(PC) Duncan v. California Healthcare Receivership Corp. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DIONTAE JOHAN DUNCAN, Case No. 1:20-cv-01288-ADA-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND 13 v. DEFENDANTS FROM PLAINTIFF’S SECOND AMENDED COMPLAINT 14 CALIFORNIA HEALTHCARE RECEIVERSHIP CORP., et al., (Doc. 52) 15 Defendants. 14-DAY OBJECTION PERIOD 16 17 18 I. RELEVANT PROCEDURAL BACKGROUND 19 Plaintiff initiated this action with the filing of his original complaint on September 10, 20 2020. (Doc. 1.) 21 In its First Screening Order issued June 14, 2021, the Court found Plaintiff’s complaint 22 violated Rule 8 of the Federal Rules of Civil Procedure because it was “replete with arguments, 23 conclusory statements, vague assertions, and unnecessary background.” (See Doc. 27 at 3.) 24 Plaintiff was afforded the opportunity to file a first amended complaint curing the deficiencies 25 identified; he was to do so within 21 days. (Id. at 7.) 26 On July 20, 2021, the undersigned issued an Order to Show Cause (OSC) why the action 27 should not be dismissed for Plaintiff’s failure to obey a court order. (Doc. 34.) Plaintiff responded 28 on July 30, 2021, indicating his “alarming shock and total fear” upon receipt of the OSC, and 1 contending he did not receive the Court’s screening order. (Doc. 35.) On August 2, 2021, the 2 OSC was discharged, and Plaintiff was granted an extension of time to file a first amended 3 complaint; Plaintiff was also re-served with the screening order. (Doc. 36.) 4 On August 23, 2021, Plaintiff filed a first amended complaint. (Doc. 41.) Under the 5 heading “IV. Causes of Action,” Plaintiff attempted to incorporate his original complaint. (Id. at 6 5, 10.) 7 On March 15, 2022, the undersigned issued an Order Granting Plaintiff Leave to File a 8 Second Amended Complaint, finding Plaintiff’s first amended complaint did not comply with the 9 Court’s previous screening order because it was not an amended complaint complete in and of 10 itself. (Doc. 46.) Plaintiff was afforded 30 days within which to file a second amended complaint. 11 (Id. at 4.) On May 4, 2022, Plaintiff filed his second amended complaint. (Doc. 52.) 12 On July 25, 2022, Plaintiff filed a document titled “… Leave Request To Reponsed an 13 Amended Chance Complaint [if] Difficult Vision to Already One Filed [Amended #2] before 14 dismissal even Consider Chance by ….” (Doc. 63 [punctuation marks & brackets in original].) 15 On November 22, 2022, Plaintiff filed a document titled “Motion: Change of address. And 16 Requestin[g] T.R.O for New arisen Injury, Request to Amend Complaint Add New defendants at 17 a Later Date. Request Motion this of Court ….” (Doc. 67 [punctuation in original].) 18 On November 30, 2022, the Court issued its Order Regarding Plaintiff’s July 25, 2022 and 19 November 22, 2022 Filings. (Doc. 69.) The Court denied Plaintiff’s July 25, 2022 filing as moot, 20 finding the filing “cannot be construed as a motion for leave to file a third amended complaint,” 21 because it did “not seek to make any changes to the claims asserted in Plaintiff’s second amended 22 complaint, nor does it reference any additional defendants, or even specific transactions or 23 occurrences. Rather, Plaintiff’s filing is interpreted to be an explanation regarding his previous 24 attempts to file an amended complaint.” (Id. at 4.) The Court also denied Plaintiff’s November 22, 25 2022 filing, finding it sought “leave to amend … to add both new claims and new defendants” in 26 violation of Rule 20 of the Federal Rules of Civil Procedure. (Id. at 4-6.) 27 II. SCREENING REQUIREMENT 28 The Court is required to screen complaints brought by prisoners seeking relief against a 1 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 2 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 3 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 4 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 5 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 6 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 7 III. PLEADING REQUIREMENTS 8 A. Federal Rule of Civil Procedure 8(a) 9 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 10 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 11 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 12 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 13 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 14 quotation marks & citation omitted). 15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 16 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 17 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 18 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 19 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal 20 conclusions are not. Id. (citing Twombly, 550 U.S. at 555). 