(PC) Rojas v. County of Sacramento

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ROBERT EUGENE ROJAS, No. 2:22-cv-1105 KJM AC P

12 Plaintiff,

13 v. ORDER

14 COUNTY OF SACRAMENTO,

15 Defendant.

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17 Plaintiff, a former pretrial detainee proceeding pro se, seeks relief pursuant to 42 U.S.C.

18 § 1983; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; and Section

19 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794, and has requested leave to

20 proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

21 I. Application to Proceed In Forma Pauperis

22 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

23 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted.

24 II. Statutory Screening of Prisoner Complaints

25 The court is required to screen complaints brought by prisoners1 seeking relief against “a

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

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1 Plaintiff was incarcerated at the time he filed the complaint, though it appears from the docket

28 that he has since been released from custody.

1 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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

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

4 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

5 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

6 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

7 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,

8 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

9 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

10 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

11 Franklin, 745 F.2d at 1227-28 (citations omitted).

12 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

13 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

14 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

15 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

16 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

17 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

18 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

19 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

20 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

21 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain

22 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

23 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

24 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

25 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

26 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

27 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

28 content that allows the court to draw the reasonable inference that the defendant is liable for the

1 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

2 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

3 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the

4 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

5 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). “However, a liberal

6 interpretation of a pro se civil rights complaint may not supply essential elements of the claim

7 that were not initially pled.” Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (citation

8 omitted).

9 III. Complaint Summary

10 Plaintiff alleges that defendant Sacramento County violated his First, Fifth, Sixth, and

11 Fourteenth Amendment rights, as well as his rights under the ADA and RA, while he was a

12 pretrial detainee. ECF No. 1. The complaint, which spans nearly forty pages,2 predominately

13 alleges unconstitutional conditions of confinement and deficient psychiatric care, but also

14 includes allegations of deficient medical care; denial of the right to practice his religion;

15 interference with his access to the courts, counsel, and mail; retaliation; excessive force; sexual

16 harassment; unconstitutional disciplinary proceedings; theft of property and excessive

17 commissary prices; and violations of the ADA and RA. Id.

18 IV. Legal Standard for County Liability

19 “[M]unicipalities and other local government units . . . [are] among those persons to

20 whom § 1983 applies.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). In order to

21 establish municipal liability, plaintiff must allege facts showing that “(1) [he] had a constitutional

22 right of which he was deprived; (2) the municipality had a policy; (3) the policy amounts to

23 deliberate indifference to his constitutional right; and (4) ‘the policy is the moving force behind

24 the constitutional violation.’” Gordon v. County of Orange (Gordon II), 6 F.4th 961, 973 (9th

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2 The court notes that plaintiff has also filed over 1600 pages of exhibits (ECF Nos. 5-7, 10),

which will not be considered as part of the screening process. It is not the court’s responsibility

27 to sift through plaintiff’s exhibits to attempt to decipher what specific claims he may be

attempting to make against defendant, and analysis of plaintiff’s claims will be based only on the

28 allegations contained within the complaint itself.

1 Cir. 2021) (quoting Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). There must

2 be “a direct causal link between municipal policy or custom and the alleged constitutional

3 deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). “[A] municipality cannot be

4 held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be

5 held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691.

6 Plaintiff can establish liability where the county acted in accordance with “an expressly

7 adopted official policy” or (2) a “longstanding practice or custom.” Gordon II, 6 F.4th at 973

8 (quoting Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014)). The county may

9 also be liable when the violation was committed by “an official with final policy-making

10 authority or such an official ratified a subordinate’s unconstitutional decision or action and the

11 basis for it.” Id. at 974 (internal quotation marks omitted) (quoting Clouthier v. County of Contra

12 Costa, 591 F.3d 1232, 1250 (9th Cir. 2010)). “Proof of random acts or isolated events is

13 insufficient to establish custom,” Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995) (citations

14 omitted), but it may be shown by “repeated constitutional violations for which the errant

15 municipal officials were not discharged or reprimanded,” Gillette v. Delmore, 979 F.2d 1342,

16 1349 (9th Cir. 1992).

