Rogers v. King County

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT TACOMA

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Ray Clarence Rogers, CASE NO. 2:23-cv-1034

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Plaintiff, ORDER ADOPTING REPORT AND

12 v. RECOMMENDATION (DKT. NO.

166)

13 King County et al,

14 Defendant.

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16 I INTRODUCTION

17 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Grady

18 J. Leupold (Dkt. No. 166), and objections thereto from Defendants (Dkt. No. 167) and Plaintiff

19 (Dkt. No. 169). For the reasons that follow, the Court ADOPTS the R&R in full and DENIES

20 the objections. Specifically, the Court adopts the recommendation to not dismiss Count I

21 (ventilation) and to dismiss Counts II (foodservice and dirty trays) and III (law library), without

22 leave to amend.

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1 II BACKGROUND

2 Plaintiff is a pretrial detainee in the King County Regional Justice Center. (Dkt. No. 1-2

3 at 2.) His amended complaint alleges § 1983 claims on three principal bases: that his unit of the

4 jail has a defective ventilation system resulting in unsanitary conditions in the bathroom and foul

5 stench, that he is being served food that is cold and on dirty trays, and that the law library has

6 failed to provide certain books and supplies, impairing his pro se criminal defense. (See

7 generally, Dkt. No. 116.) Defendants moved to dismiss. (Dkt. No. 143.)

8 The R&R recommends that the motion to dismiss be granted in part and denied in part,

9 specifically that the claim regarding the ventilation system should not be dismissed as to

10 Defendants Verhelst and Skinner, but the other claims should be dismissed without leave to

11 amend. (Dkt. No. 166 at 2.) Defendants assert that Judge Leupold erred in recommending

12 denial of the motion as to the ventilation claim, while Plaintiff argues that the other claims

13 should survive as well. (Dkt. Nos. 167, 169.)

14 Plaintiff has previously amended his complaint several times, and his Fourth Amended

15 complaint is now the operative complaint. (See Dkt. Nos. 25, 85, 100, 115, 116).

16 III DISCUSSION

17 a. Legal Standard

18 1. Review of R&Rs

19 A district court reviews de novo “those portions of the report or specified proposed

20 findings or recommendations to which [an] objection is made.” 28 U.S.C. § 636(b)(1)(C); see

21 also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the

22 magistrate judge’s disposition that has been properly objected to.”). Objections to an R&R must

23 be “specific.” Fed. R. Civ. P. 72(b)(2).

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1 2. Motions to Dismiss

2 Federal Rule of Civil Procedure 12(b) motions to dismiss may be based on either the lack

3 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal

4 theory. Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Material

5 allegations are taken as admitted and the complaint is construed in the plaintiff’s favor. Keniston

6 v. Roberts, 717 F.2d 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6)

7 motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide

8 the grounds of his entitlement to relief requires more than labels and conclusions, and a

9 formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.

10 Twombly, 550 U.S. 544, 554–555 (2007) (internal citations omitted). “Factual allegations must

11 be enough to raise a right to relief above the speculative level, on the assumption that all the

12 allegations in the complaint are true (even if doubtful in fact).” Id. at 555. The complaint must

13 allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 547.

14 Additionally, complaints filed pro se are “to be liberally construed”; “a pro se complaint,

15 however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

16 by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.

17 97, 106 (1976); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated

18 the Twombly pleading standard and Twombly did not alter courts’ treatment of pro se filings;

19 accordingly, we continue to construe pro se filings liberally when evaluating them under

20 Iqbal.”). “Unless it is absolutely clear that no amendment can cure the defect, [] a pro se litigant

21 is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to

22 dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). However,

23 leave to amend is properly denied if amendment would be futile. See Ventress v. Japan Airlines,

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1 603 F.3d 676, 680 (9th Cir. 2010); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir.

2 2002).

