(PC) Thomas v. Chenalo et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that the District Court permit Plaintiff to proceed on his Eighth Amendment claim against defendants Flores, Salas, Medina and C/O #1 Third Watch for subjecting Plaintiff to unconstitutional conditions fo confinement; All other claims and Defendants Chenalo, Guerrera, and Padilla be dismissed; referred to Judge Ishii, signed by Magistrate Judge Helena M. Barch-Kuchta on 08/2/2022. (Objections to F&R due within 14-Day Deadline)(Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ALBERT EUGENE THOMAS,
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Plaintiff,
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v.
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CAPTAIN CHENALO, C/O GUERRA,
C/O SALAS, C/O MEDINA, C/O #1
THIRD WATCH, C/O FLOREZ AND
PROGRAM SGT. PADILLA,
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Case No. 1:19-cv-01185-AWI-HBK (PC)
FINDINGS AND RECOMMENDATIONS TO
PERMIT PLAINTIFF TO PROCEED ONLY
ON COGNIZABLE EIGHTH AMENDMENT
CLAIM1
(Doc. No. 20)
Defendants.
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Plaintiff Albert Thomas is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action under 42 U.S.C. § 1983. Plaintiff is proceeding on his Second Amended
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Complaint filed August 30, 2021. (Doc. No. 20, “SAC”). As more fully set forth below, the
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undersigned finds the SAC states a cognizable claim for an Eighth Amendment violation against
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defendants Flores, Salas, Medina, and C/O #1 Third Watch for subjecting Plaintiff to
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unconstitutional conditions of conferment but no other claims and recommends that Plaintiff be
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permitted to proceed only on his cognizable claim and all other defendants and claims be
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dismissed.
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This matter was referred to the assigned United States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
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BACKGROUND AND SUMMARY OF OPERATIVE PLEADING
On June 2, 2021, the undersigned issued a screening order on Plaintiff’s First Amended
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Complaint (Doc No. 13, “FAC”) and found the FAC stated a cognizable Eighth Amendment
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claim for cruel and unusual punishment against Defendants Salas and Medina for subjecting
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Plaintiff to unconstitutional conditions of confinement but no other claim against any other
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defendant. The Court afforded Plaintiff the opportunity to (1) proceed on his FAC only on his
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cruel and unusual punishment claim against Salas and Medina; (2) file a second amended complaint
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to add additional facts in an attempt to make out additional claims or claims against additional
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defendants, or (3) stand on the current FAC subject to dismissal of claims and defendants consistent
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with its order. (Doc. No. 15). Plaintiff elected to file a SAC. (Doc. No. 20).
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The SAC identifies the following defendants in the caption of the pleadings and in the list
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of defendants: Captain Chenalo, C/O Guerra, C/o Sala, C/O Medina, C/O #1 Third Watch, C/O
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Floriez, and program Sgt. Padilla. (Doc. No 20 at 1, 4, 5). However, in the SAC Plaintiff states
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he does not wish to proceed against defendants Chenalo, Guerrera, and Padilla or on his claim of
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retaliation against any defendants. (Id. at 5).2 Thus, the undersigned only considers the
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allegations in the SAC as against defendants Florez, Salas, Medina, and C/O #1 Third Watch.
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The SAC identifies two causes of action: (1) an Eighth Amendment claim for cruel and unusual
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punishment; and (2) abuse of power and discretion. (Id.). The SAC sets forth the following facts,
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which are presumed as true at this stage of the proceedings,
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On June 22, 2019, Plaintiff moved into building A1-126 at North Kern State Prison.
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(Doc. No. 20 at 5). Plaintiff immediately noticed a “strong odor” coming from his cell and
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received a shock when he turned on the light. (Id. at 5-6). There was mold and mildew on the
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walls, the cell was filled with rust, leaking “filthy stinking” water puddled on the floor, and the
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improperly installed light switch shocked Plaintiff when he turned on or off the light. (Id. at 6-9).
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Plaintiff complained about the cell’s conditions and requested Florez, Salas, Medina, and C/O #1
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Third Watch to inspect his cell but they refused. Plaintiff continued to complain about the
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The undersigned previously found the FAC did not a cognizable Eighth Amendment claim against
Chenalo, Guerrera and Padilla, nor a First Amendment claim of retaliation. (Doc. No. 17 at 7-8).
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conditions of his cell to these four defendants and made them each aware that his health was
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deteriorating due to the cell’s condition. (Id.). But each of the defendants laughed and refused to
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move Plaintiff. (Id.). Plaintiff continued to make requests to the four named defendants to move
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him, and even undertook his own search for a new cell, but the defendants refused to transfer
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Plaintiff to another cell. (Id.). Plaintiff also requested, but was denied, cleaning supplies by
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these named defendants. (Id.). Finally, Plaintiff placed cardboard between the light switch and
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the guard around the light switch to avoid getting shocked which Plaintiff informed defendants of,
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but he still was not given a new cell. (Id. at 9).
