Ben Orlando Martin v. M.D. Stainer et al
Filing
12
ORDER DISMISSING FIRST AMENDED COMPLAINT, 11 IN PART WITH LEAVE TO AMEND by Magistrate Judge Alka Sagar. Plaintiffs FAC is DISMISSED IN PART with leave to amend. If Plaintiff wishes to further pursue the claims dismissed in this action, he must file a Second Amended Complaint no later than 30 days from the date of this Order. (Attachments: # 1 Notice of Dismissal Form (Blank), # 2 Civil Rights Complaint Form (Blank)) (mz)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
BEN ORLANDO MARTIN,
12
Plaintiff,
v.
13
14
M.D. STAINER et al.,
Defendants.
15
)
)
)
)
)
)
)
)
)
)
No. CV-16-8581 GW (AS)
ORDER DISMISSING FIRST AMENDED
COMPLAINT IN PART WITH LEAVE TO
AMEND
16
INTRODUCTION
17
18
On November 17, 2016, Plaintiff Ben Orlando Martin, an inmate at
19
20
the
21
proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983.
22
(Docket Entry No. 1).
23
dismissed the Complaint with leave to amend as prescribed by 28
24
U.S.C.
25
Plaintiff filed his First Amended Complaint (“FAC”) (Docket Entry No.
26
11).
27
28
California
State
§ 1915A(b).1
Prison,
Los
Angeles
County
(“CSP-LAC”),
On January 18, 2017, the Court screened and
(Docket
Entry
1
No.
7).
On
March
24,
2017,
Magistrate judges may dismiss a complaint with leave to amend
without approval from the district judge.
McKeever v. Block, 932
F.2d 795, 798 (9th Cir. 1991).
1
1
The
2
§ 1915A.
3
FAC-IN-PART WITH LEAVE TO AMEND.
Court
has
screened
the
FAC
as
prescribed
by
28
U.S.C.
For the reasons discussed below, the Court DISMISSES the
4
5
ALLEGATIONS OF THE COMPLAINT
6
7
The FAC alleges claims for unlawful retaliation and deliberate
8
indifference to serious medical needs as well as potential claims for
9
failure to protect and violation of state prison procedures.
(FAC at
10
8-9).2
11
“medical health care official D.O.” Kang Hak Lee, “medical health
12
care official registered nurse” K. Johnson, and CSP-LAC Warden Debbie
13
Asuncion.
14
damages, $250,000 in punitive damages, (id. at 33), and an injunction
15
against
16
Rehabilitation,
17
further retaliation and mandating Plaintiff’s medical treatment at no
18
cost, placing Plaintiff in a single-inmate cell, and transferring
19
Plaintiff to an alternative correctional facility, (id. at 31-32).
The FAC names three defendants in their individual capacity:
(Id.
at
Asuncion,
and
3).
the
The
FAC
California
CSP-LAC’s
seeks
$250,000
Department
health
care
of
in
compensatory
Corrections
officials
and
prohibiting
20
21
A.
Lee And Johnson
22
23
1.
January 14, 2016
24
25
On January 14, 2016, Plaintiff, a former prisoner at High Desert
26
State Prison, was assisted to the pill call counter by an “(ADA)
27
2
28
All page references correspond with the pagination provided
by the Court’s electronic docket.
2
1
assistant.”
2
receive a wheelchair and explained that extreme pain and swelling
3
prevented him from using a walker to ambulate.
4
approached the counter “in a fit of rage” and started “screaming out
5
Plaintiff[’]s medical condition, including the treatment Plaintiff is
6
under and medications currently being administered.”
7
stated that he was aware that Plaintiff, a former inmate at High
8
Desert State Prison, had been a part of the investigation into High
9
Desert’s medical practices.
(Id. at 14).
requiring
a
Plaintiff asked the nurse when he would
wheelchair,
(Id. at 15).
stated
that
(Id.).
Defendant Lee
(Id.).
Lee
Lee accused Plaintiff of
10
not
he
did
not
want
to
11
Plaintiff in another wheelchair, and threatened to fire any prison
12
assistant who transported Plaintiff in a wheelchair.
13
also told Plaintiff to “forget about” his pain management medication
14
because Plaintiff was a whistleblower and that his future medical
15
requests would “get lost in the trash.”
(Id.).
see
Lee
(Id. at 16).
16
17
One
day
prior
to
this
incident,
Lee
also
“scream[ed]”
(Id. at 18).
out
18
Plaintiff’s privileged medical information.
Johnson
19
stood behind Lee “laughing and making light of a situation that[’]s
20
clearly in violation of Plaintiff[’s] (HIPAA) rights.”
(Id.).
21
22
2.
January 29, 2016
23
24
On January 29, 2016, Plaintiff’s foot and leg were swollen to
25
one-third larger than their normal size.
(Id.).
The swelling was
26
due to Plaintiff’s use of his walker “which was causing the swelling
27
in Plaintiff[’]s entire right side because of the excess walking.”
28
(Id. at 22).
Plaintiff showed the swelling to Lee and expressed
concern that using a walker was making the swelling worse.
3
(Id. at
1
18).
2
saw two other patients.
Lee informed Plaintiff that he would treat Plaintiff after he
(Id.).
3
4
After Lee had finished with the two patients and other patients
5
began appearing, Plaintiff asked Johnson when Lee would see him.
6
(Id. at 19).
7
pain and the swelling was getting worse.
