Hoy Chan v. Orry Marciano et al

Filing 7

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The First Amended Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this memorandum and Order within which to file a Second Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Pla intiff is further advised that if he no longer wishes to pursue this action he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiffs convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HOY CHAN,
Plaintiff,

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Case No. EDCV 16-2513 R (SS)
MEMORANDUM AND ORDER

v.

DISMISSING FIRST AMENDED

ORRY MARCIANO, et al.,

COMPLAINT WITH LEAVE TO AMEND

Defendants.

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I.

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INTRODUCTION

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21

On November 6, 2016, Plaintiff Hoy Chan (“Plaintiff”), a state

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prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C.

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§ 1983 and the Americans with Disabilities Act (“ADA”), 42 U.S.C.

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§ 12131 et seq.

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pleading, the Court dismissed the Complaint with leave to amend.

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(Dkt. No. 5).

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Amended Complaint on May 12, 2017.

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(“Complaint,” Dkt. No. 1).

Due to defects in

Plaintiff subsequently filed the instant First
(“FAC,” Dkt. No. 6).

1

Congress mandates that district courts perform an initial

2

screening of complaints in civil actions where a prisoner seeks

3

redress

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§ 1915A(a). This court may dismiss such a complaint, or any portion

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of it, before service of process if the court concludes that the

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complaint (1) is frivolous or malicious, (2) fails to state a claim

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upon which relief can be granted, or (3) seeks monetary relief from

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a defendant who is immune from such relief.

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For the reasons stated below, the First Amended Complaint is

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from

a

governmental

entity

or

employee.

28

U.S.C.

28 U.S.C. § 1915A(b).

DISMISSED with leave to amend.1

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12

II.

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ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

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15

Plaintiff names the following Chuckawalla Valley State Prison

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(“CVSP”) employees as defendants in their official and individual

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capacities:2 (1) physician’s assistant and “Primary Care Doctor”

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Orry

Marciano;

(2)

Nurse

Beatres;

(3)

Warden

Kimberly

Sibel;

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Magistrate Judges may dismiss a complaint with leave to amend
without approval of the District Judge.
See McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
1

Under section 1983, state officials sued in their official
capacity for prospective injunctive relief are considered
“individuals” not immune from suit. Flint v. Dennison, 488 F.3d
816, 825 (9th Cir. 2007).
Plaintiff seeks injunctive relief on
his section 1983 claims.
Furthermore, the ADA allows suits for
monetary damages against public entities.
United States v.
Georgia, 546 U.S. 151, 154 (2006).
Under Title II, individuals
may be sued in their official capacity because claims against them
are claims against the governmental agency.
Miranda B. v.
Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003).
Thus,
Plaintiff’s official capacity claims are proper here.
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2

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(4) Correctional Officer Anderson; and (5) Correctional Officer

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Calvillo (collectively “Defendants”).

(FAC at 3-4).

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4

Plaintiff, a diabetic with breathing problems, alleges that

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Marciano

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disabilities.

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a year” ago, Marciano promised Plaintiff access to an orthopedic

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doctor, whom Plaintiff alleges he has not yet seen.

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Marciano also prescribed medicine to Plaintiff that has allegedly

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discriminated

against

(Id. at 3, 5).

“deteriorated [his] body.”

him

because

of

his

alleged

Plaintiff contends that “more than

(Id. at 5).

(Id. at 3).

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12

Plaintiff alleges that Nurse Beatres “always denied [his]

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disability,” and yelled at him to stop complaining and “take

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Tylenol.”

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and Beatres told the officers that Plaintiff is not disabled,

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Anderson and Cavillo “forced [him] to work using chemicals.”

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at 4).

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system,” he was not excused from work and could be written up if

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he refused.

(Id. at 3, 5).

Plaintiff believes that, after Marciano

(Id.

Because Plaintiff’s disability was allegedly not “in the

(Id.).

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21

Plaintiff claims that the “severe pain” from his bunion is

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exacerbated by the heavy work boots he must wear.

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Plaintiff has attached records indicating that therapeutic shoes

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were prescribed to him after two infirmary visits on February 15

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and 23, 2017.

26

Amended Complaint, he has not received the shoes.

(Id. at 7, 14).3

(Id. at 6).

As of the filing of the First
(Id. at 6).

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The Court refers to the documents attached to the First Amended
Complaint as if they were consecutively paginated.
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1

During the February 23 visit, a cane was prescribed and a follow-

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up “Orthotics Referral Request” was scheduled for May 23, 2017,

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citing a “moderate right Bunion.”

