(PC) Hicks v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYL HICKS, No. 2:22-cv-0903 KJN P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 As discussed below, plaintiff’s complaint is dismissed with leave to amend. 4 Screening Standards 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 The Civil Rights Act 7 To prevail on a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a 8 federal constitutional or statutory right; and (2) that the violation was committed by a person 9 acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 10 789 F.3d 1030, 1035-36 (9th Cir. 2015). An individual defendant is not liable on a civil rights 11 claim unless the facts establish the defendant’s personal involvement in the constitutional 12 deprivation or a causal connection between the defendant’s wrongful conduct and the alleged 13 constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. 14 Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). That is, plaintiff may not sue any official on the 15 theory that the official is liable for the unconstitutional conduct of his or her subordinates. 16 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The requisite causal connection between a 17 supervisor’s wrongful conduct and the violation of the prisoner’s constitutional rights can be 18 established in a number of ways, including by demonstrating that a supervisor’s own culpable 19 action or inaction in the training, supervision, or control of his subordinates was a cause of 20 plaintiff’s injury. Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011). 21 Plaintiff’s Complaint 22 Plaintiff alleges the following. First, plaintiff is entitled to early release under Proposition 23 57 but that unidentified officers have issued plaintiff rules violation reports to increase plaintiff’s 24 security level and prolong plaintiff’s sentence.1 Second, he states he was “ejected to the yard 25 with [his] proclaimed enemies,” claiming a threat to safety. (ECF No. 1 at 6.) Third, defendant 26 Powell, plaintiff’s clinician, threatened and disrespected plaintiff, and “began to create a 27 1 Plaintiff checked the box marked “retaliation” (ECF No. 1 at 5), but plaintiff alleges no facts 28 supporting a putative retaliation claim. 1 voyeuristic environment when [they] were alone.” (ECF No. 1 at 7.) Fourth, defendant Dr. Kim 2 crushed and floated plaintiff’s Buspar and Ephexors [sic]2 prescriptions, which caused plaintiff to 3 vomit all his medications; plaintiff explained that he was unable to finish swallowing eight pills 4 with only two ounces of water, but the nurse made “false claims.” (ECF No. 1 at 8.) Dr. Kim 5 stopped plaintiff’s Buspar prescription, causing plaintiff to suffer withdrawals, and then lowered 6 the dose of Ephexors. Dr. Kim then began a Zoloft prescription which caused plaintiff to suffer 7 panic attacks, seizures, anxiety disorders, depression, and sleepless nights. About two months 8 later, Dr. Kim again reduced the Ephexors, and a month later discontinued it altogether, again 9 causing withdrawals. Fifteen days later, during plaintiff’s IDTT with his mental health supervisor 10 staff, it was admitted that “a mistake was made.” (ECF No. 1 at 8.) Plaintiff states he was 11 recently removed from the mental health crisis bed, but also states he was not allowed to continue 12 mental health care at the EOP level of care.3 13 Plaintiff names as defendants Warden Patrick Covello, CCII K. Costa, Mental Health 14 Supervisor R. Pleshchuk, Counselor Powell, and Psychiatrist Dr. Kim, all employed at Mule 15 Creek State Prison. As relief, plaintiff seeks transfer to a prison where he can receive mental 16 health care at the EOP level; have Proposition 57 time credits deducted from his sentence, and 17 have prison programming and conduct credits applied to his sentence; have re-adjudicated every 18 rules violation report that violated plaintiff’s due process rights; and be provided a Proposition 57 19 parole board hearing. In addition, plaintiff asks that the facility to which he is transferred provide 20 plaintiff with single cell status, video-camera coverage, and anti-racist staff. 21 //// 22 //// 23 24 2 Plaintiff may be referring to Effexor. 25 3 CDCR’s Mental Health Services Delivery System Program Guide provides four levels of mental health care services: Correctional Clinical Case Management System (“CCCMS”); 26 Enhanced Outpatient (“EOP”); Mental Health Crisis Bed (“MHCB”) and inpatient hospital care, which is offered in two programs, intermediate care facilities (“ICF”) and acute psychiatric 27 programs (“APP”). Coleman v. Brown, No. 2:90-cv-0520 KJM DB, 2013 WL 6491529, at *1 (E.D. Cal. Dec. 10, 2013). 