8
Plaintiff that it was not his turn and made a joke about Plaintiff’s
9
pain.
(Id.).
Plaintiff informed Johnson that he was in tremendous
(Id.).
Johnson informed
After waiting two hours and twenty minutes, Plaintiff
10
again asked Johnson if Lee would treat him because Plaintiff was in
11
tremendous pain.
12
going home and Plaintiff should “suck it up and act like a man.”
13
(Id.).
14
(Id.).
(Id.).
Johnson informed Plaintiff that Lee was
Johnson laughed and gave Lee and other nurses “high five[s].”
15
16
Before Plaintiff left the medical yard, Johnson again denied
17
Plaintiff’s request to see Lee and for pain medication.
(Id.).
18
Johnson, like Lee, observed the swelling in Plaintiff’s foot and leg,
19
but nonetheless denied him treatment.
(Id. at 20, 18).
20
21
Plaintiff alleges that Lee’s and Johnson’s failure to treat him
22
“resulted in further significant injury.”
23
Johnson’s actions “emphasized physical harm, or the risk of it.”
24
(Id. (emphasis added)).
25
unreasonable risk of serious damage to Plaintiff[’]s future health’
26
and violates [the] Eighth Amendment even if the damages ha[ve] not
27
yet occurred.”
28
Lee’s
and
infliction of pain.”
Lee’s and
The “unsafe conditions” have “‘pose[d] an
(Id. (emphasis added)).
Johnson’s
(Id. at 21).
actions
resulted
(Id.).
4
Plaintiff also alleges that
in
“unnecessary
and
wanton
1
After Lee and Johnson denied him treatment, Plaintiff went on a
2
five-day hunger strike.
3
five
4
temporary
5
wheelchair until he was permanently assigned a wheelchair on February
6
25, 2016. (Id.).
7
it was he who had provided Plaintiff with the wheelchair when it
8
actually
9
wheelchair.
days
when
a
(Id. at 23).
prison
wheelchair.
was
The hunger strike ended after
lieutenant
(Id.).
provided
Plaintiff
Plaintiff
used
this
with
a
temporary
Lee altered medical documentation to indicate that
the
lieutenant
who
had
provided
Plaintiff
with
the
(Id.).
10
3.
11
April 15, 2016
12
On April 15, 2016, Lee called Plaintiff into his office to
13
14
discuss Plaintiff’s chronic obstructive pulmonary disorder.
(Id.).
15
Plaintiff asked Lee when Plaintiff would receive surgery for his hip.
16
(Id.).
17
cost[s] to[o] much,” and Plaintiff was “not worth it.”
18
explained
19
Plaintiff a “hard lesson” by ensuring that Plaintiff did not receive
20
his surgery.
21
surgery, a right hip arthroscopy with labral repair, on August 17,
22
2016.
Lee indicated that he would not recommend surgery “because it
that
Plaintiff
(Id.).
was
an
informant
and
Lee
(Id.).
would
Lee
teach
Plaintiff nonetheless received his corrective
(Id. at 23-24).
23
24
Since his surgery, Plaintiff has not received one session of
25
physical therapy.
(Id. at 24).
26
remained
to
27
efforts to restore Plaintiff’s ability to walk.
confined
a
For at least 78 days, Plaintiff has
wheelchair
28
5
with
no
medical
(Id.).
treatment
or
1
B.
Asuncion
2
3
Asuncion
failed
to
get
medical
care
for
Plaintiff
despite
4
knowing that Plaintiff had filed requests for medical care that were
5
directed
6
Plaintiff had gone on a hunger strike.
to
Asuncion.
(Id.
at
30).
Asuncion
also
knew
that
(Id.).
7
8
Further, Plaintiff has been “physically assaulted and threatened
9
with violence more times than whats outlined in the Plaintiff[’]s
10
complaint.”
(Id.).
11
of
physical
12
continuous
actions
13
situations
where
14
committed against the Plaintiff.”
serious
Plaintiff “feels his life is in imminent danger
injury,
of
the
because
retaliation,
alternative
Warden
and
to
Debbie
Asuncion[’]s
putting
violence
is
Plaintiff
more
in
violence
(Id.).
15
Plaintiff is confined to a wheelchair and cannot defend himself
16
17
against
attacks
by
the
administration
or
its
inmates.
(Id.).
18
Plaintiff is “completely vulnerable against the retaliation of Warden
19
Asuncion and her administration.”
(Id.).
20
STANDARD OF REVIEW
21
22
Congress mandates that district courts initially screen civil
23
24
complaints
25
entities or employees.
26
such a complaint, or any portion thereof, before service of process,
27
if
28
malicious;
that
filed
court
(2)
by
prisoners
seeking
redress
28 U.S.C. § 1915A(b).
concludes
that
the
fails
state
a
to
complaint
claim
upon
from
governmental
A court may dismiss
(1)
is
which
frivolous
relief
can
or
be
granted; or (3) seeks monetary relief from a defendant who is immune
6
1
from such relief.
2
Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) (en banc).
28 U.S.C. § 1915A(b)(1)–(2); see also Lopez v.
3
4
Dismissal for failure to state a claim is appropriate if a
5
complaint fails to proffer “enough facts to state a claim for relief
6
that is plausible on its face.”
7
544,
8
(2009).
“A claim has facial plausibility when the plaintiff pleads
9
factual
content
570
(2007);
see
also
that
Bell Atl. Corp. v. Twombly, 550 U.S.
