“[m]ore modest deprivations can also form the objective basis of a 27 violation, but only if such deprivations are lengthy or ongoing”
How later courts described this case
- “[m]ore modest deprivations can also form the objective basis of a 27 violation, but only if such deprivations are lengthy or ongoing”
- recognizing an arbitrary confiscation and 27 destruction of property, initiation of a prison transfer, and assault as retaliation for filing inmate 28 grievances
- finding that a mere threat does not constitute a 12 constitutional wrong, nor do allegations that a naked threat that was for purpose of denying access 13 to courts compel a contrary result
- finding that a retaliatory prison 1 transfer and double-cell status can constitute a cause of action for retaliation under the First 2 Amendment
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 JOSE SANTIAGO MALDONADO, No. 2:21-cv-01080-CKD P
12 Plaintiff,
13 v. ORDER
14 HOWTZ, et al.,
15 Defendants.
16
17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §
18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §
19 636(b)(1) and plaintiff has consented to have all matters in this action before a United States
20 Magistrate Judge. See 28 U.S.C. § 636(c).
21 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a
22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.
23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the
25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.
26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding
27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by
28 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
1 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
2 I. Screening Standard
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 upon which relief may be granted, or that seek
7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
14 Cir. 1989); Franklin, 745 F.2d at 1227.
15 In order to avoid dismissal for failure to state a claim a complaint must contain more than
16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
23 at 678. When considering whether a complaint states a claim upon which relief can be granted,
24 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and
25 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
26 U.S. 232, 236 (1974).
27 II. Allegations in the Complaint
28 At all times relevant to the allegations in the complaint, plaintiff was a prisoner at High
1 Desert State Prison. Plaintiff was placed in a holding cell with no sink, toilet, food, or water for
2 eight hours following a visit with his wife. During this time period, plaintiff had to urinate on the
3 floor and smell his own urine in the cell. The complaint alleges that this was done in retaliation
4 for plaintiff’s wife’s complaint about the prison guard’s delay in bringing plaintiff to the
5 visitation booth. By way of relief, plaintiff seeks monetary damages and a declaratory judgment.
6 III. Legal Standards
7 A. Linkage
8 The civil rights statute requires that there be an actual connection or link between the
9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
10 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
11 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a
12 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates
13 in another's affirmative acts or omits to perform an act which he is legally required to do that
14 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th
15 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must
16 link each named defendant with some affirmative act or omission that demonstrates a violation of
17 plaintiff's federal rights.
18 B. Retaliation
19 “Within the prison context, a viable claim of First Amendment retaliation entails five
20 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)
21 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's
22 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate
23 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted).
24 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351
25 F.3d 1283, 1288 (9th Cir. 2003). A prison transfer may also constitute an adverse action. See
26 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (recognizing an arbitrary confiscation and
27 destruction of property, initiation of a prison transfer, and assault as retaliation for filing inmate
28 grievances); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (finding that a retaliatory prison
1 transfer and double-cell status can constitute a cause of action for retaliation under the First
2 Amendment).
3 C. Verbal Threats
4 An inmate's Eighth Amendment rights are violated by a prison official if that official
5 exposes an inmate to a “substantial risk of serious harm,” while displaying “deliberate
6 indifference” to that risk. Farmer, 511 U.S. at 834. However, the verbal exchange of offensive
7 insults between inmates and guards does not rise to the level of an Eighth Amendment violation.
8 See Watison v. Carter, 668 F.3d 1108, 1113 (9th Cir. 2012); see also Keenan v. Hall, 83 F.3d
9 1083, 1092 (9th Cir. 1996) (citation omitted) (stating that “verbal harassment generally does not
10 violate the Eighth Amendment”), amended on other grounds by 135 F.3d 1318 (9th Cir. 1998);
11 Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (finding that a mere threat does not constitute a
12 constitutional wrong, nor do allegations that a naked threat that was for purpose of denying access
13 to courts compel a contrary result).
14 D. Conditions of Confinement
15 In order for a prison official to be held liable for alleged unconstitutional conditions of
16 confinement, the prisoner must allege facts that satisfy a two-prong test. Peralta v. Dillard, 744
17 F.3d 1076, 1082 (9th Cir. 2014) (citing Farmer, 511 U.S. at 837). The first prong is an objective
18 prong, which requires that the deprivation be “sufficiently serious.” Lemire v. Cal. Dep’t of Corr.
