(PC) Davis v. Clark

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA — 10 — 11 KEENAN DWAYNE DAVIS, No. 1:25-cv-00229-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT 13 v. JUDGE TO THIS ACTION 14 KEN CLARK, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 15 ACTION Defendants. 16 (ECF Nos. 8, 9) — 17 — — 18 — 19 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 20 U.S.C. § 1983 . 21 Plaintiff’s complaint in this action was filed on February 21, 2025. (ECF No. 1.) 22 On March 26, 2025, the Court screened the complaint, found that Plaintiff failed to state a 23 cognizable claim for relief, and granted Plaintiff thirty days to file an amended complaint. (ECF 24 No. 8.) 25 Plaintiff failed to file an amended complaint or otherwise respond to the March 26, 2025 26 order. Therefore, on May 5, 2025, the Court issued an order for Plaintiff to show cause why the 27 action should not be dismissed. (ECF No. 9.) Plaintiff has failed to respond to the order to show 28 cause and the time to do so has now passed. Accordingly, dismissal of the action is warranted. 1 I. 2 SCREENING REQUIREMENT 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 7 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 8 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 14 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 15 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 17 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 18 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 20 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79 ; Moss 21 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 22 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 23 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 ; Moss, 572 F.3d 24 at 969. 25 /// 26 /// 27 /// 28 /// 1 II. 2 COMPLAINT ALLEGATIONS 3 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of the 4 screening requirement under 28 U.S.C. § 1915 . 5 Plaintiff names warden Ken Clark, officer J. Oehlert, officer M. Romero, and officer D. 6 Hernandez, as Defendants. 7 The staff at the Substance Abuse Treatment Facility and State Prison, Corcoran (SATF) 8 have exploited Plaintiff’s personal information, spit and put laxatives in his food, and used some 9 type of computer experiment on him. 10 Several items of Plaintiff’s personal property were destroyed for no reason. 11 Prison officials “ripped” up Plaintiff’s mail, including money orders and personal mail 12 was thrown away. 13 III. 14 DISCUSSION 15 A. Exhaustion of Administrative Remedies 16 On the form complaint, as to Claims II and III, Plaintiff checks the box “no” in response 17 to the question whether he submitted an appeal to the highest level of review. (ECF No. 1 at 4-5.) 18 Plaintiff states, “Because this is my first time going threw [sic] this I did not know how to at 19 first.” (Id. at 4.) 20 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 21 respect to prison conditions under [ 42 U.S.C. § 1983 ], or any other Federal law, by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative remedies as are 23 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is a condition precedent to filing a 24 civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also McKinney v. Carey, 311 25 F.3d 1198 , 1200 (9th Cir. 2002) (“Congress could have written a statute making exhaustion a 26 precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to 27 suit.” (citations omitted)). The exhaustion requirement “applies to all inmate suits about prison 28 life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the nature of the relief sought by the 1 prisoner or the relief offered by the prison’s administrative process is of no consequence. Booth 2 v. Churner, 532 U.S. 731, 741 (2001). And, because the PLRA’s text and intent requires “proper” 3 exhaustion, a prisoner does not satisfy the PLRA’s administrative grievance process if he files an 4 untimely or procedurally defective grievance or appeal. Woodford, 548 U.S. at 93 . A prisoner 5 need not plead or prove exhaustion. Instead, it is an affirmative defense that must be proved by 6 defendant. Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s internal grievance process, not 7 the PLRA, determines whether the grievance satisfies the PLRA exhaustion requirement. Id. at 8 218. However, courts may dismiss a claim if failure to exhaust is clear on the face of the 9 complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 10 The California prison grievance system has two levels of review. Cal. Code Regs. tit. 15, 11 §§ 3483, 3485. “Completion of the review process by the Institutional or Regional Office of 12 Grievances resulting in a decision of ‘identified as staff misconduct,’ ‘pending legal matter,’ or 13 ‘time expired’ in accordance with subsections (g)(8) through (g)(10) of [ ] section [3483] does 14 constitute exhaustion of all administrative remedies available to a claimant within the 15 department.” Cal. Code Regs. tit. 15, § 3483 (l)(2). Additionally, “[c]ompletion of the review 16 process by the Office of Appeals resulting in a decision of ‘denied,’ ‘granted,’ ‘no jurisdiction,’ 17 ‘identified as staff misconduct,’ ‘pending legal matter,’ or ‘time expired’ in accordance with 18 subsections (g)(1) through (g)(3) and (g)(8) through (g)(10) of [ ] section 3485 constitutes 19 exhaustion of all administrative remedies available to a claimant within the department.” Cal. 20 Code Regs. tit. 15, § 3485(l)(1). 