3 b. Analysis of the Ventilation Claim

4 Plaintiff’s Count I relates to inadequate ventilation. (Dkt. No. 116 at 7–23.) Within

5 prisons, inadequate “ventilation and air flow” violates the Eighth Amendment if it “undermines

6 the health of inmates and the sanitation of the penitentiary.” Keenan v. Hall, 83 F.3d 1083, 1090

7 (9th Cir. 1996), opinion amended on denial of reh'g, 135 F.3d 1318 (9th Cir. 1998) (quoting

8 Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir.1985)). For a pretrial detainee to allege

9 deliberate indifference, they must show that:

10 (i) the defendant made an intentional decision with respect to the conditions under which

the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of

11 suffering serious harm; (iii) the defendant did not take reasonable available measures to

abate that risk, even though a reasonable official in the circumstances would have

12 appreciated the high degree of risk involved—making the consequences of the

defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused

13 the plaintiff's injuries.

14 Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). “With respect to the third

15 element, the defendant's conduct must be objectively unreasonable, a test that will necessarily

16 ‘turn[ ] on the facts and circumstances of each particular case.’” Id.

17 Plaintiff makes claims against supervisors within the jail. (See Dkt. No. 116 at 20–21.)

18 As to supervisory liability, “[a] defendant may be held liable as a supervisor under § 1983 ‘if

19 there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a

20 sufficient causal connection between the supervisor's wrongful conduct and the constitutional

21 violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885

22 F.2d 642, 646 (9th Cir. 1989)). The supervisor can create the causal connection by “setting in

23 motion a series of acts by others or by knowingly refusing to terminate a series of acts by others,

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1 which the supervisor knew or reasonably should have known would cause others to inflict a

2 constitutional injury.” Id. at 1207–1208. (cleaned up). “A supervisor can be liable in his

3 individual capacity for his own culpable action or inaction in the training, supervision, or control

4 of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that

5 showed a reckless or callous indifference to the rights of others.” Id. at 1208 (quoting Watkins v.

6 City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)).

7 Plaintiff pled specific information regarding the non-functional vents. He states that

8 there are four vents in his bunk area, two of which are inoperable and two of which function at

9 an apparently reduced capacity. (Dkt. No. 116 at 13.) Plaintiff also identified five inoperable

10 exhaust vents, three in the bunk area and two in the partially-enclosed bathroom and shower

11 area. (Id. at 12.) Plaintiff alleges that the inadequate ventilation created mold and mildew in the

12 shower area, the “smell of feces” lingered in the unit “throughout the day,” and the unit became

13 “unreasonably hot” such that he could “barely breathe.” (Id. at 13, 17.) He alleges that as a

14 result of these ventilation problems he suffered adverse health effects including “nausea[],

15 dizziness, loss of appetite, headaches” and other mental and physical ailments. (Id. at 20.) He

16 recounts an incident in which he was attacked by another inmate in the bathroom, and because

17 the see-through structure separating the bathroom from the unit was fogged up with shower

18 steam from lack of ventilation, officers could not timely notice and respond. (Id. at 17.)

19 The amended complaint identifies three individuals allegedly responsible for Plaintiff

20 experiencing these conditions. Defendant Curtis was the “Corrections Program Administrator”

21 responsible for overseeing the “Classification Department” that makes housing assignments. (Id.

22 at 10.) Defendant Skinner was the “maintenance engineer whom was responsible for ensuring

23 that ventilation/HVAC system throughout KCCF operated properly.” (Id.) Defendant Verhelst

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1 also had responsibility for inmate placement. (Id. at 11.) Plaintiff alleges that “at some point of

2 time Defendant Sgt. Verhelst addressed the entire unit regarding the inadequate ventilation” and

3 told the inmates that she had “notified the classification department of the units 7S-L-C

4 inadequate ventilation.” (Id. at 14.) But the problem was not resolved, and Plaintiff and others

5 filed grievances that did not receive a response. (Id. at 14–15.) Ultimately, this condition

6 persisted for months, between June 2023 and January 2024, and the ventilation system was not

7 repaired. (Id. at 17, 19.)

