1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, Case No. 21-01169 BLF (PR) 11 ORDER OF DISMISSAL WITH 12 Plaintiff, LEAVE TO AMEND 13 v.
14 M. B. ATCHLEY., et al., 15 Defendants. 16
17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against prison officials at Salinas Valley State Prison (“SVSP”), where he is 20 currently confined, and the Director of the California Department of Corrections and 21 Rehabilitation (“CDCR”). Dkt. No. 1. Plaintiff’s motion for leave to proceed in forma 22 pauperis will be addressed in a separate order. 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Class Action 10 As a preliminary matter, the Court addresses Plaintiff’s attempt to bring this action 11 on behalf of himself as well as several other inmates who appear to be similarly situated. 12 Dkt. No. 1 at 2. The Court will construe this attempt as a request for class certification 13 pursuant to Fed. R. Civ. P. 23. 14 The prerequisites to maintenance of a class action are that (1) the class is so numerous that joinder of all members is impracticable, (2) there are common questions of 15 law and fact, (3) the representative party’s claims or defenses are typical of the class 16 claims or defenses, and (4) the representative party will fairly and adequately protect the 17 class interests. See Fed. R. Civ. P. 23(a). Pro se prisoner plaintiffs are not adequate class 18 representatives able to fairly represent and adequately protect the interests of the class. See 19 Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); see also Russell v. United 20 States, 308 F.2d 78, 79 (9th Cir. 1962) (‘a litigant appearing in propria persona has no 21 authority to represent anyone other than himself”). 22 Here, Plaintiff is proceeding pro se, and therefore cannot adequately represent the 23 intended class. Accordingly, his request for class certification is DENIED. See, e.g., 24 Griffin v. Smith, 493 F. Supp. 129, 131 (W.D.N.Y. 1980) (denying class certification on 25 basis that pro se prisoner cannot adequately represent class). The other “plaintiffs” listed 26 on the complaint shall be removed from this action. Dkt. No. 1 at 2. If they desire to 1 pursue any claims on their own, they must do so by each filing separate actions. 2 C. Plaintiff’s Claims 3 Plaintiff claims that since October 1, 2020 to the present, he has been assigned to 4 Housing Unit-A3 and is “physically forced to be trapped and exposed to serious risk of 5 actual impending dangerous harm and injury, due to gross [deficiencies] and repeated 6 failures of prison officials to replace or fix structural integrity damages to prison ceiling, 7 roof, walls and cell living quarters.” Dkt. No. 1 at 4. These conditions resulted in water 8 flooding the units and cells, causing mold, fungus, infestation and vermin. Id. Plaintiff 9 claims he is not provided with cleaning supplies and equipment. Id. at 5. Plaintiff claims 10 these conditions “provide[] inhabitable, inadequate, and unprotected shelter for Eighth 11 Amendment purposes, and “violates prison rules, civilian safety codes, establishing 12 deliberate indifference, denial of equal protection, equal rights and treatment” in violation 13 of the state and federal constitutional rights under the Fourth, Fifth, Eighth, and Fourteenth 14 Amendments, as well as prison guidelines under California Code of Regulations Title 15 15 sections 3300, 3301, 3303. Id. 16 Plaintiff names the following as Defendants: Capt. L. M. Pennisi Jr., Warden M. B. 17 Atchley, and the Director of the CDCR. Dkt. No. 1at 6-7. Plaintiff claims Defendant 18 Pennisi is the Captain for the A-Yard Facility and was acting as the “agent, servant, and 19 employee, under the color of state law pursuant to their authority under the (CDCR).” Id. 20 at 6. Plaintiff claims Warden Atchley is liable for the “policy decisions, writ[ing] 21 regulations or giv[ing] orders” and has “failed in his duty to act upon notice(s), report(s), 22 appeal(s), and knowledge, [and] promulgated a policy that does direct or condone the 23 wrongful conducts of defendant(s)” who “with deliberate indifference repeatedly failed 24 and refused [to provide] reasonable care and immediate attention upon plaintiff(s) 25 requests.” Id. at 6. Plaintiff claims the Director of the CDCR is liable for Warden 26 Atchley’s actions at SVSP, as “[a] prison policy maker[s], [who] writes regulations, or 1 deliberate indifference, failing to ensure plaintiff[’s] rights to due process, equal 2 protection, and to be free from cruel and unusual punishment by defendant(s).” Id. at 7. 3 Plaintiff seeks declaratory and injunctive relief, as well as damages. Id. at 10. 