Dillingham v. Emerson

Filing 34

FINDINGS and RECOMMENDATIONS That Certain Defendants and Claims Be Dismissed for the Failure to State a Cognizable Claim 10 , 30 , 33 , signed by Magistrate Judge Stanley A. Boone on 9/19/2018: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY DILLINGHAM,
Plaintiff,

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v.
N. EMERSON, et al.,
Defendants.

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Case No.: 1:18-cv-00507-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS THAT
CERTAIN DEFENDANTS AND CLAIMS BE
DISMISSED FOR THE FAILURE TO STATE A
COGNIZABLE CLAIM
(ECF Nos. 10, 30, 33)
THIRTY (30) DAY DEADLINE

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I.

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INTRODUCTION

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Plaintiff Jerry Dillingham is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. §§ 1983, 1985 and 1986. This matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On July 26, 2018, the Court screened Plaintiff’s amended complaint and found that Plaintiff

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stated cognizable a claim against Defendants Emerson, Wilson, Wescoat, Velasco, Martines, and

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Loflen, in their individual capacities, for conditions of confinement in violation of the Eighth

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Amendment. (ECF No. 30.) The Court found that Plaintiff failed to state any other cognizable claims.

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Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S.

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544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The Court ordered Plaintiff to

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either file a second amended complaint curing the deficiencies identified or notify the Court that he is

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willing to proceed only on his cognizable claims.
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On August 24, 2018, Plaintiff moved for an extension of time to comply with the screening

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order. (ECF No. 30.) On August 27, 2018, that request was granted, and the deadline was extended

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by thirty (30) days. (ECF No. 32.)

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On September 17, 2018, Plaintiff filed a notice stating that he stands on his pleading. (ECF

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No. 33.) Therefore, the Court will recommend that this case proceed only on the cognizable claim

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identified above. The Court’s reasoning is explained below. See Lopez v. Smith, 203 F.3d 1122,

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1127 (9th Cir. 2007) (court should identify the deficiencies in the complaint and grant Plaintiff

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opportunity to cure deficiencies prior to dismissal).

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II.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,

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which requires sufficient factual detail to allow the Court to reasonably infer that each named

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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not
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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying

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the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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III.

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COMPLAINT ALLEGATIONS

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation

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(“CDCR”), and names as defendants N. Emerson, S. Martines, E. Wilson, S. Wescoat, D. Valesco, D.

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Ibarra, Garza, D. Smith, Loflen (also possibly known as “Lofflen”), S. Marsh, John Doe 1 and 2,

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correctional officers employed at the California Substance Abuse Treatment Facility and State Prison

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at Corcoran, California (“CSATF”). Plaintiff also names as defendants Stu Sherman, Warden of

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CSATF, and Scott Kernan, Secretary of CDCR. Plaintiff also names as defendants J. Zamor, J.

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Corral, S. Morelock, Olga Rodriguez, C. Ramos, who were Inmate Appeals Office staff.

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Plaintiff alleges that he is a dependent adult with a disability under the Americans with

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Disabilities Act, who was incarcerated at CSATF at all times mentioned in the amended complaint.

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Plaintiff alleges that he was housed in a dangerous cell beginning on January 21, 2016, which

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suffered from water leaks due to rain and a lack of hot running water for some time. Plaintiff had

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injuries and illnesses as a result. Plaintiff generally alleges that prison officials were aware of the

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uninhabitable health and safety conditions and hazardous cell living conditions for over two years.

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IV.

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DISCUSSION

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A.

Conditions of Confinement

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Plaintiff’s “Claim One” is for conditions of confinement in violation of the Eight Amendment.

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To prove a violation of the Eighth Amendment the plaintiff must “objectively show that he was

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deprived of something ‘sufficiently serious,’ and make a subjective showing that the deprivation

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occurred with deliberate indifference to the inmate’s health or safety.” Thomas v. Ponder, 611 F.3d

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1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate indifference requires a showing that “prison

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officials were aware of a “substantial risk of serious harm” to an inmate’s health or safety, and that

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there was no “reasonable justification for the deprivation, in spite of that risk.” Id. (quoting Farmer v.

