Butler v. Classification Deputy

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA — 9 — 10 STEPHON BUTLER Case No.: 22-cv-690-MMA (DEB) Inmate #22709674, — 11 — ORDER DISMISSING CLAIMS AND Plaintiff, 12 DEFENDANTS FOR FAILURE TO vs. STATE A CLAIM PURSUANT TO 28 13 U.S.C. § 1915 (e)(2) AND 28 U.S.C. COUNTY OF SAN DIEGO; 14 § 1915A(b) AND DIRECTING U.S. ANTHONY REY, Sheriff, San Diego MARSHAL TO EFFECT SERVICE OF 15 County; MONTGOMERY, San Diego AMENDED COMPLAINT [ECF No. 10] County Sheriff’s Dept. Chief Medical 16 AND SUMMONS PURSUANT TO 28 Officer; SONIA L. MANNING, U.S.C. § 1915(d) & Fed. R. Civ. P. 4(c)(3) 17 Commander of VDF, 18 Defendants. — 19 — 20 On May 13, 2022, Plaintiff Stephon Butler (“Plaintiff” or “Butler”), currently 21 housed at the Vista Detention Facility (“VDF”), located in Vista, California, and 22 proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 . Doc. No. 23 1 (“Compl.”). Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914 (a) to 24 commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) 25 pursuant to 28 U.S.C. § 1915 (a). Doc. No. 2. 26 On July 19, 2022, the Court granted Butler’s IFP motion and dismissed his 27 Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 28 1915A(b)(1). Doc. No. 6. Butler was given forty-five (45) days to file an Amended 1 Complaint that cured the deficiencies of pleading outlined in the Court’s dismissal Order. — 2 — Id. Butler was also cautioned that “Defendants not named and any claims not re-alleged 3 in the First Amended Complaint will be considered waived.” Id. at 15 (first citing S.D. 4 Cal. CivLR 15.1; then citing Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 5 F.2d 1542 , 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); and 6 then citing Lacey v. Maricopa Cnty, 693 F.3d 896, 928 (9th Cir. 2012) (nothing that 7 claims dismissed with leave to amend which are not re-alleged in an amended pleading 8 may be “considered waived if not repled.”)). 9 On August 8, 2022, Butler filed an Amended Complaint. Doc. No. 10 (“FAC”). 10 In his FAC, Butler no longer names Defendants Classification Deputy, San Diego 11 Sheriff’s Department; Medical Staff, San Diego Sheriff’s Department, and the San Diego 12 Sheriff’s Department in this matter. Thus, the claims against these Defendants are 13 deemed waived and the Clerk of Court is directed to terminate these Defendants from the 14 docket. See Lacey, 693 F.3d at 928 . 15 I. SCREENING PURSUANT TO 28 U.S.C. § 1915A(b) AND § 1915(e)(2) 16 A. Standard of Review 17 As with Butler’s original Complaint, because Butler is a prisoner, his FAC requires 18 a pre-answer screening pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) and § 1915A(b). Under 19 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any 20 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 21 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th Cir. 22 2000) (en banc) (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002 , 23 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is 24 ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 25 responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (citation 26 omitted). 27 “The standard for determining whether a plaintiff has failed to state a claim upon 28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 2 F.3d 1108 , 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 3 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 4 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 5 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 6 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — 7 — 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 9 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 10 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for 11 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 12 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 13 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 14 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962 , 969 15 (9th Cir. 2009). 16 B. 42 U.S.C. § 1983 17 “Section 1983 creates a private right of action against individuals who, acting 18 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 19 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 20 substantive rights, but merely provides a method for vindicating federal rights elsewhere 21 conferred.” Graham v. Connor, 490 U.S. 386 , 393‒94 (1989) (internal quotation marks 22 and citation omitted). “To establish § 1983 liability, a plaintiff must show both 23 (1) deprivation of a right secured by the Constitution and laws of the United States, and 24 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 25 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 26 C. Discussion 27 Butler’s FAC names San Diego County, San Diego Sheriff Anthony Rey, Chief 28 Medical Officer Montgomery, and Sonia Manning, Commander of VDF (“Defendants”). 