(PC) Newsome v. Loterzstain ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHELDON RAY NEWSOME, No. 2:19-cv-307-JAM-EFB P 12 Plaintiff, 13 v. ORDER 14 M. LOTERZSTAIN, et al., 15 Defendants. 16 17 Plaintiff proceeds without counsel in this action brought pursuant to 42 U.S.C. § 1983. 18 The court dismissed his first amended complaint (ECF No. 14) and he now proceeds with his 19 second amended complaint (ECF No. 18). The court must screen it. 20 Screening 21 I. Legal Standards 22 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 23 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 24 which relief may be granted, or seeks monetary relief against an immune defendant. 25 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 27 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 28 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 1 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 2 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 3 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 4 relief above the speculative level on the assumption that all of the complaint's allegations are 5 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 6 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 7 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 8 In reviewing a complaint under this standard, the court must accept as true the allegations 9 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 10 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 11 the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 12 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 13 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 14 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 15 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 16 II. Analysis 17 Plaintiff alleges that defendant Dirisu, a certified nursing assistant at the California 18 Medical Facility (“CMF”), had a “wish list” of inmates he desired, for personal reasons, to 19 transfer out of the CMF Outpatient Housing Unit (“OHU”). ECF No. 18 at 3. In July of 2017, 20 plaintiff was on Dirisu’s list and, as a consequence, Dirisu “began verbally and mentally abusing 21 [him].” Id. Plaintiff filed an administrative grievance against Dirisu and the latter allegedly 22 responded by enlisting the aid of defendant Loterzstain – a CMF physician – who effected 23 plaintiff’s transfer out of the OHU. Id. at 3-4. The transfer allegedly resulted in an aggravation 24 of plaintiff’s chronic medical conditions. Id. at 6-8. 25 Plaintiff also alleges that Loterzstain was deliberately indifferent to his medical needs 26 insofar as she: (1) discontinued his pain medication; (2) offered no treatment for his swelling 27 hands; (3) removed him from the care of the University of California San Francisco’s neurology 28 department; and (4) discontinued his physical therapy. Id. at 10-11. Plaintiff appears to allege 1 that the deficient care offered by Loterzstain was also undertaken in retaliation for his grievances 2 filed against Dirisu. Id. at 14. 3 The court finds that the foregoing allegations, taken as true, are sufficient to state: (1) a 4 First Amendment retaliation claim against defendants Dirisu and Loterzstain and; (2) an Eighth 5 Amendment medical deliberate indifference claim against Loterzstain.1 The court also finds that 6 the claims arise out of “a common core of facts” and thus, are sufficiently related to proceed 7 together. See Thorne v. El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986) (“[R]elated claims will 8 involve ‘a common core of facts’ or will be based on related legal theories while unrelated claims 9 will be ‘distinctly different,’ and based on different facts and legal theories.”) (internal citations 10 omitted). The remaining claims and parties in the complaint will be dismissed with leave to 11 amend. 12 Plaintiff alleges that Lori W. Austin – the Chief Executive Officer of “CMF” – denied his 13 medical grievance appeals. ECF No. 18 at 18. He claims that, by doing so, she effectively acted 14 in concert with Dirisu and Loterzstain. Id. But prisoners have no stand-alone due process rights 15 related to the grievance process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). And 16 plaintiff has failed to allege facts indicating that Austin was aware of the retaliation purportedly 17 undertaken by Dirisu and Loterzstain. 18 Plaintiff also claims that the actions of Dirisu and Loterzstain violated his equal protection 19 rights under the Fourteenth Amendment. “To state a claim under 42 U.S.C. § 1983 for a violation 20 of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must show that the 21 defendants acted with an intent or purpose to discriminate against the plaintiff based on his 22 membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 23 Here, plaintiff has failed to allege facts indicating that defendants acted with that purpose or 24 intent. Instead, the complaint appears to allege that Dirisu (and subsequently Loterzstain) acted 25 ///// 26 1 At various points, plaintiff appears to allege that defendant Dirisu also provided him 27 with constitutionally deficient medical care. See, e.g., ECF No. 18 at 18. But the complaint fails to adequately describe what treatment Dirisu offered (or failed to offer). Instead, all of the 28 allegedly inadequate care is attributed to Loterzstain. 