17 V. Claim for Which a Response is Required

18 Plaintiff alleges the County maintains constitutionally deficient jail conditions and mental

19 health treatment practices, which violated his Fourteenth Amendment rights. ECF No. 1. For the

20 entirety of his incarceration plaintiff, who suffers from serious mental illness, was designated

21 “total separation” and housed in solitary confinement where he was confined to his cell for over

22 twenty-three hours per day and regularly deprived of “human contact, programming, fresh air,

23 and sunlight.” Id. at 1, 13, 15, 21. While in solitary confinement, plaintiff was further subjected

24 to unsanitary conditions such as rodent and insect infestations, other inmates flooding the pod

25 with toilet water containing urine and feces, inadequate cleaning and sanitization, and bedding

26 which was “contaminated with bodily fluids, bacteria, and fungi.” Id. at 4-5. When plaintiff

27 attempted to commit suicide or expressed suicidal ideation, he was placed in “an extremely harsh

28 form of psychiatric solitary confinement” further removing him from the little human contact he

1 would otherwise have and completely removing his ability to access sunlight, fresh air, and

2 shower, among other things. Id. at 15, 25. The psychiatric solitary confinement cells were

3 similarly “covered in feces, urine, blood and other dangerous bodily fluids.” Id. at 27. These

4 conditions, coupled with a failure to provide mental health treatment, exacerbated plaintiff’s

5 existing mental illness and “he has suffered worsening depression, extreme grief, extreme

6 anxiety, suicidal thoughts, attempted suicide, and engaged in self-mutilation countless times.” Id.

7 at 2, 13.

8 Plaintiff further alleges that defendant “has been aware of the constitutionally and legally

9 inadequate care and conditions in its jails for years” based on various reports both commissioned

10 by defendant and from outside organizations. Id. at 9-12, 24. Multiple reports have found the

11 jail’s conditions that plaintiff complains of, including the excessive use of segregation for

12 mentally ill inmates, to be “inhumane, excessively punitive,” and “unlikely to meet constitutional

13 standards.” Id. at 9-10. The conditions were found to be especially dangerous for persons with

14 mental health conditions and likely to cause further decompensation and self-harm, with the

15 suicide prevention policies labeled as “punitive and anti-therapeutic.” Id. at 10-11, 27-28.

16 These allegations are sufficient to state claims for unconstitutional conditions of

17 confinement and inadequate psychiatric care in violation of the Fourteenth Amendment and

18 defendant will be required to respond. See Demery v. Arpaio, 378 F.3d 1020, 1024 (9th Cir.

19 2004) (“The Fourteenth Amendment prohibits punishment of pretrial detainees.” (citing Bell v.

20 Wolfish, 441 U.S. 520, 535 (1979))); Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir.

21 1995) (“subjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an

22 infliction of pain within the meaning of the Eighth Amendment” (citations omitted)); Doty v.

23 County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (“[T]he requirements for mental health care

24 are the same as those for physical health care needs.” (citations omitted)).

25 VI. Failure to State a Claim

26 A. Medical Care

27 Plaintiff alleges that defendant “does not timely or adequately respond to requests for

28 medical care, and denies or delays [chronic and specialty care] for excessive periods of time.” Id.

1 at 2. This resulted in diminishing eyesight that could have been prevented, worsening of

2 plaintiff’s COPD (chronic obstructive pulmonary disorder), and needless pain. Id. Plaintiff was

3 also denied access to a “lower-tier, lower-bunk chrono, pain medication, and neurological

4 ointment,” nebulizer breathing treatments, various asthma and allergy medications, and regular

5 visits with a specialist for his COPD. Id. at 14. Defendant has known about the constitutionally

6 inadequate care for years because of “[r]eports from multiple outside agencies and consultants

7 [which] have repeatedly documented . . . major deficiencies in health care.” Id. at 9.

8 Even assuming that plaintiff was subject to unconstitutional medical care, he fails to state

9 a claim for relief against the only named defendant because he has not shown that the deficient

10 care resulted from a policy or practice within the jail. Although he alleges that defendant was

11 aware of major deficiencies in the provision of health care, he does not identify those deficiencies

12 such that the alleged inadequacies in his care can be attributed to some policy or practice of the

13 County as opposed to the decision of an individual medical provider.

14 To the extent plaintiff may be attempting to allege deliberate indifference against an

15 individual defendant, he similarly fails to do so. “Liability under § 1983 must be based on the

16 personal involvement of the defendant,” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

17 1998) (citing May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980)), and “[v]ague and conclusory

18 allegations of official participation in civil rights violations are not sufficient,” Ivey v. Bd. of

