Kimes v. Randolph

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH K. KIMES, Case No.: 3:21-cv-0124-CAB-AHG CDCR #V-80313, 12 ORDER DISMISSING CLAIMS AND Plaintiff, 13 DEFENDANTS PURSUANT TO 28 vs. U.S.C. § 1915(e)(2) AND § 1915A(b)(1) 14

15 RANDOLPH; MS. ALLEN; MARCUS 16 POLLARD; KATHLEEN ALLISON; 17 SGT DIAZ; K. COWART; R. BARENCHI; HELEN NORRIS; A. 18 BOSIO; P. MEJIA; C. DOMINGO; 19 ALMA MARTINEZ, 20 Defendants. 21 22 I. Procedural History 23 On January 21, 2021, Kenneth Kimes (“Plaintiff”), currently incarcerated at the 24 Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, filed 25 a civil rights Complaint (“Compl.”) pursuant to 22 U.S.C. § 1983 (See ECF No. 1). 26 Plaintiff also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 27 § 1915(a) (See ECF No. 2). 28 / / / 1 On February 12, 2021, the Court GRANTED Plaintiff’s Motion to Proceed IFP 2 and simultaneously DISMISSED his Complaint for failing to state a claim pursuant to 28 3 U.S.C. § 1915(e)(2) and § 1915A(b)(1). (See ECF No. 7.) Plaintiff was given leave to 4 file an amended complaint in order to correct the deficiencies in his pleading identified in 5 the Court’s Order. (See id.) On March 9, 2021, Plaintiff filed his First Amended 6 Complaint (“FAC”). (See ECF No. 8.) 7 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 8 A. Standard of Review 9 As the Court previously informed Plaintiff, because he is a prisoner and is 10 proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C. 11 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 12 prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 13 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 14 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 15 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 16 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need 17 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 18 2014) (citations omitted). 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 22 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 23 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 24 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 25 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 26 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 27 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 28 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 4 relief [is] ... a context-specific task that requires the reviewing court to draw on its 5 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 8 (9th Cir. 2009). 9 B. Plaintiff’s Allegations 10 On March 2, 2012, Defendant Barenchi “issued an order for Plaintiff to be given 11 three gluten free meals a day due to Plaintiff being diagnosed with Celiac disease.” (FAC 12 at 5.) Barenchi later issued a second identical order on April 5, 2012. (See id.) These 13 orders “were issued” to Defendants Norris and Bosto. (Id.) Norris and Bosto are 14 “employed as the dieticians directly responsible for ensuring [Plaintiff’s] medical diet is 15 healthy.” (Id.) 16 Plaintiff alleges Norris and Bosto “allowed” his meals to be “stolen “on February 17 20, 2019, March 6, 2019 and April 14, 2020. (Id.) Plaintiff further claims his meals were 18 also stolen on February 3, 2020 and June 1, 2020. (See id.) In addition, he contends that 19 Norris and Bosto have served “Plaintiff his food completely spoiled and rotten” on five 20 occasions from December of 2019 to February of 2020. (Id.) Norris and Bosto 21 purportedly served Plaintiff food containing gluten” on January 25, 2020, January 27, 22 2020, and on April 4, 2020. (Id.) 23 In 2015 and 2016, Barenchi “issued medical chronos stating that Plaintiff has 24 celiac disease and is allowed to purchase gluten free foods such as yogurt, protein 25 powder, produce, fruit, and vegetables from a market vendor at Plaintiff’s own expense.” 26 (Id. at 6.) However, when Plaintiff ordered these items on January 2, 2020, Defendant 27 28 1 Cowart “refused the order and told Plaintiff that he was not allowed to have the order and 2 that there was no medical file/chrono” in Plaintiff’s file. (Id.) 3 Plaintiff filed a grievance and claims that Cowart “saw that Plaintiff filed an appeal 4 about the order” and removed Plaintiff’s medical chrono from his file. (Id.) Plaintiff 5 further claims Cowart and Defendant Pollard had Barenchi “recant his 4 year old medical 6 chrono and issue a new one stating that Plaintiff was now not allowed to order food for 7 his medical diet.” (Id.) 8 Plaintiff “wrote to the only approved vendor that was offering medical diet 9 foods/chrono store items and was told that they no longer offer[ed] medical food chrono 10 diet store items.” (Id.) Plaintiff alleges that he requested “help in getting his order/chrono 11 worked out” from Cowart but Cowart “did not provide any help and actually threatened 12 Plaintiff for filing an appeal.” (Id.) 13 Plaintiff alleges Defendants Pollard, Allison, Norris, and Bosto “have been 14 allowing inmates infected with HIV and Hepatitis to work in culinary and handle 15 Plaintiff’s food.” (Id. at 7.) As a result, Plaintiff claims it puts him “in harms way to 16 potentially catch one or both of these viruses by their action.” (Id.) Plaintiff contends 17 that when he raised these concerns, these Defendants “refused to give any of the kitchen 18 inmates handling Plaintiff’s food any type of screening or review to correct this issue.” 