Johnson v. Perry et al

Filing 12

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 08/20/18 ORDERING the Clerk of Court shall randomly assign a district judge to this action. This action shall proceed on plaintiffs First Amended Complaint (FAC), 9 , on plaintiffs Claims Three, Six and Seven.Service of process is appropriate for defendants Rohon, Sieber and Rodriquez. The Clerk of the Court is directed to send plaintiff three USM-285 forms, one summons, an instruction sheet, and four copies of the endorsed first amended complaint to be completed and returned within 30 days. Also, RECOMMENDING that claims One, Two, Four and Five of the First Amended Complaint be dismissed without prejudice for failure to state a cognizable claim. Defendan ts Knedler, Davis, Morales, Flice, Walker, Krause, Fletcher, Cross, Sharpe, Pena and Martinez be dismissed without prejudice for lack of cognizable claims against them. Assigned and referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GILROY E. JOHNSON,

12

No. 2:16-cv-0367 AC P

Plaintiff,

13

v.

ORDER and

14

SUZANNE M. PERRY, et al.,

15

Defendants.

FINDINGS AND RECOMMENDATIONS

16
17

I.

INTRODUCTION

18

Plaintiff is a state prisoner at Kern Valley State Prison (KVSP), under the authority of the

19

California Department of Corrections and Rehabilitation (CDCR).1 Plaintiff proceeds pro se and

20

in forma pauperis with a First Amended Complaint (FAC) filed pursuant to 42 U.S.C. § 1983, in

21

which he challenges conditions of his prior incarceration at High Desert State Prison (HDSP). By

22

order filed June 24, 2016, the court dismissed plaintiff’s original complaint with leave to file an

23

amended complaint, and provided guidance in stating potentially cognizable claims. See ECF

24

No. 6. The court now screens the FAC pursuant to 28 U.S.C. § 1915A. For the reasons set forth

25
26
27
28

1

Review of the Inmate Locator website operated by CDCR indicates that plaintiff is presently
incarcerated at KVSP. See http://inmatelocator.cdcr.ca.gov/search.aspx. See also Fed. R. Evid.
201 (court may take judicial notice of facts that are capable of accurate determination by sources
whose accuracy cannot reasonably be questioned). When plaintiff commenced this action, he was
incarcerated at California State Prison Sacramento. See ECF No. 1.
1

1

below, the court finds that the FAC states three potentially cognizable Eighth Amendment claims:

2

Claim Three (food contamination) against defendant Sieber; Claim Six (food contamination)

3

against defendant Rodriquez; and Claim Seven (failure to protect) against defendant Rohon. The

4

court recommends dismissal of all other claims and defendants.

5

II.

6

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

LEGAL STANDARDS FOR SCREENING PRISONER COMPLAINTS

7

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

8

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

9

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

10

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

11

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v.

12

Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.

13

1984).

14

Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement

15

of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair

16

notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v.

17

Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

18

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

19

demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

20

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to

21

state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a

22

claim to relief that is plausible on its face.’” Iqbal at 678 (quoting Twombly at 570). “A claim

23

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

24

reasonable inference that the defendant is liable for the misconduct alleged. The plausibility

25

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility

26

that a defendant has acted unlawfully.” Id. (citing Twombly at 556). “Where a complaint pleads

27

facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between

28

possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly at 557).
2

1

“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however

2

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

3

lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,

4

106 (1976) (internal quotation marks omitted)). See also Fed. R. Civ. P. 8(e) (“Pleadings shall be

5

so construed as to do justice.”). Additionally, a pro se litigant is entitled to notice of the

6

deficiencies in the complaint and an opportunity to amend, unless the complaint’s deficiencies

7

cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

8

III.

9

The FAC asserts seven claims against a total of fourteen defendants, for which plaintiff

OVERVIEW: ALLEGATIONS AND CLAIMS IN THE FAC

10

seeks $10,000,000 in damages. All claims allege deliberate indifference in violation of the Eighth

11

Amendment: Claims One, Two, Four, Five and Seven allege the failure of correctional staff to

12

protect plaintiff’s physical safety; Claims Three and Six allege contamination of plaintiff’s food.

13

Thus, the court addresses these claims in two groups.2

14

IV.

15

FAILURE-TO-PROTECT CLAIMS
A.