4 1. Eighth Amendment 5 The Constitution does not mandate comfortable prisons, but neither does it permit 6 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a 7 prisoner receives in prison and the conditions under which he is confined are subject to 8 scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). 9 The Amendment also imposes duties on these officials, who must provide all prisoners 10 with the basic necessities of life such as food, clothing, shelter, sanitation, medical care 11 and personal safety. See Farmer, 511 U.S. at 832; DeShaney v. Winnebago County Dep't 12 of Social Servs., 489 U.S. 189, 199-200 (1989); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th 13 Cir. 1982). A prison official violates the Eighth Amendment when two requirements are 14 met: (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer, 511 15 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official 16 possesses a sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. at 297). 17 Plumbing which deprives inmates of basic hygiene and seriously threatens inmates’ 18 physical and mental well-being amounts to cruel and unusual punishment. See Hoptowit v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, Case No. 21-01169 BLF (PR) 11 ORDER OF DISMISSAL WITH 12 Plaintiff, LEAVE TO AMEND 13 v.
14 M. B. ATCHLEY., et al., 15 Defendants. 16
17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against prison officials at Salinas Valley State Prison (“SVSP”), where he is 20 currently confined, and the Director of the California Department of Corrections and 21 Rehabilitation (“CDCR”). Dkt. No. 1. Plaintiff’s motion for leave to proceed in forma 22 pauperis will be addressed in a separate order. 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Class Action 10 As a preliminary matter, the Court addresses Plaintiff’s attempt to bring this action 11 on behalf of himself as well as several other inmates who appear to be similarly situated. 12 Dkt. No. 1 at 2. The Court will construe this attempt as a request for class certification 13 pursuant to Fed. R. Civ. P. 23. 14 The prerequisites to maintenance of a class action are that (1) the class is so numerous that joinder of all members is impracticable, (2) there are common questions of 15 law and fact, (3) the representative party’s claims or defenses are typical of the class 16 claims or defenses, and (4) the representative party will fairly and adequately protect the 17 class interests. See Fed. R. Civ. P. 23(a). Pro se prisoner plaintiffs are not adequate class 18 representatives able to fairly represent and adequately protect the interests of the class. See 19 Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); see also Russell v. United 20 States, 308 F.2d 78, 79 (9th Cir. 1962) (‘a litigant appearing in propria persona has no 21 authority to represent anyone other than himself”). 22 Here, Plaintiff is proceeding pro se, and therefore cannot adequately represent the 23 intended class. Accordingly, his request for class certification is DENIED. See, e.g., 24 Griffin v. Smith, 493 F. Supp. 129, 131 (W.D.N.Y. 1980) (denying class certification on 25 basis that pro se prisoner cannot adequately represent class). The other “plaintiffs” listed 26 on the complaint shall be removed from this action. Dkt. No. 1 at 2. If they desire to 1 pursue any claims on their own, they must do so by each filing separate actions. 2 C. Plaintiff’s Claims 3 Plaintiff claims that since October 1, 2020 to the present, he has been assigned to 4 Housing Unit-A3 and is “physically forced to be trapped and exposed to serious risk of 5 actual impending dangerous harm and injury, due to gross [deficiencies] and repeated 6 failures of prison officials to replace or fix structural integrity damages to prison ceiling, 7 roof, walls and cell living quarters.” Dkt. No. 1 at 4. These conditions resulted in water 8 flooding the units and cells, causing mold, fungus, infestation and vermin. Id. Plaintiff 9 claims he is not provided with cleaning supplies and equipment. Id. at 5. Plaintiff claims 10 these conditions “provide[] inhabitable, inadequate, and unprotected shelter for Eighth 11 Amendment purposes, and “violates prison rules, civilian safety codes, establishing 12 deliberate indifference, denial of equal protection, equal rights and treatment” in violation 13 of the state and federal constitutional rights under the Fourth, Fifth, Eighth, and Fourteenth 14 Amendments, as well as prison guidelines under California Code of Regulations Title 15 15 sections 3300, 3301, 3303. Id. 16 Plaintiff names the following as Defendants: Capt. L. M. Pennisi Jr., Warden M. B. 17 