# (PC) Coleman v. California Department of Corrections

> District Court, E.D. California · September 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10637062

## Case

- **Court:** District Court, E.D. California
- **Decided:** September 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating prison regulation which 13 impinges on inmate's constitutional rights is valid if reasonably related to legitimate penological interests

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 SAAHDI COLEMAN, No. 2:21-cv-00625-TLN-EFB (PC)
12 Plaintiff,
13 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
14 CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
15
Defendants.
16

17
18 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
19 U.S.C. § 1983. ECF No. 35. Defendants Lynch, Morgan, Thompson, Collinsworth, Manson,
20 Stewart, Jones, Nguyen, Burkhart, Frederick, Contreras, and Allison1, relying in part on federal
21 court records in the class action lawsuit Coleman v. Newsom, No. 2:90-cv-00520-KJM-DB (PC)
22 (E.D. Cal.) (the “Coleman class action”), move to dismiss plaintiff’s Eighth and 14th Amendment
23 claims against them under Federal Rule of Civil Procedure 12(b)(6). In addition, these
24 defendants seek to dismiss the request for prospective injunctive relief against defendant Allison
25

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1 Under the screening order, plaintiff proceeds on a potentially cognizable claim for
prospective injunctive relief against defendant Allison in her official capacity only. ECF No. 36
27 at 1. Defendant Allison has retired as CDCR Secretary as of the end of 2022 and was replaced in
that position by Jeff Macomber. ECF No. 53-1 at 2; see also id. at 61-63 (Exhibit F). The court
28 substitutes Macomber for defendant Allison pursuant to Federal Rule of Civil Procedure 25(d).
1 (now Macomber). ECF No. 53; see also ECF Nos. 59 (response), 64 (reply), 70 (“response”), 71
2 (“response”), 72 (motion to strike ECF Nos. 70 & 71 as unauthorized sur-replies). These
3 defendants do not seek dismissal of plaintiff’s retaliation claims.
4 Defendant Kelley separately moves to dismiss all claims against him under Rule 12(b)(6).
5 ECF Nos. 58 (motion), 66 (response), 69 (reply), 73 (sur-reply), 74 (motion to strike ECF No. 73
6 sur-reply).
7 For the reasons that follow, the court should grant Kelley’s motion to dismiss and grant in
8 part the motion to dismiss brought by the other defendants.
9 I. Allegations of the Third Amended Complaint
10 Plaintiff’s claims are based on his 10-month stay in the Short-Term Restricted Housing
11 (STRH) unit at California State Prison – Sacramento (CSP-Sac), beginning on May 1, 2020. ECF
12 No. 35 at 4. Defendant Macomber is the Secretary of CDCR. All other defendants are
13 employees of CSP-Sac. Id. at 2-3.
14 The TAC asserts the following claims: (1) for violation of the Eighth Amendment by
15 retaining plaintiff in the STRH for an unduly long period, (2) for retaliation against plaintiff in
16 violation of the First Amendment, (3) for violation the Eighth Amendment2 by exposing plaintiff
17 to unconstitutional conditions in the STRH, and (4) for violation of plaintiff’s constitutional right
18 to privacy by conducting psychological counseling at plaintiff’s cell door. The complaint seeks
19 damages and injunctive relief. ECF No. 35. Because the bulk of plaintiff’s retaliation claims are
20 not challenged by the instant motions, the court will not summarize them here. (Defendant
21 Kelley seeks dismissal of the retaliation claim against him, which is discussed below in the
22 section addressing Kelley’s motion.)
23 Plaintiff alleges that he was retained in the STRH for 10 months by defendants Lynch,
24 Stewart, Contreras, Morgan, Jones, Frederick, and Collinsworth, who served on the institutional
25 classification committee that determined plaintiff’s housing placement. Id. at 5-6. He claims

26 2 Plaintiff mistakenly alleges his conditions of confinement claim arises under the
Fourteenth Amendment. ECF NO. 35 at 14. Pre-trial detainees must bring their conditions of
27 confinement claims under the Fourteenth Amendment. Plaintiff is not a pre-trial detainee, and his
claims arises, if at all, under the Eighth Amendment.
28
1 generally that he was exposed to the following conditions in the STRH: unclean sheets and
2 underwear, cold showers, inadequate ventilation, no lighting, and an unsanitary shower area. Id.
3 at 5. He does not allege which defendants were responsible for creating, maintaining, or
4 acquiescing to those conditions. He does, however, allege that defendants Frericks, Burkheart,
5 and B. Nguyen refused to disinfect the recreational yard cages, telephones, and showers between
6 uses. Id. (Plaintiff was housed in the STRH during 2020, at the height of the Covid-19
7 pandemic.) He also alleges that defendant Tyler worked on the unit and coughed on plaintiff’s
8 cell door after having been exposed to Covid-19; Tyler was at work because he had not tested
9 positive for the virus. Id. at 9. Similarly, defendant Burkheart refused to wear a mask on the unit
10 in or around September 2020 despite coughing and sweating, after which plaintiff became sick.
