1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AARON MARCEL PALACIOS, CDCR Case No.: 23-CV-871 TWR (DEB) #T-90758, 12 ORDER DISMISSING AMENDED Plaintiff, 13 COMPLAINT FOR FAILING TO vs. STATE A CLAIM UNDER 28 U.S.C. 14 §§ 1915(e)(2)(B) AND 1915A(b) LEWIS, Captain; GODINEZ, Lieutenant; 15 CDCR, (ECF No. 6) 16 Defendants. 17 18 Presently before the Court is Plaintiff Aaron Marcel Palacios’s First Amended 19 Complaint filed under

for a pre-answer screening under

1915(e)(2)(B) and § 1915A(b). (“FAC,” ECF No. 6.) Plaintiff, currently incarcerated at 21 Richard J. Donovan Correctional Facility (“RJD”) and proceeding pro se, filed a civil rights 22 action under

on May 10, 2023. (“Compl.,” ECF No. 1.) Plaintiff did not 23 pay the filing fee required by

(a) but instead filed a Motion to Proceed In 24 Forma Pauperis (“IFP”) under

(a). (ECF No. 2.) On August 21, 2023, 25 the Court granted Plaintiff’s IFP motion and dismissed the Complaint with leave to amend 26 for failing to state a claim under

(e)(2)(B) and 1915A(b). (ECF No. 5.) 27 28 1 Plaintiff filed a First Amended Complaint on October 4, 2023. (ECF No. 6.) He alleges 2 that while incarcerated at RJD, Defendants Lewis, Godinez, and the California Department 3 of Corrections and Rehabilitation (“CDCR”) violated his First, Eighth, and Fourteenth 4 Amendment rights. (Id.) 5 LEGAL STANDARDS 6 I. Initial Screening Under

(e)(2)(B) & § 1915A(b) 7 As with his original Complaint, because Plaintiff is a prisoner, his First Amended 8 Complaint requires a pre-answer screening under

(e)(2)(B) and § 9 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP 10 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks 11 damages from immune defendants. See Lopez v. Smith,

, 1126–27 (9th Cir. 12 2000) (en banc) (discussing

(e)(2)); Rhodes v. Robinson,

, 13 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is 14 ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 15 responding.’” Nordstrom v. Ryan,

, 920 n.1 (9th Cir. 2014) (citation omitted). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman,

(9th Cir. 20 2012) (noting that screening under § 1915A “incorporates the familiar standard applied in 21 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). 22 Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, accepted as true, 23 to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

, 678 24 (2009) (internal quotation marks omitted); Wilhelm,

. 25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 26

27 1 Plaintiff states he is transgender, (see Compl. at 3), but does not indicate pronoun preferences. 28 1 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 2 Iqbal,

. “Determining whether a complaint states a plausible claim for relief 3 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 4 experience and common sense.”

The “mere possibility of misconduct” or “unadorned, 5 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 6 standard. Id.; see also Moss v. U.S. Secret Service,

(9th Cir. 2009). 7 II.

8 “Section 1983 creates a private right of action against individuals who, acting under 9 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 10

(9th Cir. 2001). Section 1983 “is not itself a source of substantive 11 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 12 Graham v. Connor,

, 393‒94 (1989) (internal quotation marks and citations 13 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 14 right secured by the Constitution and laws of the United States, and (2) that the deprivation 15 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 16

(9th Cir. 2012). 17 DISCUSSION 18 I. Plaintiff’s Allegations 19 Plaintiff alleges Defendants placed him in Administrative Segregation (“Ad Seg”) 20 for an improperly prolonged amount of time pending an investigation of misconduct. (FAC 21 at 6–11.) According to Plaintiff, the accusations against him, which resulted in the Ad Seg 22 placement, were ultimately determined to be false, but he remained in Ad Seg for longer 23 than was necessary because the investigation was not done in a timely fashion, in violation 24 of his Eighth Amendment rights. (Id. at 6–9.) Plaintiff also alleges the Defendants violated 25 his due process rights because no one ever contacted him regarding the investigation while 26 he was in Ad Seg, and he alleges the 602 grievances he filed about his Ad Seg placement 27 either disappeared or were ignored. (Id. at 6–11.) In addition, he claims his placement in 28 Ad Seg may have been in retaliation for a grievance he submitted about Correctional 1 Officer Serrano, or it may have been orchestrated by Defendant Lewis because Plaintiff is 2 transgender and the father of an ex-Correctional Officer’s grandson. (Id. at 7–11.) He also 3 claims the conditions in Ad Seg are the “dirtiest in the state,” with feces on the walls of 4 both cells, urine and trash on the floor, and leaks of feces and urine caused by faulty pipes. 5 (Id. at 7.) In addition, he alleges the food is served cold, which has resulted in him suffering 6 from food poisoning on two occasions, and that when he asked to speak to a clinician, the 7 request was either denied or ignored. (Id. at 7–9.) 8 II. Claims against Defendant CDCR 9 As the Court explained to Plaintiff in its August 21, 2023 dismissal Order, his suit 10 against the CDCR is barred by the Eleventh Amendment. (ECF No. 5 at 5–6.) “The 11 Eleventh Amendment bars suits for money damages in federal court against a state, its 12 agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Public 13 Safety,