28 1 Discussion 2 Plaintiff’s First Claim 3 Classification 4 Plaintiff alleges that he was illegally incarcerated at a Level III yard, and his due process 5 rights were violated by raising his security level to IV. (ECF No. 1 at 5.) 6 Inmates do not have a constitutional right to be housed at a particular facility or institution 7 or to be transferred, or not transferred, from one facility or institution to another. Olim v. 8 Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); 9 Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam). An inmate does not have a 10 constitutional right to any particular classification. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) 11 (“[P]etitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due 12 process.”); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (citations omitted). Nor 13 do inmates have a right to be housed in a particular part of a prison. See Grayson v. Rison, 945 14 F.2d 1064, 1067 (9th Cir. 1991) (prisoner had “no ‘justifiable expectation’ of being anywhere but 15 in administrative detention,” and his “placement was left to the discretion of prison officials.”). 16 Furthermore, inmates have no Eighth Amendment right to be housed in a manner that avoids 17 confrontation. Atiyeh v. Capps, 449 U.S. 1312, 1315-16 (1981). On the basis of such authorities, 18 plaintiff’s allegations concerning classification and housing fail to state a Fourteenth Amendment 19 claim upon which relief may be granted, and should not be included in an amended complaint. 20 Proposition 57 21 Plaintiff appears to allege that the failure to provide him early parole consideration under 22 Proposition 57 violates his rights to due process under the Fourteenth Amendments.4 23 On November 8, 2016, the California voters approved the Public Safety and 24 Rehabilitation Act of 2016 “Proposition 57,” which took effect the following day. People v. 25 Marquez, 11 Cal. App. 5th 816, 821 (Cal. App. 2017); Cal. Const., Art. II, § 10(a). Proposition 26 27 4 In his complaint, plaintiff does not challenge a particular rules violation report. (ECF No. 1, passim.) In Hicks v. Gosai, No. 2:20-cv-2303 KJM JDP (E.D. Cal.), plaintiff is challenging rules 28 violation reports authored by Correctional Officers Gosai and Rammi. (Id., ECF No. 32 at 4.) 1 57 makes parole more available for certain felons convicted of nonviolent crimes. Travers v. 2 People of the State of California, 2018 WL 707546, at *2 (N.D. Cal. Feb. 5, 2018). Specifically, 3 Proposition 57 adds Article I, section 32 to the California Constitution and provides: 4 (a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by 5 federal court order, notwithstanding anything in this article or any other provision of law: 6 (1) Parole Consideration: Any person convicted of a nonviolent 7 felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her 8 primary offense. 9 (A) For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the 10 court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. 11 (2) Credit Earning: The Department of Corrections and 12 Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements. 13 (b) The Department of Corrections and Rehabilitation shall adopt 14 regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that 15 these regulations protect and enhance public safety. 16 Cal. Const. art. I, § 32. See Cal. Code Regs., tit. 15, § 3490, subd. (c) [“‘Violent Felony’ is a 17 crime or enhancement as defined in Penal Code section 667.5, subdivision (c).”].) The addition 18 of § 32 to the California Constitution is the only change made to the adult criminal justice system 19 in California as a result of Proposition 57. 20 The plain meaning of the wording of Proposition 57 provides for early consideration of a 21 qualifying inmate for parole, not actual parole and release. Therefore, such consideration falls 22 outside of the “core of habeas corpus,” and must be pursued (if at all) in a civil rights action under 23 42 U.S.C. § 1983 rather than in a habeas action. Nettles v. Grounds, 830 F.3d 922, 927-28 (9th 24 Cir. 2016), cert. denied, 137 S. Ct. 645 (2017); See Solano v. Calif. Substance Abuse Treat. Fac., 25 2017 WL 5640920, at *1-2 (C.D. Cal. 2017) (habeas claims regarding Prop. 57 should be brought 26 in § 1983 action), rep. and rec. adopted, 2017 WL 5641027 (C.D. Cal. 2017); McCarary v. 27 Kernan, 2017 WL 4539992, at *2 (E.D. Cal. 2017) (challenge to applicability of Prop. 57 28 properly brought in civil rights action). 