Saddozai v. Carwithen

• Court: District Court, N.D. California
• Decided: June 30, 2021
• Docket: 5:21-cv-01352
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, Case No. 21-01352 BLF (PR) 11 ORDER OF DISMISSAL WITH 12 Plaintiff, LEAVE TO AMEND; DENYING MOTION FOR APPOINTMENT OF 13 v. COUNSEL

14 A. CARWITHEN, et al.,

Defendants. 16 (Docket No. 7)

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. Plaintiff has also filed a motion for 23 appointment of counsel. Dkt. No. 7. 24 25 DISCUSSION 26 A. Standard of Review 27 A federal court must conduct a preliminary screening in any case in which a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 B. Class Action 11 As a preliminary matter, the Court addresses Plaintiff’s attempt to bring this “class 12 action” on behalf of himself as well as several other inmates who appear to be similarly 13 situated. Dkt. No. 1 at 2; Dkt. No. 1-1 at 1. The Court will construe this attempt as a 14 request for class certification pursuant to Fed. R. Civ. P. 23. 15 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 16 law and fact, (3) the representative party’s claims or defenses are typical of the class 17 claims or defenses, and (4) the representative party will fairly and adequately protect the 18 class interests. See Fed. R. Civ. P. 23(a). Pro se prisoner plaintiffs are not adequate class 19 representatives able to fairly represent and adequately protect the interests of the class. See 20 Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); see also Russell v. United 21 States, 308 F.2d 78, 79 (9th Cir. 1962) (‘a litigant appearing in propria persona has no 22 authority to represent anyone other than himself”). 23 Here, Plaintiff is proceeding pro se, and therefore cannot adequately represent the 24 intended class. Accordingly, his request for class certification is DENIED. See, e.g., 25 Griffin v. Smith, 493 F. Supp. 129, 131 (W.D.N.Y. 1980) (denying class certification on 26 basis that pro se prisoner cannot adequately represent class). The other “plaintiffs” listed 1 on the complaint shall be removed from this action. Dkt. No. 1 at 2. If they desire to 2 pursue any claims on their own, they must do so by each filing separate actions. 3 C. Plaintiff’s Claims 4 Plaintiff claims that on various dates from on or about October 1, 2020 to the filing 5 of the complaint, he was repeatedly prevented from sleeping and forced to be awaken 6 every hour or so, between 11:00 pm through 4:30 am, by Defendants shining a bright 7 flash-light beamed directly at Plaintiff’s eyes, “intentionally to interfere with sleep while 8 banging onto [plaintiff’s] cell door and cell door window, causing loud disruption on 9 unit… to cause [plaintiff’s] sleep deprivation.” Dkt. No. 1 at 4. Plaintiff claims that he is 10 repeatedly threatened with disciplinary charges by Defendants, out of retaliation for and to 11 prevent his initiating a complaint. Id. at 5. Plaintiff claims that the lack of sleep has 12 affected his everyday life in various ways, e.g., inability to retrieve morning meals, 13 participate in day programs and recreational activities, and make ducat appointments and 14 job assignments, “resulting in further deprivations or potential disciplinary actions that will 15 effect [plaintiff’s] personal liberty and privileges for inadvertently missing said 16 appointments and work assignments.” Id. Plaintiff claims these conditions are in violation 17 of the state and federal constitutional rights under the First, Fourth, Fifth, Eighth, and 18 Fourteenth Amendments. Id. 19 Plaintiff names the following as Defendants: Correctional Officer A. Carwithen, 20 Warden M. B. Atchley, and the Director of the CDCR. Dkt. No. 1at 6-8. Plaintiff claims 21 Defendant Carwithen and his unknown “partner in the control tower” “failed to intervene, 22 was acting in such a capacity as the agent, servant, and employee, under the color of state 23 law pursuant to their authority under the California Department of Corrections and 24 Rehabilitation.” Id. at 6. Plaintiff claims Defendant Carwithen would repeatedly threaten 25 him with serious disciplinary charges as retaliation… with intent to place [Plaintiff] under 26 threat, duress, coercion, as means to discourage and prevent [Plaintiff] from complaining 1 Defendant Carwithen made statements when he complained about the disrupted sleep, 2 indicating that Defendants’ actions were without penological justification but rather 3 “punitive calculated harassment that are maliciously motivated, unrelated to prison needs.” 