, 1147 (9th Cir. 2007). Further, a state department of corrections is 14 an arm of the state, and thus, not a “person” within the meaning of § 1983. Hale v. Arizona, 15

, 1398‒99 (9th Cir. 1993); see also Dragasits v. California, No. 16-cv-1998- 16 BEN-JLB,

, at *3 (S.D. Cal. Nov. 15, 2016) (“The State of California’s 17 Department of Corrections and Rehabilitation and any state prison, correctional agency, 18 sub-division, or department under its jurisdiction, are not ‘persons’ subject to suit under § 19 1983). Because the CDCR is not a “person” subject to suit under § 1983 but instead an 20 agency of the State of California, it is immune from suit under the Eleventh Amendment. 21 Accordingly, Plaintiff’s claims against the CDCR are dismissed without leave to amend 22 under

(e)(2)(B)(ii) and 1915A(b)(2). 23 III. Plaintiff’s Eighth Amendment Claims 24 A. Prolonged Detention in Ad Seg. 25 With respect to his claim that Lewis and Godinez held him in Ad Seg for an unduly 26 prolonged amount of time, Plaintiff has failed to state an Eighth Amendment claim. “The 27 Constitution ‘does not mandate comfortable prisons,’ Rhodes v. Chapman,

, 28 349 (1981) (internal citation omitted), but neither does it permit inhumane ones . . . .” 1 Farmer v. Brennan,

(1994). A prison official violates the Eighth 2 Amendment, however, only when two requirements are met. “First, the deprivation alleged 3 must be, objectively ‘sufficiently serious.’”

at 834 (quoting Wilson v. Seiter,

(1991)). Second, Plaintiff must allege the prison official he seeks to hold liable 5 had a “sufficiently culpable state of mind,” that is “one of ‘deliberate indifference’ to 6 inmate health or safety.”

(quoting Wilson, 501 U.S. at 302–03). “A prison official acts 7 with ‘deliberate indifference . . . only if the [prison official] knows of and disregards an 8 excessive risk to inmate health and safety.’” Toguchi v. Chung,

(9th 9 Cir. 2004) (quoting Gibson v. Cnty. of Washoe,

(9th Cir. 2002), 10 overruled on other grounds by Castro, 833 F.3d at 1076). “Under this standard, the prison 11 official must not only ‘be aware of facts from which the inference could be drawn that a 12 substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. 13 (quoting Farmer,

). 14 Plaintiff’s allegation that Defendant Lewis kept him in Ad Seg for longer than was 15 necessary to complete the investigation of misconduct is not “sufficiently serious” to 16 establish an Eighth Amendment violation. Farmer,

. “A deprivation is 17 sufficiently serious when the prison official’s act or omission results ‘in the denial of ‘the 18 minimal civilized measure of life’s necessities.’” Foster v. Runnels,

, 812 19 (9th Cir. 2009) (quoting Farmer,

). “[R]outine discomfort,” such as 20 placement in Ad Seg, “is part of the penalty that criminal offenders pay for their offenses 21 against society, [and] only those deprivations denying the minimal civilized measure of 22 life’s necessities are sufficiently grave to form the basis of an Eighth Amendment 23 violation.” See Hudson v. McMillian,

(1992); Toussaint v. McCarthy, 801

, 1092–93 (9th Cir. 1986) (“[A]dministrative segregation is the sort of 25 confinement that inmates should reasonably anticipate receiving at some point in their 26 incarceration.”) (quoting Hewitt v. Helms,

(1983)), overruled on other 27 grounds by Sandin v. Conner,

(1995); Shotwell v. Brandt, No. 10-cv-5232- 28 CW,

, at *3 (N.D. Cal. Dec. 17, 2012) (“[T]he usual hardships associated 1 with administrative segregation do not violate the Eighth Amendment.”) (citing Toussaint, 2 722 F.2d at 1494 n.6). Moreover, although Plaintiff has not alleged how long he was kept 3 in Ad Seg, it appears from the allegations in the First Amended Complaint it could have 4 been as long as 90 days. (FAC at 8.) However, “administrative segregation, even in a 5 single cell for twenty-three hours a day, is within the terms of confinement ordinarily 6 contemplated by a sentence.” Anderson v. Cnty. of Kern,