8 The R&R finds that the inadequate ventilation claim is plausibly stated against

9 Defendants Verhelst and Skinner but not Defendant Curtis. Citing Keenan and other cases, the

10 R&R finds that the poor ventilation conditions as alleged in the complaint could rise to the level

11 of a constitutional violation and are stated with sufficient detail. (Dkt. No. 166 at 9–10.) As to

12 Defendant Curtis, Plaintiff failed to allege that he personally had any responsibility for or notice

13 of the ventilation conditions, beyond conclusory statements, so the claim against him must be

14 dismissed. (Id. at 10.) But Plaintiff adequately pled that Verhelst was on notice, since she

15 addressed the unit regarding the issue. (Id. at 9–10.) And as to Defendant Skinner, Judge

16 Leupold drew an inference in Plaintiff’s favor that “Defendant Skinner would have likely learned

17 about the ventilation failure after Verhelst spoke of it or would have been aware of the issue

18 pursuant to regular management of the unit’s facilities” in his capacity as the maintenance

19 engineer. (Id. at 11.) Because it is clearly established that poor ventilation can create a

20 constitutional violation, Verhelst and Skinner were not entitled to qualified immunity, either.

21 (Id. at 11–12.)

22 Defendants’ primary objection to this analysis is that in its discussion of poor ventilation

23 conditions causing a constitutional violation, the R&R relies on cases concerning high heat,

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1 particularly in California prisons, and the same concerns are not present in the cool, rainy climate

2 of the Seattle region. (Dkt. No. 167 at 4–5.) Defendants in fact ask this Court to take judicial

3 notice of temperatures in Seattle in June through August of 2023, attaching a climate chart to

4 their motion. (Id.; Dkt. No. 168 at 4.) While the Court acknowledges that Seattle is not as prone

5 to extreme heat as parts of California, Defendants overstate the issue. First, Judge Leupold did

6 not rely exclusively on high-heat cases. For instance, the R&R cites Keenan, where Plaintiff

7 alleged “the smell of urine and vomit as well as other stale bodily odors” from poor ventilation,

8 and the Ninth Circuit held that summary judgment was improper because “[i]f the air was in fact

9 saturated with the fumes of feces, urine, and vomit, it could undermine health and sanitation.”

10 Keenan, 83 F.3d at 1090. (See Dkt. No. 166 at 9.) Likewise, the R&R cites a case from this

11 district which allowed a claim to proceed in part on the basis of a “‘horrible smell and stench’ in

12 the showers,” that made it “‘hard to breathe’ at times.” Brennan v. Aston, No. C17-1928-JCC-

13 JPD, 2018 WL 3406948, at *8 (W.D. Wash. June 14, 2018), report and recommendation

14 adopted, No. C17-1928-JCC, 2018 WL 3388926 (W.D. Wash. July 12, 2018). (Dkt. No. 166 at

15 9–10.) Other cases support the conclusion that an inadequate ventilation claim need not be based

16 on high heat. See Chandler v. Crosby, 379 F.3d 1278, 1294 (11th Cir. 2004) (“Cooling and

17 ventilation are distinct prison conditions, and a prisoner may state an Eighth Amendment claim

18 by alleging a deficiency as to either condition in isolation or both in combination.”) Second,

19 even accepting that the climate in Seattle is cool, common sense would dictate that an enclosed

20 space crowded with people could become “unreasonably hot” without adequate ventilation, even

21 if it is cool outside.

