8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
11 GERALD ASHFORD, Case No. 5:22-cv-00846-SSS-KES
12 Plaintiff, ORDER ACCEPTING REPORT AND 13 v. RECOMMENDATION OF U.S.
14 JAMES HILL, et al., MAGISTRATE JUDGE
15 Defendants.
18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings and all the
19 records and files herein, along with the Report and Recommendation (“R&R”) of
20 the United States Magistrate Judge. [Dkt. 35]. Further, the Court has engaged in a 21 de novo review of those portions of the R&R to which objections [Dkt. 38] have 22 been made. 23 Plaintiff’s objections do not warrant a change in the Magistrate Judge’s 24 findings and recommendation, for the following reasons. 25 As an initial matter, Plaintiff requests appointment of counsel for his claims 26 involving excessive heat and contaminated water. [Dkt. 38 at 1]. When 27 determining whether “exceptional circumstances” exist to warrant the appointment 28 1 of counsel, “a court must consider ‘the likelihood of success on the merits as well 2 as the ability of the petitioner to articulate his claims pro se in light of the 3 complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 970 4 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 5 Viewing these considerations together, appointment of counsel is not warranted at 6 this time. Plaintiff “has not demonstrated a likelihood of success on the merits,” 7 and he has not demonstrated any difficulty “in attempting to litigate his case 8 derived from the complexity of the issues involved.” Wilborn v. Escalderon, 789 9 F.2d 1328, 1331 (9th Cir. 1986). 10 Plaintiff objects to the R&R’s dismissal of his “walkway claims,” arguing 11 that his allegations must be taken as true. [Dkt. 38 at 3]. While it is true that “a 12 court must accept as true all of the allegations contained in a complaint[,]” the court 13 is “not bound to accept as true a legal conclusion couched as a factual allegation.” 14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The R&R properly concluded that 15 Plaintiff’s allegations did not state an Eighth Amendment violation because he “has 16 not alleged facts showing that the walkway posed an unreasonable risk of harm” or 17 that “Defendants knew it posed such a risk.” [Dkt. 35 at 10]. 18 Plaintiff further objects, as to his walkway claims, that the failure to maintain 19 the prison’s infrastructure was part of a policy or custom under Monell v. Dep’t of 20 Social Services, 436 U.S. 658 (1978). [Dkt. 38 at 4-6]. But Plaintiff has not 21 sufficiently alleged a policy or custom relating to prison walkways. Although 22 Plaintiff alleges a history of failing “to maintain the Institution as a matter of 23 course” [Dkt. 38 at 5-6], this alleged history is insufficiently specific to raise an 24 inference of an unlawful policy or custom relating to walkways. See Hyun Ju Park 25 v. City and County of Honolulu, 952 F.3d 1136, 1142 (9th Cir. 2020) (requiring “a 26 pattern of prior, similar violations of federally protected rights, of which the 27 relevant policy makers had actual or constructive notice” to state a Monell claim); 28 see also Martinez v. Nueces, County, Texas, 71 F.4th 385, 389 (5th Cir. 2023) 1 (holding that an allegation of a policy or custom of failing to protect inmates’ 2 medical needs in prison requires a “pattern of examples” that display “similarity” 3 and “specificity”). 4 Moreover, leave to amend a Monell claim with further allegations relating to 5 the prison walkways is not warranted. Plaintiff has been afforded two prior 6 opportunities to amend his Complaint to allege a constitutional violation relating to 7 the prison walkways. [Dkt. 17; Dkt. 23]. He still has not sufficiently alleged an 8 underlying constitutional violation, which is required to state a Monell claim 9 against the local government. Monell, 436 U.S. at 690-91; City of Los Angeles v. 10 Heller, 475 U.S. 796, 799 (1986) (per curiam). Because Plaintiff already has had 11 multiple opportunities to state a claim relating to the prison walkways, he will not 12 be afforded another opportunity to amend the claim under a Monell theory. See 13 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987) 14 (recognizing that “a district court’s discretion over amendments is especially broad 15 ‘where the court has already given a plaintiff one or more opportunities to amend 16 his complaint. . . .’”) (quoting Mir v. Forsburg, 646 F.2d 342, 347 (9th Cir. 1980)). 