Hernandez v. Pedreio, et al.

Filing 10

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND for Failure to State a Cognizable Claim 1 , signed by Magistrate Judge Sheila K. Oberto on 1/27/17: 21-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 Case No. 1:16-cv-00027-DAD-SKO (PC) ANGEL HERNANDEZ, 10 ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM Plaintiff, 11 v. 12 PEDERIO, et al., 13 (Doc. 1) TWENTY-ONE (21) DAY DEADLINE Defendants. 14 INTRODUCTION 15 16 A. Background 17 Plaintiff, Angel Hernandez, is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state 19 any cognizable claims upon which relief may be granted. Thus, the Complaint is DISMISSED 20 with leave to file a first amended complaint. 21 B. Screening Requirement and Standard 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 24 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 26 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 27 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 28 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 1 1 2 3 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 4 "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited 5 exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 6 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain 7 statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). 8 "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 9 the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. 10 Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 11 when a pleading says too little -- the baseline threshold of factual and legal allegations required 12 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 13 129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much. 14 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e 15 have never held -- and we know of no authority supporting the proposition -- that a pleading may 16 be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also 17 McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, 18 and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 19 impose unfair burdens on litigants and judges”). 20 Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a 21 cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 22 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 23 Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is 24 plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 25 allegations are accepted as true, but legal conclusions are not. Iqbal, at 678; see also Moss v. U.S. 26 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 27 28 While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 2 1 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 2 However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze 3 v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may 4 not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit 5 Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 6 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal- 7 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 8 omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 9 “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 10 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short 11 12 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), 13 when the opportunity to correct the pleadings has been afforded and there has been no 14 modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir. 15 2013). 16 If he chooses to file a first amended complaint, Plaintiff should make it as concise as 17 possible. He should simply state which of his constitutional rights he feels were violated by each 18 Defendant and its factual basis. Plaintiff need not and should not cite legal authority for his 19 claims in a first amended complaint. His factual allegations are accepted as true and need not be 20 bolstered by legal authority at the pleading stage. If Plaintiff files a first amended complaint, his 21 factual allegations will be screened under the legal standards and authorities stated in this order. 22 23 2. Federal Rule of Civil Procedure 18(a) & 20(a)(2) Federal Rule of Civil Procedure 18(a) allows a party asserting a claim to relief as an 24 original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as 25 alternate claims, as many claims as the party has against an opposing party. However, Plaintiff 26 may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 27 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 28 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the 3 1 claim(s) arise out of the same transaction or occurrence, or series of transactions and occurrences, 2 and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 3 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 4 623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) 5 will the Court review the extraneous claims to determine if they may be joined under Rule 18(a), 6 which permits the joinder of multiple claims against the same party. 