Mitchell v. Beard et al

Filing 44

ORDER for this case to proceed against Defendant, Hunter on Plaintiff's conditions of confinement claim; dismissing all remaining claims and Defendants and finding 42 Second Amended Complaint appropriate for service and sending service documents to Plaintiff signed by Magistrate Judge Gary S. Austin on 8/31/2017. (Case Management Deadline: 10/5/2017). (Attachments: # 1 USM Instructions). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN EDWARD MITCHELL,

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Plaintiff,

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vs.
J. BEARD, et al.,

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Defendants.

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ORDER FOR THIS CASE TO
PROCEED AGAINST DEFENDANT
HUNTER ON PLAINTIFF’S
CONDITIONS OF CONFINEMENT
CLAIM
ORDER DISMISSING ALL
REMAINING CLAIMS AND
DEFENDANTS FOR FAILURE TO
STATE A CLAIM
ORDER FINDING SECOND AMENDED
COMPLAINT APPROPRIATE FOR
SERVICE AND SENDING SERVICE
DOCUMENTS TO PLAINTIFF FOR
COMPLETION AND RETURN WITHIN
THIRTY DAYS
(ECF No. 42.)

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1:15-cv-01512-GSA-PC

I.

BACKGROUND

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John Edward Mitchell (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On October 5, 2015,

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Plaintiff filed the Complaint commencing this action. (ECF No. 1.)

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On October 16, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 6.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of
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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On December 24, 2015, Plaintiff filed a motion for leave to amend the Complaint,

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together with a proposed amended complaint. (ECF Nos. 12, 15.) On January 7, 2016, the

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Court issued an order granting Plaintiff leave to amend. (ECF No. 13.) On January 22, 2016,

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Plaintiff filed the First Amended Complaint. (ECF No. 17.)

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On November 14, 2016, the court screened the First Amended Complaint and issued an

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order requiring Plaintiff to either file a Second Amended Complaint or notify the court that he

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is willing to proceed only with the cognizable claim found by the court. (ECF No. 35.) On

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March 13, 2017, Plaintiff filed the Second Amended Complaint, which is now before the court

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for screening. (ECF No. 42.)

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II.

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 or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint is required to contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not 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

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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). Plaintiff must set forth “sufficient factual
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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

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state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility

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standard. Id.

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III.

THE COURT’S PRIOR SCREENING ORDER

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In the court’s prior screening order issued on November 14, 2016, the court found that

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Plaintiff stated a claim in the First Amended Complaint only against defendant Sgt. Sanchez for

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subjecting Plaintiff to adverse conditions of confinement, leaving Plaintiff naked in an

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unsanitary cell for two hours. (ECF No. 35.) Upon further review of Plaintiff’s allegations in

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both the First and Second Amended Complaints, the court finds that Plaintiff names defendant

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C/O Hunter as the individual who confined Plaintiff in the cell, not Sgt. Sanchez. Plaintiff’s

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alleges in the Second Amended Complaint that Sgt. Munoz ordered C/O Hunter to confine

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Plaintiff in the bare cell. (ECF No. 42 at 12 ¶19.)

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IV.

SUMMARY OF SECOND AMENDED COMPLAINT

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Plaintiff is presently incarcerated at the R. J. Donovan Correctional Facility in San

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Diego, California, in the custody of the California Department of Corrections and

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Rehabilitation (CDCR). The events at issue in the Second Amended Complaint allegedly

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occurred at North Kern State Prison (NKSP) in Delano, California when Plaintiff was housed

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there while on his way to attend a settlement conference in a prior case. Plaintiff names as

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defendants Sergeant E. Sanchez, Sergeant L. Munoz, Correctional Officer (C/O) M. Ornelas,

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C/O M. Hunter, C/O Barella, C/O Thytie, C/O A. Fernandez, Dr. Roska, Nurse E. Laguatan,

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Nurse G. Rodriguez, and three Doe Defendants (nurses).

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Plaintiff’s allegations follow. On March 13, 2014, Plaintiff was temporarily housed at

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NKSP, wearing orthopedic boots, a back brace, and waistchains, which were “medical

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necessities” issued by a physician. (ECF No. 42 at 7 ¶2.) The wearing of handcuffs behind his

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back causes Plaintiff immediate pain. Plaintiff suffers from bipolar disorder, anxiety disorder,

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anti-social disorder, and other major depressive disorders.

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While still in R&R, Plaintiff told C/O Thytie that he had a waist chain chrono and

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needed to see a doctor or mental health clinician. C/O Thytie handcuffed Plaintiff behind his

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back and did not remove the handcuffs despite Plaintiff’s complaints of pain.

