(PC) Dailey v. Solano County Sheriff

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 SHARON N. DAILEY, No. 2:23-cv-00788-CKD P

12 Plaintiff,

13 v. ORDER

14 SOLANO COUNTY SHERIFF, et al.,

15 Defendants.

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17 Plaintiff, a county inmate proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This

19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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

21 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

23 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

2 1915(b)(2).

3 I. Screening Standard

4 The court is required to screen complaints brought by prisoners seeking relief against a

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

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

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

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

9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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

11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

15 Cir. 1989); Franklin, 745 F.2d at 1227.

16 A complaint must contain more than a “formulaic recitation of the elements of a cause of

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

18 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading

19 must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of]

20 a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and

21 Procedure § 1216, pp. 235-35 (3d ed. 2004). “[A] complaint must contain sufficient factual

22 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

23 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has

24 facial plausibility when the plaintiff pleads factual content that allows the court to draw the

25 reasonable inference that the defendant is liable for the misconduct alleged.” Id.

26 In reviewing a complaint under this standard, the court must accept as true the allegations

27 of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740

28 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

1 the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421(1969).

2 II. Allegations in the Complaint

3 At all times relevant to the allegations in the complaint, plaintiff was an inmate at the

4 Solano County Jail, although she does not indicate whether she was a pretrial detainee or serving

5 a sentence following a conviction. Named as defendants in this action are the Solano County

6 Sheriff and Wellpath, the putative medical provider at the Solano County Jail.

7 In claim one, plaintiff contends that several named correctional officers at the Solano

8 County Jail interfered with her legal mail. This caused her legal filings to be late or rejected by

9 the courts. However, none of these individuals are identified as defendants.

10 In claim two, plaintiff alleges that the custody division of the Solano County Sheriff’s

11 Department denied her access to the courts by depriving her of private legal phone calls and

12 access to outside legal help “on an ongoing basis.” ECF No. 1 at 5.

13 In her third claim, plaintiff asserts that the custody division retaliated against her once she

14 was able to file her legal cases. Specifically, plaintiff indicates that she has been pushed and

15 pulled and left in handcuffs for over nine hours. She further indicates that she was refused

16 medical attention and that she now needs five surgeries. Plaintiff does not identify which custody

17 officers are responsible for this mistreatment.

18 In the last two claims, plaintiff alleges that the custody division of the Solano County

19 Sheriff’s Department and Wellpath failed to warn her of hazardous conditions of confinement.

20 As a result, plaintiff contracted a staph, fungus, and blood infection causing her to lose movement

21 in three of her toes. Unidentified Solano County and Wellpath staff also refused her medical

22 treatment following a car accident.

23 By way of relief, plaintiff seeks to be “removed from the custodial facility for medical

24 purposes,” and compensatory damages. ECF No. 1 at 9.

25 III. Legal Standards

26 The following legal standards are provided based on plaintiff’s pro se status as well as the

27 nature of the allegations in the complaint.

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1 A. Linkage

2 The civil rights statute requires that there be an actual connection or link between the

3 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

4 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

5 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a

6 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

7 in another's affirmative acts or omits to perform an act which he is legally required to do that

8 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th

9 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must

10 link each named defendant with some affirmative act or omission that demonstrates a violation of

11 plaintiff's federal rights.

12 B. Monell Liability

13 Municipalities cannot be held vicariously liable under § 1983 for the actions of their

14 employees. Monell v. Dep't of Social Services, 436 U.S. 585 at 691, 694 (1978). “Instead, it is

15 when execution of a government's policy or custom, whether made by its lawmakers or by those

16 whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the

17 government as an entity is responsible under § 1983.” Id. at 694. Municipalities are considered

18 “persons” under 42 U.S.C. § 1983 and therefore may be liable for causing a constitutional

19 deprivation. Monell, 436 U.S. 658, 690 (1978); Long v. County of Los Angeles, 442 F.3d 1178,

20 1185 (9th Cir. 2006). To properly plead a Monell claim based on an unconstitutional custom,

21 practice, or policy, plaintiff must demonstrate that (1) he possessed a constitutional right of which

22 he was deprived; (2) the municipality had a policy; (3) such policy amounts to deliberate

23 indifference to plaintiff's constitutional right; and (4) the policy is the moving force behind the

24 constitutional violation. See Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438

25 (9th Cir. 1997). The municipal policy at issue must be the result of a “ ‘longstanding practice or

26 custom which constitutes the standard operating procedure of the local government entity.’ ”

27 Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quoting Ulrich v. City & Cnty. of San Francisco,

28 308 F.3d 968, 984-85 (9th Cir. 2002)).

