1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOMMY LEE WILLIAMS, Case No.: 23-cv-241 TWR (DDL) Inmate #21114692, 12 ORDER (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS; (2) DISMISSING 14 COMPLAINT PURSUANT TO 28 LT. BRANT #2880 et al., 15 U.S.C. § 1915(e)(2) AND § 1915A(b); Defendants. AND (3) DENYING MOTION TO 16 APPOINT COUNSEL 17 (ECF Nos. 2, 3) 18
19 20 Tommy Lee Williams (“Plaintiff” or “Williams”), currently incarcerated at San 21 Diego Central Jail (“SDCJ”), is proceeding pro se with a civil rights complaint pursuant to 22 42 U.S.C. § 1983. (See ECF No. 1, “Compl.”) He has also filed a Motion to Proceed in 23 Forma Pauperis (“IFP”) and a Motion to Appoint Counsel. (ECF Nos. 2–3.) 24 I. Motion to Proceed IFP 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 / / / 28 / / / 1 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 5 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 6 regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2); 7 Bruce v. Samuels, 577 U.S. 82, 84–85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 8 (9th Cir. 2015); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 12 § 1915(a)(2); see Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 13 trust account statement, the Court assesses an initial payment of 20% of (a) the average 14 monthly deposits in the account for the past six months, or (b) the average monthly balance 15 in the account for the past six months, whichever is greater, unless the prisoner has no 16 assets. See 28 U.S.C. § 1915(b)(1), (4). The institution having custody of the prisoner then 17 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 18 month in which his account exceeds $10, and forwards those payments to the Court until 19 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85. 20 In support of his IFP Motion, Williams has submitted a certified copy of his trust 21 account statement and a prison certificate pursuant to 28 U.S.C. § 1915(a)(2) and Local 22 Civil Rule 3.2. (See ECF No. 3 at 5–7); see Andrews, 398 F.3d at 1119. These documents 23 show that Williams had an available balance of $1.13 at the time of filing. (See ECF No. 24 3 at 5–7.) The Court thus GRANTS Williams’s Motion to Proceed IFP. (ECF No. 3.) 25
26 1 In civil actions, except for applications for a writ of habeas corpus, civil litigants bringing suit 27 must pay the $350 statutory fee in addition to a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 28 1 The Court, however, declines to exact the initial filing fee because Williams’s trust account 2 statement indicates he may have “no means to pay it.” Bruce, 577 U.S. at 84. Instead, the 3 Court directs the Secretary of the California Department of Corrections and Rehabilitation 4 (“CDCR”) or his designee, to collect the entire $350 filing fee required by 28 U.S.C. § 1914 5 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1) and 6 forward them to the Clerk of the Court. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n 7 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 8 action or criminal judgment for the reason that the prisoner has no assets and no means by 9 which to pay the initial partial filing fee”); Bruce, 577 U.S. at 84–85; Taylor, 281 F.3d at 10 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 11 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available 12 to him when payment is ordered”). 13 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) 14 A. Legal Standard 15 Because Williams is a prisoner proceeding IFP, his Complaint requires a pre-answer 16 screening pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the 17 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, if it is 18 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 19 immune from such relief. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en 20 banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 21 Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure 22 that the targets of frivolous or malicious suits need not bear the expense of responding.’” 23 Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (citation omitted). 24 “The standard for determining whether a plaintiff has failed to state a claim upon 25 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 26 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 27 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 28 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 1 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 2 12(b)(6)”). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, 3 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 4 556 U.S. 662, 678 (2009) (citation omitted); Wilhelm, 680 F.3d at 1121. 5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 6 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 7 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 8 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 9 experience and common sense.” Id. at 679. The “mere possibility of misconduct” or 10 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this 11 plausibility standard. Id. at 678–79; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 12 (9th Cir. 2009). 