1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LIPSEY, JR., Case No.: 1:17-cv-01705-LJO-JLT (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SCREENING; AND 13 v. FINDINGS AND RECOMMENDATIONS 14 MEDINA, et al., TO DISMISS SECOND AMENDED COMPLAINT WITH PREJUDICE 15 Defendants. (Docs. 22, 23) 16 FOURTEEN-DAY DEADLINE 17 18 Plaintiff has filed a second amended complaint asserting claims against governmental 19 employees pursuant to 42 U.S.C. § 1983. The Court is required to screen complaints brought by 20 inmates seeking relief against a governmental entity or an officer or employee of a governmental 21 entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the 22 prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 23 which relief may be granted, or that seek monetary relief from a defendant who is immune from 24 such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion 25 thereof, that may have been paid, the court shall dismiss the case at any time if the court 26 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be 27 g ranted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 28 1 I. Relevant Procedural Background 2 Plaintiff initiated this action on December 19, 2017, for claims related to the delayed 3 receipt of his personal property following several institutional transfers; this property included 4 legal documents, personal hygiene items, and a Torah. The Court screened the complaint and 5 found it lacked a cognizable claim. (Doc. 12.) Plaintiff then filed a first amended complaint (Doc. 6 14), which the Court screened again and deemed it to be substantively identical to the original 7 complaint. Because plaintiff failed to state a claim and his allegations suggested that there were 8 no additional facts to plead, the Court issued findings and recommendations to dismiss the first 9 amended complaint without leave to amend. (Doc. 18.) Plaintiff objected to the findings and 10 recommendations. (Doc. 19.) On review of the objections, District Judge Lawrence J. O’Neill 11 granted the findings and recommendations in part, giving plaintiff one final opportunity to state 12 an Eighth Amendment conditions of confinement claim and a First Amendment free exercise 13 claim. Plaintiff’s second amended complaint follows from that order and is now before the Court 14 for screening. 15 II. Pleading Standard 16 A complaint must contain “a short and plain statement of the claim showing that the 17 pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 18 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 19 conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 20 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge 21 unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 22 (internal quotation marks and citation omitted). While factual allegations are accepted as true, 23 legal conclusions are not. Iqbal, 556 U.S. at 678. 24 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” 25 See 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate 26 that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 27 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient 28 to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 1 F.3d 962, 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to 2 have their pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. 3 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility 4 of misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 5 F.3d at 969. 6 III. Plaintiff’s Allegations 7 Plaintiff brings this civil rights action against four defendants: Corcoran State Prison 8 Associate Warden R. Godwin, Chief Deputy Warden J. Perez, Secretary of the California 9 Department of Corrections and Rehabilitation (“CDCR”) S. Kernan, and Appeals Examiner / 10 Captain T. Lee. Plaintiff seeks damages and injunctive relief. Plaintiff’s allegations are 11 summarized as follows: 12 A. Eighth Amendment and Fourteenth Amendment Claims 13 Plaintiff’s first challenge concerns the relationship between his indigency and the CDCR’s 14 alleged practice of excessively delaying the transfer of an inmate’s personal property following 15 the inmate’s transfer to another institution. Plaintiff claims that he was transferred multiple times 16 since 2014, accompanying each transfer was a six to eight-week delay in the receiving his 17 personal property. 18 Plaintiff, who owes restitution and court fees, has been unable to purchase any hygiene 19 items from the canteen because any money that is in his account is taken before he is able to buy 20 anything. Therefore, during those periods while he awaited the receipt of his personal property, he 21 was forced to rely on items provided to him by the institution, to include toothpaste, soap, and 22 shower shoes. In lieu of toothpaste, however, plaintiff was (and presumably still is) provided 23 baking soda, which causes plaintiff’s gums to bleed and become highly sensitive. This prevents 24 him from eating healthy solid foods, such as apples, and forces him instead to eat “a lot of bread,” 25 resulting in weight gain and gingivitis. He also claims that he was denied shower shoes, forcing 26 him to go extended periods of time without a shower for fear of contracting an illness walking 27 barefoot in the showers. Between 2015-2016, plaintiff claims he “went a whole year without a 28 shower and using a piece of soap as toothpaste.” 