1 C. Deliberate Indifference to a Serious Medical Need

2 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a

3 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S.

4 97, 104-05 (1976). An individual is liable for such a violation only when the individual is

5 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d

6 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v.

7 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000).

8 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439

9 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other

10 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the

11 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s

12 condition could result in further significant injury or the ‘unnecessary and wanton infliction of

13 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he

14 existence of an injury that a reasonable doctor or patient would find important and worthy of

15 comment or treatment; the presence of a medical condition that significantly affects an

16 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d

17 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60.

18 Second, the plaintiff must show the defendant’s response to the need was deliberately

19 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act

20 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the

21 indifference. Id. Under this standard, the prison official must not only “be aware of facts from

22 which the inference could be drawn that a substantial risk of serious harm exists,” but that person

23 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective

24 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A

25 showing of merely negligent medical care is not enough to establish a constitutional violation.

26 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A

27 difference of opinion about the proper course of treatment is not deliberate indifference, nor does

28 a dispute between a prisoner and prison officials over the necessity for or extent of medical

1 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058

2 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of

3 medical treatment, “without more, is insufficient to state a claim of deliberate medical

4 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

5 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the

6 prisoner must show that the delay caused “significant harm and that Defendants should have

7 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060.

8 D. Conditions of Confinement

9 1. Eighth Amendment Standard

10 In order for a prison official to be held liable for alleged unconstitutional conditions of

11 confinement, the prisoner must allege facts that satisfy a two-prong test. Peralta v. Dillard, 744

12 F.3d 1076, 1082 (9th Cir. 2014) (citing Farmer, 511 U.S. at 837). The first prong is an objective

13 prong, which requires that the deprivation be “sufficiently serious.” Lemire v. Cal. Dep’t of Corr.

14 & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (citing Farmer, 511 U.S. at 834). In order to be

15 sufficiently serious, the prison official’s “act or omission must result in the denial of the ‘minimal

16 civilized measure of life’s necessities.” Lemire, 726 F.3d at 1074. The objective prong is not

17 satisfied in cases where prison officials provide prisoners with “adequate shelter, food, clothing,

18 sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

19 2000) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). “[R]outine discomfort

20 inherent in the prison setting” does not rise to the level of a constitutional violation. Johnson v.

21 Lewis, 217 F.3d at 732 (“[m]ore modest deprivations can also form the objective basis of a

22 violation, but only if such deprivations are lengthy or ongoing”). Rather, extreme deprivations

23 are required to make out a conditions of confinement claim, and only those deprivations denying

24 the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an

25 Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9

26 (1992). The circumstances, nature, and duration of the deprivations are critical in determining

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

28 Amendment claim. Johnson v. Lewis, 217 F.3d at 731.

1 2. Fourteenth Amendment Applicable to Pretrial Detainees

2 Plaintiff is informed that a pretrial detainee’s right to safety arises from the Fourteenth

3 Amendment. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-1068 (9th Cir. 2016) (en

4 banc). A prison official’s failure to protect a pretrial detainee is actionable if four conditions are

5 met:

6 1. The defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined;

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2. Those conditions put the plaintiff at substantial risk of suffering

8 serious harm;

9 3. The defendant did not take reasonable available measures to abate

that risk, even though a reasonable officer in the circumstances

10 would have appreciated the high degree of risk involved—making

the consequences of the defendant’s conduct obvious; and

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4. By not taking such measures, the defendant caused the plaintiff’s

12 injuries.

13 Id. at 1071. As to the third element, the defendant’s conduct must be objectively unreasonable.

14 Id.

15 E. First Amendment

16 Under the First Amendment, prisoners have a right to send and receive mail. Witherow v.

17 Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). However, a prison may adopt regulations or

18 practices for inmate mail which limit a prisoner’s First Amendment rights as long as the

19 regulations are “reasonably related to legitimate penological interests.” Turner v. Safley, 482

20 U.S. 78, 89, (1987). “When a prison regulation affects outgoing mail as opposed to incoming

21 mail, there must be a ‘closer fit between the regulation and the purpose it serves.’” Witherow, 52

22 F.3d at 265 (quoting Thornburgh v. Abbott, 490 U.S. 401, 412 (1989)). Courts have also

23 afforded greater protection to legal mail than non-legal mail. See Thornburgh, 490 U.S. at 413.