19 (Id.) On five occasions in 2019 and 2020, Plaintiff claims he was “given rotten food that 20 was prepared by these inmates and it caused Plaintiff severe and ongoing medical 21 problems.” (Id.) 22 Plaintiff alleges Defendants Mejia, Domingo, and Martinez “tampered with and 23 removed documents from Plaintiff’s medical file,” along with purportedly “denying 24 Plaintiff access to his medical file. (Id. at 8.) In addition, he claims these Defendants, 25 along with Defendant Pollard, are “refusing to list Plaintiff as an ‘American with a 26 Disability’ who falls under the ADA definition of a person with Celiac disease.” (Id.) 27 28 1 Plaintiff seeks declaratory relief, injunctive relief, $3,000,000 in compensatory 2 damages, and $3,000,000 in punitive damages. (See id. at 10-13.) 3 C. Waived Defendants 4 In the Court’s February 12, 2021 Order, Plaintiff was cautioned that any 5 “[d]efendants not named and any claim not re-alleged in his Amended Complaint will be 6 considered waived.” (See Feb. 12, 2021 Order, ECF No. 7 at 13 citing S.D. CAL. CIVLR 7 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th 8 Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 9 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend 10 which are not re-alleged in an amended pleading may be “considered waived if not 11 repled.”). 12 In Plaintiff’s FAC, he no longer names Defendants Randolph, Allen, or Diaz as 13 Defendants. Accordingly, all claims against these Defendants are deemed waived and 14 they are DISMISSED from this action and the Clerk of Court is DIRECTED to terminate 15 these Defendants from the docket. 16 D. Individual Causation 17 Plaintiff claims that Defendants Norris and Bosto “allowed” his meals to be stolen” 18 or were somehow responsible for his meals being spoiled on a few occasions over the last 19 eighteen months. (See FAC at 5-6.) In a grievance submitted in support of his 20 allegations in his FAC, Plaintiff writes “[f]or the last 3-4 weeks there has been a major 21 increase in medical diet food theft at breakfast” and the “bags are ripped open and one of 22 your kitchen workers is stealing frequently and often from many of the medical diets, not 23 just mine.” (FAC at 22; Ex. C, Inmate/Parolee Request for Interview, Item or Service, 24 CDCR Form 22, Dated Feb. 20, 2019.) Staff member Robinson1, a yard kitchen 25 manager, responded “yes, we tracked who it is and we have given him a write up.” (Id.) 26

27 28 1 Robinson is not a named Defendant. 1 Plaintiff filed another grievance a few weeks later indicating that his medical diet 2 that morning had been “torn open” and asked to “talk directly.” (Id. at 24, 3 Inmate/Parolee Request for Interview, Item or Service, CDCR Form 22, Dated March 6, 4 2019.) Robinson again responded that he “found out who is doing it and gave him a 5 write up.” (Id.) Nowhere in these grievances does Plaintiff indicate how Defendants 6 Norris or Bosto were at all involved in the alleged theft of medical diets or how they 7 allegedly “allowed” these diets to be stolen. He fails to elaborate with sufficient factual 8 allegations how Norris or Bosto were purportedly responsible for another inmate 9 allegedly stealing from these medical diets in the body of his FAC. 10 He also alleges that Defendants Pollard, Allison, Norris, and Bosto “have been 11 allowing inmates infected with HIV and Hepatitis to work in culinary and handle 12 Plaintiff’s food.” (Id. at 7.) As a result, Plaintiff claims it puts him “in harm’s way to 13 potentially catch one or both of these viruses by their action.” (Id.) Plaintiff contends 14 that when he raised these concerns, these Defendants “refused to give any of the kitchen 15 inmates handling Plaintiff’s food any type of screening or review to correct this issue.” 16 (Id., citing Ex. N, ECF No. 8 at 74, Inmate/Parolee Request for Interview, CDCR 22 17 dated December 29, 2019.) This grievance also shows that Plaintiff raised this issue and 18 it was responded to by “O. Aguilar.” (Id.) Nowhere in the documents attached to 19 Plaintiff’s FAC, and to which he cites in support of his allegations, is there any indication 20 that Defendants Pollard, Allison, Norris, or Bosto were aware of his claims that he was 21 being served food by any inmate with a purportedly contagious disease or that they 22 refused to provide any screening to these inmates.2 23