1 See FAC. He alleges in his FAC that his federal Due Process, Equal Protection, First 2 Amendment, and Eighth Amendment rights have been violated by Defendants. See id. 3 In Count One, he claims Defendants have violated his Due Process and Equal Protection 4 rights by improperly using his involuntary manslaughter conviction to increase his 5 classification, which resulted in his housing assignment being more restrictive. See id. at 6 6–7. In Counts Two and Three, Butler claims the Defendants violated his Eighth 7 Amendment rights by failing to treat his knee pain, delaying recommended knee surgery, 8 denying him dentures, and delaying treatment for kidney pain which resulted in Butler 9 developing a kidney infection. Id. at 3–8. He claims his complaints have been ignored 10 by the VDF’s Medical Department and that the Department has a policy of denying an 11 delaying medical care. Id. at 5. Butler also alleges in Count Four that he has been 12 subjected to lengthy periods of time being locked in his cell because the Sheriff’s 13 Department is understaffed. Id. at 6. Finally, he alleges in Count Five that his mail has 14 been repeatedly delayed. Id. at 7. 15 1. Classification Claim (Count One) 16 Butler alleges Defendants’ improper classification and housing assignment violate 17 his federal Due Process and Equal Protection rights. See id. at 3. As the Court explained 18 to Butler in its July 19, 2022 Order, “[t]he Fourteenth Amendment’s Due Process Clause 19 protects persons against deprivations of life, liberty, or property; and those who seek to 20 invoke its procedural protection must establish that one of these interests is at stake.” 21 Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “To state a procedural due process claim, 22 [a plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; 23 (2) a deprivation of the interest by the government; (and) (3) lack of process.’” Wright v. 24 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, — 25 — 995 F.2d 898, 904 (9th Cir. 1993)). Liberty interests protected by the Due Process 26 Clause “will be generally limited to freedom from restraint which, while not exceeding 27 the sentence in such an unexpected manner as to give rise to protection by the Due 28 Process Clause of its own force, nonetheless imposes atypical and significant hardship on 1 the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 2 U.S. 472, 484 (1995). 3 Prisoners have “no constitutional right to a particular classification or to earn 4 credits.” Hernandez v. Adams, No. 1:08-cv-00254 LJO MJS HC, 2010 WL 5071131 , at 5 *4 (E.D. Cal. Dec. 7, 2010); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 6 1987); see also Moody v. Daggett, 429 U.S. 78 , 88 n. 9 (1976) (Due Process Clause not 7 implicated by federal prisoner classification and eligibility for rehabilitative programs, 8 even where inmate suffers “grievous loss”). Because Plaintiff has not plausibly alleged 9 he was deprived of “a liberty or property interest protected by the Constitution,” Wright, — 10 — 219 F.3d at 913 , he has not stated a claim for which § 1983 relief can be granted. Iqbal, — 11 — 556 U.S. at 676 ; see also 28 U.S.C. § 1915 (e)(2)(B)(ii) and § 1915A(b)(1). 12 With regard to Butler’s equal protection claims, the Equal Protection Clause 13 requires that persons who are similarly situated be treated alike. City of Cleburne v. 14 Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. California Dep’t of 15 Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 16 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008).1 To 17 state a claim, Butler must show that Defendants intentionally discriminated against him 18 based on his membership in a protected class. Hartmann, 707 F.3d at 1123 ; Furnace, — 19 — 705 F.3d at 1030 ; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). Butler fails 20 to make any such allegation, and “neither prisoners nor ‘persons convicted of crimes’ — 21 — — 22 — 1 The Constitution does not require individuals who are, in fact, differently situated, to be treated equally 23 under the law. Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469 (1981) (citations omitted); Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994) (“Dissimilar treatment — 24 — of dissimilarly situated persons does not violate equal protection). Thus, absent a threshold allegation 25 that Plaintiff is similarly situated to others who allegedly receive what he perceives as more favorable treatment, he fails to state a plausible equal protection claim. See Iqbal, 556 U.S. at 678 (“Threadbare 26 recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Michael M., 450 U.S. at 469 (citations omitted). “The Equal Protection Clause does not forbid 27 classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); Hernandez v. Cate, 918 F. 28 1 constitute a suspect class for equal protection purposes.” United States v. Whitlock, 639 2 F.3d 935, 941 (9th Cir. 2011); Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999) 3 (“[P]risoners are not a suspect class . . . .”); United States v. Smith, 818 F.2d 687 , 691 4 (9th Cir. 1987) (“[P]ersons convicted of crimes are not a suspect class.”). 