Thomas v. Aguilar

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 WILLIAM HENRY THOMAS, Case No.: 3:22-cv-0979-RSH-DEB CDCR #J-01366, 11

Plaintiff, 12 ORDER DIRECTING U.S. v. MARSHAL TO SERVE THE FIRST 13 AMENDED COMPLAINT AND

14 SUMMONS AGULAR, Correctional Officer, 15 Defendant. 16

18 Plaintiff William H. Thomas is currently incarcerated at Folsom State Prison in 19 Folsom, California. On June 30, 2022, Thomas filed a pro se civil rights complaint under 20 42 U.S.C. § 1983 against four Defendants: (1) the California Department of Corrections 21 and Rehabilitation (“CDCR”); (2) Correctional Officer “Agular”; (3) Correctional Officer 22 John Doe 1; and (4) Correctional Officer John Doe 2. See Compl., ECF No. 1. Thomas 23 alleged the four Defendants violated his Eighth Amendment rights when he was 24 incarcerated at Calipatria State Prison by not repairing the only toilet in his prison cell for 25 at least 17 days. Id. 26 On August 12, 2022, the Court granted Thomas’ Motion to Proceed In Forma 27 Pauperis (“IFP”) [ECF No. 2] and screened the Complaint. See Order, ECF No. 3. In its 28 Order, the Court dismissed without prejudice the CDCR and John Doe 1. Id. The Court 1 also directed Thomas to notify the Court if he would like to move forward with his claims 2 against Defendants Agular and John Doe 2 or file a First Amended Complaint. Id. On 3 September 14, 2022, Thomas filed a First Amended Complaint (“FAC”).1 ECF No. 5. As 4 explained below, the Court directs the U.S. Marshal to serve the FAC on Defendant Agular. 5 I. Screening Under 28 U.S.C. §§ 1915(e)(2)(B) & 1915A 6 A. Legal Standard 7 Because Thomas is a prisoner with IFP status, the Prison Litigation Reform Act of 8 1995 (“PLRA”), Pub. L. No. 104-134 § 801, 110 Stat. 1321 (1996), requires the Court to 9 screen his FAC before requiring the Defendant to answer. 28 U.S.C. §§ 1915(e)(2), 10 1915A(b); see Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 11 U.S.C. § 1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) 12 (discussing 28 U.S.C. § 1915(e)(2)). These sections of the PLRA require a court to dismiss 13 a prisoner plaintiff’s complaint (or any portion of it) that is frivolous, malicious, fails to 14 state a claim, or seeks damages from defendants who are immune. Lopez, 203 F.3d at 1126– 15 27. “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits 16 need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th 17 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 18 2012)). 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under [28 U.S.C.] § 1915(e)(2)(B)(ii) is the same as the Federal 21 22 23 1 Plaintiff first filed a notice with the Court on August 30, 2022, stating that he would like to move forward with his Complaint against the two remaining Defendants. See ECF 24 No. 4. However, on September 14, 2022, Plaintiff filed a First Amended Complaint stating 25 that he “wishes to dismiss 3 defendants from original [Complaint]. California Department of Corrections (CDCR), . . . Officer John Doe #1 and Officer John Doe #2) these three 26 defendants are dismissed. This is to amend the first complaint.” ECF No. 5 at 2. The Court 27 interprets this as a request to disregard the August 30, 2022, notice [ECF No. 4] and accept the FAC [ECF No. 5]. Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 28 1 Rule of Civil Procedure [(“Rule”)] 12(b)(6) standard for failure to state a claim.” Watison 2 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Although detailed factual allegations are 3 not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 5 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 6 specific task that requires the court to draw on its judicial experience and common sense.” 