(PC) Ledesma v. Adame et al, No. 1:2013cv01227 - Document 66 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending That Defendants' 59 Motion to Dismiss be Granted In Part and Denied In Part, signed by Magistrate Judge Erica P. Grosjean on 6/22/18. Objections to F&R Due Within Twenty-One Days. (Marrujo, C)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 JOSE LEDESMA, Plaintiff, 9 10 11 Case No. 1:13-cv-01227-AWI-EPG (PC) FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART v. ADAME, et al., (ECF NO. 59) Defendants. 12 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 13 14 I. 15 Jose Ledesma (“Plaintiff”) is a state prisoner proceeding in forma pauperis in this civil BACKGROUND 16 rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff’s Third 17 Amended Complaint, which was filed on September 15, 2016. (ECF No. 23.) Plaintiff’s Third 18 Amended Complaint was screened, and the Court found that Plaintiff “stated a claim against 19 defendants Adame, Tyree, and Lundy [“Defendants”] for violations of the Eighth Amendment 20 based on conditions of confinement, against defendants Adame and Lundy for inadequate 21 health care in violation of the Eighth Amendment, and against defendants Adame, Tyree, and 22 Lundy for retaliation in violation of the First Amendment.” (ECF No. 24 at 15; ECF No. 28 at 23 1.) All other claims and defendants were dismissed. (ECF No. 28 at 2.) 24 On December 21, 2017, Defendants filed a motion to dismiss. (ECF No. 59.) On 25 January 25, 2018, Plaintiff filed an opposition to the motion to dismiss. (ECF No. 63.) On 26 January 26, 2018, Plaintiff filed an amended opposition to the motion to dismiss. (ECF No. 27 64.) Defendants filed a reply to Plaintiff’s opposition on February 15, 2018. (ECF No. 65.) 28 Defendants’ motion to dismiss is now before the Court. 1 1 As the Court finds that Plaintiff has stated claims under both the Eighth and First 2 Amendments and that Defendants are not entitled to qualified immunity at this stage in the 3 proceedings, the Court will recommend that Defendants’ motion to dismiss be denied with 4 respect to these claims. However, the Court finds that Plaintiff has failed to allege sufficient 5 facts to warrant declaratory or injunctive relief against Defendants, because Plaintiff has been 6 transferred to another prison. Accordingly, the Court will recommend that Defendants’ request 7 to dismiss Plaintiff’s requests for declaratory and injunctive relief be granted, and that 8 Defendants’ request that they be dismissed in their official capacities be granted. 9 10 11 II. PLAINTIFF’S THIRD AMENDED COMPLAINT Plaintiff filed his Third Amended complaint on September 15, 2016. (ECF No. 23.) As previously summarized, Plaintiff’s allegations are as follows. 12 In February of 2011, Plaintiff was subject to a gang validation investigation by 13 members of the California Department of Corrections and Rehabilitation (“CDCR”)’s 14 Institutional Gang Investigation Unit (“IGIU”)1 assigned to the California State Prison, 15 Centinela (“Centinela”). On March 6, 2011, Plaintiff challenged his gang validation decision 16 via an administrative grievance. On March 13, 2011, Plaintiff again challenged his gang 17 validation decision via an administrative grievance. On May 30, 2011 Plaintiff submitted a 18 staff complaint against several IGIU members, alleging the fabrication of gang evidence to 19 secure Plaintiff’s validation as a gang member and indeterminate Security Housing Unit 20 placement. On June 1, 2011, Plaintiff organized multiple prisoners who had similarly 21 experienced and challenged adverse acts stemming from IGIU members’ misconduct. 22 Plaintiff’s organizing efforts were recorded in a roster that contained the names and signatures 23 of the affected prisoners, as well as the log numbers of the grievances they filed against IGIU 24 members. 25 26 On June 13, 2011, Plaintiff forwarded a letter to Centinela warden Domingo Uribe Jr., seeking to have his staff complaint against Centinela IGIU members investigated. On July 12, 27 28 1 Plaintiff refers to this unit as the “Elite Institutional Gang Investigative (‘I.G.I.’) Unit/Squad.”. (ECF No. 23 at 2.) 2 1 2011, Mr. Uribe replied and agreed to review the alleged misconduct. On August 14, 2011, 2 Plaintiff submitted a third administrative grievance challenging his gang violation. On 3 September 1, 2011, classification staff representative Luu formally endorsed Plaintiff’s transfer 4 to Pelican Bay State Prison to serve an indeterminate Secure Housing Unit (“SHU”) term due 5 to Plaintiff’s gang validation. On October 26, 2011 (and during the pendency of the grievances 6 challenging both Plaintiff’s gang validation and the misconduct associated with the fabrication 7 of gang evidence), Plaintiff was ordered onto a CDCR transportation bus for transfer. Because 8 of the distance between Centinela and Pelican Bay State Prison, the transfer could not be 9 completed in a day. Accordingly, there was a “layover” at California Correctional Institution 10 Tehachapi (“CCI”), where Plaintiff arrived at some point in the afternoon. Immediately after 11 exiting the bus, Plaintiff was greeted by Tehachapi IGIU member Defendant Adame and was 12 escorted to the receiving and release building of the institution. “Upon information and belief 13 Defendant Adame made the following comment to another prisoner on the bus: ‘whats [sic] up 14 with your homeboy, he does not want to cooperate. But, we’re going to break him, I’m going 15 to make sure I break him.’” (ECF No. 23 at 9-10.) 16 While Defendant Adame was escorting Plaintiff, he “began to incessantly harass 17 [Plaintiff] with stacoato [sic] remarks about; 1.) [Plaintiff’s] pursuing grievances and 18 complaints against [Centinela IGIU] members and his gang validation; 2.) Organizing prisoners 19 to challenge IGI[U] squad members; 3.) [Plaintiff’s] involvement in ‘gang activity’; and 4.) 20 The sort of hardship [Plaintiff] would experience if he did not cooperate by giving up the 21 contraband he purportedly had and provide information on other prisoners to enable him 22 (Adame) to validate and indeterminately segregate them.” (Id. at 5.) 23 Upon entering the receiving and release building, Plaintiff was placed in a secluded 24 single man metal holding cage, ordered to strip naked, and subjected to an unclothed body 25 search. Plaintiff asked Defendant Adame several questions, to which Defendant Adame replied 26 “‘just answer our questions give up what you have and provide information that can be used to 27 validate other inmates.’” (Id. at 6.) Plaintiff responded by saying that he had no clue what 28 Defendant Adame was talking about, that Plaintiff did not involve himself with gang activity, 3 1 that he did not have any disciplinary record to corroborate any claims of gang activity, and that 2 he did not even have any tattoos. 3 At this point “defendant Adame became visibly upset and bluntly threatened that if 4 [Plaintiff] did not become a confidential informant [Plaintiff] would not be released from 5 contraband watch for a long time. Defendant Adame also stated ‘so, I also know you like to file 6 grievances against squad members. Well unlike where you’re coming from, don’t concern 7 yourself with submitting them now because here we use the forms as toilet tissue, I’m sure you 8 see how that would just be a waste for you.’” (Id.) 9 After the strip search was concluded with negative contraband results, defendant Adame 10 informed Plaintiff that he was being placed on contraband surveillance watch. At this point 11 “Defendant Adame placed [Plaintiff] in a waist chain and handcuffs. Then, Adame applied 12 black mittons [sic] on [Plaintiff] which even at a distance, emitted a foul stench that made both 13 their filthy and unsanitized [sic] condition readily obvious. This was followed by placing 14 plexi-cuffs (or zip-ties) on top of the mittons [sic], then Adame wrapped several layers of two 15 (2) and one half (1/2) inch wide scotch tape around [Plaintiff’s] wrists to secure both the 16 mittons [sic] and zip-ties. Next Adame locked chained