Kaufman v. Spearman et al

Filing 44

ORDER by Judge James Donato denying 28 Motion for status update; granting 30 Motion for leave to file supplement complaint; denying 43 Motion to terminate settlement talks Amended Pleadings due by 12/16/2016.. (lrcS, COURT STAFF) (Filed on 11/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOEL DAVID KAUFMAN,
Plaintiff,

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ORDER ON MOTIONS

v.

Re: Dkt. Nos. 28, 30, 43
M. E. SPEARMAN, et al.,
Defendants.

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United States District Court
Northern District of California

Case No.15-cv-02777-JD

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Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 U.S.C. §

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1983. On January 7, 2016, the Court ordered service on plaintiff’s claims that he has many food

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allergies which are being ignored by defendants and he is not receiving sufficient food. No

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dispositive motion has been filed because both parties requested a settlement conference. The

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case was referred to settlement but did not settle. Plaintiff has filed several motions including a

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motion to file a supplemental complaint pursuant to Fed. R. Civ. P. 15(d). The Court will review

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the supplemental complaint.
DISCUSSION

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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United States District Court
Northern District of California

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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Kaufman alleges that he has severe food intolerances that defendants have not properly

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addressed and he has been subject to retaliation. Deliberate indifference to serious medical needs

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violates the Eighth Amendment’s proscription against cruel and unusual punishment. See Estelle

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v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),

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overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.

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1997) (en banc). A determination of “deliberate indifference” involves an examination of two

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elements: the seriousness of the prisoner’s medical need and the nature of the defendant’s response

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to that need. See McGuckin, 974 F.2d at 1059.

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Adequate food is a basic human need protected by the Eighth Amendment. See Keenan v.

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Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998). The Eighth

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Amendment right to food was clearly established as of at least 2001. Foster v. Runnels, 554 F.3d

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807, 815 (9th Cir. 2009). Denial of food service presents a sufficiently serious condition to meet
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the objective prong of the Eighth Amendment deliberate indifference analysis. Id. at 812-13; see,

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e.g., id. at 812 (denial of 16 meals over 23 days was “a sufficiently serious deprivation because

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food is one of life's basic necessities”); id. at 812 n.1 (denial of 2 meals over 9-week period was

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not sufficiently serious to meet objective prong of Eighth Amendment deliberate indifference).

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The Eighth Amendment requires only that prisoners receive food that is adequate to maintain

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health; it need not be tasty or aesthetically pleasing. See Graves v. Arpaio, 623 F.3d 1043, 1050

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(9th Cir. 2010) (per curiam) (Eighth Amendment requires that pretrial detainees be given food that

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meets or exceeds the Department of Agriculture’s Dietary Guidelines).

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“Within the prison context, a viable claim of First Amendment retaliation entails five basic
elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

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United States District Court
Northern District of California

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).

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Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under §

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1983 for retaliation must allege that he was retaliated against for exercising his constitutional

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rights and that the retaliatory action did not advance legitimate penological goals, such as

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preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994)

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(per curiam) (same).

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Plaintiff states that on July 26, 2016, he suffered an extreme allergic reaction but was

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denied proper treatment. However, plaintiff has failed to identify any specific defendant and it is

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not clear if it involves the defendants in this case. Plaintiff also alleges that in retaliation for filing

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this complaint he has suffered retaliation in the form of being moved from cell to cell. He has

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again failed to identify the specific actions of any individual defendant or show that the adverse

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action was because of his protected conduct.

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The supplemental complaint is dismissed, but plaintiff will be provided one opportunity to

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amend to cure the deficiencies noted above. Plaintiff should also include the allegations against

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the existing defendants if he files a new supplemental complaint. Defendants have also noted that

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the new claims are unexhausted. Plaintiff may wish to address this if he files a new supplemental
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complaint. If the new claims are unexhausted and the Court permits them to continue, the

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defendants may file a motion for failure to exhaust which could delay reaching the merits of the

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current claims.
CONCLUSION

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1.

Plaintiff’s motion for leave to file a supplemental complaint (Docket No. 30) is

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GRANTED. The supplemental complaint is DISMISSED for the reasons discussed above.

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Plaintiff will be provided an opportunity to file an additional supplemental complaint within

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twenty-eight (28) days of the date this order is filed. Plaintiff must include in it all the claims he

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wishes to present. He may not incorporate material from the original complaint by reference.
Failure to amend within the designated time will result in this case continuing on the prior

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United States District Court
Northern District of California

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complaint.

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2. Plaintiff’s motion for a status update (Docket No. 28) is DENIED as moot. Plaintiff’s

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motion to terminate settlement talks (Docket No. 43) is DENIED as moot because this case is no

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longer on the settlement calendar.

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3.

It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: November 18, 2016

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOEL DAVID KAUFMAN,

Case No. 15-cv-02777-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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M. E. SPEARMAN, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on November 18, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Joel David Kaufman
AT3133
P.O. Box 705
Soledad, CA 93960

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Dated: November 18, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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