1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LOUIS LEVERN PENNY, Case No. 19-cv-06307-EMC
8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND
10 GREGORY J. AHERN, Docket Nos. 1, 3 11 Defendant.
12 13 14 I. INTRODUCTION 15 Louis Levern Penny, an inmate at the Santa Rita Jail in Alameda County, filed this pro se 16 civil rights action under 42 U.S.C. § 1983. His complaint is now before the Court for review 17 under 28 U.S.C. § 1915A. His motion for appointment of counsel is also before the Court for 18 consideration. 19 II. BACKGROUND 20 Mr. Penny alleges in his complaint that, on May 4, 2018, an inmate in an adjoining cell at 21 the Santa Rita Jail showed him “rat feces meticulously placed between the bread” on a food tray. 22 Docket No. 1 at 4. He further alleges that Gregory Ahern is in charge of the jail; lieutenant 23 Clippinger, lieutenant McComas, and deputy Procopio took part in denying Mr. Penny’s inmate 24 appeal about the problem; officer Hayes “witness[ed] unsanitary food trays”; officer Garcia took a 25 picture of the food tray; and officer Nelson said that “a sergeant [is] not coming out for that and 26 personally handled the food tray containing the rat feces.” Id. at 5. 27 /// 1 III. DISCUSSION 2 A. Review of Complaint 3 A federal court must engage in a preliminary screening of any case in which a prisoner 4 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 5 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any 6 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or 7 seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). 8 Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 9 696, 699 (9th Cir. 1990). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 11 right secured by the Constitution or laws of the United States was violated and (2) that the 12 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 13 U.S. 42, 48 (1988). 14 Although a complaint “does not need detailed factual allegations, . . . a plaintiff’s 15 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 16 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 17 Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).1 A complaint must 19 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 20 Mr. Penny’s complaint does not allege facts sufficient to state a plausible claim for a 21 violation of a right secured by the Constitution or laws of the United States by any defendant. 22 Leave to amend is granted so that Mr. Penny may file an amended complaint that proffers enough 23 facts to state a claim for relief that is plausible on its face. Mr. Penny is cautioned that he must 24 provide a full statement of his claims in his amended complaint. The Court will not read through 25 1 This requirement that the pleader allege enough facts to state a claim to relief that is plausible on 26 its face stems from the rule that a complaint must allege “a short and plain statement of the claim showing that the pleader is entitled to relief,” as required by Federal Rule of Civil Procedure 27 8(a)(2) “Specific facts are not necessary; the statement need only . . . give the defendant fair 1 exhibits to the complaint or amended complaint to piece together a claim for a plaintiff. 2 Due process claim – conditions of confinement: The Due Process Clause of the Fourteenth 3 Amendment protects a pretrial detainee from the use of force that amounts to punishment. 4 Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-39 5 (1979). To state a due process claim that a defendant was deliberately indifferent to a pretrial 6 detainee’s health or safety needs, a plaintiff must allege facts showing these elements:
7 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those 8 conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures 9 to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 10 involved—making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused 11 the plaintiff's injuries.” 12 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). For the third element, the 13 defendant’s conduct must be objectively unreasonable, “a test that will necessarily ‘turn[] on the 14 facts and circumstances of each particular case.’” Id. (alteration in original) (quoting Castro, 833 15 F.3d at 1071). “[T]he plaintiff must ‘prove more than negligence but less than subjective intent— 16 something akin to reckless disregard.” Id. (quoting Castro, 833 F.3d at 1071). 17 Mr. Penny’s allegation that he once saw rodent droppings on a food tray does not describe 18 a condition sufficiently serious to show that he was put “at substantial risk of suffering serious 19 harm.” Gordon, 888 F.3d at 1125. As the Ninth Circuit has explained, “[t]he fact that the food 20 occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not 21 amount to a constitutional deprivation.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); 22 cf. Balcar v. Smith, 2017 WL 3613479, at * 2 (6th Cir. 2017) (“Isolated exposure to foreign bodies 23 in food, including those of rodents and insects, does not constitute an Eighth Amendment 24 violation.”); Tucker v. Rose, 955 F. Supp. 810, 816 (N.D. Ohio 1997) (“The occasional presence 25 of a rodent is insufficient to establish the objective component of an Eighth Amendment claim, 26 which requires that a deprivation be sufficiently serious”).. “The circumstances, nature, and 27 duration of a deprivation of [life’s] necessities must be considered in determining whether a 1 e.g., Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008) (“a prolonged pest infestation, specifically a 2 significant infestation of cockroaches and mice, may be considered a deprivation sufficient to 3 constitute a due process violation”); id. at 894 (no reasonable jury could find a due process 4 violation where inmate reported often seeing cockroaches in his cell over six years of confinement 5 during which exterminators regularly visited his cell in response to his complaints).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LOUIS LEVERN PENNY, Case No. 19-cv-06307-EMC