24 Isolated incidents of mail interference or tampering will not support a claim under section 1983

25 for violation of plaintiff's constitutional rights. See Davis v. Goord, 320 F.3d 346, 351 (2d. Cir.

26 2003); Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997); Smith v. Maschner, 899 F.2d 940,

27 944 (10th Cir. 1990); see also Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (emphasizing

28 that a temporary delay or isolated incident of delay of mail does not violate a prisoner's First

1 Amendment rights). Generally, such isolated incidents must be accompanied by evidence of an

2 improper motive on the part of prison officials or result in interference with an inmate’s right of

3 access to the courts or counsel in order to rise to the level of a constitutional violation. See Smith,

4 899 F.2d at 944.

5 A prison’s interference with legal mail may also violate an inmate’s right of access to the

6 courts which is protected by the First Amendment’s right to petition the government and the due

7 process clause of the Fourteenth Amendment. See Snyder v. Nolen, 380 F.3d 279, 290-291 (7th

8 Cir. 2004) (discussing the development of cases concerning a prisoner’s right of access to the

9 courts). Prison officials may not actively interfere with an inmate’s right to litigate. Silva v.

10 Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011), overruled on other grounds by Richey v. Dahne,

11 807 F.3d 1202, 1209 n. 6 (9th Cir. 2015). In order to state a claim for the denial of access to the

12 courts, a plaintiff must allege he suffered an actual injury, which is prejudice with respect to

13 contemplated or existing litigation, such as the inability to meet a filing deadline or present a non-

14 frivolous claim. Lewis v. Casey, 518 U.S. 343, 349 (1996).

15 F. Retaliation

16 “Within the prison context, a viable claim of First Amendment retaliation entails five

17 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

18 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's

19 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

20 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted).

21 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351

22 F.3d 1283, 1288 (9th Cir. 2003). A prison transfer may also constitute an adverse action. See

23 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (recognizing an arbitrary confiscation and

24 destruction of property, initiation of a prison transfer, and assault as retaliation for filing inmate

25 grievances); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (finding that a retaliatory prison

26 transfer and double-cell status can constitute a cause of action for retaliation under the First

27 Amendment).

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1 IV. Analysis

2 The court finds that the allegations in the complaint fail to state a claim for relief against

3 any named defendant. First and foremost, plaintiff has not identified any specific custom or

4 policy of the Solano County Sheriff’s Department or Wellpath that were the moving forces for the

5 asserted constitutional violations as required by Monell, 436 U.S. at 694.1 Absent such a policy,

6 plaintiff has failed to state a claim against either one of these entities. While plaintiff does name

7 particular correctional officers who tampered with her legal mail, she does not identify these

8 individuals as defendants in this action. Therefore, the complaint does not allege any cognizable

9 claim against a named defendant. For all these reasons, the court dismisses the complaint, but

10 grants plaintiff leave to file an amended complaint.

11 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

12 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

13 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how

14 each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there

15 is some affirmative link or connection between a defendant’s actions and the claimed deprivation.

16 Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

17 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

18 allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board

19 of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

20 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

21 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

22 complaint be complete in itself without reference to any prior pleading. This is because, as a

23 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

24 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

25 longer serves any function in the case. Therefore, in an amended complaint, as in an original

26 complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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1 Private entities, such as Wellpath, that act under color of state law may also be liable under

28 Monell. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012).

] V. Plain Language Summary for Pro Se Party

2 The following information is meant to explain this order in plain English and is not

3 || intended as legal advice.

4 The court has reviewed the allegations in your complaint and determined that they do not

5 || state any claim against the defendants. Your complaint is being dismissed, but you are being

6 || given the chance to fix the problems identified in this screening order.

7 Although you are not required to do so, you may file an amended complaint within 30

8 | days from the date of this order. If you choose to file an amended complaint, pay particular

9 || attention to the legal standards identified in this order which may apply to your claims.

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

11 1. Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) is granted.

12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

13 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

14 | 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to

15 | the Sheriff of Solano County filed concurrently herewith.

16 3. The complaint is dismissed for the reasons discussed above.

17 4. Plaintiff □□ granted thirty days from the date of service of this order to file an amended

18 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

19 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

20 assigned this case and must be labeled “Amended Complaint”; and, the failure to file an amended

21 complaint in accordance with this order will result in a recommendation that this action be

22 dismissed.

23 Dated: August 28, 2023

24 wd f i _L 4 (g- =.

CAROLYNK.DELANEY

2% UNITED STATES MAGISTRATE JUDGE

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