(PC) Williams v. CDCR ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON JEREL WILLIAMS, No. 2:21-cv-1559 AC P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 19 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 I. Application to Proceed In Forma Pauperis 21 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 22 § 1915(a). ECF Nos. 2, 4. Accordingly, the request to proceed in forma pauperis will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 II. Statutory Screening of Prisoner Complaints 5 The court is required to screen complaints brought by prisoners seeking relief against “a 6 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 7 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 8 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 9 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 10 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 13 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 14 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 15 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 16 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 17 Franklin, 745 F.2d at 1227-28 (citations omitted). 18 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 19 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 20 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 21 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 23 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 24 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 25 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 26 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 27 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 28 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 1 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint alleges that entity defendants California Department of Corrections and 14 Rehabilitation (CDCR), California Regional Water Quality Control Board (Water Quality Board), 15 Amador County, and City of Ione, and individual defendants Kernan, Bettencourt, Ahmed, 16 Larrabee, Campbell, Lizarraga, Kroyle, Altevogt, Hold, Covello, and Diaz and have subjected 17 plaintiff to unconstitutional conditions of confinement and denied him equal protection in 18 violation of the Eighth and Fourteenth Amendments. ECF No. 1. 19 Plaintiff alleges that he has been forced to drink and bathe in contaminated water that 20 causes him to break out in a rash after bathing in it and suffer from nausea, vomiting, diarrhea, 21 stomach cramps, dizziness, tremors, bone and joint pain, and constant fatigue when he drinks 22 more than thirty-two ounces at a time. Id. at 11. The water coming from the sink is sometimes 23 brown and smells like mud, dirt, or raw sewage, and the drains often smell of gasoline. Id. at 10- 24 11. The contaminated water is allegedly caused by the failure of Mule Creek State Prison’s 25 (MCSP) sewer and storm drain system and the prison’s failure to build a third water treatment 26 plant—as required by a 1985 agreement—once the prison reached a population of 1,700 inmates. 27 Id. at 8-10. 28 //// 1 Defendants are aware of the issues with the water, sewer, and storm drain piping, as well 2 as the contamination of the drinking water, because they have held various public meetings 3 regarding the issue. Id. at 10, 12. Despite being aware of these dangers, defendants have neither 4 warned the inmate population at MCSP nor attempted to provide clean drinking water. Id. The 5 CDCR, Kernan, Diaz, Larrabee, Bettencourt, Ahmed, Campbell, Lizarraga, and Covello have 6 instead tried to cover up the extent of the water contamination by building a culvert system and 7 hiring a specific water testing company whose methods do not conform to EPA standard. Id. at 8 11-12. These same defendants, other than Covello and Cambell, also authorized the use of 9 unknown chemicals to attempt to stop or prevent water contamination, but the chemicals 10 damaged the boilers, which were replaced. Id. at 14-15. Additionally, Lizarraga authorized 11 inmate laborers to dig up and repair the water and sewer mains in front of Building #2 on A- 12 Facility, resulting in raw sewage contaminating the water supply when the sewer main ruptured 13 and two pipelines were inadvertently crossed until being corrected two days later. Id. 13-14. 14 Lizarraga failed to take reasonable abatement measures when this occurred, such as disinfecting 15 and sanitizing the pipelines, and supplying clean drinking water in the meantime. Id. at 14. 16 IV. Claims for Which a Response Will Be Required 17 Liberally construed, the allegations against Lizarraga related to the attempted repair of the 18 water and sewer mains are sufficient to state a claim under the Eighth Amendment. See Farmer 19 v. Brennan, 511 U.S. 825, 837 (1994) (Eighth Amendment violation where prison official “knows 20 of and disregards an excessive risk to inmate health or safety”). If plaintiff chooses to go forward 21 without amending the complaint, Lizarraga will be required to respond to this claim. 