1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GERALD J. WILSON, Case No.: 24-cv-1079-MMA-AHG CDCR #B-93800 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILURE TO STATE A CLAIM 14 PURSUANT TO 28 U.S.C. 15 JEFF MACOMBER, et al., §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) 16 Defendants.
17 18 19 20 21 22 INTRODUCTION 23 Gerald Wilson (“Plaintiff” or “Wilson”), an inmate currently confined at R.J. 24 Donovan Correctional Facility (“RJD”) is proceeding pro se with a civil rights action 25 pursuant to 42 U.S.C. § 1983. This Court dismissed Plaintiff’s original complaint for 26 failure to state a claim and granted Plaintiff leave to amend. Doc. No. 4. After an extension 27 of time, Wilson filed a First Amended Complaint (“FAC”). Doc. No. 7. For following 28 reasons, the Court DISMISSES the FAC for failure to state a claim. 1 SCREENING PURSUANT TO 28 U.S.C. § 1915(e) AND § 1915A(b) 2 A. Legal Standard 3 As with his original complaint, because Plaintiff is proceeding IFP, the Court must 4 screen the FAC and sua sponte dismiss it to the extent that it is frivolous, malicious, fails 5 to state a claim, or seeks damages from defendants who are immune. See 28 U.S.C. §§ 6 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en 7 banc). “The standard for determining whether Plaintiff has failed to state a claim upon 8 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 9 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 10 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 11 2012). Rule 12(b)(6) requires that a complaint to “contain sufficient factual matter . . . to 12 state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009) (internal quotation marks omitted). While detailed factual allegations are not 14 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice” to state a claim. Id. The “mere possibility of 16 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short 17 of meeting this plausibility standard. Id. 18 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation 19 of a right secured by the Constitution and laws of the United States, and (2) that the 20 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 21 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 22 B. Plaintiff’s Allegations 23 Wilson alleges that on June 20, 2022, he was transferred to RJD from California 24 State Prison, Los Angeles County (“LAC”) to attend court proceedings. FAC ¶ 24. When 25 those proceedings concluded on July 18, 2022, RJD officials failed to transfer him back to 26 LAC. Id. ¶ 25. At some point, Plaintiff filed a grievance about the matter. Id. ¶ 26. 27 Thereafter, he sent “notice” to Hill and Macomber “concerning the misconduct of [their] 28 employees” in refusing to transfer him back to LAC. Id. ¶¶ 27, 28. 1 On August 16, 2023, Wilson was assigned a job as “chapel clerk/porter.” Id. ¶ 30. 2 On September 2, 2023, Wilson had a disagreement with Defendant Randy, an RJD chapel 3 volunteer, about whether inmates should be permitted in the chapel clerk “office.” Id. ¶¶ 4 30–33. Randy got upset with Wilson and told him to report to the chapel the next morning 5 to “mop the floors.” Id. ¶ 34. Plaintiff told Randy that he had a physical disability the 6 required him to use a “walker with a seat” to “get around.” Id. Randy responded, “You 7 are one of those people.” Id. On November 12, 2023, Wilson reported to work at the 8 chapel and Randy told Wilson that “he was given the authority to remove [Wilson] from 9 being the clerk because [he] cannot do the job assignment without his [walker].” Id. 10 Wilson filed a grievance about the situation that same day. Id. He filed another grievance 11 on December 21, 2023. Id. ¶ 36. Ultimately, Wilson was relieved of his job as chapel clerk 12 and was “replaced with a white clerk.” Id. ¶ 35. He was given another job as an “ADA 13 worker,” but with lower pay. Id. ¶ 37. 14 On January 16, 2024, Defendant Rivers came to Plaintiff’s cell and told him he was 15 “conducting a random threat assessment.” Id. ¶ 39. Wilson refused to answer Rivers’ 16 questions. Id. ¶ 38–39. Shortly thereafter, Wilson noticed the tablet he uses for “phone 17 messaging [and] movies” was “suspended for 30 days.” Id. ¶ 39. The tablet is provided to 18 RJD inmates by Global Tel Link (“GTL”). Wilson alleges Rivers was responsible for 19 deactivating the tablet “in retaliation” for Wilson’s refusal to answer the threat assessment 20 questions. Id. ¶ 40. Plaintiff filed a grievance about the matter. Id. ¶ 41. At some point, 21 Wilson learned Rivers had accused him of allowing another inmate to use is tablet, in 22 violation of prison rules. Wilson states this allegation was false and raised only as a 23 “pretext” for Rivers’ retaliation. Id. ¶ 42, 44. He also alleges GTL also conspired with 24 Rivers to deprive him of the use of his tablet. Id. ¶ 45. During the suspension of his tablet 25 privileges, Wilson was unable to communicate with family and friends outside the prison. 