11 Id. at 11. Defendants Nguyen, Frericks, Collinsworth, and Manson also refused to wear masks
12 while interacting with plaintiff, although plaintiff provides no specifics of these interactions (e.g.,
13 when they occurred or the extent of the interactions). Id. at 11-12.
14 Plaintiff reported his belief that adequate Covid-19 precautions were not being adhered to
15 in the STRH as well as the other poor conditions on the unit to defendants Lynch, Morgan,
16 Thompson, Stewart, Jones, Frederick, Contreras, Collinsworth, and Manson. Id. at 15.
17 The complaint alleges that Defendant Frericks sexually harassed plaintiff by making
18 comments about his genitalia during strip searches. Id. at 15. Plaintiff complained about the
19 harassment to defendants Lynch, Morgan, Thompson, Stewart, Jones, Frederick, Contreras,
20 Collinsworth, Manson, and Kelley, but they did nothing. Id.
21 Plaintiff claims that he filed a grievance with defendant Kelley concerning the conditions
22 in the STRH, but Kelley somehow subverted or misused the grievance system to prevent the
23 issues from being addressed. Id. at 15-16.
24 Lastly, plaintiff alleges that defendant Thompson conducted mental health counseling
25 with him at his cell door. Id. at 10. Defendant Frericks witnessed this and used his knowledge of
26 plaintiff’s mental health treatment to harass plaintiff and encourage other inmates to harass
27 plaintiff. Id. at 10.
28 ////
1 In screening the TAC, the court found that plaintiff had stated potentially cognizable
2 Eighth Amendment claims against Lynch, Morgan, Collinsworth, Manson, Tyler, Stewart, Jones,
3 Frericks, Nguyen, Burkheart, Kelley, Frederick, and Contreras. ECF No. 36. Plaintiff stated a
4 potentially cognizable Fourteenth Amendment claim against defendant Thompson and a
5 potentially cognizable claim for prospective injunctive relief against defendant Allison in her
6 official capacity. Id. Lastly, as is relevant to the instant motions to dismiss, plaintiff stated a
7 potentially cognizable retaliation claim against defendant Kelley. Id. (The court found other
8 retaliation claims potentially cognizable as well; those claims are not at issue in the instant
9 motions.)
10 II. Requests for Judicial Notice
11 A. Defendants’ Requests
12 Defendants ask the court to take judicial notice of certain pleadings in the Coleman class
13 action. ECF No. 53-1 at 1-2; see also id. at 4-60 (Exhibits A through E). These pleadings are
14 appropriate for judicial notice, and they are material to the disposition of defendants’ motion to
15 dismiss plaintiff’s Eighth Amendment claims. Accordingly, defendants’ request for judicial
16 notice, ECF No. 53-1, is granted. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir.
17 1986) (a court may take judicial notice of court records); United States v. Wilson, 631 F.2d 118,
18 119 (9th Cir. 1980).
19 B. Plaintiff’s First Request
20 Plaintiff asks the court to take judicial notice of four documents created by the California
21 Department of Corrections and Rehabilitation (CDCR), including a document describing Covid-
22 19 response efforts, a webpage published in 2020 on Covid-19 preparedness, a report on numbers
23 of Covid-19 infected employees as of January 11, 2021, and a Covid-19 screening and testing
24 matrix for patient movement dated August 19, 2020. ECF No. 59-1 at 1-2; see also id. at 3-46
25 (Exhibits A through D). Plaintiff also asks for judicial notice of a document that appears to be
26 two separate letters or portions thereof. Id. at 2; see also id. at 48-50 (Exhibit E). The first letter,
27 dated April 17, 2020, is addressed to the “Inmate Population” and describes mask requirements.
28 Id. at 48. The second letter fragment is addressed to “Dear Patient” and advises that two Covid-
1 19 cases were identified at CSP-Sac. Id. at 49-50.
2 Lastly, plaintiff asks for judicial notice of a letter addressed to him from counsel for the
3 Coleman plaintiff class. Id. at 2, id. at 52-53 (Exhibit F). In the letter, a paralegal clerk advises
4 plaintiff that if he is currently receiving or has ever received mental health treatment at a CDCR
5 institution, he is automatically a member of the Coleman plaintiff class, and he may pursue his
6 own case for damages against CDCR without opting out of the Coleman class action. Id. at 52.
7 Defendants object to plaintiff’s requests for judicial notice on the grounds that: (1)
8 judicial notice may not be used to supplement or further amend the allegations of the TAC, ECF
9 No. 65 at 1-2 (citing Gerritsen v. Warner Bros. Entertainment, Inc., 112 F. Supp. 3d 1011, 1033
10 n.93 (C.D. Cal. 2015)); (2) the letters plaintiff designates as his Exhibits E and F are not matters
11 generally known or that can be accurately and readily determined from sources whose accuracy
12 cannot reasonably be questioned, id. at 2 (citing Poisson v. Aetna Life Ins. Co., 488 F. Supp. 3d
13 942, 946 (C.D. Cal. 2020)); and (3) the documents are irrelevant to defendants’ motions, id. at 2-
14 3.