19 Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). Because the complaint does not

20 name any particular defendant who made a decision regarding plaintiff’s care, he cannot establish

21 an individual was deliberately indifferent to his medical needs. If plaintiff chooses to amend his

22 complaint to add an individual defendant, he must allege facts showing

23 (i) the defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined; (ii) those

24 conditions put the plaintiff at substantial risk of suffering serious

harm; (iii) the defendant did not take reasonable measures to abate

25 that risk, even though a reasonable official in the circumstances

would have appreciated the high degree of risk involved—making

26 the consequences of the defendant’s conduct obvious; and (iv) by not

taking such measures, the defendant caused the plaintiff’s injuries.

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28 Gordon v. County of Orange (Gordon I), 888 F.3d 1118, 1125 (9th Cir. 2018).

1 B. Religion

2 The complaint also alleges that plaintiff has been denied the ability to practice his religion

3 in violation of the First Amendment. ECF No. 1 at 3. Specifically, plaintiff claims that he is not

4 allowed access to Jewish religious services or the ability to speak to a Rabbi, receive a kosher

5 diet, or access religious reading material. Id. at 3.

6 To establish a free exercise violation, plaintiff must show defendant burdened the practice

7 of his religion, without justification reasonably related to legitimate penological interests, by

8 preventing him from engaging in conduct that is (1) based on a “sincerely held” religious concern

9 and (2) “rooted in religious belief” rather than in secular philosophical concerns. Shakur v.

10 Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (citations omitted). While the blanket denial of

11 plaintiff’s ability to practice his religion demonstrates that he was subject to a substantial burden

12 to his religious practice without a valid penological purpose, he does not allege facts showing that

13 denial was the result of the County’s policies or customs and he therefore fails to state a claim

14 against defendant.

15 C. Access to the Courts and Mail

16 Plaintiff alleges that he is denied access to legal services and the law library, that legal

17 mail is not properly tracked or timely processed, responses to legal research requests are delayed

18 and inadequate, and he is not afforded the ability to conduct confidential legal calls. ECF No. 1 at

19 3-4. He also asserts that both his legal and non-legal mail are tampered with, delayed by two to

20 three months, and opened and read outside his presence. ECF No. 1 at 4-5.

21 The constitutional right of access to courts “is ancillary to the underlying claim, without

22 which a plaintiff cannot have suffered injury by being shut out of court.” Christopher v. Harbury,

23 536 U.S. 403, 415 (2002); see also Lewis v. Casey, 518 U.S. 343, 349 (1996) (access to courts

24 claim requires plaintiff to show that the defendant’s conduct caused “actual injury”). To state a

25 claim for deprivation of the right of access to courts, a plaintiff must show: (1) the loss of a

26 “nonfrivolous” claim; (2) the official acts frustrating the litigation; and (3) a remedy that may be

27 awarded as recompense but that is not otherwise available in a future suit. Christopher, 536 U.S.

28 at 415.

1 Plaintiff fails to state an access to the courts claim because he fails identify any actual

2 injury as a result of the alleged interference. At most, he alleges is that his criminal proceedings

3 “have been stalled and delayed,” but provides no clarification as to what that entails. See ECF

4 No. 1 at 13. Furthermore, the only defendant in this case is Sacramento County, which means

5 plaintiff must allege facts showing that any suffered harm resulted from the defendant’s policy or

6 custom, which he has not done.

7 With respect to plaintiff’s mail, prisoners “enjoy[] a First Amendment right to send and

8 receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). Moreover, “prisoners have a

9 protected First Amendment interest in having properly marked legal mail opened only in their

10 presence,” though the same protection does not apply to non-legal mail. Hayes v. Idaho Corr.

11 Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). Legal mail entitled to First Amendment protection is

12 narrowly defined as confidential correspondence between a prisoner and his attorney. See

13 Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 2014) (“Mail from the courts, as contrasted to mail

14 from a prisoner’s lawyer, is not legal mail.”). In criminal cases, such correspondence is also

15 protected by the Sixth Amendment. Mangiaracina v. Penzone, 849 F.3d 1191, 1196 (9th Cir.

16 2017).

