Wilkins v. Macomber et al

Filing 19

ORDER signed by Magistrate Judge Dennis M. Cota on 1/15/2019 ORDERING Plaintiff to file a second amended complaint within 30 days of the date of service of this order. (Henshaw, R)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNAN WILKINS, 12 13 14 15 No. 2:16-CV-0475-TLN-DMC-P Plaintiff, v. ORDER JEFF MACOMBER, et al., Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is Plaintiff’s first amended complaint (ECF No. 16). 19 Plaintiff alleges Defendants violated his Eighth Amendment right against cruel and unusual 20 punishment, his due process and equal protection rights under the Fourteenth Amendment, and 21 his First Amendment right to the free exercise of religion. 22 23 I. SCREENING REQUIREMENT AND STANDARD 24 The Court is required to screen complaints brought by prisoners seeking relief 25 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 26 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 27 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 28 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). 1 The Federal Rules of Civil Procedure require complaints contain a “…short and 1 2 plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v. 3 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual 4 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 5 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 6 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s 7 allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. 8 Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 9 omitted). 10 Prisoners proceeding pro se in civil rights actions are entitled to have their 11 pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 12 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be 13 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 14 that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation 15 marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The 16 sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with 17 liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks 18 omitted); Moss, 572F.3d at 969. 19 20 21 II. PLAINTIFF’S ALLEGATIONS Plaintiff raises three claims in his first amended complaint. (1) Plaintiff alleges 22 defendants Jeff Macomber, Kelly Harrington, and Timothy Lockwood violated his Eighth 23 Amendment right against cruel and unusual punishment by knowingly allowing Plaintiff to be 24 double celled. Plaintiff contends that the practice of double celling is itself a violation of the 25 Eighth amendment as it poses hazards to inmates, exposes inmates to danger, and is inhumane. 26 Plaintiff argues defendants Macomber, Harrington, and Lockwood were made aware of this and 27 continued to allow Plaintiff to be double celled, thus violating his Eighth Amendment rights. In 28 this same claim, Plaintiff raises an issue contending that double celling violates his right to 2 1 privacy by forcing him to disrobe and use the restroom in front of his cellmate. However, it is 2 unclear if Plaintiff’s argument is that of a Fourth Amendment violation or if he is alleging that 3 having to disrobe and use the restroom in front of his cellmate constitutes cruel and unusual 4 punishment—a violation of the Eighth Amendment. (2) Plaintiff alleges defendants Macomber, 5 Harrington, Lockwood, B. Moore, and R. Ramirez violated his equal protection rights under the 6 Fourteenth Amendment by housing him in a double cell rather than a single cell. Plaintiff further 7 alleges defendant Orel David violated his equal protection rights by denying him access to Jewish 8 services. Plaintiff contends that defendants Stewart, Macomber and Giannelli were aware of this 9 denial and failed to take proper action, thus also violating his equal protection rights. (3) Plaintiff 10 alleges defendants David, Stewart, Macomber, and Giannelli violated his First Amendment rights 11 to religious practice by denying him access to Jewish services. 12 13 14 III. ANALYSIS A. Claim 1: Eighth Amendment and Privacy 15 Plaintiff alleges defendants Jeff Macomber, Kelly Harrington, and Timothy 16 Lockwood violated his Eighth Amendment right against cruel and unusual punishment by 17 knowingly allowing Plaintiff to be double celled. The treatment a prisoner receives in prison and 18 the conditions under which the prisoner is confined are subject to scrutiny under the Eighth 19 Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 20 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . 21 embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” 22 Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh 23 and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials 24 must provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal 25 safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates 26 the Eighth Amendment only when two requirements are met: (1) objectively, the official’s act or 27 omission must be so serious such that it results in the denial of the minimal civilized measure of 28 life’s necessities; and (2) subjectively, the prison official must have acted unnecessarily and 3 1 wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the 2 Eighth Amendment, a prison official must have a “sufficiently culpable mind.” See id. Plaintiff’s argument here is largely based on the contention that the practice of 3 4 double celling inmates is, on its own, a violation of the Eighth Amendment. However, double- 5 celling inmates is not a per se constitutional violation. Rhodes v. Chapman, 452 U.S. 337, 348 6 (1981). In order to successfully litigate a section 1983 claim based on conditions of confinement, 7 a prisoner must demonstrate that officials violated the Eighth Amendment by acting with 8 deliberate indifference to the threat of serious harm or injury by another inmate. Berg v. 9 Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). 10 While the Eighth Amendment can provide a basis for relief where prison officials 11 are aware of the probability of an attack, prison officials, however, must have more than a mere 12 suspicion that an attack will occur. Id. Plaintiff’s pleadings, and the exhibits thereto in the form 13 of letters to defendants Macomber, Lockwood and Harington, provide only generalized 14 contentions that the cell conditions at issue could result in injury, for example, when plaintiff was 15 compelled to jump to the floor from the upper bunk. While defendants were apparently made 16 aware of plaintiff’s contentions, there are no facts that indicate any of the above-mentioned 17 defendants were aware of a specific threat of serious harm or injury to Plaintiff by his cellmate, 18 nor are there facts that indicate any of the above-mentioned defendants were aware of a high 19 probability of an attack on Plaintiff. Absent allegations supported by factual assertions to such a 20 threat or probability of an attack Plaintiff’s Eighth Amendment claim cannot proceed. Plaintiff’s privacy argument is unclear. The argument seems to stem from 21 22 Plaintiff’s Eighth Amendment claim. In which case he would be arguing that the “invasion of 23 privacy”—having to be naked and use the restroom in the presence of his cellmate violate the 24 Eighth Amendment. However, the citations provided by plaintiff discuss violations of the Fourth 25 Amendment. Because it is unclear whether this issue is a connected issue to the above discussed 26 Eighth Amendment claim or a separate Fourth Amendment claim, the Court is unable to identify 27 a cognizable claim that can proceed and for that reason this claim cannot pass screening. 