1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMIAH SIMMONS, No. 2:19-cv2492 KJN P 12 Plaintiff, 13 v. ORDER 14 PIA MANAGER ALCANTARA, 15 Defendant. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 As discussed below, plaintiff’s complaint is dismissed with leave to amend. 4 Screening Standards 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). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that 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)(1), (2). 10 A claim is legally frivolous when 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). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 Plaintiff’s Allegations 7 Plaintiff alleges that defendant Alcantara retaliated against plaintiff by switching the 8 worker who cleaned plaintiff’s cell because plaintiff complained that the worker who replaced the 9 prior worker on his days off was not cleaning plaintiff’s cell as well. Plaintiff alleges his basic 10 necessities, essential to good physical and mental health, are not being met. Plaintiff claims the 11 failure to properly clean his cell made him physically sick to his stomach, caused him 12 psychological damage, and gave him headaches. He seeks money damages. 13 Discussion 14 Retaliation Claim 15 Plaintiff fails to allege a claim of retaliation for the exercise of his First Amendment 16 rights. The First Amendment does not protect every type of speech. Complaining about a matter 17 of personal, not public, concern is not protected speech. See Turner v. CA Dep’t Corrs. & 18 Rehab., 2019 WL 283712, at *7 (E.D. Cal. Jan. 22, 2019) (complaining that his pain medication 19 was not working is not protected speech); Quezada v. Herrera, 2012 WL 1076130, at *4 (E.D. 20 Cal. Mar. 29, 2012) (complaining that inmates had to wear hairnets not protected speech), aff’d, 21 520 F. App’x 559 (9th Cir. 2013); Thomas v. MCSO, 2009 WL 1311992, at *3 (D. Ariz. May 12, 22 2009) (calling an officer a derogatory name is not protected conduct); Ruiz v. Cal. Dept. of Corr., 23 2008 WL 1827637, at *2 (C.D. Cal. Apr. 22, 2008) (prisoner’s comments expressing 24 dissatisfaction about matters of personal concern to inmate was not a matter of public concern 25 protected by the Free Speech Clause); Whitfield v. Snyder, 263 F. App’x 518 (7th Cir. 2008) 26 (prisoner’s complaint about prison job involved matters of personal, rather than public, concern 27 and did not qualify as protected speech). Accordingly, plaintiff fails to state a cognizable claim 28 for retaliation. 1 Conditions of Confinement Claim 2 Second, it is unclear whether plaintiff can state a cognizable claim based on the alleged 3 conditions of confinement.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMIAH SIMMONS, No. 2:19-cv2492 KJN P 12 Plaintiff, 13 v. ORDER 14 PIA MANAGER ALCANTARA, 15 Defendant. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 As discussed below, plaintiff’s complaint is dismissed with leave to amend. 4 Screening Standards 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). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that 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)(1), (2). 10 A claim is legally frivolous when 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). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 Plaintiff’s Allegations 7 Plaintiff alleges that defendant Alcantara retaliated against plaintiff by switching the 8 worker who cleaned plaintiff’s cell because plaintiff complained that the worker who replaced the 9 prior worker on his days off was not cleaning plaintiff’s cell as well. Plaintiff alleges his basic 10 necessities, essential to good physical and mental health, are not being met. Plaintiff claims the 11 failure to properly clean his cell made him physically sick to his stomach, caused him 12 psychological damage, and gave him headaches. He seeks money damages. 13 Discussion 14 Retaliation Claim 15 Plaintiff fails to allege a claim of retaliation for the exercise of his First Amendment 16 rights. The First Amendment does not protect every type of speech. Complaining about a matter 17 of personal, not public, concern is not protected speech. See Turner v. CA Dep’t Corrs. & 18 Rehab., 2019 WL 283712, at *7 (E.D. Cal. Jan. 22, 2019) (complaining that his pain medication 19 was not working is not protected speech); Quezada v. Herrera, 2012 WL 1076130, at *4 (E.D. 20 Cal. Mar. 29, 2012) (complaining that inmates had to wear hairnets not protected speech), aff’d, 21 520 F. App’x 559 (9th Cir. 2013); Thomas v. MCSO, 2009 WL 1311992, at *3 (D. Ariz. May 12, 22 2009) (calling an officer a derogatory name is not protected conduct); Ruiz v. Cal. Dept. of Corr., 23 2008 WL 1827637, at *2 (C.D. Cal. Apr. 22, 2008) (prisoner’s comments expressing 24 dissatisfaction about matters of personal concern to inmate was not a matter of public concern 25 protected by the Free Speech Clause); Whitfield v. Snyder, 263 F. App’x 518 (7th Cir. 2008) 26 (prisoner’s complaint about prison job involved matters of personal, rather than public, concern 27 and did not qualify as protected speech). Accordingly, plaintiff fails to state a cognizable claim 28 for retaliation. 1 Conditions of Confinement Claim 2 Second, it is unclear whether plaintiff can state a cognizable claim based on the alleged 3 conditions of confinement. 4 The treatment a prisoner receives in prison and the conditions under which the prisoner is 5 confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual 6 punishment.1 See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 7 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of dignity, 8 civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). 9 But conditions of confinement may be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 10 337, 347 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing, 11 shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 12 1107 (9th Cir. 1986). 