(PC) Barth v. Romero ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN DAMON BARTH, No. 2:19-CV-0891-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 ROMERO, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s second amended complaint, ECF No. 19 19.1 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 1 After Plaintiff filed his original complaint, Plaintiff filed a first amended complaint as of right. See ECF No. 6. The Court dismissed the first amended complaint with leave to 26 amend and directed Plaintiff to file a second amended complaint. See ECF No. 10. Plaintiff filed a second amended complaint, see ECF No. 19, and, without leave of Court, a third amended 27 complaint shortly thereafter, see ECF No. 20. Because Plaintiff’s third amended complaint was filed without leave of Court, it will be stricken. This action proceeds on the second amended 28 complaint. 1 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 2 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 3 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 4 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 5 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 6 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 7 with at least some degree of particularity overt acts by specific defendants which support the 8 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 9 impossible for the Court to conduct the screening required by law when the allegations are vague 10 and conclusory. 11 12 I. PLAINTIFF’S ALLEGATIONS 13 In his second amended complaint, Plaintiff names the following as defendants: 14 (1) Romero; (2) Mey; (3) Davis; (4) Tsai; (5) Bell; (6) Lomas; (7) Snyder; (8) Mohr; and (9) Deo. 15 See ECF No. 19, pgs. 6-12. 16 Summary of Factual Allegations 17 Plaintiff’s factual allegations are set forth at paragraphs 22 through 57 of the 18 second amended complaint. See id. at 12-16. 19 Plaintiff states that, immediately after his arrival at Mule Creek State Prison on 20 September 7, 2018, he was “singled out and deprived of his legal property.” Id. at 12. It appears 21 Plaintiff claims Defendant Romero took his property. See id. Plaintiff asserts that, on September 22 12, 2018, he received his legal paperwork. See id. Plaintiff states that he did not, however, 23 receive an LED plug-in lamp, headphones, and a personal fan, apparently also taken by Romero. 24 See id. 25 Plaintiff states that, on September 18, 2018, he was denied his legal documents 26 “for a committee hearing.” Id. He does not allege who is responsible for this. 27 / / / 28 / / / 1 Next, Plaintiff claims that Defendant Mey gave Plaintiff a “false mental health 2 referral” on September 25, 2018. Id. Plaintiff also claims that, on this same day, Defendant Mey 3 “incited other inmates to harm the Plaintiff.” Id. Plaintiff does not further explain this claim. 4 Plaintiff alleges that, on September 27, 2018, his cellmate informed correction 5 staff that Plaintiff was having an asthma attack but that no medical care was provided. See id. at 6 12-13. Again, Plaintiff does not say who denied him medical care. 7 On October 2, 2018, Plaintiff attended a deposition on “a civil criminal 8 complaint.” Id. at 13. According to Plaintiff, immediately afterward he was “retaliated against.” 9 Id. Specifically, Plaintiff claims that over the course of the following 30 days, he was issued five 10 fabricated rules violation reports and subject to seven “cell thrashing searches.” Id. Plaintiff does 11 not name the individuals allegedly responsible for these adverse actions. 12 Plaintiff next describes further alleged conduct by Defendant Mey: 13 October 6, 2018 – Mey searched and “trashed” Plaintiff’s cell and confiscated Plaintiff’s electric shaver. Id. 14 October 7, 2018 – Mey denied Plaintiff access to a medical appointment. 15 Mey also denied Plaintiff the ability to send outgoing legal mail. See id. 16 October 11, 2018 – Mey denied Plaintiff a breathing treatment while Plaintiff was having an asthma attack. See id. 17 October 14, 2018 – Mey denied Plaintiff the ability to send outgoing 18 legal mail and threatened Plaintiff. See id. 19 October 3, 2018, to December 15, 2018 – Mey refused to sign outgoing legal mail and forms for inmate interviews. See id. at 14. 20 October 21, 2018 – Mey closed the “sally port” door as Plaintiff was 21 being released for pill call. Mey issued Plaintiff a rules violation report for tapping on the sally port door. Id. 22 October 31, 2018 – Mey (and Defendant Lomas) refused to send out 23 Plaintiff’s legal mail. See id. 24 November 14, 2018 – Mey told Plaintiff he would end up like Duran, referring to an inmate who had been “pepper-sprayed to death” at Mule Creek 25 State Prison in 2013. Id. at 14-15. 26 November 21, 2018 – Mey singled Plaintiff out by refusing him access to the law library despite Plaintiff’s PLU status. See id. at 15. 27 28 / / / 1 Plaintiff states that he was denied an “ADA shower” on October 8, 2018, and 2 again on October 21, 2018. See id. at 13-14. Plaintiff does not state who was responsible. 3 According to Plaintiff, he was also denied law library and priority legal user (PLU) 4 status on October 21, 2018. See id. at 14. Plaintiff does not, however, allege who is responsible. 