Ashcroft
allows
the
v.
Iqbal,
court
to
556
draw
U.S.
the
662,
678
reasonable
10
inference that the defendant is liable for the misconduct alleged.”
11
Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr. &
12
Rehab.,
13
provide “more than labels and conclusions” or a “formulaic recitation
14
of the elements” of his claim.
15
Iqbal,
16
necessary; the [complaint] need only ‘give the defendant fair notice
17
of what the . . . claim is and the grounds upon which it rests.’”
18
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
19
Twombly, 550 U.S. at 555).
707
556
F.3d
U.S.
1114,
at
1122
678.
(9th
Cir.
2013).
A
plaintiff
must
Twombly, 550 U.S. at 555; see also
However,
“[s]pecific
facts
are
not
20
In
21
considering
whether
to
dismiss
a
complaint,
a
court
is
22
generally limited to the pleadings and must construe all “factual
23
allegations set forth in the complaint . . . as true and . . . in the
24
light most favorable” to the plaintiff.
25
250 F.3d 668, 688 (9th Cir. 2001).
26
“to be liberally construed” and held to a less stringent standard
27
than those drafted by a lawyer.
28
Hebbe
v.
Pliler,
627
F.3d
Lee v. City of Los Angeles,
Moreover, pro se pleadings are
Erickson, 551 U.S. at 94; see also
338,
342
(9th
Cir.
2010)
(“Iqbal
incorporated the Twombly pleading standard and Twombly did not alter
7
1
courts’ treatment of pro se filings; accordingly, we continue to
2
construe
3
Iqbal.”).
4
be warranted based on either the lack of a cognizable legal theory or
5
the
6
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.
7
2008).
8
claim
9
necessarily defeat the claim.
10
pro
se
filings
liberally
when
evaluating
them
under
Nevertheless, dismissal for failure to state a claim can
absence
of
factual
support
for
a
cognizable
legal
theory.
A complaint may also be dismissed for failure to state a
if
it
discloses
some
fact
or
complete
defense
that
will
Franklin v. Murphy, 745 F.2d 1221,
1228–29 (9th Cir. 1984).
11
DISCUSSION
12
13
14
A.
The FAC’s Failure To Protect and State Law Claims Violate Rule 8
15
16
A “pro se litigant is not excused from knowing the most basic
17
pleading requirements.”
18
Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000).
19
Federal Rules of Civil Procedure requires that a complaint contain “a
20
21
22
American Ass’n of Naturopathic Physicians v.
Rule 8 of the
short and plain statement of the claim showing that the pleader is
entitled to relief[,]” Fed. R. Civ. P. 8(a)(2), and that “[e]ach
allegation must be simple, concise, and direct.”
Fed. R. Civ. P.
23
8(d)(1).
“The ‘short and plain statement’ must provide the defendant
24
with ‘fair notice of what the plaintiff’s claim is and the grounds
25
upon which it rests.’”
Dura Pharm., Inc. v. Broudo, 544 U.S. 336,
26
346 (2005) (citation omitted); see also Jones v. Cmty. Redevelopment
27
28
Agency, 733 F.2d 646, 649 (9th Cir. 1984).
8
1
To do so, “Rule 8(a)(2) . . . requires a ‘showing,’ rather than
2
a blanket assertion, of entitlement to relief.”
3
555 n.3.
4
relief above the speculative level, on the assumption that all the
5
6
7
Twombly, 550 U.S. at
“Factual allegations must be enough to raise a right to
allegations in the complaint are true (even if doubtful in fact).”
Id. at 555 (citation omitted); see also Cook v. Brewer, 637 F.3d
1002, 1004 (9th Cir. 2011).
Thus, if a plaintiff fails clearly to
8
set forth allegations sufficient to provide defendants with notice of
9
which defendant is being sued on what theory and what relief is being
10
sought against which defendant, the complaint fails to comply with
11
Rule 8.
See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir.
12
13
14
1996); Nevijel v. Northcoast Life Ins. Co., 651 F.2d 671, 674 (9th
Cir. 1981); see also Bautista v. Los Angeles Cnty., 216 F.3d 837, 841
15
(9th Cir. 2000) (citations omitted).
Failure to comply with Rule 8
16
constitutes an independent basis for dismissal of a complaint that
17
applies even if a court determines that the claims in the complaint
18
are not wholly without merit.
19
F.2d at 673.
McHenry, 84 F.3d at 1179; Nevijel, 651
20
Here, Plaintiff’s FAC does not contain allegations that provide
21
defendants with notice of the nature of the failure to protect or
22
violation of state prison procedures claim.
23
these claims in the “Introduction” as two of four claims alleged,
24
25
26
While the FAC refers to
(FAC at 8), the body of the FAC identifies only two causes of action:
a First Amendment retaliation claim (“First Cause of Action”) and an
Eighth
Amendment
inadequate
medical
care
claim (“Second Cause of
27
Action”),
(id.
at
26,
29).
Similarly,
the
FAC
provides
only
a
28
“Statement of Facts To Claim I” and a “Statement of Facts to Claim
9
1
II,” but no designated statements of facts for a failure to protect
2
or state law claim.
3
no indication whether Plaintiff asserts a failure to protect claim
4
against Lee and/or Johnson, and if so, what facts support this claim.
5
6
7
(Id. at 14-24).
