Pough v. Cate et al

Filing 39

REPORT AND RECOMMENDATIONS that Defendants' Motion to Dismiss should be granted in part and denied in part 27 . Objections to R&R due by 1/29/2010; Replies due by 2/15/2010. Signed by Magistrate Judge Ruben B. Brooks on 1/6/2010.(All non-registered users served via U.S. Mail Service)(tkl) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because Pough's Third Amended Complaint is not consecutively paginated, the Court will use the page numbers assigned by the electronic case filing system. 1
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA DAVY KELVIN POUGH, Plaintiff, v. N. GRANNIS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Civil No. 08CV1498-JM (RBB) REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND FOR SEVERANCE OF PARTIES AND CLAIMS [DOC. NO. 27]

Plaintiff Davy Kelvin Pough, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on August 14, 2008, pursuant to 42 U.S.C. § 1983 [doc. no. 1]. Plaintiff filed a First

Amended Complaint nunc pro tunc to December 11, 2008 [doc. no. 6], a Second Amended Complaint on February 2, 2009 [doc. no. 9], and a Third Amended Complaint on April 8, 2009 [doc. no. 14].1 A summons

was returned unexecuted for Defendant C. Callahan on April 14, 2009 [doc. no. 17]. The remaining six Defendants, Ryan, Almager,

Arellano, Bradley, Grannis, and Navarro, waived service of the summons and Plaintiff's Third Amended Complaint [doc. nos. 18-23].

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On May 22, 2009, the six appearing Defendants filed a Motion to Dismiss and for Severance of Parties and Claims with a Memorandum of Points and Authorities in Support of the Motion, a Request for Judicial Notice, declarations from N. Grannis and D. DeGeus, and a Wyatt Notice [doc. no. 27]. On June 24, 2009, the Court issued a Klingele/Rand Notice advising Pough of Defendants' pending Motion to Dismiss for failure to exhaust and allowing him time to present any additional evidence demonstrating exhaustion [doc. no. 29]. Plaintiff's Opposition to

Defendants' Motion to Dismiss was filed nunc pro tunc to July 27, 2009, with an exhibit and a declaration from Plaintiff objecting to the Wyatt Notice [doc. no. 32]. Judicial Notice [doc. no. 35]. Pough also filed a Request for Although he mistakenly refers to

Defendants moving for "summary judgment," Plaintiff's Opposition clearly addresses the merits of Defendants' Motion to Dismiss. (Opp'n 3, 5-17.) no. 37]. Defendants filed a Reply on August 13, 2009 [doc.

The Court found Defendants' Motion suitable for decision

without oral argument pursuant to Civil Local Rule 7.1(d)(1) [doc. no. 30]. The Court has reviewed the Third Amended Complaint and attachments, Defendants' Motion to Dismiss and attachments, Plaintiff's Opposition and attachments, the Requests for Judicial Notice and exhibits, and Defendants' Reply. For the reasons set forth below, the district court should GRANT in part and DENY in part Defendants' Motion to Dismiss and for Severance of Parties and Claims.

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I. FACTUAL BACKGROUND Plaintiff is currently a prisoner at the California Men's Colony ("CMC") in San Luis Obispo, California; however, the allegations in his Third Amended Complaint arise from events that occurred while he was incarcerated at Centinela State Prison ("Centinela") in Imperial County, California, between July 6, 2005, and March 28, 2008. (Third. Am. Compl. 10.)

In count one, Pough argues that Defendants enforced prison policies that denied him adequate time in Centinela's law library during extended prison lockdowns. (Id. at 12.) Plaintiff contends

that Warden Almager's "uncodified policy regulated Plaintiff[`s] total time of physical access in the law library to less than sixty (60) hours over the period of a year." (Id.) Specifically, he

claims Defendants Almager, Ryan, Bradley, and Grannis failed in their duty to provide Plaintiff with constitutionally adequate access to the courts. (Id. at 20-21.) As a result, Pough explains

he was time barred from pursuing his Petition for Writ of Habeas Corpus in district court. (Id. at 20.)

Plaintiff also argues he was denied equal protection of the laws when Defendants discriminated against him based on his membership in a protected class. (Id. at 25.) Pough claims that

Defendants passed over him in favor of other prisoners for education and work opportunities during the course of three years. (Id.) He witnessed inmates who had not been at the prison as long (Id.)

as he receive school and job assignments that he did not.

This is significant, he argues, because an inmate's classification goes from A2B to A1A upon receipt of such assignments. (Id.)

Inmates who earn A1A status are not confined in their cells on 3

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weekends, evenings, and holidays.

(Id.)

Also, Plaintiff states

that A1A prisoners are allowed to make telephone calls every other day, whereas he is only allowed to make one telephone call per month. (Id.)

Count two advances numerous allegations regarding inadequate living conditions at Centinela. (Id. at 26-27, 29-31.) Plaintiff

claims that instead of receiving two hot meals per day during lockdowns, his meals were cold; he also contends the cool temperature "prom[p]ted contamination." (Id. at 26.) He alleges

the kitchen facility is unsanitary because he believes kitchen workers do not wear hairnets; he found hair in his food; and he saw cockroaches near food trays. (Id. at 27.) Plaintiff asserts

prisoners are not given adequate disinfectant to prevent the spread of disease during lockdowns. (Id.) Pough also claims he has

observed roaches, mice, insects, and other vermin inside the prison. (Id.) He contends that when prison officials spray

pesticides, prisoners are not given adequate protection against inhaling the fumes. (Id.)

Additionally, Pough asserts that although he is discipline free, he was denied out-of-cell exercise and confined to his cell for more than 100 consecutive days, causing him headaches, atrophy, and painful muscle cramps. (Id. at 28.) He claims he was also

denied satisfactory indoor movement and exercise as a result of his confinement. (Id.)

In count three, Plaintiff alleges he has received inadequate medical care. (Id. at 32-33.) He argues that the medical care at

Centinela is "wholly inadequate," and "the deficiencies are systematic." (Id. at 32.) Pough believes physicians do not use 4

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medical records when diagnosing prisoners.

(Id.)

He claims he had

to submit grievances several times to receive medical attention. (Id.) Further, Plaintiff contends that he experienced throbbing

and numbness in his neck and fingers and loss of muscle tissue in his shoulder for more than two years before he was diagnosed with arthritis. (Id.) He was subsequently prescribed aspirin and given

medical accommodations, including a lower bunk, a pillow, and a thicker mattress. (Id.) Pough also asserts that his request to

receive physical therapy to strengthen muscle groups was never answered. (Id. at 33 (citing id. Attach. #1 Ex. HH at 1.))