7 The Court must be able to discern a relationship between Plaintiff’s claims or there must 8 be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of 9 constitutional violation (i.e. deliberate indifference by different actors on different dates, under 10 different factual events) does not necessarily make claims related for purposes of Rule 18(a). All 11 claims that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. Plaintiff is 12 cautioned that if he fails to elect which category of claims to pursue and his amended complaint 13 sets forth improperly joined claims, the Court will determine which claims may proceed and 14 which claims will be dismissed. Visendi v. Bank of America, N.A., 733 F3d 863, 870-71 (9th Cir. 15 2013). Whether any claims will be subject to severance by future order will depend on the 16 viability of the claims pled in the amended complaint. 17 18 3. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 19 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 20 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 21 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 22 substantive rights, but merely provides a method for vindicating federal rights elsewhere 23 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 24 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 25 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 26 or causal connection, between each defendant’s actions or omissions and a violation of his federal 27 rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); 28 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 4 1 Plaintiff’s allegations must demonstrate that each defendant personally participated in the 2 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 3 presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. 4 at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 5 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 6 F.3d at 969. However, prisoners proceeding pro se in civil rights actions are still entitled to have 7 their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d 8 at 342. 4. 9 Use of Exhibits Plaintiff attached a number of exhibit pages to the Complaint, but fails to refer to them in 10 11 his allegations. The Court is not a repository for the parties’ evidence. Originals, or copies of 12 evidence (i.e., prison or medical records, witness affidavits, etc.) need not be submitted until the 13 course of litigation brings the evidence into question (for example, on a motion for summary 14 judgment, at trial, or when requested by the Court). If Plaintiff attaches exhibits to his amended 15 complaint, each exhibit must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example, 16 Plaintiff must state Asee Exhibit A@ to direct the Court to the specific exhibit Plaintiff is 17 referencing. Further, if the exhibit consists of more than one page, Plaintiff must reference the 18 specific page of the exhibit (i.e. “See Exhibit A, page 3”). DISCUSSION 19 Plaintiff’s Allegations 20 A. 21 Plaintiff is currently incarcerated at California State Prison (CSP-Cor) in Corcoran, 22 California, but complains of events that occurred while he was held as a pretrial detainee at the 23 Kings County Jail (“KCJ”) in Hanford, California. Plaintiff names KCJ Commander, Kimberly 24 Pedreiro; Assistant Sheriff, Robert Jack Thayer; Sergeant S. Henderson; the Kings County Board 25 of Supervisors; and Kings County Superior Court Judge Donna Tarter as Defendants in this 26 action. 27 28 Plaintiff alleges that, on April 30, 2014, upon returning from a court appearance, Sgt. Henderson placed Plaintiff in Administrative Segregation (“Ad-Seg”) at KCJ. Plaintiff asked 5 1 why and Sgt. Henderson told him it was done at CMDR Pedreio’s direction. Plaintiff was held in 2 KCJ’s Ad-Seg for over twenty months, despite filing numerous grievances protesting that he was 3 placed in Ad-Seg without notice and a hearing. 4 Plaintiff alleges that, since he was placed in Ad-Seg without notice and a hearing, his 5 rights to due process, free speech, freedom of association, and freedom from cruel and unusual 6 punishment were violated. 7 Plaintiff has not stated any cognizable claims, but the Court provides the pleading 8 standards and legal standards for the claims Plaintiff delineated and opportunity to file a first 9 amended complaint. 10 B. 1. 11 12 Legal Standards Due Process The Due Process Clause protects Plaintiff against the deprivation of liberty without the 13 procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 14 221, 125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at stake. 15 Wilkinson, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause itself or 16 from state law. Id. The Due Process Clause does not confer on inmates a liberty interest in 17 avoiding more adverse conditions of confinement, and under state law, the existence of a liberty 18 interest created by prison regulations is determined by focusing on the nature of the condition of 19 confinement at issue. Id. at 221-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 20 2293 (1995)) (quotation marks omitted). Liberty interests created by prison regulations are 21 generally limited to freedom from restraint which imposes atypical and significant hardship on 22 the inmate in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 221 (citing 23 Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th 24 Cir. 2007). 