Alfonso Hall v. Smith et al
Filing
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ORDER DIRECTING Clerk of Court to Randomly Assign a District Judge; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants signed by Magistrate Judge Barbara A. McAuliffe on 12/12/2017. Referred to Judge Lawrence J. O'Neill. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ALFONSO HALL,
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Plaintiff,
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D. SMITH, et al.,
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A DISTRICT JUDGE
v.
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Case No. 1:15-cv-00860-BAM (PC)
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Defendants.
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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
[ECF No. 23]
FOURTEEN-DAY DEADLINE
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Plaintiff Alfonso Hall is a state prisoner proceeding pro se and in forma pauperis pursuant
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to 42 U.S.C. § 1983. On June 22, 2015, Plaintiff consented to the jurisdiction of a United States
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Magistrate Judge. (ECF No. 8.) Currently, no defendants have appeared in this action, as service
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of process is underway. Therefore, no defendants have yet consented or declined to Magistrate
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Judge jurisdiction.
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On October 24, 2017, the Court screened Plaintiff’s second amended complaint pursuant
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to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B), and found that it stated an Eighth
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Amendment conditions of confinement claim against Defendants Does 1-4 in their individual
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capacities arising from conditions in the management cell, and Eighth Amendment claims against
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Defendant Smith in his individual capacity for excessive force and for failure to decontaminate
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Plaintiff. (ECF No. 23.) The Court dismissed all other claims and defendants for the failure to
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state a cognizable claim for relief. (Id. at 12.) The Court indicated that jurisdiction existed under
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28 U.S.C. § 636(c), based on the fact that Plaintiff had consented to Magistrate Judge jurisdiction
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and no other parties had yet appeared. (See id. at 1.)
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Williams v. King
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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. §
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636(c)(1) requires the consent of all named plaintiffs and defendants, even those not served with
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process, before jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v.
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King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the Court did not have jurisdiction to dismiss
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the claims described in its October 24, 2017 order.
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Here, as noted above, no defendant was yet served at the time that the Court screened the
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second amended complaint, and therefore none had appeared or consented to Magistrate Judge
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jurisdiction. Because all defendants had not consented, the undersigned’s dismissal of Plaintiff’s
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claims is invalid under Williams. Because the undersigned nevertheless stands by the analysis in
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the previous screening order, she will below recommend to a District Judge that the non-
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cognizable claims be dismissed.
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Screening Requirement
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §
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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or
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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C.
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§ 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65
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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge
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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)
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(internal quotation marks and citation omitted).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings
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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,
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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially
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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each
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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949
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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.
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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere
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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678,
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129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
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III.
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Allegations
Plaintiff, an inmate in the custody of the California Department of Corrections and
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Rehabilitation (CDCR) at Pelican Bay State Prison, brings this civil rights action against
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Correctional Officer D. Smith, Warden K. Holland, Correctional Sergeant M. Montano,
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Correctional Lieutenant J. Tyree, and Correctional Officer Does 1-4, employees of the CDCR at
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CCI Tehachapi, where the events at issue occurred.
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Plaintiff alleges that on May 20, 2014, Defendant Smith “intercepted Plaintiff’s Outgoing
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letter and Prevented it From being mailed . . . due to his speculation and conjecture that it
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contained a Coded message written a member of the Mexican Mafia Prison gang.” (ECF No. 21
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at p. 6.) After the letter was intercepted, Plaintiff alleges that Defendants Smith, Montano and
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Tyree conspired to retaliate against Plaintiff “due to the alleged contents of [his] letter.” (Id.)
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On the same date, Defendant Tyree tasked Defendant Montano with completing a targeted
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search of Plaintiff’s cell. Defendant Montano in turn ordered Officers G. Adame, B. Medrano and
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P. Orteaa to join Defendant Smith in targeting Plaintiff’s cell. Plaintiff alleges that Defendants
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Smith, Montano and subordinates arrived at Plaintiff’s cell with a malicious intent to retaliate
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against him. Plaintiff further alleges that, as he was finishing using the restroom, Defendant Smith
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ordered Plaintiff to “submit to being Placed in zip-ties.” (Id. at p. 7.) Plaintiff alleges that when he
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finished using the restroom and flushing it, Defendant Smith “without warning or good cause . . .
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used unnecessary and excessive force by the infliction of sadistic wanton pain on Plaintiff with
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pepper-spray and Placing Plaintiff in extremely tight zip-ties that caused Plaintiff to temporarily
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lose feeling in the hands.” (Id.)
