(PC) Eleby v. Beard ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE C. ELEBY, No. 2:18-cv-2032 DB P 12 Plaintiff, 13 v. ORDER 14 J. BEARD, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. (ECF Nos. 1, 19 5). This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 20 636(b)(1)(B). 21 For the reasons stated herein, the court shall grant plaintiff’s motion to proceed in forma 22 pauperis. In addition, the court shall dismiss the complaint with leave to amend. 23 I. IN FORMA PAUPERIS APPLICATION 24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 25 1915(a). (See ECF No. 5). Accordingly, the request to proceed in forma pauperis will be 26 granted. 27 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 28 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 1 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 2 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 3 forward it to the Clerk of Court. Thereafter, plaintiff will be obligated for monthly payments of 4 twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 5 These payments will be forwarded by the appropriate agency to the Clerk of Court each time the 6 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 7 1915(b)(2). 8 II. SCREENING REQUIREMENT 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 11 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 12 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 13 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2). 14 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 15 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 16 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 17 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 18 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 19 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 20 Cir. 1989); Franklin, 745 F.2d at 1227. 21 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 22 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 23 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 24 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 25 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 26 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 27 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 28 //// 1 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 2 McKeithen, 395 U.S. 411, 421 (1969). 3 III. PLEADING STANDARD 4 A. Generally 5 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 6 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 7 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source 8 of substantive rights, but merely provides a method for vindicating federal rights conferred 9 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 10 To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) 11 that a right secured by the Constitution or laws of the United States was violated and (2) that the 12 alleged violation was committed by a person acting under the color of state law. See West v. 13 Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987). 14 A complaint must contain “a short and plain statement of the claim showing that the 15 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 19 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial 20 plausibility demands more than the mere possibility that a defendant committed misconduct and, 21 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78. 22 B. Linkage Requirement 23 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate 24 that each defendant personally participated in the deprivation of his rights. See Jones v. 25 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between 26 the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 27 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor 28 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 1 Government officials may not be held liable for the actions of their subordinates under a 2 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 3 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 4 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has 5 violated the Constitution through his own individual actions by linking each named defendant 6 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 7 Id. at 676. 8 Liability may be imposed on supervisory defendants under Section 1983 only if the 9 supervisor: (1) personally participated in the deprivation of constitutional rights or directed the 10 violations or (2) knew of the violations and failed to act to prevent them. Taylor, 880 F.2d at 11 1045. A sufficient causal connection between the supervisor’s wrongful conduct and the 12 constitutional violation permits supervisorial liability. Hansen v. Black, 885 F.2d 642, 646 (9th 13 Cir. 1989) (citing Thompkins v. Bell, 828 F.2d 298, 303-304 (5th Cir. 1987)). Defendants cannot 14 be held liable for being generally deficient in their supervisory duties. 15 IV. PLAINTIFF’S COMPLAINT 16 A. Plaintiff’s Claims 17 Plaintiff, an inmate housed at the Deuel Vocational Institution (“DVI”) at the time of the 18 incidents in question (see ECF No. 1 at 8), alleges that his First, Eighth and Fourteenth 19 Amendment rights were violated by defendants J. Beard, J. Price, J. Lewis, C.M. Heck, M. 20 Contreras and C. Stottenberg1. Plaintiff states that after his primary care physician had 21 determined that he suffered from a testicular condition called “large bilateral hydroceles,” 22 treatment for the ailment was intentionally delayed. (See id. at 1-3, 8-10). He asserts that the 23 delay in receiving and/or the denial of access to medical care in October 2015 was due to a 24 “system” created in October 2015 by the “CRC Norco Medical Department.” (See id. at 10). 