22 Defendants make other objections to the ventilation claim. They argue that neither

23 Verhelst nor Skinner made an intentional choice with respect to the ventilation, and that Verhelst

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1 informing the classification department of the condition was a reasonable measure to abate the

2 known risk. (Dkt. No. 167 at 3, 5.) At the motion to dismiss stage, and construing the pro se

3 complaint liberally, the Court finds that Plaintiff has at least plausibly pled the elements of the

4 claim. Verhelst was in charge of the unit and knew of the condition; Skinner was responsible for

5 maintenance. In fact, Skinner was only named as a defendant after Judge Leupold ordered

6 Defendants to identify “the maintenance engineer responsible for operating and maintaining the

7 unit’s exhaust vents,” and Defendants represented that Skinner is “the Maintenance Engineer at

8 the Facilities Maintenance Division that conducts maintenance at the KCCF.” (Dkt. Nos. 76 at

9 3; 77 at 1) (internal citation omitted). At this early stage, the Court can draw an inference in

10 Plaintiff’s favor that failing to remedy the condition with knowledge of its existence for at least

11 eight months involved some intentional act or omission, and that even if informing the relevant

12 department was a reasonable measure to abate the problem at the outset, failing to follow up after

13 the condition persisted for so long became objectively unreasonable at some point.

14 Likewise, Defendants argue that Verhelst and Skinner are entitled to qualified immunity

15 because the high-heat cases do not apply, and because nothing clearly establishes that their

16 respective omissions constitute indifference. (Dkt. No. 167 at 6.) But again, this case is only at

17 the motion to dismiss stage, where it is often premature to consider a qualified immunity defense

18 due to the lack of discovery. See Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018)

19 (“Determining claims of qualified immunity at the motion-to-dismiss stage raises special

20 problems for legal decision making”); see also Wong v. United States, 373 F.3d 952, 957 (9th

21 Cir. 2004) (by deciding qualified immunity at motion to dismiss stage, “courts may be called

22 upon to decide far-reaching constitutional questions on a nonexistent factual record, even

23 where . . . discovery would readily reveal the plaintiff's claims to be factually baseless.”)

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1 Further, Keenan clearly establishes that the right to adequate ventilation is not limited to high-

2 heat, and Plaintiff need not produce a case with the exact same fact pattern to overcome qualified

3 immunity. See Gordon v. Cnty. of Orange, 6 F.4th 961, 969 (9th Cir. 2021) (“casting an

4 allegedly violated right too particularly, ‘would be to allow [the instant defendants], and future

5 defendants, to define away all potential claims.’”).

6 At this early stage in the litigation, it is unclear if Plaintiff will ultimately be able to prove

7 up his claim such that it can survive summary judgment or ultimately succeed on the merits. But

8 the Court agrees with Judge Leupold that Plaintiff has at least plausibly stated the claim as to

9 Verhelst and Skinner, and no more is required at the motion to dismiss stage.

10 Additionally, Plaintiff objects to Judge Leupold’s decision to dismiss Defendant Curtis

11 from the litigation. (Dkt. No. 169 at 4–6.) The Court agrees with Judge Leupold that the claim

12 against Curtis is too attenuated to survive the motion to dismiss. (See Dkt. No. 166 at 10)

13 (“Plaintiff alleges that Curtis transferred him to a unit with poor ventilation but does not describe

14 how Curtis would be aware of, or responsible for, the unit’s ventilation.”). Unlike Verhelst,

15 where Plaintiff has pled facts showing she had actual knowledge of the allegedly

16 unconstitutional condition, and Skinner, whose core job responsibilities would have included

17 remedying that condition, Plaintiff can only speculate that “at some point of time Defendant

18 Curtis was informed” of the grievances regarding ventilation by virtue of his supervisory

19 position. (Dkt. No. 169 at 5.) This is insufficient to plausibly allege that Curtis either caused the

20 constitutional violation himself or caused people working below him to do so. See Starr, 652

21 F.3d at 1207–1208.

22 c. Foodservice Claim

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1 Plaintiff’s Count II makes several allegations with respect to foodservice at the jail. He

2 alleges that food was kept and served at a temperature below 140º Fahrenheit and that this

3 temperature was unsafe, and that this allowed bacteria growth, and that this makes him sick

4 “everytime that he has consumed food served with bacteria growth, which has usually been the

5 main course,” so he skips meals. (See Dkt. No. 116 at 27, 30–31, 33, 35–37.) Plaintiff alleges

6 that he has been prescribed a low-sodium and “soft” diet by a physician at KCCF due to

7 hypertension and digestive issues, but he has been served a “monotonous” diet, including eggs

8 which are high in cholesterol. (Id. at 28–30.) When he complained about this, he was offered a

9 vegan diet, but he rejected that because he is not vegan, so his “diet was switched back to the

10 monotonous egg diet.” (Id. at 30.) Finally, Plaintiff alleges that he was served food on trays that

11 were “stained with black layered uncleaned filth, filth could possibly be feces.” (Id. at 31.)