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indicate which physician treated him during either visit, but

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Plaintiff claims that an unnamed “D Yard” doctor recommended the

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cane.

(Id. at 8).

Records do not

(Id. at 5, 7, 14).

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8

Plaintiff alleges that Warden Sibel “knows what’s going on,”

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i.e., that inmates are provided with doctors and nursing staff who

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do not “[know] their jobs and responsibilities.”

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Plaintiff

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“responsibilities to inform or educate her staff” on the importance

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of operational procedures.

alleges

that

Sibel

is

also

(Id. at 3).

failing

in

her

(Id. at 5).

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The First Amended Complaint claims that Defendants “abused

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[Plaintiff’s] constitutional rights” by discriminating against him

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in violation of the Americans with Disabilities Act.

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6).

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punishment upon Plaintiff, by forcing him to work and showing

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deliberate indifference to his medical needs.

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First Amended Complaint also alleges violations of “Title 45” of

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the California Code of Regulations, which does not appear to exist,

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and claims that Sibel failed to train and supervise the Defendants.

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(Id. at 3, 5).

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6).

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to be seeking an injunction, demanding his prescribed therapeutic

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shoes and a visit to an orthopedic specialist.

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does not request monetary damages.

Defendants

also

allegedly

inflicted

cruel

(Id. at 5and

unusual

(Id. at 3-5).

Plaintiff’s prayer for relief is unclear.

The

(Id. at

While Plaintiff vaguely calls for “justice,” he also appears

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(Id.).

(Id.).

Plaintiff

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III.

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DISCUSSION

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Pursuant to 28 U.S.C. § 1915A(b), the Court dismisses the

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First Amended Complaint due to defects in pleading.

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litigant in a civil rights case, however, must be given leave to

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amend his or her complaint unless “it is absolutely clear that the

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deficiencies of the complaint cannot be cured by amendment.”

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Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and

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internal quotation marks omitted).

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A pro se

See

Accordingly, the First Amended

Complaint is dismissed with leave to amend.

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13

A.

Plaintiff Fails To State A Claim Under The ADA

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Plaintiff unsuccessfully attempts to state a claim for relief

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under the ADA.

Title II of the ADA, which “prohibits a ‘public

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entity’ from discriminating against a ‘qualified individual with a

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disability on account of that individual’s disability,’ [] covers

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inmates in state prisons,” (Pennsylvania Dept. of Corr. v. Yeskey,

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524 U.S. 206, 208 (1998) (quoting 42 U.S.C. § 12132)), but the

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allegations here fail to state a claim.

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To state a claim under § 12132 of Title II, a plaintiff must
allege that:

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“(1) he is an individual with a disability; (2) he is

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otherwise qualified to participate in or receive the

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benefit of some public entity’s services, programs, or
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1

activities;

(3)

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participation in or denied the benefits of the public

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entity’s

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otherwise discriminated against by the public entity;

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and

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discrimination was by reason of [his] disability.”

services,

(4)

such

he

was

either

programs,

exclusion,

or

excluded

activities,

denial

of

from

or

benefits,

was

or

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8

Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir.

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2010) (quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th

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Cir. 2004)).

In order to allege that Plaintiff is disabled under

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the ADA, he must demonstrate that he has been diagnosed with a

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condition that substantially limits his life activities.

13

v. Abbott, 524 U.S. 624, 631 (1998); see also Weaving v. City of

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Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (“A 2008 Amendment

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to the ADA provides, ‘The definition of disability in this chapter

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shall be construed in favor of broad coverage . . .’ ‘The term

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‘substantially limits’ shall be interpreted consistently with the

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[amendment].’”) (citing 42 U.S.C. § 12102(4)(A-B)).

Bragdon

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“The ADA prohibits discrimination because of disability, not

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inadequate treatment for disability.”

Simmons, 609 F.3d at 1022

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(emphasis added).

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under the ADA.

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(7th Cir. 1996) (“[T]he Act would not be violated by a prison’s

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simply failing to attend to the medical needs of its disabled

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prisoners . . . The ADA does not create a remedy for medical

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malpractice.”).

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Insufficient medical care does not state a claim

Id.; see also Bryant v. Madigan, 84 F.3d 246, 249

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Here, Plaintiff’s ADA claim fails because the First Amended

2

Complaint does not allege that Plaintiff was denied access to a

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governmental benefit because of his disability. Instead, Plaintiff

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claims

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Plaintiff must allege facts showing that the prison’s purported

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refusal to accommodate his disability prevented him from enjoying

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the benefits of services, programs or activities provided to non-

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disabled prisoners, and that he was discriminated against because

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of his disability.

that

Marciano

and

Beatres

provided

substandard

care.