15 The court must take judicial notice if a party requests it and the court is supplied with the
16 necessary information. Fed. R. Evid. 801(c)(2). Agency documents, such as a printout from an
17 agency website, are proper subjects for judicial notice. United States v. Carrasco, 813 F. App’x
18 275, 277 n.1 (9th Cir. 2020). A court may take judicial notice of the acts of a governmental body
19 and documents submitted in the course of its deliberations, but may not take judicial notice as to
20 the truth of claims made in such deliberations. Health Freedom Defense Fund, Inc. v. Carvalho,
21 104 F.4th 715, 720, 725 (9th Cir. 2024); Polanco v. Diaz, 76 F.4th 918, 932 (9th Cir. 2023). A
22 court may consider matters of public record without converting a motion to dismiss into a motion
23 for summary judgment, but the court cannot take notice of disputed facts contained in the public
24 records. Ecological Rights Foundation v. PacificCorp., ___ F. Supp. 3d ___, 2024 WL 3186566,
25 at *4 (N.D. Cal. June 26, 2024) (citing Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999
26 (9th Cir. 2018)).
27 The court takes judicial notice of the fact that CDCR implemented measures to respond to
28 the Covid-19 pandemic and issued communications about those measures, as demonstrated in the
1 documents plaintiff appends as Exhibits A-E of his requests for judicial notice. The court does
2 not take judicial notice of the truth of the contents of these documents and does not accept as true
3 any inference as to any disputed fact nor any specific Covid-19 response measures implemented
4 by CDCR at any specific point in time. Nor does the court take judicial notice of the documents
5 for the purpose of supplying allegations that are not in plaintiff’s complaint.
6 The court denies plaintiff’s request to take judicial notice of the letter plaintiff appends as
7 Exhibit F because it is opinion and advice from an attorney to a client and is not a proper topic for
8 judicial notice for any purpose relevant to this motion to dismiss.
9 C. Plaintiff’s Second Request
10 Plaintiff asks the court to take judicial notice of additional information about how to
11 locate defendants Kelley and Tyler for service of process. ECF No. 66-1. This is not a proper
12 topic for judicial notice. Also, Kelley has already accepted service of process, and the
13 information regarding Tyler is insufficient to effect service on him. Plaintiff’s request for judicial
14 notice is denied.
15 D. The Court’s Sua Sponte Judicial Notice
16 A court may take judicial notice on its own at any stage of the proceeding. Fed. R. Evid.
17 801(c)(1) & (d). The court takes judicial notice that as recently as July 17, 2024, the parties in the
18 Coleman class action submitted a stipulated agreement addressing, inter alia, certain transfer
19 timeframes for short- and extended-term programming in the STRH. Coleman v. Newsom, No.
20 2:90-cv-00520-KJM-DB (PC) (E.D. Cal. July 17, 2024) (ECF No. 8337 at 5, 7 (pleading
21 captioned “Stipulation and [Proposed] Order on the Restricted Housing Unit Program: Mental
22 Health Services Transfer Timeline Exceptions”)). The July 17, 2024 proposed stipulated
23 agreement, which has not been approved by the court as of the date of this order, provides
24 procedures for “circumstances under which the transfer timelines in sections Cal. Code Regs. tit.
25 15 §§ 3335.2(d), 3335.3(d), and 3335.4(c) cannot be met[,]” id. at 5, and demonstrates that the
26 length of time prisoners spend in STRH units is a topic that is still under consideration in the
27 Coleman class action.
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1 III. The Motions to Dismiss
2 As noted, there are two pending motions to dismiss. The first motion, brought by the bulk
3 of defendants, seeks to dismiss: (1) the Eighth Amendment claims regarding plaintiff’s length of
4 stay in the STRH against Lynch, Stewart, Jones, Morgan, Frederick, Contreras, and Collinsworth;
5 (2) the Fourteenth Amendment claim against Thompson; (3) the Eighth Amendment conditions-
6 of-confinement claims against Lynch, Morgan, Collinsworth, Manson, Tyler, Stewart, Jones,
7 Frericks, Nguyen, Burkhart, Kelley, Frederick, and Contreras; and (4) the claim for injunctive
8 relief against Macomber as the Secretary of CDCR. ECF No. 53-2 at 8. The second motion
9 seeks dismissal of plaintiff’s claims against Kelley in their entirety. ECF No. 58-1 at 6.
10 A. Federal Rule of Civil Procedure 12(b)(6) Standard
11 In considering a motion to dismiss, the court must accept as true the allegations of the
12 complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976),
13 construe the pleading in the light most favorable to the party opposing the motion and resolve all
14 doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S.
15 869 (1969). Further, “a document filed pro se is ‘to be liberally construed.’” Erickson v. Pardus,
16 551 U.S. 89, 93-94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, “a
17 liberal interpretation of a civil rights complaint may not supply essential elements of the claim
18 that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.
19 1982).
20 To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege enough specific
21 facts to provide both “fair notice” of the particular claim being asserted and “the grounds upon
22 which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation omitted);
23 see also Rule 8(a). “Vague and conclusory allegations of official participation in civil rights
24 violations are not sufficient to withstand a motion to dismiss.” Ivey v. Bd. of Regents of Univ. of
25 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Rather, “a complaint must contain sufficient factual
26 matter … to ‘state a claim to relief that is plausible on its face.’ A claim has factual plausibility
27 when the plaintiff pleads factual content that allows the court to draw the reasonable inference
28 that the defendant is liable for the alleged misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678
1 (2009) (citation omitted).