An orthopedic surgeon diagnosed Plaintiff with degenerative cartilage in his shoulder following his July 2, 2007, transfer to CMC. (Id. at 34.) Plaintiff contends the inadequate medical care (Id.) He also

at Centinela caused the degenerated cartilage.

claims that insufficient care caused abnormalities in his cervical spine and the abnormal nerve conduction of his right ulnar nerve. (Id. at 35.) Pough argues that although he requested physical (Id. at

therapy for his shoulder, the request was never answered. 33.)

Plaintiff also contends he received inadequate dental care at Centinela. (Id. at 36-37.) He alleges that he waited more than (Id. at 36.) Also, Pough

two years to receive a teeth cleaning.

claims he filed a request for emergency dental treatment after a damaged crown exposed a sensitive tooth. (Id.) Officials advised

him to have the tooth extracted because replacement of the cap was not part of prison dental services. (Id. at 37.) He was

subsequently moved to another yard and a doctor cemented the crown to Plaintiff's tooth without cleaning or preparing the crown or 5

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tooth first.

(Id.)

Lastly, Pough claims that he has suffered from

Battered Prison Syndrom, a psychological problem, as a result of mistreatment by prison officials. A. Judicial Notice Defendants request that the Court take judicial notice of Magistrate Judge Leo S. Papas's Report and Recommendation issued on March 23, 2009, in Pough v. Marshall, et al., Case No. 08-cv-1776 BTM (POR) (S.D. Cal. Mar. 23, 2009). (Defs.' Mot. Dismiss & Sever Likewise, Pough requests (Id.)

Attach. #2 Req. Judicial Notice Ex. A.)

that the Court take judicial notice of his Objections to the Report and Recommendation. (Pl.s' Req. Judicial Notice Attach. #1 Ex. A.)

When ruling on motions to dismiss, courts may consider facts stated in the complaint, documents attached to the complaint, and matters of which they take judicial notice. Lovelace v. Software

Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996) (citing Fed. R. Evid. 201(f)). Courts may take judicial notice of any fact that

is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." R. Evid. 201(b). Fed.

"A court shall take judicial notice if requested Fed. R.

by a party and supplied with the necessary information." Evid. 201(d).

Judicial notice may be taken of "records of state Disabled

agencies and other undisputed matters of public record."

Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 n.1 (9th Cir. 2004) (citing Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)).

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The Report and Recommendation and Pough's Objections are both part of the court record and their authenticity is not in dispute. The Court notes that Pough's habeas corpus petition is on appeal. Accordingly, the Court takes judicial notice of the Report and Recommendation, Objections, and Pough's habeas corpus case, Pough v. Marshall, et al., Case No. 08-cv-1776 BTM (POR) (S.D. Cal. filed Sept. 26, 2008). II. LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Rule 12(b)(6) Motions to Dismiss A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe "The old formula ­-

County Bd. of Educ., 526 U.S. 629, 633 (1999).

that the complaint must not be dismissed unless it is beyond doubt without merit ­- was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)]." Limestone

Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008). A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 550 U.S. at 570. "A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 1937, 1949 (2009). Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct.

The court must accept as true all material

allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 7

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382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court does not look at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, A

236 (1974); see Bell Atl. Corp. v. Twombly, 550 U.S. at 563 n.8. dismissal under Rule 12(b)(6) is generally proper only where there "is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Navarro v. Block,

250 F.3d 729, 732 (9th Cir. 2001) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). The court need not accept conclusory allegations in the complaint as true; rather, it must "examine whether [they] follow from the description of facts as alleged by the plaintiff." v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir. 1993); see also Cholla Ready Mix, 382 F.3d at 973 (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)) (stating that on Rule 12(b)(6) motion, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged[]"). "Nor is the court required to accept as true Holden

allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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In addition, when resolving a motion to dismiss for failure to state a claim, courts may not generally consider materials outside the pleadings. Schneider v. Cal. Dep't of Corrs., 151 F.3d 1194,

1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire & Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). "The

focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider, 151 F.3d at 1197 n.1. This precludes consideration of

"new" allegations that may be raised in a plaintiff's opposition to a motion to dismiss brought pursuant to Rule 12(b)(6). Id. (citing

Harrell v. United States, 13 F.3d 232, 236 (7th Cir. 1993). "When a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal [i]s proper . . . ." Parks Sch. of Bus., 51 F.3d at 1484

(citing Cooper v. Bell, 628 F.2d 1208, 1210 n.2 (9th Cir. 1980)). The court may also consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading . . . ." Branch v.

Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Stone v. Writer's Guild of Am. W., Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996). These Rule 12 (b)(6) guidelines apply to Defendants' Motion to Dismiss. B. Standards Applicable to Pro Se Litigants Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. 9 Karim-Panahi v. Los

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Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).

The rule

of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

In giving liberal interpretation to a pro se civil rights complaint, courts may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of "Vague and conclusory

Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see

also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). "The plaintiff must

allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." 733 F.2d at 649 (internal quotation omitted). Nevertheless, the court must give a pro se litigant leave to amend his complaint "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Jones,

Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted) (citing Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987)). Thus, before a pro se civil rights complaint may be

dismissed, the court must provide the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi, 839 F.2d at 623-24.

But where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). See James v.

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C.

Stating a Claim Under 42 U.S.C. § 1983 To state a claim under § 1983, the plaintiff must allege facts

sufficient to show (1) a person acting "under color of state law" committed the conduct at issue, and (2) the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C.A. § 1983

(West 2003); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986). III. DEFENDANTS' MOTION TO DISMISS Defendants Almager, Arellano, Bradley, Ryan, Navarro, and Grannis move to dismiss Pough's Third Amended Complaint. Mot. Dismiss & Sever Attach. #1 Mem. P. & A. 2.) (Defs.'

Defendants assert

Plaintiff failed to exhaust his administrative remedies for many of his claims. (Id. at 16-19.) In addition, they argue that each of

Pough's six causes of action should be dismissed for failure to state a cognizable claim for relief. (Id. at 4.) Defendants

allege the Third Amended Complaint fails to comply with Federal Rule of Civil Procedure 8. 8. (Id. at 3-4); see also Fed. R. Civ. P.

They also contend that each Defendant is entitled to qualified

and Eleventh Amendment immunities for all actions taken in their official capacities. P. & A. 5, 22-23.) Defendants also move under Federal Rule of Civil Procedure 18 to sever from this lawsuit all unrelated, exhausted claims, other than the access to court claim, for which the Court grants leave to amend. (Id. at 19-20); see also Fed. R. Civ. P. 18. Finally, (Defs.' Mot. Dismiss & Sever Attach. #1 Mem.

