(PC) Ashby v. Bosenko ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AARON W. ASHBY, No. 2:20-cv-0544 DB P 12 Plaintiff, 13 v. ORDER 14 TOM BOSENKO, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims his rights were violated when he was directed to clean a cell without 19 being provided adequate safety equipment. Presently before the court is plaintiff’s motion to 20 proceed in forma pauperis (ECF No. 10) and his complaint for screening (ECF No. 1). For the 21 reasons set forth below, the court will grant the motion to proceed in forma pauperis and dismiss 22 the complaint with leave to amend. 23 IN FORMA PAUPERIS 24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 25 1915(a). (ECF No. 10.) Accordingly, the request to proceed in forma pauperis will be granted. 26 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 27 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 28 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of the court. Thereafter, plaintiff will be obligated for monthly payments 3 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 4 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 5 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 6 1915(b)(2). 7 SCREENING 8 I. Legal Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 11 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 12 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 13 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 14 U.S.C. § 1915A(b)(1) & (2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 17 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 18 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 19 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 However, in order to survive dismissal for failure to state a claim a complaint must 26 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 27 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 28 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 1 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 2 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 3 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 6 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 7 or other proper proceeding for redress. 8 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 9 389. The statute requires that there be an actual connection or link between the 10 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 11 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 12 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 13 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 14 omits to perform an act which he is legally required to do that causes the deprivation of which 15 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 16 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 17 their employees under a theory of respondeat superior and, therefore, when a named defendant 18 holds a supervisorial position, the causal link between him and the claimed constitutional 19 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 20 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 21 concerning the involvement of official personnel in civil rights violations are not sufficient. See 22 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 23 II. Allegations in the Complaint 24 Plaintiff claims the events giving rise to the claim occurred while he was incarcerated in 25 the Shasta County Jail. (ECF No. 1 at 2.) He names the following defendants: (1) Sheriff Tom 26 Bosenko; (2) the Shasta County Sheriff’s Office; (3) captain Dave Kent; (4) sergeant Tanner; (5) 27 deputy Smith; and (6) the Shasta County Jail. (Id.) 28 //// 1 Plaintiff alleges that on August 28, 2018, deputy Smith told him to clean out cell number 2 16. (Id. at 3.) He alleges he was not “given any safeguards such as gloves, hazmat suit, [or] 3 disinfectant.” Rather he was given “a mop, bucket, [and] broom.” Plaintiff told officer Smith he 4 had an open wound, but “was told ‘It wouldn’t hurt me to do some work.’” (Id.) Plaintiff had to 5 clean “urine, fecal matter, along with misc[ellaneous] trash” while he was in his “boxers [and] 6 shower shoes.” He also was not given a change of clothes or a decontamination shower. 7 Plaintiff states he now has anxiety and wants “compensation in the amount of $2 million 8 dollars.” (Id.) 9 III. Does Plaintiff State a Claim under § 1983? 10 A. Eighth Amendment 11 The Eighth Amendment requires prison officials to provide humane conditions of 12 confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Uncomfortable or even harsh living 13 conditions do not implicate the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 347 14 (1981). “[O]nly those deprivations denying ‘the minimal civilized measures of life’s necessities’ 15 are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 16 U.S. 294, 298 (1991) (citation omitted). “Prison officials have a duty to ensure that prisoners are 17 provided adequate food, clothing, sanitation, medical care, and personal safety.” Johnson v. 18 Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citations omitted). “The circumstances, nature, and 19 duration of a deprivation of these necessities must be considered in determining whether a 20 constitutional violation has occurred.” Id. 21 A prison official may be liable under the Eighth Amendment for denying humane 22 conditions of confinement within a prison, the official must know “that inmates face a substantial 23 risk of serious harm and disregard[] that risk by failing to take reasonable measures to abate it.” 24 Farmer v. Brennan, 511 U.S. 825, 847 (1994). “Deliberate indifference is a high legal standard.” 25 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official 26 must not only ‘be aware of the facts from which the inference could be drawn that a substantial 27 risk of serious harm exists but that person ‘must also draw the inference.’” Id. at 1057 (quoting 28 Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the risk, but was not, 1 then the official has not violated the Eighth Amendment, no matter how severe the risk.’” 2 Toguchi, 391 F.3d at 1057 (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 3 (9th Cir. 2002)). 4 Courts that have analyzed facts similar to those presented in the complaint have found that 5 such allegations stated a claim where exposure to unsanitary conditions stated a claim where such 6 exposure was prolonged, happened on multiple occasions, or caused physical harm to the 7 plaintiff. DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (thirty-six hour exposure to 8 other inmates’ urine and feces due to flooding was sufficiently serious to state a successful 9 conditions of confinement claim); Weathers v. Loumakis, No. 2:15-cv-0027 JAD PAL, 2017 WL 10 4038401 at *4 (D. Nev. Sept. 13, 2017) (denying summary judgment on plaintiff’s claim that he 11 was given shower shoes, a broom, a squeegee, and a mop bucket to clean toilets that overflowed 12 on multiple occasions); McDaniels v. Elfo, No. C12-1289 TSZ MAT, 2013 WL 7231585 at *6 13 (W.D. Washington, Nov. 14, 2013) (plaintiff’s allegation that he was forced to clean his cell, the 14 dayroom, and shower area with harmful chemicals and without hot water or rubber gloves, 15 resulting in pain and damage to his hands stated an Eighth Amendment claim). However, where 16 the exposure was limited to one instance and the plaintiff was not harmed courts tend to find that 17 such allegations do not amount to an Eighth Amendment violation. Cook v. Long, No. 18 1:05CV211 HEA, 2009 WL 1578924 at *4 (E.D. Missouri June 3, 2009) (finding plaintiff failed 19 to state a cognizable Eighth Amendment claim where he was given sponges, cleaning rags, a 20 toilet bowl brush, and clean water with cleaning chemicals to use while cleaning his cell in 21 administrative segregation, but was not provided with a mop or gloves.) 