The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND SEVERANCE OF PLAINTIFF'S COGNIZABLE CLAIMS
Plaintiff Michael Eugene Hollis ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is currently incarcerated in the Lerdo Max/Med Detention Facility ("Lerdo") in Bakersfield, California. However, the events described in Plaintiff's complaint took place while Plaintiff was incarcerated at Fresno County Jail ("FCJ") in Fresno, California. Plaintiff names Margaret Mims (Fresno County Sheriff), John/Jane Doe Jail Commander (detention bureau commander), Dr. Laird (jail medical administrator), Shumate (classification sergeant), Blathers (correctional sergeant), Nichols (correctional corporal), Cartier (correctional corporal), Osborne (correctional officer), Oliver (classification officer), Cunha (correctional officer), Dawson (correctional corporal), Calvert (correctional officer), "Unknown Conspirator" (correctional officer), "Unknown Medical Doctor (jail medical services doctor), and "Unidentified Supervisor" (maintenance supervisor) as defendants. For the reasons set forth below, the Court finds that Plaintiff's first amended complaint states some cognizable claims. The Court also finds that Plaintiff's claims are not properly joined and will recommend that they be severed.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability... 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff filed the original complaint in this action on March 11, 2009. (Doc. #1.) Plaintiff's original complaint was screened by the Court pursuant to 28 U.S.C. § 1915A(a) on October 8, 2009. (Doc. #20.) The Court found that Plaintiff's original complaint stated some cognizable claims and found that the other claims failed to state a cognizable claim for relief. The Court ordered Plaintiff to either file an amended complaint that cured the deficiencies in his non-cognizable claims or notify the Court that he wished to proceed only on the claims found to be cognizable. On January 19, 2010, Plaintiff filed his first amended complaint. (Doc. #25.) This action proceeds on Plaintiff's first amended complaint.
Plaintiff divides his complaint into seven separate "claims": 1) "Denial of Meaningful Access to Federal Court," 2) "Denial of a Common Over-the-Counter (OTC) Remedy," 3) "Correctional Officer Harassment/Retaliation," 4) "Retaliatory Abuse of the Disciplinary Process," 5) "Mis-Classification," 6) "Unconstitutionally Cold Jail Temperatures," and 7) "Denial of Adequate Lighting."
1. Denial of Meaningful Access to Federal Court
Plaintiff's "Denial of Meaningful Access to Federal Court" claim names Margaret Mims and John/Jane Doe Jail Commander as defendants. Plaintiff claims that the law library policy at FCJ violated Plaintiff's constitutional right of access to the courts.
Plaintiff's access to courts claim is premised on his "unavoidably substandard" filings in this Court. (Am. Compl. 12, ECF No. 25.*fn1 ) Plaintiff claims that his filings are substandard because he did not have adequate access to law library resources at FCJ. Plaintiff also complains that he is now incarcerated in Big Spring, Texas, and is unable to litigate his California state law claims because he does not have access to California state law resources.*fn2
Plaintiff complains that while at FCJ, he was not allowed to visit the law library and was not allowed to possess hard bound books. Instead, Plaintiff was classified as an "Intensive Management Unit" inmate and was supposed to be able to obtain copies of specifically requested materials and provided with an index to help him request materials. (Am. Compl. 14, ECF No. 25.) Plaintiff also claims that he should have received weekly assistance from inmate law clerks. Plaintiff complains that he did not receive any of those services. Plaintiff does not specifically allege what services he did receive, but concludes that the services provided at FCJ were constitutionally inadequate because "[i]t is clear... that none of the requisites of Ninth Circuit constitutionally adequate law library access are met by Defendant Mims and her John/Jane Doe Jail Commander's unconstitutional institutional policy of denying civil rights litigants in FCJ access to FCJ legal resources." (Am. Compl. 15, ECF No. 25.)
Plaintiff's access to courts claim also cites the legal standards for stating a claim for retaliation against a prisoner's exercise of a protected First Amendment right. Plaintiff claims that Mims and John/Jane Doe Jail Commander "have bad faith, retaliatory motives for denying the pursuit of all civil rights damages claims in the FCJ law library." (Am. Compl. 23, ECF No. 25.) Plaintiff claims that the unconstitutional law library access policy is an attempt to save costs from litigating lawsuits.
2. Denial of a Common Over-the-Counter (OTC) Remedy
Plaintiff's "Denial of a Common Over-the-Counter (OTC) Remedy" claim names Margaret Mims, John/Jane Doe Jail Commander, and Laird as defendants. Plaintiff also indicates that he wishes to amend his complaint at a later date to state claims against unidentified FCJ medical services officials.
