(PC) Cortinas v. Soltanian ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, No. 2:20-cv-1067-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JALLA SOLTANIAN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 18 § 1983, has filed a complaint (ECF No. 1), an application for leave to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915 (ECF Nos. 2, 7), and a motion for preliminary injunction (ECF No. 20 6). 21 I. Application to Proceed In Forma Pauperis 22 Plaintiff’s application (and separate trust fund account statement – ECF No. 5) makes the 23 showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court 24 directs the agency having custody of plaintiff to collect and forward the appropriate monthly 25 payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 26 ///// 27 ///// 28 ///// 1 II. Screening 2 A. Screening Standards 3 Federal courts must engage in a preliminary screening of cases in which prisoners seek 4 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 5 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 6 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 7 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 8 relief.” Id. § 1915A(b). 9 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 10 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 11 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 12 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 13 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 14 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 15 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 16 U.S. 662, 679 (2009). 17 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 18 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 19 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 20 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 21 678. 22 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 23 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 24 content that allows the court to draw the reasonable inference that the defendant is liable for the 25 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 26 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 27 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 28 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 1 B. Screening Order 2 Plaintiff alleges that defendants have violated his rights under the First, Eighth, and 3 Fourteenth Amendments.1 4 1. Defendant Soltanian 5 Plaintiff contends that, in late 2019, defendant Soltanian revoked his: (1) Methodone pain 6 medication prescription; (2) mobility devices; and (3) his neck brace and prescription pillow as 7 punishment for other civil litigation he had filed against the California Department of Corrections 8 and Rehabilitation (“CDCR”). ECF No. 1 at 4, 9-10. He also claims that Soltanian also 9 threatened to place him in a wheelchair and under suicide watch if he did not comply in dropping 10 his civil litigation. Id. at 9. Plaintiff alleges that the Methodone and mobility devices were 11 needed due to long standing lumbar and cervical disc damage. Id. at 4, 10. 12 Plaintiff now brings claims against Soltanian for First Amendment retaliation, Eighth 13 Amendment deliberate indifference to serious medical needs, a Fourteenth Amendment equal 14 protection violation, and violations of the Rehabilitation Act. The court concludes that, taking the 15 allegations as true, the First and Eighth Amendment claims against Soltanian should proceed. 16 The Fourteenth Amendment and Rehabilitation Act claims will be dismissed, however. First, the 17 disabled do not constitute a suspect class for equal protection purposes. See Does 1-5 v. 18 Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996) (“For the purposes of equal protection analysis, the 19 disabled do not constitute a suspect class.”). And, in any event, even if disabled people were a 20 protected class for equal protection purposes, plaintiff’s claim would still fail insofar as he does 21 not allege that he was discriminated against because of his disability.2 See Flores v. Morgan Hill 22 Unified School Dist., 324 F.3d 1130, 1134 (9th Cir. 2003) (“To establish a § 1983 equal 23 protection violation, the plaintiffs must show that the defendants, acting under color of state law, 24 1 He also categorizes his Fourteenth Amendment claim as proceeding simultaneously 25 under the Rehabilitation Act. 26 2 His Rehabilitation Act claim also fails for this reason. See Weinreich v. Los Angeles 27 County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (noting that an essential element of a Rehabilitation Act claim is that the plaintiff was denied benefits solely by reason of his 28 disability). 1 discriminated against them as members of an identifiable class and that the discrimination was 2 intentional.”). Rather, he alleges that Soltanian’s actions were motivated by a desire to retaliate 3 against him for protected First Amendment activity. 4 2. Defendants Sahota and Bobbala 5 Plaintiff alleges that defendants Sahota and Bobbala – both medical supervisors – were 6 made aware of the discontinuation of his prescriptions by way of internal grievances. ECF No. 1 7 at 5. He claims that both repeatedly stated that plaintiff was receiving opiate pain medication 8 when, in fact, he was not. Id. Plaintiff claims that he wrote both defendants approximately 9 twenty-five times to inform of them of the discontinuation of his medication, but apparently no 10 action was taken. The court finds that the facts alleged, taken as true, are sufficient to state an 11 Eighth Amendment deliberate indifference claim against both defendants. While there is no 12 liability connected to processing a plaintiff’s grievances (see Ramirez v. Galaza, 334 F.3d 850, 13 860 (9th Cir. 2003)) and no respondeat superior liability under section 1983 (see Jones v. 14 Williams, 297 F.3d 930, 934 (9th Cir. 2002)), supervisory defendants may still be liable if they 15 turn a blind eye to their subordinates misconduct. See Taylor v. List, 880 F.2d 1040, 1045 (9th 16 Cir. 1989). Here, given that plaintiff allegedly wrote to Sahota and Bobbala numerous times 17 concerning his lack of care, it may be inferred that they elected to ignore his claims rather than 18 conduct a reasonable investigation. 