5 Next, Plaintiff claims that, in October and November 2018, he was not allowed 6 access to his cell after receiving medications even though he was “closed custody.” Id. He also 7 claims that, between October 2, 2018, and November 30, 2018, “C/O’s” allowed Plaintiff to be 8 abused, ridiculed, harassed, insulted, threatened, denied, and locked out. See id. at 15. As is 9 common throughout the second amended complaint, Plaintiff does not identify which defendant is 10 responsible for this. 11 Plaintiff states that he was locked outside of the building with wildfires burning on 12 November 13, 2018. See id. at 14. Plaintiff claims this exacerbated his asthma. See id. Plaintiff 13 does not say who locked him outside. 14 Next, Plaintiff states that Defendant Tsai searched and “trashed” his cell on 15 November 23, 2018, and took down Plaintiff’s clotheslines. See id. at 15. 16 According to Plaintiff, on November 24, 2018, Defendant Snyder conducted a 17 rules violation hearing based on a charge relating to what Plaintiff calls a “privacy curtain.” Id. 18 Plaintiff alleges Defendant Snyder “denied the fact that Plaintiff was ADA and physically could 19 not install the curtain.” Id. 20 Plaintiff asserts that, on November 27, 2018, Defendant Lomas “took food from 21 his [Plaintiff’s] person as he tried to enter his cell after chow.” Id. at 15-16. 22 Plaintiff claims that, on November 28, 2018, the “tower officer” refused to let 23 Plaintiff back in the building and that an unnamed “C/O” refused to let Plaintiff back in his cell 24 and then yelled out the tower window Plaintiff’s criminal charges, thereby endangering his safety. 25 Id. at 15. 26 Next, Plaintiff claims that Defendant Bell would not allow him into the building 27 after pill call on November 27, 2018. See id. at 16. Plaintiff states he was left standing outside in 28 the rain while all other inmates were allowed inside. See id. 1 Finally, Plaintiff claims that Defendant Deo denied Plaintiff due process at his 2 “committee hearing.” Plaintiff does not further elaborate on this claim with any factual detail. 3 See id. 4 Summary of Claims Asserted 5 According to Plaintiff, the foregoing factual allegations give rise to the following 6 legal claims: 7 Claim I Retaliation.2 See id. at 16-17. 8 Claim II Denial of Access to the Courts. See id. at 17-18. 9 Claim III Conditions of Confinement.3 See id. at 18-21. 10 11 II. DISCUSSION 12 According to Plaintiff, his factual allegations give rise to claims of retaliation, 13 denial of access to the courts, and violations related to the conditions of his confinement. The 14 Court finds Plaintiff’s second amended complaint suffers from a number of flaws, discussed 15 below. 16 A. Causal Link 17 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 18 connection or link between the actions of the named defendants and the alleged deprivations. See 19 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 20 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 21 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 22 an act which he is legally required to do that causes the deprivation of which complaint is made.” 23 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 24 concerning the involvement of official personnel in civil rights violations are not sufficient. See 25 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 26 2 While Plaintiff references the Eighth Amendment in Claim I, he alleges “ongoing retaliation” following the deposition. See ECF No. 19, pg. 17. 27 3 Again, while Plaintiff references the Fourteenth Amendment and due process in Claim III, he alleges facts implicating conditions of confinement violations under the Eighth 28 Amendment. See id. at 19-20 1 specific facts as to each individual defendant’s causal role in the alleged constitutional 2 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 3 Initially, the Court observes that Plaintiff alleges various facts suggesting 4 constitutional violations consistent with the legal theories raised but does not link a violation to a 5 named defendant. For example, Plaintiff alleges that he was denied medical care for an asthma 6 attack on September 27, 2018, but does not say by whom. See ECF No. 19, pgs. 12-13. 7 Similarly, Plaintiff claims that, after he attended a deposition on October 2, 2018, he was 8 subjected to retaliation but does not say by whom. See id. at 13. To the extent Plaintiff does not 9 connect a particular defendant to a specific factual allegation, Plaintiff does not state a claim. 10 Turning to the specific allegations as to named individuals, Plaintiff names nine 11 individual defendants. The factual allegations as to each are as follows: 12 Romero Took Plaintiff’s property upon arriving at Mule Creek State Prison on September 7, 2018. See ECF No. 19, pg. 12. 13 Mey Gave Plaintiff a “false mental health referral” and “incited other 14 inmates to harm the Plaintiff” on September 25, 2018. Id. 15 Searched and “trashed” Plaintiff’s cell and confiscated Plaintiff’s electric shaver on October 6, 2018. Id. at 13. 16 Denied Plaintiff access to a medical appointment and denied 17 Plaintiff the ability to send outgoing legal mail on October 7, 2018. See id. 18 Denied Plaintiff a breathing treatment while Plaintiff was having 19 an asthma attack on October 11, 2018. See id. 20 Denied Plaintiff the ability to send outgoing legal mail and threatened Plaintiff on October 14, 2018. See id. 21 Refused to sign outgoing legal mail and forms for inmate 22 interviews between October 3, 2018, and December 15, 2018. See id. at 14. 