1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 DANIEL ROBERT FRARY, Case No. 22-cv-02579-WHO (PR)

Plaintiff, 5

ORDER DISMISSING THE

v. 6 COMPLAINT WITH LEAVE TO

AMEND

7 GREGORY J. AHERN,

Defendant. 8

9 10 INTRODUCTION 11 Plaintiff Daniel Robert Frary’s 42 U.S.C. § 1983 complaint is DISMISSED with 12 leave to file an amended complaint on or before October 10, 2022. He names only one 13 defendant, Sheriff Gregory Ahern, but fails to state specific facts establishing that Ahern is 14 liable. His amended complaint must state specific facts that tie a defendant to an alleged 15 wrong. Failure to file a proper amended complaint by October 10, 2022, or a failure to 16 comply in every respect with the instructions given in this order, may result in the 17 dismissal of this suit and the entry of judgment in favor of defendant. 18 DISCUSSION 19 A. Standard of Review 20 A federal court must conduct a preliminary screening in any case in which a 21 prisoner seeks redress from a governmental entity or officer or employee of a 22 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 23 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 24 upon which relief may be granted or seek monetary relief from a defendant who is immune 25 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 26 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 27 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 1 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 2 plausibility when the plaintiff pleads factual content that allows the court to draw the 3 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 4 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 5 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 6 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 7 (9th Cir. 1994). 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 9 elements: (1) that a right secured by the Constitution or laws of the United States was 10 violated, and (2) that the alleged violation was committed by a person acting under the 11 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 12 B. Legal Claims 13 Frary’s allegations in full are as follows: “I was placed in upper A-3 pod on 14 February 2, 2022[.] The bathroom and the shower have a heavy infestation of [b]lack 15 mold. I have Deputy Landrum as a witness.” (Compl., Dkt. No. 1 at 2.) Sheriff Ahern is 16 the sole defendant Frary names. 17 This is insufficient to state any claim for relief because Frary has not linked Ahern 18 to any alleged wrong and he cannot be held liable simply because he is the sheriff. There 19 is no respondeat superior liability under § 1983, see Taylor v. List, 880 F.2d 1040, 1045 20 (9th Cir. 1989), which means that a person is not automatically held responsible simply 21 because he or she is a supervisor of an employee who commits a wrong. It is not enough 22 that the supervisor merely has a supervisory relationship over the defendants; the plaintiff 23 must show that the supervisor “participated in or directed the violations, or knew of the 24 violations and failed to act to prevent them.” Id. Furthermore, supervisor defendants are 25 entitled to qualified immunity where the allegations against them are simply “bald” or 26 “conclusory” because such allegations do not “plausibly” establish the supervisors’ 27 personal involvement in their subordinates’ constitutional wrong. Iqbal, 556 U.S. at 675- 1 U.S.C. § 1983 unless they were integral participants in the unlawful conduct. Keates v. 2 Koile, 883 F.3d 1228, 1241 (9th Cir. 2018). There is nothing in the complaint that 3 establishes Ahern’s personal knowledge or involvement. 4 Frary is encouraged to consider the following when amending his complaint: “A 5 person deprives another ‘of a constitutional right,’ within the meaning of section 1983, if 6 he does an affirmative act, participates in another’s affirmative acts, or omits to perform an 7 act which he is legally required to do that causes the deprivation of which [the plaintiff 8 complains].” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoting Johnson v. 9 Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). The inquiry into causation is individualized and 10 focuses on the duties and responsibilities of each individual defendant whose acts or 11 omissions are alleged to have caused a constitutional deprivation. Id. Frary may wish to 12 focus his allegations on the persons he had direct contact with, such as staff members who 13 are responsible for cleaning the cells or who provide inmates with cleaning materials. He 14 In addition, Frary has not alleged why or how the presence of the mold constitutes 15 an Eighth Amendment violation. The treatment a prisoner receives in prison and the 16 conditions under which he is confined are subject to scrutiny under the Eighth 17 Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). Substantial deprivations 18 of shelter, food, drinking water or sanitation can be sufficiently serious to be actionable 19 under the Eighth Amendment. Johnson v. Lewis, 217 F.3d 726, 732-733 (9th Cir. 2000); 20 see Taylor v. Riojas, et al., 141 S. Ct. 52, 53-54 (2020) (2020) (per curiam) (four days in 21 cell covered “nearly floor to ceiling, in massive amounts of feces: all over the floor, the 22 ceiling, the window, the walls, and even packed inside the water faucet,” followed by two 23 days in “frigidly cold cell” with sewage on the floor and no bed or clothes such that 24 plaintiff was “left to sleep naked in sewage” violates the Eighth Amendment); Hearns v. 25 Terhune, 413 F.3d 1036, 1041-42 (9th Cir. 2005) (allegations of serious health hazards in 26 disciplinary segregation yard for a period of nine months, including toilets that did not 27 work, sinks that were rusted and stagnant pools of water infested with insects, and a lack of 1 to state a claim of unconstitutional prison conditions); Anderson v. County of Kern, 45 2 || F.3d 1310, 1314 (9th Cir. 1995) (“[A] lack of sanitation that is severe or prolonged can 3 || constitute an infliction of pain within the meaning of the Eighth Amendment.”), amended, 4 || 75 F.3d 448 (9th Cir. 1995). But while the Constitution does not permit inhumane prisons, 5 || it does not mandate comfortable ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994). 6 || The Complaint needs more facts to support that the existence of black mold constitutes a 7 || substantial deprivation actionable under the Eighth Amendment. 8 CONCLUSION 9 The complaint is DISMISSED with leave to file an amended complaint on or before 10 || October 10, 2022. The amended complaint must include the caption and civil case 11 number used in this order (22-02579 WHO (PR)) and the words FIRST AMENDED 2 COMPLAINT must be written on the first page. The amended complaint must also appear 5 13 || on this Court’s form, a copy of which will be sent to him. Because an amended complaint 14 || completely replaces the previous complaints, plaintiff must include in his first amended 15 || complaint all the claims he wishes to present and all of the defendants he wishes to sue. a 16 || See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate 3 17 || material from any prior complaints by reference. Failure to file an amended complaint in 18 || accordance with this order may in dismissal of this action under Federal Rule of Civil 19 || Procedure 41(b) for failure to prosecute. 20 It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 21 || informed of any change of address by filing a separate paper with the clerk headed “Notice 22 || of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask 23 || for an extension of time to do so. Failure to comply may result in the dismissal of this 24 || action pursuant to Federal Rule of Civil Procedure 41(b). 25 IT IS SO ORDERED. 26 Dated: September 1, 2022 . 27 Yc .

ILLIAM H. ORRICK

28 United States District Judge