13 As for the substantive law, § 1983 “creates a private right of action against 14 individuals who, acting under color of state law, violate federal constitutional or statutory 15 rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “‘is not 16 itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal 17 rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (citation 18 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 19 right secured by the Constitution and laws of the United States, and (2) that the deprivation 20 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 21 698 F.3d 1128, 1138 (9th Cir. 2012) (citation omitted). 22 B. Plaintiff’s Factual Allegations 23 Williams is a convicted prisoner who was transferred from state prison to the SDCJ 24 in August of 2021 for resentencing. (Compl. at 13.) In prison, Williams was receiving 25 mental health services for post-traumatic stress disorder (“PTSD”), depression, panic 26 attacks, and anxiety. (Id.) After about a week at SDCJ, Williams alleges he was transferred 27 to the George Baily Detention Facility (“GBDF”) where he was housed in a thirty-man 28 / / / 1 dorm which he describes as “a living hell.” (Id.) Williams states he could not cope with 2 the conditions in the dorm and on August 25, 2021, he attempted suicide. (Id. at 13–15.) 3 Following the suicide attempt, Williams contends he received no mental health 4 follow-up and was transferred to the Vista Detention Facility (“VDF”). (Id. at 15.) At 5 VDF, he alleges he told staff he had attempted suicide but was told there was no report of 6 the incident. (Id.) He claims he submitted numerous grievances alleging he was not 7 receiving mental health services or dayroom and shower access, inmates were making 8 alcohol with the help of deputies, gang members were running the dayroom, an inmate had 9 come to his cell and masturbated in front of him, and inmates were threatening to kill him. 10 (Id. at 9–13, 30.) 11 Williams explains that in November 2021, deputies tried to transfer him from VDF 12 back to the thirty-man dorm at GBDF—this upset Williams because the transfer would 13 worsen his PTSD and other mental health issues. (Id. at 13–14.) Williams allegedly told 14 the deputies he would not go back to the dorm and that he needed to go to the SDCJ because 15 he was representing himself in state and federal court and the SDCJ had a law library. (Id. 16 at 6–7.) Although not clear from his Complaint, it appears that at this point Williams was 17 accused of threatening deputies and put in Administrative Segregation (“Ad-Seg”). (Id.) 18 Williams alleges that the incident report regarding the threats was falsified. (Id.) 19 Williams also alleges that while at the SDCJ, he was unable to contact his attorney 20 because the phone number was blocked, he was not provided with mental health services, 21 was in lockdown twenty-three to twenty-four hours a day, stopped receiving his disability 22 checks, and had no access to haircuts, yard time, or nail clippers. (Id.at 18–19.) He also 23 states that deputies at the SDCJ racially harassed him, threatened him and other inmates, 24 taunted him by speaking to him over the loudspeaker all night, turned off the lights, did not 25 respond to requests for medical and mental health help, and banged on his cell wall all 26 night. (Id. at 27–30.) 27 / / / 28 / / / 1 C. Discussion 2 1. Eighth Amendment 3 The Eighth Amendment requires that inmates have “ready access to adequate 4 medical care.” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), overruled on other 5 grounds by Sandin v. Connor, 515 U.S. 472 (1995). As a result, “deliberate indifference 6 to serious medical needs of prisoners” violates the Eighth Amendment. Estelle v. Gamble, 7 429 U.S. 97, 104 (1976). “A prison official acts with ‘deliberate indifference . . . only if 8 the [prison official] knows of and disregards an excessive risk to inmate health and safety.’” 9 Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (citation omitted). “Under this 10 standard, the prison official must not only ‘be aware of facts from which the inference 11 could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also 12 draw the inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 13 a. VDF Defendants Brant, Garcia, Aguinaga, and Iwatsu (Counts One, Two, Three and Four) 14
15 Williams has not plausibly alleged an Eighth Amendment claim against Defendants 16 Brant, Garcia, Aguinaga, or Iwatsu because he has not explained what actions any of those 17 defendants did or did not take that violated his Eighth Amendment rights. “Causation is, 18 of course, a required element of a § 1983 claim.” Estate of Brooks ex rel. Brooks v. United 19 States, 197 F.3d 1245, 1248 (9th Cir. 1999). Thus, a Plaintiff must, at minimum, allege 20 some factual content to describe how each individual person he seeks to sue violated the 21 Constitution, and set forth specific facts as to each individual defendant’s wrongdoing. See 22 Iqbal, 556 U.S. at 676–77; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). 23 Williams alleges Brant and Garcia told him he would be transferred to SDCJ from 24 VDF after Williams explained he needed to be transferred there because SDCJ had a law 25 library. (Compl. at 6, 9.) When Williams arrived at booking, however, the paperwork 26 showed he was being transferred to GBDF. (Id. at 6.) While Williams states he did not 27 want to be transferred to GBDF because it is where he tried to commit suicide, he alleges 28 no facts which plausibly suggest Brant or Garcia were responsible for his transfer to GBDF 1 or, if they were responsible, that they knew about his suicide attempt and consciously 2 disregarded a risk to Williams’s safety by transferring him there. See Toguchi, 391 F.3d at 3 1057. Accordingly, Williams’s claims against Brant and Garcia must be dismissed 4 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) for failure to state a claim. 