23 Closed the “sally port” door as Plaintiff was being released for 24 pill call. Mey issued Plaintiff a rules violation report for tapping on the sally port door on October 21, 2018. Id. 25 Refused to send out Plaintiff’s legal mail on October 31, 2018. 26 See id. 27 Told Plaintiff on November 14, 2018, he would end up like Duran, referring to an inmate who had been “pepper-sprayed to 28 death” at Mule Creek State Prison in 2013. Id. at 14-15. 1 Singled Plaintiff out on November 21, 2018, by refusing him access to the law library despite Plaintiff’s PLU status. See id. 2 at 15. 3 Davis Second amended complaint contains no factual allegations. 4 Tsai Searched and “trashed” Plaintiff’s cell and took down Plaintiff’s clotheslines on November 23, 2018. See id. at 15. 5 Bell Would not allow him into the building after pill call on November 6 27, 2018, leaving Plaintiff standing outside in the rain while all other inmates were allowed inside. See id. 7 Lomas “[T]ook food from his [Plaintiff’s] person as he tried to enter his 8 cell after chow” on November 27, 2018. Id. at 15-16. 9 Refused to send out Plaintiff’s legal mail on October 31, 2018. See id. at 14. 10 Snyder Conducted a rules violation hearing on November 24, 2018, 11 based on a charge relating to what Plaintiff calls a “privacy curtain” and “denied the fact that Plaintiff was ADA and physically could 12 not install the curtain.” Id. at 15. 13 Mohr Second amended complaint contains no factual allegations. 14 Deo Denied Plaintiff due process at his “committee hearing.” See id. at 16. 15 16 Plaintiff’s second amended complaint fails to establish a link between any 17 constitutional violation and Defendants Mohr and Davis because it contains no factual allegations 18 specifically against them. Plaintiff will be provided an opportunity to amend. As to the 19 remaining defendants, Plaintiff fails to allege a sufficient link to a cognizable claim, as discussed 20 below.4 21 B. First Amendment Claims 22 In Claim I, Plaintiff alleges retaliation in violation of the First Amendment. In 23 Claim II, Plaintiff alleges denial of access to the courts, also in violation of the First Amendment. 24 / / / 25 / / / 26 / / / 27 4 The Court’s remaining analysis centers on the categories of legal claims alleged in the second amended complaint. To the extent Plaintiff alleges facts suggesting other legal 28 theories, the Court does not consider them. 1 1. Retaliation 2 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must 3 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory 4 action was not related to a legitimate penological purpose, such as preserving institutional 5 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting 6 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the 7 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); 8 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also 9 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by 10 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also 11 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must 12 establish the following in order to state a claim for retaliation: (1) prison officials took adverse 13 action against the inmate; (2) the adverse action was taken because the inmate engaged in 14 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the 15 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568. 16 Here, the only alleged protected activity is Plaintiff testifying at a deposition on 17 October 2, 2018. To the extent Plaintiff alleges adverse actions taken prior to this date, he cannot 18 show that such action occurred because of protected activity which took place afterward. While 19 Plaintiff alleges a number of adverse consequences taken after the deposition, he cannot show that 20 such action occurred because of protected activity because he does not allege any defendant was 21 aware he offered deposition testimony on October 2, 2018. Finally, Plaintiff fails to allege that 22 the various adverse actions taken did not serve a legitimate penological interest. Plaintiff will be 23 provided an opportunity to amend. 24 2. Access to the Courts 25 Prisoners have a First Amendment right of access to the courts. See Lewis v. 26 Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Bradley v. Hall, 64 27 F.3d 1276, 1279 (9th Cir. 1995) (discussing the right in the context of prison grievance 28 procedures). This right includes petitioning the government through the prison grievance process. 1 See id. Prison officials are required to “assist inmates in the preparation and filing of meaningful 2 legal papers by providing prisoners with adequate law libraries or adequate assistance from 3 persons trained in the law.” Bounds, 430 U.S. at 828. The right of access to the courts, however, 4 only requires that prisoners have the capability of bringing challenges to sentences or conditions 5 of confinement. See Lewis, 518 U.S. at 356-57. Moreover, the right is limited to non-frivolous 6 criminal appeals, habeas corpus actions, and § 1983 suits. See id. at 353 n.3 & 354-55. 7 Therefore, the right of access to the courts is only a right to present these kinds of claims to the 8 court, and not a right to discover claims or to litigate them effectively once filed. See id. at 354- 9 55. 