16

LEGAL STANDARDS

The court previously informed plaintiff of the following legal standards for stating a

17

deliberate indifference failure-to-protect claim, see ECF No. 6 at 7-9 (fn. omitted):

18

A “failure to protect” claim under the Eighth Amendment requires a
showing that “the official [knew] of and disregard[ed] an excessive
risk to inmate . . . safety.” Farmer v. Brennan, 511 U.S. 825, 837
(1994). Because “only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment,” evidence must exist to show the
defendant acted with a “sufficiently culpable state of mind.” Wilson
v. Seiter, 501 U.S. 294, 297 (1991) (internal quotation marks,
emphasis and citations omitted). The duty to protect a prisoner from
serious harm requires that prison officials take reasonable measures
to guarantee the safety and wellbeing of the prisoner. Farmer, 511
U.S. at 832-33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
“[P]rison officials have a duty. . . to protect prisoners from violence
at the hands of other prisoners.” Farmer, 511 U.S. at 833 (citation
and internal quotation marks omitted).

19
20
21
22
23
24
25
26
27
28

2

Plaintiff now avers, under penalty of perjury, that he exhausted his administrative remedies on
each of his putative claims, although he previously stated that he had not. Cf. ECF No. 1 at 2, and
ECF No. 9 at 3-5, 7, 9 and 11. Notwithstanding the court’s prior discussion of this matter, see
ECF No. 6 at 5-6, the court expresses no opinion at this time regarding exhaustion.
3

1

As a general rule, “verbal harassment or abuse . . . [alone] is
insufficient to state a constitutional deprivation under 42 U.S.C.
1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)
(citation and internal quotation omitted). A “mere threat” does not
state a cause of action, even if it is “a threat to do an act prohibited
by the Constitution.” Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.
1987) (per curiam) (threat of bodily harm did not state cognizable
civil rights claim).

2
3
4
5

Nevertheless, verbal harassment that is intended to harm or endanger
a prisoner may violate the Constitution. Cf. Keenan v. Hall, 83 F.3d
1083, 1092 (9th Cir. 1996), opinion amended on denial of reh’g, 135
F.3d 1318 (9th Cir. 1998) (verbal harassment was not “unusually
gross even for a prison setting . . . [nor] calculated to and did cause
him psychological damage”). “A prisoner may state an Eighth
Amendment claim under § 1983 for [] harassment only if the alleged
harassment was sufficiently harmful, that is, a departure from ‘the
evolving standards of decency that mark the progress of a maturing
society,’ and the defendant acted with intent to harm the prisoner.”
Minifield v. Butikofer, 298 F. Supp. 2d 900, 903 (N.D. Cal. 2004)
(sexual harassment) (quoting Hudson, 503 U.S. at 6, 8) (additional
citation omitted). Thus, a correctional officer calling a prisoner “a
‘snitch’ in the presence of other inmates [it] is ‘material’ to a section
1983 claim for denial of the right not to be subjected to physical harm
by employees of the state acting under color of law.” Valandingham
v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989); accord, Thomas
v. D.C., 887 F. Supp. 1, 4-5 (D.D.C. 1995) (allegations that
correctional officer “sexually assaulted and harassed [plaintiff] and
told other inmates that he was a homosexual and a ‘snitch’ . . . posed
a substantial risk of serious bodily harm . . . [which, together with
that failure of prison officials to] take reasonable measures to
guarantee his safety . . . is enough to demonstrate deliberate
indifference and may form the basis of an Eighth Amendment
claim.”). In Flores v. Wall, plaintiff alleged that two correctional
officers were spreading rumors that plaintiff was homosexual and a
snitch. Relying on several similar cases, the district court found
plaintiff’s allegations sufficient to state a claim for deliberate
indifference to plaintiff’s safety. See 2012 WL 4471101, at *12,
2012 U.S. Dist. LEXIS 136668, at *41-2 (D.R.I. Aug. 31, 2012),
report and recommendation adopted, 2012 WL 4470998, 2012 U.S.
Dist. LEXIS 139972 (D.R.I. Sept. 25, 2012) (Case No. CA 11-69 M).

