(PC) Travon L. Freeman v. Diaz ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TRAVON LEON FREEMAN, Case No. 1:20-cv-01268-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 v. RECOMMENDING THAT THIS ACTION BE DISMISSED FOR FAILURE TO 13 RALPH DIAZ, et al., STATE A CLAIM 14 Defendants. (ECF No. 11) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 TWENTY-ONE DAYS 17 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 18 19 Travon Freeman (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 21 complaint commencing this action on September 8, 2020. (ECF No. 1). On November 4, 22 2020, the Court screened Plaintiff’s complaint and found that it failed to state any cognizable 23 claims. (ECF No. 11). The Court gave Plaintiff thirty days to either: “a. File a First Amended 24 Complaint; or b. Notify the Court in writing that he wants to stand on his complaint.” (Id. at 9- 25 10). 26 On November 16, 2020, Plaintiff filed his First Amended Complaint. (ECF No. 11). 27 The Court has reviewed Plaintiff’s First Amended Complaint, and for the reasons described in 28 this order will recommend that this action be dismissed for failure to state a claim. 1 Plaintiff has twenty-one days from the date of service of these findings and 2 recommendations to file his objections. 3 I. SCREENING REQUIREMENT 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 6 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 8 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 9 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 8), the Court may 10 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 11 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 12 determines that the action or appeal fails to state a claim upon which relief may be granted.” 13 28 U.S.C. § 1915(e)(2)(B)(ii). 14 A complaint is required to contain “a short and plain statement of the claim showing 15 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 16 not 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)). A plaintiff must set forth “sufficient 19 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 20 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 21 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 22 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 23 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 24 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 25 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 26 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 27 pro se complaints should continue to be liberally construed after Iqbal). 28 \\\ 1 II. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 2 Plaintiff brings this action against defendant Warden Clark, defendant Chief Mental 3 Health Supervisor Harris, and defendant Secretary of the California Department of Corrections 4 and Rehabilitation Diaz. 5 Plaintiff alleges as follows: 6 During the COVID-19 pandemic, Plaintiff was suicidal and swallowed over twenty 7 different medications and had made a noose to hang himself. Plaintiff was taken to Bakersfield 8 Adventist on June 25, 2020, and stayed until June 26, 2020. 9 Once back at California State Prison, Corcoran, Plaintiff was placed in the crisis 10 treatment center (“CTC”). 11 Ten days later, defendant Harris’s coconspirators took Plaintiff and placed him in 12 another cell that had another inmates’ medications still inside the suicide cell. Plaintiff, who 13 was suicidal, took thirty of those pills to further harm himself. This was July 14, 2020. 14 Then again, on August 13, 2020, CTC mental health personnel gave Plaintiff close to 15 eighty pills,1 which were left in his suicide cell while he was in the shower. Plaintiff, who was 16 suicidal, overdosed on those pills. Defendants Clark and Harris, along with their counterparts, 17 aided and abetted each other in assisting Plaintiff, who is a suicidal mental health patient, in 18 trying to kill himself in a supervised secure setting. 19 III. ANALYSIS OF PLAINTIFF’S COMPLAINT 20 A. Section 1983 21 The Civil Rights Act under which this action was filed provides: 22 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 23 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 24 secured by the Constitution and laws, shall be liable to the party injured in an 25 action at law, suit in equity, or other proper proceeding for redress.... 26 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 27 28 1 The Court notes that in Plaintiff’s previous complaint, which he signed under penalty of perjury, Plaintiff stated that he swallowed forty-eight pills on August 13, 2020, not eighty. 1 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 2 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 3 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 4 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 5 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 6 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 7 under color of state law, and (2) the defendant deprived him of rights secured by the 8 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 9 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 10 “under color of state law”). A person deprives another of a constitutional right, “within the 11 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 12 omits to perform an act which he is legally required to do that causes the deprivation of which 13 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 14 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 15 causal connection may be established when an official sets in motion a ‘series of acts by others 16 which the actor knows or reasonably should know would cause others to inflict’ constitutional 17 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 18 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 19 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 20 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 21 A plaintiff must demonstrate that each named defendant personally participated in the 22 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 23 connection or link between the actions of the defendants and the deprivation alleged to have 24 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 25 658, 691, 695 (1978). 26 Supervisory personnel are not liable under section 1983 for the actions of their 27 employees under a theory of respondeat superior and, therefore, when a named defendant 28 holds a supervisory position, the causal link between the supervisory defendant and the claimed 1 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 2 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 3 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 4 a plaintiff must allege some facts that would support a claim that the supervisory defendants 5 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 6 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 7 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] 8 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 9 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 10 quotation marks omitted). 