26 Id. ¶¶ 40, 44. 27 Wilson is a “qualified individual with a disability.” Id. ¶ 46. Among other things, 28 he experiences from urinary incontinence during sleep, which necessitates he take morning 1 showers. Id. On February 9, 2023, Defendant Salazar refused to allow Wilson to take a 2 morning incontinence shower because Wilson did not have a “blue bag”1 to turn in. Id. 3 ¶¶ 47, 51, 59. As a result, Wilson had to wait until 2:00 p.m. to take a shower that day. Id. 4 ¶ 51. Plaintiff filed a grievance about the issue. At some point, Salazar also told Defendant 5 Balladare “not to let Plaintiff out to take an incontinence shower.” Id. ¶ 53. Other 6 correctional officers, including Defendants Castro, Moreno and Guckdrier, told Plaintiff 7 that his “incontinence shower chrono” had been “discontinued.” Id. ¶ 61, 63. On June 14, 8 2024, however, Wilson was given the choice to either take his incontinence shower when 9 his tier is released for morning breakfast or to go to morning breakfast first and take his 10 incontinence shower after. Id. ¶ 68. Wilson states these options are unworkable because 11 if he takes a shower before breakfast, he does not have time to make it to the dining hall 12 before the end of breakfast. And waiting until after breakfast to shower would force him to 13 go to breakfast “smell[ing] of urine.” Id. As a result of this “Catch-22,” Plaintiff has 14 missed numerous meals and lost 21 pounds over the course of six months. Id. ¶¶ 68–69. 15 C. Discussion 16 In his FAC, Plaintiff names fifteen defendants: James Macomber, James Hill, M. 17 Colnier, J. Salazar, Guckdrier, Amy Campbell, Randy, Rivers, Castro, Moreno, Balladare, 18 Alexander, Bracamonte, Global Tel Link (“GTL”) and Torres. FAC ¶¶ 8–21. Under the 19 heading in his FAC labeled, “Cause of Action,” Wilson lists only “conspiracy.” Id. ¶ 5. 20 However, throughout the FAC Wilson also makes references to violations of the Due 21 Process Clause, the Equal Protection Clause, the First Amendment, and the Eighth 22 Amendment. He also appears to allege violations of his rights under the Americans with 23 Disabilities Act (“ADA) and Rehabilitation Act (“RA”) Id. at ¶ 23. He seeks money 24 damages and an injunction and injunctive relief. Id. at pp. 37–38. 25 Plaintiff raises several legal claims related to four general issues he has regarding 26
27 1 While Plaintiff does not elaborate on the meaning of “blue bag,” it appears to be a reference to a 28 1 the conditions of his confinement at RJD, which the Court will discuss in turn: (1) the 2 denial of his transfer to another prison; (2) his work assignment; (3) the suspension of his 3 tablet privileges, and (4) his access to incontinence showers. 4 1. Failure to Transfer 5 As he did in in his original complaint, Wilson again alleges he was transferred to 6 RJD from LAC for an “out-to-court proceeding” and when those proceedings ended, 7 Defendants Hill and Macomber failed to transfer him back to LAC. FAC ¶¶ 24–29. He 8 alleges Hill and Macomber violated his right to due process, equal protection and to be free 9 from retaliation. Id. 10 a. Due Process 11 As discussed in the Court’s previous screening order, decisions regarding prison 12 transfers do not implicate a liberty interest, and thus does not implicate the due process 13 clause Meachum v. Fano, 427 U.S. 215, 224–25 (1976) (“Neither, in our view, does the 14 Due Process Clause in and of itself protect a duly convicted prisoner against transfer from 15 one institution to another within the state prison system.”); see also Olim v. Wakinekona, 16 461 U.S. 238, 247 (1983). Nor does the fact that Plaintiff is now confined at a prison 17 farther away from his family implicate any constitutional interest. See Anderson v. Deleon, 18 2013 WL 892276, at *5 (N.D. Cal. 2013) (“Loss of a prison job, assigning an inmate to a 19 prison far from his family and friends, and the like, which result from interprison transfers, 20 are not constitutionally protected interests.”) (citing Olim, 461 U.S. at 247). Therefore, 21 Wilson has failed to state a due process claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 22 1915A(b)(1). 23 b. Equal Protection 24 Wilson alleges he was denied the transfer in violation of his right to equal protection. 25 FAC ¶ 29. “The Equal Protection Clause of the Fourteenth Amendment commands that 26 no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ 27 which is essentially a direction that all persons similarly situated should be treated alike.” 28 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. 1 Doe, 457 U.S. 202, 216, (1982)). A plaintiff alleging denial of equal protection § 1983 2 must plead intentional unlawful discrimination or allege facts that are at least susceptible 3 of an inference of discriminatory intent. See Monteiro v. Tempe Union High School Dist., 4 158 F.3d 1022, 1026 (9th Cir. 1998). 