25 1 Plaintiff states that at the time the instant complaint was filed, defendant J. Beard was the Secretary of the California Department of Corrections and Rehabilitation; that defendant J. Price 26 was the Warden at DVI; that defendant J. Lewis was the Deputy Director of Policy and Risk 27 Management Services at DVI; that defendant C.M. Heck was a Health Program Specialist II at DVI, and that defendants M. Contreras and C. Stottenberg were Health Care Appeals 28 Coordinators at DVI. (See ECF No. 1 at 1-2, 8-9). 1 Construing the complaint liberally (see Jenkins, 395 U.S. at 421), plaintiff contends that 2 this system, perpetuated by defendants, constituted deliberate indifference and cruel and unusual 3 punishment in violation of his Eighth Amendment rights, which caused him additional injury and 4 left him in “extreme pain, on-going [sic] to November 15, 2016.” (See generally ECF No. 1 at 5 18, 23) (brackets added). Plaintiff further asserts that this led to a need for medical attention. 6 (See id. at 23). 7 Plaintiff also appears to argue that defendants deprived him of his due process rights as 8 well as his right to meaningful access to courts under the First Amendment when they prevented 9 him from filing grievances related to his medical treatment, in violation of state regulations 10 regarding the processing of administrative appeals. (See ECF No. 1 at 15-16). He argues that 11 defendants “[had] a duty to process [his] appeal to the first level[,] but [they] continually decided 12 to ‘screen out’ or refuse to answer his appeal for specific ‘erroneous’ reasons . . . .” (Id. at 16) 13 (brackets added) (parentheses omitted). He generally alleges that defendants’ actions were 14 retaliatory in nature. (See id. at 15-16). 15 Ultimately, plaintiff contends that defendants’ actions and/or inaction effectively made the 16 administrative appeals system unavailable to him. For this reason, plaintiff argues, it was futile 17 for him to exhaust at the third level of review. (See ECF No. 1 at 19). Plaintiff further argues 18 that because defendants had the opportunity to review his appeals but refused to do so in violation 19 of his constitutional rights, they will not be prejudiced should the court consider this action. (See 20 generally id. at 19-20). 21 B. Relief Requested 22 Plaintiff seeks the following relief from the court: (1) a declaration that defendants’ acts 23 and omissions violated his constitutional rights; (2) preliminary and permanent injunction 24 directing defendants to refrain from engaging in retaliatory action against him for exercising his 25 First Amendment rights; (3) a protective order; (4) compensatory damages in the amount of 26 $1,000,000.00 from each defendant both jointly and severally; (5) punitive damages in the 27 amount of $1,000,000.00 from each defendant; (6) costs of the suit, and (7) any additional relief 28 //// 1 the court deems just, proper and equitable. (See ECF No. 1 at 20-22). Plaintiff would also like to 2 have a jury trial. (See id. at 21). 3 V. DISCUSSION 4 At the core of plaintiff’s complaint are two claims: (1) denial of access to courts in 5 violation of the First and Fourteenth Amendments, and (2) deliberate indifference to serious 6 medical need in violation of the Eighth Amendment. As currently presented, neither states a 7 claim upon which relief may be granted. 8 A. Access to Courts Claim 9 1. Administrative Appeals 10 Plaintiff’s claim that his First and Fourteenth Amendment rights were violated when 11 defendants actively chose not to review and/or cancelled his administrative appeals (see ECF no. 12 1 at 10-17) fails to state a claim upon which relief may be granted for several reasons. First, 13 actions taken when reviewing administrative appeals cannot serve as the basis for liability on a 14 Section 1983 claim. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). 15 Second, to the extent plaintiff asserts that his First Amendment right to access to courts 16 and his Fourteenth Amendment right to due process were violated when defendants Heck, Lewis, 17 Contreras and Stottenberg rejected his administrative appeals, which in turn, affects his ability to 18 proceed in this court (see generally ECF No. 1 at 15-16), this argument fails. This is because 19 plaintiff does not have a protected liberty interest in an error-free appeals process. See Ramirez 20 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (stating inmates lack separate constitutional 21 entitlement to specific prison grievance procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 22 1988). 23 Furthermore, plaintiff does not have a constitutional right to have defendants apply certain 24 state regulatory exceptions to his administrative appeals process or to apply them in a particular 25 way, either. Thus, plaintiff’s largely redundant additional assertion that the standard 26 administrative appeals rules should not have been applied to his case because he discovered 27 //// 28 //// 1 additional information about his condition after the statutory period during which he should have 2 filed his treatment-related administrative appeals (see generally ECF No. 1 at 10)2 fails as well. 3 Finally, to the extent that plaintiff is arguing that defendants improperly applied certain 4 state statutory regulations to his administrative appeals or that they improperly rejected his 5 appeals (see ECF No. 1 at 10-20), a state’s violation of its own laws does not create a cognizable 6 federal claim. See Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (citation omitted) 7 (stating no Section 1983 liability for violation prison policy). Moreover, a litigant may not 8 transform a state law issue into a federal one by asserting a violation of due process. See 9 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). 