McClendon v. Sec'y of C DCR

• Decision Date: 26 September 2022
• Docket Number: 2:21-cv-2088 AC P
• Parties: DENNIS E. MCCLENDON, Plaintiff, v. SECRETARY OF CDCR, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

DENNIS E. MCCLENDON, Plaintiff,
v.
SECRETARY OF CDCR, et al., Defendants.

No. 2:21-cv-2088 AC P

United States District Court, E.D. California

September 26, 2022

ORDER AND FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 1, 5. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Also before this court is plaintiff's request for a preliminary injunction related to his claim involving indecent exposure identifiers, and that a scheduling order issue allowing him to identify defendants. See generally ECF No. 1 at 1, 19.

For the reasons stated below, plaintiff's application to proceed in forma pauperis will be granted, and plaintiff will be directed to file a first amended complaint. In addition, plaintiff's request that a scheduling order issue will be denied. It will also be recommended that plaintiff's request for injunctive relief be denied.

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I. APPLICATION TO PROCEED IN FORMA PAUPERIS

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). ECF No. 5. Accordingly, the request to proceed in forma pauperis will be 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 Court. Thereafter, plaintiff will be obligated for 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 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).

II. SCREENING REQUIREMENT

A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) (brackets added); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal theories' or whose ‘factual contentions are clearly baseless.'” Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (brackets added) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations omitted).

“Federal Rule of Civil Procedure 8(a)(2) 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

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680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). 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.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets added) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, see, e.g., Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor, see Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

III. THE COMPLAINT

Plaintiff names the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) as well as five employees at California Medical Facility (“CMF”) and five employees at California Health Care Facility (“CHCF”) as defendants in this action.^[1] ECF No. 1 at 1-2. He contends that defendants violated his Eighth Amendment rights when, after plaintiff was written up and found guilty of exhibitionism, defendants: (1) forced him to be identified as an IEX (indecent exposure) inmate in the general population^[2] and did not protect him, which led to him being attacked, and (2) failed to provide him with the mental health

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treatment that he needed to address his exhibitionism, suicidal behavior, and depression. Id. at 416.

Plaintiff claims that defendants' actions and/or inaction led to the attack, which left him with a black eye and a bloody nose. ECF No. 1 at 4. He states that he is constantly threatened by other inmates who have “zero tolerance” for IEX classified inmates.^[3] Id. at 14. Plaintiff also alleges that the IEX identification and placement in the general population have led to him being fearful of leaving his cell, of showering, and of attending individual therapy. Id. at 11, 16. Finally, plaintiff claims that defendants forcing him to be identified as an IEX inmate has interfered with his ability to get treatment for his mental health problems, which in turn, has increased his depression, his urges to self-harm, and his suicidal ideation. Id. at 14, 16.

Plaintiff asks the court to issue a preliminary injunction that requires the CDCR to repeal its IEX policy. ECF No. 1 at 19. He also asks the court to “issue a scheduling order to permit [him] to identify and name unidentified defendants.” Id. (brackets added).

IV. DISCUSSION

A. General Deficiencies in Complaint

As a threshold matter, plaintiff's complaint fails to state a claim upon which relief can be granted. This is because neither of the two claims identifies with sufficient specificity which defendants took which specific actions that plaintiff alleges violated his constitutional rights.^[4]See generally ECF No. 1 at 4-16. This fact alone is sufficient to require plaintiff to amend the complaint.

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In addition, the court notes that at the time plaintiff filed the instant complaint, he was not housed at CMF, nor is he currently housed there. CHCF is where he is currently being held. See ECF No. 1 at 1. Therefore, to the extent that the complaint also requests that CMF defendants be enjoined from identifying plaintiff as an IEX prisoner and not to place him in the general population (see id. at 7-10), the motion for injunctive relief must be denied. “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974); Civil Beat Law Center for the Public Interest, Inc. v. Centers for Disease Control & Prevention, 929 F.3d 1079, 1086 (9th Cir. 2019) (citing Littleton). Despite these deficiencies, the court will address the other, potentially curable, deficiencies in each of plaintiff's claims so that they can be avoided on amendment.

ORDER

B. Claim One: Indecent Exposure Classification; Failure to Protect and/or Threat to Safety

1. Plaintiff's Allegations

In Claim One, plaintiff alleges that defendants classifying him as an IEX inmate and requiring that he be identified as such within the general prison population led to him being attacked and injured in violation of his Eighth Amendment right to safety. ECF No. 1 at 4, 12-13. He further alleges that inmates diagnosed with exhibitionism are “predisposed to physical and sexual assault,” and that “to punish them . . . with discipline under ‘[prison rules and regulations]' while in a general population setting” violates their Eighth and Fourteenth Amendment rights. Id. at 5 (brackets added). The IEX classification and general population placement, plaintiff argues, “posed an imminent risk to his overall welfare” because in prison, the worst label to have is that of “sex offender.” Id. at 7. As a result, plaintiff alleges, no matter where he goes, he is told he will be stabbed because he is a “sexual predator.” Id.

Plaintiff also states that despite CMF's Chief Deputy Warden D. Hurtado having determined that “staff actions were not consistent with the guidelines set forth in [the CDCR's Department Operations Manual] [S]ection 52100.3,” and that “staff violated policy” (ECF No. 1 at 8) (brackets added), CDCR staff members at both CMF and CHCF continued to make plaintiff

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wear the IEX jumpsuit and left the IEX identifiers on his cell window and door (id. at 8-13). They also “looked the other way when he was threatened” by other inmates. Id. at 8-9. As a result, plaintiff...