(PC) Dickerson v. High Desert State Prison ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY DICKERSON, No. 2:24-cv-00589-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 HIGH DESERT STATE PRISON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. In addition to filing a complaint (ECF No. 1), he also filed an application to 19 proceed in forma pauperis (ECF No. 2). The court will grant his application and screen the 20 complaint. 21 Application to Proceed in Forma Pauperis 22 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2), that 23 plaintiff is unable to prepay fees and costs or give security therefor. Accordingly, plaintiff’s 24 motion for leave to proceed in forma pauperis is granted. 25 Screening Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 28 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of 1 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 2 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” 3 Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plain statement” requirements of Rule 8, its 10 allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 11 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 16 678. 17 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 24 Screening Order 25 Plaintiff sues High Desert State Prison (HDSP) and B. Wheeler, the Americans with 26 Disabilities Act (ADA) Coordinator at HDSP. ECF No. 1 at 1, 2. Plaintiff alleges he has 27 mobility, hearing, and vision impairments. Prior to May 2023 he was at Delano State Prison 28 (DSP). Plaintiff claims that when he entered prison he was able to walk with the aid of a 1 prosthesis (a “good leg”) that was taken from him by DSP. Id. at 3. Unnamed officials at DSP 2 provided plaintiff with a new prosthesis, but it was 4 inches too short and so plaintiff had to use a 3 wheelchair. Plaintiff was transferred to HDSP in May 2023, where other unnamed officials 4 provided a second prosthesis without measuring or casting. The second prosthesis was also 5 unsuitable and plaintiff continues to require a wheelchair for mobility. Plaintiff alleges CDC1 has 6 discriminated against him because of his disability, and that “CDC is mad” because he has filed 7 too many grievances for medical-related issues. 8 Plaintiff complains he has been without physical therapy at HDSP for over ten months. 9 Plaintiff alleges that defendant Wheeler told plaintiff he would be transferred from HDSP because 10 HDSP cannot provide physical therapy. 11 Plaintiff alleges that he was wrongly written up with a false referral to the district attorney 12 because he failed to attend a medical appointment in February 2024. He alleges he missed the 13 appointment because unidentified staff attempted to take him to the appointment several hours 14 early which would have caused plaintiff to miss educational classes, or alternatively plaintiff may 15 be alleging a misunderstanding or disagreement about the scheduled time for the appointment. 16 ADA Discrimination 17 To state a claim of disability discrimination under Title II of the ADA, a plaintiff must 18 allege four elements: (1) that he is an individual with a disability (2) who was otherwise qualified 19 to participate in or receive the benefits of some public entity’s services, programs, or activities, 20 (3) but was either excluded from participation in or denied the benefits of the public entity’s 21 services, programs, or activities, or was otherwise discriminated against by the public entity (4) 22 by reason of the disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); see also 23 Thomas v. Pennsylvania Dep’t of Corrections, 615 F. Supp. 2d 411, 425-26 (W.D. Pa. 2009) 24 (prison did not violate the ADA by providing a replacement prosthetic leg that was inferior to the 25 old prosthesis, because prison did provide accommodation that allowed plaintiff to participate in 26 his desired programs and only one type of prosthesis was provided without discrimination). An 27 1 The Court infers Plaintiff’s use of the abbreviation “CDC” to reference the California Department of Corrections and Rehabilitation. 28 1 evaluation of a prisoner’s specific disability needs may be necessary for ADA compliance. 2 Wright v. New York State Dep’t of Corrections, 831 F.64, 78 (2d Cir. 2016) (request for a 3 motorized wheelchair by prisoner with cerebral palsy and scoliosis was a non-frivolous 4 accommodation that should not have been denied without an individualized inquiry into its 5 reasonableness). 6 The proper defendant in an ADA Title II action is the public entity responsible for the 7 alleged discrimination, including state prisons. United States v. Georgia, 546 U.S. 151, 153 8 (2006); Pennsylvania Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998). Individuals do not 9 have liability for discrimination under the ADA. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th 10 Cir. 2002). Wheeler, as an individual person, is not a proper defendant as to any ADA claim 11 plaintiff may wish to assert. Further, plaintiff fails to state an ADA claim against the HDSP 12 because he fails to allege he was excluded from participation in or denied the benefits of any 13 HDSP services, programs, or activities that plaintiff was otherwise qualified to participate in or 14 receive the benefits of, and plaintiff fails to allege that the HDSP otherwise discriminated against 15 him by reason of his disability. For all these reasons, the complaint fails to state an ADA claim 16 against either named defendant. 17 Eighth Amendment 18 To succeed on an Eighth Amendment claim predicated on deliberate indifference to 19 medical need, a plaintiff must establish that: 1) he had a serious medical need; and 2) the 20 defendant’s response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 21 1096 (9th Cir. 2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). To act with deliberate 22 indifference, a prison official must both be aware of facts from which the inference could be 23 drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer 24 v. Brennan, 511 U.S. 825, 837 (1994). Thus, a prison official named as a defendant will be liable 25 for violating the Eighth Amendment if he knows that plaintiff faces “a substantial risk of serious 26 harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847; see 27 also Peralta v. Dillard, 744 F.3d 1076, 1082 (9th Cir. 2014). 28 //// 1 The prison official is only liable, however, if the “culpable action, or inaction[] is directly 2 attributed to them” Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). Further, a plaintiff must 3 have suffered some type of pain or harm that is more than de minimis in order to implicate the 4 Eighth Amendment. See, e.g., Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 5 407 (9th Cir. 1985) (“delay of surgery, without more, is insufficient to state a claim of deliberate 6 medical indifference … unless the denial was harmful”). 7 Plaintiff’s complaint implies two distinct, but insufficiently alleged, potential Eighth 8 Amendment claims for deliberate indifference to serious medical needs. First, plaintiff alleges 9 insufficient efforts to provide ambulation assistance in that the protheses provided at DSP and at 10 HDSP were both defective. Ambulation assistance is a serious medical need. See Yglesias v. 11 Patel, No. 1:17-cv-01282-LJO-GSA-PC, 2019 WL 2207665, at *3 (E.D. Cal. May 22, 2019) 12 (prisoner who required a walker demonstrated a serious medical need); see also McGuckin v. 13 Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. 14 v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (“a medical condition that significantly affects 15 an individual’s daily activities” is an indication of a “‘serious’ need for medical treatment”). As 16 with other types of Eighth Amendment claims for deliberate indifference to medical needs, a 17 prisoner does not state a claim by merely disagreeing with the type of mobility assistance 18 provided to him. See Culver v. Sanders, 608 F. Supp. 3d 1171, 1181 (N.D. Fla. 2022) (prison’s 19 decision to provide a walker instead of a rollator was not “so grossly incompetent, inadequate, or 20 excessive as to shock the conscience or to be intolerable or fundamental fairness” (citation and 21 internal quotation marks omitted)). 22 Plaintiff does not allege that he was denied a means of ambulation, nor even that any 23 defendant denied him a prosthesis. Plaintiff instead alleges that he has a wheelchair and that there 24 have been two unsuccessful attempts to provide a prosthesis. Wheeler is the only prison official 25 named in the complaint, but plaintiff fails to allege that Wheeler had any role in supplying the 26 inadequate HDSP prosthesis or the inadequate DSP prosthesis. Nor does he allege facts 27 demonstrating that Wheeler was deliberately indifferent to plaintiff’s medical needs. Plaintiff 28 also has not alleged any harm resulting from failures – or perhaps merely delays – in obtaining a 1 satisfactory prosthesis, nor has he alleged that using a wheelchair for ambulation is anything more 2 than a de minimis pain or harm. 3 Second, plaintiff alleges he has not been provided physical therapy for ten months and that 4 Wheeler promised plaintiff a transfer out of HDSP, impliedly to a facility where plaintiff would 5 receive physical therapy. Because this potential claim concerns custody and housing decisions, 6 the court also reviews the allegations under the general Eighth Amendment standard for non- 7 medical claims. A prison official violates the Eighth Amendment prohibition against cruel and 8 unusual punishment “only when two requirements” – one objective, one subjective – “are met.” 9 Farmer, 511 U.S. at 834. Under the objective prong, the inmate must show that he is incarcerated 10 under conditions posing a substantial risk of serious harm. Id. at 833, 837. Under the subjective 11 prong, a plaintiff must show that the prison official knows the prisoner faces a substantial risk of 12 serious harm and fails to take reasonable measures to abate the harm. Id. at 825. Subjective 13 awareness may be shown by how obvious the risk is. Id. at 842. Deliberate indifference “is 14 shown adequately when a prison official is aware of the facts from which an inference could be 15 drawn about the outstanding risk, and the facts permit us to infer that the prison official in fact 16 drew that inference, but then consciously avoided taking appropriate action.” Disability Rts. 17 Mont., Inc. v. Batista, 930 F.3d 1090, 1101 (9th Cir. 2019). 