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11

Additionally, “Title II authorizes suits by private citizens,”

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including

prisoners,

only

“for

money

damages

against

public

13

entities that violate § 12132.”

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151, 154 (2006) (sovereign immunity does not protect states from

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ADA claims by state prisoners).

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relief.

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leave to amend.

United States v. Georgia, 546 U.S.

Plaintiff does not seek monetary

Accordingly, Plaintiff’s ADA claim is dismissed, with

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B.

Plaintiff Fails To State A Cruel And Unusual Punishment Claim

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Plaintiff broadly claims that he was subjected to “cruel and

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unusual punishment.”

(FAC at 3, 5).

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have included forced labor and a violation of some unidentified

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provision of the California Code of Regulations.

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is unclear whether Plaintiff is raising this claim against only

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Anderson and Cavillo, or all of the Defendants.

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7

This punishment appears to

(Id. at 5).

It

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Infliction of suffering on prisoners that is “totally without

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penological justification” violates the Eighth Amendment.

3

v. Chapman, 452 U.S. 337, 346 (1981) (citation omitted).

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unnecessary and wanton infliction of pain . . . constitutes cruel

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and unusual punishment forbidden by the Eighth Amendment.”

6

v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks and

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citation omitted).

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and

9

[A]mendment.”

barbarous

Rhodes

Only “the

Whitley

The pain must amount to “the type of shocking

treatment

protected

against

by

the

[E]ighth

Grummett v. Rushen, 779 F.2d 491, 494 n.1 (9th Cir.

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1985).

To state an Eighth Amendment claim, a prisoner must allege

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that prison officials acted with deliberate indifference to a

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substantial risk of serious harm.

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828 (1994).

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they know of and disregard an excessive risk to an inmate’s safety

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or health.

Farmer v. Brennan, 511 U.S. 825,

Prison officials manifest deliberate indifference if

Id. at 837.

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17

Here, Plaintiff alleges that Anderson and Cavillo “forced

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[him] to work using chemicals.”

(FAC at 5).

The First Amended

19

Complaint fails to show whether the chemicals or the work itself

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posed any risk to Plaintiff’s health, which the Defendants knew

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and deliberately ignored.

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attempting to assert that Defendants violated a safety regulation,

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the First Amended Complaint does not specify which regulation was

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allegedly violated.

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28.

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state regulation is not itself a constitutional violation.

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Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1052 (9th Cir.

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2002).

Also, to the extent that Plaintiff is

See California Code of Regulations, Titles 1-

However, Plaintiff is advised that the failure to follow a
See

Because Plaintiff does not allege “shocking and barbarous”
8

1

conduct

by

any

Defendant

that

would

rise

to

the

level

of

a

2

constitutional violation, the First Amended Complaint fails to

3

state a cruel and unusual punishment claim.

4

668 F.3d 1108, 1113 (9th Cir. 2012) (citation omitted).

5

the First Amended Complaint must be dismissed, with leave to amend.

See Watison v. Carter,
Therefore,

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C.

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Plaintiff

Fails

To

State

An

Eighth

Amendment

Claim

For

Deliberate Indifference To Serious Medical Needs

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10

Plaintiff further alleges that Defendants were deliberately

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indifferent to his serious medical needs in violation of the Eighth

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Amendment. Defendants allegedly failed to provide adequate medical

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care

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deteriorating

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deliberate indifference claim is defective.

for

Plaintiff’s
health.

bunion,
(FAC

which
at

led,

3-6).

in

part,

However,

to

his

Plaintiff’s

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17

To state a claim for unconstitutional health care services, a

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prisoner must demonstrate that the defendants were “deliberately

19

indifferent” to his “serious medical needs.”

20

F.3d 1091, 1096 (9th Cir. 2006).

To establish a “serious medical

21

need,”

that

22

prisoner’s condition could result in further significant injury or

23

the ‘unnecessary and wanton infliction of pain.’”

24

at 1096 (citation omitted); see also Morgan v. Morgensen, 465 F.3d

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1041, 1045 (9th Cir. 2006) (the existence of a serious medical need

26

is determined by an objective standard).

the

prisoner

must

show

27
28
9

Jett v. Penner, 439

“failure

to

treat

[the]

Jett, 439 F.3d

1

To establish “deliberate indifference” to such a need, the

2

prisoner must demonstrate: “(a) a purposeful act or failure to

3

respond to a prisoner’s pain or possible medical need, and (b) harm

4

caused by the indifference.”