5 Wilson has failed to state a claim. “[A] nonconsensual [prison] transfer is not per se 6 violative of . . . equal protection rights.” Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 7 1991). And while Wilson alleges he was treated differently than “other similarly situated 8 persons,” FAC ¶ 29, he fails to identify any such individuals or explain how they were 9 treated differently. See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (rejecting 10 equal protection claim where inmate failed to show that he was treated differently than any 11 other inmates in the relevant class). Moreover, Wilson offers no facts suggesting he was 12 intentionally discriminated against by any defendant. In short, Plaintiff’s conclusory 13 allegations are insufficient to state an equal protection claim. See Moss v. U.S. Secret Serv., 14 572 F.3d 962, 969 (9th Cir. 2009) (holding that a “bald allegation” of discriminatory, 15 “impermissible motive” on the defendants’ part “standing alone, is conclusory and is 16 therefore not entitled to an assumption of truth”). Therefore, Wilson’s has failed to state an 17 equal protection claim based on the denial of his prison transfer. See 28 U.S.C. §§ 18 1915(e)(2)(B)(ii), 1915A(b)(1). 19 c. Retaliation 20 Wilson alleges Hill and Macomber violated his First Amendment right to be free 21 from retaliation. FAC ¶¶ 27, 28. “Within the prison context, a viable claim of First 22 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 23 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, 24 and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 25 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 26 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). 27 Here, Plaintiff alleges he sent “notice” to Hill and Macomber after their “employees” 28 failed to transfer him back to LAC and neither stepped in to rectify the situation. FAC ¶¶ 1 27, 28. To the extent Wilson alleges that Hill and Macomber (as RJD Warden and CDCR 2 Secretary, respectively) are liable for retaliation merely because they are supervisors, and 3 later learned of later learned of alleged retaliation by subordinates, he fails to state a claim. 4 Cf. Ashcroft, 556 U.S. at 677 (holding a supervisor’s “mere knowledge” of a subordinate’s 5 alleged unconstitutional conduct is insufficient to state a claim). Each defendant must be 6 aware of the protected conduct and that conduct must give them a retaliatory motive that 7 causes the chilling adverse conduct. Id. And here, Wilson alleges only that, at some 8 unspecified time after his transfer was originally denied, he sent “actual notice” to Hill and 9 Macomber about the “unwillingness” of their employees to transfer him back to LAC. 10 FAC ¶¶ 27, 28. He does not indicate either Hill or Macomber were aware of any protected 11 conduct or personally involved in the decision not to transfer him to LAC.2 Therefore, 12 Plaintiff has failed to state a First Amendment retaliation claim against Hill and Macomber 13 based on the failure to transfer him back to LAC. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 14 1915A(b)(1). 15 2. Work Assignment 16 Wilson alleges he was improperly removed from his work assignment as a “chapel 17 clerk porter” in violation of his right to due process, equal protection, the First Amendment 18 and in violation of the Americans with Disabilities Act (“ADA”) and the Rehabilitation 19 Act (“RA”). FAC ¶¶ 30–37. 20 a. Due Process 21 Wilson fails to state a due process claim because inmates do not have a constitutional 22 right to a particular job assignment. Flittie v. Solem, 827 F.2d 276, 279 (8th Cir. 1987) 23 (citing Lyon v. Farrier, 727 F.2d 766 (8th Cir. 1984); Peck v. Hoff, 660 F.2d 371 (8th Cir. 24 1981); see also Walker v. Gomez, 101 F. App’x 200, 203 (9th Cir. 2004) (“There is no 25 constitutional right to a work assignment.”). 26
27 2 In his original complaint, Wilson stated the ultimate decision to retain him at RJD was made by the Unit 28 1 b. Equal Protection 2 Plaintiff alleges he was relieved of his job as a clerk in violation of his right to equal 3 protection. He appears to assert that he was removed from his job both because of his race 4 and his disability. See FAC ¶¶ 30, 33. As discussed above, to state an equal protection 5 claim, Plaintiff must allege facts sufficient to show that prison officials intentionally 6 discriminated against him based on his membership in a protected class, Hartmann v. Cal. 7 Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013), or that similarly situated 8 inmates were treated differently without a legitimate penological purpose. Here, Wilson 9 states he was the “first Black chapel clerk” and he was “replaced by a white clerk.” FAC 10 ¶ 33. But this is insufficient to show he was removed from his position because of his 11 membership in a protected class. In addition, as discussed in this Court’s previous 12 screening order, “the disabled do not constitute a suspect class for equal protection 13 purposes.” Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001). In sum, Wilson’s 14 conclusory allegations are insufficient to show he was intentionally singled out for 15 disparate treatment by any defendant. See Moss, 572 F.3d at 969 (holding that a “bald 16 allegation” of discriminatory, “impermissible motive” on the defendants’ part “standing 17 alone, is conclusory and is therefore not entitled to an assumption of truth”). Therefore, 18 Wilson has failed to state an equal protection claim stemming from his job reassignment. 19 See Iqbal, 556 U.S. at 678; 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 20 c. Retaliation 21 Wilson has failed to state a retaliation claim against Defendant Randy, whom Wilson 22 states is an RJD chapel “volunteer.”3 Plaintiff states that on September 2, 2023, he had a 23
24 25 3 Generally, “conduct by private actors is not state action.” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011). Private parties, however, may be held liable for alleged violations 26 of rights under the United States Constitution under 42 U.S.C. § 1983 when “the party charged with the deprivation [of a federal right is] a person who may fairly be said to be a state actor. This may be because 27 he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 28 1 disagreement with Randy about allowing inmates into the chapel clerk’s office. FAC ¶¶ 2 30–33. He alleges that on November 12, 2023, Randy told Wilson he was relieved of his 3 job assignment because he could “not do the job assignment without his [walker].”4 Id. ¶ 4 34. “On the same date,” Wilson filed a grievance against Randy. Id. 5 Wilson has failed to allege any facts to show Randy relieved him of his job because 6 he engaged in “protected conduct.” Loftis v. Montes, 2019 WL 3806388, at *3 (C.D. Cal. 7 2019) (citing Bell v. Wolfish, 441 U.S. 520, 545 (1979)); (“In the prison context, not all 8 speech is protected speech.” A mere disagreement about access to the chapel clerk’s office 9 is not protected conduct. See id. (concluding “verbal challenge” to correctional officer is 10 not protected speech); see also Quezada v. Herrera, 2012 WL 1076130, at *4 (E.D. Cal. 11 2012) (complaining that inmates had to wear hairnets not protected speech); Ruiz v. Cal. 12 Dept. of Corr., 2008 WL 1827637, at *2 (C.D. Cal. 2008) (prisoner’s comments expressing 13 dissatisfaction about matters of personal concern to inmate was not a matter of public 14 concern protected by the Free Speech Clause); Whitfield v. Snyder, 263 F. App’x 518 (7th 15 Cir. 2008) (prisoner’s complaint about prison job involved matters of personal, rather than 16 public, concern and did not qualify as protected speech). 17 Moreover, even presuming protected conduct, Plaintiff has failed to plausibly allege 18 such conduct was a “substantial” or “motivating” factor behind the decision to relieve 19 Wilson from his job as chapel clerk. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 20 2009). Timing alone is not sufficient to demonstrate causation. Pratt v. Rowland, 65 F.3d 21 802, 808 (9th Cir. 1995). And “[m]ere speculation that defendants acted out of retaliation 22 is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). Nor has Wilson met 23
24 25 4 The Court notes that in his original complaint, Wilson asserted he was relieved of his job as chapel clerk 26 on January 4, 2024 by Campbell, the RJD chaplain. Doc. No. 1 at 26. Plaintiff is cautioned that while an amended complaint generally supersedes a prior complaint, Lacey v. Maricopa County, 693 F.3d 896, 927 27 (9th Cir. 2012) (en banc), a plaintiff “cannot amend pleadings to directly contradic[t] an earlier assertion made in the same proceeding.” Airs Aromatics, LLC v. Victoria’s Secret Stores Brand Mgmt, Inc., 744 28 1 his burden to allege a lack of penological interest. See Watison, 668 F.3d at 1114 (“[I]n 2 addition to a retaliatory motive, that the defendant’s actions were arbitrary and capricious, 3 or that they were unnecessary to the maintenance of order in the institution.”). And finally, 4 Wilson has not alleged the adverse action “would chill or silence a person of ordinary 5 firmness from future First Amendment activities.) See id. Therefore, Plaintiff has failed to 6 state a First Amendment retaliation claim against Randy. See 28 U.S.C. §§ 7 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678. 