Atchley, and the Director of the CDCR. Dkt. No. 1at 6-7. Plaintiff claims Defendant 18 Pennisi is the Captain for the A-Yard Facility and was acting as the “agent, servant, and 19 employee, under the color of state law pursuant to their authority under the (CDCR).” Id. 20 at 6. Plaintiff claims Warden Atchley is liable for the “policy decisions, writ[ing] 21 regulations or giv[ing] orders” and has “failed in his duty to act upon notice(s), report(s), 22 appeal(s), and knowledge, [and] promulgated a policy that does direct or condone the 23 wrongful conducts of defendant(s)” who “with deliberate indifference repeatedly failed 24 and refused [to provide] reasonable care and immediate attention upon plaintiff(s) 25 requests.” Id. at 6. Plaintiff claims the Director of the CDCR is liable for Warden 26 Atchley’s actions at SVSP, as “[a] prison policy maker[s], [who] writes regulations, or 1 deliberate indifference, failing to ensure plaintiff[’s] rights to due process, equal 2 protection, and to be free from cruel and unusual punishment by defendant(s).” Id. at 7. 3 Plaintiff seeks declaratory and injunctive relief, as well as damages. Id. at 10. 4 1. Eighth Amendment 5 The Constitution does not mandate comfortable prisons, but neither does it permit 6 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a 7 prisoner receives in prison and the conditions under which he is confined are subject to 8 scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). 9 The Amendment also imposes duties on these officials, who must provide all prisoners 10 with the basic necessities of life such as food, clothing, shelter, sanitation, medical care 11 and personal safety. See Farmer, 511 U.S. at 832; DeShaney v. Winnebago County Dep't 12 of Social Servs., 489 U.S. 189, 199-200 (1989); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th 13 Cir. 1982). A prison official violates the Eighth Amendment when two requirements are 14 met: (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer, 511 15 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official 16 possesses a sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. at 297). 17 Plumbing which deprives inmates of basic hygiene and seriously threatens inmates’ 18 physical and mental well-being amounts to cruel and unusual punishment. See Hoptowit v. 19 Spellman, 753 F.2d 779, 783 (9th Cir. 1985); Toussaint v. McCarthy, 597 F. Supp. 1388, 20 1409 (N.D. Cal. 1984). 21 Liability may be imposed on an individual defendant under § 1983 only if Plaintiff 22 can show that the defendant proximately caused the deprivation of a federally protected 23 right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 24 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right 25 within the meaning of section 1983 if he does an affirmative act, participates in another’s 26 affirmative act or omits to perform an act which he is legally required to do, that causes the 1 Plaintiff’s description of inhumane living conditions implicates the Eighth 2 Amendment. However, Plaintiff has failed to state sufficient facts to show that the named 3 Defendants are individually liable for the violation his Eighth Amendment rights. For 4 example, he merely alleges that Defendant Pennisi was the Captain for the A-Yard 5 Facility. See supra at 3. There are no factual allegations establishing that Defendant 6 Pennisi knew of and disregarded an excessive risk to Plaintiff’s health or safety. See 7 Farmer, 511 U.S. at 837. In order to establish Defendant’s liability, Plaintiff must allege 8 specific facts showing that Defendant Pennisi committed an affirmative act, participated in 9 another’s affirmative act or omitted to perform an act which he is legally required to do, 10 that caused the deprivation of which Plaintiff complains. See Leer, 844 F.2d at 633. 11 Because Plaintiff has not plead sufficient facts to show that any subordinate is 12 liable, Plaintiff’s claim against Warden Atchley is also deficient. A supervisor may be 13 liable under § 1983 upon a showing of (1) personal involvement in the constitutional 14 deprivation or (2) a sufficient causal connection between the supervisor’s wrongful 15 conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th 16 Cir. 2012). Even if a supervisory official is not directly involved in the allegedly 17 unconstitutional conduct, “[a] supervisor can be liable in this individual capacity for his 18 own culpable action or inaction in the training, supervision, or control of his subordinates; 19 for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless 20 or callous indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1208 (9th 21 Cir. 