Defendants move under Federal Rule of Civil Procedure 20 to sever from this lawsuit all Defendants not properly named in connection 11

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with the access to courts claim.

(Defs.' Mot. Dismiss & Sever

Attach. #1 Mem. P. & A. 20-21); see also Fed. R. Civ. P. 20. A. Exhaustion 1. Motion to Dismiss Unexhausted Claims Pursuant to the Unenumerated Portions of Rule 12(b) Title 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act ("PLRA") states: "No action shall be brought with respect to

prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.A. § 1997e(a) (West 2003). The

exhaustion requirement applies regardless of the relief sought. Booth v. Churner, 532 U.S. 731, 741 (2001) (citation omitted). "`[A]n action is "brought" for purposes of § 1997e(a) when the complaint is tendered to the district clerk[]' . . . ." Vaden v.

Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (quoting Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004)). Therefore, prisoners

must "exhaust administrative remedies before submitting any papers to the federal courts." Id. at 1048 (emphasis added).

Section 1997e(a)'s exhaustion requirement creates an affirmative defense. Cir. 2003). Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th

"[D]efendants have the burden of raising and proving Id. (footnote omitted). Defendants in

the absence of exhaustion."

§ 1983 actions properly raise the affirmative defense of failure to exhaust administrative remedies through an unenumerated motion to dismiss under Rule 12(b). Id. (citations omitted).

Unlike motions to dismiss for failure to state a claim for which relief may be granted, "[i]n deciding a motion to dismiss for 12

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failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20

(citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988)) (footnote omitted). Courts have

discretion regarding the method they use to resolve such factual disputes. Ritza, 837 F.2d at 369 (citations omitted). "A court

ruling on a motion to dismiss also may take judicial notice of `matters of public record.'" Hazleton v. Alameida, 358 F. Supp. 2d

926, 928 (C.D. Cal. 2005) (citing Lee v. City of Los Angeles, 250 F.3d at 688 (citations omitted)). But "if the district court looks

beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust[,] . . . the court must assure that [the plaintiff] has fair notice of his opportunity to develop a record." Wyatt, 315 F.3d at 1120 n.14.

"[When] the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." at 368 n.3). 2. The Administrative Grievance Process Id. at 1120 (citing Ritza, 837 F.2d

"The California Department of Corrections [CDC] provides a four-step grievance process for prisoners who seek review of an administrative decision or perceived mistreatment: an informal

level, a first formal level, a second formal level, and the Director's level." Vaden, 449 F.3d at 1048-49 (citing Brown v. The administrative

Valoff, 422 F.3d 926, 929-30 (9th Cir. 2005)).

appeal system can be found in title 15, sections 3084.1, 3084.5, and 3084.6 of the California Code of Regulations. See Brown, 422

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F.3d at 929-30 (citing Cal. Code Regs. tit. 15, §§ 3084.1(a), 3084.5(a)-(b), (e)(1)-(2), 3084.6(c)). To comply with the CDC's administrative grievance procedure, an inmate must file his grievance at the informal level "within 15 working days of the event or decision being appealed . . . ." Cal.

Code Regs. tit. 15, § 3084.6(c) (2009); see also Brown, 422 F.3d at 929. An inmate must proceed through all levels of the

administrative grievance process before initiating a § 1983 suit in federal court. See Vaden, 449 F.3d at 1051.

A prisoner's grievances must be "sufficient under the circumstances to put the prison on notice of the potential claims and to fulfill the basic purposes of the exhaustion requirement." Irvin v. Zamora, 161 F. Supp. 2d 1125, 1135 (S.D. Cal. 2001). Exhaustion serves several important goals, including "allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record." Jones v. Bock, 549 U.S. 199, 219 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88-91 (2006); Porter v. Nussle, 534 U.S. 516, 524 (2002)). 3. Plaintiff's Failure To Exhaust

Defendants state that Pough only exhausted his claims concerning law library access, hot meals, and dental care. Mot. Dismiss & Sever Attach. #1 Mem. P. & A. 18.) (Defs.'

Defendants argue

Plaintiff did not exhaust his equal protection claim and the portion of his living-conditions claim involving the distribution of disinfectants, the presence of mice and insects, and the 14

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exposure to pesticides.

(Id. at 18, 23-24.)

Also, they contend

Plaintiff did not exhaust his claims relating to outdoor exercise and medical care for his shoulder condition. (Id.) Defendants

move to dismiss these claims pursuant to the unenumerated portions of Rule 12(b) on the ground that Plaintiff has not properly exhausted his administrative remedies. P. 12(b). a. Count One: Denial of Equal Protection of the Laws (Id. at 16); Fed. R. Civ.

In count one, Pough alleges he was denied equal protection of the laws when Defendants discriminated against him, due to his race, by assigning school and work opportunities to other prisoners instead of Plaintiff. (Third. Am. Compl. 25.) Defendants contend

Pough did not file an administrative grievance concerning a denial of programming opportunities or related discrimination. (Defs.'

Mot. Dismiss & Sever Attach. #1 Mem. P. & A. 18; id. Attach. #4 at 6; id. Attach. #3 at 6.) Plaintiff, on the other hand, claims he filed a 602 grievance on March 26, 2007, complaining that he was being passed over for programming opportunities. (Pl.'s Opp'n 11-12.) Pough alleges the

grievance was date stamped as received by prison officials on March 28, 2007. (Id. at 12.) Plaintiff contends he did not receive a

response until July 11, 2007, which was approximately 106 days after he submitted the grievance. (Id.) He argues that any

failure to exhaust his equal protection claim was caused by CDC's failure to comply with its self-imposed deadlines for responding to inmate appeals. 3084.6(b)(1)).) (Id. (quoting Cal. Code Regs. Tit. 15 §

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But in their Reply, Defendants state that even if Plaintiff submitted such an appeal, he failed to provide the Court with a copy of the grievance, in spite of the Wyatt Notice. (Defs.' Reply

4; Defs.' Mot. Dismiss & Sever Attach. #5 Wyatt Notice.) Defendants argue that assuming there was a delay in responses, Plaintiff should have pursued the alleged 602 through all four review levels. 3084.6(b)(6)).) (Defs.' Reply 4 (citing Cal. Code Regs. Tit. 15 § They contend Pough's failure to appeal the July

11, 2007, decision violates the fifteen-day prisoner appeal time limit, which does not render his administrative remedies unavailable. 3084.6(c)).) In ruling on Defendants' Motion, the Court may "look beyond the pleadings and decide disputed issues of fact." at 1119-20 (citing Ritza, 837 F.2d at 369). Wyatt, 315 F.3d (Id. at 5 (citing Cal. Code Regs. tit. 15, §

Although Plaintiff did

not provide a copy of the 602 with his Opposition, the grievance was previously submitted as exhibit "Z" to his Third Amended Complaint. (Third. Am. Compl. Attach. #1 Ex. Z.) In his informal

grievance dated March 26, 2007, Pough states:

"I have been without

a job, and I have been disciplinary free, still I am classified as A2B, for two years many other[] inmates that have been here for far less time th[a]n I, have gotten jobs an[d] have been reclassified as A1A." (Id.) On July 11, 2007, Prison official L. White

responded to Plaintiff's grievance, "You are #336 on the support services waiting list and #125 for Pre Voc." (Id.)