8 d. ADA and RA 9 Next, to the extent Plaintiff seeks to allege his removal from his job as chapel clerk 10 violated the ADA and RA, he also fails to state a claim. To state a claim under Title II of 11 the ADA, a plaintiff must allege: “(1) he is an individual with a disability; (2) he is 12 otherwise qualified to participate in or receive the benefit of some public entity’s services, 13 programs, or activities; (3) he was either excluded from participation in or denied the 14 benefits of the public entity’s services, programs, or activities, or was otherwise 15 discriminated against by the public entity; and (4) such exclusion, denial of benefits, or 16 discrimination was by reason of [his] disability.” Guinn v. Lovelock Correctional Center, 17 502 F.3d 1056, 1060 (9th Cir. 2007) (internal quotations omitted). To state a claim under 18 Section 504 of RA, a plaintiff must allege he or she was: (1) an individual with a disability; 19 (2) otherwise qualified to receive the benefit; (3) denied the benefits of the program solely 20 by reason of his or her disability; and (4) the program receives federal financial assistance. 21 Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Because of the similarities 22 between the laws and remedies available, a complaint that properly states a claim under 23 Title II of the ADA also states a claim under Section 504 of the RA. Zukle v. Regents of 24 the Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999). 25 Here, Wilson has failed to state an ADA and/or RA claim against Randy. A plaintiff 26 cannot assert a § 1983 claim against a defendant in their individual capacity to vindicate 27 rights created by the ADA and the RA. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th 28 Cir. 2002). And as discussed in this Court’s previous screening order, the proper defendant 1 for a claim under Title II of the ADA and § 504 of the RA is the public entity responsible 2 for the alleged discrimination. See Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009) 3 (collecting cases); Peace v. 850 Bryant St., 2019 WL 5423473, at *3 (N.D. Cal. 2019). 4 State correctional facilities are “public entities.” See 42 U.S.C. § 12131(1)(A) & (B); Pa. 5 Dep’t. of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Thus, Plaintiff has failed to state a 6 claim against Randy under the ADA and/or RA. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 7 1915A(b)(1); see also Vinson, 288 F.3d at 1156. 8 3. Tablet Restriction 9 Wilson alleges his First Amendment rights were violated when he was temporarily 10 prohibited from using his tablet5 for communicating with individuals outside the prison. 11 FAC ¶¶ 38, 39. Specifically, he states that Defendants Rivers and GTL (the vendor that 12 provides his tablet), conspired to violate his First Amendment rights to “access to courts” 13 and “freedom of association of family and friends,” in retaliation for his “refusal to answer 14 questions” related to a “random threat assessment. Id. ¶ 38. He also appears to allege 15 Rivers suspended his tablet usage for allowing another inmate to use his tablet, a rule 16 violation which Wilson alleges was false. Id. ¶ 42. 17 a. Access to Courts and Freedom of Association 18 First, Wilson has not alleged an access to courts claim. To state a claim for any 19 violation of the right of access to the courts, a prisoner must plausibly allege an inadequacy 20 in the prison’s legal access program that caused him an actual injury. See Casey v. Lewis, 21 518 U.S. 343, 349–51 (1996). To prove an actual injury, a prisoner must show that the 22 inadequacy in the prison’s program hindered his efforts to pursue a non-frivolous claim 23 concerning his conviction or conditions of confinement. See id. at 351, 354–55. Here, 24 Wilson has failed to allege inadequate legal access. And even assuming he had, he has not 25 26
27 5 Wilson states he uses the tablet for “phone, messaging, [and] movies.” FAC ¶ 39. 28 1 shown that he was prevented from pursuing a non-frivolous claim because of the temporary 2 suspension of his tablet privileges. Therefore, he has not stated an access to courts claim. 3 Second, Wilson has failed to state a “freedom of association” claim. Wilson has not 4 alleged he was prevented from having visitation with outside individuals. Moreover, the 5 Supreme Court has observed that “[a]n inmate does not retain rights inconsistent with 6 proper incarceration,” and that “freedom of association is among the rights least compatible 7 with incarceration.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (emphasis added); see 8 also Dunn v. Castro, 621 F.3d 1196, 1202 (9th Cir. 2010). And “[w]hile prisoners 9 generally have “right to communicate with persons outside prison walls, Valdez v. 10 Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002), this right does not require use of a prison- 11 issued tablet.” Poslof v. Arce, 2025 WL 786356, at *12 (N.D. Cal. 2025). The “loss of 12 telephone privileges does not constitute a constitutional violation given the availability of 13 alternative means of communication by mail or in person.” Bryant v. Cortez, 536 F. Supp. 14 2d 1160, 1167 (C.D. Cal. 2008) (citing Overton, 539 U.S. at 135); see also Williams v. ICC 15 Committee, 812 F. Supp. 1029, 1034 (N.D. Cal. 1992) (“This court is aware of no authority 16 to support a claim of constitutional violation due to the