Wilkins v. Macomber et al

Filing 21

ORDER signed by Magistrate Judge Dennis M. Cota on 07/09/19 ORDERING that plaintiff may file a third amended complaint within 30 days of the date of service of this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEENAN WILKINS,

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Plaintiff,

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

v.

ORDER

JEFF MACOMBER, et al.,

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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 second amended complaint (ECF No.

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

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punishment, his equal protection rights under the Fourteenth Amendment, his First Amendment

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right to the free exercise of religion, and his Fourth Amendment right to bodily privacy. Plaintiff

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also asserts a conspiracy claim under section 1985 and a failure to act/protect claim under section

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1986.

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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).
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

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Plaintiff raises six claims in his second 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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housed in a constitutionally inadequate double-cell. Plaintiff does not contend that the practice of

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double celling is itself a violation of the Eighth amendment, but asserts his particular double cell

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is unconstitutional. Specifically, Plaintiff alleges the conditions deprive him of privacy, forcing

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him to expose himself to his cellmate. Plaintiff claims the lack of a ladder is a safety hazard that

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has resulted in an injury to his shoulder. Plaintiff alleges he is forced to eat while his cellmate

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uses the toilet—creating an unsanitary living condition—and Plaintiff contends his cellmate is

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dangerous. Plaintiff argues Defendants MaComber, Harrington, and Lockwood were made aware

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of these deficiencies and continued to allow Plaintiff to be double-celled, thus violating his Eighth

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Amendment rights.

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(2) Plaintiff alleges Defendants MaComber, B. Moore, and R. Ramirez violated

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his equal protection rights under the Fourteenth Amendment by housing him in a double cell

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rather than a single cell. 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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also violating his equal protection rights. (3) Plaintiff alleges Defendants David, Stewart,

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MaComber, and Giannelli violated his First Amendment rights to religious practice by denying

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him access to Jewish services. (4) Plaintiff alleges Defendants MaComber and Harrington

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violated his Fourth Amendment right to privacy by allowing him to be double-celled.

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Specifically, Plaintiff contends by forcing him to double cell he must expose himself to his

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cellmate when urinating, defecating, and bathing. (5) Plaintiff alleges Defendants David,

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Giannelli, and Stewart conspired against him, in violation of section 1985, to deny him equal

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protection to Jewish services because he was an EOP mental health prisoner. (6) Plaintiff alleges

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Defendants Stewart, MaComber, and Harrington, failed to act and protect him from the denial of

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Jewish services in violation of section 1986.
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III. ANALYSIS
A.

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Claim 1: Eighth Amendment
Plaintiff alleges the specific conditions of his double cell confinement violate the

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constitutional standards established under the Eighth Amendment. Plaintiff, thus, does not

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challenge the practice of double celling but rather the circumstances related to his double cell. On

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this basis, Plaintiff has alleged sufficient facts as to Defendants Macomber, Harrington, and

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Lockwood to pass screening.

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B.

Claim 2: Equal Protection
Plaintiff alleges Defendants MaComber, B. Moore, and R. Ramirez violated his

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equal protection rights under the Fourteenth Amendment by housing him in a double cell rather

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

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other EOP inmates a single cell, is a violation of the Equal Protection Cause of the Fourteenth

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Amendment. Plaintiff further alleges Defendant Orel David violated his equal protection rights

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by denying him access to Jewish services. Plaintiff contends that defendants Stewart,

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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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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).

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Just as in his first amended complaint, Plaintiff has again failed to plead facts

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indicating that he was placed in a double cell due to discrimination on the basis of a protected

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class. The only argument presented is that by denying Plaintiff a single cell, because he did not

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have a history of cell violence, Defendants violated the Equal Protection Clause of the Fourteenth

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Amendment because other EOP mental health prisoners were granted single cells. This argument

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does not state a cognizable claim. Simply because other EOP mental health prisoners were

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granted single cells while Plaintiff was not, is not a sufficient factual basis to support an equal

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protection claim. Plaintiff is required to plead facts indicating that the defendants discriminated

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against him. The facts pleaded do not indicate discrimination, rather they indicate a rational

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penological reason for housing Plaintiff in a double cell because he has no history of cell

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violence. For that reason, this is not a cognizable claim and amendment likely would be futile.

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By contrast, Plaintiff’s equal protection argument related to the denial of access to Jewish

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

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because he was an EOP Mental Health prisoner.” As noted above, prisoners are protected from

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intentional discrimination on the basis of their religion. Freeman v. Arpaio, 125 F.3d 732, 737,

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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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(9th Cir. 1997). Plaintiff has pleaded sufficient facts for this claim to 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 pleaded sufficient facts for his First Amendment religious practice claim to continue past

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screening.

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D.