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Pursuant to these legal standards, to state a cognizable failure-toprotect claim against a specific correctional officer, plaintiff must
allege that the specified officer, on a given date, engaged in specific
conduct that demonstrates the officer knew of a substantial risk to
plaintiff’s safety and disregarded that risk. Plaintiff must describe
the challenged conduct in sufficient detail to demonstrate that
defendant was aware of the objectively serious risk to plaintiff’s
safety and intentionally disregarded it.

23
24
25
26
27

////

28
4

1

B.

PLAINTIFF’S FAILURE-TO-PROTECT CLAIMS

2
3

CLAIM ONE
Plaintiff’s Allegations: Plaintiff alleges that on February 27, 2014, in the Sergeant’s

4

Office located in the HDSP Facility D Program Office, plaintiff reported “acts of sexual

5

misconduct and safety concern issues” to Sergeant Fletcher, Correctional Officer Cross, and an

6

unknown correctional officer. ECF No. 9 at 3. The officers expressed disbelief, removed

7

plaintiff’s handcuffs, and directed him to return to his living quarters. While exiting the office,

8

plaintiff overheard the officers discuss whether they would protect plaintiff from being stabbed by

9

other inmates, and concluded that they would not. Specifically, plaintiff heard Sergeant Knedler

10

say that he “has been looking into [plaintiff’s] past and he doesn’t like some of the stuff he’s

11

found. [Plaintiff] has some stuff in store for him.” Id. Plaintiff asserts that hearing this

12

discussion and these comments caused him “psychological damage,” and thus supports an Eighth

13

Amendment failure-to-protect claim. Id.

14

Analysis: These allegations, and plaintiff’s interpretation of an overheard conversation,

15

are insufficient to support an Eighth Amendment claim. No specific risk to plaintiff’s safety is

16

identified, and the facts alleged do not support a reasonable inference that any of the conversing

17

officers knew of and disregarded an objectively serious risk to plaintiff’s safety. Moreover,

18

plaintiff cannot recover compensatory damages for mental or emotional injury alone, without a

19

showing of physical injury. See 42 U.S.C. § 1997e(e) (“No Federal civil action may be brought

20

by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing

21

of physical injury or the commission of a sexual act as defined in section 2246 of Title 18).”).

22

The physical injury “need not be significant but must be more than de minimus” for purposes of

23

42 U.S.C. § 1997e(e). Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); Pierce v. County of

24

Orange, 526 F.3d 1190, 1123-24 (9th Cir. 2008); cf., Oliver at 629 (constitutional violation

25

causing only mental or emotional injury may support an award for nominal or punitive damages

26

under Section 1997(e)). Under these standards, the undersigned finds the allegations of Claim

27

One, that plaintiff suffered purely psychological injury as a result of overhearing officers discuss

28

their disinclination to protect plaintiff from an unspecified attack by other inmates, fails to state a
5

1

cognizable Eighth Amendment failure-to-protect claim.

2
3

CLAIM TWO
Plaintiff’s Allegations: Plaintiff alleges that on March 14, 2014, while in a holding cage

4

near the Facility D Program Office, he overheard Correctional Officer Pena tell Institutional Gang

5

Investigator (IGI) Officer Martinez, at the request of Sergeant Knedler, to ignore any statements

6

made by plaintiff – but Pena further stated that he disagreed, and was angry with Knedler because

7

she had stated that she wanted to see plaintiff stabbed and beaten. Id. at 4. Later that day, while

8

in another holding cage near the same area, plaintiff “witnessed and heard C/O Johnson and

9

Sergeant Knedler in conversation about whether I would be receiving any special treatment while

10

in Ad Seg . . . . [ending when] Knedler stated to C/O Johnson, ‘Call the guys and tell them not to

11

give him any special treatment!’” Id. Plaintiff suffered “psychological damage” from

12

overhearing these statements. Id.

13

Analysis: For the reasons explained in relation to Claim One, plaintiff’s allegations of an

14

overheard conversation that caused him exclusively psychological harm, without any specific or

15

objectively serious threat to plaintiff’s safety, do not state a cognizable failure-to-protect claim

16

under the Eighth Amendment.

17
18

CLAIM FOUR
Plaintiff’s Allegations: Plaintiff alleges that on November 27, 2014, in the Facility D

19

Yard Program Office, he reported “sexual misconduct and safety concerns” to “clinician Krause.”

