# Frary v. Ahern > District Court, N.D. California · March 15, 2023 URL: https://www.frixlaw.com/law-library/cases/10074641 ## Case - **Court:** District Court, N.D. California - **Decided:** March 15, 2023 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10074641 ## Opinion text 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 DANIEL ROBERT FRARY, Case No. 22-cv-06058-WHO (PR) Plaintiff, 5 ORDER OF DISMISSAL v. 6 7 GREGORY J. AHERN, Defendant. 8 9 10 INTRODUCTION 11 Plaintiff Daniel Robert Frary alleges in his 42 U.S.C. § 1983 complaint that he was 12 placed in the Santa Rita Jail multipurpose room without access to a toilet for four and half 13 hours. However, his allegations do not contain sufficient facts showing a deprivation 14 substantial enough to violate the Eighth Amendment. Furthermore, there is no indication 15 he exhausted his administrative remedies before filing suit. Accordingly, this civil rights 16 action is DISMISSED. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a 20 prisoner seeks redress from a governmental entity or officer or employee of a 21 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 22 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 23 upon which relief may be granted or seek monetary relief from a defendant who is immune 24 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 25 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 26 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 27 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 1 plausibility when the plaintiff pleads factual content that allows the court to draw the 2 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 3 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 4 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 5 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 6 (9th Cir. 1994). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Legal Claims 12 Frary alleges that on July 28, 2022 he was placed in a multipurpose room at the 13 Santa Rita Jail without toilet access or a place to sit from 9pm to 1:30am, some four and a 14 half hours. (Compl., Dkt. No. at 2-3.) He states he tried to inform various unnamed 15 deputies that he needed to use the bathroom, but no one responded. (Id.) 16 The complaint is insufficient. First, the defendants he names (Sheriff Ahern and 17 Deputy Gaston) were not responsible. Ahern is the sheriff and had no direct participation 18 in the actions described. There is no respondeat superior liability under § 1983, see Taylor 19 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), which means that a person is not 20 automatically held responsible simply because he or she is a supervisor of an employee 21 who commits a wrong. It is not enough that the supervisor merely has a supervisory 22 relationship over the defendants; the plaintiff must show that the supervisor “participated 23 in or directed the violations, or knew of the violations and failed to act to prevent them.” 24 Id. Furthermore, supervisor defendants are entitled to qualified immunity where the 25 allegations against them are simply “bald” or “conclusory” because such allegations do not 26 “plausibly” establish the supervisors’ personal involvement in their subordinates’ 27 constitutional wrong. Iqbal, 556 U.S. at 675-82. Simply put, a person cannot be held 1 participants in the unlawful conduct. Keates v. Koile, 883 F.3d 1228, 1241 (9th Cir. 2018). 2 There is nothing in the complaint that establishes Ahern’s personal knowledge or 3 involvement. 4 Gaston simply had one of his deputies place Frary in the multipurpose room. 5 (Compl., Dkt. No. 1 at 2-3.) There are no facts linking Gaston to the later alleged 6 deprivation. Also, the actions of the unnamed deputies, who are the persons responsible 7 here, amount at most to negligence or gross negligence, neither of which is actionable 8 under section 1983. Farmer v. Brennan, 511 U.S. 825, 835-37 & n.4 (1994); Estelle v. 9 Gamble, 429 U.S. 97, 104 (1976). 10 Furthermore, it is not clear that being denied access to a bathroom for four and half 11 hours constitutes a sufficient deprivation under the Eighth Amendment. Substantial 12 deprivations of shelter, food, drinking water or sanitation can be sufficiently serious to be 13 actionable under the Eighth Amendment. See Johnson v. Lewis, 217 F.3d 726, 732-733 14 (9th Cir. 2000); see Taylor v. Riojas, et al., 141 S. Ct. 52, 53-54 (2020) (2020) (per 15 curiam) (four days in cell covered “nearly floor to ceiling, in massive amounts of feces: all 16 over the floor, the ceiling, the window, the walls, and even packed inside the water faucet,” 17 followed by two days in “frigidly cold cell” with sewage on the floor and no bed or clothes 18 such that plaintiff was “left to sleep naked in sewage” violates the Eighth Amendment); 19 Hearns v. Terhune, 413 F.3d 1036, 1041-42 (9th Cir. 2005) (allegations of serious health 20 hazards in disciplinary segregation yard for a period of nine months, including toilets that 21 did not work, sinks that were rusted and stagnant pools of water infested with insects, and 22 a lack of cold water even though the temperature in the prison yard exceeded 100 degrees, 23 enough to state a claim of unconstitutional prison conditions); Anderson v. County of Kern, 24 45 F.3d 1310, 1314 (9th Cir. 1995) (“[A] lack of sanitation that is severe or prolonged can 25 constitute an infliction of pain within the meaning of the Eighth Amendment.”), amended, 26 75 F.3d 448 (9th Cir. 1995). While potentially unpleasant, plaintiff’s allegations do not 27 show a substantial deprivation. 1 Moreover, there is no indication Frary exhausted his administrative remedies prior 2 || to filing suit. Prisoners must properly exhaust their administrative remedies before filing 3 suit in federal court, as mandated by the Prison Litigation Reform Act (PLRA). Ross, 578 4 || U.S. at 635; Woodford v. Ngo, 548 U.S. 81, 93 (2006). “No action shall be brought with 5 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 6 || prisoner confined in any jail, prison, or other correctional facility until such administrative 7 || remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A prisoner is required to 8 || exhaust the grievance procedures that are “capable of use” to obtain “some relief for the 9 || action complained of.” Blake, 578 U.S. at 642 (quoting Booth, 532 U.S. at 731). Unless 10 || the administrative process 1s not available, “the PLRA’s text suggests no limits on an 11 || inmate’s obligation to exhaust —irrespective of any ‘special circumstances.’” Jd. at 1856. “(T]hat mandatory language means a court may not excuse a failure to exhaust.” Jd. The 5 13 || prison’s requirements define the boundaries of proper exhaustion. Jones v. Bock, 549 U.S. S 14 || 199, 218 (2007). Proper exhaustion requires using all steps of an administrative process 3 15 || and complying with “deadlines and other critical procedural rules.” Ngo, 548 U.S. at 90. a 16 || The exhaustion requirement cannot be satisfied “by filing an untimely or otherwise 17 || procedurally defective administrative grievance or appeal.” □□□ at 84. 18 Accordingly, Frary’s complaint will be dismissed for failure to state a claim for 19 || relief and for a failure to exhaust administrative remedies. 20 CONCLUSION 21 This federal civil rights action is DISMISSED for failure to state a claim for relief 22 || and for a failure to exhaust administrative remedies. The Clerk shall enter judgment in 23 favor of defendants, and close the file. 24 IT IS SO ORDERED. 25 || Dated: March 15, 2023 YoVW02 26 AM H. ORRIC 27 United States District Judge 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10074641. Public record. Not legal advice.