13 In order for a prison official to be held liable for alleged unconstitutional conditions of 14 confinement, the prisoner must allege facts that satisfy a two-prong test. Peralta v. Dillard, 744 15 F.3d 1076, 1082 (9th Cir. 2014)2 (citing Farmer, 511 U.S. at 837), cert. denied, 135 S. Ct. 946 16 (2015)). The first prong is an objective prong, which requires that the deprivation be “sufficiently 17 serious.” Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (citing 18 Farmer, 511 U.S. at 834). In order to be sufficiently serious, the prison official’s “act or omission 19 must result in the denial of the ‘minimal civilized measure of life’s necessities.’” Lemire at 1074. 20 In other words, the objective prong is not satisfied in cases where prison officials provide 21 prisoners with “adequate shelter, food, clothing, sanitation, medical care, and personal safety.” 22 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quoting Hoptowit v. Ray, 682 F.2d 1237, 23 1 Plaintiff alleges that his Fourteenth Amendment rights were violated by the alleged conditions 24 of confinement. However, as the Supreme Court recognized in County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998), “[w]here a particular Amendment provides an explicit textual source of 25 constitutional protection against a particular sort of governmental behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing . . . 26 claims.” Id. (internal quotation marks and citations omitted.) 27 2 In Peralta, the court affirmed the jury verdict in favor of prison staff dentist, holding jury could 28 consider lack of prison resources in determining damages. Id. 1 1246 (9th Cir. 1982)). Thus, “routine discomfort inherent in the prison setting” does not rise to 2 the level of a constitutional violation. Johnson v. Lewis, 217 F.3d at 732 (“[m]ore modest 3 deprivations can also form the objective basis of a violation, but only if such deprivations are 4 lengthy or ongoing”). Rather, extreme deprivations are required to make out a conditions of 5 confinement claim, and only those deprivations denying the minimal civilized measure of life’s 6 necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Farmer, 7 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9 (1992). The circumstances, nature, and 8 duration of the deprivations are critical in determining whether the conditions complained of are 9 grave enough to form the basis of a viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 10 at 731. 11 The second prong focuses on the subjective intent of the prison official. Under this 12 subjective prong, the prisoner must show that the prison official acted with “deliberate 13 indifference” to excessive risk to the prisoner’s health and safety. Peralta, 774 F.3d at 1082 (9th 14 Cir. 2014) (citing Farmer, 511 U.S. at 837). The deliberate indifference standard requires a 15 showing that the prison official acted or failed to act despite the prison official’s knowledge of a 16 substantial risk of serious harm to the prisoner. Id. (citing Farmer, 511 U.S. at 842); see also 17 Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991). Mere negligence on the part 18 of the prison official is not sufficient to establish liability, but rather, the official’s conduct must 19 have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128. 20 Here, plaintiff fails to set forth facts demonstrating an extreme deprivation that would 21 support a conditions of confinement claim under the Eighth Amendment. In an abundance of 22 caution, plaintiff is granted leave to amend. 23 Leave to Amend 24 For the reasons set forth above, the complaint must be dismissed. The court, however, 25 grants leave to file an amended complaint. 26 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 27 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 28 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 1 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 2 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 3 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 4 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 5 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 6 268 (9th Cir. 1982). 7 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 8 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 9 complaint be complete in itself without reference to any prior pleading. This requirement exists 10 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 11 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 12 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 13 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 14 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 15 and the involvement of each defendant must be sufficiently alleged. 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 18 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 19 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 20 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 21 Director of the California Department of Corrections and Rehabilitation filed concurrently 22 herewith. 23 3. Plaintiff’s complaint is dismissed. 24 4. Within sixty days from the date of this order, plaintiff shall complete the attached 25 Notice of Amendment and submit the following documents to the court: 26 a. The completed Notice of Amendment; and 27 b. An original and one copy of the Amended Complaint. 28 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 1 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 2 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 3 Failure to file an amended complaint in accordance with this order may result in the 4 | dismissal of this action. 5 | Dated: March 31, 2020 Fens Arn 7 KENDALL J. NE /simm2492.14n UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMIAH SIMMONS, No. 2:19-cv2492 KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 PIA MANAGER ALCANTARA, 15 Defendant. 16 17 Plaintiff hereby submits the following document in compliance with the court's order 18 filed______________. 19 _____________ Amended Complaint DATED: 20
21 ________________________________ Plaintiff 22 23 24 25 26 27 28