5 Williams alleges Aguinaga witnessed Brant telling him he would be transferred to 6 SDCJ. (Compl. at 7.) He also claims Aguinaga came to his cell with grievance forms 7 Williams had submitted about his lack of access to a shower, phone calls, and the dayroom 8 and told Williams he “should not write up [his] deputies and give it to medical and [mental 9 health].” (Id.) None of these allegations plausibly allege Aguinaga personally violated 10 Williams’s constitutional rights by “[knowing] of and disregard[ing] an excessive risk to 11 inmate health and safety.” Toguchi, 391 F.3d at 1057 (citation omitted). Williams’s claims 12 against Aguinaga must also be dismissed for failure to state a claim. 13 Finally, as to Defendant Iwatsu, Williams alleges only that he was “with Lt. Brant 14 and Sgt. Aguinaga the day of the incident . . . .” (Compl. at 8.) These allegations also do 15 not plausibly allege Iwatsu personally violated Williams’s constitutional rights by 16 “[knowing] of and disregard[ing] an excessive risk to inmate health and safety.” Toguchi, 17 391 F.3d at 1057 (citation omitted). This claim then must also be dismissed for failure to 18 state claim. 19 As to Williams’s claim that his Eighth Amendment rights were violated when he 20 was “put in Ad-Seg [for] a false incident report saying [he] was threatening to fight every 21 inmate [he] lived with and threatening deputies,” also fails to state a claim. (Compl. at 6.) 22 “[D]istrict courts throughout California . . . have determined that a prisoner’s allegation 23 that prison officials issued a false disciplinary charge against him fails to state a cognizable 24 claim for relief under § 1983.” Richardson v. Tuman, No. 1:18-cv-01166-EPG-PC, 2019 25 WL 669569, at *5 (E.D. Cal. Feb. 19, 2019) (collecting cases); Butts v. Ibarra, No. 1:20- 26 cv-00273-EPG-(PC), 2020 WL 4676375, at *4 (E.D. Cal. Aug. 12, 2020); Harper v. Costa, 27 No. CIV S-07-2149 LKK DAD P, 2009 WL 1684599, at *2–3 (E.D. Cal., June 16, 2009), 28 / / / 1 aff’d, 393 F. App’x. 488 (9th Cir. 2010). Accordingly, the Court DISMISSES Plaintiff’s 2 claim regarding any false incident report. 3 b. VDF Defendants Dias, Nares, Domkuct, Grace, and 4 Liu (Counts Five, Six, Thirteen, Twenty-One, and Twenty-Three)2, 3 5
6 Williams’s allegations against Defendants Dias, Nares, Domkuct, and Grace, center 7 around his lack of access to a shower, the dayroom, and threats by other inmates at VDF. 8 (Compl. at 9–13, 30–31.) He claims the dayroom at VDF was being “r[un] by the inmates 9 24/7 and when [he] did come out for dayroom it was 2:00 a.m.” (Id. at 10.) Because of 10 medication he was taking for sleep and his PTSD, he would often be unable to get out bed 11 for his dayroom time, and he suffered from “nightmares, anger, feeling jumpy, self-blame, 12 suicidal thoughts, physical aches and pains, [and] feeling alienated and alone.” (Id.) He 13 also alleges deputies helped inmates make wine, and that one inmate came to his cell door 14 drunk and masturbated in front of him. (Id.) Williams reported the incident and asked for 15 a PREA (Prison Rape Elimination Act) report, but nothing happened. (Id.) Williams 16 alleges he wrote grievances about the dayroom situation, which resulted in inmates 17 threatening to kill him because deputies told the shot caller4 for a Mexican gang that he 18 was writing grievances. (Id. at 30.) Specifically, Williams alleges the inmate would slide 19
20 21 2 Although Williams alleges Dias and Nares violated his due process rights in addition to his Eighth Amendment rights, when a specific constitutional Amendment “‘provides an explicit textual source of 22 constitutional protection’ against a particular sort of government behavior, ‘that Amendment . . . must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality) (citation 23 omitted). Williams’s allegations against Dias and Nares are most properly interpreted as Eighth Amendment claims. 24
25 3 On April 21, 2023, Williams filed an additional document, which lists three new defendants and four new counts. (ECF No. 4.) He labeled the new counts one through four. (Id.) Williams listed twenty- 26 two counts in his Complaint. (See Compl.) Therefore, to avoid any confusion, the Court will refer to the counts in ECF No. 4 as Counts Twenty-three through Twenty-six. 27 4 A “shot caller” is a high-level prison gang member who determines who the gang can target with 28 1 letters under his cell door, threatening to kill him and saying he was going to “green light” 2 him. (Id.) 3 In Count Five, Williams claims Dias told him that he would be evaluated by 4 classification in seven days. (Compl. at 11.) This is the only allegation involving Dias in 5 the Complaint. But, this is not sufficient to state a plausible Eighth Amendment claim 6 because Williams has not explained what Dias did or did not do that shows she acted with 7 deliberate indifference, that is, that she “kn[ew] of and disregard[ed] an excessive risk to 8 [his] health and safety.” Toguchi, 391 F.3d at 1057 (citation omitted). Moreover, there is 9 no constitutional right “to a particular classification status.” Hernandez v. Johnston, 833 10 F.2d 1316, 1318 (9th Cir. 1987). 