Davis v. State of California et al
Filing
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ORDER directing Clerk of Court to randomly assign District Judge to action; Case assigned to District Judge Dale A. Drozd. FINDINGS and RECOMMENDATIONS regarding dismissal of certain claims and defendants 1 signed by Magistrate Judge Barbara A. McAuliffe on 1/23/2019. Referred to Judge Dale A. Drozd; Objections to F&R's due within 14-Days. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JEROME MARKIEL DAVIS,
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Plaintiff,
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v.
STATE OF CALIFORNIA, et al.,
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Defendants.
Case No. 1:18-cv-00832-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
ACTION
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
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(ECF Nos. 15, 16)
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FOURTEEN (14) DAY DEADLINE
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I.
Background
Plaintiff Jerome Markiel Davis (“Plaintiff”) is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On January 9, 2019, the Court screened Plaintiff’s complaint and found that Plaintiff
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stated a cognizable claim for deliberate indifference in violation of the Eighth Amendment
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against Defendant Roberts in her individual capacity arising from the alleged incident of food
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tampering, but failed to state any other cognizable claims against any other defendants. The
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Court ordered Plaintiff to either file a first amended complaint or notify the Court of his
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willingness to proceed only on the cognizable claim. (ECF No. 15.) On January 17, 2019,
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Plaintiff notified the Court of his willingness to proceed on the cognizable claim identified by the
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Court. (ECF No. 16.)
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II.
Screening Requirement and Standard
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous
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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as
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true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,
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572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
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To survive screening, Plaintiff’s claims must be facially plausible, which requires
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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S.
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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted
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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the
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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
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III.
Allegations in Complaint
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Plaintiff is currently housed at the Maguire Correctional Facility in Redwood City,
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California. The events in the complaint are alleged to have occurred while Plaintiff was housed at
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the California Substance Abuse Treatment Facility in Corcoran, California. Plaintiff names the
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following defendants in their individual and official capacities: (1) State of California;
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(2) Warden Stuart Sherman; (3) Supervising Registered Nurse L. Koeppe; and (4) Registered
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Nurse D. Roberts.
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In Claim I, Plaintiff alleges cruel and unusual punishment, claiming that Defendant
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Roberts handed him a meal that he was unauthorized to receive. The meal made his mouth bleed
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and go numb with a medicine taste. Defendant Koeppe, the supervisor, did not train Defendant
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Roberts in the correct manner, which led to the cruelty against Plaintiff. Defendant Sherman is
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responsible because his prison did not protect Plaintiff from cruelty after he explained that
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someone poisoned his food at the previous prison. Plaintiff asked for a special accommodation so
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that his food would not be tampered with. Plaintiff alleges that the State of California (CDCR)
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failed to protect him from cruelty because the rules and regulations for feeding inmates in
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administrative segregation are ineffective and allow for staff to retaliate in the inmates’ food.
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Plaintiff claims that the act was intentional because it happened at a previous institution.
In Claim II, Plaintiff alleges a violation of his Equal Protection rights, claiming that he
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was discriminated against by Defendant Roberts. She allegedly victimized Plaintiff by tampering
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with a meal that she was not authorized to give. Plaintiff contends that he was the sole victim of
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extreme symptoms while his peers enjoyed a safe meal. Plaintiff asserts that Defendants Sherman
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and CDCR are responsible because the rules governing how inmates are fed are ineffective.
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Plaintiff further asserts that the rules do not provide equal protection because he was singled out
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and because, unlike inmates in general population, inmates in administrative segregation cannot
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see their food being placed on food trays by staff. Plaintiff alleges that Defendant Koeppe is
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responsible because he failed to train Defendant Roberts in the correct manner and to not retaliate
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or discriminate against inmates.
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In Claim III, Plaintiff alleges “bad living conditions,” claiming that CDCR did not create
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rules for staff to follow when feeding inmates in segregated housing to ensure that no one is
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tampering with meals. Plaintiff explains that inmates cannot see their trays, which creates a
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possibility for staff to discriminate or retaliate against an inmate by tampering with the food.
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Plaintiff asserts that this possibility creates a bad living condition. He alleges that Defendant
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Roberts is responsible for these inhumane conditions because she tampered with his food. She
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reportedly intentionally gave Plaintiff a Kosher meal, when he was supposed to receive a regular
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inmate tray. She also allegedly coerced Plaintiff into believing that he was approved for the tray.
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The Kosher meal reportedly was opened and tampered with, causing Plaintiff to suffer severe
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symptoms. Plaintiff contends that Defendant Sherman is responsible because he did not make
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sure these conditions did not exist at his prison.