2011) (citation omitted). The claim that a supervisory official “knew of 22 unconstitutional conditions and ‘culpable actions of his subordinates’ but failed to act 23 amounts to ‘acquiescence in the unconstitutional conduct of his subordinates’ and is 24 ‘sufficient to state a claim of supervisory liability.’” Keates v. Koile, 883 F.3d 1228, 1243 25 (9th Cir. 2018) (quoting Starr, 652 F.3d at 1208) (finding that conclusory allegations that 26 supervisor promulgated unconstitutional procedures which authorized unconstitutional 1 Here, Plaintiff’s claim that the Warden had notice and knowledge without factual 2 allegations describing how he came to that knowledge is simply conclusory. If Warden 3 Atchley was not directly involved in the deprivation, Plaintiff must allege sufficient facts 4 showing that Warden Atchley was aware of both the unconstitutional conditions as well as 5 the wrongful conduct of specific subordinates, and that he failed to act. Id. This requires 6 that Plaintiff first allege sufficient facts regarding the wrongful conduct of subordinates. If 7 there was no such wrongful conduct by a subordinate, then Plaintiff cannot state a claim 8 against Warden Atchley based on supervisory liability absent his direct involvement. 9 Lastly, Plaintiff’s allegations are insufficient to state an Eighth Amendment claim 10 against the Director of the CDCR. As discussed above, an Eighth Amendment claim 11 requires that the prison official possesses a sufficiently culpable state of mind. See 12 Farmer, 511 U.S. at 834. Plaintiff’s allegations do not indicate that the Director had 13 personal knowledge of the inhumane conditions of Plaintiff’s confinement and failed to 14 act. Rather, Plaintiff attempts to allege supervisory liability against the Director based on 15 Warden Atchley’s allegedly unconstitutional conduct. However, as discussed above, 16 Plaintiff’s claim against Warden Atchley is deficient because he makes no allegations 17 describing the wrongful conduct of a subordinate. For the same reason, Plaintiff’s claim 18 against the Director is also deficient. Assuming that the Director is in a supervisory 19 position over the Warden, Plaintiff must allege sufficient facts showing that the Director 20 was aware of both the unconstitutional conditions and the wrongful conduct of Warden 21 Atchley and that he failed to act. See Keates, 883 F.3d at 1243. 22 Based on the foregoing, Plaintiff shall be granted leave to file an amended 23 complaint to attempt to correct the deficiencies described above to state an Eighth 24 Amendment claim based on inhumane conditions. 25 2. Fourth, Fifth, and Fourteenth Amendments 26 Plaintiff asserts that his rights under the Fourth, Fifth, and Fourteenth Amendments 1 all the rights under these Amendments. 2 The Fourth Amendment proscribes “unreasonable searches and seizures.” U.S. 3 Const. amend. IV. In criminal cases, the Fifth Amendment guarantees the right to a grand 4 jury, forbids “double jeopardy,” and protects against self-incrimination. U.S. Const. 5 amend. V. The Fifth Amendment also requires due process in any proceeding that denies 6 “life, liberty or property” by the federal government, and just compensation for 7 government taking of private property for public use. Id. The Fourteenth Amendment 8 extends the same due process obligations to the state. U.S. Const. amend. XI. In addition, 9 “[t]he Equal Protection Clause of the Fourteenth Amendment commands that no State shall 10 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is 11 essentially a direction that all persons similarly situated should be treated alike.” City of 12 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 13 U.S. 202, 216 (1982)). 14 Plaintiff’s allegations implicate none of the rights under the Fourth and Fifth 15 Amendments. There are no allegations of unreasonable searches or seizures to raise 16 Fourth Amendment issues, nor are any of the Fifth Amendment protections for criminal 17 proceedings or federal due process and takings clauses relevant. Furthermore, there are 18 also no allegations indicating that Plaintiff was denied due process under the Fourteenth 19 Amendment. Accordingly, any such claims under these Amendments are dismissed with 20 leave to amend for Plaintiff to attempt to state sufficient facts to support a claim. 