5 Where no suspect class or fundamental right is implicated, equal protection claims 6 are subject to a rational basis review. See Village of Willowbrook v. Olech, 528 U.S. 562 , 7 564 (2000); United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012); Nelson v. 8 City of Irvine, 143 F.3d 1196, 1205 (9th Cir. 1998) (“Unless a classification trammels 9 fundamental personal rights or implicates a suspect classification, to meet constitutional 10 challenge the law in question needs only some rational relation to a legitimate state 11 interest.”). In the prison context, the right to equal protection is viewed through a 12 standard of reasonableness; that is, whether the actions of prison officials are “reasonably 13 related to legitimate penological interests.” Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 14 2004) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). 15 Thus, to the extent Plaintiff claims he is being denied “equal treatment” because he 16 faces different conditions of confinement as other prisoners, he fails to state an equal 17 protection claim. Butler fails to allege both that he is similarly situated, and that there is 18 no rational basis to treat him differently because of his involuntary manslaughter 19 conviction. “The Constitution permits qualitative differences in meting out punishments 20 and there is no requirements that two persons convicted of the same offense receive 21 identical sentences.” Williams v. Illinois, 399 U.S. 235, 243 (1970); McQuery v. 22 Blodgett, 924 F.2d 829 , 834–35 (9th Cir. 1991) (“Inmates are not entitled to identical 23 treatment as other inmates merely because they are all inmates.”) (citing Norvell v. 24 Illinois, 373 U.S. 420 (1963)). A mere demonstration of inequality is not enough to 25 establish a violation of the equal protection clause. Id.; see also McGinnis v. Royster, — 26 — 410 U.S. 263 , 269–70 (1973) (applying rational basis review to state statutory scheme 27 that treated inmates held in county facilities differently than those held in state facilities); 28 see also Sigur v. California Dep’t of Corr. & Rehab., 2018 WL 2734918 , at *4 (E.D. Cal. 1 June 7, 2018) (sua sponte dismissing claims that defendants treated non-violent sex 2 offenders differently under Proposition 57 pursuant to 28 U.S.C. § 1915A on equal 3 protection grounds). 4 For the foregoing reasons, the Court concludes Butler has failed to state a plausible 5 § 1983 claim with regard to his Due Process and Equal Protection claims in Count One. 6 Iqbal, 556 U.S. at 676 ; 28 U.S.C. §§ 1915 (e)(2) 1915A(b). 7 2. Eighth/Fourteenth Amendment Claims (Counts Two, Three, and Four) 8 In Counts Two, Three, and Four, Butler claims the Defendants are failing to treat 9 his knee pain and delaying knee surgery despite the recommendation of VDF’s doctor2 10 where that he receive knee replacement surgery. FAC at 4. He also alleges he “[has] 11 problems chewing, swallowing, and digesting [his] food because [he] needs new 12 dentures,” but was told by the dentist that the policy was to only pull inmates’ teeth. Id. 13 In addition, Butler alleges that delayed treatment for kidney pain resulted in a kidney 14 infection. Id. He claims it is the “policy and practice” of the San Diego Sheriff’s 15 Department to ignore medical complaints and delay medical care. Id. at 4–5. Further, 16 Butler alleges that “it is the policy and practice of San Diego County Sheriff’s 17 Department to keep high level inmates locked in their cells 19½ to 24 hours daily because 18 they . . . don’t have enough deputies on duty . . . .” Id. at 6 . Butler “suffers from [an] 19 anxiety disorder which claustrophobia is a part of,” and being confined in this manner 20 causes him “mental anguish.” Id. 21 a. Medical Care: Claims Involving Knee Pain, Dentures, and Kidney Pain 22 The Eighth Amendment requires that inmates have “ready access to adequate 23 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate 24 indifference to serious medical needs of prisoners” violates the Eighth Amendment. — 25 — — 26 — 27 2 Butler refers to this person as the “jail’s doctor.” FAC, ECF No. 10 at 4. Because Butler is confined at VDF and his claims arise out of events that took place there, the Court will assume Butler is referring to — 28 — 1 Estelle v. Gamble, 429 U.S. 97, 104 (1976). “Deliberate indifference ‘may appear when 2 prison officials deny, delay or intentionally interfere with medical treatment, or it may be 3 shown in the way in which prison physicians provide medical care.’” Colwell v. 4 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Hutchinson v. United States, 838 5 F.2d 390, 394 (9th Cir. 1988)). “A prison official acts with ‘deliberate 6 indifference . . . only if the [prison official] knows of and disregards an excessive risk to 7 inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) 8 (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on 9 other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). 