24 2 According to CDCR regulations, a “medical clearance shall be required prior to placing an inmate in a 25 food handling assignment.” CAL CODE REGS., tit. 15 § 4080.20. None of the named Defendants are alleged to be medical personnel. In addition, CDCR regulations also provide that “[f]ood service 26 correctional officers and correctional cooks shall hold daily inspections of all workers who handle food 27 for cleanliness, open sores, proper clothing, hair nets (covers) or any condition that may contaminate the food.” Id. Again, none of the named Defendants are alleged to be food service correctional officers or 28 correctional cooks. 1 The Court finds that Plaintiff’s FAC contains no “further factual enhancement” 2 which describes how, or to what extent, Pollard, Allison, Norris, or Bosto became aware 3 of, or were actually aware of, any alleged constitutional violation. “Because vicarious 4 liability is inapplicable to . . . §1983 suits, a plaintiff must plead that each government- 5 official defendant, through the official’s own individual actions, has violated the 6 Constitution.” Iqbal, 556 U.S. at 676; see also Jones v. Community Redevelopment 7 Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff 8 must “allege with at least some degree of particularity overt acts which defendants 9 engaged in” in order to state a claim). 10 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks 11 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must 12 be individualized and focus on the duties and responsibilities of each individual 13 defendant whose acts or omissions are alleged to have caused a constitutional 14 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 15 423 U.S. 362, 370-71 (1976). There are no factual allegations linking Defendants 16 Pollard, Allison, Norris, or Bosto, with sufficient plausibility, to any of his claims 17 regarding alleged constitutional violations. 18 Thus, for these reasons, the Court finds that Plaintiff’s claims against Pollard, 19 Allison, Norris, or Bosto must be dismissed for failing to state a claim upon which relief 20 may be granted. 21 E. Eighth Amendment claims 22 Plaintiff claims that he was denied his gluten free meal on a few occasions and he 23 also received on four occasions in 2019 and 2020, “rotten food that was prepared” by 24 inmates. (Id.) 25 To state a claim for cruel and unusual punishment, however, Plaintiff must allege 26 facts sufficient to show that the conditions of his confinement subjected him to 27 “unquestioned and serious deprivations of basic human needs.” Rhodes v. Chapman, 452 28 1 U.S. 337, 347 (1981); Wilson v. Seiter, 501 U.S. 294, 298-300 (1991). The Eighth 2 Amendment “does not mandate comfortable prisons,” and conditions imposed may be 3 “restrictive and even harsh.” Rhodes, 452 U.S. at 347, 349. Adequate food is a basic 4 human need protected by the Eighth Amendment. Hoptowit v. Ray, 682 F.2d 1237, 1246 5 (9th Cir. 1982). However, prison food need only be “adequate to maintain health.” 6 LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); Keenan v. Hall, 83 F.3d 1083, 7 1091 (9th Cir. 1996). 8 The Ninth Circuit has held that the “sustained deprivation of food can be cruel and 9 unusual punishment when it results in pain without any penological purpose.” Foster v. 10 Runnels, 554 F.3d 807, 812-13 (9th Cir. 2009) (the denial of 16 meals in 23 days is a 11 violation of the Eighth Amendment). Here, Plaintiff claims he was given “spoiled or 12 rotten” meals on five occasions over a period of several months. In addition, Plaintiff’s 13 claims that he was unable to purchase food from outside vendors but does not allege that 14 he was prevented from purchasing food from the prison’s canteen. These are insufficient 15 allegations to show that he had a “sustained deprivation” of nutrition that would rise to 16 the level of an Eighth Amendment violation. 17 For these reasons, Plaintiff’s Eighth Amendment claims are DISMISSED for 18 failing to state a claim upon which relief may be granted. 19 F. Americans with Disabilities Act 20 Plaintiff alleges Defendants Mejia, Domingo, Martinez, and Pollard are “refusing 21 to list Plaintiff as an ‘American with a Disability’ who falls under the ADA definition of 22 a person with Celiac disease.” (FAC at 8.) 23 Title II of the ADA bars a public entity from excluding an eligible disabled 24 individual from “participation in a public entity’s services, programs, or activities.” 25 Sheehan v. City & Cty. of S.F., 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part on 26 other grounds, cert. dismissed in part sub nom. City & Cty. of San Francisco, Calif. v. 27 Sheehan, 575 U.S. 600 (2015). To state a claim under Title II of the ADA, Plaintiff must 28 1 allege: (1) he is an individual with a disability, (2) he is otherwise qualified to participate 2 in or receive the benefit of a public entity’s services, programs, or activities, (3) he was 3 either excluded from participation in or denied the benefits of the public entity’s services, 4 programs, or activities, or was otherwise discriminated against by the public entity, and 5 (4) such exclusion, denial of benefits, or discrimination was by reason of his disability. 