(PC)Wallace v. White

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 WILLIAM JAMES WALLACE, II, No. 1:20-cv-00844-EPG (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT PLAINTIFF’S

13 v. SECOND AMENDED COMPLAINT

PROCEED ON PLAINTIFF’S CLAIMS

14 J. WHITE, et al., AGAINST DEFENDANTS LOPEZ, WADE,

WHITE AND DOE FOR DELIBERATE

15 Defendants. INDIFFERENCE TO UNCONSTITUTIONAL

CONDITIONS OF CONFINEMENT AND

16 THAT ALL OTHER DEFENDANTS AND

CLAIMS BE DISMISSED

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(ECF No. 16)

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TWENTY-ONE DAY DEADLINE

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ORDER DENYING PLAINTIFF’S MOTION

20 FOR THE APPOINTMENT OF PRO BONO

COUNSEL

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(ECF No. 16)

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ORDER DIRECTING CLERK OF COURT TO

23 APPOINT DISTRICT JUDGE

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Plaintiff William James Wallace, II (“Plaintiff”) is a state inmate proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the

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Complaint commencing this action on June 15, 2020. (ECF No. 1). Now before the Court is

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Plaintiff’s second amended complaint, filed on October 26, 2020. (ECF No. 16). The second

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1 amended complaint brings claims concerning the housing conditions at his former institution of

2 confinement, Wasco State Prison, and concerning the prison’s failure to comply with the

3 Americans with Disabilities Act. Plaintiff’s complaint also requests the Court to appoint pro bono

4 counsel.

5 The Court has reviewed the complaint and finds that the following claims should proceed

6 past the screening stage: Plaintiff’s Eighth Amendment claim for unconstitutional conditions of

7 confinement against Defendants Lopez, Wade, White and Doe. The Court recommends

8 dismissing all other claims and defendants. In addition, the Court denies Plaintiff’s motion for the

9 appointment of pro bono counsel.

10 Plaintiff has twenty-one days from the date of service of these findings and

11 recommendations to file his objections to the findings and recommendations.

12 I. PROCEDURAL BACKGROUND

13 This is the third complaint the Court has screened in this action. In its first screening

14 order, the Court found that Plaintiff’s original complaint, which brought claims under the

15 Americans with Disabilities Act, the Eighth Amendment, and the First Amendment, failed to

16 comply with Federal Rules of Civil Procedure 18 and 20 because it proceeded on unrelated claims

17 against different defendants. (ECF No. 9). The Court provided legal standards and granted

18 Plaintiff leave to amend. (Id.).

19 Plaintiff filed a first amended complaint on September 23, 2020. (ECF No. 12). It brought

20 substantially the same claims as in the original complaint. In its second screening order, the Court

21 again found Plaintiff’s complaint failed to comply with Rules 18 and 20, for the same reason as in

22 the first screening order. (ECF No. 13).

23 Plaintiff filed his second amended complaint on October 26, 2020, (ECF No. 16), which is

24 now before the Court for screening.

25 II. SCREENING REQUIREMENT

26 The Court is required to screen complaints brought by inmates seeking relief against a

27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

28 Court must dismiss a complaint or portion thereof if the inmate has raised claims that are legally

1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

3 As Plaintiff is proceeding in forma pauperis, the Court may also screen the complaint under 28

4 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid,

5 the court shall dismiss the case at any time if the court determines that the action or appeal fails to

6 state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

7 A complaint is required to contain “a short and plain statement of the claim showing that

8 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

12 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

13 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this

14 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not

15 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681

16 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal

17 conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

18 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal

19 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that

20 pro se complaints should continue to be liberally construed after Iqbal).

21 III. ALLEGATIONS IN THE COMPLAINT

22 Plaintiff’s second amended complaint alleges the following:

23 Plaintiff was incarcerated at Wasco State Prison, which is operated by Defendant

24 California Department of Corrections and Rehabilitation (“CDCR”). Defendants Lopez and Wade

25 are correctional officers employed at Wasco. Defendant White is the assistant superintendent at

26 Wasco. Defendant Doe is an unidentified CDCR employee.

27 Since March 2017, Plaintiff has had non-union of the medical malleolus with spastic

28 paralysis, which is a chronic condition sometimes called hammertoe. Plaintiff’s left foot flexes

1 and his toes are curled into a claw. He always requires a wheelchair for mobility.

