Kakowski v. Macomber et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BRIAN KAKOWSKI,
CDCR #BF-3315,
Plaintiff,
vs.
JEFF MACOMBER, Secretary of the
California Department of Corrections and
Rehabilitation, et al.,
Defendants.
Case No.: 3:25-cv-0282-RBM-VET
ORDER DISMISSING SECOND
AMENDED COMPLAINT WITH
LEAVE TO AMEND PURSUANT TO
28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)
On February 5, 2025, Plaintiff Brian Kakowski, a state prisoner incarcerated at the
Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, proceeding
pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. 	(Doc. 1.) 	Plaintiff
claimed that improper training and supervision of RJD kitchen employees resulted in
unsanitary conditions presenting a risk to his health in violation of the Eighth Amendment.
(Id. at 1–21.) 	On April 8, 2025, the Court granted Plaintiff leave to proceed in forma
pauperis (“IFP”) and dismissed his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) &
1915A(b), which require sua sponte dismissal of a prisoner’s IFP complaint, or any portion
of it, which fails to state a claim. 	(Doc. 7.) 	The Court found the Complaint failed to
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plausibly allege any defendant was aware of a substantial risk to inmate health and
deliberately disregarded the risk. (Id. at 6–7.) Plaintiff was notified of the deficiencies of
his pleading and granted leave to amend on or before May 23, 2025. (Id. at 7.) Plaintiff
filed a First Amended Complaint on April 21, 2025. 	(Doc. 8.) 	He filed a substantially
identical Second Amended Complaint (“SAC”) on May 5, 2025, which is the operative
pleading in this action. (Doc. 9.)
I. 	SCREENING PURUSANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
Because Plaintiff is a prisoner proceeding IFP, his SAC requires a pre-Answer
screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). 	The Court must sua sponte
dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails
to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203
F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)).
“The standard for determining whether a plaintiff has failed to state a claim upon
which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule
12(b)(6) requires a complaint to “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)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a
complaint states a plausible claim for relief [is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id.
Section 1983 “creates a private right of action against individuals who, acting under
color of state law, violate federal constitutional or statutory rights.” 	Devereaux v. Abbey,
263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show
both (1) deprivation of a right secured by the Constitution and laws of the United States,
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and (2) that the deprivation was committed by a person acting under color of state law.”
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
B. 	Allegations in the SAC
Plaintiff once again alleges that he was assigned to a kitchen scullery job on May
24, 2024, where Defendant RJD Correctional Food/Kitchen Officer Goff said, “‘you are
not medically cleared to handle food’ but I need all the help I can get.” (Doc. 9 at 4.) That
same week Defendant RJD Correctional Supervising Cook Ward told Plaintiff he was a
hard worker and would give Plaintiff “a better pay # but I need to go to medical & make
the chrono go away so I’m allowed to handle food.” (Id.)
During the next month, Goff and Ward instructed Plaintiff to handle food daily, and
to wash pots, pans and trays with a floor detergent not intended to be used to clean food
items or touch skin. (Id.) When Plaintiff complained that the detergent burned his skin,
Ward told him to “use what I got.” (Id.) Since being exposed to that detergent, Plaintiff
has had “constant skin irritation and itching and flaking.” 	(Id.) 	Plaintiff spoke to their
supervisors who acknowledged he should not be working in the kitchen, and he was
transferred to another job. (Id. at 5.) After he was removed from his kitchen assignment,
Defendant RJD Correctional Lieutenant G. Hernandez removed him from his “CGA
group” in retaliation for filing an inmate grievance regarding the conditions in the kitchens.
(Id. at 8.)
Plaintiff alleges that “as a matter of widespread practice and policy,” Defendants
continuously ignore California state regulations for food and safety standards regarding
food service at RJD, and as a result for years kitchen workers have faced a threat to their
health in violation of the prohibition against cruel and unusual punishment under the Eighth
Amendment. (Id. at 4–5.) He alleges Defendant California Department of Corrections and
Rehabilitation (“CDCR”) Secretary Macomber and RJD Warden Hill are responsible for
the failure of Defendants Goff, Ward and RJD Food Manager Acosta to train and supervise
kitchen workers to follow state food safety guidelines. (Id. at 5.) 	He claims his removal
from his CGA group was in retaliation for filing an inmate grievance and stopped him from
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earning credits toward an earlier parole hearing in violation of due process. (Id. at 8.)