4 Id. at 7-8. Plaintiff claims Warden Atchley is liable for the “policy decisions, writ[ing] 5 regulations or giv[ing] orders” and has “failed in his duty to act upon Plaintiff[’s] notices, 6 reports, grievances, appeals, and knowledge, [and] promulgated a policy that does direct or 7 condone the wrongful conducts of defendant(s)” who “with deliberate indifference 8 repeatedly and continuously shined and beamed his Flash-Light and or camera phone 9 L.E.D. light directly into [Plaintiff’s] eyes to interfer[e] with sleep.” Id. at 6. Plaintiff 10 claims the Director of the CDCR is liable for Warden Atchley’s actions at SVSP, as “[a] 11 prison policy maker[], [who] writes regulations, or gives orders, at least for the purpose of 12 prison management and reaches the level of deliberate indifference, failing to ensure 13 [Plaintiff’s] rights to due process, equal protection clause, and to be free from cruel and 14 unusual punishment” after receiving notice from Plaintiff. Id. at 8. Plaintiff seeks 15 declaratory and injunctive relief, as well as damages. Id. at 10. 16 1. Eighth Amendment 17 The Constitution does not mandate comfortable prisons, but neither does it permit 18 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a 19 prisoner receives in prison and the conditions under which he is confined are subject to 20 scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). 21 The Amendment also imposes duties on these officials, who must provide all prisoners 22 with the basic necessities of life such as food, clothing, shelter, sanitation, medical care 23 and personal safety. See Farmer, 511 U.S. at 832; DeShaney v. Winnebago County Dep't 24 of Social Servs., 489 U.S. 189, 199-200 (1989); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th 25 Cir. 1982). “Existing precedent” recognizes that the Eighth Amendment affords “general 26 rights against excess noise and prison conditions that deprive inmates of identifiable 1 (internal quotations omitted)(listing and reviewing cases).“While an inmate does not have 2 a right to a quiet environment, an inmate does have a right to an environment that is 3 “reasonably free” from constant, excessive noise caused by other inmates.” Id. at 1299 4 (quoting Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (finding Eighth Amendment 5 violation based on sleep deprivation caused by constant lighting and noise from other 6 inmates)). A prison official violates the Eighth Amendment when two requirements are 7 met: (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer, 511 8 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official 9 possesses a sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. at 297). 10 Plaintiff’s allegations that he has been deprived of a basic need for sleep states a 11 cognizable claim under the Eighth Amendment against Defendant Carwithen, whom 12 Plaintiff alleges was aware of the disruptions but refused to intervene to abate an excessive 13 risk to Plaintiff’s health or safety. See Farmer, 511 U.S. at 837. 14 On the other hand, Plaintiff fails to state a claim against Warden Atchley. A 15 supervisor may be liable under § 1983 upon a showing of (1) personal involvement in the 16 constitutional deprivation or (2) a sufficient causal connection between the supervisor’s 17 wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 18 1003-04 (9th Cir. 2012). Even if a supervisory official is not directly involved in the 19 allegedly unconstitutional conduct, “[a] supervisor can be liable in this individual capacity 20 for his own culpable action or inaction in the training, supervision, or control of his 21 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that 22 showed a reckless or callous indifference to the rights of others.” Starr v. Baca, 652 F.3d 23 1202, 1208 (9th Cir. 2011) (citation omitted). The claim that a supervisory official “knew 24 of unconstitutional conditions and ‘culpable actions of his subordinates’ but failed to act 25 amounts to ‘acquiescence in the unconstitutional conduct of his subordinates’ and is 26 ‘sufficient to state a claim of supervisory liability.’” Keates v. Koile, 883 F.3d 1228, 1243 1 supervisor promulgated unconstitutional procedures which authorized unconstitutional 2 conduct of subordinates do not suffice to state a claim of supervisory liability). 3 Here, Plaintiff’s claim that the Warden had notice and knowledge without factual 4 allegations describing how he came to that knowledge is simply conclusory. If Warden 5 Atchley was not directly involved in the deprivation, Plaintiff must allege sufficient facts 6 showing that Warden Atchley was aware of both the unconstitutional conditions as well as 7 the wrongful conduct of specific subordinates, and that he failed to act. Id. If there was no 8 wrongful conduct by a subordinate, then Plaintiff cannot state a claim against Warden 9 Atchley based on supervisory liability absent his direct involvement. 