19 The court will dismiss, however, any Fourteenth Amendment claim against either of these 20 defendants. Plaintiff has not sufficiently explained how either Sahota or Bobbala violated his 21 rights under that amendment. And any First Amendment claim would also fail insofar as plaintiff 22 does not allege that he informed these defendants of Soltanian’s reason for discontinuing his care. 23 3. Warden Jeff Lynch 24 Plaintiff claims that Warden Lynch wrote to him in July and September 2019 regarding 25 his medical treatment and noted that plaintiff was receiving pain medication and epidural 26 injections. ECF No. 1 at 6. He claims that in January of 2020, after Soltanian had begun 27 retaliated against him, he spoke and wrote to Lynch and informed him of said retaliation. Id. 28 ///// 1 Lynch apparently took no action, however. As with Sahota and Bobbala, these allegations are 2 sufficient to state a supervisory claim against Lynch – under the First and Eighth Amendments - 3 for turning a blind eye to his subordinates’ misconduct. And, like Sahota and Bobbala, Plaintiff’s 4 Fourteenth Amendment claim against Lynch will be dismissed for want of sufficient explanation. 5 Plaintiff may either proceed only with the First and Eighth Amendment claims identified 6 herein or he may amend his complaint to attempt to cure the deficiencies also identified herein. 7 He may not, however, change the nature of this suit by alleging new, unrelated claims. George v. 8 Smith, 507 F.3d 605, 607 (7th Cir. 2007). Moreover, plaintiff is not obligated to amend his 9 complaint. 10 C. Leave to Amend 11 Any amended complaint must identify as a defendant only persons who personally 12 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 13 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 14 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 15 legally required to do that causes the alleged deprivation). Plaintiff is not obligated to file an 16 amended complaint. 17 Any amended complaint must be written or typed so that it so that it is complete in itself 18 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 19 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 20 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 21 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 22 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 23 1967)). 24 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 25 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 26 See E.D. Cal. L.R. 110. 27 ///// 28 ///// 1 III. Motion for Preliminary Injunction 2 The court has reviewed plaintiff’s motion for preliminary injunctive relief and 3 recommends it be denied. ECF No. 6. Therein, he requests an injunction enjoining defendants 4 (and their agents) from interfering with his desired medical treatment. Id. at 3. This motion fails. 5 As an initial matter, the Supreme Court has held that to qualify for a preliminary injunction, a 6 plaintiff must demonstrate: (1) a likelihood of success on the merits, (2) a likelihood of 7 irreparable harm, (3) the balance of hardships favors the plaintiff, and (4) an injunction is in the 8 public interest. Winters v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiff has 9 not addressed or argued any of these factors in his motion. The court, having considered the 10 Winters test, finds that plaintiff has not sufficiently shown either a likelihood of success on the 11 merits or a likelihood of irreparable harm. He has presented no medical evidence – beyond his 12 own affidavit, medical grievances, and grievance responses – which would allow the court to 13 conclude that either factor was satisfied. Thus, the court will recommend this motion be denied 14 without prejudice. See, e.g., Parker v. Adu-Tutu, No. CV 10-2747-PHX-GMS (ECV), 2012 WL 15 1894096, 2012 U.S. Dist. LEXIS 71649, *12 (Dist. Ariz. May 22, 2012) (finding that “absent any 16 medical records or medical evidence to show that Plaintiff will suffer irreparable harm and that 17 there is a likelihood of success on the merits, the Court declines to issue an injunction.”). 18 IV. Conclusion 19 Accordingly, it is ORDERED that: 20 1. Plaintiff’s request to proceed in forma pauperis (ECF Nos. 2, 7) is GRANTED. 21 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 22 in accordance with the notice to the California Department of Corrections and 23 Rehabilitation filed concurrently herewith. 24 3. Plaintiff’s complaint alleges, for screening purposes, the following viable claims: 25 a. Eighth Amendment deliberate indifference to serious medical needs claims 26 against defendants Soltanian, Sahota, Bobbala, and Lynch; and 27 b. First Amendment retaliation claims against defendants Soltanian and Lynch. 28 ///// 1 4. All other claims are dismissed with leave to amend within 30 days of service of 2 this order. Plaintiff is not obligated to amend his complaint. 3 5. Within thirty days plaintiff shall return the notice below advising the court whether 4 he elects to proceed with the cognizable claims against defendants identified 5 above, or file an amended complaint. If the former option is selected and returned, 6 the court will enter an order directing service at that time; 7 6. Failure to comply with any part of this this order may result in dismissal of this 8 action for the reasons stated herein. 9 7. The Clerk of Court is directed to randomly assign a United States District Judge to 10 this case. 11 Further, it is RECOMMENDED that plaintiff's motion for preliminary injunction (ECF 12 || No. 6) be DENIED. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 15 || after being served with these findings and recommendations, any party may file written 16 || objections with the court and serve a copy on all parties. Such a document should be captioned 17 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 20 || DATED: August 21, 2020. tid, PDEA 22 EDMUND F. BRENNAN 73 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 LARRY WILLIAM CORTINAS, No. 2:20-cv-1067-EFB P 8 Plaintiff, 9 v. NOTICE OF ELECTION 10 JALLA SOLTANIAN, et al., 11 Defendants. 12 13 In accordance with the court’s Screening Order, plaintiff hereby elects to: (1) ______ proceed only with the (a) Eighth Amendment deliberate indifference to 14 serious medical needs claims against defendants Soltanian, Sahota, Bobbala, and Lynch; and (b) 15 First Amendment retaliation claims against defendant Soltanian and Lynch. OR 16 17 (2) ______ delay serving any defendant and files an amended complaint. 18 19 _________________________________ 20 Plaintiff 21 22 Dated: 23 24 25 26 27 28