(PC) Tan v. Yuba County Jail

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH EDWARD TAN, No. 2:24-cv-00436-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 YUBA COUNTY JAIL, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in this action brought pursuant to 42 18 U.S.C. § 1983, seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 19 2. He has also filed two motions for appointment of counsel (ECF Nos. 3, 9), and a motion for 20 default judgment (ECF No. 13). Each are addressed below. 21 Leave to Proceed In Forma Pauperis 22 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 23 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 24 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 25 § 1915(b)(1) and (2). 26 Motions for Appointment of Counsel 27 District courts lack authority to require counsel to represent indigent prisoners in section 28 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 1 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 2 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 3 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 4 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 5 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 6 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 7 the court finds there are no exceptional circumstances in this case. 8 Motion for Default Judgment 9 Under Federal Rule of Civil Procedure 55(a), “When a party against whom a judgment for 10 affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by 11 affidavit or otherwise, the clerk must enter the party’s default.” Such entry of default is a 12 necessary precursor to obtaining a default judgment against a party. Johnson v. Dayton Elec. 13 Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998). No defendant has been served in this case and the 14 Clerk of Court has accordingly declined to enter the default of any party. Thus, plaintiff’s motion 15 for default judgment must be denied. 16 Screening Standards 17 Notwithstanding payment of the filing fee, the court must screen plaintiff’s complaint in 18 accordance with 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the 19 complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to 20 state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who 21 is immune from such relief.” Id. § 1915A(b). 22 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 23 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 24 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 25 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 26 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 27 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 28 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 1 U.S. 662, 679 (2009). 2 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 3 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 4 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 5 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 6 678. 7 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 8 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 9 content that allows the court to draw the reasonable inference that the defendant is liable for the 10 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 11 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 12 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 13 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 14 Discussion 15 Plaintiff sues the Yuba County Jail and approximately 50 additional defendants, all 16 employed by the Jail, alleging a total of 12 claims.1 ECF No. 1 at 1, 2, 8-11. These defendants 17 populate two lists within the complaint; the two lists appear to overlap completely in naming 18 defendants but list the defendants in a different order. Id. Each list groups defendants into 19 various categories (e.g., “sergeant,” “corporal,” “officer,” “medical”). The second list creates two 20 additional groups of defendants. First, the list classifies Kandola, Little, Gillan, Asouza, Gomez, 21 Houston, Marshall, “Henry #1,” Bronson, Babs, Samra, Thomas, Singh, Chavez, and Cacho as 22 “OQ,” “associating them [as] the F-Pod quarantine officers.” Id. at 10-11. Second, the list 23 classifies 10 Doe defendants (listed as “Nurse #1” and so on) as “DNQ,” “associating them to the 24 quarantine pill call nurses.”2 Id.