17 Plaintiff objects, as to his water claims, that he has sufficiently alleged 18 constitutional violations based on contaminated water that contained chemicals 19 exceeding the amount permitted by law. [Dkt. 38 at 11]. He has submitted, with 20 his Objections, a 2016 lead sample analysis and a 2018 nitrate sample analysis. [Id. 21 at 18-20]. These submissions, however, do not raise an inference under the Eighth 22 Amendment’s objective prong that the water was an inhumane condition of 23 confinement. The 2016 lead sample analysis says nothing about whether Plaintiff 24 had access to any of that water or about the current level of lead in the water. The 25 presence of lead in the water at a prison, by itself, is not necessarily an inhumane 26 condition of confinement. See Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 27 2001) (rejecting an Eighth Amendment claim based in part on lead in the prison’s 28 drinking water, commenting that “failing to provide a maximally safe environment, 1 one completely free from pollution or safety hazards, is not” a constitutional 2 violation). Moreover, the 2018 nitrate sample analysis states that the problem of 3 excessive nitrates was quickly corrected within a few days. See Hutto v. Finney, 4 437 U.S. 678, 687-87 (1978) (remarking that certain conditions of confinement 5 “might be tolerable for a few days and intolerably cruel for weeks or months”). 6 Plaintiff objects, as to his excessive heat claims, that housing inmates in an 7 uncooled dorm with fans only is criminal misconduct. [Dkt. 38 at 14]. Plaintiff 8 also admitted, however, that the prison had a heat mitigation plan that included 9 encouraging heat-risk inmate patients to take frequent showers, drink iced water, 10 soak themselves with water from dorm sinks, and accept misting by a fine spray. 11 [Dkt. 35 at 21]. And as the R&R found, Plaintiff “does not allege a medical 12 condition that would increase his vulnerability to serious illness caused by 13 excessive heat.” [Id. at 24]. In these circumstances, he has not alleged sufficient 14 facts to state an unconstitutional condition of confinement under the Eighth 15 Amendment’s objective prong. See Johnson v. Texas Bd. of Criminal Justice, 281 16 F. App’x 319, 321 (5th Cir.
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
11 GERALD ASHFORD, Case No. 5:22-cv-00846-SSS-KES
12 Plaintiff, ORDER ACCEPTING REPORT AND 13 v. RECOMMENDATION OF U.S.
14 JAMES HILL, et al., MAGISTRATE JUDGE
15 Defendants.
18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings and all the
19 records and files herein, along with the Report and Recommendation (“R&R”) of
20 the United States Magistrate Judge. [Dkt. 35]. Further, the Court has engaged in a 21 de novo review of those portions of the R&R to which objections [Dkt. 38] have 22 been made. 23 Plaintiff’s objections do not warrant a change in the Magistrate Judge’s 24 findings and recommendation, for the following reasons. 25 As an initial matter, Plaintiff requests appointment of counsel for his claims 26 involving excessive heat and contaminated water. [Dkt. 38 at 1]. When 27 determining whether “exceptional circumstances” exist to warrant the appointment 28 1 of counsel, “a court must consider ‘the likelihood of success on the merits as well 2 as the ability of the petitioner to articulate his claims pro se in light of the 3 complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 970 4 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 5 Viewing these considerations together, appointment of counsel is not warranted at 6 this time. Plaintiff “has not demonstrated a likelihood of success on the merits,” 7 and he has not demonstrated any difficulty “in attempting to litigate his case 8 derived from the complexity of the issues involved.” Wilborn v. Escalderon, 789 9 F.2d 1328, 1331 (9th Cir. 1986). 