metal-shackles around [Plaintiff’s] 17 ankles, tucked [Plaintiff’s] jumpsuit pant legs into his socks and similarly wrapped several 18 layers of scotch tape around the metal-cuffs. These restraints remained on [Plaintiff] from 19 October 26 until November 11.” (Id.) 20 For the next sixteen days Plaintiff was forced to endure the restraints described above 21 without adequate reprieve, despite multiple negative results for contraband. The defendants did 22 not get the requisite approvals to keep Plaintiff on contraband surveillance watch for as long as 23 they did. (Id. at 8.) Additionally, neither of the holding cells Plaintiff was kept in was 24 configured for prolonged housing. The first holding cell was located in the receiving and 25 release building. “At approximately 8 by 15 feet, the cell’s only furniture was a small wooden 26 bench; and while a sink/toilet combination facility was present, [Plaintiff] had no accessability 27 [sic] to it due to it being heavily covered and taped over.” (Id. at 7.) The second cell was in the 28 visiting building. “At approximately 8 by 20 feet, the cell had no toilet or sink and only a small 4 1 wooden bench.” (Id.) This cell was only four feet from a door leading to the outside, and there 2 was a five to six inch gap at the bottom of the door. During the time Plaintiff was held in this 3 cell, “the temperature outside was approximately 40 degrees below (snow felled [sic] and 4 stayed on the ground outside), [Plaintiff] was never given winter clothing, and was left to 5 huddle in a freezing cell while the officers guarding were heavily clothed.” (Id. at 9.) 6 During this sixteen day ordeal, Plaintiff “was not allowed to shower, shave, brush his 7 teeth[,] exercise[,] or lay down to sleep nor rest.” (Id. at 7.) “Being deprived of basic hygienic 8 and health practices[,] [Plaintiff] could not prevent developing a sharply repelling odor and a 9 semi-catatonic state of mind from lack of proper rest. Further having his hands in the damp 10 dark space within the unsanitized [sic] mittons [sic] for a prolong [sic] period of time, 11 [Plaintiff] contracted a [sic] aggressive skin fungal infection on both of his hands…. [Plaintiff] 12 also contracted a similarly aggressive toenail fungal infection….” (Id.) Additionally, “prolong 13 [sic] application of the physical restraints generated constant chafing. And the incessant 14 chafing resulted in the metal and plastic restraints burrowing through [Plaintiff’s] skin around 15 his wrist and ankles leaving permanent scaring there.” (Id.) Further, at no time was Plaintiff 16 provided with a blanket or a mattress, and a bright light was kept on twenty-four hours a day 17 (Id. at 14.) 18 “On October 28, 2011, [Plaintiff] volunteered to provide a bowel movement. [Plaintiff] 19 was brought to the middle of the [receiving and release] terminal where a portable latrine was 20 placed in plain view of other prisoners and guards (male and female), and was required to 21 defecate there. When asked why he was being exhibited in such a fashion, the officer replied: 22 ‘your buddy (meaning Adame) is what he requested.’ The bowel movement rendered a 23 negative result for contraband.” (Id. at 10.) Later that day, Defendant Lundy stopped by the 24 receiving and release building. After Plaintiff ascertained his rank, Plaintiff asked him the 25 basis of the decision to keep him on contraband surveillance watch, especially in light of 26 providing a bowel movement that was negative for contraband earlier in the day. Plaintiff also 27 asked for a blanket and a mattress. “Scoffing, defendant Lundy stated ‘just cooperate and give 28 up what you have. Make everyone’s life easier.’” (Id.) 5 1 On October 31, 2011, Defendant Tyree came into the receiving and release building. 2 Plaintiff asked Defendant Tyree why he was not being allowed to shower or brush his teeth, 3 and why he was not being provided with a mattress or blanket. Defendant Tyree replied “‘as 4 soon as you give up what you have up your ass, and the more you are able to help us [(i.e., 5 provide information)] the quicker I can make this nightmare end.’” (Id.) (brackets in original). 6 “Tyree and Adame also suggested that [Plaintiff] should worry about being placed on single 7 cell status (a threat intended to create the perception that he had become an informant) in order 8 to prompt [Plaintiff’s] cooperation.” (Id. at 10-11.) For the remainder of the watch, both 9 Defendant Adame and Defendant Tyree kept harassing Plaintiff, and when Plaintiff “asked if 10 he could at least wash his right hand (the only extremity released to feed and relieve himself) 11 Tyree simply replied ‘not right now.’” (Id. at 11.) 12 On the same day, Defendant Lundy stopped by, and Plaintiff “once again asked for an 13 opportunity to washup [sic], a mattress/blanket[,] and the reasoning for his [contraband 14 surveillance watch] placement. [Plaintiff] also informed defendant Lundy that he was not 15 feeling well, and asked to see medical staff. Defendant Lundy simply did not acknowledge 16 [Plaintiff] in any manner.” (Id.) 17 18 19 On November 2, 2011, Plaintiff informed prison officials that he believed he was cut around his ankles and wrists. Plaintiff was completely ignored. On November 3, 2011, Plaintiff provided a third bowel movement that was negative for 20 contraband. Later that day, Defendant Adame and two other IGIU officers showed up. 21 Defendant Adame, who was “visibly upset, blurted ‘if you think you got away, think again.’ 22 [Plaintiff] was ordered [out] of the cell and patted down. When asked if he can loosen the 23 restraints to allow some stretching and check for cuts, Adame scoffed and said ‘you better just 24 brace yourself for what’s next.’” (Id.) 25 Plaintiff was then moved to a holding cell in the visiting building. “When [Plaintiff] 26 asked Adame for a blanket and mattress, defendant Adame – along with the other [IGIU] 27 officers – simply laughed and said ‘don’t you wish you had just cooperated?’” (Id. at 12.) 28 Plaintiff also told defendant Adame that he did not feel well because he was not getting proper 6 1 sleep and because he could not eat with the foul odor of his hand, and asked to see medical 2 staff. “Defendant Adame replied by stating ‘this ain’t Burger King, you can’t have it your 3 way,’ and followed that with ‘you should’ve cooperated, after tonight I’m sure you’d wish you 4 would’ve.’” (Id.) “From November 3, 2011, to November 5, 2011 [Plaintiff] remained in the freezing, 5 6 dirty, and furnitureless visiting building holding cell. [Plaintiff] was provided no blanket, 7 mattress[,] adequate inclement clothing[,] nor opportunities to shower, shave[,] or even wash 8 his hands. Further, his requests to see medical staff simply were ignored.” (Id.) 9 On November 5, 2011, Officer Tingly was assigned to guard Plaintiff. He was shocked 10 at the freezing temperature where Plaintiff was being held, and had Plaintiff moved back to the 11 holding cell in the receiving and release building. 12 On November 7, 2011, Plaintiff again asked Defendants Lundy and Tyree for the 13 chance to wash up and for a mattress or blanket. “Defendants [sic] Lundy replied by saying 14 ‘you can end this now, give up what you have and cooperate.’ Then looking at Tyree and 15 smirking, asked ‘or he can just file a 602 and complain like he usually does right?’ Replying, 16 Tyree said ‘he has that option, not sure how far he’ll get with that hand tied up though.’” (Id. at 17 12-13.) 18 On or about November 9, 2011, Plaintiff was taken to attend an Institution 19 Classification Committee Hearing comprised of high ranking administrative officials, including 20 the Warden. At the hearing, “Plaintiff addressed defendant Lundy by asking: 1.) Why was 21 [Plaintiff] placed on [contraband surveillance watch]; 2.) After multiple bowel movements and 22 x-ray examinations, why was [Plaintiff] still being kept on [contraband surveillance watch]; 23 and, 3.) After once more expressing not feeling well and having cuts from the restraints, why 24 was he not allowed to see medical personnel? Defendant Lundy… replied with ‘just give one 25 more negative bowel movement and x-ray result, and all will end.’ Lundy’s response 26 completely ignored the hygiene and medical issues.” (Id. at 13.) 27 On November 10, 2011, Plaintiff provided yet another bowel movement that was 28 negative for contraband. However, Plaintiff was still not released from contraband surveillance 7 1 watch. On or about November 11, 2011, Plaintiff had another bowel movement that was 2 negative for contraband, and was finally released. “When the restraints were removed, 3 [Plaintiff] had numerous abrasions on all of his extremities. These contained both caked on and 4 fresh blood.” (Id. at 14.) 5 “Plaintiff submitted a grievance to the prison appeals coordinator requesting that 6 adverse actions be taken against the defendants in this case for subjecting Plaintiff to cruel and 7 unusual punishment.” (Id. at 15.) The appeals coordinator failed to respond, even after several 8 requests from Plaintiff to know the status of his appeal. 9 Plaintiff asserts the following claims against Defendants: 1) cruel and unusual 10 punishment in violation of the Eighth Amendment; 2) inadequate health care in violation of the 11 Eighth Amendment; 3) violation of Plaintiff’s First Amendment Right of access to the courts; 12 and 4) retaliation in violation of the First Amendment. After screening Plaintiff’s Third Amended Complaint, the Court found that Plaintiff 13 14 “stated a claim against defendants Adame, Tyree, and Lundy for violations of the Eighth 15 Amendment based on conditions of confinement, against defendants Adame and Lundy for 16 inadequate health care in violation of the Eighth Amendment, and against defendants Adame, 17 Tyree, and Lundy for retaliation in violation of the First Amendment.” (ECF No. 24 at 15.) 18 The Court found that Plaintiff failed to state any other claims or claims against any other 19 defendants. (Id.) On November 7, 2016, the Court issued its findings and recommendations 20 consistent with the screening order. (ECF No. 25.) On January 20, 2017, District Judge Anthony W. Ishii adopted this Court’s findings and 21 22 recommendations, ordering that this action proceed on Plaintiff’s Third Amended Complaint 23 “against defendants Adame, Tyree, and Lundy for violation of the Eighth Amendment based on 24 conditions of confinement, against Defendants Adame and Lundy for inadequate health care in 25 violation of the Eighth Amendment, and against Defendants Adame, Tyree, and Lundy for 26 retaliation in violation of the First Amendment,” and dismissing all other claims and 27 defendants. (ECF No. 28 at 2.) 28 /// 8 1 III. 2 On February 3, 2017, Defendants filed a motion for summary judgment on the ground EXHAUSTION 3 that Plaintiff failed to exhaust his available administrative remedies before filing this action. 4 (ECF No. 30.) The Court set an Albino evidentiary hearing because it appeared that Plaintiff’s 5 evidence created a dispute of fact regarding whether Plaintiff exhausted his available 6 administrative remedies. (ECF Nos. 36 & 41.) 7 Upon evaluating the evidence presented, the Court recommended finding that Plaintiff 8 satisfied the exhaustion requirement. (ECF No. 52 at 18.) The Court based this 9 recommendation on the following: Plaintiff entered into evidence a copy of the 602 he 10 allegedly filed as well as the originals of four Form 22s that he submitted inquiring about the 11 602, there was no direct evidence that any of these documents were forged, the documents were 12 internally consistent, the Form 22s had signatures from three different officers on them that did 13 not appear to match Plaintiff’s signature, and evidence presented by both parties that 602s are 14 sometimes lost. (Id. at 17-18.) On November 21, 2017, District Judge Anthony W. Ishii adopted this Court’s findings 15 16 and recommendations in full. (ECF No. 57 at 3.) 17 IV. 18 DEFENDANT’S MOTION TO DISMISS a. Legal Standard for Motion to Dismiss 19 In considering a motion to dismiss, the Court must accept all allegations of material fact 20 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v. 21 Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts 22 in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), 23 abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 24 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved 25 in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro 26 se pleadings “must be held to less stringent standards than formal pleadings drafted by 27 lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints 28 /// 9 1 2 should continue to be liberally construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)).2 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 3 complaint. See Iqbal, 556 U.S. at 679. Rule 8(a)(2) requires only “a short and plain statement 4 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 5 notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. 6 Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The 7 issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to 8 offer evidence to support the claims.” Scheuer, 416 U.S. at 236 (1974). 9 The first step in testing the sufficiency of the complaint is to identify any conclusory 10 allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, 11 supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 12 U.S. at 555). “[A] plaintiff=s obligation to provide the grounds of his entitlement to relief 13 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 14 of action will not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted). 15 After assuming the veracity of all well-pleaded factual allegations, the second step is for 16 the court to determine whether the complaint pleads “a claim to relief that is plausible on its 17 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 18 12(b)(6) standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when 19 the plaintiff “pleads factual content that allows the court to draw the reasonable inference that 20 the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 21 556). The standard for plausibility is not akin to a “probability requirement,” but it requires 22 “more than a sheer possibility that a defendant has acted unlawfully.” Id. 23 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 24 outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 25 26 27 28 2 It appears that even if the formerly pro se litigant is currently represented, the more lenient standard for pro se litigants is still applied in considering a motion to dismiss if the relevant pleading was filed when the litigant was pro se. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (noting both that the plaintiff was “now represented by counsel” and the lenient standard for pro se litigants, and proceeding with a lenient analysis because the relevant complaint was a pro se complaint). However, even if the Court did not apply the pro se litigant standard because Plaintiff is currently represented, the Court’s recommendation would be the same. 10 1 2 Gumataotao v. Dir. of Dep't of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001). b. Eighth Amendment Conditions of Confinement Claims 3 4 i. Legal Standard Under the Eighth Amendment, prison officials have an affirmative duty to “provide 5 humane conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). 6 Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. See 7 Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 8 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 9 F.2d 1521, 1531 (9th Cir. 1993) (en banc). However, prison officials must provide for 10 prisoner’s “basic human needs,” including “food, clothing, shelter, medical care, and 11 reasonable safety.” Helling v. Mckinney, 509 U.S. 25, 32 (1993) (quoting DeShaney v. 12 Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200 (1989)). A prison official 13 violates the Eighth Amendment if the following two prongs are satisfied: 1) the relevant 14 deprivation must be “objectively, ‘sufficiently serious,’” and 2) the prison official demonstrated 15 subjective “‘deliberate indifference’ to inmate health or safety.” Farmer v. Brennan, 511 US. 16 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 302-03 (1991)). 