10 “Inadvertent failures to provide adequate medical care, mere negligence or medical 11 malpractice, delays in providing care (without more), and differences of opinion over 12 what medical treatment or course of care is proper, are all insufficient to constitute an 13 Eighth Amendment violation.” Norvell v. Roberts, No. 20-cv-0512 JLS (NLS), 2020 WL 14 4464454, at *4 (S.D. Cal. Aug. 4, 2020) (citing Estelle, 429 U.S. at 105–07; Wood v. 15 Housewright, 900 F.2d 1332, 1334 (9th Cir.1990); Sanchez v. Vild, 891 F.2d 240 , 242 16 (9th Cir. 1989); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 17 1985)). 18 According to the San Diego County Sheriff’s Department website, Butler was 19 booked into VDF on March 10, 2022 and is an inmate sentenced to local custody.3 It is 20 not clear when Butler was sentenced, however. If Butler was a pretrial detainee at the 21 time of any of the events alleged in the FAC, his claims “must be evaluated under an 22 objective deliberate indifference standard.” Gordon v. County of Orange, 888 F.3d 1118 , 23 1124–25 (9th Cir. 2018). This requires a plaintiff to “prove more than negligence, but 24 less than subjective intent – something akin to reckless disregard.” Id. at 1125 (quoting 25 Castro, 833 F.3d at 1071 ). On the other hand, if Butler was a sentenced prisoner during — 26 — — 27 — 3 See https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=VEAa70enc4SjWnk1YHKSwrxrXPmLc — 28 — 1 those events, they must be analyzed under the Eighth Amendment. Castro, 833 F.3d at 2 1068. For purposes of the Eighth Amendment, “the prison official must not only ‘be 3 aware of facts from which the inference could be drawn that a substantial risk of serious 4 harm exists,’ but that person ‘must also draw the inference.’” Id. (quoting Farmer v. 5 Brennan, 511 U.S. 825, 837 (1994)). A plaintiff must allege that “the course of treatment 6 the [official] chose was medically unacceptable under the circumstances and that the 7 [official] chose this course in conscious disregard of an excessive risk to the plaintiff’s 8 health.’” Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019) (quoting Hamby v. 9 Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)). “[A] purposeful act or failure to 10 respond to a prisoner’s pain or possible medical need,” which causes harm is sufficient to 11 establish deliberate indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 12 Butler indicates in his FAC that he seeks to sue Manning in both her official and 13 individual capacity. FAC at 2. However, he seeks both monetary damages and 14 injunctive relief. Id. at 10. As such, the Court will address Manning’s individual and 15 official liability. See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) 16 (“[W]hen a plaintiff sues a defendant for damages, there is a presumption that he is 17 seeking damages against the defendant in his personal capacity); Romano v. Bible, 169 18 F.3d 1182 , 1186 (9th Cir. 1999). 19 To the extent Plaintiff seeks to sue Manning in her individual capacity, he fails to 20 state a claim. There is no vicarious liability under § 1983. In other words, an individual 21 defendant is not responsible for the actions or omissions of another. Taylor v. List, 880 22 F.2d 1040 , 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 23 F.2d 675 , 680–81 (9th Cir. 1984). “Because vicarious liability is inapplicable to . . . 24 § 1983 suits,” Butler “must plead that each Government-official defendant, through the 25 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 . 26 Here, Butler includes no specific factual allegations describing any individual acts or 27 omissions taken by Manning related the failure to treat his knee pain, his need for new 28 dentures, and the alleged delayed treatment for his kidney infection. FAC at 4. Butler’s 1 broad and generalized allegations fail to show how, or to what extent Manning may be 2 held individually liable for any constitutional injury. Iqbal, 556 U.S. at 676–77; Jones v. 3 Cmty. Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) 4 (stating that even a pro se plaintiff must “allege with at least some degree of particularity 5 overt acts which defendants engaged in” in order to state a claim). Therefore, Butler fails 6 to state either an Eighth or a Fourteenth Amendment claim against Manning in her 7 individual capacity. See Taylor, 880 F.2d at 1045. 8 With respect to claims against Rey, Montgomery, and Manning in their official 9 capacities, the Supreme Court has held that an “official-capacity suit is, in all respects 10 other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 11 159, 166 (1985). “Official capacity suits [under § 1983] . . . ‘generally represent only 12 another way of pleading an action against an entity of which an officer is an agent.’” Id. 13 at 165–66 (quoting Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 690 , 14 n. 55 (1978)); see Brandon v. Holt, 469 U.S. 464, 472 (1985) (concluding actions of 15 department head in his official capacity are akin to actions of municipality itself). Thus, 16 to the extent Butler is attempting to sue Rey, Montgomery, and Manning their official 17 capacities as Sheriff, Chief Medical