21 On the other hand, Plaintiff does explicitly allege that the conditions amount to the 22 “denial of equal protection” and “equal rights and treatment” which implicate the equal 23 protection clause of the Fourteenth Amendment. See supra at 3. However, there are 24 insufficient allegations to support an equal protection claim. When challenging his 25 treatment with regard to other prisoners, courts have held that in order to present an equal 26 protection claim a prisoner must allege that his treatment is invidiously dissimilar to that 1 evidence of invidious discrimination, federal courts should defer to judgment of prison 2 officials); Timm v. Gunter, 917 F.2d 1093, 1099 (8th Cir. 1990) (same). The first step in 3 determining whether the inmate’s equal protection rights were violated is to identify the 4 relevant class of prisoners to which he belongs. Furnace v. Sullivan, 705 F.3d 1021, 1030 5 (9th Cir. 2013). The class must be comprised of similarly situated persons so that the 6 factor motivating the alleged discrimination can be identified. Id. at 1031 (affirming 7 district court’s grant of defendants’ motion for summary judgment because inmate failed to 8 raise triable issue of fact that he was treated differently than any other inmate whom the 9 officers did not know was entitled to a vegetarian meal). Here, Plaintiff makes no 10 allegation with respect to what class of prisoners he belongs and how the treatment he 11 received was dissimilar to that received by other inmates. Plaintiff may attempt to allege 12 sufficient facts to state a cognizable equal protection claim in an amended complaint. 13 3. State Law Claims 14 Plaintiff claims that his rights under the equivalent state constitutional amendments 15 were violated. Dkt. No. 1 at 5. Plaintiff also claims that the conditions violate the “prison 16 guidelines within the meaning of California Code of Regulations Title 15 Section: 3300.; 17 3301.; 3303.” Id. These claims are not cognizable under § 1983 because they fail to 18 satisfy the first element, i.e., that a right secured by the Constitution or laws of the United 19 States was violated. See West v. Atkins, 487 U.S. at 48. Accordingly, any violation of the 20 state constitution or regulations is purely a state law claim. While the Court may exercise 21 supplemental jurisdiction over related state law claims, United Mine Workers v. Gibbs, 383 22 U.S. 715 (1966), Plaintiff fails to state sufficient factual allegations showing that any 23 named Defendant violated the cited amendments or regulations. As discussed above, 24 Plaintiff makes only general allegations regarding the violation of his constitutional rights 25 without providing specific facts in support. With regards to the regulations, section 3300 26 of the California Code of Regulations involves “Prevention and Disorders,” section 3301 1 Plaintiff only cites generally to these regulations, without explaining how any named 2 Defendant violated each of the regulations. Accordingly, these state law claims are 3 dismissed with leave to amend. Plaintiff may attempt to state sufficient factual allegations 4 to state claims based on violations of the state constitutional amendments and regulations 5 in an amended complaint against specific defendants. 6 7 CONCLUSION 8 For the reasons state above, the Court orders as follows: 9 1. Plaintiff’s request for class certification is DENIED. This matter shall 10 proceed with Mr. Saddozai as the sole plaintiff in this action. All other individuals named 11 as plaintiffs, Dkt. No. 1 at 2, shall be terminated from this action. 12 2. The complaint is DISMISSED with leave to amend. Within twenty-eight 13 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to attempt 14 to correct the deficiencies discussed above. The amended complaint must include the 15 caption and civil case number used in this order, Case No. C 21-01169 BLF (PR), and the 16 words “AMENDED COMPLAINT” on the first page. If using the court form complaint, 17 Plaintiff must answer all the questions on the form in order for the action to proceed. 18 The amended complaint supersedes the original, the latter being treated thereafter as 19 non-existent. Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). 20 Consequently, claims not included in an amended complaint are no longer claims and 21 defendants not named in an amended complaint are no longer defendants. See Ferdik v. 22 Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 23 3. Failure to respond in accordance with this order in the time provided 24 will result in the dismissal of this action with prejudice for failure to state a claim, 25 without further notice to Plaintiff. 26 /// 1 IT ISSO ORDERED. 2 || Dated: June 28, 2021 bob Lhour homme) BETH LABSON FREEMAN 3 United States District Judge 4 5 6 7 8 9 10 11
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16 2 18 19 20 21 22 23 24 25 Order of Dismissal with Leave to Amend PRO-SE\BLF\CR.21\01169Saddozai_dwlta 26 27