Miller v. Kernan

Filing 6

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Amended Complaint due within Thirty (30) Days signed by Magistrate Judge Michael J. Seng on 2/13/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JARROD JOSEPH MILLER,

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Plaintiff,

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CASE No. 1:17-cv-00173-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF No. 1)
SCOTT KERNAN,
THIRTY (30) DAY DEADLINE

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. His complaint is before the Court for
screening.
I.

Screening Requirement
The Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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Plaintiff is incarcerated at the California Substance Abuse Treatment Facility

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(“SATF”), but complains of acts that occurred at San Quentin State Prison, High Desert

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State Prison, and SATF. He names Scott Kernan, Secretary of CDCR, as the sole

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defendant.
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Briefly stated, Plaintiff complains that he is not housed in a single cell. He alleges

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that double celling violates his Fourth, Fifth, Eighth and Fourteenth Amendment rights.

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He alleges that double celling carries general risks of assault and rape; allows others to

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view his private activities such as using the toilet; and is lacking in fairness, kindness,

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and dignity.

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He seeks an injunction placing him on permanent single cell status.
IV.

Analysis

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A.

Linkage

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Under § 1983, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons

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v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,

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588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). Liability may not be imposed on supervisory personnel under the theory of

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respondeat superior, as each defendant is only liable for his or her own misconduct.

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Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable

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if they “participated in or directed the violations, or knew of the violations and failed to act

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to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v.

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Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570

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(9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

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Plaintiff’s complaint does not state any facts regarding Defendant Kernan. Indeed,

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the complaint states very few facts and is comprised largely of citation to and quotation

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from legal authorities. It appears Plaintiff wishes to proceed against Kernan merely

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because he is the Secretary of CDCR. This supervisorial position is not a sufficient basis

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for liability under section 1983. Plaintiff must allege facts to show that Kernan

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participated in a violation of Plaintiff’s rights or knew of a violation but failed to act.

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Alternatively, he must name as defendants the individuals to whom Plaintiff attributes

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such violations and must state facts sufficient to establish liability of the part of these

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individuals.

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Plaintiff will be given leave to amend. The legal standards applicable to what
appear to be his intended claims are provided below.
B.

Exhaustion of Administrative Remedies

Plaintiff states that he has not exhausted administrative remedies and that he is
attempting to exhaust such remedies through this complaint.

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Pursuant to the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought

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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by

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a prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.”

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Prisoners are required to exhaust the available administrative remedies prior to filing

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suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198,

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1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the

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prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S.

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731, 741 (2001), and the exhaustion requirement applies to all suits relating to prison

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life. Porter v. Nussle, 435 U.S. 516, 532 (2002). Because exhaustion must precede the

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filing of the complaint, compliance with § 1997e(a) is not achieved by exhausting

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administrative remedies while the lawsuit is pending. See McKinney, 311 F.3d at 1199.

42 U.S.C. § 1997e(a).

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A prison inmate in California satisfies the administrative exhaustion requirement by

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following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California Code

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of Regulations. In California, inmates “may appeal any policy, decision, action, condition,

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or omission by the department or its staff that the inmate...can demonstrate as having a

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material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit.

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15, § 3084.1(a). The inmate must submit his appeal on the proper form, and is required

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to identify the staff member(s) involved as well as describing their involvement in the

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issue. See Cal. Code Regs. tit. 15, § 3084.2(a). These regulations require the prisoner

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to proceed through three levels of appeal. See Cal. Code Regs. tit. 15, §§ 3084.1(b),
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3084.2, 3084.7. A decision at the third formal level, which is also referred to as the

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director's level, is not appealable and exhausts a prisoner's administrative remedies. See

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id.

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The PLRA, however, does not require exhaustion when circumstances render

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administrative remedies effectively unavailable. Sapp v. Kimbrell, 623 F.3d 813, 822

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(9th Cir. 2010) (citing Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)); see also

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Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (exhaustion not required where prison

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officials failed to give grievance forms to Plaintiff); Dole v. Chandler, 438 F.3d 804, 809,

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811 (7th Cir. 2006) (prison officials’ failure to respond to properly filed grievance made

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exhaustion effectively unavailable).

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“[I]nmates are not required to specially plead or demonstrate exhaustion in their

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complaints.” Jones, 549 U.S. at 216. The PLRA's exhaustion requirement is not

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jurisdictional; it creates an affirmative defense that defendants must plead and prove. Id.

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However, “in those rare cases where a failure to exhaust is clear from the face of the

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complaint,” dismissal for failure to state a claim is appropriate, even at the screening

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stage. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). See also Wyatt v. Terhune,

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315 F.3d 1108, 1120 (9th Cir. 2003) (stating that “[a] prisoner's concession to

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nonexhaustion is a valid ground for dismissal”), overruled on other grounds by Albino,

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747 F.3d at 1166; Sorce v. Garikpaetiti, 2014 WL 2506213 (S.D. Cal. June 2, 2014)

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(relying on Albino and dismissing the complaint on screening because “it is clear from

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the face of [plaintiff's] pleading that he has conceded that he failed to exhaust all

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available administrative remedies . . . before he commenced this action”).

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The instant complaint does not enlighten as to whether Plaintiff has exhausted

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administrative remedies. Plaintiff must exhaust the prison grievance process before he

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can initiate suit. Failure to do so renders his complaint subject to dismissal.

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If Plaintiff chooses to amend, he should allege facts to show that he has exhausted

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administrative remedies, or that his failure to exhaust should be excused because

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administrative remedies were effectively unavailable to him.
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C.

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Plaintiff claims that he was denied single cell status at several different institutions.

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He does not identify the person or persons responsible for these denials, the reasons

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given, or even Plaintiff’s particular need for single cell status. Thus, the Court is unable

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to tell whether claims arising at different institutions are properly joined in this action.