19 & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (citing Farmer, 511 U.S. at 834). In order to be
20 sufficiently serious, the prison official’s “act or omission must result in the denial of the ‘minimal
21 civilized measure of life’s necessities.” Lemire, 726 F.3d at 1074. The objective prong is not
22 satisfied in cases where prison officials provide prisoners with “adequate shelter, food, clothing,
23 sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
24 2000) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). “[R]outine discomfort
25 inherent in the prison setting” does not rise to the level of a constitutional violation. Johnson v.
26 Lewis, 217 F.3d at 732 (“[m]ore modest deprivations can also form the objective basis of a
27 violation, but only if such deprivations are lengthy or ongoing”). Rather, extreme deprivations
28 are required to make out a conditions of confinement claim, and only those deprivations denying
1 the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an
2 Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9
3 (1992). The circumstances, nature, and duration of the deprivations are critical in determining
4 whether the conditions complained of are grave enough to form the basis of a viable Eighth
5 Amendment claim. Johnson v. Lewis, 217 F.3d at 731.
6 The second prong focuses on the subjective intent of the prison official. Peralta, 774 F.3d
7 at 1082 (9th Cir. 2014) (citing Farmer, 511 U.S. at 837). The deliberate indifference standard
8 requires a showing that the prison official acted or failed to act despite the prison official’s
9 knowledge of a substantial risk of serious harm to the prisoner. Id. (citing Farmer, 511 U.S. at
10 842); see also Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991). Mere
11 negligence on the part of the prison official is not sufficient to establish liability. Farmer, 511
12 U.S. at 835.
13 IV. Analysis
14 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon
15 which relief can be granted under federal law. The allegations in the complaint do not
16 demonstrate a lengthy or ongoing deprivation of food, water, or sanitation that rises to the level of
17 a constitutional violation. See Johnson v. Lewis, 217 F.3d at 732. Nor does the “ominous tone”
18 that the correctional officers used when speaking to plaintiff or his wife constitute an Eighth
19 Amendment violation. See Watison v. Carter, 668 F.3d 1108, 1113 (9th Cir. 2012). Plaintiff has
20 failed to state a claim for retaliation because the adverse action was taken based on the conduct of
21 plaintiff’s wife and not in response to any protected activity of plaintiff. For all these reasons,
22 plaintiff’s complaint must be dismissed. The court will, however, grant leave to file an amended
23 complaint.
24 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions
25 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.
26 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in
27 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C.
28 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the
1 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory
2 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of
3 Regents, 673 F.2d 266, 268 (9th Cir. 1982).
4 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to
5 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
6 complaint be complete in itself without reference to any prior pleading. This is because, as a
7 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
8 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
9 longer serves any function in the case. Therefore, in an amended complaint, as in an original
10 complaint, each claim and the involvement of each defendant must be sufficiently alleged.
11 V. Plain Language Summary for Pro Se Party
12 The following information is meant to explain this order in plain English and is not
13 intended as legal advice.
14 The court has reviewed the allegations in your complaint and determined that they do not
15 state any claim against the defendants. Your complaint is being dismissed, but you are being
16 given the chance to fix the problems identified in this screening order.
17 Although you are not required to do so, you may file an amended complaint within 30
18 days from the date of this order. If you choose to file an amended complaint, pay particular
19 attention to the legal standards identified in this order which may apply to your claims.
20 In accordance with the above, IT IS HEREBY ORDERED that:
21 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.
22 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees
23 shall be collected and paid in accordance with this court’s order to the Director of the California
24 Department of Corrections and Rehabilitation filed concurrently herewith.
25 3. Plaintiff’s complaint is dismissed.
26 4. Plaintiff is granted thirty days from the date of service of this order to file an amended
27 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil
28 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket
1 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an
2 || amended complaint in accordance with this order will result in a recommendation that this action
3 || be dismissed.
4 | Dated: August 18, 2021 Card ke Lg a
5 CAROLYN K DELANEY?
6 UNITED STATES MAGISTRATE JUDGE
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