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Sgt. Munoz and two nurses arrived and determined that Plaintiff needed to see medical.

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While Plaintiff was being escorted to medical, he complained about Sgt. Munoz’ lack of

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respect towards him and after a verbal exchange, Sgt. Munoz turned the escort around and took

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Plaintiff back to R&R.

Sgts. Munoz and Sanchez conferred, and then Sgt. Sanchez

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aggressively stripped Plaintiff of his shoes, socks, and back brace, took him to a dark hallway,

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and placed him in a standing-room-only cage. Inside the cage, Plaintiff felt helpless and

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depressed. More than once, Plaintiff told Sgt. Sanchez that he needed to talk to someone from

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the mental health department. Plaintiff took off his tee shirt, tied it to the top of the cage and

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began to hang himself, but realized it was impossible because his feet touched the ground. Sgt.

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Sanchez looked at him through a window and laughed at him. After about thirty minutes, C/Os

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Thytie, Sisk [not a defendant], and Barella opened the cage door and cut down the tee shirt.

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C/Os Barella and Fernandez handcuffed Plaintiff again behind his back, applied ankle

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restraints, and took Plaintiff outside. Plaintiff asked Sgt. Sanchez for his shoes, socks, and back

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brace but was told they “could not be found.” (ECF No. 42 at 8 ¶7.) C/Os Barella and

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Fernandez positioned themselves under each of Plaintiff’s shoulders to keep him upright and

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prevent his feet from dragging on the concrete blacktop, but they were unsuccessful because

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Plaintiff’s feet were scraped during part of the escort, causing abrasions and extreme pain.

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At medical, Plaintiff was slammed face-down onto a padded gurney and asked by John

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Doe #2 what medications he took and if he was suicidal. Plaintiff told him, “I need my

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medication, I take 10 mg. Methadone at this time, I want to talk to someone from mental

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health.” (ECF No. 42 at 8 ¶9.) John Doe #2 said, “There are no doctors right now, I’m busy

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right now, I give him medication later!” and all the C/Os laughed at his response, prompting

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Plaintiff to say, “What’s your names, all I want is names.” (ECF No. 42 at 9:2-4.) Plaintiff
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was told to “shut up” and face “down,” and the ankle restraint chain was connected to his

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handcuff. (ECF No. 42 at 9:5-6.) Plaintiff was rolled face down “crunching my vertebrates”

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by defendants Munoz, Sanchez, Fernandez, Rodriguez and John Doe to administrative

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segregation.

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underwear, leaving him naked.

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Plaintiff’s handcuffs. (ECF No. 42 at 9:11.) Plaintiff walked into the cell, the restraints were

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removed, and Plaintiff was left there. Plaintiff was laughed at, felt humiliated, and felt like a

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“slave on the market.” (ECF No. 42 at 9:15-16.) C/O Hunter and Sgt. Munoz had no

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authorization to attach a chain to Plaintiff. Plaintiff is forever scarred psychologically by the

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(ECF No. 42 at 9:7.)

C/O Hunter cut off Plaintiff’s paper jumpsuit and

A “Lanyard/Martin retention chain” was connected to

memory that he was chained like a slave and walked to a cage.

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At about 9:30 p.m., Sgt. Munoz ordered C/O Hunter to confine Plaintiff in a stripped

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cell that had no mattress, no desk, no seat, no toilet paper, and no other hygiene

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accommodations that are provided to new arrivals. This cell was unsanitary with feces and

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urine on the walls and floor. While in the cell, Plaintiff had open untreated abrasions on his

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feet and knees that burned as a result of the unsanitary conditions. The vent blew out cold air

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and the floor and walls were caked with dust. Plaintiff was completely naked and had nothing

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to cover his skin abrasions. Plaintiff believed the walls were closing in and found it hard to

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breathe. He banged on the cell door yelling for help and Nurse Tisdale responded. She asked

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if she could treat Plaintiff but was told “no” by C/Os Hunter and Ornelas. At about 11 p.m.,

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Sgt. Villegas and C/O Albany gave Plaintiff a safety mat, blanket, and vest, and Nurse

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Laguatan gave him medication.