2 Plaintiff arrived at Wasco on January 21, 2020. During his transfer, his medically

3 necessary orthopedic shoes were lost. He is unable to use CDCR’s standard-issued shoes. Plaintiff

4 has requested orthopedic shoes but CDCR has failed to provide them. Without those shoes,

5 Plaintiff is unable to safely transfer from his wheelchair to a toilet, his bed, a chair, etc. In

6 addition, it leaves him without shoes in an unsanitary environment.

7 Plaintiff grieved his lack of the shoes. Defendants have delayed providing the shoes and

8 state their intention to do so.

9 Plaintiff’s housing unit, H2, contains 200 inmates, four showers, and only one ADA-

10 accessible shower. Overcrowding prevents Plaintiff from meeting his personal hygiene needs.

11 Plaintiff has also grieved over an insufficient number of toilets and a denial of access to

12 handicapped-accessible toilets. Defendants have taken no actions.

13 Unit H2 has inoperable plumbing. Toilets overflow, and the floors are constantly covered

14 in human waste. The waste causes imminent danger because it transfers to his wheelchair’s

15 wheels and then his hands and clothing.

16 Plaintiff reported this problem to Defendants Lopez, Wade and White. The dangers were

17 obvious, but no actions were taken to prevent further exposure. Plaintiff also grieved the

18 unsanitary environment to Defendant Doe, who took no actions to abate further exposure to

19 human waste.

20 Unit H2 also had inadequate ventilation. The intake registers were located near the

21 showers. The walls were covered in black mold, and the air was saturated with fumes of feces and

22 urine. This air was dispensed over the entire unit, both the sleeping area and the dining area.

23 Plaintiff notified Defendant Wade, who ordered maintenance to perform the necessary

24 cleaning of the intake registers. Maintenance reported they were unable to complete the task

25 because “the system is too dirty and attempting to clean it would release debris into the

26 environment.”

27 Plaintiff suffered from severe congestion, coughing, irritated eyes, and difficulty breathing

28 when lying down. Plaintiff sought medical attention for these symptoms. He was prescribed

1 allergy medication, and medical staff confirmed it was caused by the inadequate ventilation in the

2 unit.

3 Plaintiff grieved the statement concerning maintenance’s decision that the ventilation was

4 too dirty to clean. Defendant Doe failed to take the necessary steps to abate the risk of further

5 exposure. Plaintiff notified Defendants that he was pursuing a complaint concerning the

6 conditions of confinement and was transferred the following day. Plaintiff alleges that with

7 discovery, he will find that Defendants knew of the unconstitutional conditions within Unit H2

8 but were deliberately indifferent.

9 IV. ADDITIONAL ACTION

10 The second amended complaint references a separate ongoing action Defendant brought in

11 this district: Wallace v. CDCR, 1:20-cv-00905-NONE-JLT (PC). The Court takes judicial notice

12 of that case. Fed. R. Evid. 201; United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980)

13 (recognizing that under Federal Rule of Evidence 201, “a court may take judicial notice of its own

14 records in other cases”). In Wallace v. CDCR, Plaintiff’s action is proceeding on his claims

15 against the CDCR and individual defendants in their official capacities for violating the ADA, in

16 part due to the failure to provide Plaintiff with orthotics. Wallace, 1:20-cv-905, ECF Nos. 20, 22,

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18 V. SECTION 1983

19 The Civil Rights Act under which this action was filed provides:

20 Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

21 Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

22 deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

23 at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely

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provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490

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U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also

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Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles,

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697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012);

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1 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

2 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under

3 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or

4 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh

5 v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state

6 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he

7 does an affirmative act, participates in another's affirmative act, or omits to perform an act which

8 he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler

9 II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy,

10 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an

11 official sets in motion a ‘series of acts by others which the actor knows or reasonably should

12 know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183

13 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard

14 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d

15 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir.

16 2008).

17 Additionally, a plaintiff must demonstrate that each named defendant personally

18 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must

19 be an actual connection or link between the actions of the defendants and the deprivation alleged

20 to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658,

21 691, 695 (1978).

22 Supervisory personnel are generally not liable under § 1983 for the actions of their

23 employees under a theory of respondeat superior and, therefore, when a named defendant holds a

24 supervisory position, the causal link between him and the claimed constitutional violation must be

25 specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.