Even if the Court were to accept Pough's representation that he properly submitted this informal grievance, he did not proceed beyond the informal level and pursue the three-step review process. 16

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See Woodford, 548 U.S. at 90.

CDC administrative procedures are

not properly exhausted until an inmate has pursued a grievance through all available levels of review. Brown, 422 F.3d at 935;

Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Hazleton, 358 F. Supp. 2d at 929 (citations omitted). Pough could have appealed

the untimely grievance response, but he chose to file this lawsuit instead. Because Plaintiff did not follow prison grievance

policies, the equal protection claim is unexhausted. Existing Ninth Circuit case law directs the district court to dismiss unexhausted claims without prejudice. 1051 (citing Wyatt, 315 F.3d at 1120). decided prior to Woodford. Vaden, 449 F.3d at

But Vaden and Wyatt were

Since the Supreme Court's decision in

Woodford, it may no longer be appropriate to dismiss Plaintiff's Third Amended Complaint with leave to amend if it is too late for him to properly exhaust administrative remedies. An inmate must

submit his grievance "within 15 working days" of the unacceptable lower level decision. Cal. Code Regs. tit. 15, § 3084.6(c).

Because Pough did not submit a first formal level appeal within fifteen days of his informal level response, and he has not been housed at Centinela since March 28, 2008, any attempt to file the grievance now is untimely and no exceptions apply. See Cal. Code

Regs. tit. 15, § 3084.6(c)); Woodford, 548 U.S. at 95-96; see also Booth, 532 U.S. at 741 (exceptions to the exhaustion requirement are limited) (footnote omitted). Therefore, Plaintiff's equal

protection claim should be DISMISSED WITH PREJUDICE. b. Count Two: Inadequate Living Conditions

In count two of his Third Amended Complaint, Plaintiff makes numerous allegations regarding inadequate living conditions at 17

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Centinela.

(Third. Am. Compl. 26-27, 29-31.)

Pough complains that Inmates are not

kitchen workers do not use hairnets.

(Id. at 27.)

given cleaning products or disinfectants during lockdowns to prevent the spread of disease. (Id.) He asserts the kitchen

facility is unsanitary, and he saw cockroaches near food trays as well as mice and insects inside the prison. (Id.) Finally, he

alleges he was exposed to pesticides when the prison was being fumigated. (Id.) i. Hairnets

Pough properly pursued a 602 to the Director's level regarding kitchen workers' inadequate use of hairnets. & Sever Attach. #3 Decl. Grannis Ex. C.) (Defs.' Mot. Dismiss

The grievances in which

Pough makes this complaint primarily allege the denial of hot meals. (Id.; id. Attach. #4 Decl. DeGeus Ex. D.) A claim is

exhausted, however, when "plaintiff's grievances were sufficient under the circumstances to put the prison on notice of the potential claims and to fulfill the basic purposes of the exhaustion requirement." Irvin, 161 F. Supp. 2d at 1135.

Although the grievances primarily complain about the temperature of meals, prison officials were nonetheless put on notice of Plaintiff's hairnet concern. See id. Pough complained

about hairnet usage in his first level grievance by stating, "Meals are served by CDCR representatives wearing baseball caps." Mot. Dismiss & Sever Attach. #4 Decl. DeGeus Ex. D at 29.) Plaintiff requested that workers should "[c]omply with the use of hair nets pursuant to health and safety standards." (Id.) (Defs.'

Officials acknowledged in their responses to his second and Director's level appeals that Pough has "concerns with the food 18

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being served by CDCR staff merely wearing baseball caps as hair covering" instead of hairnets, yet they found the issue was moot because prison officials concluded that the use of baseball caps complied with health and safety standards. Attach. #3 Decl. Grannis Ex. C at 4.) Pough properly put the prison on notice of this claim. Irvin, 161 F. Supp. 2d at 1135. See (Id. at 32-34; id.

The portion of Plaintiff's living

conditions claim involving the inadequate use of hairnets is therefore fully exhausted. ii. Disinfectants, unsanitary kitchen, mice and insects, exposure to pesticides Plaintiff also submitted a grievance alleging he was not given cleaners or disinfectants during lockdowns. Attach. #1 Ex. Q at 1.) (Third. Am. Compl.

Centinela officials granted the grievance

at the first formal level of review, and Plaintiff did not pursue it beyond the first level. (Id. at 3; Defs.' Mot. Dismiss & Sever Pough also did not submit a

Attach. #4 Decl. DeGeus Ex. C at 28.)

grievance claiming the kitchen was unsanitary or that he saw cockroaches near food trays. Nor did he submit a grievance

regarding the presence of mice and insects or the exposure to pesticides during fumigations. (Defs.' Mot. Dismiss & Sever

Attach. #4 Decl. DeGeus at 6; id. Attach. #3 Decl. Grannis at 6.) Because Plaintiff did not follow the CDC's grievance process for these claims, they are unexhausted and should not be considered by the Court. See Vaden, 449 F.3d at 1048.

Since the Supreme Court's decision in Woodford, it may no longer be appropriate to dismiss Plaintiff's Third Amended Complaint with leave to amend if it is too late for him to properly 19

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exhaust administrative remedies. grievance decision.

An inmate must submit his

"within 15 working days" of the unacceptable lower level Cal. Code Regs. tit. 15, § 3084.6(c). Because Pough did

not submit a second level appeal within fifteen days of his first formal level response, any attempt to file it now is untimely and no exceptions apply. See Cal. Code Regs. tit. 15, § 3084.6(c));

Woodford, 548 U.S. at 95-96; see also Booth, 532 U.S. at 741 (exceptions to the exhaustion requirement are limited) (footnote omitted). Therefore, the portion of Plaintiff's living conditions

claim concerning the lack of disinfectant distribution, kitchen sanitation, cockroaches near food trays, the presence of mice and insects, and the exposure to pesticides should all be DISMISSED WITH PREJUDICE. iii. Denial of outdoor exercise Also in count two, Plaintiff asserts he was denied outside exercise and confined to his cell for more than 100 consecutive days and was unable to exercise or even walk indoors. Compl. 28.) (Third Am.