7 Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed 8 me accusation[s]” fall short of meeting this plausibility standard. Id. Under Rule 12(b)(6), 9 a complaint must “contain sufficient factual matter, accepted as true, to state a claim to 10 relief that is plausible on its face.” Id. 11 Complaints must also comply with Rule 8, which requires that each pleading include 12 a “short and plain statement of the claim” and “each allegation [] be simple, concise and 13 direct.” Fed. R. Civ. P. 8(a)(2), 8(d)(1). See Iqbal, 556 U.S. at 677–78. If a complaint fails 14 to provide the defendant fair notice of the wrongs allegedly committed, a district court may 15 dismiss the complaint for failing to comply with Rule 8. See Cafasso, United States ex rel. 16 v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (citing cases 17 upholding Rule 8 dismissals where pleadings were “verbose,” “confusing,” “distracting, 18 ambiguous, and unintelligible,” “highly repetitious,” and comprised of “incomprehensible 19 rambling”). 20 Finally, courts should be mindful that “where the [plaintiff] is pro se, particularly in 21 civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit 22 of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v. Kelman, 23 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). But pro se parties “should not be treated more 24 favorably than parties with attorneys of record . . . .” Albanese v. Las Vegas Metro. Police 25 Dep’t, No. 217-CV-01600, 2017 WL 2622759, at *2 (D. Nev. June 15, 2017) (quoting 26 Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986)). 27 B. Analysis 28 In his FAC, Thomas alleges that on December 20, 2021, the only toilet in his prison 1 cell at Calipatria State Prison stopped working properly. ECF No. 5 at 4. Thomas asked 2 Correctional Officer Agular to call the plumber because neither Thomas’ cold water nor 3 his toilet were working properly. Id. Thomas claims that Agular first stated that he would 4 put in a work order, but later told Thomas he was not calling the plumber and suggested 5 Thomas speak with the plumber the next time Thomas saw the plumber. Id. On December 6 26, 2021, Thomas again approached Agular to complain that his toilet stopped working 7 entirely and had feces in it. Id. According to Thomas, Agular stated that he may have 8 forgotten to submit a work order the prior week but that he would. Id. Thomas again asked 9 Agular to call the plumber and Agular responded, “that’s not how it works.” Id. 10 On January 3, 2022, Thomas again approached Agular to say his cell smelled like a 11 “porter potty.” Id. at 5. Thomas claims that Agular laughed and said that he had not 12 submitted a work order because he thought Thomas “was just playing about that whole 13 thing[,]” but Agular would submit one that day. Id. When Thomas allegedly asked to be 14 moved to another cell, Agular explained that another officer completed cell moves every 15 other week. Id. Thomas complained that not only was the smell “toxic and a health hazard” 16 but making him stay in the cell was also “a form of torture.” Id. 17 Thomas claims that he approached two unnamed correctional officers about the 18 conditions of his cell on January 12, 2022. Id. The officers called their supervisor who 19 arranged for a plumber to fix the toilet within an hour. Id. When Thomas asked the plumber 20 why the repair took so long, the plumber explained that he could only perform work if a 21 work order had been submitted. Id. Thus, Thomas concludes that Agular never submitted 22 a work order. Id. Thomas alleges that “Agular’s egregious conduct” left Plaintiff without a 23 functioning toilet for at least 17 days such that he had to urinate in a soda can and pour it 24 down the sink. Id. at 6. As a result, Thomas claims that the toxic smell in his cell caused 25 him severe headaches and sleep deprivation. Id. 26 Based on these allegations, the Court finds that the FAC contains “sufficient factual 27 matter, accepted as true,” to state an Eighth Amendment claim for relief that is “plausible 28 on its face.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 1 (2007)); see Jordan v. Fitzharris, 257 F. Supp. 674, 677 (N.D. Cal. 1966) (finding Eighth 2 Amendment violation where prisoner was placed in cell that was not cleaned regularly, had 3 no means to clean himself, and had a hole for receiving bodily wastes but no flushing 4 mechanism). Therefore, the FAC survives the “low threshold” for screening under 28 5 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th 6 Cir. 2012); see also Farmer v. Brennen, 511 U.S. 825, 832 (1994) (stating that prison 7 officials have a duty to provide the “basic necessities of life[,]” including sanitation, under 8 the Eighth Amendment); Anderson v. Cnty. of Kern, 45 F.3d 1310, 1314 (9th Cir.) 9 (“Unquestionably, subjection of a prisoner to lack of sanitation that is severe or prolonged 10 can constitute an infliction of pain within the meaning of the Eighth Amendment.”) 