C. 	Analysis
1. Eighth Amendment Claim
“Prison officials have a duty to ensure that prisoners are provided adequate shelter,
food, clothing, sanitation, medical care and personal safety.” Johnson v. Lewis, 217 F.3d
726, 731 (9th Cir. 2000). Although subjecting “a prisoner to lack of sanitation that is severe
or prolonged can constitute an infliction of pain within the meaning of the Eighth
Amendment,” the temporary imposition of such conditions does not state a claim absent
allegations of a risk of harm. Anderson v. County of Kern, 45 F.3d 1310, 1314–15 (9th Cir.
1995); Johnson, 217 F.3d at 731 (“The circumstances, nature, and duration of a deprivation
of these necessities must be considered in determining whether a constitutional violation
has occurred.”)
“[A] prison official violates the Eighth Amendment when two requirements are met.
First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” 	Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently
culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate health or safety.”
Id. (quoting Wilson, 501 U.S. at 302–03).
The allegations that Defendants Goff, Ward and Acosta failed to adequately hire,
train and supervise kitchen workers resulting in unsanitary conditions once again fail to
plausibly allege an Eighth Amendment violation. A prison official can be held liable only
if he is both “aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and [draws] the inference.” Farmer, 511 U.S. at 837. The Eighth
Amendment is violated when a prison official, acting with deliberate indifference, exposed
Plaintiff to a sufficiently “substantial risk of serious harm” to his health. 	Id. at 843. The
Court previously informed Plaintiff in the prior dismissal order that he had alleged at most
negligence arising from budgetary concerns, but did not plausibly allege any Defendant
subjected him to inhumane conditions of confinement or actually drew an inference that a
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substantial risk of serious harm existed. (See Doc. 7 at 6–7); see also Farmer, 511 U.S. at
835 (“deliberate indifference describes a state of mind more blameworthy than negligence”
and “more than ordinary lack of due care for the prisoner’s interests or safety.”) Plaintiff
has not cured those pleading defects, as his allegations of unsanitary practices in the kitchen
resulting in irritated skin are once again insufficient to plausibly allege Defendants were
aware of facts from which an inference could be drawn that a substantial risk of serious
harm existed and subjected him to inhumane conditions of confinement.
Plaintiff has also once again failed to plausibly allege an Eighth Amendment claim
against CDCR Secretary Macomber or RJD Warden Hill based on their failure to supervise
the other Defendants. 	Supervisory liability is not an independent cause of action under
§ 1983, and Plaintiff must allege both an underlying constitutional violation and a
connection between the supervisor’s actions and the violation. See Starr v. Baca, 652 F.3d
1202, 1207 (9th Cir. 2011) (“A defendant may be held liable as a supervisor under § 1983
‘if there exists either (1) his or her personal involvement in the constitutional deprivation,
or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.’”) (quoting Hansen v. Black, 855 F.2d 642, 646 (9th Cir. 1989)).
Plaintiff has once again failed to allege a constitutional violation and therefore has failed
to state a claim against Defendants Macomber and Hill. Id.; Leer v. Murphy, 844 F.2d 628,
633 (9th Cir. 1988) (“The inquiry into causation must be individualized and focus on the
duties and responsibilities of each individual defendant whose acts or omissions are alleged
to have caused a constitutional deprivation.”); Starr, 652 F.3d at 1207 (a plaintiff must
plausibly allege personal involvement or a causal connection between a defendant’s action
and a constitutional violation to state a § 1983 claim).
2. Due Process Claim
Plaintiff claims he has been subjected to atypical and significant hardship in
violation of due process because he has not been earning custody credits since he was
removed from his CGA group by Defendant Hernandez in retaliation for filing an inmate
grievance about the conditions in the kitchen. (Doc. 9 at 8.) The Due Process Clause of
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the Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. In order to plausibly
allege a federal due process claim, Plaintiff must identify a protected liberty or property
interest. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Although there is no federal
right to early release, California law may create a liberty interest in custody credits. 	See
id. at 221. When a state enacts a statutory scheme which creates a liberty interest protected
by 	federal 	due 	process, 	“the Due 	Process 	Clause 	requires 	fair 	procedures 	for 	its
vindication.” 	Swarthout v. Cooke, 562 U.S. 216, 220 (2011). 	The existence of a liberty
interest created by state law is determined by focusing on the nature of the deprivation.