11 In Count Six, Williams alleges Nares “was the deputy who was mostly running 12 module N2,” and he “knew everything that was going on in the module.” (Compl. at 11.) 13 Williams makes general allegations about not being able to shower and inmates making 14 alcohol in the module and states he submitted grievances about the wine making, inmates 15 getting drunk, and inmates using racial slurs against him. (Id. at 11–12.) But he makes no 16 specific allegations as to any actions Nares took or did not take that show Nares acted with 17 deliberate indifference—that he “kn[ew] of and disregard[ed] an excessive risk to [his] 18 health and safety.” Toguchi, 391 F.3d at 1057 (citation omitted). 19 Williams also alleges in Count Six that Domkuct “would sometimes be in [his 20 module] and [he] would tell her [he] need[ed] to shower,” to which she replied, “if you do 21 not shut up, I[’m] never going to let you show[er].” (Compl. at 12–13.) He asserts he 22 “never got to shower.” (Id. at 13.) But to state an Eighth Amendment claim for a denial 23 of basic necessities, Williams must allege: “(1) the defendant prison official’s conduct 24 deprived him . . . of the minimal civilized measure of life’s necessities and (2) that the 25 defendant acted with deliberate indifference to the prisoner’s health or safety.” Owens v. 26 27 28 1 McCament, No. 2:20-cv-2469-EFB P, 2021 WL 84400, at *2 (E.D. Cal. Jan. 11, 2021) 2 (citing Farmer, 511 U.S. at 834). “While the Ninth Circuit has not made any definitive 3 determination as to how many showers are required per week for inmates, it has certainly 4 not held that daily showers are required.” Hernandez v. Olmos, No. 1:11cv01495 LJO 5 DLB PC, 2013 WL 5718566, at *3 (E.D. Cal. Oct. 18, 2013), report and recommendation 6 adopted by 2013 WL 6230269 (E.D. Cal. Dec. 2, 2013); Ontiveros v. Eldridge, No. 2:19- 7 cv-2445 KJN P, 2020 WL 1853003, at *2 (E.D. Cal. Apr. 13, 2020). Williams’s Complaint 8 does not allege Domkuct personally denied him showers, only that she threatened to do so, 9 nor does it allege facts showing she acted with deliberate indifference. 10 Further, although particularly egregious verbal harassment “calculated to and . . . 11 caus[ing] [a prisoner] psychological damage” may be sufficient to state a claim for a 12 constitutional violation, Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended on 13 denial of reh’g, 135 F.3d 1318 (9th Cir. 1998), threats are not generally sufficient to state 14 an Eighth Amendment claim, see Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (stating 15 “it trivializes the [E]ighth [A]mendment to believe a threat constitutes a constitutional 16 wrong”). Likewise, “[v]erbal harassment or abuse . . . is not sufficient to state a 17 constitutional deprivation under 42 U.S.C. § 1983.” Oltarzewski v. Ruggiero, 830 F.2d 18 136, 139 (9th Cir. 1987), overruled in part on other grounds by Shakur v. Schriro, 514 19 F.3d 878, 884–85 (9th Cir. 2008). Williams does not state a plausible § 1983 claim then 20 against Defendant Domkuct. 21 As to Defendant Grace, who he names in Count Thirteen, Williams makes no 22 specific allegations regarding what actions Grace did or did not take that violated his Eighth 23 Amendment rights. (Compl. at 30–31.) He does, however, generally allege he wrote a 24 grievance about a Mexican gang “running” the dayroom and that the deputies told the shot 25 caller that Williams wrote a grievance about them, so the Mexican gang member started 26 coming to his door, sliding letters under his door, threatening him, calling him a “n ---er,” 27 and stating he was going to green light (kill) him. (Id. at 30.) 28 / / / 1 The Eighth Amendment requires prison officials to protect inmates from violence,” 2 Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020) (citing Farmer, 511 U.S. at 833), and 3 labeling a prisoner a “snitch” in the presence of other inmates is sufficient to state a claim 4 of deliberate indifference to an inmate’s safety, Valandingham v. Bojorquez, 866 F.2d 5 1135, 1139 (9th Cir. 1989). If a prisoner faces a substantial risk of serious harm, he need 6 not wait until he actually suffers an attack before asserting a deliberate indifference or 7 threat-to-safety claim. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (“That the Eighth 8 Amendment protects against future harm to inmates is not a novel proposition.”). Here, 9 however, Count Thirteen does not state an Eighth Amendment claim because Williams has 10 not set forth specific facts as to any individual defendant’s wrongdoing. He has alleged 11 only that unidentified VDF “deputies,” who are not named as Defendants, told Mexican 12 gang members about his grievances, resulting in threats to his life. (Compl. at 30.) He has 13 not alleged sufficient factual content to describe what any individual person he seeks to sue 14 did or did not do that violated the Constitution by failing to protect him against present or 15 future violence. See Iqbal, 556 U.S. at 676–77; Ewing, 588 F.3d at 1235. And without 16 any specific allegations against Defendant Grace, Williams has failed to state a plausible 17 § 1983 claim against her. 18 Finally, in Counts Twenty-One and Twenty-Three, Williams alleges Defendant Liu 19 made racist comments to him when he asked him to turn the television back on and for 20 Liu’s ARJIS number.6 (ECF No. 1-3 at 4; ECF No. 4 at 1–3.) As noted above, “[v]erbal 21 harassment or abuse . . . is not sufficient to state a constitutional deprivation under 42 22 U.S.C. § 1983.” Oltarzewski, 830 F.2d at 139. Williams thus does not state a plausible 23 § 1983 claim against Defendant Liu. 24 / / / 25 / / / 26