As a result, Pough argues he suffered from headaches, (Id.)

atrophy, and muscle cramps.

Plaintiff submitted grievances at the informal, first formal, second formal, and Director's review levels. at 1-2.) (Id. Attach. #1 Ex. Y

The appeal was screened out at the Director's level on

August 3, 2007, and returned to Plaintiff because it lacked necessary documentation. (Defs.' Mot. Dismiss & Sever Attach. #1

Mem. P. & A. 18 (citing id. Attach. #3 Decl. Grannis at 3; id. Ex. A at 1.)) Pough notes that the missing document was a Program (Pl.'s Opp'n 14.)

Status Report.

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Defendants move to dismiss the outdoor exercise claim because Plaintiff did not exhaust his administrative remedies through the Director's level. & A. 19.) (Defs.' Mot. Dismiss & Sever Attach. #1 Mem. P.

Plaintiff claims the appeal was improperly screened out

because prison officials could have secured the report themselves by using methods Pough did not have access to, like facsimile, telephone, and the internet. (Pl.'s Opp'n 14-15.) In their Reply,

Defendants state that California regulations do not impose a duty on prison officials to provide inmates with missing documentation needed to complete their appeals. (Defs.' Reply 5 (citing Cal. In fact, adherence to these

Code Regs. Tit. 15, § 3084.3(c)(5)).)

regulations determines whether an inmate's remedies are exhausted. (Id. at 5-6 (citing Jones, 549 U.S. at 218).) An inmate appeal may be rejected if necessary supporting documents are not attached. Vlasich v. Hoffman, No. 03-15349, 2003

U.S. App. LEXIS 17119, at *3 (9th Cir. Aug. 11, 2003) (citing Cal. Code Regs. tit. 15, § 3084.3(c)(4)-(5)). The appeals

coordinator who rejects the grievance must complete an Appeals Screening Form that provides clear instructions for the inmate to follow in order to qualify the appeal for processing. Regs. tit. 15, § 3084.3(d). Pough explains that he understood his appeal was defective only because it lacked the Program Status Report and that resubmission of his appeal with the report would have eliminated any defect. (Pl.'s Opp'n 14.) Plaintiff claims he was unable to Cal. Code

provide the status report and requested an interview to discuss the matter further. (Id. at 14-15.) He subsequently submitted an (Id.

"Inmate Request for Interview" regarding the status report. 21

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at 14.)

But Pough has not provided the Court a copy of his

interview request regarding the Program Status Report or any other documents evidencing an attempt to obtain the report. Even if

Plaintiff asked for an interview and received no response, he nonetheless failed to try to obtain the Program Status Report and timely resubmit his Director's level grievance so as to fully exhaust his outdoor exercise claim. See Brown, 422 F.3d at 929-30.

Plaintiff failed to comply with the prison's grievance procedures before filing suit in federal court. F.3d at 1051; 142 U.S.C. § 1997e(a). See Vaden, 449

He no longer has time to

exhaust his remedies by resubmitting his outdoor exercise appeal with the proper documentation; nor are there applicable exceptions. Cal. Code Regs. tit. 15, § 3084.6(c); see Booth, 532 U.S. at 741; Woodford, 548 U.S. at 95-96. Accordingly, Plaintiff's claim

regarding out-of-cell exercise should be DISMISSED. The question, however, is whether Pough should be given leave to amend. The record is incomplete. The Court cannot conclude

whether Plaintiff chose not to resubmit this grievance or was foreclosed from doing so. In his Opposition, Pough makes a general

reference to not having access to the status report and receiving no response to his request for an interview with prison officials about the need for the report. (See Opp'n 14-15.) Plaintiff

should be given leave to amend this claim to allege any relevant facts relating to obtaining the status report and resubmitting this grievance. See Hoaglen v. Reinke, No. CV-08-272-S-BLW, 2009 U.S.

Dist. LEXIS 82860, at **18-19, 25 (D. Idaho Sept. 11, 2009) (dismissing claims without prejudice); Tanksley v. CDC Avenal State Prison Officers, No. 08-CV-00732-LJO-SMS PC, 2009 U.S. Dist. LEXIS 22

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60939, at **6-7 (E.D. Cal. July 16, 2009) (noting that Plaintiff offered "no explanation for his failure to correct and resubmit the grievance" but recommending a dismissal without prejudice); Adams v. Kernan, No. CIV S-07-0707-GEB-EFB P, 2009 U.S. Dist. LEXIS 20126, at *18 (E.D. Cal. Mar. 13, 2009) (same). This claim should

be DISMISSED WITHOUT PREJUDICE and with leave to amend. c. Count Three: i. Inadequate Medical Care

Shoulder condition

In count three, Pough contends he was denied adequate medical care for his shoulder condition. (Third. Am. Compl. 32.) He

claims Centinela officials ignored his medical request to receive physical therapy. (Id. at 33 (citing id. Attach. #1 Ex. HH).)

Plaintiff was diagnosed with degenerative cartilage in his shoulder after transferring to CMC and argues Centinela's inadequate care caused the deterioration. (Id. at 34.)

Plaintiff has not shown that he even attempted to submit a 602 grievance for this claim. The medical claim relating to Pough's

shoulder injury is therefore unexhausted and cannot be considered. See Woodford, 548 U.S. at 95 (sanctioning noncompliance with procedural rules gives prisoners an incentive to comply.) Plaintiff no longer has time to exhaust his administrative remedies. See Cal. Code Regs. tit. 15, § 3084.6(c); Woodford, 548 Pough's claim concerning inadequate medical care

U.S. at 95-96.

for a shoulder condition should be DISMISSED WITH PREJUDICE. ii. Psychological condition

Pough alleges in count three he has suffered psychological problems as a result of mistreatment by prison officials. (Third

23

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Am. Compl. 37.)

In particular, he claims that he has suffered from (Id.)

Battered Prison Syndrom.

Plaintiff did not submit a grievance regarding the prison's failure to provide medical care for his psychological problems. It appears Pough's claim that he has Battered Prison

Syndrom is offered as evidence that he suffered damages caused by Defendants' alleged constitutional violations. (See id. at 37-38.)