20

ECF No. 9 at 6. As plaintiff was returned to a holding cage located on the Program Office floor,

21

plaintiff witnessed Krause enter Sergeant Knedler’s office and heard Krause report plaintiff’s

22

allegations to Knedler and Correctional Officer Davis. Plaintiff then “heard and witnessed”

23

Davis make disparaging statements about plaintiff to Krause, including that plaintiff has “twenty

24

kids he does nothing for,” and a sexually transmitted disease “our women” need to be protected

25

from. About an hour later, when Davis and Sergeant Sharpe escorted plaintiff from the Program

26

Office, plaintiff inquired, “You guys aren’t going to do your jobs are you?” Davis answered,

27

“Not for you we’re not so just give it up because your [sic] not going to win here Johnson.” Id.

28

Plaintiff suffered “psychological damage.” Id.
6

1

Analysis: As with claims One and Two, plaintiff’s allegations of emotional distress

2

caused by defendants’ statements do not support a failure-to-protect claim under the Eighth

3

Amendment. The facts alleged do not establish the existence of a specific or objectively serious

4

risk to plaintiff’s safety. Accordingly, the allegations of Claim Four do not provide a basis for

5

relief.

6

CLAIM FIVE

7

Plaintiff’s Allegations: Plaintiff alleges that on December 31, 2014, in the Facility D-8

8

Block dining hall, plaintiff was placed “in a holding cage for the purpose of an unclothed search

9

in the presence of Sergeant Walker, Correctional Officer Kelly and several other unidentified

10

officers.” ECF No. 9 at 8. The search was conducted by Correctional Officer Flice who directed

11

plaintiff to “pull the flap back on your penis.” Id. Plaintiff objected, explaining that the request

12

was not routine procedure, but Flice persisted and threatened to pepper spray plaintiff if he did

13

not comply. Flice acted aggressively and menacing, shaking a can of pepper spray while

14

directing plaintiff to comply; plaintiff complied. Plaintiff alleges that while being escorted back

15

to his cell, he heard an unknown correctional officer state to Flice, “Why did you do that, you

16

know we don’t do that anymore.” Id. Flice reportedly responded, “Because I wanted to see if the

17

rumors were true!” Sergeant Walker then reportedly stated to Flice, “Don’t ever front me off like

18

that again,” to which Flice responded, “I’m sorry you know how I am.” Id. at 8-9. Based on

19

these circumstances and plaintiff’s resulting “psychological damage,” plaintiff asserts a violation

20

of his Eighth Amendment rights. Id.

21

Analysis: The allegations that Flice threatened to pepper spray plaintiff if he did not

22

comply with an unauthorized procedure support a reasonable inference that the challenged

23

conduct was intended solely to satisfy Flice’s curiosity rather than for some legitimate

24

penological purpose. However, while disturbing, this conduct took place during an authorized

25

strip search, was limited to a single incident of limited duration, did not include any touching by

26

Flice or other officers, and did not involve sexually inappropriate comments. Sexually

27

inappropriate conduct that does not include touching, or includes only brief inappropriate

28

touching, are generally found not to support liability under the Eighth Amendment. See Watison
7

1

v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (collecting cases) (officer’s brief touching of

2

plaintiff’s thigh and suggestive facial expression while prisoner was on the toilet was not

3

“objectively ‘harmful enough’ to establish a constitutional violation” under the Eighth

4

Amendment); see also Johnson v. Carroll, 2012 WL 2069561, at *29-30, 2012 U.S. Dist. LEXIS

5

79380, at *87-90 (E.D. Cal. June 7, 2012) (Case No. 2:08-cv-1494 JAM KJN P) (collecting

6

cases), report and recommendation adopted Aug. 28, 2012. Moreover, the challenged conduct

7

does not come within the definition of an actionable “sexual act” as defined in 18 U.S.C. § 2246,

8

and is not cognizable under 42 U.S.C. § 1997e(e) because it alleges only psychological harm. For

9

these reasons, the court finds that the alleged conduct of Officer Flice was not sufficiently

10

harmful to support a cognizable Eighth Amendment claim.

11

CLAIM SEVEN

12

Plaintiff’s Allegations: Plaintiff alleges that on July 1, 2015, on the Facility D upper

13

yard basketball court, he was assaulted by two inmates, one of whom kicked plaintiff in the face

14

while saying, “Stop snitching, you bitch ass nigger. You fucking shut up for everybody else.”