Improper Joinder

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Accordingly, Plaintiff is advised that he may not bring unrelated claims against

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unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley,

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653 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Plaintiff may bring a claim against multiple defendants so long as (1) the claim arises out

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of the same transaction or occurrence, or series of transactions and occurrences, and

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(2) there are common questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v.

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Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of

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North America, 623 F.2d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly

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joined under Rule 20(a) will the Court review the other claims to determine if they may

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be joined under Rule 18(a), which permits the joinder of multiple claims against the same

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party.

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D.

Fourth Amendment

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Plaintiff appears to allege a privacy violation under the Fourth Amendment

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resulting from double celling and the fact that others can see into his cell. The precise

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nature of this claim is unclear. Nonetheless, the general legal standard that would

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appear applicable to such a claim is provided below.

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“A right of privacy in traditional Fourth Amendment terms is fundamentally

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incompatible with the close and continual surveillance of inmates and their cells required

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to ensure institutional security and internal order.” Hudson v. Palmer, 468 U.S. 517, 527-

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cannot be reconciled with the concept of incarceration and the needs and objectives of

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penal institutions.” Id. at 526.

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E.

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It appears Plaintiff intends to bring a Fifth Amendment Due Process claim. “[T]he

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Fifth Amendment’s due process clause applies only to the federal government.” Bingue

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v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). As the only Defendant here is a state

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actor, Plaintiff’s claim will be considered under the Fourteenth Amendment.

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F.

Fifth Amendment

Eighth Amendment
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Failure to Protect

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The Eighth Amendment protects prisoners from inhumane methods of

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punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465

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F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and

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harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation,

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medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct.

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1970 (1994) (quotations omitted). Prison officials have a duty under the Eighth

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Amendment to protect prisoners from violence at the hands of other prisoners because

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being violently assaulted in prison is simply not part of the penalty that criminal offenders

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pay for their offenses against society. Farmer, 511 U.S. at 833-34 (quotation marks

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omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v. Terhune, 413

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F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable under the Eighth

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Amendment only if they demonstrate deliberate indifference to conditions posing a

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substantial risk of serious harm to an inmate; and it is well settled that deliberate

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indifference occurs when an official acted or failed to act despite his knowledge of a

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substantial risk of serious harm. Farmer, 511 U.S. at 834, 841 (quotations omitted);

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Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040.

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2.

Conditions of Confinement

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Plaintiff appears to allege that double celling, in itself, constitutes an

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unconstitutional condition of confinement. However, double-celling, by itself, does not

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violate the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337 (1981).
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Like a failure to protect claim, a conditions of confinement claim has both an

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objective and a subjective component. See Farmer, 511 U.S. at 834. “First, the

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deprivation alleged must be . . . sufficiently serious,” and must “result in the denial of the

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minimal civilized measure of life’s necessities.” Id. “[E]xtreme deprivations are required

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to make out a conditions-of-confinement claim.” Hudson, 503 U.S. at 9. Second, the

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prison official must have acted with “deliberate indifference” to a substantial risk of

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serious harm to the inmate. Farmer, 511 U.S. at 834. “Mere negligence is not sufficient

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to establish liability.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Rather, a

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plaintiff must set forth facts to show that a defendant knew of, but disregarded, an

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excessive risk to inmate safety. Farmer, 511 U.S. at 837. That is, “the official must both

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

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serious harm exists, and he must also draw the inference.” Id.

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G.

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Plaintiff claims that double-celling violates his Due Process rights under the

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Fourteenth Amendment

Fourteenth Amendment.

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Being assigned to a single-cell has not been found to be a right protected by the

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Due Process Clause. See Bell v. Wolfish, 441 U.S. 520, 542 (1979). Generally, prison

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classifications do not give rise to a federal liberty interest. Hernandez v. Johnston, 833

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F.2d 1316, 1318 (9th Cir.1987) (citing Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976)). In

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addition, although “States may under certain circumstances create liberty interests which

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are protected by the Due Process Clause,” those circumstances are generally limited to

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freedom from restraint that “imposes atypical and significant hardship on the inmate in

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relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483-84

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(1995). Thus, it is well-established that inmates do not have a constitutional right to be

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incarcerated at a particular correctional facility or in a particular cell or unit within a

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facility. See Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Rizzo v. Dawson, 778 F.2d

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527, 530 (9th Cir.1985) (“An inmate's liberty interests are sufficiently extinguished by his

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conviction so that the state may change his place of confinement even though the
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degree of confinement may be different and prison life may be more disagreeable in one

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institution than in another.”)

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This allegation fails to state a claim.
V.

Conclusion and Order

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Plaintiff’s complaint does not state a cognizable claim for relief. Although these

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defects do not appear capable of being cured through amendment, the Court

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nonetheless will grant Plaintiff an opportunity to file an amended complaint. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, he must

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demonstrate that the alleged acts resulted in a deprivation of his constitutional rights.

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Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a

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claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)).

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Plaintiff must also demonstrate that each named Defendant personally participated in a

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff should carefully read this screening order and focus his efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1. Plaintiff’s complaint is dismissed for failure to state a claim upon which relief

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may be granted;
2. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form and a

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copy of his complaint, filed February 9, 2017;

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3. Within thirty (30) days from the date of service of this order, Plaintiff must file a

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first amended complaint curing the deficiencies identified by the Court in this

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order or a notice of voluntary dismissal; and

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4. If Plaintiff fails to file an amended complaint or notice of voluntary dismissal,

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the Court will recommend the action be dismissed, with prejudice, for failure to

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comply with a court order and failure to state a claim, subject to the “three

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strikes” provision set forth in in 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:

February 13, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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