5

indifference “may appear when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown

7

by the way in which prison physicians provide medical care.”

8

(citation omitted).

9

to provide adequate medical care” alone does not state a claim.

Jett, 439 F.3d at 1096.

Deliberate

Id.

Yet, an “inadvertent [or negligent] failure

10

Id. (citation omitted).

11

aware

12

disregarded that risk.

13

“isolated exception” to the defendant’s “overall treatment” of the

14

prisoner also does not state a deliberate indifference claim.

15

Jett, 439 F.3d at 1096.

of

a

serious

The defendant must have been subjectively

risk

of

harm

and

must

have

consciously

See Farmer, 511 U.S. at 839 (1994).

An

16
17

Here, even if Plaintiff’s impairments gave rise to “serious

18

medical needs,” the First Amended Complaint does not allege that

19

Marciano and Beatres were subjectively aware of, and deliberately

20

chose to ignore, these needs.

21

Complaint indicates Plaintiff’s symptoms were treated with medicine

22

and a cane.

23

the

24

deliberate indifference.

25

While the Defendants allegedly also failed to care for Plaintiff’s

26

bunion by denying him therapeutic shoes and access to an orthopedic

27

surgeon, a difference of opinion regarding treatment does not give

28

rise to a deliberate indifference claim.

(FAC at 7, 14-15).

medicine

“deteriorated

On the contrary, the First Amended

Plaintiff’s vague allegations that
his

health”

fail

to

demonstrate

(Id. at 3-4); Farmer, 511 U.S. at 835.

10

Fleming v. LeFevere, 423

1

F. Supp. 2d. 1064, 1070 (C.D. Cal 2006); see also Sanchez v. Vild,

2

891 F.2d 240, 242 (9th Cir. 1989).

3

conduct does not rise to the level of a constitutional violation

4

because the First Amended Complaint merely alleges that she lacked

5

compassion by yelling at Plaintiff.

Additionally, Nurse Beatres’

(Id. at 3).

6
7

Plaintiff does not appear to allege deliberate indifference

8

claims against any of the other three Defendants.

9

because the First Amended Complaint acknowledges that Marciano and

10

Beatres took affirmative steps to investigate and treat Plaintiff’s

11

complaints,

12

dismissed with leave to amend.

Plaintiff’s

deliberate

indifference

Therefore,

claims

are

13
14

D.

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Plaintiff Fails To State A Claim For Failure To Train And
Supervise

16
17

Plaintiff alleges that Sibel knows of inmates who have died

18

as the result of medical staff “delaying [and] denying [their]

19

medical needs.”

(FAC at 3).

Plaintiff further alleges that Sibel

20

has

“inform

educate

21

Procedure.”

failed

to

or

her

staff

on

Operational

(Id. at 5).

22
23

To demonstrate a civil rights action against a government

24

official, a plaintiff must show either the official’s direct,

25

personal participation in the harm, or some sufficiently direct

26

connection

27

constitutional violation.

28

06 (9th Cir. 2011).

between

the

official’s

conduct

and

the

alleged

See Starr v. Baca, 652 F.3d 1202, 1205-

A supervising officer such as Sibel must
11

1

personally take some action against the plaintiff or “set in motion

2

a series of acts by others . . . which [s]he knew or reasonably

3

should have known, would cause others to inflict the constitutional

4

injury” on the plaintiff.

5

630, 646 (9th Cir. 1991) (internal quotations omitted).

6

officials may not be held liable for the unconstitutional conduct

7

of their subordinates.

8

(2009).

9

his own culpable action or inaction in the training, supervision,

Larez v. City of Los Angeles, 946 F.2d
Government

See Ashcroft v. Iqbal, 556 U.S. 662, 676

Rather, a supervisor may only be held accountable “for

10

or

control

of

his

subordinates,

for

his

acquiescence

in

the

11

constitutional deprivations of which the complaint is made, or for

12

conduct that showed a reckless or callous indifference to the

13

rights of others.”

14

479 F.3d 1175, 1183 (9th Cir. 2007).

Preschooler II v. Clark County Bd. of Trustees,

15
16

The

First

Amended

Complaint

does

not

allege

facts

that

17

establish that Sibel’s failure to train or supervise the Defendants

18

led to violations of Plaintiff’s constitutional rights.

19

claims that Sibel failed to educate her staff about “Operational

20

Procedure.”

21

referring

22

injuries, or how Sibel failed to train her staff.