15

ECF No. 9 at 11. As plaintiff was being escorted from the yard, a “correction officer by the name

16

of (Row-hon?) stated to me, ‘See what we made happen? See how we do? This is what happens

17

when you fuck with us.’” Id. Plaintiff alleges his injury was “bruises to the face.” Id.

18

These allegations are consistent with those in plaintiff’s original complaint, in which

19

plaintiff alleged that on July 1, 2015 he was attacked by two inmates and sustained facial injuries.

20

See ECF No. 1 (original complaint) at 13-4, 36-7. Plaintiff alleged that custody staff watched the

21

attack and allowed it to proceed for about three minutes before intervening. At the infirmary,

22

while plaintiff was being treated by a nurse, Correctional Officer “Rohana” told plaintiff, “See

23

what we made happen? See how we do? This is what happens when you [mess] with us, this is

24

how High Desert does it.” Id. at 13. Plaintiff was later taken to the local hospital where custody

25

staff shared a picture of plaintiff’s swollen face and said, “Look what we did to Johnson.” Id.

26

After his return to HDSP, correctional staff failed to seriously consider plaintiff’s safety fears. Id.

27

at 13-4.

28

////
8

1

Analysis: When “a prisoner seeks to hold a prison employee individually liable because

2

another prisoner attacked him, the prisoner must establish individual fault.” Leer v. Murphy, 844

3

F.2d 628, 634 (9th Cir. 1988) (citations omitted). “The inquiry into causation must be

4

individualized and focus on the duties and responsibilities of each individual defendant whose

5

acts or omissions are alleged to have caused a constitutional deprivation.” Id. at 633. Such

6

allegations “must focus on whether the individual defendant was in a position to take steps to

7

avert the [alleged] incident, but failed to do so intentionally or with deliberate indifference,” that

8

is, “a very individualized approach which accounts for the duties, discretion, and means of each

9

defendant.” Leer, 844 F.2d at 633-34.

10

The FAC identifies a Correctional Officer Rohon as one of the defendants in this case.

11

See ECF No. 9 at 2. Although the vague statements attributed to Rohon reference a collective

12

“we” and “us,” the court finds these allegations sufficient, for pleading purposes, to state a

13

cognizable failure-to-protect claim against Rohon. Premised on Rohon’s own alleged statements,

14

these allegations support an inference that Rohon (and perhaps others) knew of and disregarded

15

(or, more egregiously, arranged) an objectively serious risk of harm to plaintiff, and disregarded

16

the risk. See Farmer, 511 U.S. at 837-39. Therefore, the court finds that plaintiff can proceed on

17

Claim Seven of his FAC, on his Eighth Amendment failure-to-protect claim against defendant

18

Rohon.

19
20
21

V.

FOOD CONTAMINATION CLAIMS
A.

LEGAL STANDARDS

The court previously informed plaintiff of the following legal standards for stating an

22

Eighth Amendment claim premised on food contamination, see ECF No. 6 at 9-10:

23

“Prison officials have a duty to ensure that prisoners are provided
adequate shelter, food, clothing, sanitation, medical care, and
personal safety. The circumstances, nature, and duration of a
deprivation of these necessities must be considered in determining
whether a constitutional violation has occurred. The more basic the
need, the shorter the time it can be withheld.” Johnson v. Lewis, 217
F.3d 726, 731-32 (9th Cir. 2000) (citations and internal quotation
marks omitted). “The Eighth Amendment requires only that
prisoners receive food that is adequate to maintain health; it need not
be tasty or aesthetically pleasing.” LeMaire v. Maass, 12 F.3d 1444,
1456 (9th Cir. 1993) (citation omitted). “The fact that the food
9

24
25
26
27
28

1
2
3
4
5

occasionally contains foreign objects . . . while unpleasant, does not
amount to a constitutional deprivation.” Id. (citation and internal
quotation marks omitted). However, “[p]reventing disease and
protecting the health of inmates are legitimate penological goals.”
McClure v. Tucker, 276 Fed. Appx. 574, 575 (9th Cir. 2008).
“[S]ubjection of a prisoner to lack of sanitation that is severe or
prolonged can constitute an infliction of pain within the meaning of
the Eighth Amendment.” Anderson v. County of Kern, 45 F.3d
1310, 1314 (9th Cir.), opinion amended on denial of reh’g, 75 F.3d
448 (9th Cir. 1995).