17 In examining whether the relevant deprivation is “objectively, ‘sufficiently serious,’” 18 “[s]ome conditions of confinement may establish an Eighth Amendment violation ‘in 19 combination’ when each would not do so alone, but only when they have a mutually enforcing 20 effect that produces the deprivation of a single, identifiable human need such as food, warmth, 21 or exercise -- for example, a low cell temperature at night combined with a failure to issue 22 blankets.” Wilson, 501 U.S. at 304. However, “[t]o say that some prison conditions may 23 interact in this fashion is a far cry from saying that all prison conditions are a seamless web for 24 Eighth Amendment purposes. Nothing so amorphous as ‘overall conditions’ can rise to the 25 level of cruel and unusual punishment when no specific deprivation of a single human need 26 exists.” Id. at 305. 27 28 The requisite state of mind for “deliberate indifference” is one of “more than mere negligence,” but does not go so far as to require a “‘maliciou[s] and sadisti[c]’” state of mind. 11 1 Farmer, 511 U.S. at 835-36 (quoting Wilson, 501 U.S. at 302-03). Thus, “a prison official 2 cannot be found liable under the Eighth Amendment for denying an inmate humane conditions 3 of confinement unless the official knows of and disregards an excessive risk to inmate health or 4 safety; the official must both be aware of facts from which the inference could be drawn that a 5 substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. 6 at 837. However, the factfinder “may conclude that a prison official knew of a substantial risk 7 from the very fact that the risk was obvious.” Id. at 842 (citation omitted). ii. Summary of Defendants’ Argument 8 9 Defendants argue that Plaintiff has failed to state a claim under the Eighth Amendment 10 for unconstitutional conditions of confinement. (ECF No. 59 at 14.) As to the objective prong 11 of a conditions of confinement claim, Defendants argue that the conditions Plaintiff was 12 subjected to were not sufficiently serious because they did not entail an “extreme” deprivation 13 of life’s necessities and because the conditions were in service of the legitimate correctional 14 goal of limiting the amount of contraband in prisons. (Id. at 15.) Defendants note that the 15 conditions Plaintiff was subjected to were “undoubtedly uncomfortable,” but maintain that the 16 temporary deprivation of access to hygiene and freedom from restraints does not rise to the 17 level of “sufficiently serious” that the objective test calls for. (Id.) 18 As to the subjective prong of a conditions of confinement claim, Defendants argue that 19 they were not deliberately indifferent to Plaintiff’s health or safety because they were abiding 20 by the protocol established at the time for contraband surveillance watch, as memorialized in 21 the Department Operations Manual (“DOM”) § 52050.23. (Id. at 17.) Additionally, 22 Defendants allege that both defendants Tyree and Lundy told Plaintiff that he would be 23 released from contraband watch once it was determined that Plaintiff was not in possession of 24 contraband. (Id. at 16-17). Defendants also allege that Plaintiff’s allegations regarding 25 Defendant Adame’s statements and conduct (i.e. allegedly forcing Plaintiff to defecate in view 26 of other prisoners and guards, to endure a “freezing” cell, and to walk in shackles) do not 27 demonstrate the requisite deliberate indifference to the alleged harm Plaintiff was subjected to. 28 (Id.) 12 1 iii. Summary of Plaintiff’s Argument 2 Plaintiff argues that he has pled a viable Eighth Amendment conditions of confinement 3 case. (ECF No. 64 at 11.) Plaintiff does not allege that contraband surveillance watch itself is 4 unconstitutional under the Eighth Amendment, but rather that the conditions of his contraband 5 surveillance watch were unconstitutional. (Id. at 12.) Plaintiff alleges that, for sixteen days, his 6 hands and feet were shackled and restrained with tape, he was forced to wear unsanitary 7 mittens, he was forced to eat and use the bathroom with the same hand that he was not 8 permitted to wash, he was not given a mattress or blanket throughout his time on surveillance 9 even when he was in a freezing cell, he was not allowed to shower, shave, brush his teeth, wash 10 his hands, or get proper sleep, and he was subjected to constant bright lights. (Id. at 13.) 11 Plaintiff argues that the foregoing facts satisfy the objective “sufficiently serious” component 12 of his conditions claims. (Id. at 13-14.) 13 Plaintiff alleges that the subjective “deliberate indifference” component is also satisfied 14 for each defendant, as each defendant was aware of the conditions Plaintiff was in. (ECF No. 15 64 at 15, 17.) As to Defendant Adame, Plaintiff alleges that Defendant Adame was responsible 16 for putting Plaintiff on contraband surveillance watch in the complained of conditions, kept 17 Plaintiff in these conditions in spite of negative contraband test results, appeared to direct other 18 staff on how procedures like Plaintiff’s bowel movements should be monitored, transferred 19 Plaintiff to a freezing cell that did not have a sink or toilet, and taunted Plaintiff about his odor 20 from his inability to observe proper hygiene. (Id. at 15.) Plaintiff also alleges Defendant 21 Adame made comments to him, such as, “if you think you got away, think again,” “you better 22 just brace yourself for what’s next,” and “this isn’t Burger King, you can’t have it your way,” 23 which indicate Defendant Adame was aware of the severity of the conditions. (Id. at 15, 17.) 24 As to Defendant Lundy, Plaintiff alleges that Defendant Lundy observed the conditions 25 Plaintiff was in and did nothing to alleviate them. Defendant Lundy also did not provide 26 assistance to Plaintiff, even though Plaintiff requested a blanket and mattress, to be able to 27 wash up, and to see medical staff. (Id. at 15-16.) 28 As to Defendant Tyree, Plaintiff alleges that Defendant Tyree also witnessed Plaintiff’s 13 1 conditions of confinement, did nothing to alleviate them, and declined Plaintiff’s request for a 2 mattress and to wash up. (Id. at 16.) Plaintiff alleges Defendant Tyree also taunted him about 3 his odor. (Id.) Plaintiff alleges that when he asked Defendant Tyree why he could not see 4 medical personnel for the cuts on his wrists from his restraints, Defendant Tyree responded that 5 the conditions would remain the same until Plaintiff provided another bowel movement. (Id.) 6 7 iv. Analysis The Court finds that Plaintiff has alleged sufficient facts to establish that the conditions 8 he endured were “sufficiently serious” and that Defendants acted with “deliberate indifference” 9 to Plaintiff’s health and safety. Plaintiff’s allegations that, for sixteen days, he was shackled 10 and restrained, forced to wear unsanitary mittens, prevented from practicing virtually any form 11 of personal hygiene, denied a mattress or blanket even when he was placed in freezing 12 temperatures, subjected to constant bright lights, and was unable to get proper sleep sufficiently 13 plead “sufficiently serious” conditions. While some allegations may not be sufficient alone to 14 satisfy the objective element of this test, when taken in combination with one another, the 15 objective element is sufficiently pled. For example, Plaintiff’s alleges that he was subjected to 16 freezing temperatures while still being denied a blanket. These allegations clearly state a 17 cognizable conditions of confinement claim. Wilson, 501 U.S. 298, 304 (1991) (“Some 18 conditions of confinement may establish an Eighth Amendment violation ‘in combination’ 19 when each would not do so alone… for example, a low cell temperature at night combined with 20 a failure to issue blankets.”). 