1 The denial of parole consideration under Proposition 57 asserts a violation or 2 misinterpretation of state law and is not cognizable under § 1983. See Bisel v. Kernan, 2018 WL 3 11294697, at *8 (E.D. Cal. Aug. 17, 2018) (cases cited therein). However, assuming plaintiff 4 could state a cognizable claim for violation of his constitutional rights based on defendants’ 5 failure to grant him parole consideration under Proposition 57, plaintiff has not demonstrated that 6 he qualifies for parole consideration under Proposition 57. See Bisel, 2018 WL 11294697 at *10 7 (“Thus, if properly linked to named defendants, factual allegations showing that one was 8 convicted of non-violent felonies, that the full term for the primary offense(s) (exclusive of 9 enhancement, consecutive sentences, or alternative sentencing) have run, and that he has not 10 received parole consideration as dictated by Proposition 57 despite repeated requests may state a 11 cognizable due process claim.”) 12 Here, plaintiff states that he sustained a nonviolent felony offense, but he fails to identify 13 his conviction. He also fails to address whether he has completed the full term for his primary 14 offense, and while he seeks application of credits, he fails to provide a basis upon which to find 15 that any good time he has earned applies to his eligibility for parole consideration after 16 completing the full term for his primary offense under Proposition 57. 17 In addition, plaintiff fails to set forth facts demonstrating that a named defendant was 18 personally involved in any act or omission which resulted in excluding or delaying plaintiff from 19 parole consideration under Proposition 57. As set forth above, 42 U.S.C. § 1983 requires that 20 there be an actual connection or link between the actions of the defendants and the deprivation 21 alleged to have been suffered by plaintiff. See Monell v. Department of Social Services, 436 U.S. 22 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that “[a] person 23 ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, 24 if he does an affirmative act, participates in another’s affirmative acts or omits to perform an act 25 which he is legally required to do that causes the deprivation of which complaint is made.” 26 Johnson v. Duffy, 588 F.2d at 743. To state a claim for relief against the named defendant, 27 plaintiff must link each of them to an affirmative act or omission that demonstrates a violation of 28 plaintiff’s federal rights. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). 1 Therefore, plaintiff’s Proposition 57 claim must be dismissed. If plaintiff files an 2 amended complaint as to such claim, his allegations must demonstrate that he has completed the 3 full term for his primary offenses and is eligible for parole consideration under Proposition 57.5 4 Plaintiff’s Second Claim 5 Plaintiff claims that his safety was threatened when he was ejected to a yard with 6 “proclaimed enemies.” 7 “[W]hen the State takes a person into its custody and holds him there against his will, the 8 Constitution imposes upon it a corresponding duty to assume some responsibility for his safety 9 and general well-being.” DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 10 189, 199-200 (1989). “[An] affirmative duty to protect arises . . . from the limitation which [the 11 State] has imposed on his freedom to act on his own behalf.” Id. at 200. 12 The duty to protect a prisoner from serious harm requires that prison officials take 13 reasonable measures to guarantee the safety and well-being of the prisoner. See Farmer, 511 U.S. 14 at 832-33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Specifically, prison officials 15 have a duty to protect prisoners from violence at the hands of other prisoners. Farmer, 511 U.S. 16 at 833. 17 To state a cognizable Eighth Amendment claim on a failure to protect theory, a prisoner 18 must reasonably allege that the named defendant knew of but disregarded an excessive risk to 19 plaintiff’s health or safety. Farmer, 511 U.S. at 837. There must be evidence which shows that a 20 defendant acted with a “sufficiently culpable state of mind.” Hearns v. Terhune, 413 F.3d 1036, 21 1042 (9th Cir. 2005). “[T]he official must both be aware of facts from which the inference could 22 be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 23 5 Moreover, any putative due process claim would arise under the Fourteenth Amendment. The 24 Fifth Amendment’s due process clause only applies to the federal government. Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth Amendment prohibits the federal 25 government from depriving persons of due process, while the Fourteenth Amendment explicitly prohibits deprivations without due process by the several States: ‘nor shall any State deprive any 26 person of life, liberty, or property, without due process of law.’ ” (quoting U.S. CONST. amend. XIV). Because plaintiff is not proceeding against federal actors, he is unable to state a cognizable 27 claim for violation of his rights under the Fifth Amendment. Rather, plaintiff’s allegations are properly analyzed under the Fourteenth Amendment. 28 1 Farmer, 511 U.S. at 837. “[I]t is enough that the official acted or failed to act despite his 2 knowledge of a substantial risk of serious harm.” Id. at 842 (citations omitted). 3 Moreover, allegations that prison officials called an inmate a “snitch” in the presence of 4 other prisoners may violate the inmate’s right to be protected from violence while in custody. See 5 Valandingham v. Bojorquez, 866 F.2d 1135, 1137-39 (9th Cir. 1989) (an inmate labeled a snitch 6 by prison officials for filing grievances may state a claim under § 1983). In such cases, a plaintiff 7 must “allege that he has been assaulted or threatened with an assault by other prisoners.” 8 Williams v. Wood, 223 F. App’x 670, 671 (9th Cir. 2007). However, “speculative and 9 generalized fears of harm at the hands of other prisoners do not rise to a sufficiently substantial 10 risk of serious harm.” Id. 11 Here, plaintiff fails to provide enough information to state a cognizable failure to protect 12 claim. Instead, plaintiff conflates his Proposition 57 claim with his threat to safety claim, and 13 includes at least one incident not at issue herein.6 Plaintiff fails to clearly identify who “ejected” 14 plaintiff to the yard, whether that person was aware of such “proclaimed enemies,” and when 15 such ejection took place. With regard to defendant Costa, who held plaintiff’s classification 16 hearing, plaintiff alleges no facts demonstrating that Costa was aware that nonparty Officer Gosai 17 had spread rumors that plaintiff had “snitched” and “said black inmates were making weapons.” 18 (ECF No. 1 at 6.) Rather, at the hearing plaintiff “expressed fear for [his] life and unlawful 19 security level incarceration,” as well as his request to be reassigned to his electrical position. (Id.) 20 Absent facts not alleged here, plaintiff’s claim that Costa told plaintiff that Costa was transferring 21 plaintiff to A yard only until another yard became available does not demonstrate Costa acted 22 with a culpable state of mind. 23 In addition, plaintiff claims he is on a yard with the majority of inmates serving life 24 sentences while plaintiff is the only one serving a non-violent crime. He subsequently claims he 25 has “many enemies” at MCSP. (ECF No. 1 at 8.) But plaintiff fails to identify such enemies, or 26 27 6 For example, plaintiff claims Officer Russell physically assaulted plaintiff on July 15, 2021. (ECF No. 1 at 6.) Based on such incident, plaintiff is pursuing First and Eighth Amendment 28 claims against defendant Russell in Hicks v. Russell, No. 2:22-cv-0095 JDP (E.D. Cal.). 1 to provide specific facts demonstrating a substantial risk of harm existed; thus, plaintiff’s 2 generalized fear is insufficient. Plaintiff must allege specific facts demonstrating that the named 3 defendant knew of and disregarded threats or actual harassment by other inmates based on 4 plaintiff having been labeled a “snitch.” See Farmer, 511 U.S. at 834. 5 Plaintiff is granted leave to amend to state specific facts to support a threat to safety claim. 6 Claim Three: Denial of Mental Health Care 7 Initially, the undersigned observes that plaintiff’s claims that defendant Powell threatened 8 to remove plaintiff from EOP in 90 days and disrespected plaintiff, standing alone, are 9 insufficient to demonstrate an Eighth Amendment violation. Allegations of mere threats are not 10 cognizable. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute 11 constitutional wrong, nor do allegations that naked threat was for purpose of denying access to 12 courts compel contrary result). Similarly, allegations of harassment, embarrassment, and 13 defamation are not cognizable under section 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 14 1345, 1353 (9th Cir. 1981), aff’d sub nom. Kush v. Rutledge, 460 U.S. 719 (1983); see also 15 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1982) (allegations of harassment with regards 16 to medical problems not cognizable). 