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Kakowski v. County of Sacramento

United States District Court, E.D. California

September 20, 2019

BRIAN KAKOWSKI, Plaintiff,
v.
COUNTY OF SACRAMENTO, et al., Defendants.

          ORDER

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff 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 302.

         Plaintiff 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.

         Plaintiff 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).

         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).

         A claim 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.

         Rule 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).

         II. Plaintiff’s Claims

         Named 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 detainee.

         Plaintiff 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!” (Id.)

         Plaintiff 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.)

         The 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. (Id.)

         Plaintiff 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 plaintiff. (Id.)

         Plaintiff 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.)

         Plaintiff 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 investigator. (Id.)

         On February 18, 2017, plaintiff was moved back to the fourth floor.[1] (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. (Id.)

         III. Discussion

         When a 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 ...


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