8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND
10 GREGORY J. AHERN, Docket Nos. 1, 3 11 Defendant.
12 13 14 I. INTRODUCTION 15 Louis Levern Penny, an inmate at the Santa Rita Jail in Alameda County, filed this pro se 16 civil rights action under 42 U.S.C. § 1983. His complaint is now before the Court for review 17 under 28 U.S.C. § 1915A. His motion for appointment of counsel is also before the Court for 18 consideration. 19 II. BACKGROUND 20 Mr. Penny alleges in his complaint that, on May 4, 2018, an inmate in an adjoining cell at 21 the Santa Rita Jail showed him “rat feces meticulously placed between the bread” on a food tray. 22 Docket No. 1 at 4. He further alleges that Gregory Ahern is in charge of the jail; lieutenant 23 Clippinger, lieutenant McComas, and deputy Procopio took part in denying Mr. Penny’s inmate 24 appeal about the problem; officer Hayes “witness[ed] unsanitary food trays”; officer Garcia took a 25 picture of the food tray; and officer Nelson said that “a sergeant [is] not coming out for that and 26 personally handled the food tray containing the rat feces.” Id. at 5. 27 /// 1 III. DISCUSSION 2 A. Review of Complaint 3 A federal court must engage in a preliminary screening of any case in which a prisoner 4 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 5 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any 6 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or 7 seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). 8 Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 9 696, 699 (9th Cir. 1990). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 11 right secured by the Constitution or laws of the United States was violated and (2) that the 12 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 13 U.S. 42, 48 (1988). 14 Although a complaint “does not need detailed factual allegations, . . . a plaintiff’s 15 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 16 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 17 Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).1 A complaint must 19 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 20 Mr. Penny’s complaint does not allege facts sufficient to state a plausible claim for a 21 violation of a right secured by the Constitution or laws of the United States by any defendant. 22 Leave to amend is granted so that Mr. Penny may file an amended complaint that proffers enough 23 facts to state a claim for relief that is plausible on its face. Mr. Penny is cautioned that he must 24 provide a full statement of his claims in his amended complaint. The Court will not read through 25 1 This requirement that the pleader allege enough facts to state a claim to relief that is plausible on 26 its face stems from the rule that a complaint must allege “a short and plain statement of the claim showing that the pleader is entitled to relief,” as required by Federal Rule of Civil Procedure 27 8(a)(2) “Specific facts are not necessary; the statement need only . . . give the defendant fair 1 exhibits to the complaint or amended complaint to piece together a claim for a plaintiff. 2 Due process claim – conditions of confinement: The Due Process Clause of the Fourteenth 3 Amendment protects a pretrial detainee from the use of force that amounts to punishment. 4 Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-39 5 (1979). To state a due process claim that a defendant was deliberately indifferent to a pretrial 6 detainee’s health or safety needs, a plaintiff must allege facts showing these elements:
7 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those 8 conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures 9 to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 10 involved—making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused 11 the plaintiff's injuries.” 12 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). For the third element, the 13 defendant’s conduct must be objectively unreasonable, “a test that will necessarily ‘turn[] on the 14 facts and circumstances of each particular case.’” Id. (alteration in original) (quoting Castro, 833 15 F.3d at 1071). “[T]he plaintiff must ‘prove more than negligence but less than subjective intent— 16 something akin to reckless disregard.” Id. (quoting Castro, 833 F.3d at 1071). 17 Mr. Penny’s allegation that he once saw rodent droppings on a food tray does not describe 18 a condition sufficiently serious to show that he was put “at substantial risk of suffering serious 19 harm.” Gordon, 888 F.3d at 1125. As the Ninth Circuit has explained, “[t]he fact that the food 20 occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not 21 amount to a constitutional deprivation.