21 The Court finds that Plaintiff also sufficiently pled facts to establish that Defendants 22 were deliberately indifferent to Plaintiff’s health or safety. First, Plaintiff alleges that 23 Defendant Adame was responsible for putting Plaintiff on contraband surveillance watch and 24 made comments that indicated that he was aware of Plaintiff’s deplorable conditions. 25 Additionally, Plaintiff alleges that all three Defendants witnessed Plaintiff’s conditions of 26 confinement and failed to alleviate them in spite of Plaintiff’s requests that they do so, further 27 supporting that Defendants were aware of Plaintiff’s conditions. Moreover, based on the 28 severity and longevity of the conditions mentioned above, the Court finds that the deplorability 14 1 of the conditions Plaintiff endured is “obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994) 2 (“[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact 3 that the risk was obvious.”). As Defendants interacted with Plaintiff while he was in these 4 conditions, the Court finds that Plaintiff has sufficiently alleged that Defendants knew of the 5 risk to Plaintiff’s health and safety. 6 This analysis is supported by other cases from this district. Raybon v. Totten, E.D. CA 7 Case No. 2:12-cv-01008, ECF No. 8 at 3 (plaintiff’s allegation that “defendants Hardy and 8 Totten [] depriv[ed] plaintiff of bedding, hygiene supplies, showers and soap for sixteen days 9 [states a cognizable Eighth Amendment claim].”); Hignite v. Felker, 2008 U.S. Dist. LEXIS 10 111532, at *18 (E.D. Cal. July 11, 2008), findings and recommendation adopted by 2008 U.S. 11 Dist. LEXIS 79192 (E.D. Cal. Aug. 21, 2008) (plaintiff’s allegations that “he was placed on 12 contraband watch in an unauthorized fashion for an excessive 84 hours, was denied a mattress 13 for much of that time without running water, was forced to eat his food with his bare hands, 14 was denied basic hygiene and adequate water and was restrained by multiple layers of tape, 15 waist chains, handcuffs and leg restraints…” supported the denial of a motion to dismiss); 16 Romo v. Cate, 2014 U.S. Dist. LEXIS 121363, at *22-23 (E.D. Cal. Aug. 29, 2014), amended 17 by 2014 U.S. Dist. LEXIS 130573 (E.D. Cal. Sept. 15, 2014), findings and recommendations 18 adopted by 2014 U.S. Dist. LEXIS 139840 (E.D. Cal. Sept. 30, 2014) (“the allegations are such 19 that any officer who observed plaintiff during his stay on CSW [in which plaintiff was put in a 20 holding cell without a toilet, water, a mattress, and all basic hygiene for eight days] must have 21 known at some point that the conditions were unsanitary. Such an inference is enough to 22 survive a motion to dismiss brought under Rule 12(b)(6).”) (emphasis added). 23 Additionally, the Court is unpersuaded by Defendants’ contention that they were not 24 deliberately indifferent to the Plaintiff’s conditions of confinement because they were 25 complying with the DOM. The Court finds this assertion to be disingenuous because, taking 26 Plaintiff’s allegations as true, the relevant sections of the DOM that Defendants provide reveal 27 that Defendants did not comply with the contraband surveillance watch protocol. First, 28 according to DOM § 5250.23.3, “If the temperature in the isolated setting is below 65 degrees, 15 1 the inmate shall also be provided a blanket.” (ECF No. 59 at 31.) Plaintiff alleges he was kept 2 in a “freezing cell while the officers were heavily clothed” while “the temperature outside was 3 approximately 40 degrees below (snow felled [sic] and stayed on the ground outside), [but] 4 [Plaintiff] was never given winter clothing” or a blanket. (ECF No. 23 at 9; ECF No. 63 at 23.) 5 More still, DOM § 5250.23.8 states the following: Normally, inmates will be retained on CSW for a period of not less than 72 hours or the inmate may be required to complete at least three bowel movements free of contraband prior to being removed from CSW. When it is determined by medical or custodial staff that the inmate may still be in possession of additional contraband at the conclusion of the 72[-]hour time period, approval to retain the inmate on CSW for an extended prior of time may be approved only by the Warden or Chief Deputy Warden. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 (ECF No. 59 at 32.) Plaintiff alleges that Defendants did not obtain approval to keep Plaintiff on contraband surveillance watch for over 72 hours, and yet kept him on contraband surveillance watch for sixteen days. (ECF No. 23 at 8; ECF No. 64 at 11.) Additionally, Plaintiff alleges he was told he had to provide five negative bowel movements before he was released from contraband watch—which is two more than the DOM requires—and that he was maintained on contraband surveillance watch approximately five days after he had provided his requisite third negative bowel movement. (ECF No. 64 at 15-16, 26.) Accordingly, the Court finds that Plaintiff has facts stating a cognizable Eighth Amendment conditions of confinement claim. c. Eighth Amendment Denial of Medical Care Claims 20 21 22 i. Legal Standard “In order to state a cognizable [Eighth Amendment denial of medical care] claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference 23 to serious medical needs.” 3 Estelle v. Gamble, 429 U.S. 97, 106 (1976). “A ‘serious’ medical 24 need exists if the failure to treat a prisoner’s condition could result in further significant injury 25 or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 26 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 27 28 3 The standard for deliberate indifference is set forth above in subsection (b). 16 1 Cir. 1997) (en banc) (quoting Estelle, 429 U.S. at 104). “The existence of an injury that a 2 reasonable doctor or patient would find important and worthy of comment or treatment; the 3 presence of a medical condition that significantly affects an individual’s daily activities; or the 4 existence of chronic and substantial pain are examples of indications that a prisoner has a 5 ‘serious’ need for medical treatment.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1337- 6 41 (9th Cir. 1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989)). 7 This standard applies “whether the indifference is manifested by prison doctors in their 8 response to the prisoner’s needs or by prison guards in intentionally denying or delaying access 9 to medical care or intentionally interfering with the treatment once prescribed.” Id. at 104-05. 10 Still, “an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an 11 unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.’” 12 Id. at 105-06. 13 14 ii. Summary of Defendants Adame and Lundy’s Argument Defendants Adame and Lundy argue that Plaintiff has failed to satisfy the objective 15 “serious medical needs” prong of his denial of medical care claim. (ECF No. 59 at 19.) 16 Defendants Adame and Lundy allege that because Plaintiff did not seek medical attention 17 immediately after his release from contraband surveillance watch, Plaintiff did not in fact suffer 18 from any serious medical issues. (Id.) 19 Defendants Adame and Lundy also argue that Plaintiff did not satisfy the subjective 20 “deliberate indifference” element. (Id.) Defendants Adame and Lundy allege that Plaintiff did 21 not inform them of a serious medical condition, and that Plaintiff’s complaints of his inability 22 to practice personal hygiene and his difficulty sleeping were “vague and conclusory” and 23 therefore provided insufficient notice. (Id.) Defendants Adame and Lundy assert that, while 24 Plaintiff told “prison officials” that he had cuts on his wrist, Plaintiff did not tell this to 25 Defendants Adame and Lundy in particular. (Id.) Defendants Adame and Lundy argue that 26 Plaintiff’s request of Defendant Adame to “check” for possible injuries was insufficient to 27 establish that Plaintiff suffered from a serious medical condition. (Id.) Defendants Adame and 28 Lundy also allege that Plaintiff’s “vague complaints” that he was “not feeling well” or that he 17 1 was not getting “proper” sleep were insufficient to put them on notice that Plaintiff was at risk 2 of substantial harm. (Id.) Defendants Adame and Lundy allege that Plaintiff has failed to 3 allege sufficient facts to