Officer, and Commander of VDF respectively, it is 18 treated as a suit against the County of San Diego, which he has also named as a defendant 19 in his FAC. See id. 20 A local municipality can be held liable under § 1983 if the purportedly 21 unconstitutional actions of its employees are alleged to have been taken pursuant to a 22 “policy statement, ordinance, regulation, or decision officially adopted and promulgated 23 by that body’s officers.” Monell, 436 U.S. at 690 . To state a municipal liability claim 24 under § 1983, Plaintiff must allege “(1) that [he] possessed a constitutional right of which 25 he was deprived; (2) that the [County] had a policy; (3) that the policy amounts to 26 deliberate indifference to [Plaintiff’s] constitutional right; and (4) that the policy is the 27 ‘moving force behind the constitutional violation.’” Dougherty v. City of Covina, 654 28 F.3d 892 , 900 (9th Cir. 2011); see also Graham, 473 U.S. at 166 ; Hafer v. Melo, 502 U.S. 1 21, 25 (1991); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) 2 (en banc). A plaintiff must allege a “direct causal link between a municipal policy or 3 custom and the alleged constitutional deprivation.” Collins v. Cty. of Harker Heights, — 4 — 503 U.S. 115, 123 (1992). “[P]roof of a single incident of unconstitutional activity,” or 5 even a series of “isolated or sporadic incidents,” will not give rise to liability under 6 § 1983. Gant v. Cnty. of Los Angeles, 772 F.3d 608, 618 (9th Cir. 2014) (citation 7 omitted). Rather, liability must be “founded upon practices of sufficient duration, 8 frequency and consistency that the conduct has become a traditional method of carrying 9 out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 10 Butler allegations do not plausibly allege a custom or practice of delaying medical 11 care. For an unwritten policy or custom to form the basis of a Monell claim, it must be so 12 “persistent and widespread” that it constitutes a “permanent and well settled” practice. 13 See Monell, 436 U.S. at 691 . The complaint “must contain sufficiently detailed factual 14 allegations ‘to give fair notice and to enable the opposing party to defend itself 15 effectively’ and which ‘plausibly suggest an entitlement to relief.’” J.M. by and Through 16 Rodriguez v. County of Stanislaus, No. 1:18-cv-01034-LJO-SAB, 2018 WL 5879725 , at 17 *4 (E.D. Cal. Nov. 7, 2018) (citing Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). 18 Butler claims that the San Diego Sheriff’s Medical Department is aware of his knee pain, 19 has not scheduled recommended knee surgery, delayed medical attention for his kidney 20 pain, which resulted in Butler developing a kidney infection, and that “Chief Medical 21 Officer Montgomery is responsible for my care and has done nothing to help my 22 situation.” See FAC at 4. These conclusory and vague allegations fall short of pleading a 23 viable Monell claim. See Iqbal, 556 U.S. at 678 ; AE ex rel. Hernandez v. County of 24 Tulare, 666 F.3d 631 , 636–37 (9th Cir. 2012) (applying Iqbal pleading standards to 25 Monell claims). 26 Moreover, Butler’s allegations regarding the treatment of his knee and kidney pain 27 do not rise to the level of either a Fourteenth or an Eighth Amendment violation. In order 28 to plausibly allege a Fourteenth Amendment violation, Butler must allege facts showing 1 Rey, Montgomery, and/or Manning’s actions were “objectively unreasonable,” Castro, — 2 — 833 F.3d at 1071 , “something akin to reckless disregard.” Gordon, 888 F.3d at 1125 3 (quoting Castro, 833 F.3d at 1071 ). According to Butler, in response to his knee pain he 4 was given a cane about two weeks after he arrived at VDF in early March of 2022. FAC 5 at 4. In early July of 2022, approximately a month before Butler filed his FAC, a doctor 6 recommended knee replacement surgery but it has not yet been scheduled. Id. With 7 regard to his kidney pain and kidney infection, Butler states he told medical staff he was 8 having kidney pain in early July of 2022 and had received medication for it two days 9 prior to the filing of his FAC in early August. Id. These allegations show Rey, 10 Montgomery, and/or Manning have addressed Butler’s knee and kidney pain. And while 11 there has been some delay in the delivery of care, a “mere lack of due care by a state 12 official” is not sufficient to state a Fourteenth Amendment claim under § 1983. Castro, — 13 — 833 F.3d at 1071 (quoting Daniels v. Williams, 474 U.S. 327 , 330–31 (1986)). Butler has 14 not shown Rey, Montgomery, and/or Manning have acted with reckless disregard for his 15 health and safety, and thus he has failed to state a Fourteenth Amendment claim. Iqbal, — 16 — 556 U.S. at 676 ; Castro, 833 F.3d at 1071 . 