21 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 22 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 23 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 24 theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 25 of a civil rights complaint may not supply essential elements of the claim that were not initially 26 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 27 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 28 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 1 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 2 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 3 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 4 B. Linkage and Causation 5 Section 1983 provides a cause of action for the violation of constitutional or other federal 6 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 7 section 1983, a plaintiff must show a causal connection or link between the actions of the 8 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 9 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 10 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 11 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 12 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 13 743 (9th Cir. 1978) (citation omitted). 14 C. Supervisory Liability 15 Liability may not be imposed on supervisory personnel for the actions or omissions of 16 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., 17 Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to 18 adduce evidence the named supervisory defendants “themselves acted or failed to act 19 unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. 20 C’nty of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930, 934 21 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 22 1983 there must be a showing of personal participation in the alleged rights deprivation: there is 23 no respondeat superior liability under section 1983”). 24 Supervisors may be held liable only if they “participated in or directed the violations, or 25 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 26 Cir. 1989). “The requisite causal connection may be established when an official sets in motion a 27 ‘series of acts by others which the actor knows or reasonably should know would cause others to 28 inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord 1 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on 2 inaction in the training and supervision of subordinates). 3 Supervisory liability may also exist without any personal participation if the official 4 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 5 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 6 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other 7 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 8 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his 9 deprivation resulted from an official policy or custom established by a ... policymaker possessed 10 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 11 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between 12 such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 13 Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the 14 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. 15 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 16 IV. SCREENING DISCUSSION 17 A. Plaintiff’s Second Amended Complaint 18 Plaintiff’s seconded amended complaint Plaintiff names the California Healthcare 19 Receivership Corp., as well as Warden P. Phiffer, Psychologist G. Graywall, Psychologist 20 Rubbish, EOP Supervisor/LCSW T. Taylor,1 Senior Crisis Psychologist W. Gerderal III, LCSW 21 J. Marciel, Psychologist Jane Doe #1 and Psychologist Jane Doe #2, all employed at Kern Valley 22 State Prison, as defendants. (Doc. 52 at 1-4.) 23 In his first claim for relief, titled “Freedom from Cruel and Unusual punishment by 24 Mental Health Care providers within CDCR at Kern Valley State Prison,” Plaintiff alleges that on 25 1 Plaintiff’s second amended complaint names “T. Taylor” in the caption. (Doc. 52 at 1.) Subsequently, 26 under the heading “III. Defendants” in the complaint form, Plaintiff identifies “T. Taylor” as “employed as E.O.P. Supervisor.” (Id. at 3.) Later, Plaintiff provides an additional handwritten page with a heading titled 27 “III. Defendan[t]s continued” wherein he states “Taylor, is employed as Licensed Clinical Social Worker at KVSP.” (Id. at 4.) Nevertheless, it is clear from the factual content of the claims asserted there is but 28 one Defendant Taylor. 