25 “It is plain, that the transfer of an inmate to less amenable and more restrictive quarters for 26 nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison 27 sentence. Accordingly, administrative segregation is the sort of confinement that inmates should 28 reasonably anticipate receiving at some point in their incarceration.” Toussaint v. McCarthy, 801 6 1 F.2d 1080, 1091-92 (9th Cir.1986). With respect to placement in administrative segregation, due 2 process requires only that prison officials hold an informal nonadversary hearing within a 3 reasonable time after the prisoner is segregated, inform the prisoner of the charges against him or 4 the reasons for considering segregation, and allow the prisoner to present his views. Id., 801 F.2d 5 at 1100-01 (quotation marks omitted), abrogated in part on other grounds, Sandin v. Conner, 515 6 U.S. 472, 115 S.Ct. 2293 (1995); accord Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003). 7 Prisoners are not entitled to detailed written notice of charges, representation by counsel or 8 counsel substitute, an opportunity to present witnesses, or a written decision describing the 9 reasons for placing the prisoner in administrative segregation. Toussaint, 801 F.2d at 1100-01 10 (quotation marks omitted). Further, due process does not require disclosure of the identity of any 11 person providing information leading to the placement of a prisoner in administrative segregation. 12 Id. (quotation marks omitted). 13 However, prisoners may be housed in Administrative Segregation to protect them from 14 other inmates, to protect other inmates from the segregated prisoner, or as here, pending 15 investigation of disciplinary charges, transfer, or re-classification. See Hewitt v. Helms, 459 U.S. 16 460, 468 (1983) B overruled in part on other grounds by Sandin (finding no liberty interest in 17 freedom from state action taken within the sentence implied). 18 Here, Plaintiff’s exhibits show that he was placed in Ad-Seg pending investigation into 19 criminal charges (see Doc. 1, pp. 17-18) and his allegations acknowledge that he was criminally 20 charged in Kings County Superior Court (case no. 14CM1997) for conspiracy surrounding an 21 attempted murder of correctional staff (see id., at p. 5). Under these circumstances, Plaintiff had 22 no liberty interest in remaining in the general population and thus cannot state a cognizable claim. 23 Further, A[a]n inmate does not retain rights inconsistent with proper incarceration,@ and 24 Afreedom of association is among the rights least compatible with incarceration.@ Overton v. 25 Bazzetta, 539 U.S. 126, 131 (2003). Accordingly, A[s]ome curtailment of that freedom must be 26 expected in the prison context.@ Id. Since Plaintiff does not have a cognizable claim based on his 27 placement in Ad-Seg, a concomitant curtailment of his right to speak and associate with inmates 28 in the general population while he is was confined in Ad-Seg is also not cognizable. 7 1 2 3. Younger Abstention Plaintiff’s claims pertaining to his Ad-Seg placement are likewise not cognizable under 3 § 1983 if the release of Plaintiff's legal materials to prosecutors resulted in criminal charges, for 4 which proceedings are ongoing. See Younger v. Harris, 401 U.S. 37, 43-54, 91 S.Ct. 746 (1971) 5 (reaffirming the long-standing principle that federal courts sitting in equity cannot, absent 6 exceptional circumstances, enjoin pending state criminal proceedings). “Younger abstention is a 7 jurisprudential doctrine rooted in overlapping principles of equity, comity, and federalism.” San 8 Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of San Jose, 546 9 F.3d 1087, 1092 (9th Cir. 2008) citing Steffel v. Thompson, 415 U.S. 452, 460-73, 94 S.Ct. 1209 10 (1974) (explaining the history and purposes of the doctrine); Younger, 401 U.S. at 43-49 11 (discussing the jurisprudential background of abstention); Gilbertson v. Albright, 381 F.3d 965, 12 970–75 (9th Cir.2004) (en banc) (tracing the Supreme Court's application of the doctrine). 13 Federal courts “must abstain under Younger if four requirements are met: (1) a state- 14 initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the 15 federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding; 16 and (4) the federal court action would enjoin the proceeding or have the practical effect of doing 17 so, i.e., would interfere with the state proceeding in a way that Younger disapproves.” Id. citing 18 Gilbertson, 381 F.3d at 978; AmerisourceBergen Corp. v. Roden (“ABC ”), 495 F.3d 1143, 1149 19 (9th Cir.2007); see also Green v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir.2001) (en banc) 20 (“[I]n addressing Younger abstention issues, district courts must exercise jurisdiction except when 21 specific legal standards are met, and may not exercise jurisdiction when those standards are met; 22 there is no discretion vested in the district courts to do otherwise.”), overruled in other part by 23 Gilbertson, 381 F.3d 965. “An exception to that general rule exists if there is a ‘showing of bad 24 faith, harassment, or some other extraordinary circumstance that would make abstention 25 inappropriate.’ ” Id., quoting Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 26 U.S. 423, 435, 102 S.Ct. 2515 (1982). 27 The criminal action against Plaintiff in Kern County Superior Court (case no. 28 8 1 14CM1997), for which Plaintiff was placed in Ad-Seg is ongoing.1 There are few if any more 2 important state interests than enforcing its criminal laws. Plaintiff states no allegations to show 3 that he would be barred from litigating federal constitutional issues in the state proceeding and 4 this Court finds none. A finding in Plaintiff’s favor in this action would have the practical effect 5 of undermining the State’s criminal action against Plaintiff since it would necessarily hinge on the 6 propriety of the investigation into the criminal charges against Plaintiff -- which Younger 7 disapproves. Plaintiff fails to state any allegations to suggest, let alone show, that bad faith, 8 harassment, or other extraordinary circumstance exists to make abstention inappropriate. Thus, 9 this Court must abstain from deciding whether Plaintiff’s claims regarding his placement in Ad- 10 Seg under Younger. 4. 11 Cruel & Unusual Punishment The Eighth Amendment protects prisoners from inhumane methods of punishment and 12 13 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. 14 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison 15 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 16 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 17 2000) (quotation marks and citations omitted). To establish a violation of the Eighth 18 Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .” 19 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. 20 County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). The deliberate indifference standard involves both an objective and a subjective prong. 21 22 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834. 23 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 24 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). Objectively, extreme deprivations are required to make out a conditions of confinement 25 26 claim and only those deprivations denying the minimal civilized measure of life’s necessities are 27 1 28 Judicial notice is taken of the Kings County Superior Court record in case number 14CM1997. Fed.Rules Evid.Rule 201, 28 U.S.C.A.; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (2012). 9 1 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 2 503 U.S. 1, 9 (1992). Although the Constitution “ ‘does not mandate comfortable prisons,’ ” 3 Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 349), “inmates are 4 entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly 5 over a lengthy course of time,” Howard, 887 F.2d at 137. 6 Some conditions of confinement may establish an Eighth Amendment violation “in 7 combination” when each would not do so alone, but only when they have a mutually enforcing 8 effect that produces the deprivation of a single, identifiable human need such as food, warmth, or 9 exercise -- for example, a low cell temperature at night combined with a failure to issue blankets. 10 Wilson, 501 U.S. at 304-05(comparing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) 11 (outdoor exercise required when prisoners otherwise confined in small cells almost 24 hours per 12 day), with Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980) (outdoor exercise not required when 13 prisoners had regular access to dayroom)). To say that some prison conditions may interact in 14 this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth 15 Amendment purposes. Id. Amorphous “overall conditions” cannot rise to the level of cruel and 16 unusual punishment when no specific deprivation of a single human need exists. Id. Further, 17 temporarily unconstitutional conditions of confinement do not necessarily rise to the level of 18 constitutional violations. See Anderson, 45 F.3d 1310, ref. Hoptowit, 682 F.2d at 1258 19 (abrogated on other grounds by Sandin, 515 U.S. 472 (in evaluating challenges to conditions of 20 confinement, length of time the prisoner must go without basic human needs may be 21 considered)). Thus, Plaintiff’s factual allegations as to the conditions to which he was subjected 22 during his confinement on management cell/ASU must be evaluated to determine whether they 23 demonstrate a deprivation of a basic human need individually or in combination. 