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Soon after moving into his cell, Plaintiff developed an excruciating cough, a sore throat,
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and experienced pain when breathing. (Id. at 6-7). Plaintiff also had trouble sleeping over an
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extended period of time because he would wake up from coughing. (Id. at 6).
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After 48 days, Plaintiff was finally moved into a different cell on August 7, 2019. (Id. at
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9). But his physical condition continued to deteriorate, and approximately five to six months after
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he first developed his cough, he was sent to a hospital outside of North Kern State Prison. (Id. at
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10). Plaintiff was diagnosed with Valley Fever and pneumonia. (Id.).
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As relief, Plaintiff seeks $50,000 in punitive and $50,000 in compensatory damages from
each Defendant. (Id. at 12).
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APPLICABLE LAW
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Screening Requirements and Fed. R. Civ. P. 8
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Under 28 U.S.C. § 1915A, a court is required to screen a prisoner’s complaint that seeks
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relief against a governmental entity, its officers, or its employees. See 28 U.S.C. § 1915A(a).
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The court must identify any cognizable claims and dismiss any portion of the complaint that is
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frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks
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monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§
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1915A(b)(1), (2); see also 28 U.S.C. § 1915(e)(2)(b)(ii) (governing actions proceeding in forma
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pauperis).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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Cir. 1984). The court may dismiss a claim as frivolous where it is based on an indisputably
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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at
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327. The critical inquiry is whether a constitutional claim, however unartfully pleaded, has an
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arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989);
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Franklin, 745 F.2d at 1227.
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A claim fails to state a claim upon which relief may be granted if it appears that the
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plaintiff can prove no set of facts supporting the claim that would entitle him to relief. Hishon v.
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King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass’n, Inc., 651
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F.2d 1289, 1294 (9th Cir. 1981). During screening, the court must accept as true the allegations
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of the complaint, Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976), construe the
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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor.
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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925
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(9th Cir. 2003) (the court must construe pro se pleadings liberally and afford the pro se litigant
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the benefit of any doubt). The court is not required to accept as true conclusory allegations,
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unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643
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F.2d 618, 624 (9th Cir. 1981).
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Plaintiff’s claims must be facially plausible to survive screening, which requires sufficient
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factual detail allowing the court to reasonably infer that each named defendant is liable for the
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misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted); Moss
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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility that a defendant
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acted unlawfully is not sufficient, and 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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A complaint must contain “a short and plain statement of the claim showing 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
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statements, do not suffice.” Iqbal, 556 U.S. at 678 (citations omitted). Courts “are not required
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to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.
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2009) (internal quotation marks and citation omitted). While factual allegations are accepted as
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true, legal conclusions are not. Iqbal, 556 U.S. at 678.
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If the court determines that a pleading could be cured by the allegation of other facts, a
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pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action.
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See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of
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Corr., 66 F.3d 245, 248 (9th Cir. 1995). A district court should not, however, advise the litigant
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on how to cure the defects. Such advice “would undermine district judges’ role as impartial
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decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131
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n.13.
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Finally, examples of immunity from relief for consideration during screening, include, but
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are not limited to, quasi-judicial immunity, sovereign immunity, or qualified immunity.
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Additionally, a plaintiff may not recover monetary damages absent a showing of physical injury.
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See 42 U.S.C. § 1997e(e). In other words, to recover monetary damages, a plaintiff must allege
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physical injury that need not be significant but must be more than de minimis, except when
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involving First Amendment claims. Oliver v. Keller, 289 F.3d 623, 626-28 (9th Cir. 2002)
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(surveying other circuit courts and agreeing with the Second, Fifth, and Eleventh Circuits on
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Prison Litigation Reform Act’s injury requirement, but not defining de minimis the way the Fifth
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Circuit does).
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Threshold Requirements of 42 U.S.C. § 1983
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Section 1983 allows a private citizen to sue for the deprivation of a right secured by
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federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To
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state a claim under § 1983, a plaintiff must show that a defendant acting under color of state law
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caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. § 1983; Soo Park
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v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). The plaintiff can satisfy the causation
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requirement by showing either: (1) the defendant’s “personal involvement” in the alleged
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deprivation or (2) a “sufficient causal connection” between the defendant’s conduct as a
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supervisor and the alleged deprivation. See King v. Cty. of Los Angeles, 885 F.3d 548, 559 (9th
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Cir. 2018).
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ANALYSIS
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Conditions of Confinement
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“[T]he treatment a prisoner receives in prison and the conditions under which he is
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confined are subject to scrutiny under the Eighth Amendment,” which prohibits “cruel and
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unusual punishment.” Helling v. McKinney, 509 U.S. 25, 31 (1993); U.S. Const. Amend. VIII.
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A violation of the Eighth Amendment requires a showing of both an “objective component”—the
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objective seriousness of the challenged condition, and a “subjective component”—the responsible
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official’s subjective state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v.
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Seiter, 501 U.S. 294, 298 (1991). In challenging living conditions under the Eighth Amendment,
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a prisoner must establish “unquestioned and serious deprivations of basic human needs” or the
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absence of the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S.
