1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 23-cv-2099-MMA (BLM)

RAUL SANTANA SALGADO,

12

CDCR #F-57811, ORDER:

13 Plaintiff, (1) GRANTING MOTION TO 14 v. PROCEED IN FORMA PAUPERIS 15 ROBERTO ARIAS, Warden, JOHN [Doc. No 2]; and 16 DOE,

17 Defendants. (2) DISMISSING COMPLAINT FOR

FAILURE TO STATE A CLAIM

18

PURSUANT TO 28 U.S.C.

19 §§ 1915(e)(2)(B) AND 1915A(b

20 21 I. INTRODUCTION 22 Plaintiff, Raul Santana Salgado (“Plaintiff” or “Salgado”), an inmate at Calipatria 23 State Prison (“CAL”) and proceeding pro se, has filed a civil action pursuant to 42 U.S.C. 24 § 1983, along with a Motion to Proceed In Forma Pauperis (“IFP”). Doc. Nos. 1, 2. 25 Salgado alleges his Eighth Amendment right to be free or cruel and unusual punishment 26 has been violated by Defendants’ failure to repair a leak in his cell. See Doc. No. 1 at 3– 27 4. 1 For the reasons discussed below, the Court GRANTS Plaintiff’s IFP motion and 2 DISMISSES the Complaint without prejudice and with leave to amend. 3 II. MOTION TO PROCEED IFP 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States prior to December 1, 2023, except an application for writ of habeas corpus, 6 must pay a filing fee of $402.1 See 28 U.S.C. § 1914(a). A party may initiate a civil 7 action without prepaying the required filing fee if the Court grants leave to proceed IFP 8 based on indigency. 28 U.S.C. § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 9 (9th Cir. 2007). 10 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit 11 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 12 Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a “certified 13 copy of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . . 14 the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2). From the certified trust account statement, the Court assesses an initial 16 payment of 20% of (a) the average monthly deposits in the account for the past six 17 months, or (b) the average monthly balance in the account for the past six months, 18 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. §§ 1915(b)(1) & 19 (4). Prisoners who proceed IFP must repay the entire fee in installments regardless of 20 whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, 21 577 U.S. 82, 84 (2016). 22 In support of his IFP Motion, Salgado has provided a copy of his trust account 23