25 1 These claims are numbered using Roman numerals that are not consecutive. In the order 26 they appear in the complaint, the claims are labeled as I, II, III, V, VI, VII, VIII, XII, XIII, XV, XIV, and XVII. 27 2 The court cannot order service of a complaint on an unidentified party. Plaintiff must 28 use institutional processes, discovery in this action, or other available methods to identify 1 The bulk of plaintiff’s complaint concerns conditions he alleges he was forced to endure 2 while quarantined with COVID-19 from September 18, 2023 to September 29, 2023. Id. at 3-20. 3 Plaintiff alleges that he was housed in a cell in the Jail’s F-Pod during this period that had a 4 “sewage leak that constantly pooled inside and outside the plaintiff’s cell.” Id. at 3-5, 18-20. The 5 defendants comprising the OQ and DNQ groups passed by plaintiff’s cell many times and either 6 were aware, or should have been aware, of the “raw sewage, human excrement, and urine” at the 7 cell (id. at 4) because they had to walk through it to pass by (id. at 5). “The unsanitary conditions 8 could not even be overlooked by a blind man, they alerted all who passed within 15 feet.” Id. at 9 5. Nevertheless, these defendants ignored plaintiff’s pleas to move. Id. at 3-5. Plaintiff was 10 forced to eat in the unsanitary cell and breathe the toxic fumes created by the sewage. Id. at 17, 11 18. He was deprived of basic hygiene items (soap, shampoo, lotion, deodorant, toothpaste, 12 toothbrush, and shower shoes) (id. at 20) as well as his religious items (bible, bible studies, and 13 “daily breads”) (id. at 19). Plaintiff felt homicidal and suicidal as a result of the sewage exposure. 14 Although these claims are separately set out as Claims I, II, III, VI, VII, VIII, XII, and XIII, they 15 state only three distinct, but related claims: (1) a claim for being compelled to live with an open 16 sewage leak for 11 days in violation of the Eighth Amendment (the “sewage claim”), (2) a claim 17 for being deprived of hygiene items for 11 days (the “hygiene items claim”), and (3) a claim for 18 deprivation of religious items for 11 days in violation of the First Amendment (the “religious 19 practice claim”). 20 Plaintiff alleges another claim that arose during his time in quarantine. In Claim V, he 21 alleges that, in response to plaintiff’s grievance, defendant Gomez lied to plaintiff by telling him 22 on September 21, 2023 that he could move to another cell. Id. at 14-15. Plaintiff characterizes 23 Gomez’s statement as a lie because Gomez later told plaintiff that he could not move because the 24 other cell had already been promised to a different inmate. Id. Plaintiff alleges that this “lie” 25 violated the First Amendment. 26 //// 27 unidentified parties. He may then seek to file an amended complaint to name the currently- 28 unidentified defendants. 1 Plaintiff alleges three additional claims that are not related to his time in quarantine. In 2 Claim XV, plaintiff alleges that defendants Yang and Carmona (not included in either the “OQ” 3 or “DNQ” groups) failed or refused to print and possibly destroyed legal research contained on a 4 flash drive. Id. at 21, 23. In Claim XIV, plaintiff alleges that “his right to have his legal research 5 printed was violated multiple times between the dates of 10-8-23 to 10-25-23” by “multiple 6 officers.” Id. at 22. Lastly, in Claim XVII, plaintiff alleges that defendant Thomas awoke 7 plaintiff (on a date that is not entirely legible but appears to be in October 2023) by yelling, “I’ll 8 take you on the roof in your shorts without a sweatshirt and without a towel then I’ll come back 9 and toss up your stuff!” Id. at 24. Plaintiff does not claim that Thomas made good on this threat, 10 but alleges that the threat itself constituted sexual harassment in violation of the Eighth 11 Amendment. 12 The sewage claim, asserted against identified or identifiable defendants (Kandola, Little, 13 Gillan, Asouza, Gomez, Houston, Marshall, “Henry #1,” Bronson, Babs, Samra, Thomas, Singh, 14 Chavez, and Cacho and Nurses #1-10), is potentially cognizable. The Eighth Amendment 15 protects prisoners from inhumane methods of punishment and from inhumane conditions of 16 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations 17 are required to make out a conditions-of-confinement claim, and only those deprivations denying 18 the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an 19 Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Prison officials have 20 a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical 21 care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731-32 (9th Cir. 2000) (quotations 22 and citations omitted). 23 “The circumstances, nature, and duration of a deprivation of these necessities must be 24 considered in determining whether a constitutional violation has occurred. The more basic the 25 need, the shorter the time it can be withheld.” Johnson, 217 F.3d at 731 (internal quotation marks 26 and citations omitted). Plaintiff’s claim that identified (or identifiable Doe) defendants ignored 27 an obvious sewage leak for 11 days while plaintiff suffered from COVID-19 despite plaintiff’s 28 pleas to be moved is, liberally construed and for the purposes of screening only, potentially 1 cognizable. 