Plaintiff may seek to introduce evidence that he has psychological problems to show he suffered damages as a result of the alleged violations; however, to the extent Plaintiff is attempting to allege a claim for Battered Prison Syndrome, the claim is unexhausted. The Court should not consider it as a separate cause

of action, and any claim for relief should be DISMISSED WITH PREJUDICE. U.S. at 95. d. Exhaustion Summary See Vaden, 449 F.3d at 1051; see also Woodford, 548

Defendants do not challenge, and Plaintiff has exhausted, the claims concerning access to law libraries, hot meals, use of hairnets, and dental care. (Defs.' Mot. Dismiss & Sever Attach. #1

Mem. P. & A. 18; Third. Am. Compl. Attach. #1 Ex. A; id. Attach. #1 Ex. M; Defs.' Mot. Dismiss & Sever Attach. #3 Decl. Grannis Ex. C; Third Am. Compl. Attach. #1 Ex. EE at 4-5.) Accordingly, Pough

should be permitted to proceed with these four exhausted claims. See Jones, 549 U.S. at 221. But Plaintiff's claims regarding an

unsanitary kitchen, the presence of mice and insects, and exposure to pesticides should be DISMISSED WITHOUT PREJUDICE. Pough's

claims regarding equal protection, lack of disinfectant, lack of outdoor exercise, and inadequate medical care for his shoulder 24

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condition and Battered Prison Syndrome were not exhausted and should be DISMISSED WITH PREJUDICE. B. Plaintiff's Claims Are Without Merit Defendants move to dismiss the Third Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) because each of Plaintiff's allegations fail to state a federal claim upon which relief can be granted. Mem. P. & A. 4.) (Defs.' Mot. Dismiss & Sever Attach. #1

The Court may grant a motion to dismiss for

failure to state a claim if the complaint does not contain enough facts to state a claim that is "plausible on its face." Corp., 550 U.S. at 570. Bell Atl.

"[F]acial plausibility [is] when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." at 1949. 1. Count One: Denial of Access to the Courts Ashcroft v. Iqbal, __ U.S. at __, 129 S.Ct.

"Under the First and Fourteenth Amendments to the Constitution, state prisoners have a right of access to the courts." Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007) The right of

(citing Lewis v. Casey, 518 U.S. 343, 346 (1996)).

access requires prison officials to provide inmates the opportunity to prepare, serve, and file court documents in cases affecting their liberty. Id. at 1075-76 (quotation omitted). But prisoners Lewis, 518

do not have a constitutional right to a law library. U.S. at 350-51.

Law libraries are just one means of assuring Id. backward-

prisoners meaningful access to the courts.

There are two types of access to courts claims: looking and forward-looking.

See Christopher v. Harbury, 536 U.S. 25

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403, 413-14 (2002).

A backward-looking claim concerns a lost Id. at 413-14. A forward-looking claim,

opportunity to litigate.

on the other hand, concerns "official action [that] is presently denying an opportunity to litigate for a class of potential plaintiffs." Id. at 413. Pough's cause of action is a backward-

looking claim.

He argues that Defendants' prison policies denied

him adequate time in the library during race-related lockdowns, which caused his federal habeas corpus petition to be dismissed as untimely. (Third. Am. Compl. 12, 20.) To adequately plead a

backward-looking denial of access claim, Plaintiff must allege three elements: "1) the loss of a `nonfrivolous' or `arguable'

underlying claim; 2) the official acts frustrating the litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit." Phillips, 477 F.3d at 1076

(citing Christopher, 536 U.S. at 413-14). a. Non-frivolous Nature of the Underlying Claim

To have standing to bring this claim, Plaintiff must allege he suffered an actual injury. Lewis, 518 U.S. at 351; Vandelft v. To succeed, a prisoner

Moses, 31 F.3d 794, 798 (9th Cir. 1994).

must have been denied the necessary tools to litigate a nonfrivolous claim attacking a conviction, sentence, or conditions of confinement. 353 & n.3. Christopher, 536 U.S. at 415; Lewis, 518 U.S. at

Plaintiff need not show that he would have been

successful on the merits of his claims, but only that they were not frivolous. 1994). Allen v. Sakai, 48 F.3d 1082, 1085 & n.12 (9th Cir.

"A claim is frivolous if it is without arguable merit Bilal v. Driver, 251 F.3d 1346, 1349 (11th

either in law or fact."

Cir. 2001) (citations omitted); see also Carroll v. Gross, 984 F.2d 26

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392, 393 (11th Cir. 1993) (per curiam) (stating that frivolous claims are those with "little or no chance of success[]") (internal citations omitted). Pough filed a First Amended Petition for Writ of Habeas Corpus in federal court asserting his guilty pleas at trial were involuntary and that he received ineffective assistance of counsel. (Third. Am. Compl. Attach. #1 Ex. C at 3.) Also, Plaintiff argued

that the trial court abused its discretion by summarily denying his motion to withdraw his pleas and violated his right to a jury trial by imposing an upper-term sentence. (Id.) There is nothing before

the Court to suggest that the claims Pough presented in his habeas petition were frivolous. Plaintiff's Third Amended Complaint

alleges a plausible claim that Pough's habeas corpus petition was a nonfrivolous attack on his criminal conviction and sentence. b. Causation

Plaintiff must also show "the alleged violation of his rights was proximately caused" by a state actor. Phillips, 477 F.3d at

1077 (citing Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991)). The proximate cause analysis focuses on whether it was

foreseeable that the state actor's conduct would result in a deprivation of the prisoner's right to access the courts. Id.

(citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 216 F.3d 764, 784-85 (9th Cir. 2000)). To show his right of access to the courts was violated by inadequate library time, Plaintiff must allege facts showing that "shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Lewis, 518 U.S. at 351.

Notably, "an inmate cannot establish relevant actual injury simply 27

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by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Id.

Pough asserts his inadequate access to the law library prevented him from timely pursuing habeas corpus relief. Am. Compl. 19-20.) (Third.

He alleges that he was "restricted to his

housing unit during race-related lockdown[s] for weeks and [months] at a time, and denied access to the facility law library, [and] subsequently denied mean[ing]ful access to the courts[.]" 19 (citation omitted).) (Id. at

Plaintiff contends that Defendants

Almager, Ryan, Bradley, and Grannis caused him harm because AEDPA "does[] not recognize Penitentiary Lockdown or modified programs as `unreasonable' for the purpose of a delay in the filing of a petition . . . ." (Id. at 21.) As a result, Pough's federal (Id.) Plaintiff also

habeas corpus petition was time barred.

complains that during facility lockdowns, the prison did not provide him modified legal access programs or access to a person trained in the law. (Id.)