2 ////
3 B. Eighth Amendment: Length Of STRH Stay
4 Plaintiff alleges that he was placed in the STRH unit at CSP-Sac because he is a
5 participant in the mental health program and staff had received information that he was to be the
6 victim of a violent assault. ECF No. 35 at 4. Plaintiff alleges his experience in the STRH was
7 atypical because other inmates were quickly transferred out of the STRH, but plaintiff was kept in
8 that restricted housing long term. Plaintiff alleges he met with members of his classification
9 committee (defendants Lynch, Stewart, Jones, Morgan, Frederick, Contreras, and Collinsworth)
10 at least five times beginning on May 6, 2020, and that they continued to retain him in the STRH
11 after each meeting. Id. at 5-6.
12 The court agrees with defendants that plaintiff’s claim concerning the duration of his
13 STRH stay is encompassed within the Coleman class action and therefore must be dismissed. The
14 parties agree that plaintiff is a member of the Coleman plaintiff class.3 ECF No. 53-2 at 19; ECF
15 No. 59 at 9 (plaintiff states he became a Coleman plaintiff class member in 2019). The parties
16 also agree that the STRH unit was created pursuant to an order in the Coleman class action to
17 create specialized housing units for prisoners with mental health diagnosis placed in segregated
18 housing. ECF No. 35 at 4; see also id. at 6; ECF No. 53-2 at 19-20. The court has taken judicial
19 notice that length of inmate stays in the STRH units was the subject of court orders in the
20 Coleman class action in 2014 and 2020; in fact, the issue remains under consideration in the
21 Coleman class action as of mid-2024, two years after plaintiff was moved out of the STRH unit at
22 CSP-Sac.
23 Plaintiff maintains his long-term retention in the STRH unit at CSP-Sac violated court
24 orders to move prisoners out of STRH within 72 hours, that he conveyed this to his classification
25 committee, and that the classification committee was aware that plaintiff was a participant in the
26 MHSDS (Mental Health Services Delivery System) program. ECF No. 35 at 5-6. Plaintiff

27 3 Plaintiff is not the lead plaintiff in the Coleman class action, who is named Ralph
Coleman. 912 F. Supp. 1282 (E.D. Cal. 1995).
28
1 alleges that “defendants ... knowingly chose to violate the standing Federal Court order and retain
2 me in solitary confinement long term.” Id. at 6.
3 A district court may dismiss portions of a claim that duplicates a class action of which
4 plaintiff is a member but should not dismiss allegations which go beyond the allegations and
5 relief requested in the class action. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013),
6 Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979). While plaintiff is free to allege independent
7 claims for relief based on violation of his rights under federal law, Hiser v. Franklin, 94 F.3d
8 1287, 1291 (9th Cir. 1996), he may not rely on the violation of consent decrees or remedial plans
9 in other cases to state a claim, Frost v. Symington, 197 F.3d 348, 358-59 (9th Cir. 1999). Relief
10 for violation of consent decrees or remedial plans must be pursued in the case in which the decree
11 or plan was issued. Frost, 197 F.3d at 358-59; Crayton v. Terhune, No. C 98-4386 CRB (PR),
12 2002 WL 31093590, at *4 (N.D. Cal. Sept. 17, 2002). To the extent plaintiff’s claim is that the
13 duration of his stay in the STRH violated orders in the Coleman class action, his claim is within
14 the scope of the Coleman class action, and he must bring his claim there.
15 Plaintiff also alleges that his 10-month retention in the STRH violated “CCR 3335(2)(A)”
16 and that he should have been transferred out of the STRH within 72 hours of arrival. ECF No. 35
17 at 6. According to defendants, this is a reference to Cal. Code Regs. tit. 15, § 3335(a)(2)(A)
18 (effective to Oct. 31, 2023). Defendants correctly argue that violations of state regulations do not
19 establish a constitutional violation, and that segregated confinement does not itself violate the
20 Eighth Amendment. ECF No. 53-2 at 20-21 (citing Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th
21 Cir. 2009) and Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). Accordingly, any claim plaintiff
22 raises based on an alleged violation of title 15 fails.
23 For these reasons, it is recommended that the TAC’s length-of-stay claims – asserted
24 against defendants Lynch, Stewart, Jones, Morgan, Frederick, Contreras, and Collinsworth (ECF
25 No. 35 at 5-6) – be dismissed with prejudice. See Ctr. For Bio. Diversity v. United States Forest
26 Serv., 80 F.4th 943, 956 (9th Cir. 2023) (“Amendment is futile when ‘it is clear … that the
27 complaint could not be saved by any amendment.’” (quoting Armstrong v. Reynolds, 22 F. 4th
28 1058, 1071 (9th Cir. 2022))).
