United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MICHAEL IZELL SEALS, 

Plaintiff,

 v.

JERRY CARDOZA, et al.,

Defendants. 

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No. C 05-1863 SBA (PR)

ORDER OF DISMISSAL WITH

LEAVE TO AMEND

BACKGROUND

Plaintiff Michael Izell Seals, a state prisoner currently incarcerated at San Quentin State

Prison and a frequent litigant in federal court, filed the instant pro se civil rights complaint under 42

U.S.C. § 1983. He has paid the full filing fee. 

Even when the full filing fee has been paid, a federal court must conduct a preliminary

screening in any case in which a prisoner seeks redress from a governmental entity or officer or

employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify

any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon

which relief may be granted or seek monetary relief from a defendant who is immune from such

relief. Id. § 1915A(b)(1), (2). Accordingly, the Court will screen the complaint to determine

whether Defendants are required to respond.

Venue is proper in this district as the acts complained of occurred in Lake County, which is

located in this district. 28 U.S.C. § 1391(b).

DISCUSSION

I. Standard of Review

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the

alleged violation was committed by a person acting under the color of state law. West v. Atkins,

487 U.S. 42, 48 (1988). 

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Dismissal for failure to state a claim is warranted if the plaintiff is unable to articulate

"enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127

S. Ct. 1955, 1973 (2007). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

Dep't, 901 F.2d 696, 699 (9th Cir. 1988). 

II. Legal Claims

Plaintiff names as Defendants various officials from the Lake County Sheriff's Department,

including Sheriff Rodney K. Mitchell, Chief Crystal Eyerly, numerous jail officials as well as

numerous members of the Lake County Jail Medical Department. He seeks monetary and punitive

damages for alleged violations of his civil rights. 

Plaintiff states that "at some point during [his] two years" at the Lake County Jail, he

"became aware of all the sexual activity at this jail between officers, control tower aides, and

sergeants." (Compl. at 10.) He claims to have "personally witnessed" some of the aforementioned

alleged sexual activity. (Id. at 10-11.) He also claims to have "close to a month's worth of

documentation on all the sexual activity at this jail." (Id. at 12.) 

The Court finds that Plaintiff has not alleged any facts supporting a claim of constitutional

deprivation within the meaning of § 1983. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)

(A person deprives another of a constitutional right within the meaning of § 1983 if he does an

affirmative act, participates in another's affirmative act or omits to perform an act which he is legally

required to do, that causes the deprivation of which the plaintiff complains.). Section 1983 does not

impose liability for violations of duties of care arising out of state tort law. See DeShaney v.

Winnebago County Dep't of Soc. Serv., 489 U.S. 189, 201-03 (1989). To state a claim a plaintiff

must show a specific constitutional or federal guarantee safeguarding the interests that have been

invaded. See Paul v. Davis, 424 U.S. 693, 697 (1976). Here, Plaintiff's allegations are speculative. 

Even if he claims to be a witness to alleged sexual activity at the jail, he has no constitutional right

to be free from witnessing such sexual activity. Further, any psychological harm Plaintiff may have

suffered as a result of witnessing such sexual activity is not sufficiently egregious to rise to the level

of an Eighth Amendment violation. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (holding

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Eighth Amendment violation requires alleged deprivation to be objectively, sufficiently serious). 

Additionally, any claims of mental or emotional injury are barred under 42 U.S.C. § 1997e(e), which

provides: "No Federal civil action may be brought by a prisoner confined in a jail, prison or other

correctional facility for mental or emotional injury suffered while in custody without a prior

showing of physical injury." Accordingly, the claims against the named Defendants relating to the

alleged sexual activity at the Lake County Jail are DISMISSED with prejudice and without leave to

amend.

At most, Plaintiff seems to allege that Defendants retaliated against him for filing inmate

grievances to complain about the alleged sexual activity. According to the complaint, when Plaintiff

started filing these inmate grievances, he claims that the employees at the Lake County Jail reacted

in the following ways:

(1) A[n] officer tampered with my food tray; 

(2) I got cell extracted that resulted in a[n] injury to two of my toes; 

(3) I was denied x-rays on my toes; 

(4) I suffered numerous cell searches and constant harassment by staff; 

(5) my pro per status was threatened to be cut off if I continued to file on the sex

issue at the jail; 

(6) I was put on restriction as far as how much legal material I could have in my

cell at one time; 

(7) I was only allowed to have three (3) sheets of legal pleading paper in my cell at

one time and if I was doing any legal paperwork I would have to use the three

sheets in my possession and show the officer every 30 minutes or more in order to

be issued another three sheets until I was finished with whatever I was working on;

(8) all my large manila envelopes [were] being taken from me and destroyed and I

was only allowed one at a time. When some times it would take two to three legal

envelopes to mail out some of my legal documents; 

(9) they [were] searching my cells and leaving my legal documents scattered on the

floor in a pile; 