12 Judge Leupold dismissed these claims. While acknowledging that tainted food can be the

13 source of a valid constitutional claim, the R&R notes that there is no constitutional right to food

14 that is “tasty or aesthetically pleasing.” (Dkt. No. 166 at 12) (quoting Smith v. Penzone, No.

15 CV1703892PHXDGCDMF, 2018 WL 3819126, at *5 (D. Ariz. Aug. 10, 2018)). Likewise,

16 there is “no constitutional right to be served a hot meal.” (Id. at 13) (quoting Garnica v.

17 Washington Dep’t of Corr., 965 F. Supp. 2d 1250, 1267 (W.D. Wash. 2013), aff’d, 639 F. App’x

18 484 (9th Cir. 2016)). The R&R explains why Plaintiff’s claim is not plausibly stated:

19 Even assuming the food was served cold, this fact does not demonstrate the food was per

se dangerous to Plaintiff. Plaintiff does not identify how long perishable food at the Jail is

20 exposed to cooler temperatures before being served, information critical to determining

the amount of bacteria growth. Plaintiff also fails to identify how often he became sick

21 from eating the Jail’s food, and how he knew that any illness was due to eating

contaminated food. Nor does Plaintiff identify any odd tastes, textures, or smells in the

22 meals to indicate they may have spoiled. Instead, Plaintiff simply claims that the Jail

served cold food and he became ill from it, facts insufficient to establish a constitutional

23 violation.

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1 (Id.)

2 As to Plaintiff’s claim regarding a “monotonous egg diet” high in cholesterol, the R&R

3 stated: “Even assuming Plaintiff’s original diet was hazardous and posed a substantial risk to his

4 health, Plaintiff offers no reason as to why he could not eat the vegan alternative offered. The

5 fact that Plaintiff was provided a viable alternate diet, and declined this diet without reason,

6 dooms his claim.” (Id. at 14.) Finally, as to the dirty-tray claim, the R&R found that the claim

7 was conclusory and lacked necessary detail: “Plaintiff does not describe what proportion of food

8 trays were stained, the severity and size of the stains, or any differences in stains between trays.

9 Nor does Plaintiff describe any odd textures or smells indicating stains were not merely cosmetic

10 wear on the trays.” (Id.) Therefore, Plaintiff’s claim failed, because “[f]ood served with old or

11 stained equipment is not, by itself, a substantial risk to a detainee’s health.” (Id.) (citing Becerra

12 v. Kramer, No. 16 C 1408, 2017 WL 85447, at *7 (N.D. Ill. Jan. 10, 2017) (“Regarding the

13 ‘white particles’ on the trays, Plaintiff again has failed to identify any evidence that the

14 ‘particles’ made him ill or that they were anything other than discolorations from repeated use

15 and cleaning”)).

16 Plaintiff objects to the R&R’s conclusion as to his foodservice claims, but his objections

17 largely track the same allegations in the complaint that the R&R finds insufficient. (See Dkt. No.

18 169 at 6–9.) Among other things, Plaintiff argues that Defendants had no authority to switch him

19 from a medical diet to a vegan diet, and that failing to provide the prescribed medical diet is a

20 constitutional violation. (Id. at 9) (citing Feliciano v. Sierra, 300 F. Supp. 2d 321, 341 (D.P.R.

21 2004)).