27 6 “ARJIS” stands for the Automated Regional Justice Information System. See ARJIS, 28 1 c. SDCJ Defendants Mace, Gonzales, Powell, Garcia Avenila, Unknown Deputy, Williams, and Hutchins 2 (Counts Eight, Nine, Ten, Thirteen, and Nineteen) 3 4 Williams also alleges Defendants Mace, Gonzales, Powell, Garcia Avenila, and an 5 unnamed deputy violated his Eighth Amendment rights while he was incarcerated at the 6 SDCJ. (Compl. at 27–29.) He alleges Mace came into his module and antagonized another 7 inmate by asking that inmate if he remembered “when [he] beat the f-ing brakes off [him].” 8 (Id. at 27.) Williams also claims Gonzales and Powell “would taunt [him] through the 9 speak[er] . . . all through the night.” (Id. at 28.) The actions Williams attributes to these 10 Defendants amount to, at most, “[v]erbal harassment or abuse . . . [which are] not sufficient 11 to state a constitutional deprivation under 42 U.S.C. § 1983.” Oltarzewski, 830 F.2d at 12 139. Williams therefore fails to state a plausible § 1983 claim against Defendants Mace, 13 Gonzales, and Powell. 14 As to Garcia Avenila and an unknown deputy, Williams claims they banged on his 15 cell wall all night and Garcia Avenila covered his name tag when he walked by Williams’s 16 cell. (Id. at 30.) The Ninth Circuit has found that under certain circumstances, noise levels 17 in prison may inflict pain without penological justification. See Keenan, 83 F.3d at 1090; 18 Deeds v. Aranas, No. 3:15-cv-00547-RCJ-VPC, 2017 WL 2661639, at *5 (D. Nev. June 19 20, 2017). But here, Plaintiff has not alleged that he incurred any harm as a result of his 20 exposure to the allegedly excessive noise that occurred during the one night Defendant 21 Garcia Avenila and the unknown deputy banged on the walls. See Deeds, 2017 WL 22 2661639, at *5. Williams therefore fails to state a plausible § 1983 claim against Defendant 23 Garcia Avenila and the unknown deputy. 24 Williams also alleges he asked Defendants Williams and Hutchins for toilet paper 25 and had to wait three hours before it was given to him. (ECF No. 1-3 at 1.) These 26 allegations do not state a plausible Eighth Amendment claim because the deprivation of 27 toilet paper was not sufficiently serious or lengthy. “[T]he Eighth Amendment prohibits 28 punishments which, although not physically barbarous, ‘involve the unnecessary and 1 wanton infliction of pain,’ or are grossly disproportionate to the severity of the crime.” 2 Rhodes v. Chapman, 452 U.S. 337, 346 (1981). (citation omitted) But to “the extent that 3 . . . conditions are [merely] restrictive [or] even harsh, they are part of the penalty that 4 criminal offenders pay for their offenses against society,” and do not offend Eighth 5 Amendment principals. Id. at 347. “[O]nly those deprivations denying ‘the minimal 6 civilized measure of life’s necessities’” like food, clothing, shelter, medical care, and safety 7 are “sufficiently grave to form the basis of an Eighth Amendment violation.” Hudson v. 8 McMillian, 503 U.S. 1, 9 (1992) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). 9 Allegations involving insufficient amounts of toilet paper or a short-term deprivation of 10 sanitary supplies such as toilet paper, on the other hand, “do not impinge on a 11 constitutionally protected basic human need and do not rise to the level of cruel and unusual 12 punishment.” Obataiye-Allah v. Gilbertson, No. 2:19-cv-00135-JR, 2019 WL 2303844, at 13 *2 (D. Or. May 29, 2019); see Lopez v. Cate, No. 1:10-cv-01773, 2013 WL 239097, at *8 14 (E.D. Cal. Jan. 22, 2013) (deprivation of toilet paper, a toothbrush, and tooth powder for 15 seven days does not violate the Eighth Amendment). 16 2. Due Process 17 “The Fourteenth Amendment’s Due Process Clause protects persons against 18 deprivations of life, liberty, or property; and those who seek to invoke its procedural 19 protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 20 U.S. 209, 221 (2005). Liberty interests protected by the Due Process Clause “will be 21 generally limited to freedom from restraint which . . . imposes atypical and significant 22 hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. 23 O’Connor, 515 U.S. 472, 484 (1995) (citations omitted), overruled in part on other 24 grounds by Edwards v. Balisok, 520 U.S. 641 (1997). If an inmate identifies a protected 25 liberty interest of which he is going to be deprived, due process requires: (1) twenty-four- 26 hour advanced written notice of the charges against him, (2) a written statement from the 27 factfinder which identifies the evidence relied on and the reasons for the action taken, (3) 28 an opportunity “to call witnesses and present documentary evidence in his defense when” 1 doing so “will not be unduly hazardous to institutional safety or correctional goals,” (4) 2 assistance at the hearing if he is illiterate or the matter is complex, and (5) a “sufficiently 3 impartial” factfinder. Wolff v. McDonnell, 418 U.S. 539, 564–71 (1974), holding limited 4 by Sandin, 515 U.S. at 485–86. 