17 It is unclear whether any of plaintiff’s legal mail would be protected under the Sixth

18 Amendment, as he indicates that he is representing himself in his criminal case. ECF No. 1 at 3.

19 However, even if plaintiff’s mail is entitled to protection under both the First and Sixth

20 Amendments, the only defendant in this case is Sacramento County. Therefore, to state a claim,

21 plaintiff must show that a jail policy, practice, or custom caused the violation of his rights, as

22 opposed to the independent conduct of the officers involved. Navarro, 72 F.3d at 714 (“Proof of

23 random acts or isolated events is insufficient to establish custom.” (citation omitted)). While

24 plaintiff may have stated violations based upon the opening and reading his legal mail outside his

25 presence and the excessive delays in processing his mail, he does not allege facts showing the

26 County’s policies caused the violation. Nor does he allege facts indicating such treatment is so

27 regular it constitutes a custom as opposed to an isolated occurrence.

28 ////

1 For these reasons, plaintiff fails to state a claim for relief based on interference with his

2 access to the courts or tampering with his legal and non-legal mail.

3 D. Retaliation

4 The complaint alleges that plaintiff was subject to harassment and hazing in retaliation for

5 submitting grievances. ECF No. 1 at 7-9.

6 Within the prison context, a viable claim of First Amendment

retaliation entails five basic elements: (1) An assertion that a state

7 actor took some adverse action against an inmate (2) because of (3)

that prisoner’s protected conduct, and that such action (4) chilled the

8 inmate’s exercise of his First Amendment rights, and (5) the action

did not reasonably advance a legitimate correctional goal.

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10 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and citations omitted).

11 Although plaintiff alleges that he was subject to adverse conduct because he filed

12 grievances, he provides no facts demonstrating that the grievances were what motivated officers

13 to harass him. Further, aside from alleging that his mail was tampered with, plaintiff provides no

14 other facts describing the retaliatory harassment he experienced. Finally, even if plaintiff had

15 sufficiently alleged facts showing he was subjected to retaliation, he has not alleged facts showing

16 that defendant’s policies or customs were the cause of the retaliatory conduct.

17 E. Grievance Process

18 Plaintiff alleges the defendant “operates an inadequate grievance process” because

19 grievance forms and drop boxes are not easily accessible. ECF No. 1 at 8. However, this claim

20 necessarily fails “because inmates lack a separate constitutional entitlement to a specific

21 grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v.

22 Adams, 855 F.2d 639, 640 (9th Cir. 1988)).

23 F. Disciplinary Measures

24 Plaintiff alleges that defendant’s disciplinary process violates his right to due process and

25 imposes excessive punishment for violations. ECF No. 1 at 5-6. Specifically, he alleges that he

26 is not provided with enough time to prepare or present a defense, he is not allowed to call or

27 question witnesses or to present or review evidence, he is not provided a staff assistant, and guilt

28 is often predetermined. Id. at 5-7. Further, punishments are imposed without consideration of

1 mental health factors and in consecutive periods for each individual rule violation resulting in

2 excessive punishments. Id. at 6.

3 “[P]retrial detainees may be subjected to disciplinary [sanctions] only with a due process

4 hearing to determine whether they have in fact violated any rule.” Mitchell v. Dupnik, 75 F.3d

5 517, 524 (9th Cir. 1996). In these instances, pretrial detainees are entitled to the due process

6 protections outlined in Wolff v. McDonnell, 418 U.S. 539 (1974). Mitchell, 75 F.3d at 525. This

7 process includes (1) twenty-four-hour advanced written notice of the charges against him, Wolff,

8 418 U.S. at 563-64; (2) “a written statement by the factfinders as to the evidence relied on and

9 reasons for the disciplinary action,” id. at 564 (internal quotation marks and citation omitted); (3)

10 an opportunity to call witnesses and present documentary evidence where doing so “will not be

11 unduly hazardous to institutional safety or correctional goals,” id. at 566; (4) assistance at the

12 hearing if he is illiterate or if the matter is complex, id. at 570; and (5) a sufficiently impartial fact

13 finder, id. at 570-71.