24 Plaintiff alleges that he was in Ad-Seg for “20 plus months” and that while in Ad-Seg, he 25 was confined to his cell 23 hours a day; the one hour out of his cell was for dayroom, outside 26 yard, phone call, shower, and cell cleaning. (Doc. 1, p. 6.) Plaintiff alleges this is insufficient 27 and that every day he should have 30 minutes of fresh air, 10 minutes to shower, 20 minutes for a 28 phone call, 10-15 minutes to clean his cell, and 30 minutes to watch television. (Id.) Plaintiff 10 1 alleges that he is not allowed to program with other inmates, any conversation is like a yelling 2 contest between Plaintiff, the T.V., and other inmates. (Id.) Plaintiff complains that his cell has 3 no window and that the exercise yard is a concrete yard a little bigger than a cell that is covered 4 by a black tarp such that he does not receive any direct sunlight and they are “not allowed fresh 5 air during rainy days.” (Id.) Plaintiff alleges that he is held with inmates who have mental 6 problems causing them to throw feces, walk around covered in feces, put their urine on the 7 phones and tables, dig through garbage cans, defecate in the showers, and scream at all time of 8 the day. (Id.) Plaintiff alleges that he has been subjected to hot and cold temperatures in his cell, 9 including cold showers and that his “medical needs have been an issue.” (Id.) Plaintiff also 10 alleges that in Ad-Seg, he cannot go to church, cannot get a job, and cannot attend programs, 11 school, drug & alcohol classes, his jumpsuit is a different color, he eats in his cell, and all of his 12 visits are non-contact via a T.V. screen. (Id.) These living conditions are certainly not desirable. However, they do not show 13 14 deprivation of a basic human necessity, let alone that any of the named defendants were 15 subjectively aware of any such deprivation and failed to take corrective action. Plaintiff thus fails 16 to state a cognizable claim under the Eighth Amendment. 5. 17 Immunity a. 18 Judicial Immunity Judge Tarter is entitled to absolute immunity from damages for judicial acts, absent very 19 20 limited exceptions not presented here. Cleavinger v. Saxner, 474 U.S. 193, 199-200, 106 S.Ct. 21 496 (1985); Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099 (1978); Crowe v. County of 22 San Diego, 608 F.3d 406, 430 (9th Cir. 2010); Simmons v. Sacramento County Superior Court, 23 318 F.3d 1156, 1161 (9th Cir. 2003); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 24 1988). 25 b. Quasi-judicial Immunity 26 The Supreme Court has extended such absolute judicial immunity to other public officials 27 who perform activities that are “functionally comparable” to those of judges. Butz v. Economou, 28 438 U.S. 478, 513, 98 S.Ct. 2894 (1978); see also Sellars v. Procunier, 641 F.2d 1295, 1303 (9th 11 1 Cir.1981) (“If an official’s role is functionally equivalent to that of a judge, the official will be 2 granted equivalent immunity.”). Such activities are sometimes referred to as “quasi-judicial.” 3 See, e.g., Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 984 (1976). “Absolute immunity 4 flows not from rank or title . . . but from the nature of the responsibilities of the individual 5 official.” Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S.Ct. 496 (1985). 6 The Court has outlined a list of factors to consider in determining whether an official's 7 functions are quasi-judicial in nature: (1) the need to insulate the official from harassment or 8 intimidation; (2) the presence of procedural safeguards to reduce unconstitutional conduct; (3) 9 insulation from political influence; (4) the importance of precedent in the official's decision; (5) 10 the adversary nature of the process; and (6) whether error may be corrected on appeal. Id. at 202, 11 106 S.Ct. 496 (citing Butz, 438 U.S. at 512, 98 S.Ct. 2894). This list of factors is non-exhaustive, 12 however, and an official need not satisfy every factor to be entitled to absolute quasi-judicial 13 immunity. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir.2004) (noting that 14 the Butz factors are “nonexclusive”). 15 The Kings County Board of Supervisors is entitled to quasi-judicial immunity for their 16 ruling on the claim Plaintiff filed under the California Tort Claims Act. There is a great need to 17 protect public official from harassment or intimidation; unconstitutional conduct and error are 18 subject to review via the courts; and, though their decisions do not necessarily equate to 19 precedent, their decision is the beginning step in an adversarial process between the municipal 20 entity they represent and the injured party. Thus, Plaintiff is unable to state a cognizable claim 21 against the Kings County Board of Supervisors. 22 23 6. Inmate Grievances Plaintiff appears to grieve the processing and reviewing of his grievances pertaining to his 24 placement in Ad-Seg at KCJ. However, he is not entitled to a specific grievance procedure. 25 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals 26 because no entitlement to a specific grievance procedure), citing Mann v. Adams, 855 F.2d 639, 27 640 (9th Cir. 1988). A[A prison] grievance procedure is a procedural right only, it does not confer 28 any substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) 12 1 accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Massey v. Helman, 259 2 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on 3 prisoner). AHence, it does not give rise to a protected liberty interest requiring the procedural 4 protections envisioned by the Fourteenth Amendment.@ Azeez v. DeRobertis, 568 F. Supp. at 10; 5 Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). 