Plaintiff alleges that he arrived at FCJ on August 19, 2008 with "very bad problems with his digestive irregularity." (Am. Compl. 25, ECF No. 25.) On August 28, 2008, Plaintiff bought an over-the-counter laxative for his medical problem. On August 29, 2008, Plaintiff filed a sick call request because he was experiencing rectal pain and bleeding. Plaintiff claims that his medical problems were related to surgery he received in 2004 to remove an "anal fistula." (Am. Compl. 25, ECF No. 25.)
Plaintiff continued to file sick call requests on a daily basis. On September 4, 2008, Plaintiff filed a grievance about his medical problems. The grievance was denied on September 8, 2008.
On September 4, 2008, Plaintiff attempted to buy milk of magnesia from the commissary. However, the milk of magnesia was out of stock and Plaintiff began complaining to nurses that he was denied a common over-the-counter medication. Plaintiff continued to suffer "sharp cramps, bloating, rectal bleeding, and loss of sleep in his extreme discomfort." (Am. Compl. 27, ECF No. 25.) On September 7, 2008, an unknown correctional officer took Plaintiff to the front of the sick call line and told the nurse that Plaintiff had not had a bowel movement in ten days. The nurse gave Plaintiff four doses of milk of magnesia and warm water. Plaintiff was then sent back to his housing unit "where relief from his very distressing condition followed shortly thereafter." (Am. Compl. 29, ECF No. 25.)
Plaintiff complains that Defendant Laird dismissed Plaintiff's administrative grievances requesting medical care because Plaintiff's condition was "mere constipation." (Am. Compl. 29, ECF No. 25.)
3. Correctional Officer Harassment/Retaliation
Plaintiff's "Correctional Officer Harassment/Retaliation" claim names Blathers, Cartier, Cunha, and Osborne as defendants.
Plaintiff claims that Defendants Cartier, Osborne, and Cunha denied Plaintiff's requests for legal materials and legal services. Plaintiff requested grievance forms and postage materials but the officers refused to provide Plaintiff with those materials. Plaintiff claims that the officers denied Plaintiff's requests in retaliation for Plaintiff's litigious behavior. Plaintiff also complains that the officers were slow to respond to grievances and denied the grievances when they finally addressed them. Plaintiff claims that his access to the FCJ grievance process was denied on five occasions by these officers.
Plaintiff claims that on February 8, 2009, he filed a grievance complaining that he feared for his safety because he was housed with "a court-certified criminally insane madman in 24/7 punitive medical lockdown." (Am. Compl. 42, ECF No. 25.) Instead of addressing Plaintiff's grievance, Defendants Cunha and Osborne "started talking with the violent man standing right there" and "[i]t was obvious to anyone that these Defendants were placing Plaintiff in danger." (Am. Compl. 42-43, ECF No. 25.) Plaintiff claims that Defendants were "kiting him out," meaning that they were attempting to label Plaintiff as a snitch so the "criminally insane" cell mate would attack him.
Plaintiff attempts to hold Defendant Blathers liable for the alleged harassment Plaintiff experienced at the hands of other officers. Plaintiff alleges that Blathers is a supervisory official who ignored Plaintiff's written requests to talk to her about staff misconduct.
4. Retaliatory Abuse of the Disciplinary Process
Plaintiff's "Retaliatory Abuse of the Disciplinary Process" claim names Blathers, Nichols, Cartier, Cunha, and Osborne as defendants. Plaintiff also alleges that an unidentified classification officer is also liable for disciplining Plaintiff.
On February 15, 2009, Cartier sent Osborne and Cunha to trash Plaintiff's cell. While they were trashing Plaintiff's cell, they found a toothpick that Plaintiff had made. Plaintiff contends that he was forced to make the toothpick because the commissary does not sell dental floss. The toothpick was made from a staple and a pencil. Cunha served Plaintiff with a "serious major offense" for possessing a weapon.
On February 17, 2009, Plaintiff attended a disciplinary hearing conducted by Defendant Nichols. Plaintiff admitted to the facts of the case. Nichols stated that he did not consider the case to be a "serious major offense," but found Plaintiff guilty of a minor offense. Plaintiff agreed with Nichols' findings but nonetheless contends that Nichols violated Plaintiff's due process rights by failing to provide Plaintiff with a paper copy of the findings and punishment imposed for the offense.
