# Smith Arizmendez v. McCourt

> District Court, S.D. California · April 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10089366

## Case

- **Court:** District Court, S.D. California
- **Decided:** April 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ISSAC L. SMITH ARIZMENDEZ, Case No.: 23cv1625-CAB (DDL)
CDCR #J-03517,
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ORDER DISMISSING FIRST
Plaintiff,
13 AMENDED COMPLAINT
vs. PURSUANT TO 28 U.S.C.
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§§ 1915(e)(2) & 1915A(b)
DANIEL McCOURT, Plumbing
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Supervisor,
16 Defendant.
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19 On August 31, 2023, Plaintiff Issac L. Smith Arizmendez, a state inmate proceeding
20 pro se, filed a Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) He alleged that on
21 May 31, 2023, he was transferred to the Richard J. Donovan Detention Facility (“RJD”) in
22 San Diego, California, where he stayed in a cell without operating plumbing for “a few
23 weeks or so,” named as the sole Defendant the RJD plumbing supervisor, and, along with
24 money damages, sought an injunction preventing RJD from operating an unmanageable
25 and inoperable plumbing system. (Id. at 2-7.) On November 6, 2023, the Court dismissed
26 this action without prejudice for failure to pay the filing fee or submit a request to proceed
27 in forma pauperis (“IFP”). (ECF No. 4.) Plaintiff thereafter filed a motion to proceed IFP
28 and notified the Court he was no longer housed at RJD. (ECF No. 5.)
1 On March 1, 2024, the Court granted Plaintiff leave to proceed IFP and screened the
2 Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b), which require the Court to
3 sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,
4 malicious, fails to state a claim, or seeks damages from defendants who are immune. (ECF
5 No. 7.) The Court dismissed the Complaint with leave to amend for failure to state a claim
6 and notified Plaintiff of its pleading deficiencies. (Id.) Specifically, Plaintiff failed to state
7 an Eighth Amendment claim for unconstitutional conditions of confinement because he did
8 not allege that the duration and severity of the conditions in his cell were sufficiently grave,
9 and did not name a proper Defendant because he had not alleged personal participation by
10 the RJD plumbing supervisor. (See id. at 4-8, citing Farmer v. Brennan, 511 U.S. 825, 832
11 (1994) (“The Constitution ‘does not mandate comfortable prisons,’ but neither does it
12 permit inhumane ones.”), quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)
13 (“Conditions must not involve the wanton and unnecessary infliction of pain.”) and Lemire
14 v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1074-75 (9th Cir. 2013)
15 (holding that supervisors may only be held liable if they were “personally involved in the
16 constitutional violation or a sufficient causal connection exists between the supervisor’s
17 unlawful conduct and the constitutional violation.”).) Plaintiff was instructed that his
18 amended complaint must be complete by itself without reference to his original pleading,
19 and that any Defendant not re-named and any claim not re-alleged in his amended
20 complaint will be considered waived. (Id. at 8, citing S.D. CAL. CIVLR 15.1 and Hal Roach
21 Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”).)
22 On April 5, 2024, Plaintiff filed a First Amended Complaint (“FAC”). (ECF No. 8.)
23 Plaintiff references and relies on the allegations in his original Complaint in disregard of
24 the Court’s instructions, indicates he believes the Warden should be held responsible for
25 the poor plumbing at RJD which he might endure again when he travels there for “legal
26 matters such as board hearings,” and states that he is bringing this action on behalf of
27 himself and all those prisoners at RJD who have refused to speak up for themselves about
28 the poor plumbing. (Id. at 1-5.)
1 I. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
2 A. Standard of Review
3 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-Answer
4 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte
5 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails
6 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203
7 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes
8 v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
9 “The standard for determining whether a plaintiff has failed to state a claim upon
10 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
11 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
12 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
13 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
14 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule
15 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state
16 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
17 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Determining whether
18 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires
19 the reviewing court to draw on its judicial experience and common sense.” Id.
20 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
21 acting under color of state law, violate federal constitutional or statutory rights.”