22 V. Failure to State a Claim 23 A. Sovereign Immunity 24 Plaintiff’s claims against the CDCR and the Water Quality Board are barred by sovereign 25 immunity because both entities are arms of the state. See Howlett v. Rose, 496 U.S. 356, 365 26 (1990) (the state and arms of the state “are not subject to suit under § 1983” (citing Will v. Mich. 27 Dep’t of State Police, 491 U.S. 58 (1989))). The Supreme Court has held that “§ 1983 was not 28 intended to abrogate a State’s Eleventh Amendment immunity,” Kentucky v. Graham, 473 U.S. 1 159, 169 n.17 (1985) (citation omitted), and though plaintiff alleges these defendants have waived 2 their immunity by receiving federal funding, he points to no applicable statute, nor is the court 3 aware of any, under which the acceptance of funds would waive immunity in this case. The mere 4 acceptance of federal funding does not, by itself, cause a waiver of sovereign immunity. See 5 Holley v. Cal. Dep’t of Corrs., 599 F.3d 1108, 1114 (9th Cir. 2010) (affirming dismissal of 6 complaint against CDCR because California had not constructively waived its sovereign 7 immunity merely by accepting federal funds). For the acceptance of federal funds “[t]o be a valid 8 waiver, a state’s consent to suit must be ‘unequivocally expressed in the statutory text.’” Id. 9 (citing Lane v. Pena, 518 U.S. 187, 192 (1996)). 10 B. Amador County and City of Ione 11 While “municipalities and other local government units . . . [are] among those persons to 12 whom § 1983 applies,” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978), “a municipality 13 can be liable under § 1983 only where its policies are the ‘moving force [behind] the 14 constitutional violation,’” City of Canton v. Harris, 489 U.S. 378, 389 (1989) (alteration in 15 original) (quoting Monell, 436 U.S. at 694 and Polk County. v. Dodson, 454 U.S. 312, 326 16 (1981)). There must be “a direct causal link between a municipal policy or custom and the 17 alleged constitutional deprivation.” Id. at 385. In other words, a Monell claim exists only where 18 the alleged constitutional deprivation was inflicted in “execution of a government’s policy or 19 custom.” Monell, 436 U.S. at 694. Here, the complaint contains no such allegations against the 20 City of Ione or the County of Amador. Accordingly, the complaint fails to state a claim against 21 either defendant. 22 C. Conditions of Confinement 23 “[A] prison official violates the Eighth Amendment only when two requirements are met. 24 First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or 25 omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer, 26 511 U.S. at 834 (1994) (internal quotation marks and citations omitted). Second, the prison 27 official must subjectively have a sufficiently culpable state of mind, “one of deliberate 28 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). The 1 official is not liable under the Eighth Amendment unless he “knows of and disregards an 2 excessive risk to inmate health or safety.” Id. at 837. Then he must fail to take reasonable 3 measures to lessen the substantial risk of serious harm. Id. at 847. Negligent failure to protect an 4 inmate from harm is not actionable under § 1983. Id. at 835. 5 Plaintiff’s conclusory and speculative allegations about the hidden purposes of 6 construction projects, water testing, and the use of water treatment chemicals do not plausibly 7 show the water is contaminated, that dangerous chemicals remain in the water when used or 8 consumed by plaintiff, or that defendants are, subjectively, deliberately indifferent to a serious 9 risk of harm. In addition, it is unclear how each of these defendants might have been personally 10 involved in the alleged activities since they were not all in their respective positions at the same 11 times, see ECF No. 1 at 2, 5-7, and plaintiff does not provide the details of the timing of the 12 activities described. Similarly, plaintiff allegations that defendants had knowledge about 13 allegedly contaminated water at MCSP based on their participation in meetings and that they 14 failed to act are too vague and conclusory to adequately plead a deliberate indifference claim. 15 More specific facts as to each individual defendant would be needed in order to plausibly show a 16 violation. 17 D. Equal Protection 18 The Fourteenth Amendment’s Equal Protection Clause requires the State to treat all 19 similarly situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 20 (1985) (citation omitted). “To state a claim for violation of the Equal Protection Clause, a 21 plaintiff must show that the defendant acted with an intent or purpose to discriminate against him 22 based upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th 23 Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Prisoners are not a 24 protected class. Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998) (inmates denied tobacco 25 use based on housing location not a protected class). Alternatively, a plaintiff may state an equal 26 protection claim if he shows similarly situated individuals were intentionally treated differently 27 without a rational relationship to a legitimate government purpose. Vill. of Willowbrook v. 28 Olech, 528 U.S. 562, 564 (2000) (citations omitted). 1 Inmates are not a protected class for equal protection purposes, nor are they similarly 2 situated to prison staff and employees. Accordingly, plaintiff’s allegations that defendants 3 violated his rights protected under the Equal Protection Clause also fail to state claims for relief. 4 VI. Leave to Amend 5 For the reasons set forth above, the court finds that the complaint states a cognizable 6 Eighth Amendment claim against defendant Lizarraga only. No other claims are sufficiently 7 pled. However, it appears that plaintiff may be able to allege facts to remedy this and he will be 8 given the opportunity to amend the complaint if he desires. Plaintiff may proceed forthwith to 9 serve defendant Lizarraga on his Eighth Amendment claim based on the attempt to repair the 10 water and sewer mains or he may delay serving any defendant and amend the complaint. 