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)

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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

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