1 C. Eighth Amendment: Conditions Of Confinement
2 1. Claims Against Custodial Defendants
3 Plaintiff claims that the conditions of his confinement in STRH violated his Eighth
4 Amendment rights. Extreme deprivations are required to make out a conditions-of-confinement
5 claim, and only those deprivations denying the minimal civilized measure of life’s necessities are
6 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,
7 503 U.S. 1, 9 (1992). “Prison officials have a duty to ensure that prisoners are provided adequate
8 shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d
9 726, 731-32 (9th Cir. 2000) (quotations and citations omitted). Conditions of confinement in
10 combination may have a “mutually enforcing effect” that deprives a single identifiable human
11 need such as food, warmth, or exercise, but “[a]morphous overall conditions cannot rise to the
12 level of cruel and unusual punishment when no specific deprivation of a single human need
13 exists.” Brown v. Bueno, No. 1:17-cv-01295-LJO-SKO (PC), 2018 WL 6068513, at *3 (E.D.
14 Cal. Nov. 20, 2018) (citing and quoting Wilson v. Seiter, 501 U.S. 294, 304-05 (1991) (internal
15 quotation marks omitted)).
16 Defendants argue that plaintiff has failed to allege sufficient facts to support his
17 conditions-of-confinement claims. It is true that many of plaintiff’s allegations do not tie a
18 specific allegedly unconstitutional condition to the conduct of any specific defendant (e.g.,
19 allegations concerning shower cleanliness and laundry). Such allegations cannot form the basis
20 of a cognizable claim. See Ashcroft, 556 U.S. at 676. Other allegations mention specific
21 defendants but are unspecific as to the degree or duration of the condition (e.g., ECF No. 25 at 5,
22 alleging that defendants Frericks, Nguyen, and Burkheart refused to disinfect recreational yard
23 cages, telephones, and showers between uses and that defendants Frericks, Collinsworth, Nguyen,
24 Burkheart, and Manson “denied all sanitation protocols to me”; id. at 11-12, alleging that
25 defendants Nguyen, Frericks, Collinsworth, Manson, and Tyler refused to wear masks while
26 interacting with plaintiff). Because the “circumstance, nature and duration” of a condition of
27 confinement must be examined to determine whether the condition violated the Eighth
28 Amendment, the absence of such allegations in the TAC also fail to state cognizable claims.
1 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000).
2 Similarly, plaintiff’s claims that he reported such conditions to supervisory defendants
3 who did not remedy them fail. Plaintiff has not stated sufficient facts that would show the
4 conditions to be unconstitutional in the first place (thereby giving rise to a potential obligation on
5 the part of such defendants to act). Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (to
6 properly plead supervisory liability, a plaintiff must allege facts indicating that supervisory
7 defendants either personally participated in the alleged deprivation of constitutional rights, knew
8 of the violations and failed to act to prevent them (or remedy them), or promulgated or
9 implemented “a policy so deficient that the policy itself is a repudiation of constitutional rights
10 and is the moving force of the constitutional violation.”). Thus, these claims must also be
11 dismissed with leave to amend.
12 Plaintiff alleges that defendant Frericks sexually harassed him during strip searches by
13 commenting on plaintiff’s genitalia and that plaintiff complained about the harassment to
14 defendants Lynch, Stewart, Jones, Frederick, Contreras, Collinsworth, Manson and Kelley, but
15 they did nothing. ECF No. 35 at 15. While verbal harassment generally does not arise to the
16 level of a constitutional violation, verbal sexual harassment may violate the Eighth Amendment if
17 it is “unusually gross even for a prison setting and . . . calculated to and did cause . . .
18 psychological damage.” Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). Although
19 plaintiff’s mental health is surely a relevant factor, he has not alleged sufficient facts to determine
20 whether Frericks’ comments potentially satisfy this rule, and thus this claim should also be
21 dismissed with leave to amend.
22 Plaintiff alleges that, on some occasion on or around September 2020, defendant
23 Burkheart refused to wear a mask despite coughing and sweating and that plaintiff thereafter
24 became sick. ECF No. 35 at 11. He alleges that defendant Tyler worked on the STRH at some
25 unspecified time despite having been exposed to Covid-19 (but having no positive test for the
26 virus) and coughed on plaintiff’s door. Id. at 9. Correctional staff have an obligation under the
27 Eighth Amendment to protect prisoners from infectious diseases. Helling v. McKinney, 509 U.S.
28 25, 33 (1993). To succeed on such a claim, a prisoner must allege facts showing that the risk
1 posed by the disease was sufficiently serious and that the defendant was aware of the risk but
2 failed to take reasonable steps to abate it. Davis v. Allison, No. 1:21-cv-00494-JLT-HBK (PC),
3 2023 U.S. Dist. LEXIS 184930, at *6 (E.D. Cal. Oct. 13, 2023). Courts have concluded that
4 Covid-19 poses a sufficient risk on which to premise Eighth Amendment liability. Id. However,
5 plaintiff has not alleged facts from which it can be determined if Tyler and Burkheart were
6 subjectively aware that they were exposing plaintiff to Covid-19. Plaintiff does not allege that
7 either defendant had Covid-19. Rather, as to Tyler, he alleges that Tyler had not tested positive
8 for the virus. Nor does plaintiff include any facts indicating the circumstances and duration of his
9 interactions with Burkheart and Tyler. Accordingly, these claims should also be dismissed with
10 leave to amend.