10 As a jurisdictional requirement flowing from the standing doctrine, the prisoner 11 must allege an actual injury. See id. at 349. “Actual injury” is prejudice with respect to 12 contemplated or existing litigation, such as the inability to meet a filing deadline or present a non- 13 frivolous claim. See id.; see also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007). Delays in 14 providing legal materials or assistance which result in prejudice are “not of constitutional 15 significance” if the delay is reasonably related to legitimate penological purposes. Lewis, 518 16 U.S. at 362. 17 Here, Plaintiff has not stated a cognizable claim for denial of access to the courts 18 because Plaintiff has not alleged an actual injury as a result of any of the defendants’ conduct. 19 Though Plaintiff has alleged various instances where he was not permitted to send legal mail, he 20 does not allege that he was prejudiced with respect to contemplated or existing litigation. 21 Moreover, in many instances where Plaintiff has alleged some sort of potential interference with 22 his access to the courts, Plaintiff does not state which defendant is responsible. Plaintiff will be 23 provided an opportunity to amend. 24 C. Conditions of Confinement Claims 25 In his second amended complaint, Plaintiff alleges the facts give rise to various 26 claims related to the conditions of his confinement. Specifically, Plaintiff alleges violations 27 related to life’s necessities in general, safety, and medical care. Each is discussed below. 28 / / / 1 1. Life’s Necessities 2 The treatment a prisoner receives in prison and the conditions under which the 3 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 4 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 5 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 6 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 7 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 8 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 9 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 10 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 11 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 12 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 13 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 14 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 15 official must have a “sufficiently culpable mind.” See id. 16 Plaintiff alleges the following facts with respect to his basic necessities of life: 17 - Between October 2, 2018, and November 30, 2018, “C/O’s” allowed Plaintiff to be abused, ridiculed, harassed, insulted, threatened, denied, and locked out. 18 See ECF No. 19, pg. 15. 19 - Plaintiff states that he was locked outside of the building with wildfires burning on November 13, 2018. See id. at 14. 20 - Defendant Bell would not allow him into the building after pill call on November 21 27, 2018. See id. at 16. Plaintiff states he was left standing outside in the rain while all other inmates were allowed inside. See id. 22 23 Plaintiff fails to state any claim based on denial of basic life necessities because he 24 does not link any particular allegation to a named defendant. Plaintiff does not state who the 25 “C/O’s” are who allegedly abused and harassed him. Nor does Plaintiff identify who left him 26 outside during a wildfire on November 13, 2018, or who left him standing in the rain on 27 November 27, 2018. Plaintiff will be provided an opportunity to amend. 28 / / / 1 2. Safety 2 Under principles outlined above, prison officials have a duty to take reasonable 3 steps to protect inmates from physical abuse. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 4 (9th Cir. 1982); Farmer, 511 U.S. at 833. Liability exists only when two requirements are met: 5 (1) objectively, the prisoner was incarcerated under conditions presenting a substantial risk of 6 serious harm; and (2) subjectively, prison officials knew of and disregarded the risk. See Farmer, 7 511 U.S. at 837. The very obviousness of the risk may suffice to establish the knowledge 8 element. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not 9 liable, however, if evidence is presented that they lacked knowledge of a safety risk. See Farmer, 10 511 U.S. at 844. The knowledge element does not require that the plaintiff prove that prison 11 officials know for a certainty that the inmate’s safety is in danger, but it requires proof of more 12 than a mere suspicion of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). 13 Finally, the plaintiff must show that prison officials disregarded a risk. Thus, where prison 14 officials actually knew of a substantial risk, they are not liable if they took reasonable steps to 15 respond to the risk, even if harm ultimately was not averted. See Farmer, 511 U.S. at 844. 16 As to his safety, Plaintiff alleges: 17 - Defendant Mey “incited other inmates to harm the Plaintiff.” Id. at 12. 18 - Plaintiff claims that, on November 28, 2018, the “tower officer” refused to let Plaintiff back in the building and that an unnamed “C/O” refused to let Plaintiff 19 back in his cell and then yelled out the tower window Plaintiff’s criminal charges, thereby endangering his safety. Id. at 15. 