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); 22 cf. Balcar v. Smith, 2017 WL 3613479, at * 2 (6th Cir. 2017) (“Isolated exposure to foreign bodies 23 in food, including those of rodents and insects, does not constitute an Eighth Amendment 24 violation.”); Tucker v. Rose, 955 F. Supp. 810, 816 (N.D. Ohio 1997) (“The occasional presence 25 of a rodent is insufficient to establish the objective component of an Eighth Amendment claim, 26 which requires that a deprivation be sufficiently serious”).. “The circumstances, nature, and 27 duration of a deprivation of [life’s] necessities must be considered in determining whether a 1 e.g., Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008) (“a prolonged pest infestation, specifically a 2 significant infestation of cockroaches and mice, may be considered a deprivation sufficient to 3 constitute a due process violation”); id. at 894 (no reasonable jury could find a due process 4 violation where inmate reported often seeing cockroaches in his cell over six years of confinement 5 during which exterminators regularly visited his cell in response to his complaints). While a 6 chronic rodent infestation would show a sufficiently serious condition, the infrequent discovery of 7 rodent droppings is a different matter. The complaint here describes an infrequent problem and 8 does not state a due process claim. Leave to amend is granted so that Mr. Penny may allege facts, 9 if he has them, to show that the problem was anything more than an infrequent discovery of rodent 10 droppings on the food trays. Moreover, absent physical injury, Mr. Penny may be limited in the 11 relief he can obtain. See 42 U.S.C. § 1997e(e). 12 Inmate appeals: Any mishandling of, or failure to grant, Mr. Penny’s inmate appeals does 13 not amount to a due process violation. There is no federal constitutional right to a prison 14 administrative appeal or grievance system for California inmates. See Ramirez v. Galaza, 334 15 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Antonelli v. 16 Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (prison grievance procedure is procedural right that 17 does not give rise to protected liberty interest requiring procedural protections of Due Process 18 Clause); Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993). Jail officials are not liable for a due 19 process violation for simply failing to process an appeal properly or failing to find in Mr. Penny’ 20 favor. The claim against defendants for regarding their handling of Mr. Penny’s inmate appeal is 21 dismissed without leave to amend. 22 Linking defendants: In his amended complaint, Mr. Penny must be careful to allege facts 23 showing the basis for liability for each individual defendant. He should not refer to them as a 24 group (e.g., “the defendants”); rather, he should identify each involved defendant by name and 25 link each of them to his claim by explaining specifically what each defendant did or failed to do 26 that caused a violation of his constitutional rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th 27 Cir. 1988) (liability may be imposed on individual defendant under § 1983 only if plaintiff can 1 may be liable under § 1983 upon a showing of (1) personal involvement in the constitutional 2 deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and 3 the constitutional violation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 4 B. Request for Counsel 5 Mr. Penny has requested that counsel be appointed to represent him in this action. A 6 district court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an 7 indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 8 1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the merits 9 and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal 10 issues involved. See id. Neither of these factors is dispositive and both must be viewed together 11 before deciding on a request for counsel under § 1915(e)(1). Exceptional circumstances are not 12 present at this time because Mr. Penny has been able to adequately describe the facts in support of 13 his claim and there does not appear to be a likelihood of success on the merits. Mr. Penny’s 14 request for appointment of counsel to represent him in this action therefore is DENIED. Docket 15 No. 3. 16 IV. CONCLUSION 17 For the foregoing reasons, the complaint is dismissed with leave to amend. Mr. Penny’s 18 amended complaint must be filed no later than May 1, 2020, and must include the caption and 19 civil case number used in this order and the words AMENDED COMPLAINT on the first page. 20 Mr. Penny is cautioned that his amended complaint must be a complete statement of his claims. 21 See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (“For claims 22 dismissed with prejudice and without leave to amend, we will not require that they be repled in a 23 subsequent amended complaint to preserve them for appeal. But for any claims voluntarily 24 /// 25 /// 26 /// 27 /// 1 dismissed, we will consider those claims to be waived if not repled.”) Failure to file the amended 2 || complaint by the deadline will result in the dismissal of all defendants and claims except the 3 || excessive force claim against deputy Pereira. 4 Plaintiff's motion for appointment of counsel is DENIED. Docket No. 3. 5 6 IT IS SO ORDERED. 7 8 Dated: March 16, 2020 9 Lx 10 □ hes SS ED M. CHEN 11 United States District Judge a 12
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