21 In general, failure to exhaust is an affirmative defense that the defendant must plead and 22 prove. Jones, 549 U.S. at 204, 216 . However, courts may dismiss a claim if failure to exhaust is 23 clear on the face of the complaint. See Albino, 747 F.3d at 1166 . Here, it appears clear on the 24 face of his complaint that Plaintiff has failed to exhaust administrative remedies prior to filing suit 25 as he admits the process is not complete as to Claims II and III. Thus, if Plaintiff files an 26 amended complaint, he must indicate whether he has exhausted his administrative remedies. If he 27 has not, he should allege why, if at all, this action should proceed. See Jones, 549 U.S. at 223-24 ; 28 Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005) (If a court concludes that a prisoner 1 failed to exhaust his available administrative remedies before filing a civil rights action, the 2 proper remedy is dismissal without prejudice). 3 B. Linkage Requirement 4 Prisoners may bring claims under 42 U.S.C. § 1983 for violations of constitutional or 5 other federal rights by persons acting “under color of state law.” To state a claim under section 6 1983, a plaintiff must show a causal connection or link between the actions of the defendants and 7 the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362 , 8 373–75 (1976). The Ninth Circuit has held that a person may be liable under section 1983 for an 9 affirmative act, participation in another's affirmative acts, or omission of an act that he is legally 10 required to do, causing the deprivation of a constitutional right. Johnson v. Duffy, 588 F.2d 740 , 11 743 (9th Cir. 1978) (citation omitted). 12 Plaintiff must demonstrate that each defendant personally participated in the deprivation 13 of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation 14 of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678–79; 15 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Under § 1983, the plaintiff must 16 demonstrate that each named defendant personally participated in the deprivation of his rights. 17 Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cnty., 609 F.3d 1011, 1020-21 (9th Cir. 2010); 18 Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). Liability may not be imposed on 19 supervisory personnel under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77. 20 Supervisory personnel may only be held liable if they “participated in or directed the violations, 21 or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040 , 1045 22 (9th Cir. 1989). 23 Plaintiff names several defendants and refers to “Defendants” collectively. However, 24 Plaintiff fails to link each individual named Defendant to an affirmative act or omission giving 25 rise to his alleged constitutional violation. Plaintiff thus fails to state a claim against any of the 26 other Defendants. 27 /// 28 /// 1 C. Conditions of Confinement/Retaliation 2 The Eighth Amendment protects prisoners from inhumane methods of punishment and 3 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 4 2006). Extreme deprivations are required to make out a conditions of confinement claim. Hudson 5 v. McMillian, 503 U.S. 1, 9 (1992) (citations and quotations omitted). A prisoner’s claim does not 6 rise to the level of an Eighth Amendment violation unless (1) “the prison official deprived the 7 prisoner of the ‘minimal civilized measure of life’s necessities,’ ” and (2) “the prison official 8 ‘acted with deliberate indifference in doing so.’ ” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th 9 Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). In 10 order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts 11 sufficient to support a claim that prison officials knew of and disregarded a substantial risk of 12 serious harm to the plaintiff. Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 13 F.3d 1124, 1128 (9th Cir. 1998). 14 Here, Plaintiff merely alleges in conclusory and vague terms that staff at SATF spit and 15 put laxatives in his food. As an initial matter, Plaintiff fails to link any individual Defendant to a 16 specific violation of Plaintiff’s rights under the Eighth Amendment. In addition, Plaintiff’s claim 17 lacks factual support to determine whether it can rise to the level of a constitutional violation. 