(PC)Greene v. Price ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARVELLOUS AFRIKAN WARRIOR M. Case No. 1:22-cv-01247-JLT-SAB (PC) GREENE, 11 FINDINGS AND RECOMMENDATIONS Plaintiff, RECOMMENDING DISMISSAL OF 12 ACTION FOR FAILURE TO STATE A v. COGNIZABLE CLAIM FOR RLEIEF 13 BRANDON PRICE, et al., (ECF No. 13) 14 Defendants. 15 16 17 Plaintiff Marvellous Afrikan Warrior M. Greene is proceeding pro se and in forma 18 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s second amended complaint, filed December 22, 20 2022. 21 I. 22 SCREENING REQUIREMENT 23 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 24 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 25 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 26 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 27 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners). 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 6 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 7 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 8 Individuals proceeding pro se in civil rights actions are entitled to have their pleadings 9 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 10 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 11 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 12 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 13 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 14 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 15 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 16 F.3d at 969. 17 II. 18 SUMMARY OF ALLEGATIONS 19 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of 20 the screening requirement under 28 U.S.C. § 1915. 21 Plaintiff is currently housed at the Coalinga State Hospital (CSH) where the incidents at 22 issue in the first amended complaint took place. 23 Plaintiff names Garrett Stripe, Office of Patients’ Rights Advocate; Victor Alvarez, 24 Office of Patients’ Rights Advocate; and Karen Trumbly, External Affairs Manager, as 25 Defendants. 26 The Office of Patients’ Rights is not following rules and regulations regarding its duty to 27 respond to patient grievances and Plaintiff has suffered as a result. 1 III. 2 DISCUSSION 3 A. Violation of Court Order 4 In the Court's second screening order, Plaintiff was informed that, Plaintiff may not 5 change the nature of this suit by adding new, unrelated claims in his second amended 6 complaint. (ECF No. 12, at 10:11-13.) In Plaintiff's second amended complaint (as well as his 7 first amended complaint), he has added new claims to the complaint in violation of the Court's 8 order. Local Rule 110 permits the Court to imposes “any of all sanctions authorized by statute of 9 Rule or within the inherent power of the Court” for a party's failure to comply with a court order. 10 Local Rule 110. Fed. R. Civ. P. 41(b) vests the Court with discretion to sua sponte involuntarily 11 dismiss an action for a party's failure to comply with a court order. Slack v. McDaniel, 529 U.S. 12 473 (2000). The Court finds that Plaintiff has willfully violated the Court’s order. Nonetheless, 13 in an abundance of caution, the Court will screen Plaintiff’s new unrelated claims. 14 B. Review of Grievances 15 To the extent Plaintiff contends that the Office of Patients’ Rights is not following rules 16 and regulations regarding its duty to respond to patient grievances, Plaintiff fails to state a 17 cognizable claim for relief. It is well-established that detainees “lack a separate constitutional 18 entitlement to a specific [hospital] grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 19 (9th Cir.2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988)). When an official 20 denies, screens-out, or ignores a grievance, the official does not deprive the detainee of any 21 constitutional right. See, e .g., Wright v. Shannon, No. CIV F–05–1485 LJO YN P PC, 2010 W 22 L 445203, at *5 (E.D. Cal. Feb.2, 2010) (plaintiff's allegation that officials denied or ignored his 23 grievances failed to state a cognizable claim); Walker v. Vazquez, No. CIV F–09–0931 YNP PC, 24 2009 WL 5088788, at *6–7 (E.D. Cal. Dec.17, 2009) (plaintiff's allegation that officials failed to 25 timely process his grievances failed to state a cognizable claim); Towner v. Knowles, No. CIV 26 S–08–2833 LKK EFB P, 2009 WL 4281999, at *2 (E.D. Cal. Nov.20, 2009) (plaintiff's 27 allegation that officials screened-out his grievances without any basis failed to show a 1 sufficient to support a claim under section 1983, and Plaintiff has not otherwise identified 2 any rights protected under federal law. 3 C. Unruh Civil Rights Act 4 To the extent Plaintiff is attempting to bring a claim under the Unruh Civil Rights Act, 5 such claim fails. The Unruh Civil Rights Act entitles plaintiff to “full and equal 6 accommodations, advantages, facilities, privileges, or services in all business establishments of 7 every kind whatsoever.” Cal. Civ. Code § 51(b). “To prevail on [a] disability discrimination 8 claim under the Unruh Civil Rights Act, [a] plaintiff must establish that (1) he was denied the 9 full and equal accommodations, advantages, facilities, privileges, or services in a business 10 establishment; (2) his disability was a motivating factor for this denial; (3) defendants denied 11 plaintiff the full and equal accommodations, advantages, facilities, privileges, or services; and (4) 12 defendants’ wrongful conduct caused plaintiff to suffer injury, damage, loss or harm.” Johnson v. 13 Beahm, No. 2:11-cv-0294-MCE-JFM, 2011 WL 5508893, at *4 (E.D. Cal. Nov. 8, 14 2011) (citing California Civil Jury Instructions (BAJI), No. 7.92 (Spring 2009)). A plaintiff who 15 establishes a violation of the ADA need not prove intentional discrimination under 16 the Unruh Act. See Munson v. Del Taco, Inc., 46 Cal. 4th 661 (Cal. 2009) (interpreting Cal. Civ. 17 Code § 51(f), which provides that a “violation of the right of any individual under the Americans 18 with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this 19 section”). 