deprivation of telephone access for 17 convicted prisoners.”); see also Anello v. Williams, 2012 WL 2522280, at *12 (D. Or. 18 2012) (“[A]n inmate’s ability to communicate with the outside world is not 19 unconstitutionally restricted where prison officials restricted an inmate from making 20 nonemergency calls.”). Moreover, courts have found the temporary suspension of phone 21 privileges related to disciplinary action does not violate the First Amendment. See Osborne 22 v. Clark Cnty. Sheriff’s Off., 2017 WL 6558665, at *3 (W.D. Wash. 2017); see also Cox v. 23 Ashcroft, 603 F. Supp. 2d 1261, 1270 (E.D. Cal. 2009) (holding “[a] 30-day suspension of 24 telephone privileges related to disciplinary action does not amount to a First Amendment 25 violation”). 26 Finally, to the extent Wilson appears to allege he had no alternative means of 27 communicating with outside individuals because he is indigent and thus unable afford 28 1 placing a traditional telephone call from prison or sending mail via the postal service, the 2 Ninth Circuit has stated, “[t]here is no authority for the proposition that prisoners are 3 entitled to a specific rate for their telephone calls and the complaint alleges no facts from 4 which one could conclude that the rate charged is so exorbitant as to deprive prisoners of 5 phone access altogether.” Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000). 6 In sum, Plaintiff has failed to state a First Amendment claim based on denial of 7 access to courts denial or freedom of association. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 8 1915A(b)(1). 9 b. Retaliation 10 Wilson also claims Rivers violated his First Amendment rights by suspending his 11 tablet privileges in retaliation for Wilson’s refusal to answer questions related to a “random 12 threat assessment.” FAC ¶ 38. First, as discussed in this Court’s previous screening order, 13 a mere refusal to answer the questions of a correctional officer is not “protected conduct” 14 for purposes of a retaliation claim. See e.g., Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 15 1120 (S.D. Cal. 2007) (finding prisoner’s assertion of “right to remain silent during the 16 course of [a cell] search” was not “protected conduct”). In addition, Plaintiff’s speculation 17 that Rivers was responsible for deactivating his tablet is insufficient to allege Rivers caused 18 the adverse action. See Wood, 753 F.3d at 905 (“Mere speculation that defendants acted 19 out of retaliation is not sufficient.”). Finally, Plaintiff has also failed to allege a lack of 20 penological interest in suspending use of his tablet and failed to allege his speech was 21 subsequently chilled. See Watison, 668 F.3d at 1114. Therefore, he has failed to state a 22 First Amendment retaliation claim against Rivers. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 23 1915A(b)(1). 24 25
26 27 6 The Court notes that while Wilson states he could not, alternatively, send mail or place a traditional phone call because he is indigent, he also admits that just prior to having his tablet privileges suspended, 28 1 c. Conspiracy 2 Wilson has also failed to state a claim that Rivers and GTL7 conspired to retaliate 3 against him because, for all the reasons discussed above, he has not alleged a First 4 Amendment violation. See Avalos, 596 F.3d at 592 (stating conspiracy claim requires a 5 plaintiff to show an “actual deprivation” of constitutional rights). Nor has he alleged any 6 facts suggesting an agreement or meeting of the minds between Rivers and GTL. Crowe, 7 608 F.3d at 440. Therefore, he has failed to state a claim that Rivers and GTL conspired 8 against him. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 9 d. False Rule Violation 10 Wilson appears to allege Rivers improperly revoked his tablet privileges based on a 11 false accusation that Wilson had violated institutional rules by allowing another inmate to 12 use his tablet. FAC ¶ 44. To the extent Plaintiff is seeks to assert he was punished based 13 on a “false” allegation of a rule violation, he fails to state a claim. The falsification of a 14 report, even when intentional, does not alone give rise to a claim under § 1983. See 15 Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (“The prison inmate has no 16 constitutionally guaranteed immunity from being falsely or wrongly accused of conduct 17 which may result in the deprivation of a protected liberty interest.”); Scott v. Arvizo, 2018 18 WL 6604345, at *8 (E.D. Cal. 2018) (“[A]s a general rule, Plaintiff has no protected interest 19 against false incident reports or false testimony during disciplinary proceedings); Buckley 20 v. Gomez, 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997) (stating that “a prisoner does not 21 have a constitutional right to be free from wrongfully issued disciplinary reports[ ]”). 22 Therefore, Plaintiff has failed to state a claim based on the issuance of a false rule violation. 23 See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 24 25