18 Plaintiff fails to allege facts showing that he has a serious medical need for physical 19 therapy. Even if plaintiff potentially has a serious medical need for physical therapy, HDSP is 20 not an appropriate defendant to an Eighth Amendment claim because deliberate indifference can 21 only be attributed to an individual and not to a prison facility. Plaintiff fails to allege facts 22 showing that Wheeler’s response to an allegedly serious medical need for physical therapy was 23 deliberately indifferent from either a medical or a non-medical perspective. Plaintiff also does 24 not allege that Wheeler had actual authority to transfer plaintiff to another facility based on a 25 serious medical need for physical therapy. For all these reasons, the complaint fails to state an 26 Eighth Amendment deliberate indifference claim against either defendant. 27 //// 28 //// 1 Retaliation 2 An inmate’s First Amendment claim of retaliation requires the inmate to show: “(1) [a]n 3 assertion that a state actor took some adverse action against the inmate (2) because of (3) that 4 inmate’s protected conduct, and that such action (4) chilled the inmate’s First Amendment rights, 5 and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 6 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and citation omitted). The inmate must 7 show evidence of retaliatory motive that is not merely pretextual. Long v. Sugai, 91 F.4th 1331, 8 1339 (9th Cir. 2024). A mere sequence of events is insufficient to show retaliatory motive. Id. 9 As to the last factor, legitimate correctional goals include maintaining order and safety within the 10 prison. Sandin v. Conner, 515 U.S. 472, 482-83 (1995). 11 Plaintiff’s complaint suggests two possible, but insufficiently pled, retaliation claims. 12 First, plaintiff alleges unidentified staff (not defendant Wheeler) made an untrue disciplinary 13 report and a referral to the district attorney. The complaint does not describe the nature of the 14 disciplinary report or the referral, but implies that they were related to a missed medical 15 appointment. Plaintiff alleges that staff arrived hours early to escort him to his appointment, 16 while plaintiff was attending educational classes. Plaintiff apparently refused to leave his class 17 and be escorted to the appointment. Plaintiff alleges that staff did not return to escort him at the 18 appointed time, so he missed the appointment. He did attend a re-scheduled appointment three 19 days later. The complaint fails to allege that plaintiff’s refusal to leave class when the escort 20 arrived was protected First Amendment conduct, or that a disciplinary report based on such a 21 refusal did not reasonably advance a legitimate correctional goal. 22 Second, plaintiff alleges that the CDC is “mad” because of his medical grievances. ECF 23 No. 1 at 3. Filing grievances is protected First Amendment conduct. Rhodes, 408 F.3d at 567. 24 However, the complaint fails to describe any adverse action against plaintiff because of his 25 grievances, fails to name as a defendant any individual responsible for such adverse action, and 26 fails to allege that plaintiff’s First Amendment rights were chilled. 27 The ADA also separately provides a cause of action for retaliation, 42 U.S.C. § 12203(a), 28 requiring a plaintiff to show “(1) involvement in a protected activity, (2) an adverse [] action and 1 (3) a causal link between the two.” Coons v. Secretary of U.S. Dep’t of Treasury, 383 F.3d 879, 2 887 (9th Cir. 2004) (citation and internal quotation marks omitted); see also Liu v. DeJoy, 664 F. 3 Supp. 3d 1030, 1052 (C.D. Cal. 2023) (“29 U.S.C. section 791(f) makes the ADA’s non- 4 retaliation provisions applicable to the Rehabilitation Act”). Requesting accommodation is 5 protected activity under the ADA, even if the individual is not disabled within the meaning of the 6 ADA. Liu, 664 F. Supp. 3d at 1052, 1053. The complaint perhaps implies that plaintiff’s 7 medical grievances related to his impairments or requested accommodations for them, but 8 otherwise fails to allege any adverse action or any causal link between the grievances and an 9 adverse action. For all these reasons, the complaint fails to state a First Amendment or ADA 10 retaliation claim against either defendant. 