6 Vos v. City of Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018) (quoting Sheehan, 7 743 F.3d at 1232). 8 “A plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official 9 in [his or] her individual capacity to vindicate rights created by Title II of the ADA....” 10 Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Instead, the proper defendant in 11 an ADA action is the public entity responsible for the alleged discrimination. U.S. v. 12 Georgia, 546 U.S. 151, 153 (2006). The term “public entity” includes state prisons. See 13 Pennsylvania Dept. of Corrs. v. Yeskey, 524 U.S. at 210 (holding state prisons are public 14 entities under Title II). Thus, to the extent Plaintiff seeks to sue Defendants in their 15 individual capacities under the ADA but does not name any public entity as a party, he 16 fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 17 § 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 18 And while state prison officials alleged to have acted in their official capacity on 19 behalf of the public entity may be named as parties in an ADA Title II claim seeking 20 injunctive relief, see Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003); 21 Perry v. Brevick, No. 2:21-CV-0065 KJN P, 2021 WL 352374, at *3 (E.D. Cal. Feb. 2, 22 2021), in order to seek monetary damages, Plaintiff must allege intentional discrimination 23 by the entity under the “deliberate indifference” standard. Duvall v. Cty. of Kitsap, 260 24 F.3d 1124, 1138 (9th Cir. 2001). “Deliberate indifference requires both knowledge that a 25 harm to a federally protected right is substantially likely, and a failure to act upon ... the 26 likelihood.” Id. at 1139. This standard is not met “where a duty to act may simply have 27 been overlooked,” but rather “a failure to act must be a result of conduct that is more than 28 1 negligent.” Id.; see also Germaine-McIver v. Cty. of Orange, No. SACV 16-01201-CJC 2 (GJS), 2018 WL 6258896, at *13 (C.D. Cal. Oct. 31, 2018). 3 As alleged, Plaintiff’s FAC plainly fails to state a plausible claim for relief under 4 the ADA. Plaintiff has alleged no facts whatsoever to show he was excluded from 5 participating in any service, program, or activity based upon his disability, nor has he 6 alleged facts showing any discriminatory intent due to or “by reason of” his celiac 7 disease. See Vos, 892 F.3d at 1036. 8 G. Retaliation claims 9 Finally, as to Plaintiff’s allegations against Defendant Cowart, however, the Court 10 finds his FAC contains plausible First Amendment retaliation claims sufficient to survive 11 the “low threshold” set to withstand the sua sponte screening required by 28 U.S.C. 12 §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678. 13 H. Leave to Amend 14 Because the Court has determined that some of Plaintiff’s claims survive the sua 15 sponte screening process, the Court will give Plaintiff the opportunity to either: (1) notify 16 the Court of the intent to proceed with his First Amendment retaliation claims against 17 Defendant Cowart only; or (2) file an amended pleading correcting all the deficiencies of 18 pleading identified by the Court in this Order. Plaintiff must choose one of these options 19 within forty-five (45) days from the date this Order is filed. If Plaintiff chooses to 20 proceed as to his claims against Defendant Cowart only, the Court will issue an Order 21 directing the U.S. Marshal to effect service of his FAC on Defendant Cowart and dismiss 22 the remaining claims and defendants. 23 III. Conclusion and Orders 24 For the reasons explained, the Court: 25 1. The Court DISMISSES Defendants Randolph, Allen, and Diaz from this 26 action. See Lacey, 693 F.3d at 928. The Clerk of Court is directed to terminate these 27 Defendants from the Court’s docket. 28 1 2. The Court DISMISSES all claims against Defendants Pollard, Barenchi, 2 || Norris, Bosto, Mejia, Domingo, and Martinez for failing to state a claim pursuant to 28 3 U.S.C. § 1915(e)@) and § 1915A(b). 4 3. The Court GRANTS Plaintiff forty-five (45) days leave from the date of this 5 || Order in which to either: (1) Notify the Court of the intention to proceed with the First 6 || Amendment retaliation claims against Cowart only; or (2) File an Amended Complaint 7 || which cures all the deficiencies of pleading noted. Plaintiff's Amended Complaint must 8 || be complete in itself without reference to his original pleading. Defendants not named 9 || and any claims not re-alleged in the Amended Complaint will be considered waived. See 10 ||S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended 11 || pleading supersedes the original.”’); Lacey, 693 F.3d at 928 (noting that claims dismissed 12 || with leave to amend which are not re-alleged in an amended pleading may be “considered 13 || waived if not repled.”). 14 IT IS SO ORDERED. 15 Dated: March 17, 2021 € Z 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 11