26 27 7 A private actor may be liable under § 1983 if they conspired or entered joint action with a state actor. Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002). Thus, for the purposes of screening only, the Court 28 1 4. Denial of Incontinence Shower 2 Wilson alleges that Defendants Salazar, Castro, Guckdrier, Moreno, and Balladare 3 “on different days and times depriv[ed] [him] an . . . incontinence shower.” FAC ¶ 47. He 4 asserts these Defendants violated (and conspired to violate) his Eighth Amendment rights. 5 Id. ¶¶ 46–63. He also alleges they violated his rights under the ADA and RA. Id. ¶ 46. 6 a. Eighth Amendment 7 The Eighth Amendment prohibits the infliction of “cruel and unusual 8 punishments[.]” U.S. Const. amend. VIII. A prison official violates the Eighth Amendment 9 when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently 10 serious, Farmer v. Brennan, 511 U.S. 825, 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 11 (1991)), and (2) the prison official acted, subjectively, with “deliberate indifference.” Id. 12 at 837 (citing Wilson, 501 U.S. at 297). “A prison official acts with ‘deliberate indifference 13 . . . only if [he or she] knows of and disregards an excessive risk to inmate health and 14 safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004); Castro v. Cnty. of Los 15 Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016). “Under this standard, the prison official 16 must not only ‘be aware of facts from which the inference could be drawn that a substantial 17 risk of serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi, 391 18 F.3d at 1057 (quoting Farmer, 511 U.S. at 837). Neither negligence nor gross negligence 19 is actionable under § 1983 in the prison context. See Farmer, 511 U.S. at 835–36, 836 n.4. 20 Inmates have the right to adequate sanitation and hygiene. See Keenan v. Hall, 83 F.3d 21 1083, 1091 (9th Cir. 1996) (amended by 135 F.3d 1318 (9th Cir. 1998)); Anderson v. 22 County of Kern, 45 F.3d 1310, 1314–15 (9th Cir. 1995). 23 Here, Wilson fails to provide sufficient facts to state a claim against any Defendant. 24 Other than Salazar, Wilson fails to identify specific occasion when he asked any other 25 individual Defendant8 for an incontinence shower and they denied it. Wilson’s vague 26
27 8 Wilson also makes vague references to an incident with “Defendant S. Migule,” see FAC ¶¶ 51, 59, but 28 1 allegations are conclusory and devoid of facts as to precisely what actions these Defendants 2 took or what information they had about his condition (and when). Therefore, he has failed 3 to state an Eighth Amendment claim against Castro, Guckdrier, Moreno, and Balladare. 4 See Iqbal, 556 U.S. at 678. 5 As for Salazar, Wilson states that Salazar refused to release him for an incontinence 6 shower on one occasion because Wilson did not have a “blue bag.” FAC ¶ 51. On that 7 occasion, Wilson had to wait until 2:00 p.m. to take a shower. Id. But, as discussed in this 8 Court’s previous order, Wilson has not alleged this short delay in showering amounted to 9 a substantial risk of harm to him. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) 10 (stating courts must consider “the circumstances, nature, and duration of the deprivation” 11 in determining whether a deprivation of a basic necessity is sufficiently serious to satisfy 12 the objective component of an Eighth Amendment claim); see also Anderson, 45 F.3d at 13 1314–15 (noting temporary unconstitutional conditions of confinement do not rise to the 14 level of constitutional violations); see also Harris v. Jones, 2021 WL 4950248, at *2 (7th 15 Cir. 2021) (finding inmate finding that inmate who urinated on himself and had to wait one 16 day for soap and three days for a clean jumpsuit did not show he was denied “minimal 17 civilized measure of life’s necessities”). 18 Moreover, even assuming a substantial risk of harm existed, Wilson has failed to 19 allege facts to show that Salazar was subjectively aware his request for an incontinence 20 shower amounted to a “serious medical need.” See Toguchi, 391 F.3d at 1057 (“A prison 21 official acts with deliberate indifference . . . only if [he or she] knows of and disregards an 22 excessive risk to inmate health and safety.”); see also Bartholomew v. Sisto, 2013 WL 23 24 25 See Iqbal, 556 U.S. at 678 (stating a plaintiff must plead “factual content that allows the court to draw the 26 reasonable inference that the defendant is liable for the misconduct alleged”). Moreover, “Defendant Migule” is not identified as a defendant in the caption of the FAC or in the list of defendants provided by 27 Plaintiff in the beginning of the FAC. See FAC at ¶¶ 8–22. The Court notes that Federal Rule of Civil Procedure 10(a) requires that plaintiffs include the names of all parties in the caption of the complaint. 