14 The complaint’s general allegations of insufficient process do not state a claim for relief

15 and plaintiff does not identify any specific instances where he was denied due process or provide

16 facts showing the denial was the result of a jail policy, practice, or custom. Though plaintiff

17 alleges that he is not provided sufficient time to prepare a defense, he does not allege that he is

18 provided less than twenty-four hours written notice of the charges, and while he alleges that he is

19 denied staff assistance which he requires due to his mental health conditions, he does not allege

20 that he is illiterate or that he has been denied assistance in complex matters. With respect to the

21 denial of the ability to present witnesses and evidence, there are no facts regarding the witnesses

22 and evidence he was not permitted to present nor is there any indication the denial was the result

23 of a jail policy rather than the individual determination of the officer in charge of his disciplinary

24 proceedings. Plaintiff also fails to allege any specific instances where his factfinder was not

25 impartial. Finally, plaintiff does not provide any information regarding the nature of his rule

26 violations or the specific punishments he received as a result to demonstrate that his punishment

27 was excessive.

28 ////

1 G. Excessive Force

2 Plaintiff claims that he has been subjected to excessive force on multiple occasions,

3 including instances where he was placed in a “wrap device” despite not being suicidal. ECF No.

4 1 at 14, 29. He alleges that on at least one occasion, correctional staff sliced into his skin while

5 cutting off his clothing to place him in a wrap while slamming his face into the ground and

6 threatening to break his arms and stab him with a pocketknife. Id. at 29.

7 While plaintiff’s allegations are sufficient to establish that he was subject to excessive

8 force, see Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015) (“a pretrial detainee must show

9 only that the force purposely or knowingly used against him was objectively unreasonable”), he

10 does not name any individual defendant who could be liable. The complaint is devoid of facts

11 showing that the County’s policies or customs caused the use of force, and plaintiff therefore fails

12 to state a claim against defendant.

13 H. Property Theft

14 Plaintiff asserts that his property has been destroyed, disposed of, and given away to other

15 inmates. ECF No. 1 at 14. However, the unauthorized deprivation of property by a prison

16 official, whether intentional or negligent, does not state a claim under § 1983 if the state provides

17 an adequate post-deprivation remedy, Hudson v. Palmer, 468 U.S. 517, 533 (1984), and

18 “California Law provides an adequate post-deprivation remedy for any property deprivations,”

19 Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per curiam) (citing Cal. Gov’t Code

20 §§ 810-895). Therefore, this claim necessarily fails.

21 I. Sexual Harassment

22 Plaintiff claims that he has been repeatedly subjected to verbal sexual misconduct and

23 harassment, specifically by one member of correctional staff who was “repeatedly asking plaintiff

24 w[h]ether or not he is bisexual, asking to ‘deep throat all 12 inches’ of his ‘cock’ and to

25 ‘massage’ his ‘balls’ while defendant does it.” ECF No. 1 at 36.

26 Verbal sexual harassment may violate a pretrial detainee’s Fourteenth Amendment rights.

27 See Vasquez v. Cnty. of Kern, 949 F.3d 1153, 1163-65 & n.10 (9th Cir. 2020) (finding verbal

28 sexual harassment of adolescent ward in juvenile court violated Fourteenth Amendment and

1 noting that “PREA defines ‘sexual harassment’ as ‘[r]epeated verbal comments . . . of a sexual

2 nature . . . including obscene language.” (quoting 28 C.F.R. § 115.6)). “The threshold question is

3 whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly

4 be said to shock the contemporary conscience.” Id. at 1162 (citation and internal quotation marks

5 omitted).

6 Plaintiff alleges facts sufficient to “shock the contemporary conscious” regarding the

7 repeated verbal sexual harassment to which he was subjected. However, he does not allege facts

8 showing that a policy or custom caused this sexual harassment, or that defendant in some way

9 ratified the officer’s conduct. Instead, he appears to allege that the sexual harassment was carried

10 out by a single officer, which does not state a claim against the County because “a municipality

11 cannot be held liable solely because it employs a tortfeasor.” Monell, 436 U.S. at 691. The

12 complaint does not identify or name as a defendant the officer who committed the alleged sexual

13 harassment.

14 J. Commissary

15 Plaintiff claims the jail’s commissary provides inadequate service, including items that are

16 of substandard quality and not the same as advertised, excessive and overly burdensome pricing

17 compared to other penal institutions, a delivery process that does not allow inspection of items

18 prior to acceptance, and an inability to raise discrepancies without forfeiting the entire order.

19 ECF No. 1 at 7-8. These allegations fail to state a cognizable claim “because there is no

20 constitutional right to purchase prison canteen products.” See Merrick v. Shinn, 846 F. App’x

21 573, 574 (9th Cir. 2021) (citing Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996)) (holding

22 district court properly dismissed claim based on inability to purchase items and prison store

23 prices).

