(PC) Lake v. Weiss ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN LAKE, No. 2:19-cv-2083 KJN P 12 Plaintiff, 13 v. ORDER 14 J. WEISS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 27 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 As discussed below, plaintiff’s complaint is dismissed with leave to amend. 4 Screening Standards 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 Plaintiff’s Complaint 7 Plaintiff claims that his right to access the courts has been impaired, he has been denied 8 access to his legal and other personal property, defendant Dr. Wong-Do denied plaintiff access to 9 x-ray, MRI, and pain medication, and defendant Yonus, Muslim Senior Chaplain, denied plaintiff 10 access to LDS Services. Plaintiff also alleges violation of the Code of Silence – Zero Tolerance 11 identified in a State of California Department of Corrections memo dated February 17, 2004. 12 (ECF No. 1 at 7). Plaintiff names as defendants Assistant Warden J. Weiss, Muslim Chaplain 13 Yonus, S.H. Wong-Do, Ph.D., Correctional Officer Tillery, and John Does. 14 Discussion 15 The court has reviewed the complaint pursuant to § 1915A and finds it must be dismissed 16 with leave to amend because the claims asserted in the complaint are not properly joined under 17 Federal Rule of Civil Procedure 20(a) concerning joinder of claims and defendants. Rule 20(a) 18 provides that all persons may be joined in one action as defendants if “any right to relief is 19 asserted against them jointly, severally, or in the alternative with respect to or arising out of the 20 same transaction, occurrence, or series of transactions or occurrences” and “any question of law 21 or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). See also 22 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against unrelated 23 defendants belong in different suits”). If unrelated claims are improperly joined, the court may 24 dismiss them without prejudice. Fed. R. Civ. P. 21; 7 Alan Wright, Arthur Miller & Mary Kay 25 Kane, Richard Marcus, Federal Practice and Procedure § 1684 (3d ed. 2012); Michaels Building 26 Co. v. Ameritrust Co., 848 F.2d 674, 682 (6th Cir. 1988) (affirming dismissing under Rule 21 of 27 certain defendants where claims against those defendants did not arise out of the same transaction 28 or occurrences, as required by Rule 20(a)). 1 Where parties have been misjoined, the court may drop a party or sever the claims against 2 that party. Fed. R. Civ. P. 21. “[D]istrict courts who dismiss rather than sever must conduct a 3 prejudice analysis, including ‘loss of otherwise timely claims if new suits are blocked by statutes 4 of limitations.’” Rush v. Sport Chalet, Inc., 779 F.3d 973, 975 (9th Cir. 2015) (quoting DirecTV, 5 Inc. v. Leto, 467 F.3d 842, 846-47 (3d Cir. 2006)). Here, because such unrelated claims are based 6 on relatively recent incidents, August and September of 2019, plaintiff will not be prejudiced by 7 their dismissal, without prejudice, from this action. Plaintiff may attempt to pursue such claims 8 in separate, timely actions. See also George, 507 F.3d at 607 (“Unrelated claims against 9 unrelated defendants belong in different suits”). 10 The Civil Rights Act 11 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 12 constitutional or statutory right; and (2) that the violation was committed by a person acting under 13 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 14 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 15 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 16 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 17 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 18 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable 19 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 20 (2009). In sum, plaintiff must identify the particular person or persons who violated his rights, 21 and set forth specific factual allegations as to how such person violated plaintiff’s rights. 22 Here, plaintiff cannot state a cognizable civil rights claim based on defendants’ alleged 23 violation of the 2004 Code of Silence memo. Section 1983 provides no redress for prison 24 officials’ violation of state prison regulations. See Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th 25 Cir. 2009) (section 1983 claims must be premised on violation of federal constitutional right); 26 Sweaney v. Ada Cnty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (section 1983 creates cause of 27 action for violation of federal law); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370-71 (9th 28 Cir. 1996) (federal and state law claims should not be conflated; to the extent the violation of a 1 state law amounts to a deprivation of a state-created interest that reaches beyond that guaranteed 2 by the federal Constitution, section 1983 offers no redress) (quotation marks omitted). 3 Standards Governing Potential Claims 4 The following legal standards may apply to plaintiff’s intended claims for relief. 5 Personal Property 6 Plaintiff’s claim concerning his personal property is unclear. However, the United States 7 Supreme Court has held that “an unauthorized intentional deprivation of property by a state 8 employee does not constitute a violation of the procedural requirements of the Due Process 9 Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is 10 available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state provides a 11 meaningful postdeprivation remedy, only authorized, intentional deprivations constitute 12 actionable violations of the Due Process Clause. An authorized deprivation is one carried out 13 pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 14 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th 15 Cir. 1987). The California Legislature has provided a remedy for tort claims against public 16 officials in the California Government Code, §§ 900, et seq. 17 First Amendment: Access to the Courts 18 Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 19 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by 20 Lewis, 518 U.S. at 354. The right of access to the courts is limited to non-frivolous direct 21 criminal appeals, habeas corpus proceedings, and § 1983 actions. See Lewis, 518 U.S. at 353 n.3, 22 354-55. In order to frame a claim of a denial of the right to access the courts, a prisoner must 23 establish that he has suffered “actual injury,” a jurisdictional requirement derived from the 24 standing doctrine. Lewis, 518 U.S. at 349. An “actual injury” is “actual prejudice with respect to 25 contemplated or existing litigation, such as the inability to meet a filing deadline or to present a 26 claim.” Lewis, 518 U.S. at 348 (citation and internal quotations omitted); see also Alvarez v. 27 Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (noting that “[f]ailure to show that a ‘non-frivolous 28 //// 1 legal claim had been frustrated’ is fatal” to a claim for denial of access to legal materials) (citing 2 Lewis, 518 U.S. at 353 & n.4). 