5 a. Defendants Garcia, Dias, and Nares 6 Williams alleges Garcia violated his due process rights when Garcia told him “he 7 would have classification move [him]” to the SDCJ so he could access the law library, but 8 the transfer did not occur. (Compl. at 9.) Although federal due process concerns may be 9 implicated if a prisoner alleges a dramatic departure from the standard conditions of 10 confinement, Sandin, 515 U.S. at 484–86, Williams has not done so here. There is no 11 “abstract, freestanding right to a law library,” Lewis v. Casey, 518 U.S. 343, 351 (1996), 12 nor “to a particular classification status.” Hernandez, 833 F.2d at 1318. Moreover, 13 Williams has not alleged any factual content describing what Garcia personally did or did 14 not do to violate his constitutional rights. See Iqbal, 556 U.S. at 676–77. Williams has 15 thus failed to state a plausible due process claim against Garcia. And as noted, see supra 16 p. 8 n.2, Williams’s due process claims against Defendants Dias and Nares are better 17 characterized as Eighth Amendment claims.7 18 b. Allegations Involving Ad-Seg 19 Williams appears to claim he was in Ad-Seg for almost a year “with no evaluations.” 20 (Compl. at 9–11.) A prisoner is entitled to certain due process protections when he is 21 charged with a disciplinary violation that “implicates a protected liberty interest in some 22 ‘unexpected matter’ or imposes an ‘atypical and significant hardship on the inmate in 23 relation to the ordinary incidents of prison life.’” Serrano v. Francis, 345 F.3d 1071, 1078 24
25 26 7 It is unclear to the Court whether Williams also seeks to bring a due process claim against Defendant Gonzales—Williams notes that Gonzales would turn the lights off while he was at his cell desk. 27 (Compl. at 28.) To the extent Williams contends this is a violation of due process, he has not alleged that this is a dramatic departure from the standard conditions of confinement sufficient to establish a liberty 28 1 (9th Cir. 2003) (quoting Sandin, 515 U.S. at 484). If the prisoner alleges facts sufficient to 2 show a protected liberty interest or a sufficiently significant hardship, courts must next 3 consider “whether the procedures used to deprive that liberty satisfied Due Process.” 4 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 5 Even assuming Williams has alleged facts sufficient to invoke a protected liberty 6 interest under Sandin since he was in Ad-Seg for almost a year without further evaluations, 7 he has not pled facts sufficient to plausibly show he was denied the procedural protections 8 the Due Process Clause requires. See Iqbal, 556 U.S. at 678; Ramirez, 334 F.3d at 860; 9 see also Brown v. Or. Dep’t of Corr., 751 F.3d 983, 987 (9th Cir. 2014). As previously 10 noted, those procedures include: (1) written notice of the charges at least twenty-four hours 11 before the disciplinary hearing; (2) a written statement by the fact-finder of the evidence 12 relied on and reasons for the disciplinary action; (3) the right to call witnesses and present 13 documentary evidence if doing so will not jeopardize institutional safety or correctional 14 goals; (4) the right to appear before an impartial body; and (5) assistance from fellow 15 inmates or prison staff in complex cases. See Wolff, 418 U.S. at 563–71; Serrano, 345 F.3d 16 at 1079–80. Williams has not alleged facts to show that he was deprived of any of the 17 Wolff procedures by any of the Defendants. Accordingly, this claim requires sua sponte 18 dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 19 3. Defendants San Diego Sheriff’s Department; San Diego Central Jail; Sheriff’s Department Mental Health and Jails; San Diego 20 Classification; San Diego Internal Affairs; and Sheriff’s 21 Department Commissary (Counts Seven, Eleven, Fourteen, Eighteen, Twenty, Twenty-Two, and Twenty-Six) 22
23 The San Diego County Sheriff’s Department and its subdivisions, including the San 24 Diego Central Jail, “Sheriff’s Department Mental Health and Jails,” “San Diego 25 Classification,” “San Diego Internal Affairs,” and “S.D. Commissary,” (see Compl. at 4– 26 5, 13–19; ECF 1-3 at 2–3; ECF No. 4 at 1), are managed by and/or are departments of the 27 County of San Diego and are subject to suit as “persons” under § 1983. Duarte v. City of 28 Stockton, 60 F.4th 566, 573 (9th Cir. 2023). However, “a local government [and its 1 entities] may not be sued under § 1983 for an injury inflicted solely by its employees or 2 agents.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). To bring a § 1983 3 claim against these Defendants, Williams must plead that the municipality’s policy or 4 custom caused a violation of his constitutional rights. See id. Specifically, he must allege 5 that “(1) he was deprived of a constitutional right; (2) the municipality had a policy; (3) the 6 policy amounted to deliberate indifference to [his] constitutional right; and (4) the policy 7 was the moving force behind the constitutional violation.” Lockett v. County of Los 8 Angeles, 977 F.3d 737, 741 (9th Cir. 2020). 