11 For instance, a supervisor may be liable for his or her “own culpable action or inaction 12 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 13 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 14 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 15 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 16 B. Deliberate Indifference to Serious Medical Needs in Violation of the 17 Eighth Amendment 18 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 19 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 20 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires 21 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 22 prisoner’s condition could result in further significant injury or the unnecessary and wanton 23 infliction of pain,’” and (2) that “the defendant’s response to the need was deliberately 24 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)) 25 (citation and internal quotations marks omitted), overruled on other grounds by WMX 26 Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 27 Deliberate indifference is established only where the defendant subjectively “knows of 28 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 2 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 3 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” 4 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 5 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 6 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 7 836-37 & n.5 (1994) (citations omitted). 8 A difference of opinion between an inmate and prison medical personnel—or between 9 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 10 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 11 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 12 physician has been negligent in diagnosing or treating a medical condition does not state a valid 13 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 14 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 15 106. To establish a difference of opinion rising to the level of deliberate indifference, a 16 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 17 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 18 Plaintiff appears to be suing only supervisory defendants. There are no factual 19 allegations suggesting that any defendant personally participated in the alleged deprivations. 20 Additionally, there are no factual allegations suggesting that any defendant instituted a policy 21 that caused the deprivations, that any defendant knew of the alleged deprivations but failed to 22 prevent them, or that any defendant’s failure to train or supervise his subordinates led to the 23 alleged deprivation. Accordingly, Plaintiff has failed to state an Eighth Amendment claim for 24 deliberate indifference to his serious medical needs against any defendant. 25 The Court notes that, in its previous screening, it informed Plaintiff that he “may add 26 claims against prison officials, if he believes that any prison officials violated his right to care. 27 If Plaintiff does add prison officials as defendants, he should describe what he told each prison 28 official regarding his need for treatment, how each prison official responded to his request for 1 treatment, and what, if anything, each prison official said or did regarding Plaintiff’s care that 2 makes Plaintiff believe that they acted with deliberate indifference.” (ECF No. 10, p. 8). 3 The Court also informed Plaintiff that, if he “does not know the names of certain prison 4 officials, he may describe them to the best of his ability and name them as ‘Doe Defendants,’ 5 such as ‘Doe Defendant 1, a psychologist working on July 14, 2020,’ to be identified by name 6 and substituted in as a party with the help of discovery during the litigation.” (Id. at 8-9). 7 Despite the Court providing Plaintiff with this information, Plaintiff did not add claims 8 against any defendants who were directly responsible for his care. 9 C. Conspiracy 10 To state a claim for conspiracy under section 1983, Plaintiff must show the existence of 11 an agreement or meeting of the minds to violate constitutional rights, Avalos v. Baca, 596 F.3d 12 583, 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001), and that an 13 “actual deprivation of his constitutional rights resulted from the alleged conspiracy,” Hart v. 14 Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, 15 Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant in the 16 conspiracy need not know the exact details of the plan, but each participant must at least share 17 the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting United 18 Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir.1989)). 19 Additionally, Plaintiff must show that Defendants “conspired or acted jointly in concert and 20 that some overt act [was] done in furtherance of the conspiracy.” Sykes v. State of California, 21 497 F.2d 197, 200 (9th Cir. 1974). “[M]ore than vague conclusory allegations are required to 22 state a [conspiracy] claim.” Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 23 It is not entirely clear, but Plaintiff appears to allege that Defendants conspired with 24 medical personnel to violate his constitutional rights. However, there are no factual allegations 25 suggesting that any defendant conspired with any other defendant to violate Plaintiff’s 26 constitutional rights, or that any defendant conspired with medical personnel to violate 27 Plaintiff’s constitutional rights. At most, Plaintiff has made vague conclusory allegations 28 regarding the existence of a conspiracy. As vague conclusory allegations are not sufficient to 1 || support a conspiracy claim, Plaintiff has failed to state a conspiracy claim against any 2 || defendant. 3 IV. CONCLUSION AND RECOMMENDATIONS 4 The Court recommends that this action be dismissed without granting Plaintiff further 5 || leave to amend. In the Court’s prior screening order, the Court identified the deficiencies in 6 || Plaintiff's complaint, provided Plaintiff with relevant legal standards, and provided Plaintiff 7 || with an opportunity to amend his complaint. Plaintiff filed his First Amended Complaint with 8 || the benefit of the Court’s screening order, but failed to cure all of the deficiencies identified in 9 || the screening order. Thus, it appears that further leave to amend would be futile. 10 Accordingly, the Court HEREBY RECOMMENDS that: 11 1. This action be dismissed for failure to state a claim upon which relief may be 12 granted; and 13 2. The Clerk of Court be directed to close this case. 14 These findings and recommendations will be submitted to the United States district 15 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 16 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 17 || may file written objections with the Court. The document should be captioned “Objections to 18 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 21 |} (9th Cir. 1991)). 22 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 23 || judge to this case. IT IS SO ORDERED. 25 | Dated: _November 23, 2020 [Je hoy —— 26 UNITED STATES MAGISTRATE JUDGE 27 28