On February 23, 2009, Plaintiff was scheduled for a court appearance. Plaintiff contends that as he was walking out, Osborne, Cunha and Blathers gave Plaintiff dirty looks. Osborne verbally noted that Plaintiff was "off to see Judge Wanger" in a mocking manner. When Plaintiff returned from court, his housing unit was trashed. Cartier then informed Plaintiff that he was moving. Plaintiff complains that Cartier repeatedly rushed Plaintiff as he was cleaning up his trashed property in preparation for the move. Plaintiff claims that Blathers conspired with the other Defendants to move Plaintiff to disciplinary housing because Blathers thought that Plaintiff had told Judge Wanger about civil rights violations against her staff when Plaintiff had appeared in Court. Plaintiff contends that Blathers' actions were adverse because he was moved to the coldest floor in FCJ. ///
Plaintiff's "Mis-Classification" claim names Shumate and Oliver as defendants.
Plaintiff alleges that he filed a grievance on August 20, 2008 complaining that he was forced to climb stairs to use the restroom, shower, eat meals, access mail service, or leave the housing area. Plaintiff claims that he suffers from post-surgical osteoarthritis and was not given access to his medication. As a result, Plaintiff suffered pain from being forced to climb the stairs.
On September 1, 2008, Plaintiff was seen by a registered nurse who recommended that Plaintiff be seen by a physician because his right knee was swollen. Plaintiff was never examined by a physician. On September 2, 2008, Defendant Shumate moved Plaintiff to the fifth floor of the jail, despite the fact that Plaintiff's knee had swollen to twice its normal size. Plaintiff contends that the "Classification Defendants"*fn3 moved Plaintiff to the Fifth floor in retaliation for filing a grievance about his knee problems.
Plaintiff also complains that he was suffering from locked bowels and rectal bleeding during that period. Plaintiff was unable to file a grievance about his medical issues because correctional officers would not provide Plaintiff with the necessary paperwork. When Plaintiff received the necessary paperwork, he filed a grievance and sent it to John/Jane Doe Jail Commander. On September 12, 2008, Plaintiff was called into the classification office by Shumate. Shumate was visibly irate. Plaintiff was then moved to the fourth floor. Plaintiff complains that he was not allowed to sign off on his grievance.
On September 12, 2008, Defendant Oliver attempted to house Plaintiff in a medical lockdown cell with a violent murderer. Although Plaintiff was not housed with the violent murderer, Plaintiff complains that the attempt demonstrates that Defendants "were clearly moving swiftly to get some violence into the Disabled American Plaintiff's life." (Am. Compl. 66, ECF No. 25.) On September 28, 2008, Defendant Shumate housed Plaintiff in a medical lockdown cell with an inmate that had been fighting "in the North Jail." (Am. Compl. 66, ECF No. 25.) Plaintiff alleges that Shumate knew that the inmate did not get along with others because Shumate denied the inmate's request to return to North Jail on those grounds. Plaintiff claims that he was "walking on eggshells" because he was forced to remain in lockdown with the violent inmate and he was disabled and unable to defend himself.
On October 19, 2008, Plaintiff was housed with a new cell mate that also had violent tendencies. On December 9, 2008, Plaintiff wrote a letter to Shumate complaining about being housed with gang members and requested to be reclassified. Plaintiff's request was denied on December 12, 2008. Plaintiff claims that the FCJ inmate handbook bestows upon Plaintiff a right to a classification review. Plaintiff contends that his right to a classification review was denied when his requests were denied. Plaintiff was then housed with another violent inmate on February 2, 2009. Plaintiff contends that Defendant Oliver deliberately placed the violent inmate in Plaintiff's cell to show Plaintiff what "real jail" looked like.
6. Unconstitutionally Cold Jail Temperatures
Plaintiff's "Unconstitutionally Cold Jail Temperatures" claim names Margaret Mims, John/Jane Doe Jail Commander, Blathers, Dawson, and Calvert as defendants.
Plaintiff claims that Defendant Mims is "pip[ing] in" cold air from outside into the jail through the air vents. (Am. Compl. 72, ECF No. 25.) Plaintiff filed grievances about the cold temperatures and requested extra clothing. Plaintiff contends that Mims and John/Jane Doe Jail Commander refused to issue inmates long underwear or beanies. Plaintiff spoke with a correctional corporal who told Plaintiff that he had to make his request for extra clothing through medical. Plaintiff contends that medical personnel told Plaintiff to request extra clothing through custody. Plaintiff complains that he was getting a runaround.
On November 29, 2008, Plaintiff filed a grievance requesting extra clothing that was denied by John/Jane Doe Jail Commander on December 12, 2008. Plaintiff contends that the cold temperatures aggravated his severe osteoarthritis and that he noted these issues in his grievances.
On December 2, 2008, Plaintiff was interviewed by Defendants Dawson and Calvert about his grievances. Calvert spoke to Plaintiff about the maintenance issues in FCJ and acknowledged a number of other grievances about the cold temperatures filed by other inmates. Calvert asked Plaintiff to sign off on the grievance and told Plaintiff that the issue would be resolved ...