3 First Amendment: Free Exercise of Religion 4 “Prison walls do not form a barrier separating prison inmates from the protections of the 5 Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). Among the rights prisoners possess is 6 the right to the free exercise of religion, subject to limitations justified by the considerations 7 underlying our penal system. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). To merit 8 protection under the free exercise clause of the First Amendment, a religious claim must satisfy 9 two criteria. “First, the claimant’s proffered belief must be sincerely held.” Malik v. Brown, 16 10 F.3d 330, 333 (9th Cir. 1994) (citations omitted). Second, “the claim must be rooted in religious 11 belief, not in ‘purely secular’ philosophical concerns.” Id. (citations omitted). Determining 12 whether a claim is “rooted in religious belief” requires analyzing whether the plaintiff’s claim is 13 related to his sincerely held religious belief. Id. (citations omitted). 14 Eighth Amendment 15 To succeed on an Eighth Amendment claim predicated on the denial of medical care, a 16 plaintiff must establish that he had a serious medical need and that the defendant’s response to 17 that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see 18 also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to 19 treat the condition could result in further significant injury or the unnecessary and wanton 20 infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial, 21 delay or intentional interference with medical treatment or by the way in which medical care is 22 provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 23 To act with deliberate indifference, a prison official must both be aware of facts from 24 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 25 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if 26 he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing 27 to take reasonable measures to abate it.” Id. at 847. 28 //// 1 It is important to differentiate common law negligence claims of malpractice from claims 2 predicated on violations of the Eighth Amendment’s prohibition of cruel and unusual punishment. 3 In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 4 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 5 1980) (citing Estelle, 429 U.S. at 105-06; see also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th 6 Cir. 2004). 7 Leave to Amend 8 As discussed above, plaintiff’s complaint must be dismissed. The court, however, grants 9 leave to file an amended complaint. 10 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 11 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 12 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 13 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 14 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 15 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 16 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 17 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 18 268 (9th Cir. 1982). 19 Plaintiff may not change the nature of this suit by alleging new, unrelated claims.1 See 20 Fed. R. Civ. P. 20(a)(2). Plaintiff is cautioned that his continued violation of court orders may 21 result in the involuntary dismissal of this action. Fed. R. Civ. P. 41(b). 22 1 As discussed above, a plaintiff may properly assert multiple claims against a single defendant. 23 Fed. Rule Civ. P. 18. Also, a plaintiff may join multiple defendants in one action where “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or 24 arising out of the same transaction, occurrence, or series of transactions and occurrences” and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 25 20(a)(2). Unrelated claims against different defendants must be pursued in separate lawsuits. See George, 507 F.3d at 607. This rule is intended “not only to prevent the sort of morass [a multiple 26 claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing 27 fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” 28 George, 507 F.3d at 607. 1 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 2 | make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 3 | complaint be complete in itself without reference to any prior pleading. This requirement exists 4 | because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 5 | v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 6 || supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 7 | omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 8 | function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 9 | and the involvement of each defendant must be sufficiently alleged. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiff's request for leave to proceed in forma pauperis is granted. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 13 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 14 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 15 || Director of the California Department of Corrections and Rehabilitation filed concurrently 16 | herewith. 17 3. Plaintiff's complaint is dismissed. 18 4. Within thirty days from the date of this order, plaintiff shall complete the attached 19 | Notice of Amendment and submit the following documents to the court: 20 a. The completed Notice of Amendment; and 21 b. An original and one copy of the Amended Complaint. 22 | Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 23 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 24 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 25 Failure to file an amended complaint in accordance with this order may result in the 26 || dismissal of this action. 27 || Dated: October 31, 2019 Make2083.14n 28 Fens Arn EENDALLJ.NE TINITTET? STATES MWARTETP ATE 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN LAKE, No. 2:19-cv-2083 KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 J. WEISS, et al., 15 Defendants. 16 17 Plaintiff hereby submits the following document in compliance with the court's order 18 filed______________. 19 _____________ Amended Complaint DATED: 20 21 ________________________________ Plaintiff 22 23 24 25 26 27 28