24 1 In cases filed before December 1, 2023, civil litigants must pay an additional 25 administrative fee of $52 in addition to the $350 statutory fee. See 28 U.S.C. § 1914(a) 26 (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The $52 administrative fee does not apply to persons granted leave to proceed 27 IFP. Id. 1 statement. See Doc. No. 2 at 7–9. During the months prior to filing suit, he had an 2 average monthly balance of $247.71, average monthly deposits of $231.13, and an 3 available account balance of $0.00. at the time he filed suit. Id. at 4, 7. Accordingly, 4 Salgado’s IFP motion is GRANTED. While the Court assesses no initial payment, 5 Plaintiff will be required to pay the full $350 filing fee in installments to be collected 6 from his trust account as set forth in 28 U.S.C. § 1915(b)(2). 7 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e) AND § 1915A(b) 8 A. Legal Standards 9 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a 10 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 11 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 12 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 13 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 14 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 15 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a 16 claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires 17 that a complaint to “contain sufficient factual matter . . . to state a claim to relief that is 18 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 19 marks omitted). While detailed factual allegations are not required, “[t]hreadbare recitals 20 of the elements of a cause of action, supported by mere conclusory statements, do not 21 suffice” to state a claim. Id. The “mere possibility of misconduct” or “unadorned, the 22 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 23 standard. Id. 24 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 25 acting under color of state law, violate federal constitutional or statutory rights.” 26 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). To state a claim under § 1983, 27 a plaintiff must plausibly allege “both (1) deprivation of a right secured by the 1 Constitution and laws of the United States, and (2) that the deprivation was committed by 2 a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 3 1138 (9th Cir. 2012). 4 B. Plaintiff’s Allegations 5 In his Complaint, Plaintiff states that his cell at CAL leaks “every time it rains.” 6 Doc. No. 1 at 3. He contends “maintenance has been notified of the cells leaking in 7 building D3 [but they] have done nothing to [fix it].” Id. Salgado alleges that on October 8 15, 2022, several personal items of “sentimental value,” including family photos, legal 9 papers and reading materials, were destroyed due to the leak in his cell. Id. While 10 “maintenance has had a work order put in” to make repairs, they “have done nothing to 11 fix the leaking cells.” Another leak occurred on September 1, 2023. Id. at 4. 12 Plaintiff alleges his Eighth Amendment rights have been violated by the conditions 13 caused by the leak and names two defendants: CAL Warden Arias and an “Unknown 14 John Doe,” whom he describes as a CAL maintenance worker. Id. at 2–4. Salgado seeks 15 $60,000 in damages. Id. at 7. 16 C. Discussion 17 The Eighth Amendment protects prisoners from inhumane methods of punishment 18 and from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); 19 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). As such, prison officials 20 have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 21 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th 22 Cir. 2000) (quotation marks and citations omitted). 23 To establish a violation of the Eighth Amendment, the prisoner must “show that 24 the officials acted with deliberate indifference.” Labatad v. Corrs. Corp. of Amer., 714 25 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. Cty. of Washoe, 290 F.3d 1175, 1187 26 (9th Cir. 2002)). The deliberate indifference standard involves both an objective and a 27 subjective prong. First, the alleged deprivation must be, in objective terms, “sufficiently 1 serious.” Farmer, 511 U.S. at 834. Second, subjectively, the prison official must “know 2 of and disregard an excessive risk to inmate health or safety.” Id. at 837; Anderson v. Cty. 3 of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). 4 First, Salgado has not adequately alleged the conditions created by the purported 5 leak were “sufficiently serious” to support an Eighth Amendment claim. The Constitution 6 “does not mandate comfortable prisons.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). 7 Objectively, “extreme deprivations are required to make out a conditions-of-confinement 8 claim” and “only those deprivations denying the minimal civilized measure of life’s 9 necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” 10 Hudson v. McMillian, 503 U.S. 1, 9 (1992). “The circumstances, nature, and duration of a 11 deprivation of [] necessities must be considered in determining whether a constitutional 12 violation has occurred.” Johnson, 217 F.3d at 731; see also Hearns v. Terhune, 413 F.3d 13 1036, 1042 (9th Cir. 2005) (stating that when considering the conditions of confinement, 14 courts should consider the amount of time to which the prisoner was subjected to the 15 condition). The more basic the need, the shorter the time it can be withheld. Johnson, 217 16 F.3d at 731. 17 Here, however, Salgado merely states his cell leaks “every time it rains” and that 18 some of his personal property was damaged by the leaky ceiling on one occasion. Doc. 19 No. 1 at 3. This alone is insufficient to satisfy the objective prong. For instance, Salgado 20 does not offer any facts regarding the frequency of the leak or its severity. He describes 21 only two occasions when his cell leaked, occurring over a year apart. Id. at 3–4. And he 22 does not describe how a leaking ceiling alone presents a risk to his health or safety. 23 Without specific facts describing the circumstances, nature, severity, and duration of the 24 leak, it is impossible to determine whether the risk posed by it is “grave enough” to 25 constitute cruel and unusual punishment. See Johnson, 217 F.3d at 731; see also 26 Washington v. Atchley, No. 21-cv-01584-JD, 2021 WL 2207428, at *2 (N.D. Cal. June 1, 27 2021) (“To state a cognizable claim for relief, there must be a confluence of conditions 1 / / / 2 such that the flooded cell posed a serious, unavoidable threat to plaintiff’s safety.”). 