Wilkins v. Daly et al

Filing 11

ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION Dispositive Motion due by 6/23/2014.. Signed by Judge Lucy H. Koh on 3/21/14. (Attachments: # 1 Certificate/Proof of Service)(mpbS, COURT STAFF) (Filed on 3/24/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KEENAN G. WILKINS,

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Plaintiff,

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v.

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DEPUTY S. DALY, et al.,

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Defendants.

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No. C 13-4665 LHK (PR)
ORDER OF SERVICE;
DIRECTING DEFENDANTS TO
FILE DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

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Plaintiff, a California state prisoner proceeding pro se, filed this civil rights action under
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42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis in a separate
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order. For the reasons stated below, the court dismisses some defendants, and orders service
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upon the others.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity. See
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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss
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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or
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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.
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Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims

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Plaintiff alleges that in October 2009, he was housed in administrative segregation at the

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Glenn Dyer Detention Facility in Alameda County. There was a faulty plumbing problem, and a

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large amount of sewage began overflowing from the toilet onto plaintiff’s cell floor. After

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plaintiff and other inmates began calling for help, Alameda County Sheriff Deputy S. Daly came

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to plaintiff’s cell. Deputy Daly ordered plaintiff to place his hands through the food slot so that

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Deputy Daly could handcuff plaintiff. However, plaintiff was unable to get to the food slot

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without stepping into piles of defecation and told Deputy Daly the same thing. Deputy Daly

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insisted that plaintiff comply, but plaintiff refused because he would have had to step in the

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defecation. Deputy Daly appeared to get angry and eventually buzzed plaintiff’s cell door open.

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Deputy Daly ordered plaintiff to exit the cell. Plaintiff stepped around the defecation and offered

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his hands up for cuffing. Deputy Daly told plaintiff that he was going to now cuff plaintiff

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behind his back instead of his front. After Deputy Daly cuffed plaintiff, Deputy Daly forcefully

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grabbed plaintiff’s arms, roughly escorted plaintiff to an upstairs visiting area, and locked

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plaintiff into a small visiting booth. During the escort, plaintiff repeatedly informed Deputy

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Daly that plaintiff had a pre-existing medical condition in his shoulders and that the way that

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Deputy Daly was escorting plaintiff was hurting plaintiff. Deputy Daly ignored plaintiff.

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Once Deputy Daly placed plaintiff in the small visiting booth, Deputy Daly told plaintiff

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to “get comfortable” because plaintiff was going to be in there for a while. Plaintiff requested

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that Deputy Daly take the cuffs off, and requested use of the restroom, but Deputy Daly denied

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both requests. Plaintiff was forced to stay in the visiting booth for three hours, during which

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time, no deputy or jail official came around, and plaintiff was forced to urinate in his clothing.

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After three hours, Deputy Pilot arrived to release plaintiff from the booth. Plaintiff was provided
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clean clothing and shoes, but was not given medical attention until a later date. Plaintiff alleges

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that Deputy Daly’s forceful escort aggravated plaintiff’s pre-existing shoulder condition and

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caused psychological injuries. Liberally construed, plaintiff has stated a cognizable claim

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against Deputy Daly for excessive force.

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Plaintiff further asserts that Deputy Daly, Deputy Almehny, and Deputy Abrams violated

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plaintiff’s right to due process. Specifically, plaintiff claims that Deputy Daly violated

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plaintiff’s right to due process by placing plaintiff in the visiting booth for three hours while

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knowing that plaintiff had to use the restroom. Plaintiff claims that Deputy Almehny is liable

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because Deputy Almehny was present when Deputy Daly locked plaintiff in the visiting booth.

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And, plaintiff alleges that Deputy Abrams is liable because Deputy Abrams knew that plaintiff

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was in the visiting booth.

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When a pretrial detainee challenges conditions of his confinement, the proper inquiry is

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whether the conditions amount to punishment in violation of the Due Process Clause of the

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Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Even though

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pretrial detainees’ claims arise under the Due Process Clause, the Eighth Amendment serves as a

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benchmark for evaluating those claims. See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996).

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A prison official violates the Eighth Amendment when two requirements are met: (1) the

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deprivation alleged must be, objectively, sufficiently serious, Farmer v. Brennan, 511 U.S. 825,

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834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official

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possesses a sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. at 297).

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Liberally construed, plaintiff has stated a cognizable claim against Deputy Daly that

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Deputy Daly violated plaintiff’s right to due process. However, because there is no indication

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that Deputies Almehny or Abrams knew of, or disregarded, an excessive risk to plaintiff’s health

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or safety, see Farmer, 511 U.S. at 837, Deputies Almehny and Abrams are DISMISSED with

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leave to amend.