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Jane Doe #1 (nurse) denied Plaintiff a doctor to treat his “chronic pain syndrome” due

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to the right hand fractures that are causing deformity. (ECF No. 42 at 13 ¶27.) Sgt. Sanchez

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interfered with Plaintiff’s medical treatment when he removed Plaintiff’s orthopedic shoes and

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did not return them, instead allowing Plaintiff to receive abrasions from the concrete to his feet

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as the officers carried him to medical. John Doe #2 (nurse) denied Plaintiff the Methadone

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medication prescribed for his “chronic pain syndrome” and did not provide Plaintiff with a

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mental health clinician despite Plaintiff’s request and CCCMS level of care he was labeled.
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(ECF No. 42 at 13 ¶29.) C/Os Hunter and Ornelas refused to allow Nurse Tisdale access to

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Plaintiff by not opening the door so she [Tisdale] could treat his abrasions, ignored Plaintiff’s

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requests for medication, and refused or failed to contact someone from the mental health

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department.

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treatment and refused to sign the form. Dr. Roska conducted a telephonic interview with Nurse

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Laguatan about Plaintiff, but did not conduct a mental health assessment on Plaintiff. Dr.

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Roska’s actions were deliberately indifferent to Plaintiff’s health needs.

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properly evaluated for his risk of suicide.

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Nurses G. Rodriguez and J. Doe #1 falsely reported that Plaintiff refused

Plaintiff was not

Plaintiff requests monetary damages, declaratory relief, costs of suit, injunctive relief,

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and attorney fees.

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V.

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PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). “To the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.” Id.
Excessive Force – Eighth Amendment

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A.

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“The objective component of an Eighth Amendment claim is . . . contextual and

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responsive to contemporary standards of decency.” Hudson v. McMillian, 503 U.S 1, 8 (1992).

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(internal quotation marks and citations omitted). The malicious and sadistic use of force to

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cause harm always violates contemporary standards of decency, regardless of whether or not

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significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir.

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2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de
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minimis injuries)). However, not “every malevolent touch by a prison guard gives rise to a

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federal cause of action.” Id. at 9. “The Eighth Amendment’s prohibition of cruel and unusual

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punishments necessarily excludes from constitutional recognition de minimis uses of physical

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force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.”

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Id. at 9-10 (internal quotations marks and citations omitted).

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“[W]henever prison officials stand accused of using excessive physical force in

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violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically to cause harm.” Id. at 7. “In determining whether the use of force was wanton and

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unnecessary, it may also be proper to evaluate the need for application of force, the relationship

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between that need and the amount of force used, the threat reasonably perceived by the

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responsible officials, and any efforts made to temper the severity of a forceful response.” Id.

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(internal quotation marks and citations omitted). “The absence of serious injury is . . . relevant

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to the Eighth Amendment inquiry, but does not end it.” Id.

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Discussion

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Plaintiff fails to state a claim against any of the Defendants for use of excessive force.

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Plaintiff has not established that he was subject to force of a sort ‘repugnant to the conscience

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of mankind,” or that Defendants were not justified in restraining him, knowing that he had tried

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to hang himself and wanted to meet with mental health staff. There are no allegations that

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Defendants knew Plaintiff had an existing injury or that he was in considerable pain while in

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restraints. Plaintiff’s allegations that he was slammed onto a padded gurney face down do not

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describe “malicious and sadistic” use of force to cause harm. Therefore, Plaintiff fails to state a

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cognizable claim for excessive force in violation of the Eighth Amendment.
Adverse Conditions of Confinement – Eighth Amendment

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B.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

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Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim,

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and only those deprivations denying the minimal civilized measure of life’s necessities are
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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson, 503 U.S. at 9

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(citations and quotations omitted).

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Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials

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knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer v.

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Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The

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circumstances, nature, and duration of the deprivations are critical in determining whether the

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conditions complained of are grave enough to form the basis of a viable Eighth Amendment

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claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “[R]outine discomfort inherent in

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the prison setting” does not rise to the level of a constitutional violation. Id.

In order to state a claim for violation of the Eighth

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Discussion

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Plaintiff’s claim for being carried across a concrete walk, causing him abrasions, does

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not rise to the level of an Eighth Amendment claim. Plaintiff has not described more than de

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minimus injuries. Further, Plaintiff has not alleged that any of the officers were aware that he

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was being injured on the concrete, or shown that any of the officers deliberately disregarded a

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substantial risk that Plaintiff would suffer serious injuries.

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However, the court finds that Plaintiff’s claim that he was left naked in a cold and

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unsanitary cell for more than an hour without clothing, a blanket, or toilet paper states a

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cognizable claim under the Eighth Amendment against Defendant Hunter. “[S]ubjection of a

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prisoner to lack of sanitation that is severe or prolonged can constitute an infliction of pain

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within the meaning of the Eighth Amendment.” Anderson v. Cnty. of Kern, 45 F.3d 1310, 1314

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(9th Cir. 1995); see also Johnson, 217 F.3d at 731-32; Hoptowit v. Spellman, 753 F.2d 779,

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783 (9th Cir. 1985). Here, Plaintiff alleges that he was a mental health patient who had tried to

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hang himself, and he was left naked in cold and unsanitary conditions, without a blanket, toilet

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paper, or his medication. Such conditions are sufficiently grave to form the basis of an Eighth

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Amendment violation. Therefore, Plaintiff states a claim for adverse conditions of confinement

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against Defendant Hunter, in violation of the Eighth Amendment.