24 K. ADA & RA

25 Plaintiff alleges that he is disabled within the meaning of the ADA and RA. ECF No. 1 at

26 15. Though he does not identify the disabilities that qualify him for protection, he states he

27 suffers from various conditions including limited vision, chronic back pain, nerve damage, severe

28 asthma, COPD, and metabolic deficiency and implies that he may also suffer from hearing loss.

1 Id. at 2, 13. He further alleges that the jail is full of physical obstacles that prevent him from

2 bathing, moving around the housing unit, using a payphone, or visiting with attorneys due to

3 mobility disabilities and that he has been denied various accommodations such as a “lower

4 tier/lower bunk chrono, transitional eyeglasses, chrono not to force plaintiff to wake up at very

5 early times for count time, hearing aids, payphones with a full receiver with chairs to sit on,

6 ethnic hiegenic [sic] products, and other items he needs to perform everyday activities.” Id. at 2-

7 3.

8 To state a claim under Title II of the ADA, a plaintiff must allege that:

9 (1) he “is an individual with a disability;” (2) he “is otherwise

qualified to participate in or receive the benefit of some public

10 entity’s services, programs, or activities;” (3) he “was either

excluded from participation in or denied the benefits of the public

11 entity’s services, programs, or activities, or was otherwise

discriminated against by the public entity;” and (4) “such exclusion,

12 denial of benefits, or discrimination was by reason of [his]

disability.”

13

14 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (alteration in original) (quoting

15 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)). While the RA has the

16 additional requirement that the program or activity receive federal funds, 29 U.S.C. § 794,

17 “[t]here is no significant difference in analysis of the rights and obligations created by the ADA

18 and the Rehabilitation Act” resulting int the same analysis being applied to claims brought under

19 both statutes,” Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999)

20 (citations omitted).

21 Although plaintiff alleges that he suffers from various medical conditions, there are no

22 facts demonstrating that any of his conditions rise to the level of a disability within the meaning

23 of the ADA or RA. Similarly, though he identifies various accommodations he was denied, he

24 fails to allege facts showing which disabilities they were needed to accommodate, that they were

25 denied because of his disability, or that their denial as an accommodation made some service,

26 program, or activity unavailable to him. For these reasons, plaintiff fails to state a claim for relief

27 under either the ADA or RA.

28 ////

1 VII. Leave to Amend

2 For the reasons set forth above, the court finds that the complaint states cognizable claims

3 based on plaintiff’s conditions of confinement and the inadequate provision of mental health care.

4 No other claims are cognizable. Plaintiff may proceed forthwith to serve defendant on his

5 Fourteenth Amendment conditions of confinement and deliberate indifference to mental health

6 claims, or he may delay serving any defendant and amend the complaint.

7 Plaintiff will be required to complete and return the attached notice advising the court how

8 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to

9 file an amended complaint. If plaintiff elects to proceed on his claims for unconstitutional

10 conditions of confinement and inadequate mental health care without amending the complaint, the

11 court will proceed to order service of the complaint. A decision to go forward without amending

12 the complaint will be considered a voluntarily dismissal without prejudice of all other claims.

13 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions

14 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode,

15 423 U.S. 362, 370-71 (1976). The complaint must also allege in specific terms how each named

16 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981).

17 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

18 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy,

19 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official

20 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266,

21 268 (9th Cir. 1982) (citations omitted).

22 If plaintiff decides to amend the complaint, particularly if he intends to include additional

23 defendants, he is advised that he may join (include in a single complaint) multiple claims if they

24 are all against a single defendant, Fed. R. Civ. P. 18(a), and joinder of defendants is only

25 permitted if “any right to relief is asserted against them . . . with respect to or arising out of the

26 same transaction, occurrence, or series of transactions or occurrences; and any question of law or

27 fact common to all defendants will arise in the action,” Fed. R. Civ. P. 20(a)(2). In other words,

28 joining more than one claim is only proper when it is against one defendant, and joining multiple

1 defendants in one complaint is only proper when the claims against them are based on the same

2 facts. Plaintiff is further advised that, he should be mindful Rule 8’s short and plain statement

3 requirement and that a complaint that exceeds twenty-five pages is likely to violate that

4 requirement. Fed. R. Civ. Proc. 8(a)(2).