6
7
8
9
10
11
12
13

Hence, deliberate food tampering and/or contamination, with the
intent to cause a prisoner psychological and/or physical harm, may
be actionable under the Eighth Amendment depending on the
“circumstances, nature, and duration” of the challenged conduct.
Johnson, 217 F.3d at 731-32. As with other Eighth Amendment
conditions-of-confinement claims, a claim based on tampered and/or
contaminated food must satisfy both the objective component that
the alleged deprivation of adequate food was “sufficiently serious,”
and the subjective component that the prison official acted with a
“sufficiently culpable state of mind,” Farmer, 511 U.S. at 834, that
is, that the official knew of and disregarded an excessive risk to
plaintiff’s health, id. at 837.

18

Pursuant to these legal standards, to state a cognizable claim based
on food tampering and/or contamination, plaintiff must allege
additional facts. Each alleged incident should include the date;
plaintiff’s housing at the time and the subject meal; a description of
the alleged contamination; the identity of the alleged perpetrator; and
the identity of any other correctional staff member who knowingly
delivered the contaminated food to plaintiff and/or failed to correct
the problem. Plaintiff must describe each challenged incident with
sufficient detail to show that each defendant allegedly involved in the
incident was aware of an objectively serious risk to plaintiff’s health
and but disregarded the risk.

19

B.

14
15
16
17

20

PLAINTIFF’S FOOD CONTAMINATION CLAIMS
CLAIM THREE

21

Plaintiff’s Allegations: Plaintiff alleges that on March 15, 2014, in HDSP’s “Facility

22

Standalone at chow time,” after beginning to eat his meal served by an unknown correctional

23

officer, plaintiff discovered “a thick slimy off-white substance which I identified as semen.” ECF

24

No. 9 at 5. Plaintiff immediately spat the food in his mouth into the toilet, as well as the food

25

remaining on the tray, and flushed the toilet. Later Sergeant Sieber came to plaintiff’s cell door

26

and asked him, “with a smile on his face,” if plaintiff had enjoyed his meal. An unknown

27

correctional officer walked up to Sieber and said, “Dude, did you really mix semen into that

28

dude’s food? You know he’s really not a sodomite right?” to which Sieber reportedly replied,
10

1

“They told me all that stuff is true.” Id. The officers then walked away from plaintiff’s cell door.

2

Plaintiff contends that this contaminated food made him ill and caused him to fall “into a stressful

3

mind state” in violation of his Eighth Amendment rights. Id.

4

Analysis: The undersigned finds these allegations sufficient to state a cognizable Eighth

5

Amendment claim against defendant Sieber. Plaintiff avers that Sieber implicitly acknowledged

6

to another officer, in plaintiff’s presence, that he had contaminated plaintiff’s food with semen.

7

Plaintiff contends that the contamination made him physically ill. These allegations meet the

8

requirements that the alleged conduct be “sufficiently serious” to form the basis for an Eighth

9

Amendment violation, and demonstrate that defendant acted “with a sufficiently culpable state of

10

mind.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quoting Wilson v. Seiter, 501 U.S.

11

294, 298 (1991)). Therefore, the court finds that plaintiff should be permitted to proceed on

12

Claim Three of his FAC, against defendant Sieber.

13
14

CLAIM SIX
Plaintiff’s Allegations: Plaintiff alleges that on February 20, 2015, while in Facility D-8

15

B Section Cell 219 during evening meal time, he watched Correctional Officers Rodriquez and

16

Morales passing out food trays. Plaintiff witnessed Rodriquez “bend slightly at the waste [sic]

17

and spit onto the dinner tray he handed me through the tray slot.” ECF No. 9 at 10. Later on that

18

evening, when Rodriquez was escorting Nurse “O,” plaintiff called Rodriquez to his cell door and

19

asked him in the nurse’s presence, “Does it make you feel like a bigger man to spit into people’s

20

food?” Rodriquez replied, “since your [sic] gonna put it like that, then yes, yes it does,” and

21

walked away. Id. Plaintiff asserts he has suffered “psychological and physical damage,”

22

including weight loss. Id.

