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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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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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