17 Butler has also not stated an Eighth Amendment claims because he has not 18 plausibly alleged any Defendant was deliberately indifferent to a serious medical need. 19 Toguchi, 391 F.3d at 1057 . In order to plausibly allege an Eighth Amendment violation, 20 Butler must show Defendants provided “medically unacceptable” treatment which 21 exhibits a” conscious disregard for an excessive risk to a plaintiff’s health.” Edmo, 935 22 F.3d at 786. The facts he has alleged – delayed knee surgery and delayed treatment for 23 kidney pain – amount to “mere negligence or medical malpractice, delays in providing 24 care . . ., and differences of opinion over what medical treatment or course of care is 25 proper . . . ,” which are not sufficient to state an Eighth Amendment claim under § 1983. 26 See Norwell, 2020 WL 4464454 , at *4. 27 With regard to Butler’s dental care claims, while he does allege he was told it was 28 “policy” to “only pull teeth” and not to provide dentures, FAC at 4, he has not plausibly 1 alleged a constitutional violation. See Graham, 473 U.S. at 166 . The Ninth Circuit has 2 found that “‘[d]ental care is one of the most important medical needs of inmates,’” Hunt 3 v. Dental Dep’t., 865 F.2d 198, 200 (9th Cir. 1989) (quoting Ramos v. Lamm, 639 F.2d 4 559, 576 (9th Cir. 1980), and “[i]t has long been established that the “[E]ighth 5 [A]mendment requires that prisoners be provided with a system of ready access to 6 adequate dental care.” Id. (citing Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). 7 In order to establish an Eighth Amendment violation, however, Butler must also show 8 Defendants Rey, Montgomery, and/or Manning were “aware of facts from which the 9 inference could be drawn that a substantial risk of serious harm exists” and also drew that 10 inference. Toguchi, 391 F.3d at 1057 (internal citations and quotation marks omitted). 11 Butler has not provided sufficient facts to plausibly allege either element. While he 12 alleges he has “problems chewing, swallowing, and digesting [his] food,” this is not 13 sufficient to show that the failure to provide him with dentures “could result in further 14 significant injury or the unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 15 1096. Nor has he plausibly alleged that Rey, Montgomery, and/or Manning were “aware 16 of facts from which the inference could be drawn that a substantial risk of serious harm 17 exist[ed] . . . and . . . dr[e]w the inference.” Farmer, 511 U.S. at 837 ; Norvell, 2020 WL 18 4464454, at *4. 19 Finally, Butler’s allegations do not plausibly allege that Rey, Montgomery, and/or 20 Manning acted with “reckless disregard.” Castro, 833 F.3d at 1071 . At most, they show 21 only a “mere lack of due care by a state official,” which is not sufficient to state a 22 Fourteenth Amendment claim under § 1983. Id. (quoting Daniels, 474 U.S. at 330–31). 23 Accordingly, the Court concludes that Butler has failed to state a plausible § 1983 24 claim under either the Eighth or Fourteenth Amendment with regard to his medical and 25 dental care claims against any Defendant. Iqbal, 556 U.S. at 676 ; 28 U.S.C. 26 §§ 1915(e)(2), 1915A(b). 27 // 28 // 1 b. Prison Conditions: Claims Involving Extended Cell Lockdowns 2 In Count Four, Butler alleges that “it is the policy and practice of San Diego 3 County Sheriff’s Department to keep high level inmates locked in their cells 19 ½ to 24 4 hours daily because . . . the Sheriff’s Department [doesn’t] have enough deputies on 5 duty.” FAC at 6. He also alleges that he “suffer[s] from anxiety disorder [of] which 6 claustrophobia is a part . . . and being confined for extended periods of time makes the 7 mental anguish that much more severe.” Id. He further claims that “this is known by the 8 San Diego County Sheriff’s Department because the mental health staff have [a] record 9 of my condition and have recommended that I be housed in a dorm setting more than 10 once.” Id. He specifically notes that during a one week period at the end of July, which 11 was shortly before his FAC was filed, he was locked down in his cell every day for 12 between twenty-one and twenty-three and a half hours, and on one occasion he was 13 locked down in his cell for over twenty-four hours. Id. 14 To plausibly allege an Eighth and Fourteenth Amendment violation, a plaintiff 15 must show that “the prison official’s acts or omissions . . . deprive[d] an inmate of the 16 minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834 . Under the 17 Eighth Amendment, a plaintiff must show that the official “[knew] of and disregard[ed] 18 an excessive risk to inmate health and safety.” Id. at 835 . Under the Fourteenth 19 Amendment, a plaintiff must show the official acted with “reckless disregard” to the — 20 — — 21 — 4 Butler also alleges he was subjected to lengthy cell lockdowns as a byproduct of Covid-19 isolation 22 protocols due to inmates in his housing unit testing positive for Covid-19. See FAC at 7. These allegations are insufficient to plausibly allege either an Eighth or a Fourteenth Amendment violation. 