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337, 347 (1981); accord Hudson v. McMillian, 503 U.S. 1, 9 (1992). Basic human needs
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identified by the Supreme Court include “food, clothing, shelter, medical care and reasonable
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safety,” Helling, 509 U.S. at 32, as well as “warmth [and] exercise.” Wilson, 501 U.S. 199-200.
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Factors affecting whether a condition is sufficiently serious include its duration, the attendant
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circumstances, and nature of the particular deprivation. Johnson v. Lewis, 217 F.3d 726, 731 (9th
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Cir. 2000). The Ninth Circuit has found prisoners have a right to sanitation. Hoptowit v. Ray,
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682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S.
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472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). But the lack of sanitation must be so severe or
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prolonged to arise to an Eighth Amendment violation. Anderson v. County of Kern, 45 F.3d
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1310, 1314, as amended, 75 F.3d 448 (9th Cir. 1995); see also Vinning-El v. Long, 482 F.3d 923,
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924-25 (7th Cir. 2007)(six days confined inside cell with floor covered in water, no working
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plumbing, walls smeared with blood and feces, no mattress, sheets, toilet paper or personal
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hygiene items rose to Eight Amendment violation). Additionally, under certain circumstances, an
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officials’ failure to supply a prisoner with cleaning supplies when the complained of conditions
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are serious enough to threaten an inmate’s health can violate the Eighth Amendment. Hoptowit,
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753 F.3d at 783-85 (9th Cir. 1985).
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To satisfy the subjective prong, the inmate must show that the prison official was
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deliberately indifferent—“possessed a sufficiently culpable state of mind.” Wilson, 501 U.S. 297-
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98. This requires the official to be aware of the substantial risk of harm and disregard that risk by
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failing to abate it using reasonable measures. Farmer, 511 U.S. at 837-45. This level requires
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more than negligence but less than actual malice. Id. at 835-36.
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The SAC states a cognizable Eighth Amendment conditions of confinement claim against
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defendants Florez, Salas, Medina, and C/O #1 Third Watch. Plaintiff alleges that he complained
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to Defendants, multiple times, about the conditions of his cell both before and after he developed
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serious health conditions. Despite his complaints, Defendants laughed at Plaintiff and refused to
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change his cell. Plaintiff claims he suffered substantial harm by developing serious health
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conditions after being placed in his hazardous cell. See Farmer, 511 U.S. at 834. Here, accepting
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the allegations in the SAC as true, Defendants knew about the hazardous cell and were indifferent
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to Plaintiff’s safety. The SAC states an Eighth Amendment claim against each of these named
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defendants. See Farmer, 511 U.S. at 837.
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Abuse of Power and Discretion
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The SAC also identifies an abuse of power and discretion claim against defendants Florez,
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Salas, Medina, and C/O #1 Third Watch. (Doc. No. 20 at 5). The SAC, however, does not
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contain separate facts pertaining to the abuse of power and discretion claim. Instead, it appears
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the facts in support of Plaintiff’s Eighth Amendment claim are intended to satisfy this second
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claim.
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“The policies underlying §1983 include compensation of persons injured by deprivation of
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federal rights and prevention of abuses of power by those acting under color of state law.”
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Bullock v. Johnson, 2015 WL 13855583, *6 (C.D. Cal. Aug. 26, 2015) (quoting Robertson v.
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Wegmann, 436 U.S. 584, 590-91 (1978)). Nonetheless, there is no separate cause of action under
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§ 1983 for an abuse of power claim. See Johnson, 2015 U.S. Dist. LEXIS 169153, at *6; see also
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Bullock v. Tillman, 2017 WL 3531497 (C.D. Cal. Aug. 16, 2017) (“the court cannot identify any
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authority giving rise to a freestanding “abuse of power” claim.”). Because there is no claim of
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abuse of power under § 1983, the undersigned will not engage in any further analysis of
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Plaintiff’s abuse of power and discretion claim.
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CONCLUSIONS AND RECOMMENDATIONS
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Based on the foregoing, the undersigned finds the SAC states a cognizable claim under the
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Eighth Amendment for subjecting Plaintiff to unconstitutional conditions of confinement against
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defendants Flores, Salas, Medina, and C/O #1 Third Watch. The SAC fails to state a claim for
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abuse of power and discretion. Plaintiff voluntarily dismisses defendants Chenalo, Guerrera, and
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Padilla and any claim of retaliation against any defendants. (Doc. No. 20 at 5).
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Accordingly, it is RECOMMENDED:
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The district court permit Plaintiff to proceed on his Eighth Amendment claim against
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defendants Flores, Salas, Medina, and C/O #1 Third Watch for subjecting Plaintiff to
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unconstitutional conditions of confinement. All other claims and defendants Chenalo, Guerrera,
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and Padilla be dismissed.
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NOTICE TO PARTIES
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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 provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)
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days after being served with these findings and recommendations, a party may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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Dated:
August 2, 2022
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE
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