20 First, even assuming that the Unruh Civil Rights Act applies to state hospitals who house 21 civil detainees, Plaintiff has not alleged any facts to sustain a disability discrimination suit. 22 Second, even if a cognizable state law claim could be stated, Plaintiff has failed to state a viable 23 federal claim and the Court will not exercise supplemental jurisdiction over any state law claim. 24 28 U.S.C. § 1367(c)(3); Parra v. PacifiCare of Az., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013); 25 Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001). 26 D. Mail 27 Plaintiff makes vague reference to the fact that officials have returned mail and 1 First Amendment, it fails. 2 Isolated incidents of mail interference or tampering will not support a claim 3 under section 1983 for violation of plaintiff's constitutional rights. See Davis v. Goord, 320 F.3d 4 346, 351 (2d. Cir. 2003); see also Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 5 1999) (emphasizing that a temporary delay or isolated incident of delay of mail does not violate a 6 prisoner's First Amendment rights). Generally, such isolated incidents must be accompanied by 7 evidence of an improper motive on the part of prison officials or result in interference with an 8 inmate's right of access to the courts or counsel in order to rise to the level of a constitutional 9 violation. See Smith v. Maschner, 899 F.2d 940, 944. Plaintiff provides no details regarding 10 the mail, such as when Plaintiff tried to send the mail, what mail officials failed to send, or how 11 many times prison officials failed to send his mail. Accordingly, Plaintiff fails to state a 12 cognizable claim for relief. 13 E. Medical Treatment 14 The Ninth Circuit has held that the objective, not subjective, deliberate indifference 15 standard applies when evaluating a pretrial detainee’s medical care claim. See Gordon v. County 16 of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (holding claims for violations of the right to 17 adequate medical care for pretrial detainees are evaluated under the objective standard set forth 18 in Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016).) The elements of 19 a detainee’s medical care claim under the Fourteenth Amendment are: (1) the defendant made an 20 intentional decision with respect to the conditions under which the plaintiff was confined; (2) 21 those conditions put the plaintiff at substantial risk of suffering serious harm; (3) the defendant 22 did not take reasonable available measures to abate that risk, even though a reasonable official in 23 the circumstances would have appreciated the high degree of risk involved—making the 24 consequences of the defendant's conduct obvious; and (4) by not taking such measures, the 25 defendant caused plaintiff's injuries. Gordon, 888 F.3d at 1124-1125. 26 The “mere lack of due care” by a defendant does not deprive an individual of his rights 27 under the Fourteenth Amendment. Castro, 833 F.3d at 1071 (citations omitted). “Thus, the 1 reckless disregard.’ ” Gordon, 888 F.3d at 1125 (citations omitted). Hence gross negligence, a 2 difference in medical opinion, malpractice, and misdiagnosis does not establish a constitutional 3 violation. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); Thompson v. Worch, 6 F. 4 App'x 614, 616 (9th Cir. 2001); Anchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 5 and DiMarzio v. Jacobs, 162 F. App'x 774, *1 (9th Cir. 1989). 6 Plaintiff makes vague reference to the fact that he has a hernia and has not been sent to an 7 outside facility. However, Plaintiff fails to demonstrate that any individual placed Plaintiff at a 8 substantial risk of serious harm. Plaintiff’s claim is simply too vague to give rise to a cognizable 9 medical claim under the Fourteenth Amendment. Accordingly, Plaintiff fails to state a 10 cognizable claim for relief. 11 F. Further Leave to Amend 12 Plaintiff's second amended complaint fails to state a cognizable claim for relief. Despite 13 being provided with relevant pleading and legal standards, Plaintiff has been unable to cure the 14 deficiencies in his complaint by amendment, and thus further leave to amend is not 15 warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Indeed, as stated above, 16 Plaintiff continues to change the nature of his claims both factually and legally and continues to 17 add and/or change the individuals against whom he is seeking relief. (See ECF Nos. 1, 11, 13.) 18 The fact that Plaintiff has failed to state a cognizable claim for relief and continues to change the 19 nature of his claims despite having filed three separate complaints is reason to conclude that he 20 cannot truthfully do so. Accordingly, no useful purpose would be served by once again giving 21 him the same advice and yet another opportunity to amend to try to state a cognizable claim. 22 IV. 23 RECOMMENDATION 24 Based on the foregoing, it is HEREBY RECOMMENDED that the instant action be 25 dismissed, without further leave to amend, for failure to state a cognizable claim for relief. 26 This Findings and Recommendation will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 1 | days after being served with this Findings and Recommendation, Plaintiff may file written 2 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 | Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 4 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 5 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 8 IT IS SO ORDERED. DAA (e_ 9 | Dated: _ January 6, 2023 _ RF _ 0 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28