26 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief under

27 § 1983 based on a theory of supervisory liability, a plaintiff must allege some facts that would

28 support a claim that the supervisory defendants either personally participated in the alleged

1 deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or

2 promulgated or “implement[ed] a policy so deficient that the policy itself is a repudiation of

3 constitutional rights' and is ‘the moving force of the constitutional violation.” Hansen v. Black,

4 885 F.2d 642, 646 (9th Cir. 1989) (citations and internal quotation marks omitted); Taylor v. List,

5 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be liable for his “own

6 culpable action or inaction in the training, supervision, or control of his subordinates,” “his

7 acquiescence in the constitutional deprivations of which the complaint is made,” or “conduct that

8 showed a reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles,

9 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, quotation marks, and alterations omitted).

10 VI. ANALYSIS OF PLAINTIFF’S CLAIMS

11 A. Pleading Standards

12 A complaint must comply with the requirements of Federal Rules of Civil Procedure 18

13 and 20. Under these rules, a plaintiff may not proceed on a myriad of unrelated claims against

14 different defendants in a single action. Fed. R. Civ. P. 18(a), 20(a)(2).

The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a

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claim to relief as an original claim, counterclaim, cross-claim, or third party

16 claim, may join, either as independent or as alternate claims, as many claims,

legal, equitable, or maritime, as the party has against an opposing party.’ Thus

17 multiple claims against a single party are fine, but Claim A against Defendant

1 should not be joined with unrelated Claim B against Defendant 2. Unrelated

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claims against different defendants belong in different suits, not only to

prevent the sort of morass [a multiple claim, multiple defendant] suit

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produce[s], but also to ensure that prisoners pay the required filing fees-for the

20 Prison Litigation Reform Act limits to 3 the number of frivolous suits or

appeals that any prisoner may file without prepayment of the required fees. 28

21 U.S.C. § 1915(g).”

22 K’napp v. California Dept. of Corrections, 2013 WL 5817765, at *2 (E.D. Cal., Oct. 29, 2013),

23 aff’d sub nom. K’napp v. California Dept. of Corrections & Rehabilitation, 599 Fed. Appx. 791

24 (9th Cir. 2015) (alteration in original) (quoting George v. Smith, 507 F.3d 605, 607 (7th Cir.

25 2007). See also Fed. R. Civ. P. 20(a)(2) (“Persons . . . may be joined in one action as defendants

26 if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with

27 respect to or arising out of the same transaction, occurrence, or series of transactions or

28 occurrences; and (B) any question of law or fact common to all defendants will arise in the

1 action.”).

2 Plaintiff brings two types of claims. The first type concerns unsanitary conditions, raw

3 sewage, and mold. The second concerns whether Plaintiff has received reasonable

4 accommodations under the Americans with Disabilities Act (“ADA”). These claims are not

5 related and thus violate Federal Rules of Civil Procedure 18 and 20.

6 This is the third time the Court has found Plaintiff failed to comply with Rules 18 and 20.

7 The Court previously warned Plaintiff that continued failures to comply with Rules 18 and 20

8 could lead to the Court severing claims:

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The Court notes the above analysis is nearly identical to the analysis the Court

10 provided with respect to Plaintiff’s first complaint. Plaintiff may not pursue

multiple unrelated actions in one lawsuit. If Plaintiff amends his

11 complaint, he must choose on claim or related set of claims to pursue.

Other actions may be brought in separate lawsuits. If Plaintiff’s second

12 amended complaint fails to comply with Rules 18 and 20, the Court may

choose to pick one claim and sever the remainder.

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(ECF No. 13 at 6) (emphasis in original).

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Because Plaintiff is pursuing a separate case concerning the Americans with Disabilities

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Act, see Wallace v. CDCR, 1:20-cv-00905-NONE-JLT (PC), the Court recommends dismissing

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Plaintiff’s ADA claim for failure to comply with Federal Rules of Civil Procedure 18 and 20

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without prejudice.

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B. Conditions of Confinement Claims

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1. Legal Standards

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“It is undisputed that the treatment a prisoner receives in prison and the conditions under

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which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” Helling v.

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McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994).

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Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. See

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Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

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Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d

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1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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1 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor,

2 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v.

3 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.

4 1981).