(9th Cir. 7 1995) (as amended) (citing Toussaint, 801 F.2d at 1091–92, abrogated in part on other 8 grounds by Sandin, 515 U.S. at 483–84). 9 B. Lack of Adequate Food and Sanitation. 10 Further, while the Eighth Amendment prohibits the deprivation of humane 11 conditions of confinement, such as a lack of adequate food and sanitation, Hudson v. 12 Palmer,

, 526–527 (1984) (citations omitted), to state a § 1983 claim, Plaintiff 13 must allege how “each Government-official defendant, through the official’s own 14 individual actions” violated his constitutional rights. See Iqbal, 556 U.S. at 676–77. 15 Allegations “must be individualized and focus on the duties and responsibilities of each 16 individual defendant whose acts or omissions are alleged to have caused a constitutional 17 deprivation.” Leer v. Murphy,

(9th Cir. 1988) (citing Rizzo v. Goode, 18

(1976)). The pleadings must show each defendant “[performed] an 19 affirmative act, participate[d] in another’s affirmative acts, or omit[ted] to perform an act 20 which he is legally required to do that causes the deprivation of which [the plaintiff 21 complains].” Johnson v. Duffy,

(9th Cir. 1978). Plaintiff has not made 22 sufficient, specific allegations as to what either Lewis or Godinez did or did not do which 23 denied him adequate food and sanitation. He describes the conditions in Ad Seg as “the 24 dirtiest . . . in the state,” and alleges that “there was feces on the wall of both cells,” “the 25 day room was covered with trash,” faulty pipes leaked feces and urine onto the floor, and 26 he has suffered from food poisoning as a result of food being served cold. (FAC at 7–11.) 27 But he has not made any plausible allegations that either Lewis or Godinez were the cause 28 of these conditions. 1 C. Denial of Request for a Clinician. 2 Finally, with respect to Plaintiff’s claim that his requests for a clinician were ignored 3 or denied, he also has failed to state a plausible claim for relief. “In order to prevail on an 4 Eighth Amendment claim for inadequate medical care, a plaintiff must show ‘deliberate 5 indifference’ to his ‘serious medical needs.’” Colwell v. Bannister,

, 1066 6 (9th Cir. 2014) (quoting Estelle v. Gamble,

(1976)). A prison official 7 violates the Eighth Amendment only when two requirements are met. “First, the 8 deprivation alleged must be objectively ‘sufficiently serious.’” Farmer,

9 (quoting Wilson,

). Second, Plaintiff must allege the prison official he seeks 10 to hold liable had a “sufficiently culpable state of mind,” that is “one of ‘deliberate 11 indifference’ to inmate health or safety.”

(quoting Wilson, 501 U.S. at 302–03). 12 Deliberate indifference requires “a purposeful act or failure to respond to a prisoner’s pain 13 or possible medical need” and “‘may appear when prison officials deny, delay, or 14 intentionally interfere with medical care.’” Jett v. Palmer,

(9th Cir. 15 2006), (quoting Hutchinson v. United States,

(9th Cir. 1988)). A prison 16 official can be held liable only if he “knows of and disregards an excessive risk to inmate 17 health or safety; the official must both be aware of facts from which the inference could be 18 drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 19 Farmer,

. Plaintiff’s First Amended Complaint contains no factual 20 allegations that plausibly show either Lewis or Godinez “[knew] of and disregard[ed] an 21 excessive risk to [his] health or safety. Farmer,

. He, therefore, has failed 22 to state an Eighth Amendment claim against them. Iqbal,

. 23 IV. Plaintiff’s Fourteenth Amendment Claim 24 Plaintiff also does not state a Fourteenth Amendment due process claim with respect 25 to his confinement in Ad Seg. (FAC at 6.) The Due Process Clause of the Fourteenth 26 Amendment provides that “[n]o state shall . . . deprive any person of life, liberty, or 27 property, without due process of law.” U.S. Const. amend. XIV, § 1. To state a due process 28 claim, Plaintiff must allege: “‘(1) a liberty or property interest protected by the 1 Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of 2 process.’” Wright v. Riveland,

(9th Cir. 2000) (quoting Portman v. Cnty. 3 of Santa Clara,

(9th Cir. 1993)). A disciplinary action implicates a 4 protected liberty interest only when it imposes an “atypical and significant hardship on the 5 inmate in relation to the ordinary incidents of prison life,” which requires a plaintiff to 6 allege facts showing “a dramatic departure from the basic conditions” of his confinement. 7 Sandin,