3 Plaintiff’s conclusory allegations are insufficient. See Iqbal, 556 U.S. at 678. 4 In addition, Salgado fails to plausibly allege Defendants knew of, and disregard, an 5 “excessive risk to [his] health or safety.” See Farmer, 511 U.S. at 837. As for Plaintiff’s 6 claim against Warden Arias, government officials are not liable under § 1983 for their 7 subordinates’ unconstitutional conduct based on respondeat superior. Instead, Salgado 8 must plead that “each Government-official defendant, through the official’s own 9 individual actions, has violated the Constitution.” See Iqbal, 556 U.S. at 676. Here, 10 Plaintiff alleges no specific facts as to Arias’ knowledge of the leak, and no facts showing 11 a causal connection between an individual act or omission by Arias, and the purported 12 constitutional violation. See Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (stating 13 that to find a supervisor under § 1983, a plaintiff must establish either: “(1) his or her 14 personal involvement in the constitutional deprivation, or (2) a sufficient causal 15 connection between the supervisor’s wrongful conduct and the constitutional violation”). 16 Salgado also fails to plausibly allege Defendant Doe, whom Salgado describes as a 17 “maintenance worker,”2 was subjectively aware of an excessive risk to his health or 18 safety and consciously disregarded it. Farmer, 511 U.S. at 837, 839. In his Complaint, 19 Salgado states that “maintenance” was “notified of the cells leaking in building D3.” 20 21 22 2 “A plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but he must allege specific facts showing how each particular doe 23 defendant violated his rights.” Cuda v. Employees/Contractors/Agents at or OCCC, 2019 24 WL 2062945, at *3–4 (D. Haw. May 9, 2019); see also Keavney v. County of San Diego, No. 3:19-cv-01947-AJB-BGS, 2020 WL 4192286, at *4‒5 (S.D. Cal. 2020) (noting that 25 while Doe pleading is neither authorized nor specifically barred by the Federal Rules, “a 26 complaint using fictitious names for unidentified defendants still requires ‘specific facts showing how each particular Doe Defendant violated his rights.”). 27 1 Doc. No. 1 at 3. He further alleges that “maintenance has had work order put in” but have 2 thus far “done nothing to repair the leaking cells.” Id. at 4. But Salgado fails to allege 3 specific facts regarding Doe’s individual, personal knowledge of the leak or the work 4 order. Nor does he plausibly allege facts to show Doe was subjectively aware the leak 5 posed a “substantial risk of serious harm.” Famer, 511 U.S. at 837. Moreover, to the 6 extent the Salgado acknowledges repairs were ordered but delayed, this amounts to 7 negligence at worst, and not a constitutional violation. See Estelle v. Gamble, 429 U.S. 8 97, 104 (1976) (establishing that deliberate indifference requires more than negligence); 9 see also, e.g., Shannon v. Vannoy, 2016 WL 1559583, *1 (M.D. La. Apr. 18, 2016) 10 (granting defendants’ motion to dismiss where plaintiff claimed defendants were 11 deliberately indifferent to a known safety risk where they knew of but failed to repair a 12 hole in the ceiling of his cell that leaked every time it rained and finding that plaintiff’s 13 claim was nothing more than a negligence claim and not cognizable under § 1983). 14 Based on the foregoing, the Court finds Plaintiff has failed to state an Eighth 15 Amendment claim against Defendants and therefore the case is DISMISSED without 16 prejudice. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678; 17 Lopez, 203 F.3d at 1126–27. 18 D. Leave to Amend 19 Given Plaintiff’s pro se status, the Court GRANTS him an opportunity to amend 20 his complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district 21 court should not dismiss a pro se complaint without leave to amend [pursuant to 28 22 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the 23 complaint could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 24 1212 (9th Cir. 2012)). 25 / / / 26 / / / 27 / / / 1 / / / 2 IV. CONCLUSION AND ORDER 3 For the reasons set forth above, the Court hereby: 4 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 5 (Doc. No. 2). 6 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 7 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 8 payments from the account in an amount equal to twenty percent (20%) of the preceding 9 month’s income and forward payments to the Clerk of the Court each time the amount in 10 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 11 MUST CLEARLY IDENTIFY THE NAME AND CASE NUMBER ASSIGNED TO 12 THIS ACTION. 13 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 14 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by 15 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 16 4. DISMISSES the Complaint sua sponte for failure to state a claim pursuant 17 to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). 18 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 19 which to file an Amended Complaint which cures the deficiencies of pleading noted in 20 this Order. Plaintiff’s Amended Complaint must be complete by itself without reference 21 to any previous version of his pleading; Defendants not named and any claims not re- 22 alleged in the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; 23 Hal Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 24 dismissed with leave to amend which are not re-alleged in an amended pleading may be 25 “considered waived if not repled”); Roach Studios, Inc. v. Richard Feiner & Co., Inc., 26 896 F.2d 1542, 1546 (9th Cir. 1989). If Plaintiff fails to timely amend, the Court will 27 enter a final Order dismissing this civil action. See Lira v. Herrera, 427 F.3d 1164, 1169 1 || (9th Cir. 2005) (‘If a plaintiff does not take advantage of the opportunity to fix his 2 ||complaint, a district court may convert the dismissal of the complaint into dismissal of 3 || the entire action.”). 4 IT IS SO ORDERED. 5 || Dated: January 29, 2024

7 HON. MICHAEL M. ELLO United States District Judge

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