11 Due Process 12 Plaintiff alleges an untrue write-up and district attorney referral, apparently regarding his 13 refusal to be escorted to a medical appointment. Because the complaint does not adequately 14 describe the referral or why it was not true, it is unclear what sort of claim plaintiff might be able 15 to allege based on his allegation. To state a claim for violation of the right to procedural due 16 process, plaintiff must allege facts showing: “(1) a deprivation of a constitutionally protected 17 liberty or property interest, and (2) a denial of adequate procedural protections.” Kildare v. 18 Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003). Plaintiff does not allege whether he experienced any 19 adverse consequence as a result of the allegedly untrue write-up and referral or any deprivation of 20 a constitutionally protected liberty or property interest and a denial of adequate procedural 21 protections. For all these reasons, the complaint fails to state a due process claim based on the 22 “not true” write-up and district attorney referral. 23 Loss of Property 24 The complaint alleges that DSP “took” plaintiff’s “good” prosthesis but does not allege 25 any of the circumstances surrounding this event and does not allege any claim against any DSP 26 defendant. ECF No. 1 at 3. “[A]n unauthorized intentional deprivation of property by a state 27 employee does not constitute a violation of the procedural requirements of the Due Process 28 Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is 1 available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state provides a 2 meaningful postdeprivation remedy, only authorized, intentional deprivations constitute 3 actionable violations of the Due Process Clause. An authorized deprivation is one carried out 4 pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 5 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1143, 1149 (9th Cir. 6 1987). The California Legislature has provided a remedy for tort claims against public officials 7 in the California Government Code, §§ 900, et seq. Since plaintiff does not allege any attempt to 8 seek redress in the state system, he cannot sue in federal court on the claim that the state deprived 9 him of property without due process of the law. The court concludes that this claim must, 10 therefore, be dismissed as frivolous. See 28 U.S.C. § 1915(e)(2). 11 Leave to Amend 12 Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an 13 amended complaint, he should note that any amended complaint must identify as a defendant only 14 persons who personally participated in a substantial way in depriving him of a federal 15 constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects 16 another to the deprivation of a constitutional right if he does an act, participates in another’s act or 17 omits to perform an act he is legally required to do that causes the alleged deprivation). The 18 amended complaint must contain a caption including the names of all defendants. Fed. R. Civ. P. 19 10(a). The amended complaint should also describe, in sufficient detail, how each defendant 20 personally violated or participated in the violation of his rights. The court will not infer the 21 identify of defendants, nor the existence of allegations that have not been explicitly set forth in 22 the amended complaint. 23 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 24 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring multiple, unrelated claims 25 against more than one defendant. Id. The amended complaint should include only claims that are 26 related because they concern the same event (or series of related events) or the same defendant. 27 Any amended complaint must be written or typed so that it is complete in itself without 28 reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 1 | complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 2 | earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 3 || F.3d 1467, 1474 (9th Cir. 1997) (the ‘amended complaint supersedes the original, the latter being 4 | treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). 5 Finally, the court notes that any amended complaint should be as concise as possible in 6 || fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 7 || procedural or factual background which has no bearing on his legal claims. The court cautions 8 | plaintiff that failure to comply with the Federal Rules of Civil Procedure, this court’s Local Rules, 9 || or any court order may result in this action being dismissed. See Local Rule 110. 10 Conclusion 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiffs application to proceed in forma pauperis (ECF No. 2) is GRANTED; 13 2. Plaintiff's complaint (ECF NO. 1) is DISMISSED with leave to amend within 30 14 days of services of this order; and 15 3. Failure to comply with this order may result in dismissal of this action for the 16 reasons stated herein. 17 Dated ZBL 18 || Dated: November 13, 2024 Za 7 illic OAS JHE Ai 19 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 10