2 The remainder of the complaint suffers from a number of defects. For the reasons 3 provided below, plaintiff’s remaining claims must be dismissed with leave to amend. 4 First, plaintiff’s massive lists of defendants include many individuals against whom 5 plaintiff has made no allegations (e.g., Sheriff Wendell Anderson, Undersheriff Nick 6 Morawszski, Lieutenant Spear, Psychologist Mason, Head Medical Supervisor Adams). To the 7 extent that plaintiff wishes to hold any of these individuals liable for the conduct of their inferior 8 officers, there is no “respondeat superior” liability under § 1983 (i.e., a supervisor cannot be held 9 liable for the conduct of her inferior simply because of her status as a supervisor). Taylor v. List, 10 880 F.2d 1040, 1045 (9th Cir. 1989). If plaintiff wishes to state a viable claim against any 11 defendant, he must allege facts showing that defendant’s personal participation in a violation of 12 plaintiff’s rights. 13 Second, a municipal entity, like the jail, cannot be held liable under § 1983 solely because 14 it employs an individual who violated the Constitution. Bd. of the Cnty. Comm’rs v. Brown, 520 15 U.S. 397, 404-05 (1997). If plaintiff wishes to impose liability on the jail (rather than, or in 16 addition to, individual persons responsible for depriving him of constitutional conditions of 17 confinement, religious items, etc.), he must identify a county or jail policy or custom that caused 18 the unconstitutional deprivation. Id. 19 Third, plaintiff has included unrelated claims against different defendants; his claims 20 concerning conditions in quarantine are distinct in time, subject, and defendants from his claims 21 regarding his legal research (Claim XIV and Claim XV). It is well-settled that a claimant may 22 not proceed in a single action with various unrelated claims against separate defendants: 23 The controlling principle appears in Fed. R. Civ. P. 18(a): “A party asserting a claim to relief as an original claim, counterclaim, cross- 24 claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the 25 party has against an opposing party.” Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not 26 be joined with unrelated Claim B against Defendant 2. 27 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). In addition, plaintiff has not identified any 28 defendant as responsible for the conduct alleged in Claim XIV. Vague allegations that do not 1 allege conduct of a specific, identifiable defendant violate Federal Rule of Civil Procedure 8 and 2 cannot survive screening. 3 In addition to being improperly joined to plaintiff’s quarantine claims, Claims XIV and 4 XV do not allege facts showing a violation of the First Amendment. Plaintiff styles these claims 5 as violations of his “right to petition the government” but includes no facts in the complaint 6 showing that any actual or attempted petition was impacted by his frustrated legal print jobs. 7 Plaintiff has a constitutional right of access to the courts. Silva v. Di Vittorio, 658 F.3d 1090, 8 1101-02 (9th Cir. 2001) overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 9 1209 n.6 (9th Cir. 2015). To the extent that plaintiff asserts a violation of that right, he has failed 10 to allege facts showing an actual injury to a nonfrivolous direct criminal appeal, habeas corpus 11 proceeding, or § 1983 action. Lewis v. Casey, 518 U.S. 343, 354-55 (1996). An “actual injury” is 12 “actual prejudice with respect to contemplated or existing litigation, such as the inability to meet 13 a filing deadline or to present a claim.” Lewis, 518 U.S. at 348 (citation and internal quotations 14 omitted); see also Alvarez v. Hill, 518 F.3d 1152, 1155 n. 1 (9th Cir. 2008) (“Failure to show that 15 a ‘non-frivolous legal claim had been frustrated’ is fatal” to a claim for denial of access to legal 16 materials) (quoting Lewis, 518 U.S. at 353 & 353 n. 4). 17 Claim XVII, concerning defendant Thomas waking plaintiff with a threat to remove him 18 from his cell in minimal clothing, fails because mere threats do not give rise to cognizable Eighth 19 Amendment claims. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam) (it “trivializes 20 the Eighth Amendment to believe a threat constitutes a constitutional wrong.”). 21 Similarly, plaintiff’s First Amendment claim against defendant Gomez for “lying” to 22 plaintiff about the availability of an alternative cell fails, because there is no constitutional 23 guarantee to honesty from one’s jail guards. Gray v. Morrison, No. 18-cv-02608-EMC, 2018 24 U.S. Dist. LEXIS 159394, at *9 (N.D. Cal. Sep. 18, 2018). 