20 21 Plaintiff’s allegation against Defendant Mey is insufficient to state an Eighth 22 Amendment safety claim because he does not identify how the defendant allegedly incited other 23 inmates to harm him. Plaintiff’s claims related to a “tower officer” and an unidentified “C/O” 24 also fail to state a claim because the individuals involved are not named. Plaintiff will be 25 provided an opportunity to amend. 26 / / / 27 / / / 28 / / / 1 3. Medical Care 2 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 3 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 4 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 5 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 6 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 7 injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 8 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 9 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 10 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 11 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 12 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 13 The requirement of deliberate indifference is less stringent in medical needs cases 14 than in other Eighth Amendment contexts because the responsibility to provide inmates with 15 medical care does not generally conflict with competing penological concerns. See McGuckin, 16 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 17 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 18 1989). The complete denial of medical attention may constitute deliberate indifference. See 19 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 20 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 21 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 22 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 23 Negligence in diagnosing or treating a medical condition does not, however, give 24 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 25 difference of opinion between the prisoner and medical providers concerning the appropriate 26 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 27 90 F.3d 330, 332 (9th Cir. 1996). 28 / / / 1 Plaintiff alleges various facts related to his medical needs. Specifically, Plaintiff 2 claims. 3 - On September 27, 2018, his cellmate informed correction staff that Plaintiff was having an asthma attack but that no medical care was provided. See id. at 12-13. 4 - Defendant denied Plaintiff access to a medical appointment on October 7, 2018. 5 See id. at 13. 6 - Defendant Mey denied Plaintiff a breathing treatment while Plaintiff was having an asthma attack on October 11, 2018. See id. 7 - Plaintiff was denied an “ADA shower” on October 8, 2018, and again on October 8 21, 2018. See id. at 13-14. 9 Here, the Court finds that Plaintiff states an Eighth Amendment medical care claim 10 against Defendant Mey based on Plaintiff’s allegation that Defendant Mey denied him “a 11 breathing treatment” while Plaintiff was having an asthma attack on October 11, 2018. 12 Plaintiff does not otherwise state a medical care claim. His allegations related to 13 September 27, 2018, October 7, 2018, and October 8, 2018, are insufficient because he does not 14 identify a responsible defendant. Plaintiff will be provided an opportunity to amend. 15 16 III. CONCLUSION 17 Because it is possible that the deficiencies identified in this order may be cured by 18 amending the complaint, plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 19 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 20 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 21 1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the court cannot refer to the 22 prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An 23 amended complaint must be complete in itself without reference to any prior pleading. See id. 24 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 25 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 26 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 27 each named defendant is involved, and must set forth some affirmative link or connection 28 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 1 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 2 Because the complaint appears to otherwise state a cognizable claim, specifically 3 | Plaintiff's Eighth Amendment medical care claim against Defendant Mey based on denial of a 4 | breathing treatment on October 11, 2018, if no amended complaint is filed within the time 5 | allowed therefor, the court will issue findings and recommendations that the claims identified 6 | herein as defective be dismissed, as well as such further orders as are necessary for service of 7 | process as to the cognizable claim against Defendant Mey. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff's third amended complaint, ECF No. 20, filed after the second 10 | amended complaint, is stricken as having been filed without leave of Court; and 11 2. Though the Court finds that the action may proceed on the second amended 12 | complaint on Plaintiff's Eighth Amendment medical care claim against Defendant Mey based on 13 | denial of a breathing treatment on October 11, 2018, Plaintiff may file a third amended complaint 14 | within 30 days of the date of service of this order to correct the defects identified herein. 15 16 | Dated: March 23, 2021 Ssvcqo_ M7 DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 14