10 Lastly, Plaintiff’s allegations are insufficient to state an Eighth Amendment claim 11 against the Director of the CDCR. As discussed above, an Eighth Amendment claim 12 requires that the prison official possesses a sufficiently culpable state of mind. See 13 Farmer, 511 U.S. at 834. Plaintiff’s allegations do not indicate that the Director had 14 personal knowledge of the constant disruptions to Plaintiff’s sleep and failed to act. 15 Rather, Plaintiff attempts to allege supervisory liability against the Director based on 16 Warden Atchley’s allegedly unconstitutional conduct. However, as discussed above, 17 Plaintiff’s claim against Warden Atchley is deficient. For the same reason, Plaintiff’s 18 claim 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 the deprivation of sleep against Defendants Atchley and the 25 Director. 26 2. First Amendment - Retaliation 1 at 5. “Within the prison context, a viable claim of First Amendment retaliation entails five 2 basic elements: (1) An assertion that a state actor took some adverse action against an 3 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 4 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 5 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 6 Cir. 2005) (footnote omitted). 7 Plaintiff’s complaint contains insufficient allegations to support a retaliation claim. 8 Plaintiff claims generally that “Defendants” deprived him of sleep out of retaliation for and 9 to prevent his initiating a complaint. See supra at 3. However, Plaintiff fails to connect 10 this allegation with any named defendant. For example, Plaintiff alleges that when he 11 complained to Defendant Carwithen about the disrupted sleep, Defendant Carwithen 12 stated, “go ahead and file a complaint, there not going to do anything, my boss pats me on 13 the back for every complaint I get to wake you up.” Dkt. No. 1 at 7-8. While this alleged 14 statement would support the fifth element for a retaliation claim, i.e., the disruptions did 15 not reasonably advance a legitimate correctional goal, it does not indicate that Defendant 16 Carwithen acted “because of” Plaintiff’s protected conduct, which are the second and third 17 elements. Nor does Plaintiff allege that any adverse action chilled the exercise of his First 18 Amendment rights. Accordingly, Plaintiff shall be granted leave to attempt to state 19 sufficient facts in an amended complaint to support a retaliation claim against specific 20 Defendants. 21 3. Fourth, Fifth, and Fourteenth Amendments 22 Plaintiff also asserts that his rights under the Fourth, Fifth, and Fourteenth 23 Amendments were also violated. Dkt. No. 1 at 5. However, the complaint contains 24 insufficient allegations to implicate all the rights under these Amendments. 25 The Fourth Amendment proscribes “unreasonable searches and seizures.” U.S. 26 Const. amend. IV. In criminal cases, the Fifth Amendment guarantees the right to a grand 1 amend. V. The Fifth Amendment also requires due process in any proceeding that denies 2 “life, liberty or property” by the federal government, and just compensation for 3 government taking of private property for public use. Id. The Fourteenth Amendment 4 extends the same due process obligations to the state. U.S. Const. amend. XI. In addition, 5 “[t]he Equal Protection Clause of the Fourteenth Amendment commands that no State shall 6 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is 7 essentially a direction that all persons similarly situated should be treated alike.” City of 8 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 9 U.S. 202, 216 (1982)). 10 Plaintiff’s allegations implicate none of the rights under the Fourth and Fifth 11 Amendments. There are no allegations of unreasonable searches or seizures to raise 12 Fourth Amendment issues, nor are any of the Fifth Amendment protections for criminal 13 proceedings or federal due process and takings clauses relevant. Furthermore, there are 14 also no allegations indicating that Plaintiff was denied due process or equal protection 15 under the Fourteenth Amendment. Accordingly, any such claims under these 16 Amendments are dismissed with leave to amend for Plaintiff to attempt to state sufficient 17 facts to support a claim. 18 4. State Law Claims 19 Plaintiff claims that his rights under the equivalent state constitutional amendments 20 were violated. Dkt. No. 1 at 5. First of all, state constitutional claims are not cognizable 21 under § 1983 because they fail to satisfy the first element, i.e., that a right secured by the 22 Constitution or laws of the United States was violated. See West v. Atkins, 487 U.S. at 48. 