22 The Court agrees with Judge Leupold’s analysis regarding the foodservice claims. As to

23 the food temperature allegation, the claim that Plaintiff’s food was regularly contaminated with

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1 bacteria and that such contamination caused him illness is speculative and not supported by facts

2 in the complaint. Without knowing how long food was kept out before serving, what

3 temperature it was kept at, and what the safe temperature was for that particular food item, it is

4 impossible to know if there is any basis to the allegation (see Dkt. No. 166 at 13 n.5) (citing

5 Washington State Department of Health guidance on how long perishable foods may be left out

6 of the refrigerator)—but Plaintiff’s speculation is not enough even at this early stage to take

7 discovery on these issues. That the food was cold when served is not itself a constitutional

8 claim. “The fact that the food occasionally contains foreign objects or sometimes is served cold,

9 while unpleasant, does not amount to a constitutional deprivation.” LeMaire v. Maass, 12 F.3d

10 1444, 1456 (9th Cir. 1993) (quoting Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th

11 Cir.1985)).

12 As to the medical diet claim, the Court likewise finds no error in the R&R’s analysis.

13 Plaintiff is correct that failing to provide a medically prescribed diet can form the basis of a

14 constitutional claim. See Picciano v. Clark Cnty., No. 3:20-CV-06106-DGE, 2024 WL 3859755,

15 at *2, *6 (W.D. Wash. Aug. 19, 2024), reconsideration denied, No. 3:20-CV-06106-DGE, 2024

16 WL 4451611 (W.D. Wash. Oct. 8, 2024) (denying summary judgment on claim that jail failed to

17 provide gluten-free diet to inmate with celiac disease). However, Plaintiff has not put forward

18 evidence to support an inference that either the “monotonous egg diet” or vegan meals he was

19 offered were inconsistent with the low sodium, easily digestible diet he states a physician

20 ordered for him.

21 Finally, as to the dirty-tray allegation, the Court again finds no error in the R&R. It is

22 true that serving food on uncleaned, unsanitary trays could amount to a constitutional violation if

23 those conditions posed a risk to inmate health. See Garcia v. Foulk, No. 214CV2378JAMDBP,

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1 2020 WL 564791, at *9–11 (E.D. Cal. Feb. 5, 2020), report and recommendation adopted sub

2 nom. Garcia v. Folks, No. 214CV2378JAMDBP, 2020 WL 1432994 (E.D. Cal. Mar. 24, 2020)

3 (finding material issue of fact as to unsanitary food claim). However, the Court agrees with

4 Judge Leupold’s analysis that Plaintiff’s allegation does not support an inference that he was

5 served food on unsanitary trays. Rather, as the R&R notes, Plaintiff’s allegation lacks detail

6 other than that some trays had black stains, with no further description or information about the

7 frequency of the problem, and is consistent with being served food on trays that have signs of

8 wear from repeated use. Cf. Gonzalez v. Ahern, No. 19-CV-07423-JSC, 2021 WL 783541, at

9 *7–8 (N.D. Cal. Mar. 1, 2021), aff'd, No. 21-15485, 2022 WL 964212 (9th Cir. Mar. 30, 2022)

10 (denying preliminary injunction to remedy food trays that allegedly were dirty with residual food

11 from prior meal service, because claim was not supported by evidence). Plaintiff’s speculative

12 assertion that black stains on the trays are from feces is not supported by any evidence.

13 The Court agrees with Judge Leupold that given the speculative nature of these claims

14 and the number of opportunities Plaintiff has already had to amend his complaint, further leave

15 to amend as to Count II would be futile. (See Dkt. No. 166 at 17.)

