Frary v. Atkinson
- William Orrick
- 3:22-cv-02579
- U.S. District Court · Northern District of California
- 4
In Frary v. Ahern, Judge Orrick dismissed Frary’s civil-rights complaint but allowed him to amend it.
Daniel Robert Frary must file a properly supported amended complaint by October 10, 2022, or the action may be dismissed; Gregory J. Ahern was not held liable by this order.
What happened
Daniel Robert Frary alleged that black mold infested the bathroom and shower in his jail housing pod. He sued Sheriff Gregory J. Ahern under a federal civil-rights law.
The court said Frary did not provide facts connecting Ahern to the alleged conditions. It also said he had not explained why the mold amounted to a serious unconstitutional prison condition.
Judge William H. Orrick dismissed the complaint with leave to amend by October 10, 2022. The court required any amended complaint to identify each defendant’s personal involvement and include additional facts supporting the claims.
The detailed version
- Frary v. Atkinson · No. 3:22-cv-02579
- William Orrick
- Sept. 1, 2022
Background
Daniel Robert Frary filed a complaint under 42 U.S.C. § 1983, a federal law that allows claims against people acting under state law for violating federal constitutional or legal rights. He named Sheriff Gregory J. Ahern as the only defendant. Frary alleged that, after he was placed in the upper A-3 pod on February 2, 2022, the bathroom and shower had a heavy infestation of black mold. He identified Deputy Landrum as a witness.
Court’s analysis
Because the case involved a prisoner seeking relief from a government officer, the court conducted the required preliminary screening under 28 U.S.C. § 1915A. At this stage, the court must dismiss claims that are frivolous, malicious, fail to state a legally sufficient claim, or seek money from an immune defendant.
The court held that Frary’s allegations did not state a claim against Ahern because they did not connect Ahern to any alleged wrongdoing. Ahern could not be held responsible merely because he was the sheriff or a supervisor. The complaint contained no facts showing Ahern’s personal knowledge or involvement, such as participation in, direction of, or failure to prevent the alleged violation.
The court also concluded that Frary had not alleged enough facts to explain how the mold amounted to a violation of the Eighth Amendment, which limits unconstitutional conditions of confinement. The court recognized that severe or prolonged sanitation problems can be actionable, but said the complaint needed more facts showing that the black mold constituted a substantial deprivation.
Disposition
The court dismissed the complaint with leave to file an amended complaint on or before October 10, 2022. The order required the amended complaint to use the case caption and number, state “FIRST AMENDED COMPLAINT” on its first page, use the court’s form, and include all claims and defendants Frary wished to pursue. The court warned that failure to comply could result in dismissal of the action under Federal Rule of Civil Procedure 41(b) for failure to prosecute. Judge William H. Orrick signed the order.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.