1 March 17, 2017, he was “dropped from E.O.P level of care to a [“lowest”] level” of mental health 2 care despite admission to an acute mental hospital “3 months before.” (Doc. 52 at 3.) Plaintiff 3 contends he decompensated on April 1, 2022 in “this lowest level of care [CCCMS].” (Id.) 4 Plaintiff also contends he has been physically assaulted and sexually battered, “housed in punitive 5 segregation on false documentation because of all defendants,” and has endured physical, mental 6 and spiritual suffering as a result. (Id. at 3, 5.) Plaintiff asserts the injuries started when 7 Defendants Marciel and Graywall “dropped” him to the lowest level of care. (Id. at 5.) He 8 contends Marciel continued “this level by false reports of real mental health stability.” (Id.) 9 Plaintiff further alleges that Jane Doe #1 and Jane Doe #2 “did the same.” (Id.) Defendant Taylor 10 “ignored a suicide cry for help,” after Plaintiff “acted on his poor impulse” and swallowed 200 11 pills “and scared his heart to a 1st degree opt condition.” (Id.) Defendant Gerderal ignored “an 12 extensive evaluation in this incident and with rest of defendants falsified documents and lied 13 about plaintiff’s stability to cover up plaintiff’s decompensating spiral towards death” between 14 March 17, 2017 until April 1, 2022. (Id.) 15 In his second claim for relief, titled “Due process 14th Amendment violation,” Plaintiff 16 states that “around July 2017,” Defendant Marciel “lied and falsified 115-MH-RVR evaluation 17 document,” resulting in Plaintiff’s six-month punitive segregation due to Marciel’s lies. (Doc. 52 18 at 5.) Plaintiff contends the appeals coordinator “agreed and granted that he did was deliberately 19 indifferent.” (Id.) Plaintiff asserts the appeals coordinator “only took J. Marciel off [his] case load 20 but never re-evaluated the behavior by a new reviewer.” (Id.) Although not entirely clear, Plaintiff 21 appears to assert that by failing to perform a reevaluation, the document causing Plaintiff’s six- 22 month punitive segregation remained on file. (Id. at 5-6.) Plaintiff alleges he was “finally raised 23 up to a progressive level of care. Back E.O.P.” (Id. at 6.) Plaintiff contends “these defendants 24 falsified and deliberately lied about” his stability “where he was deliberately housed around 25 higher function inmate.” (Id.) Plaintiff contends the falsified reports by Marciel caused his six- 26 month punitive segregation and that he was “assaulted by inmates, physically beat up, sexually 27 battered under” Defendant Rubbish’s “watch.” (Id.) Defendant Taylor denied “a sign cry for 28 help” when Plaintiff attempted suicide by swallowing 200 pills “on Taylor’s watch.” (Id.) 1 Plaintiff contends Gerderal was lied to by Jane Doe #1 and Jane Doe #2 “about stability after 2 suicide attempt where plaintiff killed his 1st degree heart” and under the “deliberate miss eval.” 3 followed by Gerderal and lies, Plaintiff was denied an evaluation for higher care around March 4 17, 2018. (Id.) Plaintiff contends Defendant Phiffer was “warden at KVSP [where] these staff 5 worked.” (Id.) Plaintiff contends that collectively the named Defendants “conspired lies and 6 covered up records to downplay physical assaults, sexual batteries, and mental emotional pain and 7 suffering from” March 2017 when Taylor and Graybill’s action “illegally” caused Plaintiff’s 8 “drop” to the lowest form of mental health care. (Id. at 6-7.) Plaintiff asserts the aftereffects “were 9 the injuries described herein” and are incalculable “by the deliberated conspired scheme to be 10 blind even as made put on notice.” (Id. at 7.) Plaintiff states that “again and again” he suffered 11 injuries “at different approx. time” between March 17, 2017 and April 1, 2022. (Id.) Plaintiff 12 claims “these defendants orchestrated” a way to admit his injuries and assign him to a “higher 13 more safer level of appropriate care by fei[g]ning” humanity. (Id.) Plaintiff contends he is back in 14 E.O.P. “for same reasons that got him dropped to injuries 5 years before” and “many injuries” 15 were amassed during that period, “on top of COVID-19 suffered 4 times.” (Id.) 16 Plaintiff seeks declaratory relief “for defendants to explain and correct reasons of 17 treatment,” injunctive relief in the form of being kept “at a higher level of care,” punitive 18 damages of $200,000 and compensatory damages of $800,000, “individually and officially to all 19 defendants.” (Doc. 52 at 8.) 20 B. Analysis 21 1. Deliberate Indifference to Serious Medical Needs 22 The Court construes Claim I of the second amended complaint to assert Eighth 23 Amendment violations by all named Defendants for their alleged deliberate indifference to 24 Plaintiff’s serious medical needs. 25 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 26 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 27 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 28 infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th Cir. 2014) (quoting Jett v. 1 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 2 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 3 1997) (en banc)). 4 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 5 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition could 6 result in further significant injury or the unnecessary and wanton infliction of pain. Second, the 7 plaintiff must show the defendants’ response to the need was deliberately indifferent.” Wilhelm v. 8 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 (quotation marks 9 omitted)). 