(10) Chief Crystal Eyerly, the Commander of the Law County Jail, held onto one of

my inmate grievances for at least three months and had no intention of returning it

to me because it concerned the sex issue here at the jail. And this particular inmate

grievance dated: 10-6-04 presented names, dates, and times also several hand drawn

diagram pictures of all the documented sexual position[s] I had personally

witnessed her staff participate in while on duty at her jail; 

(11) Chief Crystal Eyerly forced me to file a citizen complaint with the Lake

County Sheriff's Department, Internal Affairs where on January 21, 2005 she was

ordered to return it back to me; 

(12) I was forced to file a citizen complaint with Internal Affairs expressing this

whole sexual activity while on duty issue and its constant denial and cover up even

to the level of Internal Affairs; and 

(13) I [have] been called a liar, mentally ill, delusional and a person out for revenge

on the jail staff for all the disciplinary writes that they have issued upon me.

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 Plaintiff does not allege a claim of deliberate indifference to his medical needs stemming

from the incident involving his toe injury. He also does not allege a claim of denial of access to the

courts. Nor does he allege that he has exhausted such claims through the prison administrative

appeals process.

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(Compl. at 12-14.) Even after experiencing the alleged retaliatory actions, the record shows that

Plaintiff continued to file numerous grievances throughout his incarceration at Lake County Jail. 

(Pl.'s Ex. A-Y4.) In addition, Plaintiff has successfully filed a complaint with Internal Affairs at the

Lake County Sheriff's Department regarding his allegations that "correctional officers are engaging

in sexual intercourse with each other while on duty at the Lake County Jail." (Pl.'s Ex. X, Internal

Affairs Response Letter from Chief Deputy Jeffrey B. Markham dated Mar. 11, 2005.) In response

to his allegations, Internal Affairs found his complaint "entirely and wholly without merit." Id.

Upon reviewing his allegations, Internal Affairs "discovered that on many of the dates [Plaintiff has]

alleged a particular officer or aide was engaged in intercourse at the jail, that officer or aide was not

on duty at all." Id. In addition, it was noted that "the location of [Plaintiff's] housing made it

physically impossible for [him] to have observed officers in the areas of the jail whether [he]

claim[s] to have seen them." Id. Finally, Internal Affairs speculated that his complaint was

"motivated by [his] resentment of the fact that jail staff [held him] accountable for [his] repeated

violations of the rules of this facility, including but not limited to being disciplined as a result of

[his] unfortunate desire to exposed [himself] to staff." Id.

Liberally construed, Plaintiff alleges that a retaliatory motive can be inferred against

Defendants because after he filed inmate grievances complaining about the alleged sexual activity,

he was, among other alleged retaliatory actions, denied timely and adequate medical treatment for

his toe injury and denied access to the courts.1

 (Id.) 

"Within the prison context, a viable claim of First Amendment retaliation entails five basic

elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because

of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his

First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). To prove

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retaliation, a plaintiff must show that the defendants took adverse action against him or her that

"would chill or silence a person of ordinary firmness from future First Amendment activities." 

White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (citing Mendocino Envtl. Ctr. v. Mendocino

County, 192 F.3d 1283, 1300 (9th Cir. 1999)). Retaliation is not established simply by showing

adverse activity by defendant after protected speech; rather, plaintiff must show a nexus between the

two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot

rest on the logical fallacy of post hoc, ergo propter hoc, i.e., "after this, therefore because of this"). 

Compare id. (summary judgment proper against plaintiff who could only speculate that adverse

employment decision was due to his negative comments about his supervisor six or seven months

earlier) with Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1315-16 (9th Cir. 1989) (evidence of

timing and nature of suspensions sufficient to infer retaliatory motive).

The filing of grievances does constitute the exercise of constitutional rights. Rhodes, 408

F.3d at 567. However, the simple allegation that certain retaliatory actions occurred after the

grievances were filed does not, without more, establish retaliation; rather, Plaintiff must allege a

nexus between the two. See Huskey, 204 F.3d at 899. Here, Plaintiff does not allege any nexus

between the filing of his grievances and the alleged retaliatory actions. Accordingly, Plaintiff's

retaliation claim is DISMISSED with leave to amend. He may file an amended complaint to allege

that the above-referenced actions were in retaliation for the exercise of his constitutional rights. In

his amended complaint, Plaintiff must also link specific Defendants to his claim by explaining what

that Defendant did that caused a violation of Plaintiff's constitutional rights. Leer v. Murphy, 844

F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on an individual defendant under section

1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally

protected right).

III. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996)

(PLRA), amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to

prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are available are

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exhausted." 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory. Wyatt v. Terhune,

315 F.3d 1108, 1117 n.9 (9th Cir.), cert. denied, 540 U.S. 810 (2003). While nonexhaustion under 

§ 1997e(a) is an affirmative defense, a prisoner's concession to nonexhaustion is a valid ground for

dismissal, so long as no exception to exhaustion applies. Id. at 119-20. Accordingly, the court may

dismiss a claim without prejudice if it is clear from the record that the prisoner has conceded that he

did not exhaust administrative remedies. See id.