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Medical Claim – Eighth Amendment

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C.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)).

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The two-part test for deliberate indifference requires the plaintiff to show (1) “‘a serious

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medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in

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further significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the

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defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations

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omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need, and harm caused by the indifference.” Id. (citing

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McGuckin, 974 F.2d at 1060).

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officials deny, delay or intentionally interfere with medical treatment, or it may be shown by

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the way in which prison physicians provide medical care.” Id. Where a prisoner is alleging a

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delay in receiving medical treatment, the delay must have led to further harm in order for the

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prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at

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1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.

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1985)).

Deliberate indifference may be manifested “when prison

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the

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facts from which the inference could be drawn that a substantial risk of serious harm exists,’

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but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837).

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“‘If a prison official should have been aware of the risk, but was not, then the official has not

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violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v.

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County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of medical

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malpractice or negligence is insufficient to establish a constitutional deprivation under the

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Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a
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constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

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1990)).

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“Under [the deliberate indifference] standard, the prison official must not only ‘be

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aware of the facts from which the inference could be drawn that a substantial risk of serious

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harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511

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U.S. at 837). “‘If a prison official should have been aware of the risk, but was not, then the

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official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting

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Gibson, 290 F.3d at 1188.

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Discussion

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Plaintiff fails to state an Eighth Amendment claim for inadequate medical care, because

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he has not alleged facts showing that any of the Defendants knew he had a serious medical

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need and were deliberately indifferent to a substantial risk of serious harm to Plaintiff. It is not

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enough to make conclusory allegations that Defendants were despicable, knowing, willful,

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sadistic, malicious, and acted with deliberate indifference. Plaintiff has not alleged sufficient

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facts to state a claim for deliberate indifference. Further, Plaintiff has not shown that he

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suffered more than de minimus physical injuries as a result of Defendants’ actions.

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D.

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Plaintiff claims that his rights to due process were violated when he was confined “in a

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Due Process

‘management cell’ with the adjudication of a [Rules Violation Report].” (ECF No. 42 at 25:2.)

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The Due Process Clause itself does not confer on inmates a liberty interest in being

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confined in the general prison population instead of administrative segregation. See Hewitt v.

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Helms, 459 U.S. 460, 466-68 (1983); see also May v. Baldwin, 109 F.3d 557, 565 (9th Cir.

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1997) (convicted inmate’s due process claim fails because he has no liberty interest in freedom

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from state action taken within sentence imposed and Ad-Seg falls within the terms of

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confinement ordinarily contemplated by a sentence) (quotations omitted); Resnick v. Hayes,

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213 F.3d 443, 447 (9th Cir. 2000) (plaintiff’s placement and retention in the SHU was within

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range of confinement normally expected by inmates in relation to ordinary incidents of prison

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life and, therefore, plaintiff had no protected liberty interest in being free from confinement in

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the SHU) (quotations omitted).

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Discussion

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Plaintiff alleges that he spent an hour and a half in a cold and unsanitary management

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cell, without clothing, toilet paper, or a blanket. These allegations do not rise to the level of an

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atypical and significant hardship to establish the existence of a protected liberty interest in

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remaining free from a management cell. A plaintiff must assert a “dramatic departure” from

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the standard conditions of confinement before due process concerns are implicated. Sandin v.

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Conner, 515 U.S. 472, 485–86 (1995); see also Keenan v. Hall, 83 F.3d 1083, 1088–89 (9th

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Cir. 1996). Here, Plaintiff was detained in uncomfortable and unsanitary conditions, but the

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duration of his detention in those circumstances was only an hour and a half, after which time

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he was provided with a safety mat, vest, blanket, and his medication. These allegations are not

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sufficient to show a “dramatic departure” from standard conditions at the prison outside of the

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management cell.

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Moreover, Plaintiff does not allege any specific injury caused by conditions in the

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management cell. The fact that conditions in detention do not mimic those afforded the general

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population or in administrative segregation does not trigger due process concerns. Therefore,

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Plaintiff fails to state a cognizable claim for violation of his rights to due process based on

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detention in the management cell.

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E.

