1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DENNIS KEITH SAND, Case No. 24-cv-00872-RMI

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND

10 HUMBOLDT COUNTY CORRECTIONAL FACILITY, et al., 11 Defendants.

12 13 Plaintiff, a detainee, filed a pro se civil rights complaint under

. Plaintiff 14 has been granted leave to proceed in forma pauperis. 15 DISCUSSION 16 Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 redress from a governmental entity, or from an officer or employee of a governmental entity. 28 19 U.S.C. 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any 20 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or 21 seek monetary relief from a defendant who is immune from such relief.

at § 1915A(b)(1), (2). 22 Further, it should be noted that pleadings submitted by pro se parties must be liberally construed. 23 Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” While specific facts are not necessary, the 26 statement needs to give the defendant fair notice of the nature of the claim and the grounds upon 27 which it rests. Erickson v. Pardus,

(2007). Although a plaintiff need not include 1 cause of action and state conclusions; rather a plaintiff must state factual allegations sufficient to 2 raise the entitlement to relief “above the speculative level.” Bell Atlantic Corp. v. Twombly, 550

, 555 (2007). A complaint must proffer “enough facts to state a claim to relief that is 4 plausible on its face.”

. The Supreme Court recently explained this standard: “[w]hile 5 legal conclusions can provide the framework of a complaint, they must be supported by factual 6 allegations . . . [and] [w]hen there are well-pleaded factual allegations, a court should assume their 7 veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft 8 v. Iqbal,

(2009). 9 To state a claim under

, a plaintiff must allege two essential elements: 10 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 11 the alleged deprivation was committed by a person acting under the color of state law. West v. 12 Atkins,

(1988). 13 Legal Claims 14 Plaintiff alleges that he has found foreign substances in his food at the jail. It appears 15 Plaintiff is a pretrial detainee. 16 When a pretrial detainee challenges conditions of his confinement, the proper inquiry is 17 whether the conditions amount to punishment in violation of the Due Process Clause of the 18 Fourteenth Amendment. See Bell v. Wolfish,

, 535 n.16 (1979). “‘[T]he State does not 19 acquire the power to punish with which the Eighth Amendment is concerned until after it has 20 secured a formal adjudication of guilt in accordance with due process of law. Where the State 21 seeks to impose punishment without such an adjudication, the pertinent guarantee is the Due 22 Process Clause of the Fourteenth Amendment.’”

(quoting Ingraham v. Wright,

, 23 671-72 n.40 (1977)). Unsanitary conditions can, when severe enough, violate the Fourteenth 24 Amendment rights of pretrial detainees by rising to the level of punishment. Shorter v. Baca, 895

, 1185 (9th Cir. 2018). 26 Adequate food is a basic human need protected by the Eighth Amendment. See Keenan v.

F.3d 1083, 1091 (9th Cir. 1996), amended,

(9th Cir. 1998). The Eighth 1 not be tasty or aesthetically pleasing. See Graves v. Arpaio,

(9th Cir. 2010) 2 (per curiam) (8th Amendment requires that pretrial detainees be given food that meets or exceeds 3 the Department of Agriculture’s Dietary Guidelines). The Ninth Circuit has found that, “[t]he fact 4 that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, 5 does not amount to a constitutional deprivation.” LeMaire v. Maass,

(9th Cir. 6 1993). 7 Plaintiff’s brief complaint states that on several occasions he found hair, rocks, cleaning 8 chemicals or spittle in his food. Jail staff did not give him a new tray of food and told him to eat 9 around the foreign substances. 10 The complaint is dismissed with leave to amend to provide more information. Plaintiff 11 should first state if he is a pretrial detainee or a convicted prisoner. While Plaintiff lists several 12 defendants in the caption, he fails to identify any specific defendant in the body of the complaint. 13 Plaintiff must identify individual defendants and specifically describe how they violated his 14 constitutional rights. Plaintiff must also provide more information regarding how often he 15 discovered foreign substances in his food and how it rises to the level of a constitutional violation. 16 CONCLUSION 17 1. The complaint is DISMISSED with leave to amend in accordance with the standards 18 set forth above. The amended complaint must be filed within twenty-eight (28) days of the date 19 this order is filed, and it must include the caption and civil case number used in this order and the 20 words “AMENDED COMPLAINT” on the first page. Because an amended complaint completely 21 replaces the original complaint, Plaintiff must include in it all the claims he wishes to present. See 22 Ferdik v. Bonzelet,

(9th Cir. 1992). Plaintiff may not incorporate material 23 from the original Complaint by reference. Failure to amend within the designated time will result 24 in dismissal of this case. 25 2. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 26 informed of any change of address by filing a separate paper with the clerk, headered “Notice of 27 Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do so 1 Procedure 41(b). 2 IT IS SO ORDERED. 3 Dated: March 25, 2024 4 5 R@BERT M. ILLMAN 6 United States Magistrate Judge 7 8 9 10 11 12

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