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In Claim IV, Plaintiff alleges a violation of his right to be free from
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excessive/unreasonable force and retaliation. Plaintiff contends that CDCR has rules on how to
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feed inmates in segregated housing, but those rules did not make sure that he was safe or free
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from excessive force and retaliation. Plaintiff further contends that the rules opened a blind sport
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for staff to tamper with Plaintiff’s food. Plaintiff avers that Defendant Roberts tampered with his
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food, which was excessive, unusual and unreasonable. He also avers that it was discrimination
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and retaliation. Plaintiff claims that Defendant Koeppe did not ensure that his staff underwent
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proper training. Plaintiff also claims that Defendant Sherman did not ensure the implementation
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of rules and regulations to prevent the deprivation of Plaintiff’s rights.
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In Claim V, Plaintiff alleges a violation of his “right to life.” Plaintiff asserts that CDCR
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has rules on serving food to inmates in segregated housing. However, CDCR’s failure to
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implement cameras or safety measure to ensure that staff are not conspiring against inmates by
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attacking their meals is a deprivation of the right to life and makes the rules ineffective. Plaintiff
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again asserts that his food was tampered with in disregard to his life due to CDCR negligent rules
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for feeding inmates in segregated housing. Plaintiff repeats his assertion that Defendant Roberts
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tampered with his food, causing him severe symptoms. Plaintiff claims that the act of giving him
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an unauthorized meal that was tampered with was a disregard for his life, and Defendant Roberts
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did not want him to live a safe and healthy life. Plaintiff further claims that neither Defendant
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Koeppe or Defendant Sherman properly train their staff and are negligent.
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In Claim VI, Plaintiff alleges defamation of character. Plaintiff claims that Defendants
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Sherman, Koeppe and Roberts denied his claims of misconduct and when the matter was
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investigated through the appeals process, they said Plaintiff was lying and staff did nothing
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wrong. Plaintiff asserts that this derailed the process of a further investigation and jeopardized a
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blood test and urinalysis ordered by the doctor. Plaintiff alleges that on the day that the tests were
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to be done by the lab technicians, they refused.
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As relief, Plaintiff seeks compensatory and punitive damages, along with injunctive relief.
IV.
Discussion
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A.
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Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8. Pursuant to
Federal Rule of Civil Procedure 8
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Rule 8, a complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations are not required,
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but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set forth
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“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”
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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations are
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accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss,
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572 F.3d at 969.
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Plaintiff’s complaint is short, but it is not a plain statement of his claims. Plaintiff’s
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complaint lacks clear factual allegations regarding the incident at issue and the involvement of
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various defendants.
State of California – Eleventh Amendment Immunity
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B.
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Plaintiff attempts to bring suit against the State of California and its agency, the California
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Department of Corrections and Rehabilitation. The Eleventh Amendment prohibits federal courts
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from hearing a Section 1983 lawsuit in which damages or injunctive relief is sought against state
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agencies (such as CDCR), absent “a waiver by the state or a valid congressional override . . . .”
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Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The Eleventh Amendment bars
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suits which seek either damages or injunctive relief against a state, ‘an arm of the state,’ its
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instrumentalities, or its agencies.” See Fireman’s Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d
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928, 957 n.28 (9th Cir. 2002) (internal quotation and citations omitted), cert. denied, 538 U.S. 961
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(2003). “The State of California has not waived its Eleventh Amendment immunity with respect
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to claims brought under § 1983 in federal court . . . .” Dittman, 191 F.3d at 1025–26 (citing
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Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. Cal. Dep’t. of
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Corr., 554 F.3d 747, 752 (9th Cir. 2009). However, “the Eleventh Amendment does not bar
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actions seeking only prospective declaratory or injunctive relief against state officers in their
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official capacities[,]” Fireman’s Fund, 302 F.3d at 957 n.28 (internal quotation and citation
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omitted), or, in appropriate instances, in their individual capacities, Idaho v. Coeur d’Alene Tribe
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of Idaho, 521 U.S. 261, 269 (1997) (citing Ex Parte Young, 209 U.S. 123 (1908)).
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Plaintiff therefore fails to state a cognizable claim against the State of California or the
California Department of Corrections and Rehabilitation.
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C.
