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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNAN WILKINS,

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No. 2:16-CV-0475-TLN-DMC-P

Plaintiff,
v.

ORDER

JEFF MACOMBER, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is Plaintiff’s first amended complaint (ECF No. 16).

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Plaintiff alleges Defendants violated his Eighth Amendment right against cruel and unusual

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punishment, his due process and equal protection rights under the Fourteenth Amendment, and

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his First Amendment right to the free exercise of religion.

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I. SCREENING REQUIREMENT AND STANDARD

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

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).
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The Federal Rules of Civil Procedure require complaints contain a “…short and

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plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual

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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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

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pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d

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338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation

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marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The

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sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with

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liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss, 572F.3d at 969.

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II. PLAINTIFF’S ALLEGATIONS
Plaintiff raises three claims in his first amended complaint. (1) Plaintiff alleges

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defendants Jeff Macomber, Kelly Harrington, and Timothy Lockwood violated his Eighth

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Amendment right against cruel and unusual punishment by knowingly allowing Plaintiff to be

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double celled. Plaintiff contends that the practice of double celling is itself a violation of the

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Eighth amendment as it poses hazards to inmates, exposes inmates to danger, and is inhumane.

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Plaintiff argues defendants Macomber, Harrington, and Lockwood were made aware of this and

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continued to allow Plaintiff to be double celled, thus violating his Eighth Amendment rights. In

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this same claim, Plaintiff raises an issue contending that double celling violates his right to
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privacy by forcing him to disrobe and use the restroom in front of his cellmate. However, it is

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unclear if Plaintiff’s argument is that of a Fourth Amendment violation or if he is alleging that

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having to disrobe and use the restroom in front of his cellmate constitutes cruel and unusual

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punishment—a violation of the Eighth Amendment. (2) Plaintiff alleges defendants Macomber,

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Harrington, Lockwood, B. Moore, and R. Ramirez violated his equal protection rights under the

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Fourteenth Amendment by housing him in a double cell rather than a single cell. Plaintiff further

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alleges defendant Orel David violated his equal protection rights by denying him access to Jewish

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services. Plaintiff contends that defendants Stewart, Macomber and Giannelli were aware of this

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denial and failed to take proper action, thus also violating his equal protection rights. (3) Plaintiff

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alleges defendants David, Stewart, Macomber, and Giannelli violated his First Amendment rights

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to religious practice by denying him access to Jewish services.

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III. ANALYSIS
A.

Claim 1: Eighth Amendment and Privacy

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Plaintiff alleges defendants Jeff Macomber, Kelly Harrington, and Timothy

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Lockwood violated his Eighth Amendment right against cruel and unusual punishment by

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knowingly allowing Plaintiff to be double celled. The treatment a prisoner receives in prison and

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the conditions under which the prisoner is confined are subject to scrutiny under the Eighth

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Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S.

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25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . .

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embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”

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Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh

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and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials

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must provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal

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safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates

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the Eighth Amendment only when two requirements are met: (1) objectively, the official’s act or

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omission must be so serious such that it results in the denial of the minimal civilized measure of

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life’s necessities; and (2) subjectively, the prison official must have acted unnecessarily and
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wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the

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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

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double celling inmates is, on its own, a violation of the Eighth Amendment. However, double-

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celling inmates is not a per se constitutional violation. Rhodes v. Chapman, 452 U.S. 337, 348

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(1981). In order to successfully litigate a section 1983 claim based on conditions of confinement,

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a prisoner must demonstrate that officials violated the Eighth Amendment by acting with

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deliberate indifference to the threat of serious harm or injury by another inmate. Berg v.

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Kincheloe, 794 F.2d 457, 459 (9th Cir.1986).

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While the Eighth Amendment can provide a basis for relief where prison officials

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are aware of the probability of an attack, prison officials, however, must have more than a mere

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suspicion that an attack will occur. Id. Plaintiff’s pleadings, and the exhibits thereto in the form

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of letters to defendants Macomber, Lockwood and Harington, provide only generalized

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contentions that the cell conditions at issue could result in injury, for example, when plaintiff was

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compelled to jump to the floor from the upper bunk. While defendants were apparently made

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aware of plaintiff’s contentions, there are no facts that indicate any of the above-mentioned

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defendants were aware of a specific threat of serious harm or injury to Plaintiff by his cellmate,

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nor are there facts that indicate any of the above-mentioned defendants were aware of a high

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probability of an attack on Plaintiff. Absent allegations supported by factual assertions to such a

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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

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Plaintiff’s Eighth Amendment claim. In which case he would be arguing that the “invasion of

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privacy”—having to be naked and use the restroom in the presence of his cellmate violate the

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Eighth Amendment. However, the citations provided by plaintiff discuss violations of the Fourth

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Amendment. Because it is unclear whether this issue is a connected issue to the above discussed

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Eighth Amendment claim or a separate Fourth Amendment claim, the Court is unable to identify

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a cognizable claim that can proceed and for that reason this claim cannot pass screening.

