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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEENAN WILKINS, 12 Plaintiff, 13 14 No. 2:16-CV-0475-TLN-DMC v. ORDER JEFF MACOMBER, et al., 15 Defendants. 16 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 17 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s second amended complaint (ECF No. 19 20). Plaintiff alleges Defendants violated his Eighth Amendment right against cruel and unusual 20 punishment, his equal protection rights under the Fourteenth Amendment, his First Amendment 21 right to the free exercise of religion, and his Fourth Amendment right to bodily privacy. Plaintiff 22 also asserts a conspiracy claim under section 1985 and a failure to act/protect claim under section 23 1986. 24 /// 25 /// 26 /// 27 /// 28 /// 1 1 I. SCREENING REQUIREMENT AND STANDARD 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 4 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 5 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 6 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 7 8 plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v. 9 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual 10 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 11 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s 13 allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. 14 Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 15 omitted). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their 17 pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 18 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 20 that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation 21 marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The 22 sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with 23 liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks 24 omitted); Moss, 572F.3d at 969. 25 /// 26 /// 27 /// 28 /// 2 II. PLAINTIFF’S ALLEGATIONS 1 2 Plaintiff raises six claims in his second amended complaint. (1) Plaintiff alleges 3 Defendants Jeff MaComber, Kelly Harrington, and Timothy Lockwood violated his Eighth 4 Amendment right against cruel and unusual punishment by knowingly allowing Plaintiff to be 5 housed in a constitutionally inadequate double-cell. Plaintiff does not contend that the practice of 6 double celling is itself a violation of the Eighth amendment, but asserts his particular double cell 7 is unconstitutional. Specifically, Plaintiff alleges the conditions deprive him of privacy, forcing 8 him to expose himself to his cellmate. Plaintiff claims the lack of a ladder is a safety hazard that 9 has resulted in an injury to his shoulder. Plaintiff alleges he is forced to eat while his cellmate 10 uses the toilet—creating an unsanitary living condition—and Plaintiff contends his cellmate is 11 dangerous. Plaintiff argues Defendants MaComber, Harrington, and Lockwood were made aware 12 of these deficiencies and continued to allow Plaintiff to be double-celled, thus violating his Eighth 13 Amendment rights. 14 (2) Plaintiff alleges Defendants MaComber, B. Moore, and R. Ramirez violated 15 his equal protection rights under the Fourteenth Amendment by housing him in a double cell 16 rather than a single cell. Plaintiff further alleges Defendant Orel David violated his equal 17 protection rights by denying him access to Jewish services. Plaintiff contends that Defendants 18 Stewart, MaComber, and Giannelli were aware of this denial and failed to take proper action, thus 19 also violating his equal protection rights. (3) Plaintiff alleges Defendants David, Stewart, 20 MaComber, and Giannelli violated his First Amendment rights to religious practice by denying 21 him access to Jewish services. (4) Plaintiff alleges Defendants MaComber and Harrington 22 violated his Fourth Amendment right to privacy by allowing him to be double-celled. 23 Specifically, Plaintiff contends by forcing him to double cell he must expose himself to his 24 cellmate when urinating, defecating, and bathing. (5) Plaintiff alleges Defendants David, 25 Giannelli, and Stewart conspired against him, in violation of section 1985, to deny him equal 26 protection to Jewish services because he was an EOP mental health prisoner. (6) Plaintiff alleges 27 Defendants Stewart, MaComber, and Harrington, failed to act and protect him from the denial of 28 Jewish services in violation of section 1986. 3 1 2 III. ANALYSIS A. 3 Claim 1: Eighth Amendment Plaintiff alleges the specific conditions of his double cell confinement violate the 4 constitutional standards established under the Eighth Amendment. Plaintiff, thus, does not 5 challenge the practice of double celling but rather the circumstances related to his double cell. On 6 this basis, Plaintiff has alleged sufficient facts as to Defendants Macomber, Harrington, and 7 Lockwood to pass screening. 8 9 B. Claim 2: Equal Protection Plaintiff alleges Defendants MaComber, B. Moore, and R. Ramirez violated his 10 equal protection rights under the Fourteenth Amendment by housing him in a double cell rather 11 than a single cell. Specifically, Plaintiff argues that housing him in a double cell, while allowing 12 other EOP inmates a single cell, is a violation of the Equal Protection Cause of the Fourteenth 13 Amendment. Plaintiff further alleges Defendant Orel David violated his equal protection rights 14 by denying him access to Jewish services. Plaintiff contends that defendants Stewart, 15 MaComber, and Giannelli were aware of this denial and failed to take proper action, thus 16 violating his equal protection rights as well. 17 Equal protection claims arise when a charge is made that similarly situated 18 individuals are treated differently without a rational relationship to a legitimate state purpose. See 19 San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Prisoners are protected from 20 invidious discrimination based on race. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 21 Racial segregation is unconstitutional within prisons save for the necessities of prison security 22 and discipline. See Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). Prisoners are also 23 protected from intentional discrimination on the basis of their religion. See Freeman v. Arpaio, 24 125 F.3d 732, 737 (9th Cir. 1997). Equal protection claims are not necessarily limited to racial 25 and religious discrimination. See Lee v. City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir. 26 2001) (applying minimal scrutiny to equal protection claim by a disabled plaintiff because the 27 disabled do not constitute a suspect class) see also Tatum v. Pliler, 2007 WL 1720165 (E.D. Cal. 28 2007) (applying minimal scrutiny to equal protection claim based on denial of in-cell meals 4 1 where no allegation of race-based discrimination was made); Hightower v. Schwarzenegger, 2007 2 WL 732555 (E.D. Cal. March 19, 2008).1 3 In order to state a § 1983 claim based on a violation of the Equal Protection Clause 4 of the Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional 5 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that 6 such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v. 7 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class 8 of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. 9 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940 10 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). 11 Just as in his first amended complaint, Plaintiff has again failed to plead facts 12 indicating that he was placed in a double cell due to discrimination on the basis of a protected 13 class. The only argument presented is that by denying Plaintiff a single cell, because he did not 14 have a history of cell violence, Defendants violated the Equal Protection Clause of the Fourteenth 15 Amendment because other EOP mental health prisoners were granted single cells. This argument 16 does not state a cognizable claim. Simply because other EOP mental health prisoners were 17 granted single cells while Plaintiff was not, is not a sufficient factual basis to support an equal 18 protection claim. Plaintiff is required to plead facts indicating that the defendants discriminated 19 against him. The facts pleaded do not indicate discrimination, rather they indicate a rational 20 penological reason for housing Plaintiff in a double cell because he has no history of cell 21 violence. For that reason, this is not a cognizable claim and amendment likely would be futile. 22 By contrast, Plaintiff’s equal protection argument related to the denial of access to Jewish 23 services survives screening. Plaintiff argues that he was denied access to Jewish services “solely 24 because he was an EOP Mental Health prisoner.” As noted above, prisoners are protected from 25 intentional discrimination on the basis of their religion. Freeman v. Arpaio, 125 F.3d 732, 737, 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 (9th Cir. 1997). Plaintiff has pleaded sufficient facts for this claim to proceed past screening. 2 C. 3 Claim 3: First Amendment—Religious Practice Plaintiff alleges Defendants David, Stewart, MaComber, and Giannelli violated his 4 First Amendment rights to religious practice by denying him access to Jewish services. Plaintiff 5 has pleaded sufficient facts for his First Amendment religious practice claim to continue past 6 screening. 7 D. 8 9 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 10 privacy.” Michenfelder, 860 F.2d at 333 (9th Cir. 1988). The United States Court of Appeals for 11 the Ninth Circuit has long recognized that “[t]he desire to shield one’s unclothed figure from view 12 of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect 13 and personal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir. 1963); see also Michenfelder, 14 860 F.2d at 333 (same). “The [Supreme] Court [has] obviously recognized that not all strip search 15 procedures will be reasonable; some could be excessive, vindictive, harassing, or unrelated to any 16 legitimate penological interest.” Michenfelder, 860 F.2d at 332. 17 Plaintiff claims that by being housed in a double cell, without privacy curtains or 18 modesty protections, he is forced to expose himself to his cellmate and “wondering eyes.” This, 19 Plaintiff asserts, is a violation of his Fourth Amendment right to privacy. However, Plaintiff’s 20 allegations fail to state a Fourth Amendment claim. To the extent that the Ninth Circuit has 21 recognized prisoner’s Fourth Amendment privacy rights, it has been related to strip searches, 22 particularly those in the presence of officials of the opposite sex. There is simply no right to the 23 privacy for prisoners under the Fourth Amendment that requires shelter from “wondering eyes” or 24 the placement of privacy curtains in inmates’ cells—even when the cell in shared. For that 25 reason, Plaintiff’s Fourth Amendment claim cannot proceed and amendment would likely be 26 futile. 