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After being placed in zip-ties, Plaintiff was removed barefoot from his cell and paraded
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through the main yard by Defendants Smith and Montano. Plaintiff was escorted to the dining
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hall where he was “verbally assaulted and threatened with more pepper spray” by Defendants
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Smith and Montano. (Id. at p. 8.) Plaintiff was informed by Defendant Montano that Warden
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Holland wanted Plaintiff placed on management-cell status. The cell was unfurnished. Plaintiff
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alleges that he was not decontaminated before being placed in the management cell. Plaintiff
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alleges that for 3 days, he was not provided with “any sort of cleaning supplies, no soap, toilet-
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paper or disinfectant.” (Id.) Plaintiff alleges that he suffered from severe pain from trying not to
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defecate because he had no way of cleaning himself. Plaintiff eventually defecated and was
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forced to use his bare hand to clean himself. Plaintiff was not allowed a mattress and was forced
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to sleep on the cold, dirty floor. Plaintiff contends that he suffered sleep deprivation for the 3 days
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due to the lack of a mattress, the effects of the pepper spray and the unsanitary conditions.
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As to retaliatory intent, Plaintiff alleges that Defendant Smith provided contradictory
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testimony regarding the contents of Plaintiff’s letter in disciplinary reports. Plaintiff further
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alleges that Defendant Does 1-4 deprived Plaintiff of any grievance forms, which led to Plaintiff
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commencing a hunger strike to peacefully protest the alleged events. Plaintiff also contends that
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Defendants Holland, Tyree and Montano failed to train subordinates and prevent them from
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maintaining a pattern of retaliation. Plaintiff also contends that Defendant Holland refused to
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respond to Plaintiff’s request to stop retaliation by her subordinates. Plaintiff states that he
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notified Defendant Holland about the interference with his outgoing letter and the deprivation of
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legal supplies.
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As relief, Plaintiff seeks a declaratory judgment, preliminary and permanent injunctions,
and compensatory and punitive damages.
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IV.
Discussion
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A. Official Capacity
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To the extent Plaintiff seeks to bring claims for damages against defendants in their
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official capacities, he may not do so. The Eleventh Amendment prohibits suits for monetary
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damages against a State, its agencies, and state officials acting in their official capacities. Aholelei
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v. Dep’t of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). As such, the Eleventh
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Amendment bars any claim for monetary damages against defendants acting in their official
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capacities.
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B. First Amendment
1. Right to Send Mail
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Plaintiff alleges that Defendant Smith, Holland and Tyree violated Plaintiff’s First
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Amendment rights by promulgating, enforcing and implementing overbroad rules and regulations
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that curtailed his right to freedom of speech. Although not entirely clear, it appears that Plaintiff
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is challenging implementation of the prison policy allowing for his outgoing mail to be
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intercepted and not mailed.
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Prisoners have a First Amendment right to send and receive mail. Witherow v. Paff, 52
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F.3d 264, 265 (9th Cir. 1995) (per curiam). However, prison officials may visually inspect
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outgoing mail to determine whether it contains contraband material that threatens prison security
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or material threatening the safety of the recipient. See Witherow, 52 F.3d at 266; Royse v.
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Superior Court, 779 F.2d 573, 574-75 (9th Cir. 1986).
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Here, Plaintiff admits that his mail was intercepted based on Defendant Smith’s belief that
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it contained an encoded message to a gang member, which does not violate the First Amendment.
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Plaintiff has not otherwise alleged a deficient policy regarding review of outgoing mail or that he
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was otherwise prevented from sending and receiving mail that did not contain allegedly encoded
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messages. Further, generally isolated incidents of mail interference or tampering will not support
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a claim under section 1983 for a violation of Plaintiff's constitutional rights. See Davis v. Goord,
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320 F.3d 346, 351 (2d Cir. 2003); Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997); Smith
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v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990).
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2. Retaliation
Plaintiff alleges that Defendants Smith, Montano and Holland violated his First
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Amendment rights because he was pepper sprayed, threatened, placed in zip-ties and subjected to
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the management cell in retaliation for the exercise of his right to freedom of speech.
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“Within the prison context, a viable claim of First Amendment retaliation entails five
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basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)
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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s
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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate
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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567– 68 (9th Cir. 2005).