22 As alleged in the complaint, plaintiff’s exposure was limited to one occasion that was not 23 prolonged and he did not suffer a physical injury. Accordingly, the court finds that he has not 24 alleged a sufficiently serious deprivation to state an Eighth Amendment claim. 25 B. Failure to Name Proper Defendants 26 1. Eleventh Amendment Immunity 27 Plaintiff has named the Shasta County Sheriff Office and the Shasta County Jail as 28 defendants in this action. (ECF No. 1 at 2.) “The Eleventh Amendment prohibits federal courts 1 from hearing suits brought against an unconsenting state.” Brooks v. Sulphur Springs Valley 2 Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991) (citation omitted); see also Seminole Tribe of Fla. 3 v. Florida, 517 U.S. 44, 54 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 4 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). 5 The Eleventh Amendment bars suits against state agencies as well as those where the state itself 6 is named as a defendant. See Natural Resources Defense Council v. California Dep’t of Tranp., 7 96 F.3d 420, 421 (9th Cir. 1996); Brooks, 951 F.2d at 1053; Taylor v. List, 880 F.2d 1040, 1045 8 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state agency entitled to 9 Eleventh Amendment immunity from suit). 10 Because the Shasta County Sheriff is a state agency it is entitled to Eleventh Amendment 11 immunity from suit. The Shasta County Jails is also not a proper defendant. See Polk County v. 12 Dodson, 454 U.S. 312, 325 (1981); Monell v. Dep’t of Social Services, 436 U.S. 658, 691 (1978). 13 2. Supervisory Defendants 14 Plaintiff has identified the Sheriff Bosenko, Captain Kent, and Sergeant Tanner, as 15 defendants in this action. However, he has not provided any factual allegations linking these 16 defendants to the events giving rise to his claim. 17 The Civil Rights Act (42 U.S.C. § 1983) requires that there be an actual connection or link 18 between the actions of the defendants and the deprivation alleged to have been suffered by 19 plaintiff. See Monell v. Dept. of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 20 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a 21 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 22 in another’s affirmative acts or omits to perform an act which he is legally required to do that 23 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 24 Cir. 1978). To state a claim for relief under § 1983, plaintiff must link each named defendant 25 with some affirmative act or omission that demonstrates a violation of plaintiff’s federal rights. 26 Additionally, supervisory personnel are generally not liable under § 1983 for the actions 27 of their employees under a theory of respondeat superior and, therefore, when a named defendant 28 holds a supervisorial position, the causal link between him and the claimed constitutional 1 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 2 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 3 concerning the involvement of official personnel in civil rights violations are not sufficient. See 4 Ivey, 673 F.2d at 268. 5 The allegations in the complaint fail to show that defendants Bosenko, Kent, and Tanner 6 were involved in the alleged rights deprivations. Additionally, they cannot be liable based solely 7 on their supervisory positions. Therefore, plaintiff has failed to state a claim against these 8 defendants. 9 AMENDING THE COMPLAINT 10 In any amended complaint, plaintiff must demonstrate how the conditions about which he 11 complains resulted in a deprivation of his constitutional rights. Rizzo, 423 U.S. at 370-71. Also, 12 the complaint must allege in specific terms how each named defendant is involved. Arnold v. 13 Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 14 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s action 15 and the claimed deprivation. Id.; Johnson, 588 F.2d at 743. Furthermore, “[v]ague and 16 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey, 17 673 F.2d at 268. 18 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 19 and the action that defendant took that violated his constitutional rights. The court is not required 20 to review exhibits to determine what plaintiff’s charging allegations are as to each named 21 defendant. If plaintiff wishes to add a claim, he must include it in the body of the complaint. The 22 charging allegations must be set forth in the amended complaint, so defendants have fair notice of 23 all claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in 24 support of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See 25 Fed. R. Civ. P. 8(a). 26 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 27 R. Civ. P 10(b). The amended complaint must show the federal court has jurisdiction, the action 28 is brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It 1 must contain a request for particular relief. Plaintiff must identify as a defendant only persons 2 who personally participated in a substantial way in depriving plaintiff of a federal constitutional 3 right. Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional 4 right if he does an act, participates in another’s act or omits to perform an act he is legally 5 required to do that causes the alleged deprivation). 6 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 7 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 8 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 9 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 10 set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz v. Sorema 11 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 12 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 13 Plaintiff is informed that the court cannot refer to a prior pleading in order to make his 14 amended complaint complete. An amended complaint must be complete in itself without 15 reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all 16 prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint, 17 each claim and the involvement of each defendant must be sufficiently alleged. 18 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 19 has evidentiary support for his allegations, and for violation of this rule the court may impose 20 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 21 CONCLUSION 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 10) is granted. 24 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is 25 assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 26 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to 27 the Director of the California Department of Corrections and Rehabilitation filed 28 concurrently herewith. wOAOe 2 EUV ETD VUE A PIR Fee PT Aye VI 1 3. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend. 2 4. Within sixty (60) days of the date of this order plaintiff shall file an amended complaint 3 that complies with the with the requirements of the Civil Rights Act, the Federal Rules of 4 Civil Procedure, and the Local Rules of Practice. The amended complaint must bear the 5 docket number assigned to this case and must be labeled “First Amended Complaint.” 6 5. Plaintiff is warned that his failure to comply with this order will result in a 7 recommendation that this action be dismissed. 8 | Dated: August 27, 2020 9 10 ll ORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 DB ‘owtenPs soner/Civil.Rights/ashb0544.scrn 16 17 18 19 20 21 22 23 24 25 26 27 28