For example, the FAC contains
Accordingly, Lee and Johnson have no fair notice of a failure to
protect claim or the grounds upon which it rests. While Plaintiff
alleges that Asuncion failed to protect him in the FAC’s factual
8
allegations
supporting
Plaintiff’s
inadequate
medical
care
claim,
9
this allegation is not sufficient to place Asuncion on notice of the
10
facts that form the basis of any failure to protect claim.
11
12
To state a failure to protect claim, a plaintiff first must
13
14
“‘objectively show that he was deprived of something “sufficiently
15
serious”.’”
16
726 F.3d 1062, 1074 (9th Cir. 2013) (quoting Foster v. Runnels, 554
17
F.3d 807, 812 (9th Cir. 2009); see also Farmer v. Brennan, 511 U.S.
18
825, 834 (1994).
19
official
acted
20
safety.
Farmer, 511 U.S. at 834; Lemire, 726 F.3d at 1074.
21
official must know of, and disregard, an excessive risk to inmate
22
health or safety – i.e., must both be aware of facts from which the
23
inference could be drawn that a substantial risk of serious harm
24
25
26
Lemire v. Cal. Dep’t of Corrections & Rehabilitation,
Second, the plaintiff must allege that the prison
with
deliberate
indifference
exists and also draw the inference.
to
the
plaintiff’s
Farmer, 511 U.S. at 837.
The
Third,
the plaintiff must plausibly allege that the official’s actions were
an actual and proximate cause of the plaintiff’s injuries.
27
(citation omitted).
28
10
Id.
1
Here,
Plaintiff
alleges
only
that
he
has
been
“physically
2
assaulted and threatened with violence” on multiple occasions and
3
that his life is in “imminent danger of serious physical injury,
4
because Warden Debbie Asuncion[’]s continuous actions of retaliation,
5
6
7
and putting Plaintiff in situations where the alternative to violence
is more violence committed against the Plaintiff.”
(FAC at 24).
These allegations fail to inform Asuncion of what alleged retaliatory
8
“continuous
actions”
she
committed
or
how
she
allegedly
“put[]”
9
Plaintiff in dangerous situations.
Plaintiff also fails to allege
10
any
fact
establishing
whether
Plaintiff
suffered
a
“sufficiently
11
serious” deprivation, whether Asuncion’s acts or omissions were the
12
13
14
proximate cause of that harm, and whether Asuncion was aware that her
acts or omissions created a substantial risk of harm.
Accordingly,
15
Plaintiff’s allegations do not provide Asuncion with fair notice of a
16
failure to protect claim and the grounds upon which it rests.
17
18
In his first cause of action, Plaintiff recites the language of
19
California Code of Regulations title 15, sections 3084.1(d), (id. at
20
26 (“‘No reprisal shall be taken against an inmate . .. for filing an
21
appeal.’”) (emphasis added)), and 3160(a) (“Staff shall not in any
22
way retaliate against or discipline any inmate for initiating or
23
maintaining
24
25
26
a
lawsuit.’”)).
However,
Plaintiff
does
not
allege
whether these procedures support his First Amendment claim or assert
a separate state law claim for violation of these prison procedures.
Plaintiff also fails to allege which defendants he brings a state law
27
claim and the supporting facts for any such claim.
Accordingly, the
28
FAC does not provide defendants with fair notice of a state law
11
1
claim.
2
3
4
5
6
7
Plaintiff’s vague and conclusory allegations are insufficient to
state a section 1983 or state law claim.
See Blantz v. Cal. Dep’t of
Corr. & Rehab., 727 F.3d 917, 925 (9th Cir. 2013) (“A complaint will
not survive a motion to dismiss if it ‘tenders naked assertions
devoid of further factual enhancement.’”) (citation omitted); Hydrick
8
v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (“Plaintiffs’ ‘bald’ and
9
‘conclusory’
allegations
are
insufficient
to
establish
individual
10
liability under 42 U.S.C. § 1983.”); Cook, 637 F.3d at 1004 (“[T]he
11
pleading standard Rule 8 announces does not require detailed factual
12
13
14
allegations, but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”) (citations and internal quotation
15
marks omitted).
Accordingly, the FAC’s failure to protect and state
16
law claims must be DISMISSED with leave to amend for failure to
17
comply with Rule 8.
18
19
B.
The FAC Fails To Show Personal Participation By Asuncion
20
21
Plaintiff sues Asuncion for unlawful retaliation and inadequate
22
23
24
medical care.
Plaintiff alleges that Asuncion retaliated against him
“for engaging in his constitutionally protected conduct for utilizing
25
the prison grievance process by filing 602 staff complaints, and for
26
taking part in the 2015 special review of High Desert State Prison.”
27
(FAC at 26).
28
Johnson, “all collectively[] denied Plaintiff his Eighth Amendment
Plaintiff further alleges that Asuncion, with Lee and
12
1
right . . . in the form of deliberate indifference to a serious
2
medical need.”
(Id. at 29).
3
4
Other
than
these
conclusory
allegations,
the
FAC
does
not
5
contain any contentions regarding conduct by Asuncion that gives rise
6
to a retaliation or inadequate medical care claim against her.
7
demonstrate
8
government official, a plaintiff must show either direct, personal
9
participation or some other sufficient causal connection between the
a
Section
1983
civil
rights
violation
against
To
a
10
official’s conduct and the alleged constitutional violation.
11
Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).
12
officer
13
plaintiff or have “set in motion a series of acts by others . . .
14
which he knew or reasonably should have known, would cause others to
15
inflict the constitutional injury” on the plaintiff.