10 As to the first prong, indications of a serious medical need “include the existence of an 11 injury that a reasonable doctor or patient would find important and worthy of comment or treatment; 12 the presence of a medical condition that significantly affects an individual’s daily activities; or the 13 existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 14 2014) (citation & internal quotation marks omitted); accord Wilhelm, 680 F.3d at 1122; Lopez v. 15 Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (“Examples of serious medical needs include ‘[t]he 16 existence of an injury that a reasonable doctor or patient would find important and worthy of 17 comment or treatment; the presence of a medical condition that significantly affects an individual’s 18 daily activities; or the existence of chronic and substantial pain”). 19 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 20 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 21 safety.’” Farmer, 511 U.S. at 835 (1994) (quoting Whitley, 475 U.S. at 319). Deliberate indifference 22 is shown where a prison official “knows that inmates face a substantial risk of serious harm and 23 disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. In medical cases, 24 this requires showing: (a) a purposeful act or failure to respond to a prisoner’s pain or possible 25 medical need and (b) harm caused by the indifference. Wilhelm, 680 F.3d at 1122 (quoting Jett, 26 439 F.3d at 1096). “A prisoner need not show his harm was substantial; however, such would 27 provide additional support for the inmate’s claim that the defendant was deliberately indifferent to 28 his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 F.2d at 1060. 1 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 2 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from 3 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 4 ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official 5 should have been aware of the risk, but was not, then the official has not violated the Eighth 6 Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 7 290 F.3d 1175, 1188 (9th Cir. 2002)). 8 To prevail on a deliberate-indifference claim, a plaintiff must also show that harm resulted 9 from a defendant’s wrongful conduct. Wilhelm, 680 F.3d at 1122; see also Jett, 439 F.3d at 1096; 10 Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging deliberate indifference 11 based on delay in treatment must show delay led to further injury). 12 Here, liberally construing the second amended complaint, Plaintiff has met the first, 13 objective prong of the deliberate indifference test. Plaintiff contends he has significant mental 14 health concerns, including a suicide attempt, that a reasonable doctor would find important and 15 worthy of treatment. Colwell, 763 F.3d at 1066. 16 As to the second, subjective prong of the deliberate indifference test, Plaintiff’s second 17 amended complaint plausibly alleges that Defendants Marciel, Graywall, Taylor, Gerderal and 18 Jane Does #1 and #2 knew Plaintiff faced a substantial risk of serious harm because Plaintiff had 19 recently been admitted to an acute mental hospital, and these Defendants disregarded that risk of 20 serious harm by failing to take reasonable measures to abate the risk in the form of ensuring 21 Plaintiff’s E.O.P. placement, particularly where Plaintiff had attempted suicide by swallowing 22 200 pills. Farmer, 511 U.S. at 835, 837. Plaintiff has not stated a plausible deliberate indifference 23 to serious medical needs claim against any other named Defendant because the second amended 24 complaint, in Claim I, makes no reference whatsoever to Defendants Rubbish and Phiffer. Thus, 25 Plaintiff has failed to link any action or inaction by Rubbish or Phiffer to his claim. Rizzo, 423 26 U.S. at 373-75. 27 In sum, Plaintiff has stated plausible Eighth Amendment deliberate indifference to serious 28 medical needs claims against Defendants Marciel, Graywall, Taylor, Gerderal and Jane Does #1 1 and #2. 2 2. Due Process 3 Plaintiff’s Claim II is titled “Due process 14th Amendment Violation.” (Doc. 52 at 5.) 4 Plaintiff appears to contend his due process rights were violated by all named Defendants when 5 he was removed from EOP. (Id.) 6 The Due Process Clause protects prisoners from being deprived of life, liberty, or property 7 without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To state a claim of 8 deprivation of due process, a plaintiff must allege the existence of a liberty or property interest for 9 which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 (1977); Bd. of Regents 10 v. Roth, 408 U.S. 564, 569 (1972). Liberty interests can arise both from the Constitution and from 11 state law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224- 12 27 (1976); Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the 13 Constitution itself protects a liberty interest, the court should