10 Plaintiff objects to the R&R’s dismissal of his “walkway claims,” arguing 11 that his allegations must be taken as true. [Dkt. 38 at 3]. While it is true that “a 12 court must accept as true all of the allegations contained in a complaint[,]” the court 13 is “not bound to accept as true a legal conclusion couched as a factual allegation.” 14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The R&R properly concluded that 15 Plaintiff’s allegations did not state an Eighth Amendment violation because he “has 16 not alleged facts showing that the walkway posed an unreasonable risk of harm” or 17 that “Defendants knew it posed such a risk.” [Dkt. 35 at 10]. 18 Plaintiff further objects, as to his walkway claims, that the failure to maintain 19 the prison’s infrastructure was part of a policy or custom under Monell v. Dep’t of 20 Social Services, 436 U.S. 658 (1978). [Dkt. 38 at 4-6]. But Plaintiff has not 21 sufficiently alleged a policy or custom relating to prison walkways. Although 22 Plaintiff alleges a history of failing “to maintain the Institution as a matter of 23 course” [Dkt. 38 at 5-6], this alleged history is insufficiently specific to raise an 24 inference of an unlawful policy or custom relating to walkways. See Hyun Ju Park 25 v. City and County of Honolulu, 952 F.3d 1136, 1142 (9th Cir. 2020) (requiring “a 26 pattern of prior, similar violations of federally protected rights, of which the 27 relevant policy makers had actual or constructive notice” to state a Monell claim); 28 see also Martinez v. Nueces, County, Texas, 71 F.4th 385, 389 (5th Cir. 2023) 1 (holding that an allegation of a policy or custom of failing to protect inmates’ 2 medical needs in prison requires a “pattern of examples” that display “similarity” 3 and “specificity”). 4 Moreover, leave to amend a Monell claim with further allegations relating to 5 the prison walkways is not warranted. Plaintiff has been afforded two prior 6 opportunities to amend his Complaint to allege a constitutional violation relating to 7 the prison walkways. [Dkt. 17; Dkt. 23]. He still has not sufficiently alleged an 8 underlying constitutional violation, which is required to state a Monell claim 9 against the local government. Monell, 436 U.S. at 690-91; City of Los Angeles v. 10 Heller, 475 U.S. 796, 799 (1986) (per curiam). Because Plaintiff already has had 11 multiple opportunities to state a claim relating to the prison walkways, he will not 12 be afforded another opportunity to amend the claim under a Monell theory. See 13 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987) 14 (recognizing that “a district court’s discretion over amendments is especially broad 15 ‘where the court has already given a plaintiff one or more opportunities to amend 16 his complaint. . . .’”) (quoting Mir v. Forsburg, 646 F.2d 342, 347 (9th Cir. 1980)). 17 Plaintiff objects, as to his water claims, that he has sufficiently alleged 18 constitutional violations based on contaminated water that contained chemicals 19 exceeding the amount permitted by law. [Dkt. 38 at 11]. He has submitted, with 20 his Objections, a 2016 lead sample analysis and a 2018 nitrate sample analysis. [Id. 21 at 18-20]. These submissions, however, do not raise an inference under the Eighth 22 Amendment’s objective prong that the water was an inhumane condition of 23 confinement. The 2016 lead sample analysis says nothing about whether Plaintiff 24 had access to any of that water or about the current level of lead in the water. The 25 presence of lead in the water at a prison, by itself, is not necessarily an inhumane 26 condition of confinement. See Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 27 2001) (rejecting an Eighth Amendment claim based in part on lead in the prison’s 28 drinking water, commenting that “failing to provide a maximally safe environment, 1 one completely free from pollution or safety hazards, is not” a constitutional 2 violation). Moreover, the 2018 nitrate sample analysis states that the problem of 3 excessive nitrates was quickly corrected within a few days. See Hutto v. Finney, 4 437 U.S. 678, 687-87 (1978) (remarking that certain conditions of confinement 5 “might be tolerable for a few days and intolerably cruel for weeks or months”). 