16
of
17
quotations omitted), overruled on other grounds by Ashcroft v. al
18
Kidd, 563 U.S. 731 (2011).
19
liable for the unconstitutional conduct of a subordinate under a
20
theory
21
Rather,
22
supervisory official in his individual capacity [only] for his own
23
culpable action or inaction in the training, supervision, or control
24
of
25
deprivations of which the complaint is made, or for conduct that
26
showed a reckless or callous indifference to the rights of others.”
27
Preschooler II v. Clark County Bd. of Trustees, 479 F.3d 1175, 1183
28
(9th Cir. 2007).
Los
his
personally
Angeles,
of
has
946
respondeat
F.2d
have
taken
630,
646
See
liability
for
some
(9th
A supervising
action
Cir.
against
the
Larez v. City
1991)
(internal
A government official may not be held
superior.
“[s]upervisory
subordinates,
to
See
his
Iqbal,
[may
be]
acquiescence
13
129
in
S.
Ct.
imposed
the
at
1948.
against
a
constitutional
1
In order to state a retaliation or inadequate medical claim care
2
against
3
participation
4
rights
5
conduct and the alleged constitutional violation.
6
F.3d at 1207.
7
only that, with knowledge of Lee’s and Johnson’s “continued pattern
8
of
9
failed to “ma[k]e . . . reasonable attempt to remedy the problem.”
10
Asincion,
or
by
some
culpable
Plaintiff
Asuncion
must
in
sufficient
allege
the
either
violation
causal
of
connection
However, the FAC alleges neither.
failure[s]”
and
Plaintiff’s
direct
his
personal
constitutional
between
Asuncion’s
Cf. Starr, 652
Instead, it alleges
hunger
strike,
Asuncion
(FAC at 30).
11
12
Plaintiff has not established that Asuncion’s failure to “remedy
13
the problem” “set in motion a series of acts by others . . . which
14
[s]he knew or reasonably should have known, would cause others to
15
inflict the constitutional injury” on Plaintiff.
16
at 646 (internal quotations omitted).
17
Asuncion’s
18
inadequate medical care or Lee’s and Johnson’s retaliation occurred
19
after Lee and Johnson allegedly engaged in a “continued pattern of
20
culpable
21
allegations, Asuncion failed to remedy a pre-existing violation of
22
Plaintiff’s rights.
23
not have caused the constitutional injury in the first instance.3
failure
“to
failure[s].”
remedy
(FAC
(Id.).
the
at
Cf. Larez, 946 F.2d
Moreover, the FAC alleges that
problem”
30).
of
Thus,
either
by
Plaintiff’s
Plaintiff’s
own
Consequently, Asuncion’s omission could
24
25
26
27
28
3
Plaintiff’s inadequate medical care claim against Asuncion
also fails because, as discussed below, Plaintiff has not stated a
deliberate indifference to serious medical needs claim against Lee or
Johnson. See infra § IV.E. Therefore, Plaintiff’s derivative claim
against Asuncion for failure to remedy the problem of Lee’s and
Johnson’s inadequate medical care necessarily fails.
14
1
For
these
reasons,
Plaintiff
fails
to
allege
facts
that
2
establish either Asuncion’s personal involvement in the deprivation
3
of Plaintiff’s rights or some other sufficient causal connection.
4
Accordingly,
5
claims against Asuncion must be DISMISSED with leave to amend.
Plaintiff’s
retaliation
and
inadequate
medical
care
6
7
C.
The FAC Fails To State A Section 1983 Claim For Injunctive
Relief Against Asuncion
8
9
Plaintiff
10
prays
for
the
relief
of
“an
injunction
.
.
.
11
warranting an exception to the Eleventh Amendment bar . . . allowing
12
Plaintiff to proceed with claim against Warden Asuncion.”
13
31).
14
arms are immune from suit under section 1983.
15
16
17
(Id. at
Pursuant to the Eleventh Amendment, a state and its official
Howlett v. Rose, 496
U.S. 356, 365 (1990); see also Brown v. Cal. Dept. of Corrections,
554 F.3d 747, 752 (9th Cir. 2009) (“California has not waived its
Eleventh Amendment immunity with respect to claims brought under §
18
1983 in federal court”).
“[A] suit against a state official in his
19
or her official capacity . . . is no different from a suit against
20
the
State
itself,”
and
state
officials
sued
in
their
official
21
capacity are generally entitled to immunity.
Flint v. Dennison, 488
22
23
24
F.3d 816, 824-25 (9th Cir. 2007) (citation omitted).
However, State
officials sued in their official capacity, however, are considered
25
“person[s]”
when
they
are
sued
for
prospective
injunctive
relief
26
under section 1983, and the Eleventh Amendment does not bar such
27
claims.
28
U.S. 159, 167 n.14 (1985)).
Flint, 488 F.3d at 824-25 (citing Kentucky v. Graham, 473
15
1
Here,
Plaintiff
seeks
an
injunction
against
Asuncion,
the
2
California Department of Corrections and Rehabilitation, and CSP-
3
LAC’s
4
mandating Plaintiff’s medical treatment at no cost, placement in a
5
6
7
health
care
single-inmate
facility.
officials
cell,
and
prohibiting
transfer
(FAC at 31-32).
to
further
an
retaliation
alternative
and
correctional
However, Plaintiff does not allege an
official capacity claim against Asuncion and therefore, Plaintiff is
8
not entitled to pursue a claim for prospective injunctive relief.