28 /// 4 1 B. Claim 2: Equal Protection 2 Plaintiff alleges defendants Macomber, Harrington, Lockwood, B. Moore, and R. 3 Ramirez violated his equal protection rights under the Fourteenth Amendment by housing him in 4 a double cell rather than a single cell. Specifically, Plaintiff argues that housing him in a double 5 cell, while allowing others a single cell, is a violation of the equal protection clause of the 6 Fourteenth Amendment. Plaintiff further alleges defendant Orel David violated his equal 7 protection rights by denying him access to Jewish services. Plaintiff contends that defendants 8 Stewart, Macomber and Giannelli were aware of this denial and failed to take proper action, thus 9 violating his equal protection rights as well. 10 Equal protection claims arise when a charge is made that similarly situated 11 individuals are treated differently without a rational relationship to a legitimate state purpose. See 12 San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Prisoners are protected from 13 invidious discrimination based on race. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 14 Racial segregation is unconstitutional within prisons save for the necessities of prison security 15 and discipline. See Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). Prisoners are also 16 protected from intentional discrimination on the basis of their religion. See Freeman v. Arpaio, 17 125 F.3d 732, 737 (9th Cir. 1997). Equal protection claims are not necessarily limited to racial 18 and religious discrimination. See Lee v. City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir. 19 2001) (applying minimal scrutiny to equal protection claim by a disabled plaintiff because the 20 disabled do not constitute a suspect class) see also Tatum v. Pliler, 2007 WL 1720165 (E.D. Cal. 21 2007) (applying minimal scrutiny to equal protection claim based on denial of in-cell meals 22 where no allegation of race-based discrimination was made); Hightower v. Schwarzenegger, 2007 23 WL 732555 (E.D. Cal. March 19, 2008).1 24 /// 25 /// 26 Error! Main Document Only.Strict scrutiny applies to equal protection claims alleging race-based or religious discrimination (i.e., where the plaintiff is member of a “protected class”); minimal scrutiny applies to all other equal protection claims. See Lee v. City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001). 5 1 27 28 1 In order to state a § 1983 claim based on a violation of the Equal Protection Clause 2 of the Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional 3 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that 4 such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v. 5 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class 6 of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. 7 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940 8 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). Looking first to Plaintiff’s equal protection argument related to being double 9 10 celled, Plaintiff has pleaded no facts indicating that he was placed in a double cell due to 11 discrimination on the basis of a protected class. The only argument presented is that by denying 12 Plaintiff a single cell because he did not have a history of cell violence is a violation of the equal 13 protection clause of the Fourteenth Amendment because other EOP mental health prisoners were 14 granted single cells. This argument does not state a cognizable claim. Simply because other EOP 15 mental health prisoners were granted single cells while Plaintiff was not, is not a sufficient factual 16 basis to support an equal protection claim. Plaintiff is required to plead facts indicating that the 17 defendants discriminated against him. The facts pleaded do not indicate discrimination, rather 18 they indicate that a rational penological reason for housing Plaintiff in a double cell—because he 19 has no history of cell violence. For that reason, this is not a cognizable claim. Turning now to Plaintiff’s equal protection argument related to the denial of access 20 21 to Jewish services. Plaintiff argues that he was denied access to Jewish services “solely because 22 he was an EOP Mental Health prisoner.” Plaintiff has pleaded sufficient facts for this claim to 23 proceed past screening. 24 C. 25 Claim 3: First Amendment—Religious Practice Plaintiff alleges defendants David, Stewart, Macomber, and Giannelli violated his 26 first amendment rights to religious practice by denying him access to Jewish services. Plaintiff 27 has plead sufficient facts for his First Amendment religious practice claim to continue past 28 screening. 6 1 IV. AMENDING THE COMPLAINT 2 Because it is possible that some of the deficiencies identified in this order may be 3 cured by amending the complaint, plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 4 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 5 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 6 1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the court cannot refer to the 7 prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An 8 amended complaint must be complete in itself without reference to any prior pleading. See id. 9 This means, in practical terms, if Plaintiff files an amended complaint he must not only cure the 10 deficiencies identified in this order, but also reallege the cognizable claim(s) discussed in this 11 Court’s order 12 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 13 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 14 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 15 each named defendant is involved, and must set forth some affirmative link or connection 16 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 17 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Because the complaint appears to otherwise state cognizable claims, if no amended 19 complaint is filed within the time allowed therefor, the court will issue findings and 20 recommendations that the claims identified herein as defective be dismissed, as well as such 21 further orders as are necessary for service of process as to the cognizable claims. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 7 1 2 3 V. CONCLUSION Accordingly, IT IS HEREBY ORDERED that plaintiff may file a second amended complaint within 30 days of the date of service of this order. 4 5 6 Dated: January 15, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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