6 Plaintiff objects, as to his excessive heat claims, that housing inmates in an 7 uncooled dorm with fans only is criminal misconduct. [Dkt. 38 at 14]. Plaintiff 8 also admitted, however, that the prison had a heat mitigation plan that included 9 encouraging heat-risk inmate patients to take frequent showers, drink iced water, 10 soak themselves with water from dorm sinks, and accept misting by a fine spray. 11 [Dkt. 35 at 21]. And as the R&R found, Plaintiff “does not allege a medical 12 condition that would increase his vulnerability to serious illness caused by 13 excessive heat.” [Id. at 24]. In these circumstances, he has not alleged sufficient 14 facts to state an unconstitutional condition of confinement under the Eighth 15 Amendment’s objective prong. See Johnson v. Texas Bd. of Criminal Justice, 281 16 F. App’x 319, 321 (5th Cir. 2008) (“While Johnson alleged that the temperatures 17 were sometimes uncomfortably hot, he did not allege that he suffered from any 18 heat-related injuries despite being subjected to these conditions numerous times; 19 this is not sufficient to state a constitutional claim.”). 20 Plaintiff objects, as to his water claims, that he has stated an equal protection 21 violation based on the fact that female inmates receive bottled water. [Dkt. 38 at 22 15]. But the fact that female inmates received bottled water does not state a 23 constitutional violation here. As the R&R found, Plaintiff does not allege that 24 Defendants had any role in the distribution of bottled water. [Dkt. 35 at 26]. Thus, 25 Plaintiff has not alleged intentional discrimination. See Serrano v. Francis, 345 26 F.3d 1071, 1082 (“Intentional discrimination means that a defendant acted at least 27 in part because of a plaintiff’s protected status.”) (emphasis in original). 28 Plaintiff objects, as to his walkway claims, that he has stated a claim under 1 the Americans with Disabilities Act and the Bane Act. [Dkt. 38 at 15]. As the 2 R&R found, however, Plaintiff has not stated a claim under these authorities 3 because he has not alleged facts showing a constitutional violation due to the 4 condition of the prison walkways. [Dkt. 35 at 12, 15]. 5 The Court accepts the findings, conclusions, and recommendations of the 6 United States Magistrate Judge. The R&R is approved and accepted. 7 The R&R found that all the claims in the operative Second Amended 8 Complaint (Dkt. 32) fall into three categories: (1) Walkway Claims; (2) Grievance 9 Mishandling Clams; and (3) Heat and Water Quality Claims. [Dkt. 35 at 2]. This 10 Order uses the same definitions of Plaintiff’s claims. IT IS THEREFORE 11 ORDERED as follows: 12 (A) The following claims are dismissed WITH PREJDUICE and 13 WITHOUT LEAVE TO AMEND: 14 (1) all Walkway Claims; 15 (2) all Grievance Handling Claims; 16 (3) The following Heat and Water Quality Claims: 17 (a) all claims against Defendant Kerr; 18 (b) all claims for retrospective declaratory relief; 19 (c) all ADA Title II claims against all Defendants in their 20 individual capacity; 21 (d) all § 504 Rehabilitation Act claims against all Defendants in 22 their individual capacity; 23 (e) all ADA Title II claims against all Defendants in their 24 official capacity for monetary damages and; 25 (f) all §504 Rehabilitation Act claims against all Defendants in 26 their official capacity for monetary damages; 27 (g) all Elder Abuse Act claims; and 28 (h) all Bane Act claims; 1 (B) All other Heat and Water Quality Claims not dismissed in Paragraph 2 | (A)(3) are dismissed WITHOUT PREJUDICE and WITH LEAVE TO 3 | AMEND; 4 (C) Any Third Amended Complaint shall be limited to Heat and Water 5 | Quality Claims against CDCR for injunctive relief under either (1) § 1983 (based 6 | on either the Eighth Amendment and/or Equal Protection Clause); (2) the ADA 7 | Title Il; and/or (3) the Rehabilitation Act §504.
9 | DATED: July 27, 2023 10 SUNSHINE SUZANNE SYKES UNITED STATES DISTRICT JUDGE
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