23 Accordingly, any violation of the state constitution is purely a state law claim. While the 24 Court may exercise supplemental jurisdiction over related state law claims, United Mine 25 Workers v. Gibbs, 383 U.S. 715 (1966), Plaintiff fails to state sufficient factual allegations 26 showing that any named Defendant violated the cited amendments. As discussed above, 1 without providing specific facts in support. Accordingly, these state law claims are 2 dismissed with leave to amend. Plaintiff may attempt to state sufficient factual allegations 3 to state claims based on violations of the state constitutional amendments in an amended 4 complaint against specific defendants. 5 In preparing an amended complaint, Plaintiff should keep the following principles 6 in mind. Liability may be imposed on an individual defendant under § 1983 only if 7 Plaintiff can show that the defendant proximately caused the deprivation of a federally 8 protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of 9 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a 10 constitutional right within the meaning of section 1983 if he does an affirmative act, 11 participates in another’s affirmative act or omits to perform an act which he is legally 12 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 13 F.2d at 633. 14 D. Motion for Appointment of Counsel 15 Plaintiff has filed a motion for appointment of counsel based on indigency, the 16 complexity of the issues, lack of legal knowledge, limited access to the library, and that he 17 would be better served by the assistance of counsel for various reasons. Dkt. No. 7. 18 However, there is no constitutional right to counsel in a civil case unless an indigent 19 litigant may lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of 20 Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 21 1997) (no constitutional right to counsel in § 1983 action), withdrawn in part on other 22 grounds on reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request 23 counsel to represent an indigent litigant under § 1915 is within “the sound discretion of the 24 trial court and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 25 1221, 1236 (9th Cir. 1984). Plaintiff’s asserted grounds do not distinguish him from other 26 prisoner-litigants and do not establish exceptional circumstances. Accordingly, the motion 1 America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); 2 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 3 1328, 1331 (9th Cir. 1986). 4 Plaintiff also asserts that he is incapable of representing himself due to his “clinical 5 assessment in accordance with the Mental Health Services Delivery System,” and therefore 6 warrants appointment of a guardian ad litem under Federal Rule of Civil Procedure 17(c). 7 Dkt. No. 7 at 3. Rule 17(c) provides in relevant part that:

8 A minor or an incompetent person who does not have a duly appointed 9 representative may sue by a next friend or aby a guardian ad litem. The court must appoint a guardian ad litem – or issue another appropriate order – to 10 protect a minor or incompetent person who is unrepresented in an action. 11 Fed. R. Civ. P. 17(c)(2). The Ninth Circuit has held that when “a substantial question” 12 exists regarding the mental incompetence of a pro se litigant, the district court should 13 conduct a hearing to determine competence so that a guardian ad litem may be appointed if 14 appropriate. Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005); Krain v. Smallwood, 15 880 F.2d 1119, 1121 (9th Cir. 1989). Other circuits have held that a district court’s duty of 16 inquiry under Rule 17(c) is triggered by “verifiable evidence” of incompetence. See, e.g., 17 Powell v. Symons, 680 F.3d 301, 307 (3rd Cir. 2012); Ferrelli v. River Manor Health Care 18 Center, 323 F.3d 196, 203 (2d Cir. 2003). 19 The Ninth Circuit found a “substantial question” regarding competence where a pro 20 se prisoner litigant submitted a letter from the prison psychiatrist stating that the litigant 21 was under his care, had been diagnosed with schizophrenia, and was taking psychotropic 22 medications, see Allen, 408 F.3d at 1152, but it found no substantial question where a pro 23 se litigant merely asserted that the district court should have conducted a competency 24 hearing, see Day v. Sonoma Cnty., 1997 WL 686016, at *2 (9th Cir. Oct. 30, 1997). The 25 Third Circuit found “verifiable evidence” of incompetence where one co-plaintiff was 26 adjudicated incompetence in a simultaneous criminal proceeding and the other co-plaintiff 1 Second Circuit has indicated that “verifiable evidence” could take the form of records from 2 a court or public agency or evidence from a mental health professional, but that bizarre 3 behavior, standing alone, is not sufficient to trigger a district court’s duty of inquiry under 4 Rule 17(c). See Ferrelli, 323 F.3d at 201-02. 