, identify by name and, if known, the title of the
person(s) who committed the act(s), state the date(s) of the act(s), and describe the injury
or damage suffered as a result of the violation.37
In addition, with respect to each claim affirmatively plead that he has exhausted his
available administrative remedies and attach to the Amended Complaint copies of all
documents evidencing such exhaustion to the extent they are in his possession, custody,
or control.
Failure to comply with this Order within the time specified, or such additional
time as the Court may grant, may result in the dismissal of this action without further
notice.
IT IS SO ORDERED this 7th day of July, 2015
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

37

See Fed. R. Civ. Proc. 8(a).

ORDER DISMISSING FIRST AMENDED COMPLAINT
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