NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN ALLEN, 

Plaintiff-Appellant, 

 v. 

V. BENTACOURT; et al., 

Defendants-Appellees.

No. 20-17479 

D.C. No. 1:18-cv-01187-DADGSA 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Submitted March 1, 2023**

Before HAWKINS, S.R. THOMAS and McKEOWN, Circuit Judges: 

California state prisoner Kevin Allen appeals pro se the judgment dismissing 

his 42 U.S.C. § 1983 action alleging an Eighth Amendment conditions-ofconfinement claim. We have jurisdiction under 28 U.S.C. § 1291. We construe

Allen’s post-decision filings as notification to the district court of his intent to stand 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision without 

oral argument. See Fed. R. App. P. 34(a)(2).

FILED

MAR 3 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 20-17479 

on his first amended complaint (“FAC”), Edwards v. Marin Park, Inc., 356 F.3d 

1058, 1063‒65 (9th Cir. 2004), and review the dismissal of the FAC for failure to 

state a claim de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

1

 We 

affirm in part, reverse in part, and remand. 

Allen’s conditions-of-confinement claim against defendants John Does

Numbers 1 through 4 were properly dismissed because Allen failed to allege facts 

sufficient to show that these defendants were deliberately indifferent to his health 

and safety. See Hebbe v. Pliler, 627 F.3d 338, 341‒42 (9th Cir. 2010) (explaining 

that although pro se pleadings are to be construed liberally, a plaintiff must present 

factual allegations sufficient to state a plausible claim for relief); Johnson v. Lewis, 

217 F.3d 726, 731, 734 (9th Cir. 2000) (setting forth the elements of an Eighth 

Amendment conditions-of-confinement claim). 

Nor was there an abuse of discretion in denying Allen’s motions for 

appointment of counsel because Allen failed to demonstrate exceptional 

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting 

forth the standard of review and “exceptional circumstances” requirement). As the 

1 The district court dismissed the FAC for failure to state a claim and instructed Allen 

to file an amended complaint within thirty days. It failed to notify Allen that he 

could elect to stand on his FAC. Nonetheless, Allen pro se filed a motion following 

the decision that indicated a desire to stand on the complaint and requesting the 

ability to appeal immediately because he believed the FAC had stated a claim. 

Plaintiff’s “decision to forego amending [his] complaint was perfectly proper,” 

Edwards, 356 F.3d at 1063, and should have been construed as such. 
 3 20-17479 

district court noted, Allen’s conditions-of-confinement claim was not complex, and 

he appeared able to adequately articulate his claims.

The district court did, however, err by dismissing Allen’s conditions-ofconfinement claim against defendants Bentacourt, Ochoa, Sandaval, and 

Valdovinos. Allen alleged that the toilet in his cell clogged and overflowed feces 

and urine in his cell for a period of seven days, and that these defendants failed to 

adequately address the sanitation issue, thereby exhibiting deliberate indifference. 

As alleged in the complaint, the toilet became clogged on January 23 and Allen made 

numerous complaints about the smell and lack of a working toilet for the next several 

days. The prison grievance and appeal records indicate a work order was not filed 

until January 29, and that a plumber resolved the problem the same day.2

As the district court noted, “the odor, unsanitary conditions, and risk posed by 

raw sewage is obvious” and “the more basic the need, the shorter the time it can be 

withheld.” However, the court concluded that the defendants were not deliberately 

indifferent to the situation because they “submitted a work order, made follow-up 

phone calls, provided the inmates with a mop, attempted to find an empty cell 

available for Plaintiff and his cell mate, and offered showers to the inmates.” This 

2 The grievance appeals also mention a toilet work order on January 18, but this was 

prior to and apparently unrelated to the event alleged by Allen in the complaint on 

January 23.
 4 20-17479 

conclusion appears to come from statements in the complaint in which Allen relates 

that the defendants told him they were filing a work order or going to make a followup call; however, the prison grievance records attached to the complaint clearly 

reflect that no work order or other action was taken until January 29, which is 

consistent with Allen’s allegations that he lived in squalor for a week until something 

was done.

 Allen’s allegations are “sufficient to warrant ordering [defendants] to file an 

answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); see Johnson, 

217 F.3d at 731, 734; Anderson v. County of Kern, 45 F.3d 1310, 1314‒15 (9th Cir. 

1995) (subjecting a prisoner to a lack of sanitation can constitute an Eighth 

Amendment violation). We therefore reverse the district court’s dismissal of Allen’s 

conditions-of-confinement claim against defendants Bentacourt, Ochoa, Sandaval, 

and Valdovinos, and remand for further proceedings as to these defendants only. 

Allen’s motion to notify the court of new authority (Docket Entry No. 7) is 

granted. Allen’s motion to appoint counsel (Docket Entry No. 7) is denied.

AFFIRMED in part; REVERSED in part; and REMANDED. Appellees 

shall bear the costs on appeal.