18 See, e.g., LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); Islam v. Jackson, 782 F. Supp. 19 1111, 1114-15 (E.D. Va. 1992) (serving one meal contaminated with maggots and meals under 20 unsanitary conditions for thirteen days was not cruel and unusual punishment, even though inmate 21 suffered symptoms of food poisoning on one occasion); Willard v. Cal. Dep’t of Corr. & Rehab., No. 22 19cv1074-AWI-SAB (PC) (E.D. Cal. Oct. 29, 2019) (isolated and sporadic claims of contaminated 23 food insufficient to state a claim under the Eighth Amendment); Johnson v. Dickinson, No. CV 1424 3390-VBF (SP) (C.D. Cal. Mar. 30, 2017) (single, isolated occurrence, in which plaintiff neither ate 25 the food nor suffered injury from it insufficient to state Eighth Amendment claim); Bennett v. Misner, 26 No. Civ. 02-1662-HA(D. Or. Sept. 17, 2004) (“Neither isolated instances of food poisoning, 27 temporary lapses in sanitary food service, nor service of meals contaminated with maggots are 28 sufficiently serious to constitute an Eighth Amendment violation”). Accordingly, Plaintiff fails to 1 state a cognizable claim for relief. 2 D. Personal Property 3 However, such an action is barred because California provides state prisoners adequate 4 post-deprivation remedies through the Government Claims Act to satisfy the due process clause. 5 See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (finding that “a negligent or intentional 6 deprivation of a prisoner's property fails to state a claim under section 1983 if the state has an 7 adequate post deprivation remedy.”); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) 8 (holding that California has an adequate post-deprivation remedy through the Government Claims 9 Act process). Accordingly, Plaintiff cannot state a constitutional claim based on the taking and 10 destruction of his property. 11 E. Mail 12 Prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52 13 F.3d 264 , 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). 14 Nevertheless, prisons may adopt regulations that impinge on an inmate’s First Amendment rights 15 if those regulations are reasonably related to legitimate penological interests. Id. (citing Turner v. 16 Safley, 482 U.S. 78, 89 (1987)). Prison officials may inspect non-legal mail for contraband 17 without violating a prisoner’s constitutional rights. See Ullrich v. Canyon Cnty. Detention Ctr., — 18 — 84 Fed. Appx. 752, 755 (9th Cir. 2003) (prison policy of inspecting all outgoing and incoming 19 mail except legal mail was based on legitimate penological interests). Legal mail may be opened 20 and inspected only in the prisoner’s presence. See Wolff v. McDonnell, 418 U.S. 539 , 576-77 21 (1974); Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). 22 Here, Plaintiff alleges that his mail, including money orders and letters from family and 23 friends were ripped up and thrown away. (ECF No. 1 at 5.) Based on the limited facts in the 24 complaint, it is unclear whether Plaintiff can state a cognizable claim based on his allegation that 25 his mail was ripped up and thrown away. Isolated incidents of mail interference without any 26 evidence of improper motive or resulting interference with the right to counsel or access to the 27 courts do not give rise to a constitutional violation. See Crofton v. Roe, 170 F.3d 957, 961 (9th 28 Cir. 1999) (temporary delay or isolated incident of delay of mail does not violate a prisoner’s 1 First Amendment rights); see also Davis v. Goord, 320 F.3d 346, 351 (2d. Cir. 2003) (isolated 2 incident of mail tampering usually insufficient to state claim). In order to state a First 3 Amendment claim of mail interference under § 1983, Plaintiff must link each individual 4 Defendant and allege specific facts showing that the Defendant’s actions of ripping you and/or 5 throwing Plaintiff's mail amounted to more than an isolated incident of mail interference. 6 Accordingly, Plaintiff fails to state a cognizable claim for relief. 7 IV. 8 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 9 Here, the Court screened Plaintiff’s complaint, and on March 26, 2025, an order issued 10 providing Plaintiff with the legal standards that applied to his claims, advising him of the 11 deficiencies that needed to be corrected, and granting him leave to file an amended complaint within 12 thirty days. (ECF No. 8.) Plaintiff did not file an amended complaint or otherwise respond to the 13 Court’s March 26, 2025 order. Therefore, on May 5, 2025, the Court ordered Plaintiff to show 14 cause within fourteen (14) days why the action should not be dismissed. (ECF No. 9.) Plaintiff 15 failed to respond to the May 5, 2025 order and the time to do so has passed. 16 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 17 or with any order of the Court may be grounds for imposition by the Court of any and all sanctions 18 . . . within the inherent power of the Court.” The Court has the inherent power to control its docket 19 and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of 20 the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 21 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 22 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52 , 23 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 24 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 25 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 26 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. United States 27 Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); 28 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 1 failure to comply with local rules). 