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Brennan, 511 U.S. 825, 837, 844 (1994)). Officials may be aware of the risk because it is obvious.
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Thomas, 611 F.3d at 1152. An inmate is challenging the conditions of confinement must show there

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was a deprivation “sufficiently serious” to form the basis of a violation, and “the prison official acted

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“with a sufficiently culpable state of mind.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006)

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(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The circumstances, nature, and duration of the

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deprivations are critical in determining whether the conditions complained of are grave enough to

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form the basis of a viable Eighth Amendment claim.” Johnson, 217 F.3d at 731.

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At the pleading stage, the Court finds that Plaintiff has stated a claim against defendants

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Emerson, Wilson, Wescoat, Velasco, Martines, and Loflen, in their individual capacities. Plaintiff has

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alleged that each of these defendants did security counts that included Plaintiff’s cell, and walked

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around puddles of water in Plaintiff’s housing unit. Plaintiff also verbally complained to these

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defendants of hazardous conditions. According to Plaintiff, his cell had obvious water running down

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his cell walls with mold in the water, puddles of rain water pooling on the floor and in electrical light

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fixtures that posed a risk of electrocution, and cell walls that visibly showed years of built-up mold, all

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posing obvious, serious health and safety risks. Plaintiff also alleges that he suffered illnesses and

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injuries from the cell conditions.

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However, Plaintiff has not stated sufficient facts to show a cognizable claim against any other

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defendants, nor has he pleaded sufficient facts to show a cognizable claim regarding the lack of

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running hot water in his cell for about twenty-one (21) days. Plaintiff has pleaded that the lack of

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running hot water prevented him from washing himself and maintaining hygiene, but he did not plead

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facts showing that prison officials were aware of these conditions. He has also pleaded some general,

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conclusory allegations that it was widely-known by officials that his cell conditions were hazardous,

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or that policies and procedures, if followed, would have or should have made officials aware of his

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cell conditions. Those generalized, conclusory statements are not sufficient to show the state of mind

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necessary to state a claim here. Facts showing actual awareness must be sufficiently stated.

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Plaintiff also has not stated sufficient facts for a claim against Captain Marsh. Plaintiff has

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pleaded that Captain Marsh told Plaintiff that prison “administration” has been aware of water leakage

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from rain problems for over two years in Plaintiff’s cell. This is sufficient to reasonably infer that

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Captain Marsh himself was aware of some type of water leakage. However, Plaintiff has not pleaded
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facts showing that Captain Marsh was aware that the water leakage caused conditions posing a

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substantial risk of serious harm.

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B.

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Plaintiff also seeks to bring, in his “Claim Two” conditions of confinement in violation of the

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Deliberate Indifference to Safety

Fourteenth and Eighth Amendment, apparently as an alternate theory of liability.

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As a convicted prisoner, Plaintiff’s constitutional claims arise from the Eighth Amendment’s

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prohibition against cruel and unusual punishment, not the Fourteenth Amendment’s Due Process

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clause. See Shorter v. Baca, ---F.3d---, No. 16-56051, 2018 WL 3421091, at *5 (9th Cir. July 16,

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2018) (citing cases). Therefore, he has no cognizable Fourteenth Amendment claim, and it should be

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dismissed.

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C.

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Plaintiff asserts as his “Claim Three” a conspiracy claim. A conspiracy claim brought under

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Section 1983 requires proof of “an agreement or meeting of the minds to violate constitutional rights,”

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Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting United Steel Workers of Am. v. Phelps

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Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989) (citation omitted) ), and an actual deprivation of

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constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v.

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Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989) ). “To be liable, each participant in

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the conspiracy need not know the exact details of the plan, but each participant must at least share the

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common objective of the conspiracy.” Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865

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F.2d at 1541).

Conspiracy

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Plaintiff here only makes conclusory allegations concerning his conspiracy allegations, stating

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that defendants conspired to maintain uninhabitable cell conditions and to cover it up, but does not

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allege factual allegations in support. Plaintiff’s conclusion that the knowledge of his inadequate

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housing by each individual defendant must be the result of a common conspiracy is insufficient to

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state a claim for conspiracy. Plaintiff also states that because two other prisoners were given a cell

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move but he was not, this must result from a conspiracy, but such bare assertions are insufficient to

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state a conspiracy claim.