consider whether the practice in 14 question “... is within the normal limits or range of custody which the conviction has authorized 15 the State to impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, 16 the Supreme Court has concluded that the Constitution itself provides no liberty interest in good- 17 time credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v. 18 Conner, 515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425 19 U.S. 308, 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or 20 in remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 21 (1983). See also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff had no protected 22 liberty interest in being free from confinement in the SHU); Robinson v. Knowles, No. DIV S-08- 23 0629-MCE-CMK-P, 2008 WL 1141615, at *2 (E.D. Cal. Apr. 7, 2008) (“it does not appear that 24 plaintiff can state a cognizable due process claim based on placement in ‘E.O.P.’”). The Due 25 Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse 26 conditions of confinement. Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005). 27 Additionally, “where a particular Amendment provides an explicit textual source of 28 constitutional protection against a particular sort of government behavior, that Amendment, not 1 the more generalized notion of substantive due process, must be the guide for analyzing these 2 claims.” County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 3 510 U.S. 266, 273 (1994); Graham v. Connor, 490 U.S. 386, 395 (1989). Here, Plaintiff’s Eighth 4 Amendment deliberate indifference to serious medical needs claims against Defendants Marciel, 5 Graywall, Taylor, Gerderal and Jane Does #1 and #2 provide the explicit textual source for his 6 claims against those Defendants, and Plaintiff alleges no specific facts demonstrating a separate 7 due process claim. 8 In light of the foregoing, since Plaintiff has no liberty interest in remaining in EOP, 9 Plaintiff cannot state a cognizable due process claim. Further, his Eighth Amendment deliberate 10 indifference to serious medical needs claims provide the explicit textual source of his 11 constitutional protection and guide the analysis of his claims. 12 3. Retaliation 13 In an abundance of caution, the Court also construes Claim II of the second amended 14 complaint to assert First Amendment violations by all named Defendants for retaliation. A claim 15 for First Amendment retaliation in the prison context requires: (1) that a state actor took some 16 adverse action against the plaintiff (2) because of (3) the plaintiff’s protected conduct, and that 17 such action (4) chilled the plaintiff’s exercise of his First Amendment rights, and (5) “the action 18 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 19 567-68 (9th Cir. 2005); see also Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). To prove 20 the second element, retaliatory motive, plaintiff must show that his protected activities were a 21 “substantial” or “motivating” factor behind the defendant’s challenged conduct. Brodheim, 584 22 F.3d at 1269, 1271. Plaintiff must provide direct or circumstantial evidence of defendant’s alleged 23 retaliatory motive; mere speculation is not sufficient. See McCollum v. CDCR, 647 F.3d 870, 24 882–83 (9th Cir. 2011); accord, Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In addition to 25 demonstrating defendant’s knowledge of plaintiff’s protected conduct, circumstantial evidence of 26 motive may include: (1) proximity in time between the protected conduct and the alleged 27 retaliation; (2) defendant’s expressed opposition to the protected conduct; and (3) other evidence 28 showing that defendant’s reasons for the challenged action were false or pretextual. McCollum, 1 647 F.3d at 882. To the extent Plaintiff’s claim alleges retaliation against the named Defendants 2 for Plaintiff’s removal from EOP, Plaintiff has not stated cognizable retaliation claims against any 3 named Defendant. 4 EOP refers to Enhanced Outpatient Program and has been described as follows: 5 Inmates who receive enhanced outpatient program care are designated EOP by CDCR Mental Health Services because they are 6 receiving mental health care services. EOP is characterized by a separate housing unit and structured activities for mentally ill inmate- 7 patients who, because of their illness, experience adjustment difficulties in a General Population (“GP”) setting, yet are not so 8 impaired as to require 24–hour inpatient care. One of the critical components of the program is the designated housing unit with 9 restricted access and alternative educational, work, and recreational opportunities specifically provided for inmate-patients whose mental 10 illness precludes their placement and participation in the GP programs. One of the specific objectives of EOP is to provide 11 treatment that focuses on achieving behavioral control and the development of socially acceptable behavior within the institution. 