25 Plaintiff’s religious practice and hygiene items claims also fail as pleaded. Under the 26 Constitution, “reasonable opportunities must be afforded to all prisoners to exercise the religious 27 freedom guaranteed by the First and Fourteenth Amendments.” Cruz v. Beto, 405 U.S. 319, 322 28 n. 2 (1972). Only beliefs which are both sincerely held and religious in nature trigger the Free 1 Exercise Clause. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). Plaintiff’s allegations 2 that he was not allowed a bible, bible studies materials, and daily breads during the 11 days he 3 suffered from COVID-19 in the filthy quarantine cell may state a potentially cognizable First 4 Amendment claim, but plaintiff has again failed to identify any defendant responsible for the 5 deprivation. Similarly, while the deprivation of hygiene items while confined with raw sewage 6 for 11 days may violate the Eighth Amendment’s proscriptions (see above), plaintiff has not 7 alleged a specific defendant or defendants responsible for that denial. As with the religious 8 practice claim, plaintiff merely asserts the claim against “every officer on every shift.” This 9 allegation does not satisfy Rule 8. Plaintiff must identify the individual he is suing; if he cannot 10 provide a name at this time, he may assert these claims against Doe defendants identifiable by 11 date or other identifying information and seek to amend the complaint later once he obtains their 12 names. 13 Plaintiff will be given the opportunity to amend his complaint to cure the deficiencies 14 identified herein. 15 Leave to Amend 16 If plaintiff chooses to file an amended complaint, he should note that any amended 17 complaint must identify as a defendant only persons who personally participated in a substantial 18 way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th 19 Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, 20 participates in another’s act or omits to perform an act he is legally required to do that causes the 21 alleged deprivation). 22 Further, any amended complaint must be written or typed so that it so that it is complete in 23 itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an 24 amended complaint supersedes any earlier filed complaint, and once an amended complaint is 25 filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. 26 Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, 27 the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th 28 Cir. 1967)). 1 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 2 || Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 3 || See Local Rule 110. 4 Conclusion 5 Accordingly, IT IS ORDERED that: 6 1. Plaintiffs motions for appointment of counsel (ECF Nos. 3, 9) are DENIED; 7 2. Plaintiff's motion for default judgment (ECF No. 13) is DENIED; 8 3. Plaintiff's application to proceed in forma pauperis (ECF No. 2) is GRANTED; 9 4. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 10 accordance with the notice to the custodial agency filed concurrently herewith; 11 5. Plaintiff's complaint (ECF No. 1) alleges, for screening purposes, the following 12 potentially cognizable claims: 13 a. For violation of the Eighth Amendment against defendants Kandola, Little, 14 Gillan, Asouza, Gomez, Houston, Marshall, “Henry #1,” Bronson, Babs, 15 Samra, Thomas, Singh, Chavez, Cacho, and Nurses #1-10 for housing 16 plaintiff in a cell with a sewage leak (or for ignoring the need to move 17 plaintiff from the cell) between September 18, 2023 and September 29, 2023. 18 6. All other claims are dismissed with leave to amend within 30 days of service of this 19 order. Plaintiff is not obligated to amend his complaint. 20 7. Within thirty days plaintiff shall return the notice below advising the court whether 21 he elects to proceed with the cognizable claims or file an amended complaint. If the 22 former option is selected and returned, the court will enter an order directing service 23 at that time. 24 8. Failure to comply with any part of this this order may result in dismissal of this 25 action. “A J D>, 26 || Dated: September 27, 2024 CT hire : Al hina EDMUND F. BRENNAN 27 UNITED STATES MAGISTRATE JUDGE 28

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 KENNETH EDWARD TAN, No. 2:24-cv-00436-EFB (PC) 10 Plaintiff, 11 v. NOTICE OF ELECTION 12 YUBA COUNTY JAIL, et al., 13 Defendants. 14 15 In accordance with the court’s Screening Order, plaintiff hereby elects to: 16 17 (1) ______ proceed only with the Eighth Amendment sewage claim identified in the 18 Screening Order against defendants Kandola, Little, Gillan, Asouza, Gomez, Houston, Marshall, 19 “Henry #1,” Bronson, Babs, Samra, Thomas, Singh, Chavez, Cacho, and Nurses #1-10. 20 21 OR 22 23 (2) ______ delay serving any defendant and file an amended complaint. 24 25 _________________________________ 26 Plaintiff 27 Dated: 28