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Claim 4: Fourth Amendment—Bodily Privacy
The Fourth Amendment applies to the invasion of bodily privacy in prisons and

jails. Bull, 595 F.3d at 974–75. “[I]ncarcerated prisoners retain a limited right to bodily

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privacy.” Michenfelder, 860 F.2d at 333 (9th Cir. 1988). The United States Court of Appeals for

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the Ninth Circuit has long recognized that “[t]he desire to shield one’s unclothed figure from view

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of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect

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and personal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir. 1963); see also Michenfelder,

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860 F.2d at 333 (same). “The [Supreme] Court [has] obviously recognized that not all strip search

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procedures will be reasonable; some could be excessive, vindictive, harassing, or unrelated to any

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legitimate penological interest.” Michenfelder, 860 F.2d at 332.

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Plaintiff claims that by being housed in a double cell, without privacy curtains or

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modesty protections, he is forced to expose himself to his cellmate and “wondering eyes.” This,

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Plaintiff asserts, is a violation of his Fourth Amendment right to privacy. However, Plaintiff’s

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allegations fail to state a Fourth Amendment claim. To the extent that the Ninth Circuit has

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recognized prisoner’s Fourth Amendment privacy rights, it has been related to strip searches,

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particularly those in the presence of officials of the opposite sex. There is simply no right to the

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privacy for prisoners under the Fourth Amendment that requires shelter from “wondering eyes” or

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the placement of privacy curtains in inmates’ cells—even when the cell in shared. For that

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reason, Plaintiff’s Fourth Amendment claim cannot proceed and amendment would likely be

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futile.

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E.

Claim 5: Conspiracy under § 1985
Section 1985 proscribes conspiracies to interfere with an individual's civil rights.
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To state a cause of action under § 1985(3), plaintiff must allege: (1) a conspiracy, (2) to deprive

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any person or class of persons of the equal protection of the laws, (3) an act done by one of the

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conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage, or

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deprivation of any right or privilege of a citizen of the United States. Gillispie v. Civiletti, 629

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F.2d 637, 641 (9th Cir. 1980); Giffin v. Breckenridge, 403 U.S. 88, 102-03

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(1971). Section 1985 applies only where there is a racial or other class-based discriminatory

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animus behind the conspirators' actions. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th

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Cir. 1992).

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The Ninth Circuit has held that a claim under § 1985 must allege specific facts to

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support the allegation that defendants conspired together. Karim-Panahi, 839 F.2d at 626. A mere

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allegation of conspiracy without factual specificity is insufficient to state a claim under

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42 U.S.C. § 1985. Id.; Sanchez v. City of Santa Anna, 936 F.2d 1027, 1039 (9th Cir. 1991).

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Plaintiff simply asserts Defendants David, Giannelli, and Stewart conspired

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against him to “deny him equal protection to Jewish services due to being an EOP mental health

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prisoner.” Though Plaintiff has alleged a violation of his Fourteenth Amendment equal

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protection rights in a different claim, Plaintiff does nothing in this claim to connect those alleged

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violations to a conspiracy against him. This claim lacks any degree of factual specificity and thus

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cannot proceed. Plaintiff will be provided leave to amend to allege additional facts, if such facts

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exist, related to the alleged conspiracy.

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Claim 6: Failure to Act/ Protect under § 1986
Plaintiff also brings a claim for failure to act or protect in violation

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of 42 U.S.C. § 1986. “Section 1986 provides a cause of action against anyone who has

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‘knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this

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title, are about to be committed, and having the power to prevent or aid in preventing the

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commission of the same, neglects or refuses so to do.’” Park v. City of Atlanta, 120 F.3d 1157,

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1159–60 (11th Cir. 1997) (quoting 42 U.S.C. § 1986). “Section 1986 claims are therefore

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derivative of § 1985 violations.” Park, 120 F.3d at 1160. “The text of § 1986 requires the

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existence of a § 1985 conspiracy.” Id. Section 42 U.S.C. § 1986 provides a cause of action for
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damages for violation of section 1985. I.H. by & through Hunter v. Oakland Sch. for Arts, 234 F.

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Supp. 3d 987, 994 (N.D. Cal. 2017).

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Section 1986 is a derivative action related to a section 1985 violation. Because

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there are insufficient facts to establish a section 1985 violation, it necessarily follows there are

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insufficient facts to establish a section 1986 violation. For that reason, this claim cannot proceed.

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As Plaintiff is provided leave to amend his section 1985 claim, Plaintiff too will be given an

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opportunity to amend his section 1986 claim.

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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 some of the defects identified in this order cannot be cured by

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amendment, plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now

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has the following choices: (1) Plaintiff may decline to file an amended complaint, in which case
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the court will issue findings and recommendations that the claims identified herein as defective be

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dismissed, as well as such further orders as are necessary for service of process as to the

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cognizable claims; or (2) plaintiff may file an amended complaint which does not allege the

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claims identified herein as incurable, in which case such claims will be deemed abandoned and

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the court will address the remaining claims; or (3) plaintiff may file an amended complaint which

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continues to allege claims identified as incurable, in which case the court will issue findings and

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recommendations that such claims be dismissed from this action, as well as such other orders

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and/or findings and recommendations as may be necessary to address the remaining claims.

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V. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that plaintiff may file a third amended
complaint within 30 days of the date of service of this order.

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Dated: July 9, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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