27 28 E. Claim 5: Conspiracy under § 1985 Section 1985 proscribes conspiracies to interfere with an individual's civil rights. 6 1 To state a cause of action under § 1985(3), plaintiff must allege: (1) a conspiracy, (2) to deprive 2 any person or class of persons of the equal protection of the laws, (3) an act done by one of the 3 conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage, or 4 deprivation of any right or privilege of a citizen of the United States. Gillispie v. Civiletti, 629 5 F.2d 637, 641 (9th Cir. 1980); Giffin v. Breckenridge, 403 U.S. 88, 102-03 6 (1971). Section 1985 applies only where there is a racial or other class-based discriminatory 7 animus behind the conspirators' actions. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th 8 Cir. 1992). 9 The Ninth Circuit has held that a claim under § 1985 must allege specific facts to 10 support the allegation that defendants conspired together. Karim-Panahi, 839 F.2d at 626. A mere 11 allegation of conspiracy without factual specificity is insufficient to state a claim under 12 42 U.S.C. § 1985. Id.; Sanchez v. City of Santa Anna, 936 F.2d 1027, 1039 (9th Cir. 1991). 13 Plaintiff simply asserts Defendants David, Giannelli, and Stewart conspired 14 against him to “deny him equal protection to Jewish services due to being an EOP mental health 15 prisoner.” Though Plaintiff has alleged a violation of his Fourteenth Amendment equal 16 protection rights in a different claim, Plaintiff does nothing in this claim to connect those alleged 17 violations to a conspiracy against him. This claim lacks any degree of factual specificity and thus 18 cannot proceed. Plaintiff will be provided leave to amend to allege additional facts, if such facts 19 exist, related to the alleged conspiracy. 20 21 F. Claim 6: Failure to Act/ Protect under § 1986 Plaintiff also brings a claim for failure to act or protect in violation 22 of 42 U.S.C. § 1986. “Section 1986 provides a cause of action against anyone who has 23 ‘knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this 24 title, are about to be committed, and having the power to prevent or aid in preventing the 25 commission of the same, neglects or refuses so to do.’” Park v. City of Atlanta, 120 F.3d 1157, 26 1159–60 (11th Cir. 1997) (quoting 42 U.S.C. § 1986). “Section 1986 claims are therefore 27 derivative of § 1985 violations.” Park, 120 F.3d at 1160. “The text of § 1986 requires the 28 existence of a § 1985 conspiracy.” Id. Section 42 U.S.C. § 1986 provides a cause of action for 7 1 damages for violation of section 1985. I.H. by & through Hunter v. Oakland Sch. for Arts, 234 F. 2 Supp. 3d 987, 994 (N.D. Cal. 2017). 3 Section 1986 is a derivative action related to a section 1985 violation. Because 4 there are insufficient facts to establish a section 1985 violation, it necessarily follows there are 5 insufficient facts to establish a section 1986 violation. For that reason, this claim cannot proceed. 6 As Plaintiff is provided leave to amend his section 1985 claim, Plaintiff too will be given an 7 opportunity to amend his section 1986 claim. 8 9 IV. AMENDING THE COMPLAINT 10 Because it is possible that some of the deficiencies identified in this order may be 11 cured by amending the complaint, plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 12 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 13 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 14 1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the court cannot refer to the 15 prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An 16 amended complaint must be complete in itself without reference to any prior pleading. See id. 17 This means, in practical terms, if Plaintiff files an amended complaint he must not only cure the 18 deficiencies identified in this order, but also reallege the cognizable claim(s) discussed in this 19 Court’s order 20 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 21 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 22 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 23 each named defendant is involved, and must set forth some affirmative link or connection 24 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 25 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 26 Because some of the defects identified in this order cannot be cured by 27 amendment, plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now 28 has the following choices: (1) Plaintiff may decline to file an amended complaint, in which case 8 1 the court will issue findings and recommendations that the claims identified herein as defective be 2 dismissed, as well as such further orders as are necessary for service of process as to the 3 cognizable claims; or (2) plaintiff may file an amended complaint which does not allege the 4 claims identified herein as incurable, in which case such claims will be deemed abandoned and 5 the court will address the remaining claims; or (3) plaintiff may file an amended complaint which 6 continues to allege claims identified as incurable, in which case the court will issue findings and 7 recommendations that such claims be dismissed from this action, as well as such other orders 8 and/or findings and recommendations as may be necessary to address the remaining claims. 9 10 11 12 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. 13 14 Dated: July 9, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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