Plaintiff does not state exact dates of each lockdown he alleges interfered with his access to the law library, but it appears that the lockdowns generally occurred between November or December 2006 and March 2007. Pough explains, "In December of

2006, Centinela . . . had been on lockdown for approximately thirty (30) days . . . ." (Id. at 22.) "[On] January 30, 2007, Centinela (Id.) Plaintiff was

. . . was still on lockdown . . . ."

permitted a two-hour visit to the law library on February 6, 13, 20, and 21 in 2007, but was unable to access the library on February 6 and 21 because the facility was on lockdown. (Id. at

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23.)

He also mentions that on March 9, 2007, the prison was again (Id.)

on lockdown.

Elsewhere in the Third Amended Complaint, Plaintiff asserts that his "total time of physical access in the law library [was] less than sixty (60) hours over the period of a year." 12.) (Id. at

But Pough does not explain when this occurred or whether he

took advantage of all the library time available to him during that period. Pough presented his complaints about his access to the law library during lockdowns to the court in connection with his federal habeas corpus petition. (Defs.' Mot. Dismiss & Sever

Attach. #2 Req. Judicial Notice Ex. A; Pl.s' Req. Judicial Notice Attach. #1 Ex. A.) After briefing of the current Motion was

completed, United States District Judge Barry Ted Moskowitz issued an order dismissing Pough's Petition for a Writ of Habeas Corpus. Pough v. Marshall, et al., Case No. 08-cv-1776 BTM (POR) (S.D. Cal. Sept. 16, 2009) (order) [doc. no. 28]. Judge Moskowitz wrote: From January 17, 2006, when his conviction became final, until November 21, 2006, when the lockdown began, a period of 308 days, Petitioner indicates that he had access to the law library and his legal materials. Although he contends that he had less than sixty hours of library time during that period, and that meaningful research was difficult due to overcrowding and lack of a reasonable amount of time in the library, he has not alleged facts which demonstrate that he was prevented from filing his federal petition during that time. However, assuming equitable tolling was available during the lockdown period, and 57 days remained on the limitations period when tolling due to the lockdown began, this action is still untimely. Under this scenario the limitations period would be equitably tolled from November 21, 2006 until, at the very latest, June 4, 2008, when Petitioner indicates that he had been transferred to another institution where access to the law library was available and he was in possession of his personal property. As of June 4, 2008, Petitioner's 29
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state supreme court habeas petition, which had been filed on January 4, 2008, was under submission. Assuming that petition statutorily tolled the limitations period, tolling would have ended when the petition was denied on July 9, 2008, and Petitioner would have had 57 days left when the limitations period resumed running on July 10, 2008. He initiated this action on September 25, 2008, 81 days later. Id. at 3 (citations omitted). Judge Moskowitz added, "[A]ssuming

equitable tolling was available during the time period Petitioner was on lockdown and was not allowed access to the law library, . . . this action is nevertheless untimely." Id. at 6.

Thus, the district court found that Pough's federal petition was untimely even when the period of time during which Plaintiff was on lockdown was excluded from the limitations period. has not alleged a sufficient causal connection between the allegedly inadequate library access and his untimely habeas petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, Pough

1060 (9th Cir. 2007) (citations omitted); see also Lewis, 518 U.S. at 351. Additionally, several courts have refused to find constitutional violations where inmates' access to law libraries was restricted. See, e.g., Rhinehart v. Gomez, No. 93cv3747, 1995

U.S. Dist. LEXIS 8382, at **20-21 (N.D. Cal. June 8, 1995) (finding no denial of access to courts where prisoner could access law library for only two hours every two weeks); Zatko v. Rowland, 835 F. Supp. 1174, 1178 (N.D. Cal. 1993) (holding that two hours of access to library per week was reasonable); Magee v. Waters, 810 F.2d 451, 452 (4th Cir. 1987) (finding one hour per week in law library of city jail did not violate inmate's constitutional rights); Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985) (noting that prisoners are not guaranteed 30
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unlimited access to the law library).

Plaintiff's Third Amended

Complaint does not adequately allege an injury caused by Defendants' failure to provide him law library access during facility lockdowns. c. Remedy

The premature nature of this claim also warrants its dismissal. Assuming Pough alleged facts sufficient to establish

the loss of a nonfrivolous claim that was proximately caused by a state actor, he fails to show he has no remedy other than the relief available in this denial-of-access suit. F.3d at 1078-79. The third element is satisfied where the plaintiff has no remedy by which he can obtain relief other than the one requested in his denial-of-access suit. U.S. at 413-14). Id. at 1076 (citing Christopher, 536 See Phillips, 477

"A backward-looking denial-of-access claim [must]

provide a remedy that could not be obtained on an existing claim." Christopher, 536 U.S. at 428. Premature access to courts claims Delew v. Wagner, 143 F.3d

should be dismissed without prejudice.

1219, 1222-23 (9th Cir. 1998); see Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 625 (9th Cir. 1988) (ordering dismissal without prejudice where plaintiff's allegations would be mooted if he were to succeed in claims that remained pending) (citations omitted); see also Logan v. Doe, No. 1:02-cv-06428-AWISMS PC, 2007 U.S. Dist. LEXIS 28559, at *29-30 (E.D. Cal. Apr. 18, 2007) (finding no evidence that plaintiff "forever lost the ability to challenge his conviction as a result of the dismissal of the petition" when he was simultaneously litigating similar issues).

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After dismissing Pough's federal habeas petition as untimely, Judge Moskowitz issued a Certificate of Appealability. Pough v.

Marshall, et al., Case No. 08-cv-1776 BTM (POR) (S.D. Cal. Sept. 16, 2009) (order) [doc. no. 28]. The Ninth Circuit received

Pough's notice of appeal and set a time schedule for the appeal. Pough v. Marshall, et al., Case No. 09-56644, (9th Cir. Oct. 15, 2009) (time schedule order) [doc. no. 33]. Prior to the resolution

of the appeal, it is impossible to determine whether Plaintiff has lost all other available remedies by which he could obtain relief. See Phillips, 477 F.3d at 1079; see also Delew, 143 F.3d at 1223 (dismissing § 1983 claim without prejudice while wrongful death action was pending in state court because plaintiffs had not shown denial of access rendered all remedies ineffective); Karim-Panahi, 839 F.2d at 625 (stating that because the resolution of the instant suit remained in question, plaintiff's claim was not ripe for judicial consideration.) Plaintiff's legal access claim should be DISMISSED WITHOUT PREJUDICE, pending resolution of the Ninth Circuit appeal. Pough

may seek to amend this claim after his habeas corpus petition is fully resolved. d. Supervisor Liability

Alternatively, Pough fails to state a claim because he has not alleged how Defendants Almager, Ryan, Bradley and Grannis caused the constitutional violation. Section 1983 of the Civil Rights Act does not authorize bringing a cause of action based on respondeat superior liability. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692-93 (1978) ("[T]he fact that Congress did specifically provide that A's tort became 32

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B's liability if B `caused' A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent.") (footnote omitted); see also Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005). State officials are

subject to suit in their personal capacity if "they play an affirmative part in the alleged deprivation of constitutional rights." King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987) (citing A supervisor may be

Rizzo v. Goode, 423 U.S. 362, 377 (1976)).

found personally liable if he "set[s] in motion a series of acts by others . . . , which he knew or reasonably should have known, would cause others to inflict the constitutional injury." Motley, 432

F.3d at 1081 (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). The Third Amended Complaint alleges Warden Almager "failed to provide Plaintiff with Constitutionally adequate physical access to Centinela's facility law library during institutional lockdowns." (Third Am. Compl. 12.) Pough explains that Almager had an

"uncodified policy" that limited his access to the law library. (Id. at 12, 17-18.) He also claims that Associate Warden Ryan took (Id. at 13.)

part in establishing and enforcing these policies.