. Once a prisoner establishes a protected liberty interest, he is 8 entitled to minimal due process protections, including the right to call witnesses, to present 9 documentary evidence, and to have a written statement by the fact finder as to the evidence 10 relied upon along with the reasons for the disciplinary action taken. Wolff v. McDonnell, 11

, 564–571 (1974). These procedural protections, however, only apply when 12 the disciplinary action implicates a protected liberty interest. Sandin,

. 13 As discussed above, placement in Ad Seg is “within the expected perimeters of the 14 sentence imposed,” and thus an Ad Seg placement, by itself, does not implicate a protected 15 liberty interest. Austin v. Terhune,

(9th Cir. 2004) (citing Sandin, 515 16 U.S. at 485); Serrano v. Francis,

(9th Cir. 2003). Because Plaintiff 17 has not plausibly alleged a liberty interest, he has failed to state a due process claim against 18 Defendants. See Sandin,

. Accordingly, the claim is dismissed. See 28 19 U.S.C. § 1915A; Wilhelm,

. 20 V. Plaintiff’s First Amendment Retaliation Claim 21 Finally, Plaintiff does not state a First Amendment retaliation claim against Lewis 22 or Godinez. “Prisoners have a First Amendment right to file grievances against prison 23 officials and to be free from retaliation for doing so.” Watison, 668 F.3d at 1114 (citing 24 Brodheim v. Cry,

(9th Cir. 2009)). “Within the prison context, a 25 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion 26 that a state actor took some adverse action against an inmate (2) because of (3) that 27 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his 28 First Amendment rights, and (5) the action did not reasonably advance a legitimate 1 correctional goal.” Rhodes v. Robinson,

, 567–68 (9th Cir. 2005). 2 A plaintiff alleging retaliation “bears the burden of pleading . . . the absence of 3 legitimate correctional goals for the conduct of which he complains.” Pratt v. Rowland, 4

(9th Cir. 1995); Medina v. Morris, No. 9CV0169,

, 5 at *10 (S.D. Cal. June 2, 2014). “A plaintiff successfully pleads this element by alleging, 6 in addition to a retaliatory motive, that the defendant’s actions were arbitrary and 7 capricious or that they were ‘unnecessary to the maintenance of order in the institution[.]’” 8 Watison, 668 F.3d at 114–15 (quoting Franklin v. Murphy,

(9th Cir. 9 1984)) (internal citation omitted). Despite the fact that Plaintiff complains the investigation 10 of his misconduct took too long, he has not plausibly alleged his stay in Ad Seg did not 11 reasonably advance the legitimate correctional goal of isolating him from other prisoners 12 and staff while the investigation took place. Rhodes, 408 F.3d at 567–68. Accordingly, he 13 has failed to state a retaliation claim. Iqbal,

. 14 CONCLUSION 15 Based on the foregoing, the Court: 16 1) DISMISSES Plaintiff’s claims against the CDCR without leave to amend 17 under

(e)(2)(B)(ii) and 1915A(b)(2). 18 2) DISMISSES Plaintiff’s First, Eighth, and Fourteenth Amendment claims 19 against all Defendants without prejudice under

(e)(2)(B)(ii) and 20 1915A(b)(1). 21 2) GRANTS Plaintiff forty-five (45) days’ leave from the date of this Order in 22 which to file a Second Amended Complaint that cures the deficiencies of pleading noted 23 in this Order. Plaintiff’s Second Amended Complaint must be complete by itself without 24 reference to any previous version of his pleading; Defendants not named and any claims 25 not re-alleged in the Second Amended Complaint will be considered waived. See S.D. Cal. 26 CivLR 15.1; Hal Lacey v. Maricopa County,

(9th Cir. 2012) (noting that 27 claims dismissed with leave to amend which are not re-alleged in an amended pleading 28 may be “considered waived if not repled”); Roach Studios, Inc. v. Richard Feiner & Co., 1 || Jnc.,

(9th Cir. 1989). If Plaintiff fails to timely amend, the Court will 2 enter a final Order dismissing this civil action. See Lira v. Herrera,

, 1169 3 Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 4 ||complaint, a district court may convert the dismissal of the complaint into dismissal of the 5 || entire action.”) The Court further DIRECTS the Clerk of the Court to provide Plaintiff 6 || with a blank copy of its form Complaint under the Civil Rights Act,

, for 7 || his use and convenience. 8 IT IS SO ORDERED. 9 || Dated: December 13, 2023 —— (2 10 lad \& (re 11 Honorable Todd W. Robinson D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10