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Plaintiff also alleges that Deputy Daly violated plaintiff’s right to be free from retaliation.

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However, plaintiff has not alleged facts sufficient to support a retaliation claim. See Rhodes v.

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Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of
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First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took

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some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and

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that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the

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action did not reasonably advance a legitimate correctional goal.”). Accordingly, this claim is

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DISMISSED with leave to amend.

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Plaintiff finally alleges that Captain James Ayala, Sheriff Gregory Ahern, and Alameda

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County are liable as supervisors for failure to train deputies, and permitting deputies to violate

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the policy of providing direct visual safety checks on inmates at least once per hour. Liberally

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construed, plaintiff has stated a cognizable claim against Captain James Ayala, Sheriff Gregory

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Ahern, and Alameda County.

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CONCLUSION
1.

Defendants Deputy Almehny and Deputy Abrams are DISMISSED with leave to

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amend. Plaintiff’s claim of retaliation is DISMISSED with leave to amend. If Plaintiff can cure

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the pleading deficiencies described above, he shall file an AMENDED COMPLAINT within

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thirty days from the date this order is filed. The amended complaint must include the caption

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and civil case number used in this order (C 13-4665 LHK (PR)) and the words AMENDED

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COMPLAINT on the first page. The amended complaint must indicate which specific, named

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defendant(s) was involved in each cause of action, what each defendant did, what effect this had

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on plaintiff and what right plaintiff alleges was violated. Plaintiff may not incorporate material

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from the prior complaint by reference. If plaintiff files an amended complaint, he must allege, in

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good faith, facts - not merely conclusions of law - that demonstrate that he is entitled to relief

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under the applicable federal statutes. Failure to file an amended complaint within thirty days

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and in accordance with this order will result in the court automatically proceeding with

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only the cognizable claims and defendants named in this order.

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2.

The clerk of the court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint

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and all attachments thereto (docket no. 1), and a copy of this order to Deputy S. Daly, Captain

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James Ayala, Sheriff Gregory J. Ahern, and the County of Alameda at the Glenn Dyer
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Detention Facility.
The clerk of the court shall also mail a courtesy copy of the complaint and a copy of this

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order to the Office of County Counsel, 1221 Oak Street, Suite 450, Oakland CA 94612.

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Additionally, the clerk shall mail a copy of this order to plaintiff.

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3.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if defendants, after being notified of this action and asked by the court, on

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behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear

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the cost of such service unless good cause be shown for their failure to sign and return the waiver

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form. If service is waived, this action will proceed as if defendants had been served on the date

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that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendants will not be required

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to serve and file an answer before sixty (60) days from the date on which the request for waiver

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was sent. (This allows a longer time to respond than would be required if formal service of

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summons is necessary.) Defendants are asked to read the statement set forth at the bottom of the

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waiver form that more completely describes the duties of the parties with regard to waiver of

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service of the summons. If service is waived after the date provided in the Notice but before

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defendants have been personally served, the Answer shall be due sixty (60) days from the date

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on which the request for waiver was sent or twenty (20) days from the date the waiver form is

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filed, whichever is later.

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4.

No later than ninety (90) days from the date of this order, defendants shall file a

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motion for summary judgment or other dispositive motion with respect to the cognizable claims

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in the complaint.

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a.

If defendants elect to file a motion to dismiss on the grounds that plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315

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F.3d 1108, 1119-20 (9th Cir. 2003).

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b.

Any motion for summary judgment shall be supported by adequate factual

documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil
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Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If defendants are of the opinion

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that this case cannot be resolved by summary judgment, they shall so inform the court

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prior to the date the summary judgment motion is due.

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5.

Plaintiff’s opposition to the dispositive motion shall be filed with the court and

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served on defendants no later than twenty-eight (28) days from the date defendants’ motion is

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filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and

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Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must

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come forward with evidence showing triable issues of material fact on every essential element of

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his claim).
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Defendants shall file a reply brief no later than fourteen (14) days after plaintiff’s

opposition is filed.
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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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All communications by the plaintiff with the court must be served on defendants

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or defendants’ counsel, by mailing a true copy of the document to defendants or defendants’

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counsel.

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9.

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

No further court order is required before the parties may conduct discovery.
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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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and all parties informed of any change of address and must comply with the court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

3/21/14
LUCY H. KOH
United States District Judge

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Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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