1 against plaintiff because of his use of the grievance system, rather than his membership in any 2 protected class. 3 Finally, plaintiff alleges that the actions of Dirisu and Loterzstain violated his rights under 4 42 U.S.C. § 1985(3). To state a violation of § 1985(3), a plaintiff must “allege and prove four 5 elements:” 6 (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of 7 the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is 8 either injured in his person or property or deprived of any right or privilege of a citizen of the United States. 9 10 Fazaga v. Fed. Bureau of Investigation, 916 F.3d 1202, 1245 (9th Cir. 2019). As with his 11 Fourteenth Amendment equal protection claim, plaintiff has failed to allege that defendants 12 discriminated against him on the basis of race or any other protected class. Thus, he has failed to 13 allege the “invidiously discriminatory, racial or class-based animus, which is necessary to state a 14 claim under section 1985(3).” Caldeira v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989). 15 III. Leave to Amend 16 Plaintiff has a choice to make. He may proceed with his First Amendment claims against 17 Dirisu and Loterzstain and his Eighth Amendment claim against Loterzstain. Alternatively, he 18 may file another amended complaint to remedy, if he can, the deficiencies in his other claims. 19 Plaintiff is cautioned that any amended complaint must identify as a defendant only persons who 20 personally participated in a substantial way in depriving him of his constitutional rights. Johnson 21 v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 22 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 23 legally required to do that causes the alleged deprivation). Plaintiff may also include any 24 allegations based on state law that are so closely related to his federal allegations that “they form 25 the same case or controversy.” See 28 U.S.C. § 1367(a). 26 The amended complaint must also contain a caption including the names of all defendants. 27 Fed. R. Civ. P. 10(a). 28 ///// 1 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 2 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against 3 multiple defendants. Id. 4 Any amended complaint must be written or typed so that it so that it is complete in itself 5 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 6 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 7 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 8 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 9 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 10 1967)). 11 Any amended complaint should be as concise as possible in fulfilling the above 12 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 13 background which has no bearing on his legal claims. He should also take pains to ensure that his 14 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 15 and organization. Plaintiff should carefully consider whether each of the defendants he names 16 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 17 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 18 Conclusion 19 Accordingly, it is ORDERED that: 20 1. Plaintiff’s complaint alleges, for screening purposes, a viable First Amendment 21 retaliation claim against defendants Dirisu and Loterzstain and a viable Eighth 22 Amendment deliberate indifference claim against defendant Loterzstain; 23 2. All other claims are dismissed with leave to amend within 30 days of service of 24 this order. Plaintiff is not obligated to amend his complaint; 25 3. Within thirty days plaintiff shall return the notice below advising the court whether 26 he elects to proceed with the cognizable claims or file an amended complaint. If 27 the former option is selected and returned, the court will enter an order directing 28 service at that time; and 1 4. Failure to comply with any part of this this order may result in dismissal of this 2 action. 3 | DATED: December 19, 2019. tid, PDEA 4 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 SHELDON RAY NEWSOME, No. 2:19-cv-307-JAM-EFB P 10 Plaintiff, 11 v. NOTICE 12 M. LOTERZSTAIN, et al., 13 Defendants. 14 15 In accordance with the court’s Screening Order, plaintiff hereby elects to: 16 (1) ______ proceed only with the First Amendment retaliation claims against 17 defendants Dirisu and Loterzstain and the Eighth Amendment deliberate indifference claim 18 against defendant Loterzstain. 19 20 OR 21 22 (2) ______ delay serving any defendant and files an amended complaint. 23 24 _________________________________ 25 Plaintiff 26 Dated: 27 28