1 In early 2017, and in anticipation of an upcoming transfer to CSP, plaintiff submitted an 2 inmate grievance explaining his past problems with the delayed receipt and/or loss of his personal 3 property, but the appeal was not processed. Upon his transfer to CSP in March 2017, plaintiff 4 claims that “most of his property was either damaged or missing.” As a result, from March 2017 5 until October 2017, plaintiff was forced to forego showers and to wash his clothes, body, and cell 6 with a single bar of soap. 7 On March 30, 2017—the same month that he was transferred to CSP—plaintiff filed an 8 inmate grievance regarding the property transfer policy in general and its effect on indigent 9 inmates. This appeal was denied at the first level of review by defendant Associate Warden 10 Godwin; denied at the second level by defendant Warden Perez; and denied at the third level of 11 review “on behalf of” defendant Secretary Kernan. 12 In March 2018, plaintiff was transferred from CSP to High Desert State Prison. During the 13 six to eight weeks that his property was withheld as a result of this transfer, he was temporarily 14 transferred back to CSP, where he was again provided baking soda in lieu of toothpaste. He also 15 alleges that he was not provided shower shoes. As a result, plaintiff was unable to shower for fear 16 of contracting an illness in the showers, and he was forced to use soap as toothpaste until July 17 2018 when he received a care package. 18 Plaintiff claims the defendants were on notice since 2015 of these issues regarding the 19 delayed receipt of property and the failure to provide indigent inmates with proper personal 20 hygiene items. Despite notice, they failed to ensure that he receive necessary items at CSP. He 21 also contends that, despite the recent passage of California Penal Code § 5007.71, which ensures 22 the provision of personal hygiene items to indigent inmates, Secretary Kernan has failed to ensure 23 that plaintiff be provided basic hygiene items such as toothpaste instead of baking soda. 24 B. First Amendment and Fourteenth Amendment 25 Plaintiff is a practicing Jewish inmate. Because he has not had a copy of his Torah due to 26 the delayed receipt of his personal property, he has been unable to practice his religion, especially 27 1 Section 5007.7 provides, in relevant part, that “[a]n inmate who has maintained an inmate trust account with twenty-five dollars ($25) or less for 30 consecutive days shall be deemed indigent. An indigent inmate shall receive 28 basic supplies necessary for maintaining personal hygiene….” 1 during holy days. Plaintiff claims that he asked several unidentified individuals for a Torah 2 between 2017 and 2018, but staff members did not provide him with one even though they 3 provided Christian and Muslim inmates with copies of their holy books. 4 IV. Discussion 5 A. Eighth Amendment Conditions of Confinement 6 While not entirely clear, it appears that plaintiff is again accusing the defendants of 7 violating his rights by denying his generalized inmate grievance challenging CDCR’s property 8 transfer policy. This claim must be dismissed with prejudice because, as plaintiff was previously 9 informed, the property transfer policy itself does not violate the constitution. See Taylor v. List, 10 880 F.2d 1040, 1045 (9th Cir. 1989) (supervisory official liable under Section 1983 if he or she 11 knew of a violation and failed to act to prevent it). 12 Next, plaintiff alleges that the defendants, despite notice, failed to provide him with 13 necessary personal hygiene items while he was housed at CSP, in violation of his Eighth 14 Amendment rights. The treatment a prisoner receives in prison and the conditions of his 15 confinement are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 16 25, 31 (1993). To be actionable under the Eighth Amendment, an alleged deprivation must satisfy 17 both an objective component, i.e., the deprivation must be sufficiently serious, and a subjective 18 component, i.e., the offending conduct was wanton. Farmer v. Brennan, 511 U.S. 825, 833 19 (1970); LeMaire v. Maass, 12 F.3d 1444, 1451 (9th Cir. 1993). The subjective component of the 20 Eighth Amendment requires a showing that the prison official knew of and disregarded an 21 excessive risk to inmate health or safety; the official must have been aware of facts from which 22 the inference could be drawn that a substantial risk of serious harm existed, and he must have 23 drawn the inference. Farmer, 511 U.S. 835. 