12 Specific EOP treatment criteria require those receiving services to experience: (1) acute onset of or significant decompensation of a 13 serious mental disorder characterized by symptoms such as delusional thinking, marked changes in affect, and vegetative signs 14 with definitive impairment of reality testing and/or judgment; (2) an inability to function in the GP; and (3) usually, a Global Assessment 15 Functioning score of less than fifty. 16 Martinez v. Tilton, No. 1:10-cv-01501-SKO (PC), 2015 WL 119739, at *7 (E.D. Cal. Mar. 16, 17 2015).2 18 While inmates do not have the constitutional right to be housed at a particular prison or 19 within a particular unit at a prison, the lack of a separate constitutionally protected interest in a 20 particular housing assignment does not defeat a retaliation claim. Watison v. Carter, 668 F.3d 21 1108, 1114 (9th Cir. 2012) (citing Brodheim, 584 F.3d at 1269); Austin v. Terhune, 367 F.3d 22 1167, 1170-71 (9th Cir. 2004); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “The adverse 23 action need not be an independent constitutional violation.” Watison, 668 F.3d at 1114 (citing 24 Pratt, 65 F.3d at 806). 25 2 “There are a number of reasons why EOP inmates are segregated from the rest of the prison population: 26 (1) they require and/or receive additional mental health services in a group setting, or (2) they could be victimized by other inmates. In other words, EOP inmates are segregated so as to provide increased 27 clinical and custodial support and limit contact with members of the institution's GP inmate population. Under normal circumstances, non-EOP inmates are not housed with EOP inmates.” Martinez, 2015 WL 28 1198739, at *8. 1 Liberally construing Plaintiff’s second amended complaint, the Court finds Plaintiff has 2 failed to plausibly alleged retaliation claims against any named Defendant. Specifically, the Court 3 finds that Plaintiff has failed to allege the existence of a retaliatory motive—a requirement of a 4 retaliation claim—on the part of any named Defendant. McCollum, 647 F.3d at 882-83; Pratt, 65 5 F.3d at 808. Plaintiff has alleged no facts setting forth any action on behalf of any individual that 6 could be liberally construed to allege retaliatory motive. Plaintiff’s allegations instead assert that 7 Defendants Marciel, Graywall, and Jane Does #1 and #2 lied and falsified documents or records, 8 but no facts explain why any individual would have done so. 9 Moreover, Plaintiff’s factual allegations regarding Defendants Rubbish, Gerderal and 10 Taylor are also lacking any support for a finding of retaliatory motive. As to Rubbish, Plaintiff 11 merely asserts the events of which Plaintiff complains happened under Rubbish’s “watch.” 12 Plaintiff’s assertion as to Defendant Rubbish improperly seeks to establish liability based upon a 13 respondeat superior theory, Iqbal, 556 U.S. at 676-77, and Plaintiff has not demonstrated an 14 official policy or custom by Rubbish. Waggy, 594 F.3d at 713. His allegation regarding Rubbish’s 15 involvement is conclusory and therefore insufficient. Ivey, 673 F.2d at 268. As to Gerderal, 16 Plaintiff’s assertion is simply that Gerderal was lied to by Jane Does #1 and #2, and there are no 17 facts explaining Gerderal’s retaliatory motive. As to Taylor, Plaintiff alleges Taylor “ignored cry 18 for help,” referring to his suicide attempt, but that assertion does not explain what retaliatory 19 motive Taylor may have had for doing so. 20 In sum, Plaintiff has failed to state any cognizable First Amendment retaliation claim 21 against any named Defendant. 22 4. No Other Claims Asserted 23 To the extent Plaintiff seeks to allege a conspiracy claim involving any or all named 24 Defendants, he has failed to do so. 25 A claim brought for violation of section 1985(3) requires “four elements: (1) a conspiracy; 26 (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the 27 equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act 28 in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property 1 or deprived of any right or privilege of a citizen of the United States.” Sever v. Alaska Pulp Corp., 2 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). A racial, or perhaps otherwise class- 3 based, invidiously discriminatory animus is an indispensable element of a section 1985(3) claim. 4 Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001) (quotations & citation 5 omitted). A claim for violation of section 1985(3) requires the existence of a conspiracy and an 6 act in furtherance of the conspiracy. Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) 7 (citation omitted). A mere allegation of conspiracy is insufficient to state a claim. Id. at 676-77. 8 Even liberally construing Plaintiff’s second amended complaint, he fails to state a 9 cognizable conspiracy claim. While Plaintiff alleges a conspiracy, his allegations are merely 10 conclusory and fall far short of establishing the required four elements listed above. Conclusory 11 allegations are insufficient to state a claim. Iqbal, 556 U.S. at 678; Holgate, 425 F.3d at 676. 