5 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make

6 his amended complaint complete. Local Rule 220 requires that an amended complaint be

7 complete in itself without reference to any prior pleading. This is because, as a general rule, an

8 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

9 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th

10 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled

11 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint,

12 the original complaint no longer serves any function in the case. Therefore, in an amended

13 complaint, as in an original complaint, each claim and the involvement of each defendant must be

14 sufficiently alleged.

15 An amended complaint must not consist of a lengthy narrative, but should identify each

16 separate claim by heading and number and set forth under each heading the facts intended to

17 support that claim. “Shotgun” or “kitchen sink” complaints, such as original complaint, are

18 strongly disfavored and are likely to result in dismissal under Rule 8(a)(2). “The plaintiff who

19 files a kitchen-sink complaint shifts onto the defendant and the court the burden of identifying the

20 plaintiff's genuine claims and determining which of those claims might have legal support . . . . It

21 is the plaintiff[’s] burden, under both Rule 8 and Rule 11, to reasonably investigate their claims,

22 to research the relevant law, to plead only viable claims, and to plead those claims concisely and

23 clearly, so that a defendant can readily respond to them and a court can readily resolve them.”

24 Gurman v. Metro Hous. & Redev. Auth., 842 F. Supp. 2d 1151, 1153 (D. Minn. 2011).

25 VIII. Plain Language Summary of this Order for a Pro Se Litigant

26 Your request to proceed in forma pauperis is granted.

27 Some of the allegations in the complaint state claims against defendant and some do not.

28 Your claims based on unconstitutional conditions of confinement and inadequate mental health

1 care state claims for relief. All other claims do not. Although some of your allegations

2 demonstrate a violation of your constitutional rights, you have not alleged facts showing that

3 those violations were due to defendant’s policies or customs. To the extent you may be trying to

4 make claims against individuals, you have not identified any individuals as defendants.

5 You have a choice to make. You may either (1) proceed immediately on your conditions

6 of confinement and mental health care claims and voluntarily dismiss all other claims or (2) try to

7 amend the complaint. If you want to go forward without amending the complaint, you will be

8 voluntarily dismissing without prejudice all of your claims except for the unconstitutional

9 conditions of confinement and inadequate mental health care claims. If you choose to file a first

10 amended complaint, it must include all claims you want to bring. Once an amended complaint is

11 filed, the court will not look at any information in the original complaint. Any claims and

12 information not in the first amended complaint will not be considered. You must complete

13 the attached notification showing what you want to do and return it to the court. Once the court

14 receives the notice, it will issue an order telling you what you need to do next (i.e., file an

15 amended complaint or complete service paperwork).

16 In accordance with the above, IT IS HEREBY ORDERED that:

17 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED.

18 2. Plaintiff has stated Fourteenth Amendment claims for relief based on conditions of

19 confinement and inadequate mental health care. No other claims are cognizable.

20 3. Plaintiff has the option to proceed immediately on his cognizable claims as set forth in

21 Section V above, or to amend the complaint.

22 4. Within fourteen days of service of this order, plaintiff shall complete and return the

23 attached form notifying the court whether he wants to proceed on the screened complaint or

24 whether he wants to file a first amended complaint. If plaintiff does not return the form, the court

25 will assume that he is choosing to proceed on the complaint as screened and will recommend

26 ////

27 ////

28 ////

1 | dismissal without prejudice of all claims except for his Fourteenth Amendment claims based on

2 || conditions of confinement and inadequate mental health care.

3 || DATED: July 20, 2023 . ~

4 Ctlhter— Lane

5 ALLISON CLAIRE

UNITED STATES MAGISTRATE JUDGE

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 ROBERT EUGENE ROJAS, No. 2:22-cv-1105 KJM AC P

12 Plaintiff,

13 v. NOTICE OF ELECTION

14 COUNTY OF SACRAMENTO,

15 Defendant.

16

17 Check one:

18 _____ Plaintiff wants to proceed immediately on his Fourteenth Amendment claims based on

19 conditions of confinement and inadequate mental health care against defendant

20 Sacramento County without amending the complaint. Plaintiff understands that by going

21 forward without amending the complaint he is voluntarily dismissing without prejudice all

22 other claims pursuant to Federal Rule of Civil Procedure 41(a).

23

24 _____ Plaintiff wants to amend the complaint.

25

26 DATED:_______________________

27 Robert Eugene Rojas

Plaintiff pro se

28