The State of California provides its inmates and parolees the right to appeal administratively

"any departmental decision, action, condition or policy perceived by those individuals as adversely

affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the

right to file administrative appeals alleging misconduct by correctional officers. See id. § 3084.1(e). 

In order to exhaust available administrative remedies within this system, a prisoner must proceed

through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602

inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level

appeal to the Director of the California Department of Corrections. See id. § 3084.5; Barry v.

Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the administrative remedies

exhaustion requirement under § 1997e(a). See id. at 1237-38. 

Here, it appears from the face of the complaint that Plaintiff has not exhausted his

administrative remedies as to the aforementioned retaliation claim, the only remaining possibly

cognizable claim in this action. 

Accordingly, the complaint is DISMISSED with leave to amend. Within thirty (30) days

from the date of this Order Plaintiff shall inform the Court whether he exhausted his administrative

remedies with respect to his retaliation claim before he filed his complaint. If Plaintiff fails to

comply with this Order, the action will be dismissed without prejudice.

IV. Pleading Requirements

Because Plaintiff has not been following proper pleading requirements. All future pleadings

submitted by Plaintiff to the Court shall comply with the following provisions of Rules 3-4(c)(2)-(3),

and 7-4(a)(2)-(5), (b), of the Northern District of California Civil Local Rules:

Rule 3-4. Papers Presented for Filing.

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(c) General Requirements.

(2) Written Text. Text must appear on one side only and must be doublespaced with no more than 28 lines per page, except for the identification of counsel,

title of the case, footnotes and quotations. Typewritten text may be no less than

standard pica or 12-point type in the Courier font or equivalent, spaced 10 characters

per horizontal inch. Printed text, produced on a word processor or other computer,

may be proportionally spaced, provided the type may not be smaller than 12-point

standard font (e.g., Times New Roman). The text of footnotes and quotations must

also conform to these font requirements. 

(3) Identification of Paper. Except for exhibits, each paper filed with the

Court must bear a footer on the lower margin of each page stating the title of the

paper (e.g., "Complaint," "Defendant's Motion for Summary Judgment," etc.) or some

clear and concise abbreviation. Once the Court assigns a case number to the action

that case number must be included in the footer.

Rule 7-4. Brief or Memorandum of Points and Authorities.

(a) Content. In addition to complying with the applicable provisions of Civil L.R. 3-

4, a brief or memorandum of points and authorities filed in support, opposition or

reply to a motion must contain:

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(2) If in excess of 10 pages, a table of contents and a table of authorities; 

(3) A statement of the issues to be decided;

(4) A succinct statement of the relevant facts; and

(5) Argument by the party, citing pertinent authorities.

(b) Length. Unless the Court expressly orders otherwise pursuant to a party's request

made prior to the due date, briefs or memoranda filed with opposition papers may not

exceed 25 pages of text and the reply brief or memorandum may not exceed 15 pages

of text. 

Civil L.R. 3-4(c)(2)-(3), 7-4(a)(2)-(5), (b).

Any pleadings which do not meet these requirements and for which prior permission to

exceed the page limits has not been sought shall be returned to Plaintiff without being filed.

CONCLUSION

 For the foregoing reasons, 

1. Plaintiff's claims against the named Defendants relating to the alleged sexual activity

at the Lake County Jail are DISMISSED with prejudice and without leave to amend.

2. Plaintiff's remaining retaliation claim is DISMISSED with leave to amend. Within

thirty (30) days of the date of this Order Plaintiff may file an amended retaliation claim to correct

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P:\PRO-SE\SBA\CR.05\Seals1863.DWLA.frm 8

the noted pleading deficiencies with respect to this claim as set forth above. Plaintiff shall resubmit

only his retaliation claim and not the claims against the named Defendants relating to the alleged

sexual activity at the Lake County Jail, which have been dismissed with prejudice.

3. Plaintiff must clearly label the document an "Amended Complaint," and write in the

case number for this action, Case No. C 05-1863 SBA (PR). The failure to do so within the

thirty-day deadline will result in the dismissal of Plaintiff's retaliation claim and the dismissal of his

entire complaint without prejudice for failure to state a cognizable claim for relief and for failure to

exhaust available administrative remedies.

IT IS SO ORDERED.

DATED: 7/11/08 _______________________________

SAUNDRA BROWN ARMSTRONG

United States District Judge

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UNITED STATES DISTRICT COURT

FOR THE 

NORTHERN DISTRICT OF CALIFORNIA

SEALS,

Plaintiff,

 v.

MITCHELL et al,

Defendant. /

Case Number: CV05-01863 SBA 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District

Court, Northern District of California.

That on July 14, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said

copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said

envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle

located in the Clerk's office.

Michael Izell Seals V77488

California State Prison - San Quentin

San Quentin, CA 94974

Dated: July 14, 2008

Richard W. Wieking, Clerk

By: LISA R CLARK, Deputy Clerk

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