12 5. California Health Care Receivership Corporation 13 Plaintiff names “The California Healthcare Receivership Corp.” as a named Defendant in 14 his second amended complaint. The proper name of the entity to which Plaintiff’s refers is the 15 California Prison Health Care Receivership Corporation. 16 A governmental agency that is an arm of the state is not a person for purposes of § 1983. 17 See Howlett v. Rose, 496 U.S. 356, 365 (1990); Sato v. Orange Cty. Dep’t of Educ., 861 F.3d 923, 18 928 (9th Cir. 2017) (explaining agencies of the state are immune under the Eleventh Amendment 19 from private damages or suits for injunctive relief brought in federal court), cert. denied, 138 S. 20 Ct. 459 (2017); Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007); Doe v. Lawrence 21 Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); Hale v. Arizona, 993 F.2d 1387, 1398- 22 99 (9th Cir. 1993) (en banc); cf. Durning v. Citibank, N.A., 950 F.2d 1419, 1423 (9th Cir. 1991) 23 (explaining that agencies that are arms of the state are entitled to the same immunity from suit as 24 the state because “‘the state is the real, substantial party in interest’” (citation omitted)). 25 “The Eleventh Amendment bars suits for money damages in federal court against a state, 26 its agencies, and state officials acting in their official capacities.” Aholelei v. Dep't of Public 27 Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Indeed, the Eleventh Amendment prohibits federal 28 courts from hearing a Section 1983 lawsuit in which damages or injunctive relief is sought against 1 a state, its agencies (such as CDCR) or individual prisons, absent “a waiver by the state or a valid 2 congressional override....” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The 3 Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, ‘an 4 arm of the state,’ its instrumentalities, or its agencies.” See Fireman's Fund Ins. Co. v. City of 5 Lodi, Cal., 302 F.3d 928, 957 n.28 (9th Cir. 2002) (internal quotation & citations omitted), cert. 6 denied, 538 U.S. 961 (2003). “The State of California has not waived its Eleventh Amendment 7 immunity with respect to claims brought under § 1983 in federal court....” Dittman, 191 F.3d at 8 1025-26 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)). 9 The Court finds the California Prison Health Care Receivership Corporation is an agency 10 or arm of the State of California. Therefore, Plaintiff’s suit seeking damages and injunctive relief 11 against the California Prison Health Care Receivership Corporation is barred by the Eleventh 12 Amendment. 13 6. Further Amendment Would Be Futile 14 Plaintiff has been afforded opportunities to amend his complaint, (see Docs. 27, 36 & 46), 15 and his second amended complaint represents the third effort to state cognizable claims. If a 16 court finds that a complaint should be dismissed for failure to state a claim, the court has 17 discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 18 (9th Cir. 2000) (en banc). “A district court may deny leave to amend when amendment would be 19 futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). 20 Here, Plaintiff cannot state cognizable due process claims against any named Defendant. 21 Plaintiff has also been unable to successfully link any action or inaction by named Defendants 22 Rubbish or Phiffer to any either his deliberate indifference to serious medical needs claims or his 23 retaliation claims. Lastly, Plaintiff cannot bring suit against the California Prison Health Care 24 Receivership Corporation. Thus, the Court finds that granting Plaintiff further leave to amend his 25 complaint would be futile. Hartmann, 707 F.3d at 1130; Lopez, 203 F.3d at 1129. 26 V. FINDINGS AND RECOMMENDATIONS 27 For the reasons set forth above, the Court RECOMMENDS that: 28 1. Plaintiff’s second amended complaint proceed only on Plaintiff’s Eighth Amendment 1 deliberate indifference to serious medical needs claims (Claim I) against Defendants 2 Marciel, Graywall, Taylor, Gerderal and Jane Does #1 and #2; 3 2. The remaining claims in Plaintiff’s second amended complaint (Claim II) against all 4 named Defendants be DISMISSED; and 5 3. Defendants California Healthcare Receivership Corp., Warden P. Phiffer and 6 Psychologist Rubbish be DISMISSED. 7 These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 9 service of these Findings and Recommendations, a party may file written objections with the 10 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 11 Recommendations.” Failure to file objections within the specified time may result in waiver of 12 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 13 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 16 Dated: April 12, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28