9
Moreover, Plaintiff’s individual capacity claim for injunctive relief
10
against Asuncion also
fails.
Claims for injunctive relief against
11
the
state
may
not
be
brought
against
a
state
official
in
her
12
13
14
individual capacity.
An individual capacity suit “seek[s] to impose
personal liability upon a government official for actions [s]he takes
15
under
16
added), and it is money damages that are available from a defendant
17
sued in her individual capacity.
18
relief,
19
Department of Corrections and CSP-LAC and is not directed at Asuncion
20
in her individual capacity.
21
claim
22
capacity must be DISMISSED with leave to amend.
23
//
24
25
color
of
state
however,
for
law,”
seeks
injunctive
Kentucky,
U.S.
at
165
(emphasis
Plaintiff’s claim for injunctive
system-wide
relief
473
changes
at
the
California
Accordingly, Plaintiff’s section 1983
against
//
//
26
27
28
16
Asuncion
in
her
individual
1
D.
The FAC Fails To State A Retaliation Claim Against Johnson4
2
3
Plaintiff alleges that Johnson “deliberately and intentionally
4
‘retaliated’ against Plaintiff for engaging in his constitutionally
5
protected
6
filing 602 staff complaints, and for taking part in the 2015 special
7
review of High Desert State Prison.”
8
alleges
9
confidential medical information, (id. at 18), and that she laughed
10
at and denied Plaintiff treatment for his swelling and pain in his
11
foot and leg, (id. at 19).
12
third element of a retaliation claim against Johnson.
conduct
that
for
utilizing
Johnson
the
laughed
prison
grievance
(FAC at 26).
when
Lee
process
by
Plaintiff further
revealed
Plaintiff’s
These allegations do not satisfy the
13
14
To
state
a
First
Amendment
retaliation
claim,
a
plaintiff
15
“[f]irst, . . . must allege that the retaliated-against conduct is
16
protected.”
17
(citing Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005)).
18
“Second, the plaintiff must claim the defendant took adverse action
19
against the plaintiff.
20
constitutional violation.”
21
408 F.3d at 568; Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995)).
22
“Third, the plaintiff must allege a causal connection between the
23
adverse
24
plaintiff
25
26
27
28
Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012)
action
must
and
The adverse action need not be an independent
the
allege
Id. (citation omitted) (citing Rhodes,
protected
that
the
conduct.”
‘official’s
4
Id.
acts
“Fourth,
would
chill
the
or
The Court did not dismiss Plaintiff’s retaliation claim
against Lee in its initial order of dismissal. (Docket Entry No. 7
at 13). Plaintiff re-pleads that claim in the FAC with allegations
substantially similar to those in his original Complaint. The FAC’s
retaliation claim against Lee survives dismissal for the same reasons
that the Court previously held that the Complaint’s retaliation claim
against Lee may proceed. (Id.).
17
1
silence a person of ordinary firmness from future First Amendment
2
activities.’”
3
Rhodes, 408 F.3d at 562 (A plaintiff does not have to show that his
4
speech was actually suppressed.
5
Amendment rights were chilled, even if not “necessarily silenced,” is
6
enough
7
“chilling effect” is not alleged, “[a plaintiff] may still state a
8
claim if [the complaint] alleges he [or she] suffered some other
9
harm,’ that is ‘more than minimal’”) (quoting Brodheim v. Cry, 584
10
F.3d 1262, 1269 (9th Cir. 2009); Rhodes, 408 F.3d at 568 n.11).
11
“Fifth,
12
retaliatory action did not advance [the] legitimate goals of the
13
correctional institution.’”
14
v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)).
to
Id.
state
the
a
(quoting
claim.);
plaintiff
must
Rhodes,
408
F.3d
at
568);
see
also
A plaintiff’s showing that his First
Watison,
allege
668
‘that
F.3d
the
at
1114
prison
(if
this
authorities’
Watison, 668 F.3d at 1114 (quoting Rizzo
15
16
The FAC alleges the protected conduct of filing staff complaints
17
and participating in a federal investigation and adverse action by
18
Johnson of denying Plaintiff medical care.
19
denying medical care for pain and swelling sufficiently severe to
20
prevent an inmate from walking would be sufficient to silence a
21
person of ordinary firmness.
22
of medical care did not advance legitimate correctional goals.
23
FAC, however, does not allege facts that, if true, establish a causal
24
connection between Johnson’s denial of medical care and Plaintiff’s
25
protected conduct.
The Court assumes that
The Court also assumes that the denial
The
26
27
28
Direct evidence of retaliatory intent rarely can be pleaded in a
complaint.
See id. at 1114.
Allegations of a chronology of events
18
1
from which retaliation can be inferred, however, is sufficient to
2
survive dismissal.
Id.
3
Here,
4
Plaintiff
provides
neither
direct
evidence
nor
a
5
chronology of events indicative of retaliatory motive.
6
FAC
7
intentionally
8
constitutionally
9
unaccompanied by any chronology of events or other facts giving rise
only
alleges
the
conclusion
‘retaliated’
that
protected
against
Johnson
Plaintiff
conduct.”
This
Instead, the
“deliberately
for
engaging
conclusion
and
in
his
alone
10
to an inference that Johnson acted with a retaliatory motive -
11
–
is
not sufficient to state the necessary causal connection.
12
The
13
FAC’s
allegations
do
not
state
a
14
against Johnson.