17 On the other hand, the treatment a prisoner receives in prison and the conditions under 18 which he is confined are subject to scrutiny under the Eighth Amendment. See Helling v. 19 McKinney, 509 U.S. 25, 31 (1993). A mentally ill prisoner may establish unconstitutional 20 treatment on behalf of prison officials by showing that officials have been deliberately indifferent 21 to his serious medical needs. See Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994); 22 see also Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982) (mental health care requirements 23 analyzed as part of general health care requirements). A serious medical need exists if the failure 24 to treat a prisoner’s condition could result in further significant injury or the unnecessary and 25 wanton infliction of pain. Doty, 37 F.3d at 546; see, e.g., Conn v. City of Reno, 591 F.3d 1081, 26 1094 (9th Cir. 2010) (a heightened suicide risk or an attempted suicide is a serious medical need; 27 reversing grant of summary judgment to transporting police officers where plaintiffs presented 28 sufficient evidence for a jury to find that the decedent’s pre-suicidal actions objectively evidenced 1 a serious medical need), reinstated as modified by 658 F.3d 897 (9th Cir. 2011); Capps v. Atiyeh, 2 559 F. Supp. 894, 916 (D. Ore. 1983) (inmate suffers Eighth Amendment pain whenever he must 3 endure untreated serious mental illness for any appreciable length of time). 4 Under the Eighth Amendment, deliberate indifference requires a showing that prison 5 officials possess a sufficiently culpable state of mind. See Farmer, 511 U.S. at 834. Specifically, 6 it must be shown both that each defendant was subjectively aware of the serious medical need and 7 failed to adequately respond to that need. Conn, 591 F.3d at 1096. In other words, a prison 8 official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious 9 harm and disregards that risk by failing to take reasonable steps to abate it. Farmer, 511 U.S. at 10 837. The prison official must not only “be aware of facts from which the inference could be 11 drawn that a substantial risk of serious harm exists,” but he “must also draw the inference.” Id. If 12 a prison official should have been aware of the risk, but was not, then the official has not violated 13 the Eighth Amendment, no matter how severe the risk. Additionally, the officials’ actions must 14 be the cause of the injury suffered as a result of their deliberate indifference. Conn, 591 F.3d at 15 1098. An isolated failure to respond to a non-serious medical need cannot, by itself, establish an 16 unconstitutional health care system. See Doty, 37 F.3d at 547. 17 “A difference of opinion between a prisoner-patient and prison medical authorities 18 regarding treatment does not give rise to a § 1983 claim.” Franklin, 662 F.2d at 1344. Similarly, 19 a showing of nothing more than a difference of medical opinion as to the need to pursue one 20 course of treatment over another is insufficient, as a matter of law, to establish deliberate 21 indifference, Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 22 240, 242 (9th Cir. 1989). In order to prevail on a claim involving choices between alternative 23 courses of treatment, a plaintiff must show that the course of treatment the doctors chose was 24 medically unacceptable under the circumstances and that he or she chose this course in conscious 25 disregard of an excessive risk to plaintiff’s health. Toguchi, 391 F.3d at 1058; Jackson v. 26 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing Farmer, 511 U.S. at 837). 27 Plaintiff’s allegations fail to demonstrate defendant Powell was deliberately indifferent to 28 plaintiff’s mental health needs. After plaintiff was on A yard for almost two months, defendant 1 Powell told plaintiff that defendant Powell would only allow plaintiff 90 days before removing 2 him from the EOP. (ECF No. 1 at 7.) Plaintiff appealed the threat, and claims defendant Dr. 3 Pleshchuk met with plaintiff and asked him why he wanted to be in the program. Plaintiff 4 responded that he needed help with anxieties and depression. Plaintiff then states he was 5 “abruptly removed from the program” even though he had not been on the A yard for five 6 months. (ECF No. 1 at 7.) But defendant Powell informed plaintiff he was only put in the 7 program “because of the early release credits.” (Id.) Plaintiff does not specifically identify who 8 removed him from the program, referencing “they.” (Id.) Such allegations fail to show either 9 defendant acted or failed to act with a culpable state of mind. 10 Again, plaintiff fails to provide sufficient facts to determine whether he can state a 11 cognizable Eighth Amendment claim as to defendants Powell or Dr. Pleshchuk. But in an 12 abundance of caution, plaintiff is granted leave to amend. 13 Claim Four: Medical Care 14 To state a viable claim of deliberate indifference to a serious medical need, a plaintiff 15 must show that (1) a serious medical need exists, and (2) defendant’s response was deliberately 16 indifferent. Serious medical need can be shown by demonstrating that a failure to treat a prisoner 17 could result in significant injury or worsening pain. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 18 2006). A deliberately indifferent response can be shown by a purposeful act or failure to respond 19 to a prisoner’s pain or possible medical need coupled with harm caused by that indifference. Id. 20 “A heightened suicide risk or an attempted suicide is a serious medical need.” Conn, 591 F.3d at 21 1095. 22 Plaintiff’s allegations as to Dr. Kim are not clear. Plaintiff obliquely claims that the pill 23 nurse made “false claims.” Dr. Kim crushed and floated plaintiff’s psychiatric medications, 24 which suggests plaintiff may have been accused of diverting medications. If that is the case, Dr. 25 Kim was not acting with a culpable state of mind by tapering and discontinuing such medications; 26 indeed, medical policy may require it. But plaintiff also references a failed overdose attempt on 27 his part. It is not clear whether plaintiff attempted to overdose prior to Dr. Kim adjusting 28 plaintiff’s medications, or after. 1 It is clear, however, that plaintiff disagreed with Dr. Kim’s methods, and plaintiff alleges 2 that the IDTT committee “admitted a mistake was made.” (ECF No. 1 at 8.) However, such 3 allegations fail to demonstrate deliberate indifference on the part of Dr. Kim. 4 The Supreme Court established a very demanding standard for deliberate indifference; 5 and negligence is insufficient. Farmer, 511 U.S. at 835. It is not enough that a reasonable person 6 would have known of the risk or that a defendant should have known of the risk. Id. at 842. 7 Rather, deliberate indifference is established only where the defendant subjectively “knows of 8 and disregards an excessive risk to inmate health and safety.” Toguchi, 391 F.3d at 1057 (internal 9 citation omitted). A difference of opinion between an inmate and prison medical personnel, or 10 between medical professionals, regarding appropriate medical diagnosis and treatment is also not 11 enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d at 242; Toguchi, 12 391 F.3d at 1058. Moreover, even medical malpractice or “gross negligence” does not by itself 13 establish deliberate indifference to serious medical needs. Wood v. Housewright, 900 F.2d 1332, 14 1334 (9th Cir. 1990). 15 Further, a patient is not entitled to request a prescription for a specific medication, and a 16 doctor’s refusal to comply with such a request does not amount to an Eighth Amendment 17 violation. See Arellano v. Sedighi, 2020 WL 5877832, at *18 (S.D. Cal. Oct. 1, 2020), adopting 18 report and recommendation, 2021 WL 7711170 (S.D. Cal. May 7, 2021); Tucker v. Daszko, 2017 19 WL 4340090, at *3 (E.D. Cal. Sep. 29, 2017) (citing cases). Simply showing that a course of 20 treatment proves to be ineffective, without demonstrating that the medical professional’s conduct 21 was medically unacceptable under the circumstances and chosen in conscious disregard to 22 plaintiff’s health, also does not establish a claim for deliberate indifference. Nicholson v. 23 Finander, 2014 WL 1407828, at *9 (C.D. Cal. 2014) (citing Estelle v. Gamble, 429 U.S. 97, 105 24 (1976); Toguchi, 391 F.3d at 1058). 25 For all of the above reasons, plaintiff’s fourth claim is dismissed. Given plaintiff’s vague 26 allegations, it is unclear whether plaintiff can amend his complaint to state a cognizable Eighth 27 Amendment claim against defendant Dr. Kim. However, in an abundance of caution, plaintiff is 28 granted leave to amend. 1 Misjoinder 2 Finally, plaintiff’s claims are not properly raised in the same action. Rule 21 of the 3 Federal Rules of Civil Procedure provides: 4 Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add 5 or drop a party. The court may also sever any claim against a party. 6 Fed. R. Civ. P. 21. Rule 20(a) provides that all persons may be joined in one action as defendants 7 if “any right to relief is asserted against them jointly, severally, or in the alternative with respect 8 to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and 9 “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 10 20(a)(2). See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against 11 unrelated defendants belong in different suits”). If unrelated claims are improperly joined, the 12 court may dismiss them without prejudice. Fed. R. Civ. P. 21; 7 Alan Wright, Arthur Miller & 13 Mary Kay Kane, Richard Marcus, Federal Practice and Procedure § 1684 (3d ed. 2012); Michaels 14 Building Co. v. Ameritrust Co., 848 F.2d 674, 682 (6th Cir. 1988) (affirming dismissing under 15 Rule 21 of certain defendants where claims against those defendants did not arise out of the same 16 transaction or occurrences, as required by Rule 20(a)). Here, plaintiff’s claims arose from 17 different incidents involving different defendants, and therefore are not properly joined in one 18 action. 