24 Plaintiff’s allegations suggest, at best, that the defendants were aware only of a 25 generalized issue that indigent inmates are sometimes not provided with certain personal hygiene 26 items following institutional transfers. The allegations do not suggest that these defendants were 27 personally aware that plaintiff himself was experiencing these problems at CSP. Because the 28 1 grievance appears to form the only link between these defendants and the alleged violation of 2 plaintiff’s rights, the Court once again concludes that plaintiff has failed to state a claim. 3 Regarding plaintiff’s contention that injunctive relief is warranted because he is still being 4 provided baking soda in lieu of toothpaste, plaintiff is reminded that “routine discomfort is ‘part 5 of the penalty that criminal offenders pay for their offenses against society,”’ and “only those 6 deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave to 7 form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) 8 (internal citations omitted). The mere provision of baking soda, rather than his preferred 9 toothpaste, does not rise to a condition of confinement that violates plaintiff’s Eighth Amendment 10 rights. See Acuna v. Rowland, 24 F.3d 244 (9th Cir. May 4, 1994) (holding that the inmate’s 11 constitutional rights were not violated by the provision of “toothpowder” instead of toothpaste); 12 Roshone v. Peters, 2014 WL 4547031 (D. Or. Sept. 12, 2014) (holding that plaintiff failed to state 13 a claim that his constitutional rights were violated by the provision of baking soda instead of 14 toothpaste). Insofar as plaintiff claims that he suffered health issues using the baking soda, he 15 fails to include any allegations that would suggest that any of the defendants, to include Secretary 16 Kernan, was aware of that harm. For these reasons, plaintiff again fails to state a conditions of 17 confinement claim. 18 B. First Amendment Free Exercise 19 Plaintiff is entitled to a reasonable opportunity to practice his religion. Cruz v. Beto, 405 20 U.S. 319, 322 (1972). “Inmates . . . retain protections afforded by the First Amendment, including 21 its directive that no law shall prohibit the free exercise of religion.” O'Lone v. Estate of Shabazz, 22 482 U.S. 342, 348 (1987) (internal quotations and citations omitted). The protections of the Free 23 Exercise Clause are triggered when prison officials substantially burden the practice of an 24 inmate’s religion by preventing him from engaging in conduct which he sincerely believes is 25 consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir.2008); Freeman v. 26 Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled in part by Shakur, 514 F.3d at 884–85. 27 The allegations in the second amended complaint do not rectify the infirmities of the prior 28 pleadings. Plaintiff alleges that, due to the delayed receipt of his personal property over the years, 1 he has been forced to ask (unidentified) institutional staff members for a Torah, and each time he 2 was unable to secure access to one other than through care packages and/or other inmates. He 3 claims that the defendants should be required to justify the prohibition against allowing inmates 4 to take their religious materials with them until institutional staff process the rest of their property 5 or justify why they can’t provide plaintiff with a Torah upon request. As with the previous 6 complaint, however, this claim is not properly asserted against any of the defendants. Plaintiff 7 does not allege that he asked any of them for a Torah, that any of them denied him a Torah or that 8 they had any control over whether the Torah could be maintained with him during transport. His 9 allegations continue to suffer from vague and conclusory statements that fail to provide the 10 necessary link between the complained-of conduct and the named defendants. As with the 11 previous claim, the Court will recommend that this claim be dismissed. 12 V. Conclusion 13 Plaintiff’s claims are once again not cognizable as plead. The recurring problem for 14 plaintiff is his failure to properly link his allegations to the defendants. Because this is the third 15 opportunity in which he has failed to state a claim and further because Judge O’Neill granted 16 plaintiff one final opportunity to state a claim, the Court GRANTS plaintiff’s motion for 17 screening (Doc. 23); and 18 The Court RECOMMENDS that the second amended complaint be dismissed with 19 prejudice for failure to state a claim. 20 These Findings and Recommendations will be submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 22 fourteen days after being served with these Findings and Recommendations, the parties may file 23 written objections with the Court. The document should be captioned “Objections to Magistrate 24 Judge’s Findings and Recommendations.” 25 /// 26 /// 27 /// 28 /// 1 The parties are advised that failure to file objections within the specified time may result 2 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 3 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: December 17, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28