28 1 4482837, at *4 (E.D. Cal. 2013) (finding no constitutional violation when inmate alleged 2 he was denied a shower for a day after he urinated in his clothes). Therefore, he has not 3 plausibly alleged Salazar acted with deliberate indifference. 4 For the above reasons, Wilson has failed to state an Eighth Amendment claim against 5 any Defendant based on the denial or delay of incontinence showers. See 28 U.S.C. §§ 6 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678. 7 b. Conspiracy to Violate Eighth Amendment 8 Wilson also alleges Defendants Salazar, Castro, Guckdrier, Moreno, and Balladare 9 “conspired” to violate his Eighth Amendment rights by depriving him of a morning 10 incontinence shower. See FAC ¶¶ 47, 54, 59–60. But, as discussed above, Plaintiff has 11 failed to plausibly allege an Eighth Amendment violation and as such he fails to state a 12 conspiracy claim. Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (stating a conspiracy 13 claim requires “an actual deprivation of constitutional rights.”); Woodrum v. Woodward 14 Cnty. Okla., 866 F.2d 1121, 1126–27 (9th Cir. 1989) (explaining that § 1983 applies only 15 to conspiracy claims that result in a deprivation of constitutional rights). In addition, as 16 with his original complaint, Wilson again fails to allege “specific facts to support the 17 existence of the claimed conspiracy” including “an express or implied agreement” or a 18 “meeting of the minds” among the defendants to deprive him of a constitutional right. See 19 Avalos, 596 F.3d at 592; Woodrum, 866 F.2d at 1126. His conclusory allegations of 20 conspiracy are not sufficient to state a conspiracy claim. See Burns v. County of King, 883 21 F.2d 819, 821 (9th Cir. 1989) (stating a § 1983 conspiracy claim may not be based on 22 conclusory allegations). Therefore, Wilson has failed to state an Eight Amendment 23 conspiracy claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 24 c. ADA and RA 25 Finally, Wilson has failed to state an ADA or RA claim related to the denial or delay 26 of incontinence showers against Salazar, Castro, Guckdrier, Moreno, and Balladare, or any 27 individual defendant for that matter. As discussed above, a plaintiff cannot assert an ADA 28 or RA claim against defendants in their individual capacities. See Vinson, 288 F.3d 1145, 1 1156 (9th Cir. 2002). The proper defendant for a claim under Title II of the ADA and § 2 504 of the RA is the public entity responsible for the alleged discrimination. See Everson, 3 556 F.3d at 501 n.7; Peace, 2019 WL 5423473, at *3 (N.D. Cal. 2019). Moreover, even if 4 Wilson had named a proper defendant, he would still fail to state a claim because, as with 5 his original complaint, the FAC devoid of facts showing that Wilson was delayed or denied 6 a morning shower because of his disability. Plaintiff’s conclusory statements unsupported 7 by specific facts are insufficient to support a claim. See, e.g., Dean v. Sisolak, 2022 WL 8 2763389, at *5 (D. Nev. 2022) (finding plaintiff’s assertion that his rights under the ADA 9 and RA were violated when various defendants “discriminated against [him] by reason of 10 his disability” conclusory); Regal v. Cnty. of Santa Clara, 2023 WL 2266135, at *7 (N.D. 11 Cal. 2023) (dismissing ADA and RA claims because the plaintiff failed to allege facts to 12 show services were denied because of his disability). Therefore, Wilson has failed to state 13 a claim against any individual Defendant under the ADA and/or RA. See 28 U.S.C. 14 §§ 1915(e)(2)(B)(ii), 1915A(b)(1); see also Vinson, 288 F.3d at 1156. 15 D. No Leave to Amend 16 Plaintiff was previously provided a short and plain statement of his pleading 17 deficiencies (Doc. No. 4) and given an opportunity to amend those claims to no avail. The 18 Court therefore finds granting further leave to amend would be futile. See Gonzalez v. 19 Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, 20 by itself, justify the denial of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 21 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 22 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend and has 23 subsequently failed to add the requisite particularity to its claims, [t]he district court’s 24 discretion to deny leave to amend is particularly broad.” (internal quotation marks omitted) 25 (second alteration in original)). As such the action is dismissed without leave to amend. 26 27 28 1 CONCLUSION AND ORDER 2 For the above reasons, the Court: 3 (1) DISMISSES this civil action without further leave to amend for failure to 4 || state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(11) 5 |}and 1915A(b)(1); and 6 (2) DIRECTS the Clerk of Court to enter a final judgment of dismissal and close 7 || the file. 8 IT IS SO ORDERED. 9 || Dated: June 18, 2025 Wath ah Yu — [ hts 10 HON. MICHAEL M. ANELLO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19