11 Plaintiff will be required to complete and return the attached notice advising the court how 12 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 13 file an amended complaint. If plaintiff elects to proceed on his sole claim against defendant 14 Lizarraga without amending the complaint, the court will proceed to serve the complaint. A 15 decision to go forward without amending the complaint will be considered a voluntarily dismissal 16 without prejudice of all claims and defendants except for the Eighth Amendment claim against 17 Lizarraga based on the attempt to repair the water and sewer mains. 18 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 19 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 20 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named 21 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 22 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 23 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 24 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 25 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 26 268 (9th Cir. 1982) (citations omitted). 27 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 28 his amended complaint complete. Local Rule 220 requires that an amended complaint be 1 complete in itself without reference to any prior pleading. This is because, as a general rule, an 2 amended complaint supersedes any prior complaints. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 3 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 4 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 5 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 6 any previous complaints no longer serve any function in the case. Therefore, in an amended 7 complaint, as in an original complaint, each claim and the involvement of each defendant must be 8 sufficiently alleged. 9 VII. Plain Language Summary of this Order for a Pro Se Litigant 10 Your request to proceed in forma pauperis is granted. That means you do not have to pay 11 the entire filing fee now. You will pay it over time, out of your trust account. 12 Some of the allegations in the complaint state claims against the defendants and some do 13 not. You have stated an Eighth Amendment claim against defendant Lizarraga based upon his 14 attempt to fix the water and sewer mains. You have not stated any other claims for relief. To 15 state a claim against the other defendants you must alleged specific facts showing that each 16 defendant was aware of a serious risk to your health and disregarded that risk. 17 You have a choice to make. You may either (1) proceed immediately on your Eighth 18 Amendment claim against defendant Lizarraga based upon his attempt to fix the water and sewer 19 mains and voluntarily dismiss the other claims or (2) try to amend the complaint. If you want to 20 go forward without amending the complaint, you will be voluntarily dismissing without prejudice 21 all other claims and defendants. If you choose to file an amended complaint, it must include all 22 claims you want to bring. Once an amended complaint is filed, the court will not look at any 23 information in the original complaint. Any claims and information not in the first amended 24 complaint will not be considered. You must complete the attached notification showing what 25 you want to do and return it to the court. Once the court receives the notice, it will issue an order 26 telling you what you need to do next (i.e. file an amended complaint or wait for defendants to be 27 served). 28 //// 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED. 3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 4 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 5 || § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 6 || appropriate agency filed concurrently herewith. 7 3. Plaintiff has stated a cognizable Eighth Amendment claim against defendant Lizarraga 8 | based on the attempt to repair the water and sewer mains. Plaintiffs allegations do not state any 9 || other claims for which relief can be granted. 10 4. Plaintiff has the option to proceed immediately on his Eighth Amendment claim 11 || against defendant Lizarraga based on the attempt to repair the water and sewer mains as set forth 12 || in Section IV above, or to amend the complaint. 13 5. Within fourteen days of service of this order, plaintiff shall complete and return the 14 | attached form notifying the court whether he wants to proceed on the screened complaint or 15 || whether he wants to file an amended complaint. If plaintiff does not return the form, the court 16 || will assume that he is choosing to proceed on the complaint as screened and will recommend 17 || dismissal without prejudice of all defendants and claims except for the Eighth Amendment claim 18 || against defendant Lizarraga based on the attempt to repair the water and sewer mains. 19 | DATED: October 16, 2023 * 20 Lhar—e_ ALLISON CLAIRE 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BRANDON JEREL WILLIAMS, No. 2:21-cv-1559 AC P 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 14 REHABILITATION, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his Eighth Amendment claim against defendant 19 Lizarraga based on the attempt to repair the water and sewer mains without amending the 20 complaint. Plaintiff understands that by going forward without amending the complaint 21 he is voluntarily dismissing without prejudice all other claims and defendants pursuant to 22 Federal Rule of Civil Procedure 41(a). 23 24 _____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________ 27 Brandon Jerel Williams Plaintiff pro se 28