Deere v. Unknown CDC - Employees Prison Law Offices

Filing 12

ORDER signed by Magistrate Judge Deborah Barnes on 3/27/2017 GRANTING plaintiff's 2 motion to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's claims against the Priso n Law Office are DISMISSED without leave to amend; in all other respects, plaintiff's complaint is DISMISSED with leave to amend. Plaintiff is GRANTED 30 days, to file an amended complaint. The Clerk shall send plaintiff a prisoner complaint form. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR RAY DEERE, Sr.,

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No. 2:16-cv-1694 DB P

Plaintiff,
v.

ORDER

UNKNOWN CDC EMPLOYEES, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §

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1983. Plaintiff’s complaint is before the court for screening. In his complaint, plaintiff alleges

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the air quality at Mule Creek State Prison (“MCSP”) was so poor that it worsened his Chronic

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Obstructive Pulmonary Disease (“COPD”) and his overall health. For the reasons set forth

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below, the court grants plaintiff’s application to proceed in forma pauperis and dismisses his

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complaint with leave to amend.

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IN FORMA PAUPERIS

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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SCREENING

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I.

Legal Standards

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

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governmental entity or an 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 the prisoner has raised claims

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

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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

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

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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

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

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

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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II.

Allegations of the Complaint

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Plaintiff alleges that he suffered worsening of his COPD and other health problems due to the

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poor air quality in his cell and in the day room at MCSP.1 Plaintiff identifies as defendants

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“Unknown CDC Employees” and the Prison Law Office (“PLO”). Plaintiff states that he is

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uncertain who to name in the prison system and asks whether the governor, director of the

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According to notices filed by plaintiff on February 27, 2017, he is currently incarcerated at the
California Institution for Men in Chino. (ECF Nos. 10, 11.)
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California Department of Corrections and Rehabilitation (“CDCR”), or warden are proper

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defendants. Plaintiff states that he has named the PLO because, as counsel for the plaintiff class

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in Plata v. Brown, the PLO had an obligation to bring the air quality problems at MCSP to the

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attention of the courts.

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For relief, plaintiff seeks injunctive relief in the form of: (1) an order requiring MCSP to be

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compliant with federal air quality standards; (2) a 30-day monitor of MCSP for “water, air,

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medical, food service areas;” and (3) the assignment of new attorneys for the Plata plaintiffs.

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Plaintiff also states that the court should decide if plaintiff is due damages.

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III.

Does Plaintiff State a Cognizable Claim?

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A. Unidentified Defendants

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There is no provision in the Federal Rules of Civil Procedure for including unnamed

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defendants, also called “Doe” defendants, in a complaint. The use of Does in pleading practice is

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generally disfavored – but it is not prohibited. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980); Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F.

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Supp.2d 1149, 1152 (E.D. Cal. 2008). However, plaintiff must allege facts showing when, where,

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and how each Doe defendant violated his constitutional rights. See Addis v. Ariz. Dept. of

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Corrs., No. CV14-1115-PHX-DGC, 2015 WL 875233, at *3 (D. Ariz. Mar. 2, 2015). Under

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Section 1983, plaintiff must demonstrate that each defendant personally participated in the

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deprivation of his rights. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). In other

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words, there must be an actual connection or link between the actions of the defendants and the

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deprivation alleged to have been suffered by plaintiff. See Monell, 436 U.S. at 691, 695.

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Plaintiff fails to identify any specific action, or inaction, by any specific unnamed

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defendant. Plaintiff fails to plead facts supporting a claim that he was exposed to a known risk,

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that a defendant knowingly and purposefully declined to act to prevent his exposure to it, and that

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such a failure caused actual harm to plaintiff. Plaintiff will be given leave to amend his complaint

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to specify what defendants have done.

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B. Prison Law Office

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Plaintiff contends the PLO is not properly representing the plaintiffs in the Plata v. Brown

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class action. The Plata class action deals with the constitutional adequacy of CDCR's inmate

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medical health care, and the class consists of “all prisoners in the custody of the [CDCR] with

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serous medical needs.” See Lopez v. Ndoh, No. 16-cv-0011-AWI-JLT, 2016 WL 3418432, at *1

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(E.D. Cal. June 22, 2016) (citing Stip. for Inj. Relief 5, No. 24, No. 01-cv-01351 THE (N.D.

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Cal.)). Plaintiff’s claim against the PLO is not cognizable in this case.

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To the extent plaintiff is seeking rights under the remedial order issued in Plata, plaintiff

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does not indicate that he is, in fact, a member of the Plata class. Moreover, it is well-settled that

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the remedial order issued in Plata does not provide an independent cause of action under § 1983

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as the order does not create or expand on a plaintiff’s constitutional rights. Coleman v. CDCR,

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No. 09-cv-02192-SKO PC, 2011 WL 2619569, at *4 (E.D. Cal. July 1, 2011) (citing Cagle v.

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Sutherland, 334 F.3d 980, 986-87 (9th Cir. 2003) (consent decrees often go beyond constitutional

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minimum requirements, and do not create or expand rights)); see also Green v. McKaskle, 788

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F.2d 1116, 1123 (5th Cir. 1986) (remedial decrees remedy constitutional violations but do not

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create or enlarge constitutional rights and cannot serve as a substantive basis for damages).

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Finally, if plaintiff has concerns about the actions of class counsel in Plata, he should express

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those concerns to the class representative or court in that case.

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Plaintiff’s claims against the PLO will be dismissed without leave to amend because, as

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stated above, plaintiff has no viable claim here against the PLO for enforcement of the Plata

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remedial order. See Hartmann v. Cal. Dept. of Corrs. and Rehab., 707 F.3d 1114, 1130 (9th Cir.

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2013) (“A district court may deny leave to amend when amendment would be futile.”); Jones v.

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Bernanke, 685 F. Supp. 2d 31, 35 (D. D.C. 2010).

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C. Legal Claim

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Plaintiff appears to be alleging that the conditions of his confinement constituted cruel and

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unusual punishment, a violation of his Eighth Amendment rights. “[A] prison official may be

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held liable under the Eighth Amendment for denying humane conditions of confinement only if

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he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to
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take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). To state a

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claim for threats to safety, an inmate must allege facts to support that he was incarcerated under

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conditions posing a substantial risk of harm and that prison officials were “deliberately

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indifferent” to those risks. Id. at 834; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). To

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adequately allege deliberate indifference, a plaintiff must set forth facts to support that a

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defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, 511 U.S. at 837.

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That is, “the official must both be aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and he must also draw the inference.” Id.
Plaintiff’s complaint currently identifies no conduct by any defendant that states a claim

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under this Eighth Amendment standard. Plaintiff must identify at least one person who was

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aware of the air quality problems plaintiff alleges, knew those air quality issues could or did

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affect inmate health, had the authority to take action to remedy the problem, and failed to take

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that action. Plaintiff will be given an opportunity to amend his complaint to identify defendants

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and state a cognizable Eighth Amendment claim.

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D. Relief Sought

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Because plaintiff is no longer incarcerated at MCSP, his requests for injunctive relief will

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be dismissed as moot. Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (citing Preiser v.

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Newkirk, 422 U.S. 395, 402-03 (1975)). Plaintiff has not specifically sought damages. If he

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wishes to proceed with this action, and if plaintiff believes he is entitled to compensatory or

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punitive damages as a result of the alleged violation of his constitutional rights, he should so state

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in a clear fashion in the space provided on the form complaint and indicate the specific amount in

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damages that he seeks.

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IV.

Conclusion

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Plaintiff’s complaint will be dismissed with leave to amend. Plaintiff is advised that in an

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amended complaint he must clearly identify each defendant and the action that defendant took

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that violated his constitutional rights. The court is not required to review exhibits to determine

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what plaintiff’s charging allegations are as to each named defendant. Therefore, plaintiff’s

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attachments to his fourth amended complaint were not considered part of his claims. If plaintiff
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wishes to add a claim, he must include it in the body of the complaint. The charging allegations

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must be set forth in the amended complaint so defendants have fair notice of the claims plaintiff is

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presenting. That said, plaintiff need not provide every detailed fact in support of his claims.

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Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a).

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Any amended complaint must show the federal court has jurisdiction, the action is brought

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in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must

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contain a request for particular relief. Plaintiff must identify as a defendant only persons who

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personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation

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of a constitutional right if he does an act, participates in another’s act or omits to perform an act

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he is legally required to do that causes the alleged deprivation).

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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

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R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.

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R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

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occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

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The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema

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N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

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which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

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

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E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded.

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By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and

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has evidentiary support for his allegations, and for violation of this rule the court may impose

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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff’s claims against the Prison Law Office are dismissed without leave to amend;

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in all other respects, plaintiff’s complaint (ECF No. 1) is dismissed with leave to

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amend.

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint

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must bear the docket number assigned this case and must be labeled “First Amended

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Complaint.” Plaintiff must file an original and two copies of the amended complaint.

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Failure to file an amended complaint in accordance with this order may result in

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dismissal of this action.

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4.

The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint
form used in this district.

Dated: March 27, 2017

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DLB:9
DLB1/prisoner-civil rights/deer1694.scrn

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