K. Mwasi v. David J. Montoya et al

Filing 12

ORDER DISMISSING COMPLAINT, 1 WITH LEAVE TO AMEND by Magistrate Judge Frederick F. Mumm. If plaintiff wishes to attempt to state a claim against any of the other named defendants, he is granted thirty (30) days from the date of this Order within which to file a First Amended Complaint. IT IS SO ORDERED. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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K. MWASI,

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Plaintiff,
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v.
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DAVID J. MONTOYA, Guard,
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ENRIQUEZ, Guard, FRANKLIN,
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STG. Guard, BRENDA CASH,
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Warden, DR. PAULETTE
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FINANDER, CMO, DR. A. SWABY, )
SUPERVISOR, DR. T. BELAVICH, )
CEO/Health Care Manager, ESTHER )
FRANCES, NP, J. WALKER, Chief )
Health Care Services, CA. STATE
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PRISON - L.A. COUNTY, CA CORR. )
HEATHCARE SERVICES, DRS.
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“JOHN DOES” 1-10,
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Defendants.
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No. CV 15-4152 DOC (FFM)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

PROCEDURAL BACKGROUND

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Plaintiff, who currently is detained at California State Prison - Corcoran,

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California, lodged a pro se complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 in

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this Court. The Complaint was submitted on June 1, 2015. Plaintiff’s request to

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proceed in forma pauperis (“IFP”) was denied and the case was closed. On November

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13, 2015, the Court granted plaintiff’s motion for reconsideration, re-opened the case,

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and again denied plaintiff’s request to proceed IFP, this time with leave to file the

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appropriate documents supporting his IFP request. On December 14, 2015, plaintiff

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filed the appropriate documents and the Court granted his IFP request on December 15,

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2015.

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STANDARD OF REVIEW

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In accordance with 28 U.S.C. § 1915(e)(2), the Court has screened the

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Complaint for purposes of determining whether the action is frivolous or malicious; or

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fails to state a claim on which relief may be granted; or seeks monetary relief against a

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defendant who is immune from such relief.
The Court’s screening of the Complaint under the foregoing statute is governed

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by the following standards. A complaint may be dismissed as a matter of law for

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failure to state a claim for two reason: (1) lack of cognizable legal theory or (2)

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insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t,

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901 F.2d 696, 699 (9th Cir. 1990). Since plaintiff is appearing pro se, the Court must

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construe the allegations of the Complaint liberally and must afford plaintiff the benefit

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of any doubt. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th

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Cir. 1988). Moreover, in determining whether a complaint states a claim on which

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relief may be granted, allegations of material fact are taken as true and construed in the

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light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th

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Cir. 1989).
After careful review and consideration of the Complaint under the relevant

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standards, the Court finds that although it arguably states a claim against defendants

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Montoya, Enriquez and Franklin, it fails to state a claim on which relief may be

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granted against any of the other defendants for the reasons discussed hereafter. The

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Court will afford plaintiff an opportunity to either (1) proceed solely against

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defendants Montoya, Enriquez, and Franklin or (2) amend his complaint to try to state

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a claim against the remaining defendants. See Lopez v. Smith, 203 F.3d 1122, 1130-31

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(9th Cir. 2000) (leave to amend should be granted “if it appears at all possible that the

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plaintiff can correct the defect”) (quoting Balistreri, 901 F.2d at 701).

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ALLEGATIONS OF COMPLAINT

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Plaintiff alleges that defendants Montoya, Enriquez, and Franklin used excessive

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force on him by over tightening mechanical restraints on plaintiff’s wrists. Plaintiff

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alerted such defendants to this fact, but they ignored his pleas to loosen the restraints.

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As a consequence of these defendants’ actions and inactions, plaintiff has suffered

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nerve damage to his wrists and still suffers from pain and discomfort associated

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therewith.

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Plaintiff also alleges that he was seen by a number of medical professionals with

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respect to the wrist injury as well as a number of other medical problems. Plaintiff was

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dissatisfied with his treatment and filed a number of grievances. The grievances were

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all denied. Plaintiff names as defendants the various doctors who saw/treated him and

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a number of individuals who denied his grievances.

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DISCUSSION

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A.