9 In Counts Seven and Fourteen, Williams alleges he was undergoing mental health 10 treatment for PTSD and other mental health issues when he was transferred from prison to 11 SDCJ and then GBDF. (Compl. at 13–19.) He claims he received no mental health 12 evaluations or services while at VDF, SDCJ, or GBDF, despite his suicide attempt on 13 August 25, 2021. (Id. at 13–15.) He explains that the suicide attempt resulted from the 14 conditions at GBDF, and that he wrote many grievances to the mental health department 15 about this lack of mental health care and the mental health issues he was having while 16 housed in a thirty-person dorm at GBDF, which went unanswered. (Id.) He further alleges 17 the San Diego Sheriff’s Department, the Department’s mental health division, and the San 18 Diego Central Jail do not respond to grievances and that sheriff’s deputies frequently throw 19 grievances away. (Compl. at 32; ECF No. 1-3 at 2.) He claims inmates were given dirty 20 razors, his disability checks have stopped being deposited into his trust account, he is in 21 “lockup” twenty-three to twenty-four hours per day, and he has no access to haircuts, nail 22 clippers or yard time. (Compl. at 15, 17–19.) 23 In Count Eighteen, he claims his attorney’s phone number was blocked by the jail. 24 (ECF No. 1-3 at 1.) In Count Twenty-Two, he alleges the San Diego jails are not following 25 Title 15, Division 3 of the California Code of Regulations, which governs, in part, 26 prisoner’s health care and health care grievances, and that they are making up their own 27 rules. (Id. 4); see Cal. Code Regs. tit. 15, §§ 3087–3087.12. In Count Twenty-Six, he 28 claims the Sheriff’s Department Commissary is price gouging. (ECF No. 4 at 1, 21.) 1 Finally, according to Williams, he was being treated for stage four melanoma while he was 2 in prison, undergoing chemotherapy and radiation treatment there. (ECF No. 1-3 at 2–3.) 3 He alleges he had a dermatology appointment at the University of California, San Diego 4 Medical Center and was prescribed medication for the condition on January 23, 2023, but 5 has not received the medication while incarcerated and has received no follow-up medical 6 care. (Id.) 7 “[A] custom or practice can be inferred from widespread practices or evidence of 8 repeated constitutional violations for which the errant municipal officers were not 9 discharged or reprimanded.” Hunter v. County of Sacramento, 652 F.3d 1225, 1233 (9th 10 Cir. 2011) (internal quotation marks and citation omitted). “Allegations of Monell liability 11 will be sufficient for purposes of Rule 12(b)(6) where they: (1) identify the challenged 12 policy/custom; (2) explain how the policy/custom is deficient; (3) explain how the 13 policy/custom caused the plaintiff harm; and (4) reflect how the policy/custom amounted 14 to deliberate indifference, i.e. show how the deficiency involved was obvious and the 15 constitutional injury was likely to occur.” McDaniel v. Diaz, No. 1:20-cv-00856-NONE- 16 SAB, 2020 WL 7425348, at *22 (E.D. Cal. Dec. 19, 2020) (citation omitted). Williams 17 does not claim San Diego County has a policy or custom of denying prisoners medical and 18 mental health care, ignoring grievances, refusing to deposit disability checks, blocking 19 attorneys’ phone numbers, or denying prisoners access to haircuts, nail clippers, and yard 20 time. Nor has he pled sufficient facts to plausibly allege San Diego County has any such 21 custom or practice because he has not identified any specific acts by any individual 22 defendant that violated his constitutional rights. Accordingly, he has failed to state a claim 23 against the San Diego Sheriff’s Department and its various entities. 24 4. Defendants San Diego Jail Deputies and Sgt. Chateigne (Counts Twenty-Four and Twenty-Five) 25
26 Williams further alleges unnamed “San Diego Jail Deputies” violated his rights 27 under the Health Insurance Portability and Accountability Act (“HIPAA”) when they sat 28 in on his mental health sessions. (ECF No. 4 at 1, 5.) Williams fails to state a plausible 1 § 1983 claim, though, for two reasons: (1) he has not identified any particular individual 2 deputies he is accusing of misconduct and (2) he has alleged no federal constitutional 3 violation or that he was deprived of a right secured by a federal law. See Iqbal, 556 U.S. 4 at 676–77; Tsao, 698 F.3d at 1138 (“To establish § 1983 liability, a plaintiff must show 5 both (1) deprivation of a right secured by the Constitution and laws of the United States, 6 and (2) that the deprivation was committed by a person acting under color of state law.” 7 (citation omitted)); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A plaintiff 8 must allege facts, not simply conclusions, that show that [each defendant] was personally 9 involved in the deprivation of his civil rights.”). Williams has not alleged a federal 10 constitutional violation by the unnamed deputies. Further, “HIPAA itself provides no 11 private right of action.” Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (quoting 12 Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007)); Spearman 13 v. Sacramento County, No. 2:21-cv-01289-JDP (PC), 2022 WL 1104230, at *1 (E.D. Cal. 14 Apr. 13, 2022). 15 Williams also alleges Sgt. Chateigne violated his due process and Eighth 16 Amendment rights by “covering for deputies who are very disrespectful” and by “not 17 holding [them] accountable when writing grievances, making a judgment before reading 18 the grievance, [and by] lying [and] changing [the] story.” (ECF No. 4 at 1, 7.) But 19 Williams has not stated a plausible § 1983 claim against Chateigne because “[a]n allegation 20 that a prison official inappropriately denied or failed to adequately respond to a grievance, 21 without more, does not state a claim under § 1983.” Evans v. Skolnik, 637 F. App’x 285, 22 288 (9th Cir. 2015) (citing Ramirez, 334 F.3d at 860). Prisoners do not have a “separate 23 constitutional entitlement to a specific prison grievance procedure.” Ramirez, 334 F.3d at 24 860. 