22 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability,
23 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws
24 of the United States, and (2) that the deprivation was committed by a person acting under
25 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
26 B. Allegations in the FAC
27 As noted in the Court’s prior dismissal Order, Plaintiff alleged in his original
28 Complaint that he arrived at RJD on May 31, 2023, was assigned a cell in which the toilet,
1 sink and plumbing were not working, was told that if the plumbing was still not working
2 the next evening he would be moved to a different cell, was informed the next day that
3 “plant opps,” the only entity that could resolve the issue, had been notified and the
4 plumbing would be fixed, but despite complaining everyday “for a few weeks or so” that
5 he was having headaches and trouble breathing due to the stench of feces and urine built
6 up in the toilet, he was only given cleaning products and told the problem was unresolvable
7 due to systemic plumbing problems at RJD and that there were no other available cells.
8 (ECF No. 7 at 4.) Plaintiff now alleges in the FAC that he was “in that cell” for at least 32
9 days before “they capped the cell and redlined it as condemned.” (ECF No. 8 at 5.) He
10 alleges he was transferred from RJD about August 8, 2023, and the poor plumbing
11 continued to exist for the approximately two months he was at RJD. (Id.) He states that
12 “the problem [is] not so much an infrastructure problem as it is a lack of/or a neglect to see
13 through plumbing for contractual obligations.” (Id.)
14 C. Discussion
15 As the Court informed Plaintiff in its prior dismissal Order, the Eighth Amendment’s
16 prohibition against cruel and unusual punishment protects prisoners from inhumane
17 conditions of confinement, and a prisoner claiming an Eighth Amendment violation must
18 allege: (1) the deprivation they suffered was “objectively, sufficiently serious;” and (2) a
19 prison official acted with deliberate indifference to a serious risk to their health or safety
20 in allowing that deprivation to take place. Farmer, 511 U.S. at 834. “Although the routine
21 discomfort inherent in the prison setting is inadequate to satisfy the objective prong of an
22 Eighth Amendment inquiry, ‘those deprivations denying ‘the minimal civilized measure of
23 life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment
24 violation.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), quoting Rhodes, 452 U.S.
25 at 347. “[W]hile conditions of confinement may be, and often are, restrictive and harsh,
26 they must not involve the wanton and unnecessary infliction of pain. In other words, they
27 must not be devoid of legitimate penological purpose or contrary to evolving standards of
28 decency that mark the progress of a maturing society.” Morgan v. Morgensen, 465 F.3d
1 1041, 1045 (9th Cir. 2006) (internal quote marks and citations omitted). Although
2 “subjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an
3 infliction of pain within the meaning of the Eighth Amendment,” the temporary imposition
4 of such conditions does not state a claim absent allegations of a risk of harm. Anderson v.
5 County of Kern, 45 F.3d 1310, 1314-15 (9th Cir. 1995).
6 Plaintiff was notified that his allegations that he was in a cell without operating
7 plumbing for about a month and was provided gloves and disinfectant to clean the toilet,
8 were insufficiently vague as to the duration of the severity of the lack of sanitation in his
9 cell. See Johnson, 217 F.3d at 733 (“[W]e have no doubt that toilets can be unavailable for
10 some period of time without violating the Eighth Amendment.”); see also Fields v. Ruiz,
11 No. 03cv6364-OWW-DLB-P, 2007 WL 1821469, at *7 (E.D. Cal. June 25, 2007) (“In this
12 Circuit, subjecting an inmate to confinement in a cell with a malfunctioning toilet for 29
13 days [with feces, urine and contaminated water on the floor where correctional officer
14 refused to call a plumber and waited five days to put in a work order], is sufficient to meet
15 the objective requirement of the Eighth Amendment analysis.”), report and
16 recommendation adopted, No. 03cv6364-OWW-DLB-P, 2007 WL 2688453 (E.D. Cal.
17 Sept. 10, 2007). Plaintiff has not cured that pleading deficiency in the FAC, as he merely
18 states he was “in that cell” for at least 30 days before he was removed, without any further
19 allegations regarding the conditions in the cell, and that he was at RJD for a little over two
20 months where RJD officials neglected such plumbing problems throughout the prison.
21 (ECF No. 8 at 5.) Plaintiff’s reliance on the allegations in the original Complaint is also a
22 failure to abide by the Court’s prior instruction that his amended complaint be complete in
23 and of itself.