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In addition to money damages, Plaintiff seeks injunctive relief, declaratory relief,

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attorney’s fees, and costs of suit. Any award of equitable relief is governed by the Prison

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Litigation Reform Act, which provides in relevant part, “Prospective relief in any civil action

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with respect to prison conditions shall extend no further than necessary to correct the violation

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of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve

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any prospective relief unless the court finds that such relief is narrowly drawn, extends no

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further than necessary to correct the violation of the Federal right, and is the least intrusive

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means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

Relief Requested

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With regard to declaratory relief, “[a] declaratory judgment, like other forms of

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equitable relief, should be granted only as a matter of judicial discretion, exercised in the public

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interest.”

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“Declaratory relief should be denied when it will neither serve a useful purpose in clarifying

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and settling the legal relations in issue nor terminate the proceedings and afford relief from the

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uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d

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1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a

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verdict in favor of Plaintiff, that verdict will be a finding that Plaintiff=s constitutional rights

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were violated. A declaration that defendant violated Plaintiff’s rights is unnecessary.

Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948).

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With regard to attorney’s fees, “In any action or proceeding to enforce a provision of

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section[] 1983 . . . , the court, in its discretion, may allow the prevailing party . . . reasonable

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attorney’s fees . . . . “ 42 U.S.C. ' 1988(b). Plaintiff’s contention that he is entitled to

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attorney’s fees if he prevails is without merit. Plaintiff is representing himself in this action.

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Because Plaintiff is not represented by an attorney, he is not entitled to recover attorney’s fees

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if he prevails. Gonzales v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987).

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VI.

CONCLUSION AND ORDER

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The Court finds that Plaintiff’s Second Amended Complaint states a cognizable claim

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for adverse conditions of confinement, in violation of the Eighth Amendment, against

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Defendant C/O M. Hunter, for leaving Plaintiff alone and naked, without a blanket or toilet

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paper in a cold and unsanitary room for more than an hour. However, Plaintiff fails to state any

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other claims upon which relief may be granted under § 1983. It does not appear that additional

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facts would cure the deficiencies in Plaintiff’s claims and therefore, Plaintiff shall not be

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granted further leave to amend. The court provided Plaintiff with ample guidance for curing

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the deficiencies in his complaint, and Plaintiff has now filed three complaints.

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Therefore, this case shall now proceed against defendant C/O M. Hunter for subjecting

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Plaintiff to adverse conditions of confinement.

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defendants shall be dismissed from this action based on Plaintiff’s failure to state a claim, and

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the court shall initiate service of process.
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By this order, all remaining claims and

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

This case now proceeds with Plaintiff’s Second Amended Complaint, filed on

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March 13, 2017, against defendant C/O M. Hunter, for subjecting Plaintiff to

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adverse conditions of confinement in violation of the Eighth Amendment, for

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housing Plaintiff in a bare, cold, and unsanitary cell without clothing;

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2.

All other claims and defendants are DISMISSED from this action based on
Plaintiff’s failure to state a claim;

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3.

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Plaintiff’s claims for excessive force, medical care, and due process are
DISMISSED from this action for failure to state a claim, without leave to

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amend;

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4.

Defendants Munoz, Ornelas, Sanchez, Barella, Thytie, Fernandez, Roska,

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Laguatan, Rodriguez, and 3 Doe Defendants (nurses) are DISMISSED from this

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action based on Plaintiff’s failure to state any claims against them;

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5.

The Second Amended Complaint is appropriate for service of process;

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6.

Service is appropriate for defendant CORRECTIONAL OFFICER M.

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HUNTER;

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7.

The Clerk of the Court shall send Plaintiff one (1) USM-285 form, one (1)

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summons, a Notice of Submission of Documents form, an instruction sheet, and

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a copy of the Second Amended Complaint filed on March 13, 2017 (ECF No.

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42);

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8.

Within thirty (30) days from the date of service of this order, Plaintiff shall

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complete the attached Notice of Submission of Documents and submit the

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completed Notice to the court with the following documents:

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a.

Completed summons;

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b.

One completed USM-285 form for defendant Hunter; and

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c.

Two (2) copies of the endorsed Second Amended Complaint filed on

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March 13, 2017;
///
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9.

Plaintiff need not attempt service on defendant and need not request waiver of

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service. Upon receipt of the above-described documents, the court will direct

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the United States Marshal to serve the above-named defendant pursuant to

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Federal Rule of Civil Procedure 4 without payment of costs; and

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10.

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Plaintiff’s failure to comply with this order may result in the dismissal of this
action.

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IT IS SO ORDERED.
Dated:

August 31, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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