United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel. Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983, and has
requested leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. This proceeding was referred to this
court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in
forma pauperis is granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff’s trust account and forward it to
the Clerk of the Court. Thereafter, plaintiff will be
obligated to make monthly payments of twenty percent of the
preceding month’s income credited to plaintiff’s
prison trust account. These payments will be forwarded by the
appropriate agency to the Clerk of the Court each time the
amount in plaintiff’s account exceeds $10.00, until the
filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous when it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989), superseded by statute as stated in Lopez v.
Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
“requires only ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,
’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.’” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). In order to survive dismissal for
failure to state a claim, a complaint must contain more than
“a formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. However, “[s]pecific facts
are not necessary; the statement [of facts] need only
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Bell Atlantic Corp., 550 U.S. at 555)
(citations and internal quotations marks omitted). In
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
id., and construe the pleading in the light most
favorable to the plaintiff. Scheuer v. Rhodes, 416
U.S. 232, 236 (1974), overruled on other grounds,
Davis v. Scherer, 468 U.S. 183 (1984).
as defendants are Sacramento County, Sacramento County
Sheriff Scott Jones, Sergeant Silva and Deputy Daniele.
Plaintiff alleges that the alleged deprivations occurred at
the Sacramento County Jail where he was housed as a pretrial
alleges that on November 23, 2016, at approximately 1:30
a.m., defendant Daniele told plaintiff that he was being
moved. (ECF No. 1 at 5.) Plaintiff alleges that the order to
move was made in retaliation for plaintiff filing a lawsuit
in this court, 2:16-cv-2549 JAM AC P, in which plaintiff
alleged that defendant Daniele repeatedly opened
plaintiff’s mail. (Id.) Plaintiff also claimed
that defendant Daniele ordered his move in retaliation for
plaintiff assisting his cellmate, inmate Rivera, with filing
grievances against defendant Daniele. (Id.)
Plaintiff alleges that at the time of the move, defendant
Daniele told inmate Rivera, “your grievances are not
grievable, your cellie Kakowski is a problem and I’m
gonna deal with him. He’s a snitch!”
alleges that he was moved to a cell with a 200-pound,
homosexual who made repeated sexual advances toward
plaintiff. (Id. at 6.) Plaintiff alleges that the
night shift ignored plaintiff’s calls on the emergency
button. (Id.) Plaintiff alleges that he was placed
in that cell because defendant Daniele hoped that plaintiff
would be assaulted. (Id.)
next day, plaintiff was moved to a cell on the third floor
that contained no hot water, the air conditioning was on full
blast despite it being winter, and the cold water trickled.
alleges that on November 27, 2016, defendant Silva pulled
plaintiff out to discuss plaintiff’s grievance
regarding being placed in the cell with the inmate who made
sexual advances. (Id. at 7.) Defendant Silva told
plaintiff that he authorized Deputy Green to make this move
because plaintiff was having problems with defendant Daniele.
(Id.) Plaintiff told defendant Silva that he had no
problems with defendant Daniele until she launched a
harassment campaign on plaintiff. (Id.) Plaintiff
asked defendant Silva why he put plaintiff in a cell with an
inmate who threatened his safety. (Id.) Defendant
Silva responded, “This is jail …I can do
anything I damn well please.” (Id.) Defendant
Silva told plaintiff that because he claimed that the inmate
had sexually harassed him, he had no choice but to move
alleges that on November 29, 2016, Deputy Daw “pulled
him out” from the cell that had no hot water, etc.
(Id. at 8.) Deputy Daw told plaintiff that
classification was not responsible for his recent bed moves
and apologized. (Id.) Deputy Daw asked plaintiff if
he was o.k. (Id.) Deputy Daw told plaintiff that
defendants Silva and Daniele had made the call to put him in
the cell with no hot water, etc. (Id.)
goes on to describe other allegedly unconstitutional
conditions he suffered as a result of being housed in the
third floor cell without hot water, etc. Plaintiff alleges
that the water in his cell worked when the plumber arrived.
(Id. at 9.) Once the plumber left, the water turned
off again, as if someone flipped a switch. (Id.)
Plaintiff alleges that he was offered outdoor exercise time
on only two occasions. (Id.) On both occasions, it
was cold and raining. (Id.) Plaintiff also alleges
that he was denied access to telephones to consult with his
February 18, 2017, plaintiff was moved back to the fourth
floor. (Id. at 10.) On the fourth floor,
plaintiff and defendant Daniele were again in contact.
(Id.) Plaintiff alleges that he was removed from
these conditions after the Prison Law Office got involved.
pretrial detainee challenges conditions of his confinement,
the proper inquiry is whether the conditions amount to
punishment in violation of the Due Process Clause of the
Fourteenth Amendment. See Bell v. Wolfish, 441 U.S.
520, 535 & n.16 (1979). Jail officials may be liable
under the Fourteenth Amendment for failure to protect a
pretrial detainee from a substantial risk to his health or
safety. To state a ...