Sandin v. Connor, 515 U.S. 472, 481–84 (1995). 	Such liberty interests are generally
limited to freedom from restraint which “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. at 484.
Plaintiff has not plausibly alleged he was denied due process in being removed from
the group because the allegations he was removed in retaliation for complaining about the
conditions in the kitchen are entirely conclusory. There are no allegations that Plaintiff has
sought or been denied reinstatement to the group or that he is otherwise entitled to attend
the group in his new job. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice” to state a § 1983
claim, nor do the “mere possibility of misconduct” accusations). In any case, Plaintiff has
not plausibly alleged that shortening the time to a parole hearing would inevitably shorten
his sentence as necessary to state a due process claim. See Sandin, 515 U.S. at 485–87 (no
protected liberty interest where loss of custody credits would not inevitably shorten the
duration 	of 	the 	inmate’s 	sentence); 	id. 	at 	487 	(recognizing 	that 	the 	“myriad 	of
considerations” in the parole suitability evaluation does not permit a finding that
availability of a parole hearing will inevitably affect the duration of a prisoner’s sentence).
3. Retaliation Claim
Finally, Plaintiff alleges Defendant Hernandez removed him from his CGA group in
retaliation for filing an inmate grievance regarding the conditions in the kitchen. (Doc. 9
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at 8.) “Prisoners have a First Amendment right to file grievances against prison officials
and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th
Cir. 2021). 	However, a prisoner must allege a retaliatory motive, that is, a causal
connection between the adverse action and his protected conduct. 	Id. 	Plaintiff does not
include any factual allegations supporting his contention that Hernandez acted with a
retaliatory motive when removing Plaintiff from his group, or that his inmate grievance
was a substantial or motivating factor in that decision. 	Id.; see also Wood v. Yordy, 753
F.3d 899, 905 (9th Cir. 2014) (“We have repeatedly held that mere speculation that
defendants acted out of retaliation is not sufficient.”); Iqbal, 556 U.S. at 678 (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice” to state a § 1983 claim).
D. 	Leave to Amend
Accordingly, the Court finds that Plaintiff’s SAC fails to state a plausible claim for
relief against any Defendant and is therefore subject to sua sponte dismissal in its entirety
pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). 	Watison, 668 F.3d at 1112; Wilhelm,
680 F.3d at 1121. In light of Plaintiff’s pro se status, the Court grants him one last attempt
to amend his pleading to attempt to sufficiently allege a § 1983 claim if he can and if he
wishes to attempt to do so. 	See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015)
(“A district court should not dismiss a pro se complaint without leave to amend [pursuant
to 28 U.S.C. § 1915(e)(2)] unless ‘it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202,
1212 (9th Cir. 2012)).
III. 	CONCLUSION
Good cause appearing, the Court DISMISSES all claims against all Defendants in
the Second Amended Complaint without prejudice and with leave to amend pursuant to 28
U.S.C. §§ 1915(e)(2) & 1915A(b) and GRANTS Plaintiff until December 30, 2025 to file
a Third Amended Complaint which cures the deficiencies of pleading noted in this Order
with respect to any or all Defendants. 	Plaintiff’s Third Amended Complaint must be
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complete by itself without reference to any prior version of his complaint. Defendants not
named and any claims not re-alleged in the Third Amended Complaint will be considered
waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”);
Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed
with leave to amend which are not re-alleged in an amended pleading may be “considered
waived if not repled.”). If Plaintiff fails to timely amend, the Court will dismiss this action
for failure to state a claim and failure to prosecute. 	See Lira v. Herrera, 427 F.3d 1164,
1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his
complaint, a district court may convert the dismissal of the complaint into dismissal of the
entire action.”).
IT IS SO ORDERED.
Dated: November 12, 2025
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