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Plaintiff fails to allege that he was engaged in protected conduct. According to the
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allegations in his complaint, Plaintiff was pepper sprayed, threatened, placed in zip-ties and
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housed in a management cell because of mail alleged to contain an encoded message to a gang
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member. Plaintiff fails to establish how attempting to send mail alleged to contain an encoded
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message is protected conduct. Even if the mail was later determined not to contain such a
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message, all of the alleged retaliatory actions occurred in May 2014, prior to any such
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determination or resolution of the related disciplinary matter in July and September 2014. (ECF
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No. 21 at pp. 6-9 and Exs. C, D.)
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B.
Eighth Amendment
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Conditions of Confinement
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison
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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman,
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452 U.S. 337, 347 (1981). A prisoner’s claim does not rise to the level of an Eighth Amendment
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violation unless (1) “the prison official deprived the prisoner of the ‘minimal civilized measure of
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life’s necessities,’” and (2) “the prison official ‘acted with deliberate indifference in doing
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so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296
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F.3d 732, 744 (9th Cir. 2002) (citation omitted)).
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In order to find a prison official liable under the Eighth Amendment for denying humane
conditions of confinement within a prison, the official must know “that inmates face a substantial
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risk of serious harm and disregarded that risk by failing to take reasonable measures to abate
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it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
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Plaintiff alleges that Defendants Holland and Does 1-4 denied Plaintiff his basic human
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necessities while in the management cell, and that Defendants Holland, Montano and Does 1-4
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were deliberately indifferent. Liberally construed, Plaintiff has stated a cognizable claim for relief
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under the Eighth Amendment against Defendant Does 1-4, who reportedly were the correctional
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officers “overseeing Plaintiff while he was being subjected to the management-cell.” (ECF No. 21
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at p. 6.) However, Plaintiff fails to allege that Defendants Holland and Montano knew of the
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conditions in the management cell and failed to respond.
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To the extent that Plaintiff seeks to impose liability on Defendants Holland and Montano
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based on a supervisory role, government officials may not be held liable for the actions of their
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subordinates under a theory of respondeat superior. Iqbal, 556 U.S. at 676. Since a government
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official cannot be held liable under a theory of vicarious liability for section 1983 actions,
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Plaintiff must plead that the official has violated the Constitution through his own individual
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actions. Id.. In other words, to state claim for relief under section 1983, Plaintiff must link
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Warden Holland or Sergeant Montano with some affirmative act or omission that demonstrates a
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violation of Plaintiff’s federal rights.
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Despite alleging that Defendants Holland and Montano ordered Plaintiff housed in a
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management cell, Plaintiff fails to allege any facts indicating that Defendants Holland or Montano
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were personally aware of the conditions to which Plaintiff was subjected. Plaintiff therefore fails
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to state a condition of confinement claim against Defendants Holland and Montano.
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2.
Excessive Force
The Cruel and Unusual Punishments Clause of the Eighth Amendment protects prisoners
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from the use of excessive physical force. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per
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curiam); Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). What is necessary to show sufficient harm
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under the Eighth Amendment depends upon the claim at issue, with the objective component
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being contextual and responsive to contemporary standards of decency. Hudson, 503 U.S. at 8
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(quotation marks and citations omitted). For excessive force claims, the core judicial inquiry is
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whether the force was applied in a good-faith effort to maintain or restore discipline, or
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maliciously and sadistically to cause harm. Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at
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7) (quotation marks omitted).
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Not every malevolent touch by a prison guard gives rise to a federal cause of
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action. Wilkins, 559 U.S. at 562 (quoting Hudson, 503 U.S. at 9) (quotation marks omitted).
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Necessarily excluded from constitutional recognition is the de minimis use of physical force,
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provided that the use of force is not of a sort repugnant to the conscience of mankind. Id.
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(quoting Hudson, 503 U.S. at 9-10) (quotation marks omitted). In determining whether the use of
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force was wanton or and unnecessary, courts may evaluate the extent of the prisoner’s injury, the
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need for application of force, the relationship between that need and the amount of force used, the
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threat reasonably perceived by the responsible officials, and any efforts made to temper the
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severity of a forceful response. Hudson, 503 U.S. at 7 (quotation marks and citations omitted).
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Here, the Court finds that, liberally construed, the complaint states a claim for relief
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against Defendant Smith for excessive force. The allegations indicate that Plaintiff was not
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offering resistance, and Defendant Smith subjected Plaintiff to pepper spray. The allegations also
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indicate that Defendant Smith applied restraints in such a way that Plaintiff experienced
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numbness in his hands. While the absence of a serious injury is relevant to the Eighth
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Amendment inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of
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force to cause harm always violates contemporary standards of decency. Wilkins, 559 U.S. at 562
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(quoting Hudson, 503 U.S. at 9 (quotation marks omitted). Thus, it is the use of force rather than
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the resulting injury which ultimately counts, Id. at 562.