24 In addition, Plaintiff has also once again failed to allege any Defendant deliberately
25 disregarded a need to fix his plumbing. He was previously informed that he is required to
26 allege facts which plausibly show each individual Defendant was personally involved in
27 the alleged constitutional violation. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
28 2002) (“In order for a person acting under color of state law to be liable under section 1983
1 there must be a showing of personal participation in the alleged rights deprivation: there is
2 no respondeat superior liability under section 1983.”) A prisoner must allege “(1) that the
3 specific prison official, in acting or failing to act, was deliberately indifferent to the
4 mandates of the eighth amendment and (2) that this indifference was the actual and
5 proximate cause of the deprivation of the inmates’ eighth amendment right to be free from
6 cruel and unusual punishment.” Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
7 Supervisors may only be held liable if they were “personally involved in the constitutional
8 violation or a sufficient causal connection exists between the supervisor’s unlawful conduct
9 and the constitutional violation.” Lemire, 726 F.3d at 1074-75.
10 Plaintiff now states that he believes the Warden should be held responsible for a lack
11 of reliable plumbing at RJD or a neglect of adequate response to plumbing issues. But
12 Plaintiff does not plausibly allege the Warden or any other RJD official had the ability to
13 fix his toilet but refused to do so, and has not alleged a causal connection to his injury
14 through any Defendant’s deliberate indifference to a risk to his health. See Hines v. Youseff,
15 914 F.3d 1218, 1228 (9th Cir. 2019) (“An official is liable under § 1983 only if ‘culpable
16 action, or inaction, is directly attributed to them.’”), quoting Starr v. Baca, 652 F.3d 1202,
17 1205 (9th Cir. 2011). Because Plaintiff is no longer housed at RJD his claim for injunctive
18 relief is moot absent plausible allegations he will be housed at the same institution under
19 the same circumstances. Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012) (a prisoner’s
20 claims for injunctive and declaratory relief relating to prison conditions are rendered moot
21 by transfer to another facility); Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975). His
22 allegation he might return to RJD in the future is speculative and does not plausibly allege
23 he will be housed under the same conditions. Because Plaintiff is proceeding pro se, he is
24 not permitted to represent a class of prisoners at RJD. Johns v. Cnty. of San Diego, 114
25 F.3d 874, 876 (9th Cir. 1997) (“While a non-attorney may appear pro se on his own behalf,
26 ‘[he] has no authority to appear as an attorney for others than himself.’”), quoting C.E.
27 Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987)).
28 / / /
1 Plaintiff’s Eighth Amendment claim for damages and equitable relief is once again
2 dismissed sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failing to state
3 a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. To the extent Plaintiff
4 once again seeks to present state law claims, the Court once again declines to exercise
5 supplemental jurisdiction over any supplemental state law claim because it “has dismissed
6 all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); Sanford v. Member
7 Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all federal-
8 law claims are eliminated before trial, the balance of factors to be considered under the
9 pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over
10 the remaining state-law claims.”)
11 D. Leave to Amend
12 Because Plaintiff is proceeding pro se, the Court will provide one final opportunity
13 to amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court
14 should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear
15 that the deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar
16 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
17 III. Conclusion and Orders
18 Based on the forgoing, the Court DISMISSES Plaintiff’s First Amended
19 Complaint for failing to state a claim upon which relief may be granted pursuant to 28
20 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) and GRANTS Plaintiff until June 4, 2024, to
21 file a Second Amended Complaint which cures all the deficiencies of pleading noted.
22 Plaintiff’s Second Amended Complaint must be complete by itself without reference to
23 his original pleading. Defendants not named and any claim not re-alleged will be
24 considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at
25 1546 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693
26 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which
27 are not re-alleged in an amended pleading may be “considered waived if not repled.”)
28 If Plaintiff fails to file a Second Amended Complaint by June 4, 2024, the Court will
1 enter a final Order dismissing this civil action based both on Plaintiffs failure to state a
2 |{claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) &
3 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring
4 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does
5 ||not take advantage of the opportunity to fix his complaint, a district court may convert the
6 || dismissal of the complaint into dismissal of the entire action.’’)
7 IT IS SO ORDERED.
8 ||Dated: April 19, 2024 € □
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Hon. Cathy Ann Bencivengo
10 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10089366. Public record. Not legal advice.