16 d. Law Library Claim

17 Plaintiff’s Count III makes several allegations with respect to the jail’s law library. He

18 alleges that the library has not provided access to Washington Practice Series: Criminal Law and

19 Washington Practice and Procedure books, the Washington Lawyer’s Practice Manual, and the

20 King County Supreme Court Criminal Defense Manual, which would aid in his criminal pro se

21 defense. (Dkt. No. 116 at 45–46.) But Plaintiff alleges he was told that by Defendant Moses that

22 he could only have access to two books, which were the Washington Practice Series:

23 Washington Pattern Jury Instructions, 11 and 11A. (Id. at 47.) Plaintiff spoke again with Moses

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1 and was informed that his request was denied, and was told that the Washington Practice Series

2 is a secondary source and the county is not “aware of any legal requirement for such secondary

3 sources to be provided to pro se inmates.” (Id. at 48.) Plaintiff was also told he could not make

4 photocopies, meaning he had to hand-copy items of interest from the library. (Id. at 49.) He also

5 could get a maximum of five half sized pencils, no pens, which was inconvenient to him due to

6 the need for frequent sharpening. (Id.)

7 The R&R recommended dismissal of these claims on the grounds that Plaintiff could not

8 demonstrate injury. The R&R recognized that prisoners have a right of access to the courts

9 under the First and Fourteenth Amendments, but to allege a violation of these rights, a plaintiff

10 must show “actual injury” by showing that “a nonfrivolous legal claim had been frustrated or

11 was being impeded.” (Dkt. No. 166 at 15) (quoting Pearson v. Cooke, No. 3:22-CV-00009-

12 ART-CSD, 2022 WL 22838324, at *4 (D. Nev. May 10, 2022)). Here, “Plaintiff fails to show

13 how deprivation of these resources ‘directly impacted the relevant litigation in a manner adverse

14 to him.’” (Id. at 16) (quoting Robben v. El Dorado Cnty., No. 216CV2695MCEKJNP, 2017 WL

15 999464, at *2 (E.D. Cal. Mar. 14, 2017)). Plaintiff objects, stating that he did suffer injury, in

16 the form of having to give up his self-representation in his criminal case. (Dkt. No. 169 at 10.)

17 The Court adopts the R&R’s holding that Plaintiff’s Count III regarding law library

18 access should be dismissed. There is a First Amendment right to access to the courts, which for

19 incarcerated people encompasses access to a prison law library. Bounds v. Smith, 430 U.S. 817,

20 828 (1977); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). As the R&R explained, in order

21 to plead a claim arising from an inadequate law library, “an inmate must show that the alleged

22 inadequacies of a prison's library facilities or legal assistance program caused him ‘actual

23 injury’—that is, ‘actual prejudice with respect to contemplated or existing litigation, such as the

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1 inability to meet a filing deadline or to present a claim.’” Lewis v. Casey, 518 U.S. 343, 348

2 (1996). Plaintiff has not met that bar here. He is correct that under the Sixth Amendment there

3 is a right to self-representation in a criminal case, see Faretta v. California, 422 U.S. 806 (1975),

4 but his legal claim is that Defendants violated his First Amendment right to access the courts, not

5 that he was prohibited from self-representation in violation of the Sixth Amendment. Even

6 accepting as true that Plaintiff switched from proceeding pro se to accepting representation in his

7 criminal case on account of the inadequate law library, Plaintiff does not explain how that

8 change made him any worse off in terms of access to the courts.

9 Further, even assuming arguendo that Plaintiff could show injury, the substantive right to

10 law library materials is not limitless. Plaintiff states that he wants access to the Washington

11 Practice Series: Criminal Law and Washington Practice and Procedure books, the Washington

12 Lawyer’s Practice Manual, and the King County Supreme Court Criminal Defense Manual, but

13 that he does have access to Washington Practice Series: Washington Pattern Jury Instructions.

14 (Dkt. No. 116 at 45–48.) Plaintiff states that he wanted these books because “he did not have

15 standby counsel to assist forms and filing, and that the books contained forms.” (Id. at 47.)