23

allege specific facts showing what Sibel personally did or did not

24

do, and explain how her action or inaction caused a violation of

25

Plaintiff’s civil rights. Accordingly, the First Amended Complaint

26

must be dismissed with leave to amend.

27

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\\

to,

Plaintiff

Plaintiff fails to explain which procedure he is
why

that

procedure

12

is

relevant

to

his

alleged

Plaintiff must

1

E.

The First Amended Complaint Violates Rule 8

2
3

Federal Rule of Civil Procedure 8(a)(2) requires that a

4

complaint contain “‘a short and plain statement of the claim

5

showing that the pleader is entitled to relief,’ in order to ‘give

6

the defendant fair notice of what the . . . claim is and the

7

grounds upon which it rests.’”

8

544, 555 (2007) (citations omitted).

9

a pleading “says too little” and “when a pleading says too much.”

10

Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (emphasis in

11

original); see also Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys.,

12

Inc., 637 F.3d 1047, 1058-59 (9th Cir. 2011) (a complaint violates

13

Rule 8 if a defendant would have difficulty understanding and

14

responding to the complaint).

Bell Atlantic v. Twombly, 550 U.S.
Rule 8 may be violated when

15
16

The First Amended Complaint violates Rule 8 because Plaintiff

17

does not clearly identify the nature of each of his legal claims,

18

the specific facts giving rise to each claim, or the specific

19

Defendant

20

Plaintiff also makes a passing reference to a mental health program

21

(“HOPE”) alleging that it is mere “propaganda,” intended to show

22

the “People of California” that the prison cares about inmates,

23

even though many are sick and “the elderly inmates [are] abused by

24

medical staff.”

25

program’s

26

information,

27

Complaint.

28

First Amended Complaint is dismissed, with leave to amend.

or

Defendants

against

(FAC at 5).

relevance

to

Defendants

his

whom

each

claim

is

brought.

Plaintiff does not explain the
claims.

cannot

respond

Without

more

to

First

the

See Cafasso, 637 F.3d at 1058-59.

13

specific
Amended

Accordingly, the

1

IV.

2

CONCLUSION

3
4

For the reasons stated above, the First Amended Complaint is

5

dismissed with leave to amend.

6

this action, he is granted thirty (30) days from the date of this

7

memorandum

8

Complaint.

9

defects described above.

and

Order

within

If Plaintiff still wishes to pursue

which

to

file

a

Second

Amended

In any amended complaint, Plaintiff shall cure the

10
11

Furthermore, Plaintiff shall omit any claims or allegations

12

that are not reasonably related to the claims asserted in the First

13

Amended

14

deficiencies

15

Complaint, if any, shall be complete in itself and shall bear both

16

the designation “Second Amended Complaint” and the case number

17

assigned to this action.

18

original Complaint.

Complaint

but

addressed

shall
in

instead

this

attempt

Order.

The

to

cure

Second

the

Amended

It shall not refer in any manner to the

19
20

In

any

amended

complaint,

Plaintiff

should

confine

his

21

allegations to the operative facts supporting each of his claims.

22

Plaintiff

23

Procedure 8(a), all that is required is a “short and plain statement

24

of the claim showing that the pleader is entitled to relief.”

25

Plaintiff is strongly encouraged to utilize the standard civil

26

rights complaint form when filing any amended complaint, a copy of

27

which is attached.

28

identify the nature of each separate legal claim and make clear

is

advised

that

pursuant

to

Federal

Rule

of

Civil

In any amended complaint, Plaintiff should

14

1

what specific factual allegations support his claims.

Plaintiff

2

is strongly encouraged to keep his statements concise and to omit

3

irrelevant details.

4

law or include legal argument.

It is not necessary for Plaintiff to cite case

5
6

Plaintiff is explicitly cautioned that failure to timely file

7

a Second Amended Complaint, or failure to correct the deficiencies

8

described above, will result in a recommendation that this action

9

be dismissed with prejudice for failure to prosecute and obey Court

10

orders

pursuant

to

Federal

11

Plaintiff is further advised that if he no longer wishes to pursue

12

this action he may voluntarily dismiss it by filing a Notice of

13

Dismissal

in

14

41(a)(1).

A form Notice of Dismissal is attached for Plaintiff’s

15

convenience.

accordance

with

Rule

of

Federal

Civil

Rule

of

Procedure

Civil

41(b).

Procedure

16
17

DATED:

June 28, 2017

18
19
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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21
22
23

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR
ANY OTHER LEGAL DATABASE.

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26
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28
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