indicate that Defendants Adame and Lundy actually concluded that 4 Plaintiff suffered from a serious medical condition and disregarded this risk. (Id. at 20) 5 iii. Summary of Plaintiff’s Argument 6 Plaintiff alleges that being denied a shower and the ability to brush his teeth or wash his 7 hands, an inability to sleep or eat properly, the lacerations and permanent scarring he developed 8 on his wrists and ankles from the restraints, and the fungal infections he developed on his hands 9 and feet that resulted in bleeding and cracking skin establish a sufficiently serious medical 10 need. (ECF No. 64 at 18.) Plaintiff also alleges that these conditions left him in a “semi- 11 catatonic” state and also caused him to experience numbness and discoloration in his upper and 12 lower extremities. (Id.) Plaintiff alleges that a reasonable doctor would find these conditions 13 worthy of comment and that these conditions impinged on his daily activities, thereby 14 satisfying the objective prong of this claim. (Id. at 19) 15 Plaintiff alleges Defendants Adame and Lundy were aware of his condition because of 16 the detectable odor about him. (Id.) Plaintiff alleges Defendant Adame was aware of his 17 condition because he told Defendant Adame that he did not feel well, was not sleeping or 18 eating properly, and that he wished to see a doctor. (Id. at 19-20.) Plaintiff alleges Defendant 19 Lundy was aware of his condition because he asked Defendant Lundy to see medical personnel 20 because he was not feeling well and had “cuts from the restraints.” (Id. at 20.) Plaintiff alleges 21 both Defendants Adame and Lundy denied Plaintiff’s requests to see medical personnel, and 22 that Defendant Adame antagonized Plaintiff for making such a request. (Id.) Plaintiff alleges 23 that, although he made some of his requests to other prison officials, it is a fair inference that 24 Defendant Lundy, who appeared to be in charge of Plaintiff’s retention on contraband 25 surveillance watch, was aware that Plaintiff was not receiving medical care. (Id. at 20-21.) 26 27 28 iv. Analysis The Court finds that Plaintiff has pled sufficient facts to state a cognizable Eighth Amendment denial of medical care claim. Plaintiff’s allegations of fungal infections, bleeding 18 1 and cracked skin, semi-catatonic state, permanent scarring, and numbing sensations 2 experienced as a result of his sixteen days spent on contraband surveillance watch (ECF No. 64 3 at 18) sufficiently plead a serious medical need. Further, Plaintiff’s allegations of an inability 4 to practice any form of personal hygiene or to eat or sleep properly over the span of sixteen 5 days (id.) also support this conclusion. 6 Moreover, although Defendants Adame and Lundy assert that they lacked the requisite 7 awareness to be deliberately indifferent, claiming Plaintiff failed to adequately verbalize his 8 conditions, Plaintiff alleges that Defendants Adame and Lundy were aware of the length of 9 Plaintiff’s contraband surveillance watch, witnessed the conditions Plaintiff endured on 10 multiple occasions, heard Plaintiff’s requests for medical attention and a mattress and blanket, 11 and denied Plaintiff’s requests. Additionally, in evaluating deliberate indifference, the Court “may conclude that a 12 13 prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer 14 v. Brennan, 511 U.S. 825, 842 (1994) (citation omitted). Drawing all inferences in Plaintiff’s 15 favor, Plaintiff’s allegations that he was in a semi-catatonic state, had fungal infections, and 16 was bleeding from wounds that left permanent scarring show that he had obviously serious 17 medical needs (ECF No. 23 at 7.) Moreover, Defendants Adame and Lundy witnessed Plaintiff 18 while he was suffering through these conditions and were both aware of the length and 19 conditions of contraband surveillance watch. Accordingly, the Court finds that Plaintiff has 20 pled sufficient facts to establish deliberate indifference on the part of Defendants Adame and 21 Lundy. 22 Thus, the Court finds Plaintiff has sufficiently alleged that he had serious medical needs 23 that were either obvious to Defendants Adame and Lundy, or that Defendants Adame and 24 Lundy knew about because Plaintiff asked for medical care (or both), and that Defendants 25 Adame and Lundy demonstrated deliberate indifference to those needs. 26 /// 27 /// 28 /// 19 1 d. First Amendment Retaliation Claims 2 3 i. Legal Standard for First Amendment Retaliation “Prisoners have a First Amendment right to file grievances against prison officials and 4 to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 5 2012). In order to establish a retaliation claim, a plaintiff must allege the following: (1) he 6 engaged in conduct that is protected (e.g. filing an inmate grievance); (2) “the defendant took 7 adverse action against the plaintiff;” (3) “a causal connection between the adverse action and 8 the protected conduct,” which can be inferred from the chronology of events; (4) the 9 defendant’s conduct would “chill or silence” a reasonable person’s First Amendment activities; 10 and (5) the defendant’s conduct was not in furtherance of the legitimate aim of the correctional 11 institution. Id. at 1114-15. ii. Summary of Defendants’ Argument 12 13 Defendants argue that Plaintiff fails to establish a First Amendment retaliation claim, 14 particularly with respect to the causation element of the claim. (ECF No. 59 at 22.) 15 Defendants argue that, although Plaintiff engaged in protected conduct in filing his grievances 16 against Institutional Gang Investigation staff at Centinela, Plaintiff’s allegations fail to show 17 that it was protected conduct that led to Plaintiff being placed on contraband surveillance 18 watch. (Id.) Defendants argue that the significant temporal distance of six months between 19 Plaintiff’s grievance filings and his initial interactions with Defendant Adame support that there 20 is no causal connection between those filings and the Defendants’ actions in relation to 21 Plaintiff. (Id.) 22 Defendants argue that, chronology aside, Plaintiff’s allegations do not imply that 23 Defendant Adame assigned Plaintiff to contraband surveillance watch because of Plaintiff’s 24 prior filing of grievances. (Id.) Defendants argue that Defendant Adame did not state that 25 Plaintiff must refrain from filing grievances or that Plaintiff’s placement on contraband 26 surveillance watch was related to Plaintiff’s prior filings. (Id. at 23.) Defendants also argue 27 that Plaintiff failed to establish that Defendants Tyree and Lundy did anything more than speak 28 to Plaintiff while Plaintiff was on contraband surveillance watch and tell Plaintiff that he would 20 1 be released if he cooperated. (Id.) Defendants argue that Plaintiff has failed to allege that 2 Defendants Tyree and Lundy made any suggestion to Plaintiff that he was on contraband 3 surveillance watch because of his prior grievance filings. (Id. at 23-24.) iii. Summary of Plaintiff’s Argument 4 5 Plaintiff alleges that he engaged in protected conduct in filing multiple grievances 6 challenging his gang validation. (ECF No. 64 at 21.) Plaintiff alleges he also filed grievances, 7 alleging that members of the Institutional Gang Investigation staff fabricated evidence used to 8 validate him, and organized other prisoners to do the same. (Id.) Plaintiff alleges he wrote a 9 letter to the Warden of Centinela urging him to investigate Plaintiff’s allegations, which the 10 Warden agreed to do. (Id.) Plaintiff alleges that Defendant Adame “incessantly harass[ed]” 11 Plaintiff regarding Plaintiff’s grievance filings and organization of other prisoners to do the 12 same. (Id. at 23.) 