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As to Plaintiff’s allegation that Defendants Smith and Montano verbally assaulted and
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threatened him in the dining hall, Plaintiff fails to state a claim. Allegations of threats and
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harassment do not state a cognizable claim under 42 U.S.C. § 1983. See Keenan v. Hall, 83 F.3d
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1083, 1092 (9th Cir. 1996) (assaultive comments by prison guard not enough to implicate Eighth
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Amendment); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat of bodily harm does
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not constitute constitutional wrong).
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3. Failure to Decontaminate
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As noted above, in order to find a prison official liable under the Eighth Amendment for
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denying humane conditions of confinement within a prison, the official must know “that inmates
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face a substantial risk of serious harm and disregarded that risk by failing to take reasonable
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measures to abate it.” Farmer, 511 U.S. at 847.
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Liberally construed, Plaintiff has stated an Eighth Amendment claim for failure to
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decontaminate against Defendant Smith. The allegations of the complaint indicate that Defendant
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Smith subjected Plaintiff to pepper spray, and placed him in the management cell without
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decontaminating Plaintiff.
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C. Due Process
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1.
Fourteenth Amendment
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Plaintiff asserts that Defendants Holland and Montano violated his due process rights by
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placing him in the management cell without any procedural safeguards. Prisoners may claim the
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protections of the Due Process Clause of the Fourteenth Amendment, and they may not be
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deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S.
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539, 556 (1974). Before a prisoner is placed in disciplinary segregation, due process requires that
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a prisoner is entitled to: (1) a written statement at least 24 hours before the disciplinary hearing
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that includes the charges, a description of the evidence against the prisoner, and an explanation
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for the disciplinary action taken; (2) an opportunity to present documentary evidence and call
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witnesses, unless calling witnesses would interfere with institutional security; and (3) legal
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assistance where the charges are complex or the inmate is illiterate. Id. at 563–70. Plaintiff’s
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allegations that he was placed in a management-cell do not equate with placement in disciplinary
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segregation.
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Plaintiff also alleges that Defendant Smith violated his due process rights by preventing
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Plaintiff’s outgoing letter from being mailed and failing to give Plaintiff an opportunity to present
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his views. However, Plaintiff’s allegations suggest that he received a hearing on his RVR, and
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there is no assertion that Defendant Smith interfered with the disciplinary hearing process.
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Further, Plaintiff’s claims regarding his outgoing mail are covered by the specific
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provisions of the First Amendment. “[I]f a constitutional claim is covered by a specific
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constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed
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under the standard appropriate to that specific provision, not under the rubric of substantive due
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process.” See United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997)).
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2.
State Created Liberty Interests
Plaintiff alleges that defendants deprived him of his state created liberty interest rights
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protected by the Fourteenth Amendment when: Defendant Smith failed to notify Plaintiff by way
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of CDC Form 1819 that his outgoing letter was never mailed; Defendants Does 1-4 maliciously
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and deliberately refused Plaintiff his right to appeal; and Defendants Does 1-4, Holland and
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Montano deliberately deprived Plaintiff of the basic human necessities to keep himself and his
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living quarters clean and sanitary while he was in the management cell.
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Plaintiff’s claims regarding his outgoing letter and deprivation of basic human necessities
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are covered by the provisions of the First and Eighth Amendments respectively. Thus, Plaintiff’s
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allegations should be analyzed under those specific standards. Id. Additionally, Plaintiff’s
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allegation that Defendant Does 1-4 deprived him of grievance forms does not state a cognizable
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due process claim. The existence of an inmate appeals process does not create a protected liberty
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interest upon which Plaintiff may base a claim that he was denied a particular result or that the
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appeals process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v.
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Adams, 855 F.2d 639, 640 (9th Cir. 1988).
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D. Conspiracy
Plaintiff alleges that Defendants Smith, Tyree, Montano, Holland and Does 1-4 conspired
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to deprive Plaintiff of his constitutional rights. To state a claim for conspiracy under section 1983,
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Plaintiff must show the existence of an agreement or a meeting of the minds to violate his
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constitutional rights, and an actual deprivation of those constitutional rights. Avalos v. Baca, 596
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F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001). A bare
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allegation that defendants conspired to violate Plaintiff's constitutional rights will not suffice to
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give rise to a conspiracy claim under section 1983. Moreover, Plaintiff's claim of conspiracy is
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speculative and he presents no facts to show a meeting of the minds to violate his constitutional
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rights.