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D.

Action for Neglect to Prevent

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In Plaintiff’s “Claim Four,” he asserts a claim for neglect to prevent in violation of 42 U.S.C. §

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1986. “Section 1986 provides a cause of action against anyone who has ‘knowledge that any of the

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wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed,

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and having the power to prevent or aid in preventing the commission of the same, neglects or refuses

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so to do.’” Park v. City of Atlanta, 120 F.3d 1157, 1159–60 (11th Cir. 1997) (quoting 42 U.S.C. §

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1986). “Section 1986 claims are therefore derivative of § 1985 violations.” Id. “The text of § 1986

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requires the existence of a § 1985 conspiracy.” Id. at 1160.

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As Plaintiff has not stated any cognizable conspiracy claim, he cannot state any claim for

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knowledge of and neglecting to prevent the conspiracy. Stephens v. Multnomah Cty. by & through

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Judicial Dep’t, 678 F. App’x 517, 519 (9th Cir. 2017) (“A claim can be stated under section 1986 only

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if the complaint contains a valid claim under section 1985.”) (quoting Karim-Panahi v. L.A. Police

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Dep’t, 839 F.2d 621, 626 (9th Cir. 1988)

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E.

Supervisory Liability

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In his “Claim Five,” Plaintiff names as defendants Warden Sherman, Secretary Kernan, and

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certain other defendants, and sues them based on their supervisory positions. Supervisory personnel

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may not be held liable under section 1983 for the actions of subordinate employees based on

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respondeat superior, or vicarious liability. Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013);

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accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey

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v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc). “A supervisor may be liable

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only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a sufficient

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causal connection between the supervisor’s wrongful conduct and the constitutional violation.”

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Crowley, 734 F.3d at 977 (citing Snow v. McDaniel, 681 F.3d 978, 989 (9th Cir. 2012) (internal

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quotation marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the

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latter theory, supervisory liability exists even without overt personal participation in the offensive act

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if supervisory officials implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977

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(citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).
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Here, Plaintiff fails to allege facts demonstrating that Warden Sherman, Secretary Kernan, or

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the other supervisor defendants (other than as stated in Section IV.A. of this order) directly

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participated in the violations, or acquiesced in the conduct of officers who violated his rights.

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Plaintiff’s vague and conclusory statement that officials were aware of his unconstitutional conditions

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of confinement, or that the conditions were caused by a “policy,” are insufficient to give rise to a

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constitutional violation. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Plaintiff

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makes some allegations that knowledge of his cell conditions was presented through the appeals

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process that was reviewed by staff overseen by the warden and secretary, but this is not sufficient to

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infer that the warden or secretary had knowledge of the issue and allowed the violation to continue, or

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that they implemented a policy.

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F.

Official Capacity

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Plaintiff states that he sues certain defendants both in their individual and official capacity, and

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brings suit for monetary damages. “The Eleventh Amendment bars suits for money damages in

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federal court against a state, its agencies, and state officials in their official capacities.” Aholelei v.

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Dep’t. of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). Therefore, Plaintiff

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may only proceed against any defendant for monetary damages in their individual capacity.

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V.

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CONCLUSION

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For these reasons, IT IS HEREBY RECOMMENDED that:

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This action proceed on Plaintiff’s claim against Defendants Emerson, Wilson, Wescoat,

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Velasco, Martines, and Loflen, in their individual capacities, for conditions of confinement in

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violation of the Eighth Amendment; and

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All other claims and defendants be dismissed for failure to state a claim upon which

relief could be granted.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within thirty (30) days

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after being served with these Finding and Recommendations, Plaintiff may file written objections with

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the Court. The document should be captioned “Objections to Findings and Recommendations.”
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Plaintiff is advised that failure to file objections within the specified time may result in the waiver of

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rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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September 19, 2018
UNITED STATES MAGISTRATE JUDGE

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