13 Plaintiff alleges that the comments made to him by Defendants demonstrate a retaliatory 14 motive. Plaintiff alleges Defendant Adame told Plaintiff during their first encounter that 15 grievances in the new institution where Plaintiff was to be held were used as “toilet tissue” and 16 that filing such grievances about Plaintiff’s treatment would be futile. (Id.) Plaintiff alleges 17 that, after making the aforementioned comments to Plaintiff, Defendant Adame put him on 18 contraband surveillance watch with no mattress or blanket or access to personal hygiene. (Id.) 19 Plaintiff alleges Defendant Adame also forced Plaintiff to wear unsanitary mittens and directed 20 others to have Plaintiff defecate in a humiliating manner. (Id. at 23-24.) Plaintiff also alleges 21 that the mere sixteen days in between Plaintiff’s last grievance filing and his first encounter 22 with Defendant Adame further indicate a causal connection between Plaintiff’s protected 23 speech and Defendant Adame’s adverse action against Plaintiff in placing Plaintiff on 24 contraband surveillance watch. (Id. at 25.) 25 Plaintiff alleges Defendants Tyree and Lundy had a conversation in his presence in 26 which Defendant Lundy smirked and told Plaintiff that if he wanted a blanket and to be able to 27 wash himself then he should file a grievance and “complain like he usually does.” (Id. at 24.) 28 Plaintiff alleges Defendant Tyree replied that Plaintiff has the option of filing a grievance, but 21 1 that Defendant Tyree was “not sure how far [Plaintiff] will get with that hand tied up though.” 2 (Id.) 3 Plaintiff alleges that Defendant Lundy, in spite of seeing that Plaintiff did not have a 4 mattress or blanket and witnessing Plaintiff’s apparent foul odor, did not respond to Plaintiff’s 5 requests for a mattress or blanket, to see medical staff, or to be released from contraband 6 surveillance watch. (Id. at 26.) Additionally, at the Institutional Classification Committee 7 Meeting, Defendant Lundy responded to Plaintiff’s questions as to why Plaintiff was on 8 contraband surveillance watch in the first place, why Plaintiff was still on contraband 9 surveillance watch after providing four clean bowel movements and a clean x-ray, and why 10 Plaintiff could not see medical staff despite his complaints of cuts from his restraints and not 11 feeling well by stating that Plaintiff needed to provide one more clean bowel movement and x- 12 ray before Plaintiff would be released. (Id.) Defendant Lundy did not respond to Plaintiff’s 13 questions regarding his denial of medical care and the reasoning behind Plaintiff’s retention on 14 contraband surveillance watch. (Id.) 15 Plaintiff claims Defendant Tyree urged Plaintiff to become an informant and threatened 16 to put Plaintiff on single cell status, which would indicate that Plaintiff was acting as a 17 confidential informant and put Plaintiff in danger. (Id.) Plaintiff also alleges Defendant Tyree 18 continued to deny him the ability to wash the hand Plaintiff was permitted to eat with. (Id. at 19 27.) 20 21 iv. Analysis Construing all facts in favor of the Plaintiff, the Court finds Plaintiff has pled adequate 22 facts to support his First Amendment retaliation claims. It is undisputed that Plaintiff has 23 engaged in conduct protected by the First Amendment (filing grievances), satisfying the first 24 element of the retaliation test. 25 Second, Plaintiff has sufficiently alleged that Defendants did take adverse action 26 against him. Plaintiff alleges Defendants placed him on contraband surveillance watch under 27 conditions that were deplorable and harsher than what protocol called for. Plaintiff also alleges 28 that he was kept on contraband surveillance watch for sixteen days, which was longer than 22 1 protocol called for. Plaintiff further alleges that Defendants refused to respond to Plaintiff’s 2 requests for washing, bedding, and medical attention. As a result of these conditions, Plaintiff 3 alleges he was in a catatonic state and was left with infections and permanent scarring. 4 The Court finds Plaintiff has also pled sufficient facts to satisfy the causation element of 5 his retaliation claims. Although there is some temporal distance between Plaintiff’s first 6 engagement in protected conduct and his placement and retention on contraband surveillance 7 watch, his last grievance was filed just sixteen days before he first encountered Defendant 8 Adame, who placed him on contraband surveillance watch after allegedly harassing him about 9 his grievances. Plaintiff also alleges that Defendant Adame stated that grievances at CCI were 10 used as “toilet tissue” and that filing such grievances about Plaintiff’s treatment would be 11 futile. Plaintiff also alleges that Defendant Lundy smirked and told Plaintiff that if he wanted a 12 blanket and to be able to wash himself then he should file a grievance and “complain like he 13 usually does.” Finally, Plaintiff alleges that Defendant Tyree replied that Plaintiff has the 14 option of filing a grievance, but that Defendant Tyree was “not sure how far [Plaintiff] will get 15 with that hand tied up though.” Thus, these statements appear to show that Defendants knew of 16 Plaintiff’s history of filing grievances, and demonstrate retaliatory conduct on the part of 17 Defendants in response to Plaintiff’s filing of grievances. Because causation can be either 18 directly established or indirectly inferred from the circumstances, the Court finds that 19 Defendants’ alleged statements, in conjunction with the closeness in time between the last 20 grievance filed by Plaintiff and his placement on contraband surveillance watch, are sufficient 21 to infer and establish causation here. 22 The fourth element of a retaliation claim, that a reasonable person’s First Amendment 23 activities would be chilled due to the defendant’s conduct, is also sufficiently pled here. 24 Because this element is guided by a reasonable person standard, and “‘since harm that is more 25 than minimal will almost always have a chilling effect[, a]lleging harm and alleging the 26 chilling effect would seem under the circumstances to be no more than a nicety,’” Brodheim v. 27 Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (quoting Rhodes v. Robinson, 408 F.3d 559, 568, 28 n.11 (9th Cir. 2005)) (emphasis in the original), this element is presumed to be satisfied here. 23 1 Finally, although Defendants argue that there was a legitimate correctional institution 2 interest in subjecting Plaintiff to contraband surveillance watch because they believed Plaintiff 3 had contraband, in taking Plaintiff’s allegations as true and construing them in Plaintiff’s favor, 4 and in considering the alleged conditions Plaintiff endured while on contraband surveillance 5 watch, the Court finds that Plaintiff has sufficiently pled that he was placed on contraband 6 surveillance watch for engaging in protected conduct, not because it was believed he had 7 contraband. Accordingly, Plaintiff’s retaliation claims survive this motion to dismiss. 8 9 10 e. Qualified Immunity i. Legal Standard for Qualified Immunity “Qualified immunity shields federal and state officials from money damages unless a 11 plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and 12 (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. 13 Al–Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 14 To be clearly established, a right must be sufficiently clear “that every ‘reasonable official 15 would [have understood] that what he is doing violates that right.’” Reichle v. Howards, 132 S. 16 Ct. 2088, 2090 (2012) (quoting Al–Kidd, 563 U.S. at 741) (alteration in original). This 17 immunity protects “all but the plainly incompetent or those who knowingly violate the law.” 18 Malley v. Briggs, 475 U.S. 335, 341 (1986). 19 “Since qualified immunity is a defense, the burden of pleading it rests with the 20 defendant.” See Fed. Rule Civ. Proc. 8(c) (defendant must plead any ‘matter constituting an 21 avoidance or affirmative defense’); 5 C. Wright & A. Miller, Federal Practice and Procedure § 22 1271 (1969). “It is for the official to claim that his conduct was justified by an objectively 23 reasonable belief that it was lawful. We see no basis for imposing on the plaintiff an obligation 24 to anticipate such a defense by stating in his complaint that the defendant acted in bad faith.” 25 Gomez v. Toledo, 446 U.S. 635, 640 (1980). 