15
First
Amendment
claim
Accordingly, Plaintiff’s retaliation claim against
Johnson must be DISMISSED with leave to amend.
16
17
E.
The FAC Fails To State A Claim For Deliberate Indifference To
Serious Medical Needs Against Lee And Johnson
18
19
A defendant is liable for the delay or denial of a prisoner’s
20
21
medical
22
deliberately
23
needs.
24
97, 104 (1976).
25
was “objectively, sufficiently serious” and that prison officials
26
27
28
were
care
in
violation
indifferent
to
of
the
Eighth
the
prisoner’s
Amendment
known
only
serious
when
medical
Farmer, 511 U.S. at 834; see also Estelle v. Gamble, 429 U.S.
A prisoner must show that the deprivation suffered
deliberately
indifferent
deprivation to take place.
to
his
safety
in
allowing
the
Morgan v. Morgensen, 465 F.3d 1041, 1045
(9th Cir. 2006).
19
1
A
plaintiff
can
satisfy
the
objective
component
of
the
2
deliberate indifference standard by demonstrating that a failure to
3
treat the plaintiff’s condition could result in further significant
4
injury or the unnecessary and wanton infliction of pain.
5
6
7
Colwell v.
Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted);
accord
McGuckin
v.
Smith,
974
F.2d
1050,
1059
(9th
Cir.
1992),
overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d
8
1133
(9th
Cir.
1997).
A
plaintiff
can
satisfy
the
subjective
9
component of the deliberate indifference standard by showing that a
10
prison official “knows of and disregards an excessive risk to inmate
11
health and safety.”
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
12
13
14
2004).
A jail official must “both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
15
exists, and he must also draw the inference.”
16
Farmer, 511 U.S. at
837.
17
Here, Plaintiff alleges that he suffered from swelling and pain
18
19
in his leg and foot that prohibited him from walking.
He further
20
alleges that he required corrective hip surgery.
21
appear to satisfy the objective requirement that Plaintiff had a
22
serious medical need.
These conditions
23
24
Plaintiff, however, does not allege facts that, if true, satisfy
25
the subjective component of the deliberate indifference standard.
26
27
The
FAC’s
Eighth
Amendment
claim
against
Lee
and
Johnson
is
substantially the same as the original Complaint’s claim, which the
28
Court dismissed for failure to state a claim.
20
The Court expressly
1
ordered
2
authorities discussed in the Court’s order of dismissal.
3
Entry No. 7 at 32).
4
requirements necessary to satisfy the subjective component of the
5
6
7
Plaintiff,
deliberate
in
any
amended
complaint,
to
comply
with
the
(Docket
The Court further informed Plaintiff of the
indifference
standard.
(Id.
at
16-19).
Plaintiff
nonetheless filed an Eighth Amendment claim against Lee and Johnson
that suffers from the same infirmities as his original claim.
8
9
Plaintiff
alleges
that,
on
January
14,
2016,
Lee
revealed
10
Plaintiff’s
confidential
medical
information,
refused
to
provide
11
Plaintiff with a wheelchair, told Plaintiff to forget about his pain
12
13
14
management medication, and threatened that Plaintiff’s future medical
requests would get “lost in the trash.”
Johnson laughed when Lee
15
revealed Plaintiff’s confidential medical information.
16
Lee and Johnson refused to treat Plaintiff on January 29, 2016,
17
despite swelling and pain in Plaintiff’s foot and leg that prevented
18
Plaintiff from walking.
19
treatment, Johnson told Plaintiff that he should “suck it up and act
20
like a man.”
21
fives.
22
not
23
needed to be taught a “hard lesson.”
24
25
In addition,
When Plaintiff complained about the lack of
She also laughed and gave Lee and other nurses “high
Then, on April 15, 2016, Lee informed Plaintiff that he would
recommend
surgery
because
Plaintiff
was
a
whistleblower
and
After Plaintiff received hip
surgery, he did not receive post-operative physical therapy for at
least 78 days, and he remains confined in a wheelchair.
26
27
28
These allegations do not establish that Lee and Johnson acted
with deliberate indifference.
First, while Plaintiff alleges that
21
1
Lee and Johnson refused to treat Plaintiff’s swelling and pain on
2
January 29, 2016, Plaintiff received a wheelchair five days later.
3
Thus, the cause of Plaintiff’s complaints – i.e., using a walker
4
instead of a wheelchair to ambulate – was promptly eliminated.
(FAC
5
at
that
6
defendants
7
receiving a wheelchair would result in excessive and serious risk to
8
Plaintiff’s health and safety.
9
risk of future harm, which further suggests that the short delay of
10
five days posed no excessive or serious risk to Plaintiff’s present
11
health and safety.
12
“‘pose[d] an unreasonable risk of serious damage to Plaintiff[’]s
13
future health,’” and that “the damages ha[ve] not yet occurred”)
14
(emphasis added)).
12,
13,
14,
were
29,
aware
41).
that
Plaintiff
the
has
minimal
not
delay
established
of
five
days
in
Moreover, the FAC itself alleges a
(Id. at 21 (alleging that the failure to treat
15
16
Second,
while
Plaintiff
alleges
that
Lee
threatened
not
to
17
recommend surgery, Plaintiff does not allege that Lee acted on this
18
threat.
19
serious
20
Plaintiff received surgery four months after Lee allegedly threatened
21
not to recommend it.
22
alone is not indicative of an awareness of an excessive and serious
23
risk to Plaintiff’s health and safety.