Plaintiff Arguably States a Claim Against Defendants Montoya, Enriquez, and

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Franklin

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Prison officials’ use of excessive force against a prisoner violates the inmate’s

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Eighth Amendment rights. However, the force applied must be excessive. The use of

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force in and of itself does not amount to a constitutional violation if it is applied in a

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good faith effort to restore discipline and order and not “maliciously and sadistically

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for the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21, 106

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S. Ct. 1078, 89 L. Ed. 2d 251 (1986) (internal quotation and citation omitted). For this

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reason, under the Eighth Amendment, the Court must look for malicious and sadistic

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force, not merely objectively unreasonable force. Clement v. Gomez, 298 F.3d 898,

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903 (9th Cir. 2002). Moreover, not “every malevolent touch by a prison guard gives
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rise to a federal cause of action.” Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995,

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117 L. Ed. 2d 156 (1992). “The Eighth Amendment’s prohibition of cruel and unusual

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punishments necessarily excludes from constitutional recognition de minimis uses of

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physical force, provided that the use of force is not of a sort repugnant to the

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conscience of mankind.” Id. at 9-10 (internal quotations and citation omitted). The

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Court considers five factors in making this determination: (1) the extent of injury

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suffered by an inmate; (2) the need for application of force; (3) the relationship

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between that need and the amount of force used; (4) the threat reasonably perceived by

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the responsible officials; and (5) any efforts made to temper the severity of a forceful

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response. Id. at 7.

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Plaintiff contends that defendants Montoya, Enriquez and Franklin injured his

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wrists by overly tightening his handcuffs. Overly tightening handcuffs can violate a

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prisoner’s Eighth Amendment rights. See Wall v. County of Orange, 364 F.3d 1107,

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1112 (9th Cir. 2004) (overly-tight handcuffing can constitute excessive force). In the

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cases where overly-tight handcuffing was found to be excessive use of force, the

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plaintiffs suffered damage to their wrists or hands as a consequence of the handcuffs.

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See Wall, 364 F.3d at 1109-10, 1112 (the plaintiff produced evidence that tight

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handcuffing “hurt and damaged [the plaintiff’s] wrists”); LaLonde v. County of

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Riverside, 204 F.3d 947, 952, 960 (9th Cir. 2000) (tight handcuffing left the plaintiff’s

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wrist and hand numb, requiring medical treatment).
Here, plaintiff alleges that he sustained nerve damage as a result of the over

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tightening of his handcuffs. These allegations arguably state a claim against

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defendants Montoya, Enriquez, and Franklin.1

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This finding is without prejudice to defendants’ ability to move to dismiss this
claim for failure to state a claim or otherwise.
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B.

Plaintiff Fails to State a Section 1983 Claim for Deliberate Indifference to His

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Medical Needs

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A prison official’s deliberate indifference to an inmate’s serious medical need

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constitutes cruel and unusual punishment in violation of the Eighth Amendment.

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Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Johnson

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v. Meltzer, 134 F.3d 1393, 1398 (9th Cir. 1998). To state a deliberate indifference

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claim, a prisoner plaintiff must allege both that the deprivation of medical care in

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question was objectively serious and that the defendant official acted with a

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sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297, 111 S. Ct.

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2321, 115 L. Ed. 2d 271 (1991). A “serious” medical need arises if the failure to treat

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the plaintiff could result in further significant injury or the “unnecessary and wanton

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infliction of pain.” Gamble, 429 U.S. at 104 (internal quotation omitted); Wilhem v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

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A sufficiently culpable state of mind exists when prison officials “deny, delay or

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intentionally interfere with medical treatment, or it may be shown by the way in which

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prison physicians provide medical care.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (internal quotations and citations omitted); Hutchinson v. United States, 838

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F.2d 390, 394 (9th Cir. 1988) (citing Gamble, 429 U.S. at 104-05); see also, e.g., Wood

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v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); Jackson v. McIntosh, 90 F.3d

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330, 332 (9th Cir. 1996). In either case, however, the indifference to the inmate’s

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medical need must be purposeful and substantial; negligence, inadvertence, or

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differences in medical judgment or opinion do not rise to the level of a constitutional

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violation. Jackson, 90 F.3d at 332; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);

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Franklin v. Oregon State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981).