26 27 28 ii. Summary of Argument Defendants argue that they are entitled to qualified immunity from Plaintiff’s Eighth Amendment conditions of confinement claims regarding Plaintiff’s placement and maintenance 24 1 on contraband surveillance watch. (ECF No. 59 at 25.) Defendants allege that qualified 2 immunity applies because placing and maintaining Plaintiff on contraband surveillance watch 3 under the conditions Plaintiff describes was not a clearly established infringement of Plaintiff’s 4 Eighth Amendment rights at the time of the incident. (Id.) Defendants assert that they were 5 not aware that these conditions—which were in alignment with contraband surveillance watch 6 protocol—were unconstitutional. (Id.) 7 Plaintiff argues that Defendants are not entitled to qualified immunity, because it was 8 clearly established at the time of Plaintiff’s confinement that denying a prisoner the basic 9 necessities of life, such as clothing, nutrition, medical care, sanitation, was unconstitutional, 10 and these were the conditions Plaintiff was subjected to. (ECF No. 64 at 28.) 11 iii. Analysis 12 As analyzed above, based on Plaintiff’s allegations, Defendants did not follow 13 contraband surveillance watch protocol. Additionally, based on the foregoing allegations and 14 based on the conditions of confinement analysis above, the Court finds that Plaintiff has 15 sufficiently alleged conditions (e.g., placing an inmate in freezing conditions without a blanket 16 or jacket and depriving the inmate of adequate sleep, sanitation, and medical care for such a 17 prolonged period of time) that every reasonable official would realize would be 18 unconstitutional. See, e.g., Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“Some conditions of 19 confinement may establish an Eighth Amendment violation ‘in combination’… for example, a 20 low cell temperature at night combined with a failure to issue blankets.”); Hignite v. Felker, 21 2008 U.S. Dist. LEXIS 111532, at *18 (E.D. Cal. July 11, 2008), findings and recommendation 22 adopted by 2008 U.S. Dist. LEXIS 79192 (E.D. Cal. Aug. 21, 2008) (plaintiff’s allegations that 23 “he was placed on contraband watch in an unauthorized fashion for an excessive 84 hours, was 24 denied a mattress for much of that time without running water, was forced to eat his food with 25 his bare hands, was denied basic hygiene and adequate water and was restrained by multiple 26 layers of tape, waist chains, handcuffs and leg restraints…” supported the denial of a motion to 27 dismiss). 28 Thus, the Court finds that, at this stage in the proceedings, Defendants are not entitled to 25 1 qualified immunity. However, the Court notes that this finding is based solely on construing 2 the facts alleged as true and in favor of Plaintiff, which the Court must at this stage in litigation. 3 This finding is without prejudice to Defendants asserting this defense at a later stage in the 4 proceeding. 5 f. Legal Standards for Injunctive Relief, Declaratory Relief, and Eleventh 6 Amendment Immunity 7 “[I]njunctive relief is appropriate only when ‘irreparable injury’ is threatened,” Gomez 8 v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001) (quoting City of Los Angeles v. Lyons, 461 9 U.S. 95, 111 (1983)), and other legal remedies are inadequate, Weinberger v. Romero-Barcelo, 10 456 U.S. 305, 312 (1982). In order to obtain injunctive or declaratory relief, “a plaintiff must 11 show that he has suffered or is threatened with a ‘concrete and particularized’ legal harm, 12 coupled with ‘a sufficient likelihood that he will again be wronged in a similar way.’” 13 Canatella v. State of California, 304 F.3d 843, 852 (9th Cir. 2002) (quoting Lujan v. Defenders 14 of Wildlife, 504 U.S. 555, 560 (1992), then quoting Lyons, 461 U.S. at 111). 15 “The Eleventh Amendment bars suits for money damages in federal court against a 16 state, its agencies, and state officials in their official capacities.” Aholelei v. Dept. of Public 17 Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh 18 Amendment does not bar suits seeking damages against state officials in their personal 19 capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 20 2003). Additionally, the Eleventh Amendment does not bar suits for prospective declaratory or 21 injunctive relief against state officials in their official capacities. Ex Parte Young, 209 U.S. 22 123, 155-56 (1908); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989); 23 Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); Flint v. Dennison, 488 F.3d 816, 825 (9th 24 Cir. 2007). 25 26 i. Summary of Arguments As part of his requested relief, Plaintiff seeks prospective injunctive relief against, 27 “harassment, retaliation or reprisals” from “defendants, their agents, and successors.” (ECF 28 No. 23 at 17.) Plaintiff alleges that he is not safe from retaliation by members of IGIU or by 26 1 Defendants Adame, Lundy, and Tyree even though he is now detained at Kern Valley State 2 Prison (“KVSP”). (Id.) Defendants argue that Plaintiff is not entitled to prospective injunctive 3 relief because Plaintiff has been transferred to another prison and because Plaintiff has failed to 4 establish First Amendment retaliation claims. 5 Plaintiff also seeks “[a] declaratory judgment that defendants and/or omission described 6 herein violation [Plaintiff’s] rights as herein stated.” (Id.) Defendants do not contest Plaintiff’s 7 ability to sue for declaratory relief. 8 ii. Analysis of Defendants’ Claim of Eleventh Amendment Immunity 9 As discussed above, the Court finds Plaintiff has pled sufficient facts to establish First 10 Amendment retaliation claims against Defendants. As a result, the Court finds that Plaintiff has 11 sufficiently pled a “concrete and particularized” harm. However, it is undisputed that Plaintiff 12 has been transferred and is now detained at KVSP, and it appears as though Defendants work at 13 CCI (ECF No. 23 at 3.) Additionally, Plaintiff has failed to allege any facts suggesting that 14 Defendants will harm him again. 15 Accordingly, the Court finds that Plaintiff has failed to allege sufficient facts to 16 establish that he will “again be wronged in a similar way” or that there is a threatened 17 “irreparable injury,” and the Court therefore recommends that Plaintiff’s requests for injunctive 18 relief and declaratory relief be dismissed. As the Court is recommending that Plaintiff’s requests for injunctive relief and 19 20 declaratory relief be dismissed, and as Plaintiff’s remaining requests for relief are only for 21 monetary damages, the Court will also recommend dismissing Defendants from this case in 22 their official capacities. 23 However, the Court will also recommend that these dismissals be without prejudice to 24 Plaintiff amending his complaint to request injunctive relief in the future should he need to do 25 so. 26 V. 27 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 28 CONCLUSION 1. Defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN 27 1 PART; 2. This case proceed on Plaintiff’s claims for Eighth Amendment Conditions of 2 3 Confinement, Eighth Amendment Denial of Medical Care, and First 4 Amendment Retaliation. 5 3. Plaintiff’s requests for declaratory and injunctive relief is DISMISSED; and 6 4. This case proceed against Defendants only in their individual capacities. 7 These findings and recommendations will be submitted to the United States district 8 court judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 9 twenty-one (21) days after being served with a copy of these findings and recommendations, 10 any party may file written objections with the court and serve a copy on all parties. Such a 11 document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendations.” Any reply to the objections shall be served and filed within seven (7) 13 days after service of the objections. The parties are advised that failure to file objections 14 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 15 772 F.3d 834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 16 1991)). IT IS SO ORDERED. 17 18 Dated: June 22, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 28