16 While Plaintiff’s request for these materials may not be an unreasonable one, it does not mean

17 that access to any particular book is constitutionally required. See Lindquist v. Idaho State Bd. of

18 Corr., 776 F.2d 851, 856 (9th Cir. 1985) (holding that law library’s failure to provide access to

19 Shepard’s Citations was “questionable” but not unconstitutional in light of access to other

20 materials); Housley v. Killinger, 972 F.2d 1339 (Table), 1992 WL 170989 at *1 (9th Cir. 1992)

21 (finding no requirement for federal prison to provide access to “state law reporters or digests”);

22 Johnson v. Moore, 948 F.2d 517, 521 n.2 (9th Cir. 1991) (finding that an inventory of law library

23 books that included Federal Practice and Procedures volumes on criminal law, Shepards

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1 Citations, and “numerous nutshells, treatises, and other materials on federal law and Washington

2 law” “meets or exceeds what is constitutionally required.”). Because Plaintiff states that he

3 already has access to certain Washington Practice Series volumes and the complaint gives

4 insufficient legal or factual reason why lack of access to other Washington Practice Series

5 volumes is a constitutional deprivation, the count was properly dismissed, and the Court finds

6 that further amendment would be futile.

7 Plaintiff further alleges that he does not have access to photocopying services in the law

8 library, and that this violates his right of access to the courts. Plaintiff claims there was a “no

9 photocopy policy.” (Dkt. No. 116 at 49.) The Ninth Circuit has stated that “[a] denial of free

10 photocopying does not amount to a denial of access to the courts.” Johnson, 948 F.2d at 521; see

11 also Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989) (“numerous courts have rejected any

12 constitutional right to free and unlimited photocopying.”) In Johnson, plaintiff did have access

13 free paper and carbon paper, and paid photocopying—at a rate of $0.20 per page. Johnson, 948

14 F.2d at 521. It is unclear on this record if Plaintiff has access to any paid photocopying or copy

15 alternative. Even if not, Plaintiff still must show injury related to his lack of photocopying

16 access. Keenan, 83 F.3d at 1094 (“Keenan claimed that photocopy and notary services were too

17 slow and expensive” but “Keenan has alleged no actual injury related to copying and notary

18 services”); Rodriguez v. Pearce, 5 F.3d 539 (Table), 1993 WL 347066 at *3 (9th Cir. 1993)

19 (“Rodriguez did not present any evidence that the lack of photocopies resulted in an actual denial

20 of access to this court.”); Jackson v. Hodge, No. EDCV1501169PSGRAO, 2017 WL 11632911,

21 at *9 (C.D. Cal. Mar. 28, 2017) (“the critical inquiry in this case is whether Plaintiff was actually

22 injured, not whether he was able to photocopy documents the way that he would have liked or

23 whether he was able to make all of the photocopies that he wished.”).

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1 Here, Plaintiff states that his access to courts is hindered by the lack of photocopying

2 because he cannot “photocopy documentary evidence that could not be duplicated by hand.”

3 (Dkt. No. 116 at 49.) But that reasoning is circular; Plaintiff states he was injured by lack of

4 photocopying because he could not photocopy all the things he wished to photocopy. He does

5 not state that he faces “actual prejudice with respect to contemplated or existing litigation” from

6 the lack of copying. Lewis, 518 U.S. at 348. Therefore, dismissal of his photocopying claim was

7 appropriate, and in light of the lack of any evidence of cognizable injury, further leave to amend

8 is unwarranted.

9 Finally, Plaintiff alleges that his right to access the courts was violated because he was

10 only provided small pencils, which required frequent sharpening, and no pens. (See Dkt. No.

11 116 at 49.) While this may be inconvenient for Plaintiff, he has not cited any case requiring

12 access to pens rather than pencils. This aspect of Plaintiff’s Count III was also properly

13 dismissed without leave to amend.

14 IV CONCLUSION

15 For the foregoing reasons, after de novo review, the Report and Recommendation (Dkt.

16 No. 166) is ADOPTED in full and the objections (Dkt. Nos. 167, 169) are DENIED. The Clerk

17 is directed to forward a copy of this order to Plaintiff and to the Hon. Grady J. Leupold.

18 Dated this 7th day of May, 2025.

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a

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David G. Estudillo

21 United States District Judge

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