Unfulfilled
threat
to
an
threats
do
inmate’s
not
health
constitute
and
an
excessive
safety.
In
and
addition,
On the facts alleged, a delay of four months
24
25
Third, while Plaintiff alleges that Lee and Johnson failed to
26
treat Plaintiff or provide him with pain medication on January 29,
27
2016,
28
“militates against a finding of deliberate indifference.”
harm
that
arises
from
an
22
isolated
instance
of
neglect
Jett v.
1
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974
2
F.2d at 1060.
3
repeatedly,
4
Compare McGuckin, 974 F.2d at 1060 (repeated failures to treat an
5
6
7
Plaintiff does not allege that Lee and Johnson failed
or
even
on
a
second
occasion,
to
treat
Plaintiff.
inmate properly or a single egregious instance “strongly suggests”
that the defendant acted with deliberate indifference).
Moreover,
“mere malpractice, or even gross negligence,” in the provision of
8
medical care does not establish a constitutional violation.
Wood v.
9
Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); see also Estelle,
10
429
U.S.
at
105-06
(“[A]
complaint
that
a
physician
has
been
11
negligent in diagnosing or treating a medical condition does not
12
13
14
state
a
valid
claim
of
medical
mistreatment
under
the
Eighth
Amendment.”).
15
16
Fourth, while Plaintiff alleges that he received no physical
17
therapy for 78 days after his hip surgery and remains unable to walk,
18
19
20
21
22
23
Plaintiff does not allege that Lee and Johnson were responsible for
his lack of physical therapy.
Further, Plaintiff does not allege
that they were aware that withholding or delaying physical therapy
for 78 days posed a serious and excessive risk of harm to Plaintiff
or
that
their
negligence.
conduct
amounted
to
anything
more
than
medical
Cf. Wood, 900 F.3d at 1334.
24
25
26
27
28
Finally,
while
Plaintiff
alleges
that
Johnson
made
jokes
at
Plaintiff’s expense and told him to “act like a man,” unprofessional
comments do not give rise to a claim of deliberate indifference.
Johnson’s unprofessionalism does not establish that she was aware
23
1
that
2
substantial risk of serious harm.
denying
treatment
to
Plaintiff
on
one
occasion
posed
a
3
4
For
these
reasons,
Plaintiff
has
failed
to
allege
that
5
defendants acted with deliberate indifference to his medical needs.
6
Accordingly,
7
Johnson must be DISMISSED with leave to amend.
8
to pursue an Eighth Amendment claim against Lee or Johnson in any
9
amended
10
Plaintiff’s
complaint,
he
Eighth
must
Amendment
allege
claims
facts
against
Lee
and
If Plaintiff wishes
that
establish
that
defendants acted with the requisite deliberate indifference.
11
ORDER
12
13
14
15
For the reasons stated above, Plaintiff’s FAC is DISMISSED-INPART with leave to amend.
16
17
If Plaintiff wishes to further pursue the claims dismissed in
18
this action, he must file a Second Amended Complaint no later than 30
19
days from the date of this Order.
20
cure the pleading defects discussed above and shall be complete in
21
itself without reference to the original Complaint or FAC.
22
15-2 (“Every amended pleading filed as a matter of right or allowed
23
by order of the Court shall be complete including exhibits.
24
amended
25
pleading.”).
26
viable claims in the FAC again.
pleading
shall
not
The Second Amended Complaint must
refer
to
the
prior,
See L.R.
The
superseding
This means that Plaintiff must allege and plead any
27
28
In any amended complaint, Plaintiff should identify the nature
of each separate legal claim, identify the defendant(s) against whom
24
1
he brings the claim, and confine his allegations to those operative
2
facts supporting each of his claims.
3
Civil Procedure 8(a), all that is required is a “short and plain
4
statement
of
5
relief.”
However, Plaintiff is advised that the allegations in the
6
Second Amended Complaint should be consistent with the authorities
7
discussed above.
8
include
9
allegations
new
the
claim
that
the
pleader
is
entitled
to
In addition, the Second Amended Complaint may not
defendants
in
showing
Pursuant to Federal Rule of
the
or
claims
not
previously-filed
reasonably
related
complaints.
to
the
Furthermore,
10
Plaintiff shall indicate in what capacity he sues any defendant(s).
11
Plaintiff is strongly encouraged to utilize the standard civil rights
12
complaint form when filing any amended complaint, a copy of which is
13
attached.
14
Plaintiff is explicitly cautioned that failure to timely file a
15
16
Second
Amended
Complaint,
17
described above, may result in a recommendation that this action, or
18
portions
19
prosecute and/or failure to comply with court orders.
20
Civ. P. 41(b).
21
//
22
//
23
//
thereof,
be
or
failure
dismissed
with
24
25
26
27
28
25
to correct the deficiencies
prejudice
for
failure
to
See Fed. R.
1
Plaintiff is further advised that if he no longer wishes to
2
pursue this action in its entirety or with respect to particular
3
defendants or claims, he may voluntarily dismiss all or any part of
4
this
5
Federal Rule of Civil Procedure 41(a)(1).
6
is attached for Plaintiff’s convenience.
action
by
filing
a
Notice
of
Dismissal
in
accordance
A form Notice of Dismissal
7
8
IT IS SO ORDERED.
9
10
Dated: June 27, 2017
11
12
13
_____________/s/_____________
ALKA SAGAR
United States Magistrate Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26
with
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?