6 Actions in reviewing prisoner=s administrative appeal generally cannot serve as the basis 7 for liability under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who 8 knows about a violation of the Constitution, and fails to cure it, has violated the Constitution 9 himself is not correct. AOnly persons who cause or participate in the violations are responsible. 10 Ruling against a prisoner on an administrative complaint does not cause or contribute to the 11 violation.@ Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507 12 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance 13 v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996). 14 Plaintiff may "state a claim against a supervisor for deliberate indifference based upon the 15 supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her 16 subordinates." Starr v. Baca, 652 F.3d 1202, 1207 (2011). However, for the reasons previously 17 discussed, Plaintiff fails to state a claim showing unconstitutional conduct occurred by 18 subordinates for their supervisor’s knowledge and acquiescence to be actionable. 19 20 7. Injunctive Relief Among other forms of relief, Plaintiff requests to be allowed more time out of his cell. As 21 a threshold matter, Plaintiff must establish that he has standing to seek preliminary injunctive 22 relief. Summers v. Earth Island Institute, 555 U.S. 488, 493-94, 129 S.Ct. 1142, 1149 (2009); 23 Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). Plaintiff Amust show that he is 24 under threat of suffering an >injury in fact= that is concrete and particularized; the threat must be 25 actual and imminent, not conjectural or hypothetical; it must be fairly traceable to challenged 26 conduct of the defendant; and it must be likely that a favorable judicial decision will prevent or 27 redress the injury.@ Summers, 555 U.S. at 493 (citation and quotation marks omitted); Mayfield, 28 599 F.3d at 969. 13 The claims which Plaintiff alleges in this action arise from events which occurred at KCJ. 1 2 Plaintiff is currently housed at CSP-Cor. Accordingly, Plaintiff lacks standing to seek relief 3 directed at remedying his current conditions of confinement at KCJ. Further his requests for 4 injunctive relief to remedy his conditions of confinement at KCJ were rendered moot upon his 5 transfer to CSP-Cor. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 6 948 F.2d 517, 519 (9th Cir. 1991). Thus, Plaintiff=s request for preliminary relief is dismissed. ORDER 7 8 For the reasons set forth above, Plaintiff's Complaint is dismissed with leave to file a first 9 amended complaint within twenty-one (21) days. Alternatively, if Plaintiff no longer desires to 10 pursue this action, or realizes that he cannot state a cognizable claim, he may file a voluntary 11 dismissal in that same time. If Plaintiff chooses to file a first amended complaint, it shall not 12 exceed twenty-five (25) pages, exclusive of exhibits. If Plaintiff needs an extension of time to 13 comply with this order, Plaintiff shall file a motion seeking an extension of time no later than 14 twenty-one (21) days from the date of service of this order. 15 Plaintiff must demonstrate in any first amended complaint how the conditions complained 16 of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 17 227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named 18 defendant is involved. There can be no liability under section 1983 unless there is some 19 affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo 20 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 21 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 22 Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and 23 plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon 24 which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 25 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be 26 [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 27 (2007) (citations omitted). 28 // 14 Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v. 1 2 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 3 2012) (en banc), and must be "complete in itself without reference to the prior or superceded 4 pleading," Local Rule 220. The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 5 6 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 7 may not change the nature of this suit by adding new, unrelated claims in his first amended 8 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). Based on the foregoing, it is HEREBY ORDERED that: 9 10 1. Plaintiff's Complaint is dismissed, with leave to amend; 11 2. The Clerk's Office shall send Plaintiff a civil rights complaint form; 12 3. Within twenty-one (21) days from the date of service of this order, Plaintiff must 13 file a first amended complaint curing the deficiencies identified by the Court in 14 this order, or a notice of voluntary dismissal; and 4. 15 If Plaintiff fails to comply with this order, the Court will recommend this 16 action be dismissed for failure to obey a court order and for failure to state a 17 cognizable claim. 18 19 20 21 IT IS SO ORDERED. Dated: January 27, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 15 .

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