2 “In determining whether to dismiss an action for lack of prosecution, the district court is 3 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; 4 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 5 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 6 sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson, 779 F.2d at 1423 ). These factors guide 7 a court in deciding what to do, and are not conditions that must be met in order for a court to take 8 action. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th 9 Cir. 2006) (citation omitted). 10 In this instance, the public’s interest in expeditious resolution of the litigation and the 11 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) 12 Products Liability Litigation, 460 F.3d at 1226 . Plaintiff was ordered to file an amended complaint 13 within thirty days of March 26, 2025 and has not done so. Plaintiff’s failure to comply with the 14 order of the Court by filing an amended complaint hinders the Court’s ability to move this action 15 towards disposition. This action can proceed no further without Plaintiff’s compliance with the 16 order and his failure to comply indicates that Plaintiff does not intend to diligently litigate this 17 action. 18 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 19 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447 , 20 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 21 The public policy in favor of deciding cases on their merits is greatly outweighed by the 22 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order 23 for this action to proceed, Plaintiff is required to file an amended complaint curing the deficiencies 24 in the operative pleading. Despite being ordered to do so, Plaintiff did not file an amended 25 complaint or respond to the order to show cause and this action cannot simply remain idle on the 26 Court’s docket, unprosecuted. In this instance, the fourth factor does not outweigh Plaintiff’s 27 failure to comply with the Court’s orders. 28 /// 1 Finally, a court’s warning to a party that their failure to obey the court’s order will result 2 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262 ; 3 Malone, 833 F.2d at 132-33 ; Henderson, 779 F.2d at 1424 . The Court’s March 26 , 2025, order 4 requiring Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an 5 amended complaint in compliance with this order, the Court will recommend to a district judge that 6 this action be dismissed consistent with the reasons stated in this order.” (ECF No. 8, at 8.) In 7 addition, the Court’s May 5, 2025, order to show cause specifically stated: “Plaintiff’s failure to 8 comply with this order will result in a recommendation to dismiss the action for the reasons stated 9 above.” (ECF No. 9.) Thus, Plaintiff had adequate warning that dismissal would result from his 10 noncompliance with the Court’s orders. 11 V. 12 ORDER AND RECOMMENDATIONS 13 The Court has screened Plaintiff’s complaint and directed Plaintiff to file an amended 14 complaint within thirty days. Plaintiff has failed to comply with the Court’s order to file an 15 amended and has not responded to the Court’s order to show why the action should not be 16 dismissed. In considering the factors to determine if this action should be dismissed, the Court 17 finds that this action should be dismissed for Plaintiff’s failure to obey the March 26, 2025 and 18 May 5, 2025 orders, failure to prosecute this action, and failure to state a cognizable claim for relief. 19 Accordingly, it is HEREBY ORDERED that the Clerk of Court shall randomly assign a 20 District Judge to this action. 21 Further, it is HEREBY RECOMMENDED that this action be dismissed for Plaintiff’s 22 failure to comply with a court orders, failure to prosecute, and failure to state a cognizable claim 23 for relief. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within fourteen 26 (14) days after being served with these Findings and Recommendations, Plaintiff may file written 27 objections with the Court, limited to 15 pages in length, including exhibits. The document should 28 be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 1 | advised that failure to file objections within the specified time may result in the waiver of rights 2 | onappeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 3 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). — 4 — 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ May 30, 2025 STANLEY A. BOONE 7 United States Magistrate Judge — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 11 —