23 Iqbal, 556 U.S. at 676 . “The key inquiry is not whether Defendants perfectly responded, complied with every CDC guideline, or whether their efforts ultimately averted the risk; instead, the key inquiry is — 24 — whether they ‘responded reasonably to the risk.’” Sanford v. Eaton, No. 1:20-cv-00792-BAM (PC), — 25 — 2021 WL 1172911 , at *7 (E.D. Cal. March 29, 2021) (citing Stevens v. Carr, No. 20-C-1735, 2021 WL 39542 , at *4 (E.D. Wis. Jan. 5, 2021)). “[T]o state a cognizable Eighth Amendment claim, Plaintiff 26 must allege more than a disagreement with Defendants’ strategy for reducing the risk of COVID-19.” Nowlin v. Carvajal, 5:21-cv-01411-JGB-JDE, 2021 WL 5911665 (C.D. Cal. Oct. 15, 2021) (citing 27 McKissick v. Gastelo, No. 2:21-cv-0-1945-VAP (MAA), 2021 WL 2895679 , at *5 (C.D. Cal. July 9, 2021)). Nor do the allegations plausibly allege Defendants acted with “reckless disregard.” Iqbal, 556 — 28 — 1 detainee’s health and safety. Castro, 833 F.3d at 1071 . 2 “Although prison administrators generally have broad discretion in determining 3 whether to declare emergencies and impose ‘lockdowns’ to control institutional 4 disturbances, the conditions imposed during the lockdown may constitute cruel and 5 unusual punishment under the Eighth Amendment.” Norwood v. Woodford, 661 F. Supp. 6 2d 1148, 1154 (S.D. Cal. 2009) (citing Hayward v. Procunier, 629 F.2d 599, 603 (9th 7 Cir.1980) (denial of outdoor exercise may give rise to Eighth Amendment violation even 8 in response to emergency conditions)). “The Ninth Circuit has stated that “regular 9 outdoor exercise is extremely important to the psychological and physical well-being of 10 the inmates.” Norwood, 661 F. Supp. 2d at 1155 (citing Spain v. Procunier, 600 F.2d 11 189, 193–94 (9th Cir. 1979) (outdoor exercise required when prisoners otherwise 12 confined in small cells almost 24 hours per day)). Confinement to a cell for twenty-three 13 and a half hours per day has been found to violate the Eighth Amendment because it 14 constitutes “a denial of outdoor exercise without a meaningful alternative of out-of-cell 15 time.” Norbert v. San Francisco Sheriff’s Dept., No. 19-cv-02724-SK, 2020 WL 16 8675997, at *20 (N.D. Cal. Jan. 31, 2020). And while a temporary deprivation of 17 outdoor exercise or its equivalent does not constitute an Eighth Amendment violation, see 18 Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010), in Butler’s case his allegation 19 that the lack of access to exercise outside his cell is attributable to staff shortages 20 plausibly alleges the deprivation is not temporary but is persistent and ongoing. 21 Moreover, Butler’s claims that Rey and Manning know he suffers from anxiety and 22 claustrophobia “because the mental health staff ha[s] [a] record of my condition and ha[s] 23 recommended that I be housed in a dorm setting more than once,” FAC at 6, plausibly 24 allege they “know[] of and [have] disregard[ed] an excessive risk to inmate health and 25 safety,” Farmer, 511 U.S. at 835 , and have acted with “reckless disregard” for Butler’s 26 well-being. Castro, 833 F.3d at 1071 . Further, these facts plausibly allege the excessive 27 cell time is attributable to “an expressly adopted policy” of San Diego County, Thomas, — 28 — 763 F.3d at 1170 , implemented by Rey and Manning, and that the policy is “the ‘moving 1 force behind the constitutional violation.’” Dougherty, 654 F.3d at 900. 2 For the foregoing reasons, the Court concludes Butler has stated a plausible Eighth 3 and/or Fourteenth Amendment § 1983 claim against San Diego County, San Diego 4 County Sheriff Anthony Rey, and Sonia Manning, Commander of VDF. Iqbal, 556 U.S. 5 at 676; 28 U.S.C. §§ 1915 (e)(2) 1915A(b). 6 3. Mail Delays 7 Butler claims in Count Five that “the delays in getting mail from the Court may 8 cause me to miss court deadlines and or other events that will cause me great hardships 9 and or irreversible damages.” FAC at 8. “[Prisoners have] a First Amendment right to 10 send and receive mail,” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam), 11 and “[p]rison officials have a responsibility to forward mail to inmates promptly.” 12 Watkins v. Curry, No. C 10-2539 SI (pr), 2011 WL 5079532 , at *3 (N.D. Cal. Oct. 25, 13 2011) (citing Bryan v. Werner, 516 F.2d 233, 238 (3d Cir. 1975)). “However, a 14 temporary delay or isolated incident of delay or other mail interference without evidence 15 of improper motive does not violate a prisoner’s First Amendment rights.” Id. (citing 16 Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999). Butler alleges his mail and email was 17 delayed on six occasions with delays between seven and twenty-one days, but does not 18 plausibly allege any improper motive or harm he has suffered as a result of the delays. 19 FAC at 8. “Absent evidence of a broader plan or course of conduct to censor plaintiff’s 20 mail unconstitutionally, an honest error by prison officials does not justify relief under 21 § 1983.” Watkins, 2011 WL 5079532 , at *3. Butler has failed to state a § 1983 claim 22 with regard to mail delays. Iqbal, 556 U.S. at 678 ; Tsao, 698 F.3d at 1138 . 