19 Where parties have been misjoined, the court may drop a party or sever the claims against 20 that party. Fed. R. Civ. P. 21. “[D]istrict courts who dismiss rather than sever must conduct a 21 prejudice analysis, including ‘loss of otherwise timely claims if new suits are blocked by statutes 22 of limitations.’” Rush v. Sport Chalet, Inc., 779 F.3d 973, 975 (9th Cir. 2015) (quoting DirecTV, 23 Inc. v. Leto, 467 F.3d 842, 846-47 (3d Cir. 2006)). Here, because the unrelated claims are based 24 on relatively recent incidents, July of 2021, and plaintiff has failed to allege facts to state a 25 cognizable civil rights claim, plaintiff will not be prejudiced by this dismissal with leave to 26 amend. Because plaintiff’s complaint is dismissed with leave to amend, plaintiff must decide 27 which claim to pursue in this action and pursue any remaining claims in separate, timely actions. 28 //// 1 See also George, 507 F.3d at 607 (“Unrelated claims against unrelated defendants belong in 2 different suits”). 3 Leave to Amend 4 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 5 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 6 court determines that the complaint does not contain a short and plain statement as required by 7 Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint 8 must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. 9 Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some 10 degree of particularity overt acts which defendants engaged in that support plaintiff’s claim. Id. 11 Because plaintiff failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint 12 must be dismissed. The court, however, grants leave to file an amended complaint. See Rosati v. 13 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se 14 complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is 15 absolutely clear that the deficiencies of the complaint could not be cured by amendment.’”) 16 (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 17 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 18 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 19 West, 487 U.S. at 48. Also, the complaint must allege in specific terms how each named 20 defendant is involved. Rizzo, 423 U.S. at 371. There can be no liability under 42 U.S.C. § 1983 21 unless there is some affirmative link or connection between a defendant’s actions and the claimed 22 deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). 23 Furthermore, vague and conclusory allegations of official participation in civil rights violations 24 are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 25 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 26 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 27 complaint be complete in itself without reference to any prior pleading. This requirement exists 28 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 1 |} v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 2 || supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 3 || omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 4 | function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 5 || and the involvement of each defendant must be sufficiently alleged. 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Plaintiffs request for leave to proceed in forma pauperis is granted. 8 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 9 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 10 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 11 | Director of the California Department of Corrections and Rehabilitation filed concurrently 12 || herewith. 13 3. Plaintiff's complaint is dismissed. 14 4. Within thirty days from the date of this order, plaintiff shall complete the attached 15 || Notice of Amendment and submit the following documents to the court: 16 a. The completed Notice of Amendment; and 17 b. An original of the Amended Complaint. 18 | Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 19 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 20 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 21 Failure to file an amended complaint in accordance with this order may result in the 22 || dismissal of this action. 23 | Dated: October 6, 2022 4 Foci) Aharon 25 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 26 picko903.14n 27 28 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DARYL ANTHONY HICKS, No. 2:22-cv-0903 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 PATRICK COVELLO, et al., 14 Defendants. 15 16 Plaintiff hereby submits the following document in compliance with the court’s order 17 filed______________. 18 _____________ Amended Complaint DATED: 19 20 ________________________________ Plaintiff 21 22 23 24 25 26 27 28