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E. Failure to Train and Supervise
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Plaintiff also asserts failure to train and supervise allegations against the “supervisory”
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defendants, Holland, Tyree and Montano. A “failure to train” or “failure to supervise” theory can
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be the basis for a supervisor’s liability under § 1983 in only limited circumstances, such as where
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the failure amounts to deliberate indifference. See City of Canton, Ohio v. Harris, 489 U.S. 378,
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387–90 (1989). “The cases in which supervisors have been held liable under a failure to
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train/supervise theory involve conscious choices made with full knowledge that a problem
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existed.” Wardell v. Nollette, No. C05–0741RSL, 2006 WL 1075220, at *3 (W.D. Wash. Apr. 20,
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2006) (collecting cases); see also Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) (to impose
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liability for a supervisor’s failure to train, “a plaintiff must usually demonstrate a pattern of
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violations and that the inadequacy of the training is obvious and obviously likely to result in a
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constitutional violation”) (citation, internal quotation marks omitted), cert. denied, 540 U.S. 826,
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(2003).
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“A pattern of similar constitutional violations by untrained employees is ordinarily
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necessary to demonstrate deliberate indifference for purposes of failure to train, though there
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exists a ‘narrow range of circumstances [in which] a pattern of similar violations might not be
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necessary to show deliberate indifference.’” Flores v. County of Los Angeles, 758 F.3d 1154,
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1159 (9th Cir. 2014) (quoting Connick v. Thompson, 563 U.S. 51, 131 S. Ct. 1350, 1360–61, 179
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L.Ed.2d 417 (2011)). In this “narrow range of circumstances,” a single incident may suffice to
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establish deliberate indifference where the violation of constitutional rights is a “highly
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predictable consequence” of a failure to train because that failure to train is “so patently
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obvious.” Connick, 563 U.S. at 64.
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Here, Plaintiff makes conclusory statements that the supervisory defendants failed to train
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subordinates. Plaintiff’s conclusory statements do not show that his injury was a “highly
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predictable consequence” of Defendants’ failure to train, or that the failure to train was “patently
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obvious.” Id.
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F. Requested Relief
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1. Declaratory Judgment
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Plaintiff seeks a declaration that his rights were violated by defendants. “A declaratory
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judgment, like other forms of equitable relief, should be granted only as a matter of judicial
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discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 333
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U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful
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purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and
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afford relief from the uncertainty and controversy faced by the parties.” United States v.
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Washington, 759 F.2d 1353, 1357 (9th Cir. 1985).
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In the event that this action reaches trial and the trier of fact returns a verdict in favor of
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Plaintiff, the verdict will be a finding that Plaintiff's constitutional rights were violated.
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Accordingly, a declaration that a defendant violated Plaintiff's rights is unnecessary.
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2. Injunctive Relief
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Plaintiff seeks several forms of injunctive relief. Plaintiff is no longer housed at CCI
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Tehachapi, where he alleges the incidents at issue occurred, and where the prison official
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defendants are employed. Therefore, any relief he seeks against the officials at CCI Tehachapi is
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moot. See Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (prisoner’s claims for
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injunctive relief generally become moot upon transfer) (citing Johnson v. Moore, 948 F.2d 517,
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519 (9th Cir. 1991) (per curiam) (holding claims for injunctive relief “relating to [a prison's]
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policies are moot” when the prisoner has been moved and “he has demonstrated no reasonable
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expectation of returning to [the prison]”)).
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V.
Conclusion and Recommendation
Plaintiff has stated the following cognizable claims: (1) an Eighth Amendment conditions
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of confinement claim against Defendants Does 1-4 in their individual capacities arising from
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conditions in the management cell; and (2) Eighth Amendment claims against Defendant Smith in
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his individual capacity for excessive force and for failure to decontaminate Plaintiff. However,
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Plaintiff has failed to state any other cognizable claims in this action, and the Court finds that
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further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a
District Judge to this action.
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Furthermore, for the reasons explained above, IT IS HEREBY RECOMMENDED that:
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1. This action proceed on Plaintiff’s Eighth Amendment conditions of confinement claim
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against Defendants Does 1-4 in their individual capacities arising from conditions in
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the management cell, and Eighth Amendment claims against Defendant Smith in his
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individual capacity for excessive force and for failure to decontaminate Plaintiff; and
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2. All other claims and defendants be dismissed for failure to state a cognizable claim for
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relief.
These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
December 12, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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