11 In sum, it is recommended that plaintiff’s Eighth Amendment claims be dismissed with
12 leave to amend so that plaintiff is afforded an opportunity to cure his claims with the allegation of
13 additional facts as indicated above.
14 D. Fourteenth Amendment Claim
15 Plaintiff alleges that Thompson, a psychologist, conducted cell-side therapy sessions at
16 plaintiff’s door speaking loudly enough to be heard by inmates and staff on the tier. ECF No. 35
17 at 10. Plaintiff alleges he reported defendant Frericks’ sexual harassment to Thompson at one
18 such session. Id. Frericks interrupted plaintiff’s discussion with Thompson to conduct a welfare
19 check, and allegedly made a comment at the next welfare check that “I saw you talking to mental
20 health I thought you were G.P. I didn’t realize you had so many sensitive needs.” Id. Plaintiff
21 alleges that “verbal attacks” about this topic continued for months. Id. at 10-11. Plaintiff alleges
22 that Thompson violated his Fourteenth Amendment rights by disclosing plaintiff’s sensitive
23 personal mental health information. Id. at 16.
24 Defendants assert that prisoners have no expectation of privacy and that cell-side
25 psychiatric consultations do not violate any constitutional right. ECF No. 53-2 at 15 (citing inter
26 alia Bell v. Wolfish, 441 U.S. 520, 557-58 (1979) and Hudson v. Palmer, 468 U.S. 517, 525-26
27 (1984)). In finding plaintiff’s claim against Thompson potentially cognizable, this court relied on
28 Robinson v. Purcell, No. 2:14-cv-0790, 2019 U.S. Dist. LEXIS 49641 (E.D. Cal. Sept. 22, 2014),
1 which stated:

2 One component of the right of privacy resident in the Fourteenth
Amendment is “the individual interest in avoiding disclosure of personal
3 matters.” Whalen v. Roe, 429 U.S. 589, 599, 97 S. Ct. 869, 51 L. Ed. 2d
64 (1977); Davis v. Bucher, 853 F.2d 718, 719 (9th Cir. 1988) (citing
4 Whalen). This protected privacy interest in avoiding disclosure of
personal matters clearly encompasses medical information and its
5 confidentiality. Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135
F.3d 1260, 1269 (9th Cir. 1998).
6
At the same time, it is also well understood that “imprisonment carries
7 with it the circumscription or loss of many significant rights.” Hudson v.
Palmer, 468 U.S. 517, 524, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984).
8 Prisons have a penological interest in curtailing inmates” privacy rights.
See Gomez v. Vernon, 255 F.3d 1118, 1133 (9th Cir. 2001). As a result,
9 the loss of privacy is an “inherent incident[ ] of confinement.” Bell v.
Wolfish, 441 U.S. 520, 537, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979).
10
***
11
In sum, inmates only retain privacy rights that are not inconsistent with
12 legitimate penological objectives. Turner v. Safley, 482 U.S. 78, 89, 107
S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (stating prison regulation which
13 impinges on inmate's constitutional rights is valid if reasonably related to
legitimate penological interests).
14
15 Robinson v. Purcell, No. 2:14-cv-0790 MCE AC P, 2019 U.S. Dist. LEXIS 49641, at *6-8 (E.D.
16 Cal. Mar. 25, 2019). Defendants argue that Robinson got the law wrong because “neither
17 Norman-Bloodsaw nor Whalen were concerned with prison inmates or privacy rights inside a
18 prison.” ECF No. 53-2 at 16. Defendants argue that Hudson mandates the conclusion that
19 prisoners have “no reasonable expectation of privacy in prison[.]” Id. But Hudson did not so
20 hold, nor does its holding lead inexorably to that conclusion. Rather, Hudson was limited to a
21 determination that prisoners have no reasonable expectation of privacy in the contents of their
22 cells such that the Fourth Amendment would govern cell searches. Hudson, 468 U.S. at 526
23 (“[S]ociety is not prepared to recognize as legitimate any subjective expectation of privacy that a
24 prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription
25 against unreasonable searches does not apply within the confines of the prison cell.”). Hudson
26 does not support the premise that prisoners have no reasonable expectation of privacy in their
27 confidential medical information. Whether plaintiff will be able to present sufficient evidence at
28 trial, or in opposition to a Rule 56 motion, that Thompson disclosed plaintiff’s sensitive personal
1 mental health information remains to be seen. But absent controlling authority to the contrary,
2 the court should decline to contradict the well-reasoned decision in Robinson.
3 Defendants argue that Thompson should be afforded qualified immunity. Qualified
4 immunity protects government officials from liability for civil damages where a reasonable
5 person would not have known their conduct violated a clearly established right. Anderson v.
6 Creighton, 483 U.S. 635, 638-39 (1987). In determining whether the doctrine of qualified
7 immunity provides a government officer protection, a court must make two inquiries: 1) whether
8 the facts alleged show that the officer violated a constitutional right; and 2) whether the
9 constitutional right well established. Saucier v. Katz, 533 U.S. 194, 201 (2001); Pearson v.