11 amended by 75 F.3d 448 (9th Cir. 1995). 12 Accordingly, the Court will direct the U.S. Marshal to serve the summons and FAC 13 on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 14 serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he 15 court may order that service be made by a United States marshal or deputy marshal . . . if 16 the plaintiff is authorized to proceed [IFP] under 28 U.S.C. § 1915.”).2 17 II. Conclusions and Orders 18 For the reasons above, the Court: 19 1. DIRECTS the Clerk to issue a summons for Plaintiff’s First Amended 20 Complaint [ECF No. 5] and forward it to Thomas along with an “IFP Package” containing: 21 a certified copy of Plaintiff’s First Amended Complaint; a blank U.S. Marshal Form 285 22 for the remaining Defendant; a filed copy of this Order; and a cover letter with instructions. 23 After receiving this “IFP Package,” Plaintiff must complete the U.S. Marshal Form 285 as 24 to the Defendant as completely and accurately as possible, including an address where the 25 26 27 2 The Court notes “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may 28 1 Defendant may be served per CivLR 4.1(c); and return the completed forms to the U.S. 2 Marshal according to the instructions the Clerk provides in the cover letter. 3 2. ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint 4 [ECF No. 5] and summons upon the Defendant as Plaintiff directs on the USM Form 285 5 and to file with the Clerk of Court an executed waiver of personal service on the Defendant 6 per Rule 4(d). Should the Defendant fail to return the U.S. Marshal’s request for waiver of 7 personal service within 90 days, the U.S. Marshal shall instead file the completed USM 8 Form 285 Process Receipt and Return as to the Defendant with the Clerk of Court, 9 including the date that the summons, First Amended Complaint, and request for waiver 10 was mailed to the Defendant, as well as noting that service remains unexecuted. The United 11 States will advance all costs of the U.S. Marshal’s service. See 28 U.S.C. § 1915(d); Fed. 12 R. Civ. P. 4(c)(3). However, if the Defendant fails to sign and return the waiver without 13 good cause, the Court will impose on the Defendant any expenses later incurred in making 14 personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3), (d)(2). 15 3. ORDERS Defendant, once served, to respond to Plaintiff’s First Amended 16 Complaint and any subsequent pleading Plaintiff files in this case naming Defendant as a 17 party, within the time Federal Rules of Civil Procedure 12(a) and 15(a)(3) provide. See 42 18 U.S.C. § 1997e(g)(2) (requiring defendant to respond once a court has screened a 19 complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A(b)). 20 4. ORDERS Plaintiff to serve, pursuant to Federal Rule of Civil Procedure 5(b), 21 on Defendant (or on Defendant’s counsel, if represented) a copy of every further pleading, 22 filing, or other document submitted for the Court’s consideration. This obligation begins 23 once the U.S. Marshal has served the Defendant. Plaintiff must also include with every 24 document he files with the Court, a Certificate of Service stating how and on what date a 25 true and correct copy of that document was served on the Defendant (or their counsel). See 26 CivLR 5.2. The Court may disregard any document it receives which is not properly filed 27 with the Clerk or does not include a Certificate of Service. 28 5. DISMISSES WITHOUT PREJUDICE John Doe 2 and DIRECTS the 1 || Clerk to terminate John Doe 2 from the docket. See King v. Ativeh, 814 F.2d 565, 567 (9th 2 || Cir. 1987) (“All causes of action alleged in an original complaint which are not alleged in 3 ||an amended complaint are waived.’). 4 SO ORDERED. 5 || Dated: September 26, 2022 6 fekut § [owe

8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7