5 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511

6 U.S. at 834. “First, the deprivation must be, objectively, sufficiently serious." Id. (internal

7 quotation marks and citation omitted). Second, “prison officials must have a sufficiently culpable

8 state of mind,” which for conditions of confinement claims, “is one of deliberate indifference.”

9 Id. (internal quotation marks and citation omitted). Prison officials act with deliberate

10 indifference when they know of and disregard an excessive risk to inmate health or safety. Id. at

11 837. The circumstances, nature, and duration of the deprivations are critical in determining

12 whether the conditions complained of are grave enough to form the basis of a viable Eighth

13 Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere negligence on the

14 part of a prison official is not sufficient to establish liability, but rather, the official's conduct must

15 have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.

16 1998).

17 “‘The occasional presence of a rodent is insufficient to establish the objective component

18 of an Eighth Amendment claim, which requires that a deprivation be sufficiently serious.’”

19 Jackson v. Walker, 2009 WL 1743639 at *8 (E.D. Cal. 2009) (quoting Tucker v. Rose, 955

20 F.Supp. 810, 816 (N.D.Ohio 1997). However, a “lack of sanitation that is severe or prolonged

21 can constitute an infliction of pain within the meaning of the Eighth Amendment.” Anderson v.

22 Cty. of Kern, 45 F.3d 1310, 1314 (9th Cir.), opinion amended on denial of reh'g, 75 F.3d 448 (9th

23 Cir. 1995). See also Taylor v. Riojas, 141 S.Ct. 52, 53-54 (2020) (finding no qualified immunity

24 to officers who housed inmate “in cells teeming with human waste” for six days).

25 2. Analysis of Plaintiff’s Claims

26 Here, Plaintiff alleges that there are insufficient toilets and poor plumbing in Unit H2, a

27 200-person dorm, leading to human feces on the floor, which subsequently gets on his hands and

28 clothes. Plaintiff also alleges there are too few showers, so he is unable to clean himself. Plaintiff

1 further alleges inadequate ventilation in the unit leads to mold. These allegations are sufficiently

2 serious at this screening stage to allege an Eighth Amendment violation.

3 Plaintiff alleges he reported the problems to Defendants Lopez, Wade, White and Doe.

4 However, the problems persisted and there were no actions to abate the plumbing despite the

5 obvious presence of feces. Plaintiff further alleges that even though Defendant Wade ordered

6 maintenance to work on the ventilation, none of the problems were fixed. For screening purposes,

7 these allegations are sufficient to show deliberate indifference. As such, the Court will allow

8 Plaintiff’s deliberate indifference claims to go forward.

9 VII. MOTION TO APPOINT COUNSEL

10 Plaintiff’s second amended complaint also includes a motion to appoint counsel. This is

11 Plaintiff’s second motion for the appointment of counsel, which the Court denied. (See ECF Nos.

12 10, 11). For the same reasons as before, the Court denies Plaintiff’s renewed motion to appoint

13 counsel without prejudice.

14 VIII. CONCLUSION, RECOMMENDATIONS AND ORDER

15 The Court has screened Plaintiff’s complaint and finds that it states cognizable claims

16 against Defendants Lopez, Wade, White and Doe for violating Plaintiff’s Eighth Amendment

17 rights with respect to the conditions of confinement at Wasco and that Plaintiff’s claims under the

18 ADA should be dismissed without prejudice for failure to comply with Federal Rules of Civil

19 Procedure 18 and 20.

20 Based on the foregoing, it is HEREBY RECOMMENDED that:

21 1. This case proceed on Plaintiff’s claims against Defendants Lopez, Wade, White

22 and Doe for violating Plaintiff’s Eighth Amendment rights by being deliberately

23 indifferent to the unconstitutional conditions of confinement at Wasco; and

24 2. All other Defendants and claims be dismissed without prejudice.

25 In addition, it is HEREBY ORDERED that:

26 A. Plaintiff’s motion to appoint counsel (ECF No. 16) be DENIED; and

27 B. The clerk of court is respectfully directed to appoint a district judge to this case.

28 These findings and recommendations will be submitted to the United States district judge

1 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within twenty-one

2 | (21) days after being served with these findings and recommendations, the parties may file

3 | written objections with the Court. The document should be captioned “Objections to Magistrate

4 | Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

5 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772

6 | F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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g IT IS SO ORDERED.

Dated: _ January 12, 2021 [see heey □

10 UNITED STATES MAGISTRATE JUDGE

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