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Plaintiff is attempting to bring suit for monetary damages against defendants in their
Official Capacity
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individual and official capacities. As noted above, “[t]he Eleventh Amendment bars suits for
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money damages in federal court against a state, its agencies, and state officials in their official
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capacities.” Aholelei v. Dep’t. of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations
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omitted). However, the Eleventh Amendment does not bar suits seeking damages against state
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officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319
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F.3d 483, 491 (9th Cir. 2003). Thus, Plaintiff may only proceed against the defendants in their
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individual capacities for monetary damages and in their official capacities for injunctive relief.
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Nonetheless, as discussed more fully below, Plaintiff’s request for injunctive relief is now moot.
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D.
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Insofar as Plaintiff is attempting to hold Defendants Sherman and Koeppe liable based
Supervisory Liability
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solely on their supervisory roles, he may not do so. Liability may not be imposed on supervisory
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personnel for the actions or omissions of their subordinates under the theory of respondeat
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superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21
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(9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v.
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Williams, 297 F.3d 930, 934 (9th Cir. 2002). Supervisors may be held liable only if they
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“participated in or directed the violations, or knew of the violations and failed to act to prevent
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them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202,
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1205–06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Plaintiff may
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also allege the supervisor “implemented a policy so deficient that the policy ‘itself is a
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repudiation of constitutional rights’ and is ‘the moving force of the constitutional violation.’ ”
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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted).
Here, Plaintiff’s complaint fails to allege that Defendants Sherman and Koeppe
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participated in, directed or knew of any intended violation of Plaintiff’s rights. Plaintiff's
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complaint also fails to adequately allege that any of these supervisory defendants implemented a
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policy so deficient that it was a repudiation of Plaintiff's rights and the moving force of any
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constitutional violation. Although Plaintiff makes conclusory allegations concerning the policy
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for feeding inmates in segregation, he provides no factual allegations identifying the relevant
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policy and its deficiencies.
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E.
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Failure to Train/Supervise
Plaintiff also complains that Defendants Sherman and Koeppe failed to properly train or
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supervise their staff. A “failure to train” or “failure to supervise” theory can be the basis for a
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supervisor’s liability under § 1983 in only limited circumstances, such as where the failure
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amounts to deliberate indifference. See City of Canton, Ohio v. Harris, 489 U.S. 378, 387–90
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(1989). To establish a failure-to-train/supervise claim, a plaintiff must show that “‘in light of the
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duties assigned to specific officers or employees, the need for more or different training [or
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supervision] [was] obvious, and the inadequacy so likely to result in violations of constitutional
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rights, that the policy-makers . . . can reasonably be said to have been deliberately indifferent to
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the need.’ ” Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (quoting Canton, 489 U.S. at
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390).
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Ordinarily, a single constitutional violation by an untrained employee is insufficient to
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demonstrate deliberate indifference for purposes of failure to train. Connick v. Thompson, 563
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U.S. 51, 62 (2011). Instead, a plaintiff must usually demonstrate “[a] pattern of similar
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constitutional violations by untrained employees,” Id., unless the need for training is “so obvious”
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and “so likely to result in the violation of constitutional rights,” that “the failure to provide proper
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training may fairly be said to represent a policy for which the city is responsible, and for which
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the city may be held liable if it actually causes injury,” Canton, 489 U.S. at 390.
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Here, Plaintiff’s complaint fails to state a cognizable claim based upon a theory of failure
to train or supervise. Plaintiff’s factual allegations identify an isolated incident at the California
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Substance Abuse Treatment Facility, not a pattern of constitutional violations at that facility
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related to alleged food tampering in segregated housing.
Food Tampering – Eighth Amendment
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F.
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Adequate food is a basic human need protected by the Eighth Amendment. Hoptowit v.
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Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other grounds by Sandin v. O’Connor,
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515 U.S. 472 (1995). While prison food need not be “tasty or aesthetically pleasing,” it must be
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“adequate to maintain health.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). “The fact
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that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant,
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does not amount to a constitutional deprivation.” Id. (citation omitted). However, extreme
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deprivations are required to make out a conditions of confinement claim, and only those
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deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to
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form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992)
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(citations and quotations omitted). To state a claim for violation of the Eighth Amendment, the
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plaintiff must allege facts sufficient to support a claim that prison officials knew of and
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disregarded a substantial risk of serious harm to the plaintiff. Farmer v. Brennan, 511 U.S. 825,
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847 (1994).
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At the pleading stage, the Court finds that Plaintiff’s complaint states a cognizable Eighth
Amendment deliberate indifference claim against Defendant Roberts in her individual capacity.
Equal Protection – Fourteenth Amendment
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G.
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Plaintiff alleges denial of equal protection in violation of the Fourteenth Amendment. The
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Equal Protection Clause requires that all persons who are similarly situated should be treated
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alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001); City of Cleburne v. Cleburne
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Living Center, 473 U.S. 432, 439 (1985). To state an Equal Protection claim, Plaintiff must show
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that the defendants acted with an intent or purpose to discriminate against him based on
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membership in a protected class, Lee, 250 F.3d at 686; Barren v. Harrington, 152 F.3d 1193, 1194
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(1998), or that similarly situated individuals were intentionally treated differently without a
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rational relationship to a legitimate state purpose, Thornton v. City of St. Helens, 425 F.3d 1158,
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1167 (2005); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
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Here, Plaintiff has failed to allege sufficient facts to demonstrate that he is in a protected
class or that similarly situations individuals were treated differently.
Excessive Force – Eighth Amendment
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H.
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Plaintiff’s allegations of excessive force arise under the Eighth Amendment to the United
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States Constitution. To constitute cruel and unusual punishment in violation of the Eighth
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Amendment, prison conditions must involve “the wanton and unnecessary infliction of pain.”
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Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The inquiry as to whether a prison official’s use
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of force constitutes cruel and unusual punishment is “whether force was applied in a good-faith
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effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson,
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503 U.S. at 6–7; Whitley v. Albers, 475 U.S. 312, 320 (1986).
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“The objective component of an Eighth Amendment claim is . . . contextual and
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responsive to contemporary standards of decency.” Hudson, 503 U.S. at 8 (internal quotation
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marks and citations omitted). A prison official’s use of force to maliciously and sadistically
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cause harm violates the contemporary standards of decency. Wilkins v. Gaddy, 559 U.S. 34, 37
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(2010).
Plaintiff’s complaint fails to state a cognizable claim for excessive force in violation of the
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Eighth Amendment. There is no indication that any defendant used force, much less force
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applied maliciously and sadistically to cause harm.
Retaliation – First Amendment
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I.
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“Within the prison context, a viable claim of First Amendment retaliation entails five
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basic elements: (1) An assertion that a state actor took some adverse action against an inmate
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(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s
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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate
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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).
Plaintiff’s complaint fails to state a cognizable retaliation claim. At a minimum, Plaintiff
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does not identify any protected conduct, nor does he identify any adverse action taken against him
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because of that protected conduct.
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J.
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Insofar as Plaintiff seeks injunctive relief against prison officials in their official
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capacities, any such request is now moot. Plaintiff is no longer housed at the California
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Substance Abuse Treatment Facility, where he alleges the incident at issue occurred, and where
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the prison officials are employed. Therefore, any injunctive relief against the officials at the
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California Substance Abuse Treatment Facility is moot. See Andrews v. Cervantes, 493 F.3d
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1047, 1053 n.5 (9th Cir. 2007) (prisoner’s claims for injunctive relief generally become moot
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upon transfer) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (holding
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claims for injunctive relief “relating to [a prison’s] policies are moot” when the prisoner has been
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Injunctive Relief
moved and “he has demonstrated no reasonable expectation of returning to [the prison]”)).
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K.
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Insofar as Plaintiff has alleged state law claims for negligence and defamation by
State Law Claims
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defendants, he has failed to allege compliance with the Government Torts Claims Act (“Act”).
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The Act requires that a party seeking to recover money damages from a public entity or its
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employees submit a claim to the entity before filing suit in court, generally no later than six
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months after the cause of action accrues. Cal. Gov’t Code §§ 905, 911.2, 945, 950.2 (emphasis
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added). When a plaintiff asserts a claim subject to the Act, he must affirmatively allege
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compliance with the claim presentation procedure, or circumstances excusing such compliance, in
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his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (2007). Plaintiff has not
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done so here.
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V.
Conclusion and Recommendation
Plaintiff’s complaint states a cognizable claim for deliberate indifference in violation of
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the Eighth Amendment against Defendant Roberts in her individual capacity arising from the
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alleged incident of food tampering, but fails to state any other cognizable claims.
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Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a
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District Judge to this action.
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Furthermore, it is HEREBY RECOMMENDED that:
1. This action proceeds on Plaintiff’s complaint, filed June 20, 2018, (ECF No. 1), for
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deliberate indifference in violation of the Eighth Amendment against Defendant Roberts;
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and
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2. All other claims and Defendants be dismissed based on Plaintiff’s failure to state claims
upon which relief may be granted.
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These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after
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being served with these Findings and Recommendations, Plaintiff may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.” Plaintiff is advised that the failure to file objections within the specified
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time may result in the waiver of the “right to challenge the magistrate’s factual findings” on
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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
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F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
January 23, 2019
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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