10 Callahan, 555 U.S. 223 (2009) (courts have discretion to decide which of the two Saucier prongs
11 to address first). “In other words, existing law must have placed the constitutionality of the
12 officer’s conduct beyond debate. . . . This demanding standard protects all but the plainly
13 incompetent or those who knowingly violate the law.” District of Columbia v. Wesby, 583 U.S.
14 48, 63 (2018) (internal citations and quotation marks omitted).
15 Defendants first argue that Thompson should be afforded qualified immunity because,
16 under Hudson, “it is established law that inmates have no reasonable expectation of privacy in
17 prison.” ECF No. 53-2 at 17. But, as discussed above, that is an inaccurate statement of
18 Hudson’s holding. See also Norman-Bloodsaw, 135 F.3d at 1269 (“The constitutionally
19 protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical
20 information and its confidentiality.”); Brown v. Vovkulin, No. 2:20-cv-02098 CKD P, 2021 U.S.
21 Dist. LEXIS 74003, at *6 (E.D. Cal. Apr. 16, 2021) (“[I]n the prison context, the Ninth Circuit
22 has found that an inmate’s right to informational privacy may yield to the need for institutional
23 safety and security,” citing Seaton, 610 F.3d at 534-35).
24 Defendants next argue that any right plaintiff may have in private mental health treatment
25 in prison is not well-established because there is a lack of definitive authority on the issue. The
26 court disagrees. The Ninth Circuit, and district courts within the circuit, routinely recognize
27 inmates’ right to informational privacy. E.g., Seaton v. Mayberg, 610 F.3d 530, 539 (9th Cir.
28 1996); Doe v. Beard, No. EDCV 13-02262 DDP (SPx), 2014 U.S. Dist. LEXIS 95643, at *11
1 (C.D. Cal. July 14, 2014) (“The Ninth Circuit has repeatedly recognized a constitutionally
2 protected interest in avoiding disclosure of personal matters, including medical information.”);
3 Brown, 2021 U.S. Dist. LEXIS 74003. While such a right may be circumscribed by legitimate
4 penological concerns, the court lacks the information at this stage of the proceeding to assess the
5 legitimacy of Thompson’s decision to conduct counseling at plaintiff’s cell. O'Brien v. Welty,
6 818 F.3d 920, 936 (9th Cir. 2016) (“When, as here, defendants assert qualified immunity in a
7 motion to dismiss under Rule 12(b)(6), dismissal is not appropriate unless we can determine,
8 based on the complaint itself, that qualified immunity applies.”) (internal quotation marks
9 omitted).
10 Accordingly, the court should deny defendant’s request to dismiss plaintiff’s 14th
11 Amendment claim against defendant Thompson.
12 E. The Injunctive Relief Claims
13 Defendants argue that plaintiff’s request for injunctive relief against defendant Macomber
14 (successor to defendant Allison) must be dismissed because it has been mooted by plaintiff’s
15 move to another prison. Defendants further argue that plaintiff’s request for system-wide
16 injunctive relief must be pursued in the Coleman class action. The court need not address the
17 viability of plaintiff’s requests for injunctive relief at this time.
18 Plaintiff’s requests for injunctive relief are not a separate cause of action. Diaz-Amador v.
19 Wells Fargo Home Mortgages, 856 F. Supp. 2d 1074, 1083 (D. Ariz. 2012). Rather, injunctive
20 relief is a remedy that will turn upon whether plaintiff can actually prove the requisite elements of
21 his substantive claims. Donney v. Beard, No. 2:15-cv-2530-JAM-EFB P, 2016 U.S. Dist. LEXIS
22 19251, at *8-9 (E.D. Cal. Feb. 17, 2016). Accordingly, the court should deny defendant’s request
23 to dismiss the injunctive relief claims.
24 F. Motion to Strike Sur-replies
25 Plaintiff filed two sur-replies to defendants’ first motion to dismiss (ECF No. 53). ECF
26 Nos. 70, 71. Plaintiff’s first sur-reply disputes defendants’ arguments against plaintiff’s requests
27 for judicial notice. ECF No. 70. Plaintiff’s second sur-reply argues that his membership in the
28 Coleman class does not preclude him from pursuing his claims in this action, repeats generalized
1 allegations about his Eighth Amendment conditions of confinement claim, and also contains
2 additional allegations regarding his Fourteenth Amendment claim against defendant Thompson.
3 ECF No. 71.
4 Defendants move to strike both sur-replies as unauthorized under Local Rule 230(l), and
5 because the exceptions contained in Local Rule 230(m) do not apply. ECF No. 72 at 2. The sur-
6 replies neither object to reply evidence, nor give notice of supplemental authority. See Local
7 Rule 230(m). The court finds defendants’ arguments well-taken and will therefore strike
8 plaintiff’s sur-replies at ECF Nos. 70 and 71.
9 G. Kelley’s Motion to Dismiss
10 The TAC alleges that Kelley, as appeals coordinator, failed in various ways to respond
11 appropriately to “inmate appeals” and that he “used his position to make the appeals system
12 unavailable for prisoners in the STRH unit.” ECF No. 35 at 15.