Plaintiff cites sections of the Departmental Operations Manual, California Code of Regulations, and changes to California Department of Correction and Rehabilitation regulations that he presumably believes Almager failed to follow. (Id. at 12.)

Finally, he states Almager "was aware of, and acquiesced in, the unconstitutional restrictions and conditions of Plaintiff." at 18.) (Id.

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Without more than conclusory allegations that Defendants Almager and Ryan were aware of or caused constitutional violations, Plaintiff fails to state a claim against them based on anything other than supervisory liability. For this additional reason, this

claim against Almager and Ryan should be DISMISSED WITHOUT PREJUDICE. Plaintiff's allegations against Ryan, Bradley, and Grannis also fail because those claims appear to be based on their handling of Pough's inmate grievances and appeals. Plaintiff asserts that

Ryan, Bradley, and Grannis each were "aware of, and acquiesced in, the unconstitutional restrictions and conditions of Plaintiff." (Id. at 19.) Plaintiff adds that Ryan reviewed his grievance at

the first formal level of review, and Bradley reviewed Pough's appeal. (Id.)

42 U.S.C. § 1983 provides the following: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C.A. § 1983. Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94

(1989) (internal citations omitted); Crumpton, 947 F.2d at 1420; see also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979) (explaining that § 1983 "by itself does not protect anyone against anything[]"); Sprint Telephony PCS v. County of San Diego, 34

K:\COMMON\BROOKS\CASES\1983\PRISONER\POUGH1498\R&R re MTD.wpd

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490 F.3d 700, 717 (9th Cir. 2007).

"In § 1983 cases, it is the

constitutional right itself that forms the basis of the claim." Crater v. Galaza, 508 F.3d 1261, 1269 (9th Cir. 2007) (emphasis omitted). "There is no legitimate claim of entitlement to a Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

grievance procedure."

1988) (citations omitted). Because Pough fails to assert that Ryan, Bradley, and Grannis took any action against him other than denying his grievances and appeals, he has failed to allege a constitutional violation against them. Additionally, Plaintiff makes conclusory allegations that

Defendants "had an affirmative duty to provide Plaintiff with Constitutionally adequate access to the courts . . . ." Comp. 20.) (Third Am.

But again, he does not state how they failed to do so See Shehee v.

other than relying on supervisory liability.

Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (finding no liability where plaintiff alleged defendants denied his administrative grievance and failed to correct "alleged retaliatory behavior"). For these additional reasons, Plaintiff's legal access claim against Ryan, Bradley, and Grannis should be DISMISSED WITH PREJUDICE.2 2. Count Two: Punishment Living Conditions as Cruel and Unusual

Almost as an aside, Pough alleges that Defendants discriminated against him "base[d] upon his membership in a protected class . . . ." (Id. at 25.) Defendants correctly point out that "Plaintiff does not allege who discriminated against him, at what time, under what circumstances, and to what protected class he belongs that motivated the discrimination." (Defs.' Mot. Dismiss & Sever Attach. #1 Mem. P. & A. 11.) If Pough is attempting to allege an equal protection claim, he has failed to state a claim for relief.
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a.

Denial of Hot Meals and Inadequate Use of Hairnets

Defendants seek to dismiss count two because Plaintiff fails to state an Eighth Amendment claim against them for food service amounting to cruel and unusual punishment. Sever Attach. #1 Mem. P. & A. 12.) (Defs.' Mot. Dismiss &

Plaintiff asserts that during

lockdowns he was deprived of two regular hot meals and instead received cold meals under conditions that prompted contamination. (Third Am. Compl. 26, 38, 42-43, 46.) He also alleges that kitchen

workers do not wear hairnets all the time, in violation of his right to be free from cruel and unusual punishment. 38.) (Id. at 5, 27,

Pough claims he "regularly found hair in food from

Centinela's State kitchen" and that some meals are served by officers wearing baseball caps. (Id. at 26-27.)

To satisfy the requirements for an Eighth Amendment conditions-of-confinement claim, the prisoner must allege facts sufficient to show that a prison official's acts or omissions deprived him of the "minimal civilized measure of life's necessities" and that the defendant acted or failed to act "in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known." Farmer v. Brennan, 511 U.S. "The

825, 834, 836 (1994) (quotation and citation omitted).

discrete basic human needs that prison officials must satisfy include food, clothing, shelter, sanitation, medical care, and personal safety." Toussaint v. McCarthy, 801 F.2d 1080, 1107

(1986) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); see also Farmer, 511 U.S. at 832 (citations omitted) (containing a list of basic necessities). In complaints regarding

food, the prisoner must show he was deprived food in a quantity and 36

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of a quality that was adequate to maintain his health. v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996).

See Keenan

Additionally, a

prisoner must show defendants acted with deliberate indifference to a substantial risk of serious harm. See Farmer, 511 U.S. at 847;

Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Pough alleges Defendants had actual knowledge of, and refused, his request for alternative cell-feeding procedures because of the grievances he submitted. (Third Am. Compl. 26, 29-31.)

Plaintiff's assertions regarding the denial of hot meals are insufficient to state an Eighth Amendment claim. See LeMaire, 12

F.3d at 1456 (holding the fact that food is sometimes served cold does not amount to a constitutional violation) (citations omitted); Saunders v. Plummer, No. C-94-1007 DLJ, 1994 U.S. Dist. LEXIS 8249, at *3 (N.D. Cal. June 9, 1994) (finding inmate's allegation that meal trays were cold and milk was sometimes spoiled "did not come remotely close" to alleging a cognizable claim); Jones v. City & County of San Francisco, 976 F. Supp. 896, 910-11 (N.D. Cal. 1997) (discussing food preparation). Likewise, Pough's assertions

regard