23 II. CONCLUSION 24 For the foregoing reasons, the Court DISMISSES Defendants Classification 25 Deputy, San Diego Sheriff’s Department; Medical Staff, San Diego Sheriff’s 26 Department, and the San Diego Sheriff’s Department as parties to this case. The Court 27 DIRECTS the Clerk of Court to terminate Defendants Classification Deputy, San Diego 28 Sheriff’s Department; Medical Staff, San Diego Sheriff’s Department, and the San Diego 1 Sheriff’s Department as a parties to this action pursuant to 28 U.S.C. 1915(e)(2) and § 2 1915A. The Court further DISMISSES Plaintiff’s Due Process, Equal Protection, and 3 First Amendment claims as to all Defendants for failure to state a claim pursuant to 28 4 U.S.C. §§ 1915 (e)(2) and 1915A(b). The Court DISMISSES all of Plaintiff’s Eighth and 5 Fourteenth Amendment medical and dental care claims against all Defendants for failure 6 to state a claim pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(b). The Court 7 DISMISSES all claims against Defendant Chief Medical Officer Montgomery for failure 8 to state a claim pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(b) and DIRECTS the 9 Clerk of Court to terminate Montgomery as a party to this action pursuant to 28 U.S.C. 10 1915(e)(2) and § 1915A. 11 Further, the Court DIRECTS the Clerk to issue summonses as to Plaintiff’s First 12 Amended Complaint (Doc. No. 10) upon Defendants SAN DIEGO COUNTY; 13 ANTHONY REY, San Diego County Sheriff; and SONIA L. MANNING, Facility 14 Commander of the Vista Detention Facility, and forward them to Plaintiff along with a 15 blank U.S. Marshal Forms 285. In addition, the Clerk will provide Plaintiff with certified 16 copies of this Order, a certified copy his First Amended Complaint, and the summonses 17 so that he may serve the Defendants. Upon receipt of this “IFP Package,” Plaintiff must 18 complete the Forms 285 as completely and accurately as possible, include an address 19 where Defendants may be served, see S.D. Cal. Civ. L.R. 4.1.c, and return them to the 20 United States Marshal according to the instructions the Clerk provides in the letter 21 accompanying his IFP package. 22 The Court ORDERS the U.S. Marshal to serve a copy of the First Amended 23 Complaint and summons upon Defendants SAN DIEGO COUNTY; ANTHONY REY, 24 San Diego Sheriff; and SONIA L. MANNING, Facility Commander of the Vista 25 Detention Facility, as directed by Plaintiff on the USM Forms 285 provided, and to file 26 executed waivers of personal service upon Defendants SAN DIEGO COUNTY; 27 ANTHONY REY, San Diego County Sheriff; and SONIA L. MANNING, Facility 28 Commander of the Vista Detention Facility, with the Clerk of Court as soon as possible 1 after their return. Should a Defendant fail to return the U.S. Marshal’s request for waiver 2 of personal service within 90 days, the U.S. Marshal shall instead file the completed 3 Form USM 285 Process Receipt and Return with the Clerk of Court, include the date the 4 summons, First Amended Complaint and request for waiver was mailed to that 5 Defendant, and indicate why service upon the party remains unexecuted. All costs of that 6 service will be advanced by the United States; however, if a Defendant located within the 7 United States fails, without good cause to sign and return the waiver requested by the 8 Marshal on Plaintiff’s behalf, the Court will impose upon the Defendant any expenses 9 later incurred in making personal service. See 28 U.S.C. § 1915 (d); Fed. R. Civ. P. 10 4(c)(3). 11 The Court ORDERS Defendants, once they have been served, to reply to 12 Plaintiff’s First Amended Complaint, and any subsequent pleading they may file in this 13 matter in which they are named as parties, within the time provided by the applicable 14 provisions of Federal Rule of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. 15 § 1997e(g)(2) (stating that while a defendant may occasionally be permitted to “waive the 16 right to reply to any action brought by a prisoner confined in any jail, prison, or other 17 correctional facility under section 1983,” once the Court has conducted its sua sponte 18 screening pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(b), and thus, has made a 19 preliminary determination based on the face on the pleading that Plaintiff has a 20 “reasonable opportunity to prevail on the merits,” defendant is required to respond). 21 The Court ORDERS Plaintiff, after service has been effected by the U.S. Marshal, 22 to serve upon Defendants, or if appearance has been entered by counsel, upon 23 Defendants’ counsel, a copy of every further pleading, motion, or other document 24 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 25 include with every original document he seeks to file with the Clerk of the Court, a 26 certificate stating the manner in which a true and correct copy of that document was 27 served on Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 28 5.2. Any document received by the Court which has not been properly filed with the 1 || Clerk, or which fails to include a Certificate of Service upon the Defendants, may be 2 || disregarded. 3 IT IS SO ORDERED. 4 Dated: October 20, 2022 5 Nuh Ub-(hielter 6 HON. MICHAEL M. ANELLO 7 United States District Judge — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —