Wilkins v. County of Contra Costa

Filing 42

ORDER OF SERVICE. Signed by Judge James Donato on 6/21/18. (lrcS, COURT STAFF) (Filed on 6/21/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEENAN G. WILKINS,
Plaintiff,

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ORDER OF SERVICE

v.
COUNTY OF CONTRA COSTA, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 16-cv-07016-JD

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.
He has paid the filing fee. Docket No. 35.
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

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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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
the Constitution or laws of the United States was violated, and (2) the alleged deprivation was
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

United States District Court
Northern District of California

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LEGAL CLAIMS

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Plaintiff’s allegations arise from his detention at Martinez Detention Facility while he was

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a pretrial detainee. Plaintiff alleges that his due process rights were violated in being placed in

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Administrative segregation (“Ad. Seg.”), the conditions in Ad. Seg. violated the Eighth and

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Fourteenth Amendments, his rights under the Equal Protection Clause were violated, he was

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denied access to the courts, a defendant retaliated against plaintiff due to his protected conduct and

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there was a conspiracy.

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Due Process

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A court presented with a procedural due process claim by a pretrial detainee should first

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ask if the alleged deprivation amounts to punishment and therefore implicates the Due Process

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Clause itself; if so, the court then must determine what process is due. See, e.g., Bell, 441 U.S. at

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537-38 (discussing tests traditionally applied to determine whether governmental acts are punitive

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in nature). Disciplinary segregation as punishment for violation of jail rules and regulations, for

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example, cannot be imposed without due process, i.e., without complying with the procedural

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requirements of Wolff v. McDonnell, 418 U.S. 539 (1974). See Mitchell v. Dupnik, 75 F.3d 517,

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523-26 (9th Cir. 1996).

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If the alleged deprivation does not amount to punishment, a pretrial detainee’s due process

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claim is not analyzed under Sandin v. Conner, 515 U.S. 474 (1995), which applies to convicted

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prisoners, but rather under the law as it was before Sandin. See Valdez v. Rosenbaum, 302 F.3d

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1039, 1041 n.3 (9th Cir. 2002). The proper test to determine whether detainees have a liberty

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interest is that set out in Hewitt v. Helms, 459 U.S. 460, 472 (1983), and Kentucky Dep’t of

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Corrections v. Thompson, 490 U.S. 454, 461 (1989). Under those cases, a state statute or

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regulation creates a procedurally protected liberty interest if it sets forth “‘substantive predicates’

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to govern official decision making” and also contains “explicitly mandatory language,” i.e., a

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specific directive to the decisionmaker that mandates a particular outcome if the substantive

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predicates have been met. Thompson, 490 U.S. at 462-63 (quoting Hewitt, 459 U.S. at 472).

United States District Court
Northern District of California

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If the alleged deprivation does not amount to punishment and there is no state statute or

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regulation from which the interest could arise, no procedural due process claim is stated and the

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claim should be dismissed. See Meachum v. Fano, 427 U.S. 215, 223-27 (1976) (interests

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protected by due process arise from Due Process Clause itself or from laws of the states).

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Plaintiff alleges that he was placed in Ad. Seg. for eight months for unknown reasons

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without any due process. He also presents allegations that the deprivations amounted to

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punishment. This is sufficient to state a due process claim against Baker, Kosmicky, Yates,

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Arnada, Wilson and Wooden.

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Conditions of Confinement

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Inmates who sue prison officials for injuries suffered while in custody may do so under the

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Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet convicted, under the

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Fourteenth Amendment’s Due Process Clause. See Bell v. Wolfish, 441 U.S. 520, 535 (1979);

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Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en banc). But under both

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clauses, the inmate must show that the prison official acted with deliberate indifference. Id. at

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1068.4 Under the Fourteenth Amendment, a pretrial detainee plaintiff must also show that the

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challenged prison condition is not “reasonably related to a legitimate governmental objective.

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Byrd v. Maricopa Cty. Board of Supervisors, 845 F.3d 919, 924 (9th Cir. 2017) (quoting Bell, 441

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U.S. at 539). If the particular restriction or condition is reasonably related, without more, it does
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not amount to punishment. Bell, 441 U.S. at 538-39.
Plaintiff alleges that he was in a small unsanitary cell with piles of trash that attracted

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rodents. He also alleges that he was denied exercise. These allegations are sufficient to proceed

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against defendants Livingston, Vanderlind and Vannoy. Plaintiff also names eleven deputies who

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worked on each shift. He has failed to link these defendants to the alleged constitutional

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deprivations. Simply that they were working at his cell block while he was incarcerated is

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insufficient. Nor has plaintiff stated a claim to extent that he argues jail officials violated state

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regulations. He may only proceed with constitutional claims.

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Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall

United States District Court
Northern District of California

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‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a

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direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne

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Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982));

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Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005) (evidence of different

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treatment of unlike groups does not support an equal protection claim). Dissimilar treatment of

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dissimilarly situated persons does not violate Equal Protection. See Keevan v. Smith, 100 F.3d

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644, 648 (8th Cir. 1996) (treatment of dissimilarly situated persons in a dissimilar manner does not

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violate the Equal Protection Clause). Where state action does not implicate a fundamental right or

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a suspect classification, the plaintiff can establish an equal protection “class of one” claim by

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demonstrating that the state actor (1) intentionally (2) treated him differently than other similarly

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situated persons, (3) without a rational basis. Gerhart v. Lake County Montana, 637 F.3d 1013,

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1020 (9th Cir. 2011) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

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curiam)).

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Plaintiff argues that detainees in general population were treated differently than he was.

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However, these two groups are not similarly situated and detainees in Ad. Seg. are expected to be

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treated differently than detainees in general population. Plaintiff has not shown that he or other

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Ad. Seg. detainees were treated differently than other similarly situated individuals. To the extent

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he argues he was treated different than other Ad. Seg. detainees, he has not presented any
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allegations to support an Equal Protection violation. Because he has already been provided leave

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to amend, this claim is dismissed with prejudice.

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Access to the Courts

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Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S.

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343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a claim for any

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violation of the right of access to the courts, the prisoner must prove that there was an inadequacy

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in the prison’s legal access program that caused him an actual injury. See Lewis, 518 U.S. at 350-

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55. To prove an actual injury, the prisoner must show that the inadequacy in the prison’s program

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hindered his efforts to pursue a non-frivolous claim concerning his conviction or conditions of

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confinement. See id. at 354-55.

United States District Court
Northern District of California

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Plaintiff alleges that he was denied access to the courts to litigate his family law case

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concerning child custody, parental rights and property allocation. To proceed with a constitutional

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claim plaintiff must demonstrate an actual injury with respect to a non-frivolous claim concerning

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his conviction or conditions of confinement. The family law case that plaintiff describes does not

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concern his conviction or condition of confinement. This claim is dismissed with prejudice

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because plaintiff has already been provided leave to amend.

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Retaliation

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“Within the prison context, a viable claim of First Amendment retaliation entails five basic

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elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

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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 contends that defendant Engalstad transferred plaintiff to a different cell without a

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television in retaliation for plaintiff’s filing of complaints with the County Supervisors. This

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claim is sufficient to proceed.

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Conspiracy
A civil conspiracy is a combination of two or more persons who, by some concerted
action, intend to accomplish some unlawful objective for the purpose of harming another which
results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). To prove a
civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose or
common design and understanding, or a meeting of the minds in an unlawful agreement. Id. To
be liable, each participant in the conspiracy need not know the exact details of the plan, but each
participant must at least share the common objective of the conspiracy. Id.
Section 1985 proscribes conspiracies to interfere with an individual’s civil rights. To state
a cause of action under section 1985(3), plaintiff must allege: (1) a conspiracy, (2) to deprive any
person or class of persons of the equal protection of the laws, (3) an act by one of the conspirators
in furtherance of the conspiracy, and (4) a personal injury, property damage or deprivation of any
right or privilege of a citizen of the United States. Gillispie v. Civiletti, 629 F.2d 637, 641 (9th
Cir. 1980). Section 1985 applies only where there is a racial or other class-based discriminatory
animus behind the conspirators’ actions. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th
Cir. 1992). In interpreting these standards, the Ninth Circuit has held that a claim under § 1985
must allege specific facts to support the allegation that defendants conspired together. KarimPanahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir.1988). A mere allegation of
conspiracy without factual specificity is insufficient to state a claim under 42 U.S.C. § 1985. Id.;
Sanchez v. City of Santa Anna, 936 F.2d 1027, 1039 (9th Cir. 1991).

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United States District Court
Northern District of California

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Plaintiff alleges that defendants conspired against him, but he provides no allegations in
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support. He has failed to state a claim under either section 1983 or section 1985. This claim is
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dismissed with prejudice.
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Supervisory Liability
“In a § 1983 or a Bivens action – where masters do not answer for the torts of their servants
– the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government
official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009) (finding under Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Rule 8 of the Federal Rules of Civil Procedure, that complainant-detainee in a Bivens
action failed to plead sufficient facts “plausibly showing” that top federal officials “purposely
adopted a policy of classifying post-September-11 detainees as ‘of high interest’ because of their
race, religion, or national origin” over more likely and non-discriminatory explanations).
Supervisor defendants are entitled to qualified immunity where the allegations against
them are simply “bald” or “conclusory” because such allegations do not “plausibly” establish the
supervisors’ personal involvement in their subordinates’ constitutional wrong, Iqbal, 556 U.S. at
675-84, and unfairly subject the supervisor defendants to the expense of discovery and continued
litigation, Henry A. v. Willden, 678 F.3d 991, 1004 (9th Cir. 2012) (general allegations about
supervisors’ oversight responsibilities and knowledge of independent reports documenting the
challenged conduct failed to state a claim for supervisor liability). So it is insufficient for a
plaintiff only to allege that supervisors knew about the constitutional violation and that they
generally created policies and procedures that led to the violation, without alleging “a specific
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policy” or “a specific event” instigated by them that led to the constitutional violations. Hydrick v.
Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (emphasis in original).
“Section 1986 authorizes a remedy against state actors who have negligently failed to
prevent a conspiracy that would be actionable under § 1985.” Cerrato v. San Francisco Cmty.
Coll. Dist., 26 F.3d 968, 971 n. 7 (9th Cir. 1994). Plaintiff may not pursue a claim for relief under
42 U.S.C. § 1986 unless he has first stated a claim for relief under section 1985. McCalden v.
California Library Assoc., 955 F.2d 1214, 1223 (9th Cir. 1992).
In multiple claims set forth above, plaintiff identifies several supervisors as responsible for

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the deprivations, yet he fails to provide specific allegations. He has failed to state a claim under
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either section 1983 or section 1986. Simply being a supervisor or denying a grievance is
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insufficient. The claims against the supervisory defendants related to their actions as supervisors
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are dismissed with prejudice. The specific supervisory defendants who have been identified above
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will be served with respect to the related claim.1

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CONCLUSION
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United States District Court
Northern District of California

1.

Defendants Sergeant Baker, Sergeant Kosmicky, Sergeant Yates, Deputy Arnada,

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Deputy Wilson, Deputy Wooden, Sherriff Livingston, Lieutenant Vanderlind, Lieutenant Vannoy
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and Deputy Engalstad shall be served as discussed above. The remaining defendants are
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dismissed with prejudice from this action.
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2.

The clerk shall issue a summons and the United States Marshal shall serve, without

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prepayment of fees, copies of the second amended complaint (Docket No. 39) with attachments
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and copies of this order on the following defendants at Martinez Detention Facility: Sergeant
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Baker, Sergeant Kosmicky, Sergeant Yates, Deputy Arnada, Deputy Wilson, Deputy Wooden,
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Sherriff Livingston, Lieutenant Vanderlind, Lieutenant Vannoy and Deputy Engalstad.
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To the extent plaintiff presented a Monell claim, any such claim is denied. Local governments
are “persons” subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a
constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978); however, a city
or county may not be held vicariously liable for the unconstitutional acts of its employees under
the theory of respondeat superior, see Board of Cty. Comm’rs. of Bryan Cty. v. Brown, 520 U.S.
397, 403 (1997); Monell, 436 U.S. at 691. To impose municipal liability under § 1983 for a
violation of constitutional rights resulting from governmental inaction or omission, a plaintiff must
show: (1) that the plaintiff possessed a constitutional right of which he or she was deprived; (2)
that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the
plaintiff’s constitutional rights; and (4) that the policy is the moving force behind the
constitutional violation. See Plumeau v. School Dist. #40 County of Yamhill, 130 F.3d 432, 438
(9th Cir. 1997). Proof of random acts or isolated incidents of unconstitutional action by a nonpolicymaking employee are insufficient to establish the existence of a municipal policy or custom.
See Rivera v. County of Los Angeles, 745 F.3d 384, 398 (9th Cir. 2014).
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3.

In order to expedite the resolution of this case, the Court orders as follows:
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No later than sixty days from the date of service, defendant shall file a

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motion for summary judgment or other dispositive motion. The motion shall be supported by

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adequate factual documentation and shall conform in all respects to Federal Rule of Civil

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Procedure 56, and shall include as exhibits all records and incident reports stemming from the

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events at issue. If defendant is of the opinion that this case cannot be resolved by summary

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judgment, he shall so inform the Court prior to the date his summary judgment motion is due. All

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papers filed with the Court shall be promptly served on the plaintiff.

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b.

At the time the dispositive motion is served, defendant shall also serve, on a

separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-

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United States District Court
Northern District of California

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954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).

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See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be

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given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed,

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not earlier); Rand at 960 (separate paper requirement).

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c.

Plaintiff’s opposition to the dispositive motion, if any, shall be filed with

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the Court and served upon defendant no later than thirty days from the date the motion was served

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upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is

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provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc),

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and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

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If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust

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his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take

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note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided

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to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).

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d.

If defendant wishes to file a reply brief, he shall do so no later than fifteen

days after the opposition is served upon him.
e.

The motion shall be deemed submitted as of the date the reply brief is due.

No hearing will be held on the motion unless the Court so orders at a later date.

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4.

All communications by plaintiff with the Court must be served on defendant, or

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defendant’s counsel once counsel has been designated, by mailing a true copy of the document to

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defendants or defendants’ counsel.

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Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

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No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the

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parties may conduct discovery.

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6.

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

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

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Change of Address.” He also 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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United States District Court
Northern District of California

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: June 21, 2018

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JAMES DONATO
United States District Judge

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case dismissed.

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A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if

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granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary judgment.

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Generally, summary judgment must be granted when there is no genuine issue of material fact--

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that is, if there is no real dispute about any fact that would affect the result of your case, the party

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who asked for summary judgment is entitled to judgment as a matter of law, which will end your

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case. When a party you are suing makes a motion for summary judgment that is properly
supported by declarations (or other sworn testimony), you cannot simply rely on what your

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United States District Court
Northern District of California

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complaint says. Instead, you must set out specific facts in declarations, depositions, answers to

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interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts

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shown in the defendant’s declarations and documents and show that there is a genuine issue of

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material fact for trial. If you do not submit your own evidence in opposition, summary judgment,

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if appropriate, may be entered against you. If summary judgment is granted, your case will be

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dismissed and there will be no trial.

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NOTICE -- WARNING (EXHAUSTION)
If defendants file a motion for summary judgment for failure to exhaust, they are seeking
to have your case dismissed. If the motion is granted it will end your case.
You have the right to present any evidence you may have which tends to show that you did

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exhaust your administrative remedies. Such evidence may be in the form of declarations

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(statements signed under penalty of perjury) or authenticated documents, that is, documents

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accompanied by a declaration showing where they came from and why they are authentic, or other

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sworn papers, such as answers to interrogatories or depositions.

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If defendants file a motion for summary judgment for failure to exhaust and it is granted,
your case will be dismissed and there will be no trial.

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NITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEENAN G. WILKINS,

Case No. 16-cv-07016-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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COUNTY OF CONTRA COSTA, 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 June 21, 2018, 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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Keenan G. Wilkins ID: #:AN2387
Richard J. Donovan Correctional Facility

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San Diego, CA 92179
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Dated: June 21, 2018

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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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