23

Analysis: The undersigned finds these allegations sufficient to state a cognizable Eighth

24

Amendment claim against defendant Rodriquez. Plaintiff avers that he watched Rodriquez spit in

25

his food, that Rodriquez later implicitly acknowledged doing so, and that plaintiff has suffered

26

weight loss as a result. This claim reflects “sufficiently serious” conduct to support an Eighth

27

Amendment violation, and demonstrates that defendant acted “with a sufficiently culpable state of

28

mind.” Johnson, 217 F.3d at 731 (quoting Wilson, 501 U.S. at 298). Therefore, the court finds
11

1

that plaintiff should be permitted to proceed on Claim Six of his FAC against defendant

2

Rodriquez.

3

VI.

4

Most of the allegations of your First Amended Complaint (FAC) are too general to state a

SUMMARY FOR PRO SE PLAINTIFF

5

cognizable Eighth Amendment claim, or are based on things that don’t violate the constitution.

6

For example, statements by correctional officers that they don’t care about your safety may be

7

wrong and upsetting, but unless your safety is actually in danger and they fail to act, there is no

8

constitutional violation. Similarly, the incident with Officer Flice may have been humiliating, but

9

it was an isolated incident that did not involve touching or other conduct that would constitute an

10

assault or harassment, so it cannot support an Eighth Amendment claim.

11

However, three of your claims state facts which might, if proved, establish violations of

12

your constitutional rights. The facts you allege support the following cognizable claims: (1) an

13

Eighth Amendment failure-to-protect claim against defendant Rohon (Claim Seven): (2) an

14

Eighth Amendment food contamination claim against defendant Sieber (Claim Three); and (3) an

15

Eighth Amendment food contamination claim against defendant Rodriquez (Claim Six). The

16

court will direct you to provide the information necessary for the United States Marshal to serve

17

process on these defendants, and will recommend to the district judge the dismissal of all other

18

claims and defendants.

19

VII.

20

Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:

21

1. The Clerk of Court shall randomly assign a district judge to this action.

22

2. This action shall proceed on plaintiff’s First Amended Complaint (FAC), ECF No. 9,

23

CONCLUSION

on plaintiff’s Claims Three, Six and Seven.

24

3. Service of process is appropriate for defendants Rohon, Sieber and Rodriquez.

25

4. The Clerk of the Court is directed to send plaintiff three USM-285 forms, one

26
27
28

summons, an instruction sheet, and four copies of the endorsed FAC.
5. Within thirty (30) days after service of this order, plaintiff shall complete the attached
Notice of Submission of Documents and submit the following documents to the court:
12

1

a. The completed Notice of Submission of Documents;

2

b. One completed summons;

3

c. Three completed USM-285 forms, one for each defendant; and

4

d. Four copies of the endorsed FAC.

5

6. Plaintiff shall not attempt service on any defendant or request a waiver of service.

6

Upon receipt of the above-described documents, the court will direct the United States Marshal to

7

serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment

8

of costs.

9
10

7. Failure of plaintiff to timely comply with this order will result in the dismissal of this
action without prejudice.

11

Further, IT IS HEREBY RECOMMENDED that:

12

1. Claims One, Two, Four and Five of the First Amended Complaint be dismissed

13

without prejudice for failure to state a cognizable claim; and

14

2. Defendants Knedler, Davis, Morales, Flice, Walker, Krause, Fletcher, Cross, Sharpe,

15

Pena and Martinez be dismissed without prejudice for lack of cognizable claims against them.

16

These findings and recommendations are submitted to the United States District Judge

17

assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

18

days after being served with these findings and recommendations, any party may file written

19

objections with the court and serve a copy on all parties. Such a document should be captioned

20

“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

21

failure to file objections within the specified time may waive the right to appeal the District

22

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

23

DATED: August 20, 2018

24
25

26

27

28
13

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GILROY E. JOHNSON,

12
13

No. 2:16-cv-0367 AC P

Plaintiff,
v.

NOTICE OF SUBMISSION

14

SUZANNE M. PERRY, et al.,

15

Defendants.

16
17
18

Plaintiff submits the following documents in compliance with the court’s order filed
__________________:

19

____

one completed summons form

20

____

three completed USM-285 forms

21

____

four copies of the endorsed FAC

22
23
24

____________________________________
Date

____________________________________
Plaintiff

25
26
27
28
1