10 In sum, plaintiff’s access to courts arguments are incorrect, and they fail to state claims 11 upon which relief may be granted. 12 2. Retaliation 13 Plaintiff also makes a cursory, factually unsupported allegation that defendants retaliated 14 against him because he filed grievances. (See ECF No. 1 at 15-16). However, plaintiff has failed 15 to meet the threshold requirements of a Section 1983 action and related federal case law, namely, 16 those of identifying specific defendants, of linking each of them to specific acts or inaction, and 17 of identifying the specific resulting harm he experienced. See generally 42 U.S.C. 1983; see also 18 Jones, 297 F.3d at 934; see also Ortez, 88 F.3d at 809. Therefore, to the extent that plaintiff 19 intended to raise a separate retaliation a claim in this action, this argument – as currently written – 20 fails. 21 For these reasons, plaintiff’s access to courts and due process claims, as presented, are not 22 cognizable. Plaintiff will, however, be given the opportunity to amend them in an amended 23 complaint should he choose to do so. 24 B. Deliberate Indifference Claim 25 Plaintiff’s deliberate indifference claim is also not cognizable. At the core of this claim is 26 27 2 This is a liberal construction of what is a very convoluted argument on plaintiff’s part. If this is not what plaintiff intended to argue, he must clarify what he meant to assert in any amended 28 complaint he may file. 1 that plaintiff was not properly and/or timely treated for his testicular condition. (See generally 2 ECF No. 1 at 10, 18) (stating system created in October 2015 kept plaintiff in chronic pain until 3 November 15, 2016). Once again, however, in direct contravention of Section 1983 threshold 4 requirements, plaintiff fails to identify which specific defendants failed to treat him for his 5 condition and/or pain and when. (See generally id.). On the contrary, based upon the stated 6 occupations of each of the defendants (see id. at 1-2, 8-9), none of them are medical professionals 7 who plaintiff states failed to properly treat his condition and/or its resulting pain during the 8 periods in question. (See generally id.). Consequently, on the face of the complaint, none of the 9 named defendants would have been responsible for treating plaintiff’s medical conditions. 10 Further, none of them could have been responsible for any chronic pain and/or deterioration in 11 health plaintiff experienced due to lack of treatment. 12 Additionally, to the extent that plaintiff intends to impute deliberate indifference liability 13 to the named defendants as supervisors (see ECF No. 1 at 8-9), as stated earlier, government 14 officials may not be held liable for the actions of their subordinates under a theory of respondeat 15 superior. Iqbal, 556 U.S. at 676. Rather, for any of the claims against the named defendants who 16 are supervisors to be cognizable, plaintiff must attribute some affirmative act or omission to each 17 one of them that demonstrates a violation of plaintiff's federal rights. See id. at 676. 18 Given these findings, plaintiff’s Eighth Amendment claim of deliberate indifference is not 19 cognizable. Plaintiff will, however, be given the opportunity to amend this claim as well. 20 VI. OPTIONAL LEAVE TO AMEND 21 Plaintiff is being given the opportunity to amend the complaint. If plaintiff chooses to file 22 an amended complaint, it will take the place of the original complaint. See Lacey v. Maricopa 23 Cty., 693 F.3d 896, 925 (9th Cir. 2012) (amended complaint supersedes original). Any amended 24 complaint should observe the following: 25 An amended complaint must identify as a defendant only persons who personally 26 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson 27 v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 28 constitutional right if he does an act, participates in another's act or omits to perform an act he is 1 | legally required to do that causes the alleged deprivation). An amended complaint must also 2 | contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). Plaintiff may not 3 | change the nature of this suit by alleging new, unrelated claims. See George v. Smith, 507 F.3d 4 | 605, 607 (7th Cir. 2007). 5 Any amended complaint must be written or typed so that it is complete in itself without 6 | reference to any earlier filed complaint. See L.R. 220 (E.D. Cal. 2009). This is because an 7 || amended complaint supersedes any earlier filed complaint, and once an amended complaint is 8 | filed, the earlier filed complaint no longer serves any function in the case. See Loux v. Rhay, 375 9 | F.2d 55, 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter being 10 | treated thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa Cty., 693 11 | F.3d 896 012). 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 5) is GRANTED; 14 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 15 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 16 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 17 || appropriate agency filed concurrently herewith; 18 3. Plaintiff's complaint (ECF No. 1) is DISMISSED with leave to amend, and 19 4. Within thirty days of the date of service of this order, plaintiff shall file a first 20 | amended complaint. Failure to file an amended complaint within the time allotted may result in 21 | the dismissal of this action for failure to prosecute and/or failure to obey a court order. See Fed. 22 | R. Civ. P. 41(b); see also L.R. 110. 23 | Dated: April 13, 2020 25 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 27 || DLB:13 DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS/eleb2032.scrn.revd 28