5 In this case, Plaintiff’s evidence in support of his motion does not raise a substantial 6 question regarding his competence. Dkt. No. 7-1 at 16-23. The evidence includes a letter 7 from the law firm representing Plaintiff as a Coleman class member dated May 20, 2020, 8 challenging a proposed discharge of Plaintiff from the “EOP level of care” based on 9 Plaintiff’s lack of compliance with mental health treatment and stress related to legal work. 10 Dkt. No. 7-1 at 18-19. The letter asserts that Plaintiff “actively assisting his attorneys and 11 conducting his own legal work does not mean he does not need EOP-level care.” Id. at 18. 12 Another document appears to be a mental health assessment form dated January 9, 2020, 13 which noted that Plaintiff had been retained in “MHCB” due to recent reports of suicidal 14 ideation but that he was already demonstrating significant improvement in his mood and 15 would be deemed appropriate for a lower “LOC” when he completed a safety plan and 16 demonstrated improvements in sleep and interest in pleasurable activities.” Id. at 22. 17 These documents indicate that rather than finding Plaintiff incompetent, clinicians believed 18 a lower level of mental health care was appropriate. As such, none of these documents 19 amount to a direct statement from a mental health professional or other “verifiable 20 evidence” of Plaintiff’s current incompetence to trigger this Court’s duty of inquiry. See 21 Ferrelli, 323 F.3d at 201-02. Furthermore, Plaintiff has shown an ability to articulate his 22 claims despite his alleged mental health issues. Lastly, Plaintiff’s mere assertion that he 23 needs the assistance of counsel to proceed with the case, without more, is not sufficient to 24 raise a substantial question. See, e.g., Day, 1997 WL 686016, at *2. Accordingly, the 25 Court finds that in the absence of verifiable evidence of incompetence, there is no 26 substantial question regarding Plaintiff’s competence and therefore no duty of inquiry. See 1 appointment of a guardian ad litem under Rule 17(c). 2 3 CONCLUSION 4 For the reasons state above, the Court orders as follows: 5 1. Plaintiff’s request for class certification is DENIED. This matter shall 6 proceed with Mr. Saddozai as the sole plaintiff in this action. All other individuals named 7 as plaintiffs, Dkt. No. 1 at 2, shall be terminated from this action. 8 2. Plaintiff’s motion for appointment of counsel is DENIED. Dkt. No. 7. 9 3. The complaint is DISMISSED with leave to amend. Within twenty-eight 10 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to attempt 11 to correct the deficiencies discussed above. The amended complaint must include the 12 caption and civil case number used in this order, Case No. C 21-01325 BLF (PR), and the 13 words “AMENDED COMPLAINT” on the first page. If using the court form complaint, 14 Plaintiff must answer all the questions on the form in order for the action to proceed. 15 The amended complaint supersedes the original, the latter being treated thereafter as 16 non-existent. Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). 17 Consequently, claims not included in an amended complaint are no longer claims and 18 defendants not named in an amended complaint are no longer defendants. See Ferdik v. 19 Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 20 In the alternative, Plaintiff may file notice in the same time provided that he 21 wishes to proceed solely on the cognizable Eighth Amendment claim against Defendant 22 Carwithen, see supra at 5, and strike all other claims and defendants from this action. 23 4. Failure to respond in accordance with this order in the time provided 24 will result in this matter proceeding solely on the Eighth Amendment claim against 25 Defendant Carwithen and dismissal with prejudice of all other claims and defendants 26 for failure to state a claim, without further notice to Plaintiff. 1 IT IS SO ORDERED. 2 || Dated: June 28, 2021 beh Llyn ame BETH LABSON FREEMAN 3 United States District Judge 4 5 6 7 8 9 10 1] 12

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O Z 18 19 20 21 22 23 24 Order of Dismissal with Leave to Amend; Denying Appt. of Counsel 25 PRO-SE\BLF\CR.2 0 1325 Saddozai dwltadeatty enprt 26 27