25 5. Defendants Deputy Saska and Unnamed Sergeant 26 Williams names SDCJ Deputy Saska and an unnamed Sergeant as Defendants, (see 27 Compl. at 2, 4), but nowhere in the body of his Complaint does he explain what actions 28 Saska or the unnamed Sergeant took or failed to take that violated his constitutional rights. 1 An official can only be liable in a § 1983 action for his or her own misconduct. See Iqbal, 2 556 U.S. at 677. “A plaintiff must allege facts, not simply conclusions, that show that 3 [each defendant] was personally involved in the deprivation of his civil rights.” Barren, 4 152 F.3d at 1194; see also Estate of Brooks, 197 F.3d at 1248 (“Causation is, of course, a 5 required element of a § 1983 claim.”). In order to plead a viable § 1983 claim, Williams 6 must “plead[] factual content that allows the court to draw the reasonable inference that the 7 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. He has not done 8 so here. The Complaint contains no factual allegations with respect to Saska or the 9 unnamed Sergeant. Accordingly, Williams has failed to state a plausible § 1983 as to those 10 two Defendants. 11 III. Motion for Appointment of Counsel 12 Williams has also asked this Court to appoint counsel. (See ECF No. 2.) There is 13 no constitutional right to counsel in a civil case and the decision to appoint counsel under 14 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial court and is granted only 15 in exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th 16 Cir. 2004) (citation omitted); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) 17 (noting that only “exceptional circumstances” support such a discretionary appointment). 18 Exceptional circumstances exist where there is a showing of both a likelihood of success 19 on the merits and an inability of the pro se litigant to articulate his claims in light of their 20 legal complexity. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 21 Williams’s Complaint demonstrates that while not formally trained in law he is 22 capable of legibly articulating the facts and circumstances relevant to his claims. Because 23 Defendants have yet to respond to the Complaint, a determination regarding the likelihood 24 of success on the merits or Williams’s ability to prosecute this matter is premature. Indeed, 25 the Court has determined at this juncture that he has not stated a plausible § 1983 claim 26 against any Defendant. Exceptional circumstances warranting appointment of counsel do 27 not exist at this time. See Agyeman, 390 F.3d at 1103. The Court therefore DENIES 28 / / / 1 Williams’s request for appointment of counsel without prejudice to him renewing the 2 request if he wishes to do so at a later stage of these proceedings. 3 IV. Conclusion and Order 4 Based on the foregoing, the Court: 5 1) DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 2); 6 2) GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 3); 7 3) ORDERS the Secretary of the CDCR, or his designee, to collect from 8 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 9 payments from the account in an amount equal to twenty percent (20%) of the preceding 10 month’s income and to forward payments to the Clerk of the Court each time the amount 11 in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 12 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 13 THIS ACTION; 14 4) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 15 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 16 P.O. Box 942883, Sacramento, California, 94283-0001, or in the alternative by forwarding 17 an electronic copy to trusthelpdesk@cdcr.ca.gov; 18 5) DISMISSES Plaintiff’s Complaint as to all Defendants for failing to state a 19 claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 20 § 1915A(b)(1); and 21 6) GRANTS Plaintiff forty-five (45) days from the date of this Order to file an 22 Amended Complaint correcting all the deficiencies of the pleading identified by the Court 23 in this Order. Plaintiff is advised that his Amended Complaint must be complete in itself 24 without reference to his original Complaint. Defendants not named and any claims not re- 25 alleged in the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; 26 Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) 27 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 28 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 1 re-alleged in an amended pleading may be considered waived if not repled). Plaintiffs 2 || Amended Complaint must be entitled as his “First Amended Complaint,” contain Civil 3 || Case No. 23-cv-0241-TWR-DDL in its caption, and comply both with Federal Rule of 4 || Civil Procedure 8 and Local Civil Rule 8.2.a. 5 In order to assist Plaintiff in complying with these requirements, the Court further 6 || DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of a form 7 Complaint under the Civil Rights Act, 42 U.S.C. § 1983, for his use. 8 IT IS SO ORDERED. 9 Dated: May 9, 2023 —_—— (59) 1Q bre 11 Honorable Todd W. Robinson D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 oo