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B.

Claim 2: Equal Protection

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Plaintiff alleges defendants Macomber, Harrington, Lockwood, B. Moore, and R.

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Ramirez violated his equal protection rights under the Fourteenth Amendment by housing him in

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a double cell rather than a single cell. Specifically, Plaintiff argues that housing him in a double

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cell, while allowing others a single cell, is a violation of the equal protection clause of the

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Fourteenth Amendment. Plaintiff further alleges defendant Orel David violated his equal

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protection rights by denying him access to Jewish services. Plaintiff contends that defendants

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Stewart, Macomber and Giannelli were aware of this denial and failed to take proper action, thus

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violating his equal protection rights as well.

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Equal protection claims arise when a charge is made that similarly situated

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individuals are treated differently without a rational relationship to a legitimate state purpose. See

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San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Prisoners are protected from

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invidious discrimination based on race. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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Racial segregation is unconstitutional within prisons save for the necessities of prison security

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and discipline. See Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). Prisoners are also

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protected from intentional discrimination on the basis of their religion. See Freeman v. Arpaio,

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125 F.3d 732, 737 (9th Cir. 1997). Equal protection claims are not necessarily limited to racial

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and religious discrimination. See Lee v. City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir.

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2001) (applying minimal scrutiny to equal protection claim by a disabled plaintiff because the

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disabled do not constitute a suspect class) see also Tatum v. Pliler, 2007 WL 1720165 (E.D. Cal.

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2007) (applying minimal scrutiny to equal protection claim based on denial of in-cell meals

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where no allegation of race-based discrimination was made); Hightower v. Schwarzenegger, 2007

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WL 732555 (E.D. Cal. March 19, 2008).1

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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).
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In order to state a § 1983 claim based on a violation of the Equal Protection Clause

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of the Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional

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discrimination against plaintiff, or against a class of inmates which included plaintiff, and that

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such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v.

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Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class

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of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940

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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

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celled, Plaintiff has pleaded no facts indicating that he was placed in a double cell due to

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discrimination on the basis of a protected class. The only argument presented is that by denying

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Plaintiff a single cell because he did not have a history of cell violence is a violation of the equal

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protection clause of the Fourteenth Amendment because other EOP mental health prisoners were

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granted single cells. This argument does not state a cognizable claim. Simply because other EOP

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mental health prisoners were granted single cells while Plaintiff was not, is not a sufficient factual

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basis to support an equal protection claim. Plaintiff is required to plead facts indicating that the

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defendants discriminated against him. The facts pleaded do not indicate discrimination, rather

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they indicate that a rational penological reason for housing Plaintiff in a double cell—because he

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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

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to Jewish services. Plaintiff argues that he was denied access to Jewish services “solely because

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he was an EOP Mental Health prisoner.” Plaintiff has pleaded sufficient facts for this claim to

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proceed past screening.

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C.

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Claim 3: First Amendment—Religious Practice
Plaintiff alleges defendants David, Stewart, Macomber, and Giannelli violated his

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first amendment rights to religious practice by denying him access to Jewish services. Plaintiff

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has plead sufficient facts for his First Amendment religious practice claim to continue past

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screening.
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IV. AMENDING THE COMPLAINT

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Because it is possible that some of the deficiencies identified in this order may be

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cured by amending the complaint, plaintiff is entitled to leave to amend. See Lopez v. Smith, 203

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F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an

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amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the court cannot refer to the

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prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be complete in itself without reference to any prior pleading. See id.

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This means, in practical terms, if Plaintiff files an amended complaint he must not only cure the

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deficiencies identified in this order, but also reallege the cognizable claim(s) discussed in this

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Court’s order

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Because the complaint appears to otherwise state cognizable claims, if no amended

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complaint is filed within the time allowed therefor, the court will issue findings and

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recommendations that the claims identified herein as defective be dismissed, as well as such

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further orders as are necessary for service of process as to the cognizable claims.

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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.

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Dated: January 15, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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