13 Defendant Kelley argues that the TAC does not plausibly allege any specific factual basis
14 for an Eighth Amendment conditions-of-confinement claim against Kelley and also fails because
15 inmates do not have a right to a particular appeals process. ECF No. 58-1 at 13. The court
16 agrees. As noted above, the TAC does not contain sufficient factual allegations to show that an
17 Eighth Amendment violation occurred, thus Kelley cannot be liable for failing to act to prevent or
18 remedy such a violation. And there is no constitutional right to a specific grievance procedure
19 and no cause of action for improper grievance processing. McCoy v. Roe, 509 Fed. Appx. 600,
20 660 (9th Cir. 2013); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).
21 Defendant Kelley also argues that the TAC fails to state a cognizable retaliation claim. To
22 state a viable First Amendment retaliation claim, a prisoner must allege five elements: “(1) An
23 assertion that a state actor took some adverse action against an inmate (2) because of (3) that
24 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First
25 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”
26 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First
27 Amendment includes communications that are “part of the grievance process.” Brodheim v. Cry,
28 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). The court agrees that the TAC fails to allege that
1 Kelley’s alleged improper processing of plaintiff’s grievances was undertaken because of
2 plaintiff’s filing of grievances or other protected conduct.
3 Defendant Kelley also argues that plaintiff’s claims against him are barred by the doctrine
4 of qualified immunity. Because the claims against Kelley must be dismissed for failure to state a
5 claim, the court does not reach Kelley’s argument for qualified immunity.
6 Defendant Kelley argues that plaintiff has already been given ample opportunity to state a
7 claim against him and so should not be allowed to further amend the TAC. Out of an abundance
8 of caution, the undersigned recommends that plaintiff be given one final opportunity to amend the
9 TAC to state actionable claims against Kelley. The court therefore recommends that Kelley’s
10 motion to dismiss be granted with leave to amend.
11 H. Motion To Strike Sur-Reply
12 Plaintiff has filed a sur-reply to Kelley’s motion to dismiss, in which plaintiff attempts to
13 expand upon the allegations of the TAC’s claim against Kelley. ECF No. 73. Kelley objects to
14 the sur-reply as unauthorized under Local Rule 230(l) and because it neither objects to reply
15 evidence nor gives notice of supplemental authority as allowed under Local Rule 230(m). ECF
16 No. 74. The court agrees and will therefore strike plaintiff’s sur-reply at ECF No. 73. Should the
17 district judge dismiss plaintiff’s claims against Kelley with leave to amend, as recommended,
18 plaintiff may seek leave to file a further-amended complaint including these allegations.
19 IV. Order And Recommendations
20 Accordingly, IT IS HEREBY ORDERED that:
21 1. Defendants’ requests for judicial notice, ECF No. 53-1, are GRANTED.
22 2. Plaintiff’s requests for judicial notice, ECF No. 59-1, are GRANTED IN PART as
23 to his Exhibits A-E and DENIED IN PART as to his Exhibit F.
24 3. Plaintiff’s request for judicial notice, ECF No. 66-1, is DENIED.
25 4. Defendants’ motion, ECF No. 72, to strike plaintiff’s sur-replies at ECF Nos. 70
26 and 71 is GRANTED.
27 5. Defendant Kelley’s motion, ECF No. 74, to strike plaintiff’s sur-reply at ECF No.
28 73, is GRANTED.
1 6. Jeff Macomber is substituted for defendant Kathleen Allison. The Clerk of Court
2 || is directed to modify the caption of this action to acknowledge the substitution.
3 Further, IT IS HEREBY RECOMMENDED that:
4 1. Defendants’ motion to dismiss, ECF No. 53 be:
5 A) GRANTED IN PART without leave to amend as to plaintiffs Eighth
6 Amendment claims against all defendants regarding his placement and length of stay in
7 the STRH Unit at CSP-Sac;
8 C) GRANTED IN PART with leave to amend as to plaintiff's Eighth
9 Amendment conditions-of-confinement claims; and
10 D) DENIED as to plaintiff's 14th Amendment claim against defendant
11 Thompson.
12 2. Defendant Kelley’s motion to dismiss, ECF No. 58, be GRANTED with leave to
13 | amend.
14 3. Plaintiff be granted 30 days from the date of any order adopting these
15 || recommendations to file a motion for leave to file a fourth amended complaint, should he wish to
16 || attempt to cure the deficiencies identified herein as to claims dismissed with leave to amend.
17 These findings and recommendations are submitted to the United States District Judge
18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days
19 | after being served with these findings and recommendations, any party may file written
20 | objections with the court and serve a copy on all parties. Such a document should be captioned
21 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
22 | objections shall be filed and served within fourteen days after service of the objections. The
23 || parties are advised that failure to file objections within the specified time may waive the right to
24 || appeal the District Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).
Dor SZ ZL
26 || Dated: September 6, 2024 Za l Uebigl Fe LACL
EDMUND F. BRENNAN
27 UNITED STATES MAGISTRATE JUDGE
28
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10637062. Public record. Not legal advice.