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Here, plaintiff alleges that he was seen by a number of doctors for a wide variety

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of medical conditions. It appears that plaintiff takes issue with the diagnosis and

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treatment he was given. However, where defendant doctors have chosen one course of

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action and a plaintiff contends that they should have chosen another, the plaintiff
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“must show that the course of treatment the doctors chose was medically unacceptable

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under the circumstances, . . . and the plaintiff must show that they chose this course in

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conscious disregard of an excessive risk to plaintiff’s health.” Jackson, 90 F.3d at 332

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(internal citations omitted). Plaintiff’s allegations fail to demonstrate either factor.

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Therefore, the claims against the defendant doctors and nurses are dismissed.

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C.

Plaintiff Fails to State a Claim for Denial of His Grievances.
Although inmates do have a First Amendment constitutional right of access to

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such grievance procedures as a prison affords (Bradley v. Hall, 64 F.3d 1276, 1279

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(9th Cir. 1995)), they do not have a due process right in the processing of their inmate

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appeals. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.2003) (no liberty interest

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in processing of appeals because no entitlement to specific grievance procedure; claim

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that prison officials interfered with appeal thus did not state due process violation);

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Massey v. Helman, 259 F.3d 641, 647 (7th Cir.2001) (existence of grievance procedure

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confers no liberty interest on prisoner); Mann, 855 F.2d at 640 (no entitlement to

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grievance procedure). Therefore, plaintiff’s allegations that his grievances were

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improperly denied do not state a claim.

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D.

Plaintiff’s Claims Against the State of California Are Barred by Eleventh

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Amendment Immunity

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The Eleventh Amendment gives states and state agencies immunity from federal

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suits. Northern Ins. Co. of New York v. Chatham County, Ga., 547 U.S. 189, 193, 126

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S. Ct. 1689, 164 L. Ed. 2d 367 (2006). Unless the state or state agency consents, it

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cannot be sued. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S. Ct.

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1114, 134 L. Ed. 2d 252 (1996).

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The California Department of Corrections is a state agency and is therefore

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entitled to Eleventh Amendment immunity. See Brown v. California Dep’t of Corr.,

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554 F.3d 747, 752 (9th Cir. 2009). Moreover, state employees, acting in their official

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capacities, are also immune from federal damage suits. David v. Giurbino, 488 F.

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Supp. 2d 1048, 1053, 1055 (S.D. Cal 2007) (holding that California Department of
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Corrections director receives Eleventh Amendment immunity).
Here, neither California nor the California Department of Corrections has

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waived its Eleventh Amendment immunity. Therefore, all claims against California

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State Prison - Los Angeles County, California Correctional Health Care Services, and

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the individual defendants sued in their official capacities are barred and must be

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dismissed.

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CONCLUSION

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If plaintiff wishes to pursue this action solely against defendants Montoya,

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Enriquez, and Franklin, he must request the dismissal of the claims against the other

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defendants within thirty days of the date of this Order. In that case, the Court will

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enter an order directing the United States Marshal to serve the Complaint on

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defendants Montoya, Enriquez and Franklin.
If plaintiff wishes to attempt to state a claim against any of the other named

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defendants, he is granted thirty (30) days from the date of this Order within which to

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file a First Amended Complaint, curing the defects in the Complaint described above.

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The First Amended Complaint shall be complete in itself (i.e., it must contain all

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claims that plaintiff intends to pursue) and shall bear both the designation “First

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Amended Complaint” and the case number assigned to this action. It shall not refer in

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any manner to the prior Complaint, which will be superceded by the First Amended

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Complaint.
Plaintiff is advised that pursuant to Federal Rule of Civil Procedure 8(a), all that

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is required is a “short and plain statement of the claim showing that the pleader is

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entitled to relief.” For each of his claims, he should clearly state which of his rights he

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alleges was violated, the defendant(s) that caused the violation(s), the specific acts of

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misconduct by the named defendant(s) that caused the violation(s), and the injury he

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suffered as a direct result of the defendants’ actions.

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Plaintiff is explicitly cautioned that failure to timely file a First Amended

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Complaint that corrects the deficiencies described above, will result in a

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recommendation that this action be dismissed as to all defendants, except

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defendants Montoya, Enriquez, and Franklin for the reasons stated above and/or

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for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) as

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against all defendants.

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IT IS SO ORDERED.

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DATED: January 7, 2016
/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

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