Gregory Gene Lewis v. Orry Marciano et al

Filing 12

MEMORANDUM DECISION AND ORDER: (1) CONSTRUING "MOTION TO AMEND COMPLAINT" AS SECOND AMENDED COMPLAINT (Dkt. No. 7 ); AND (2) DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal.The Second Amended C omplaint 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 Third Amended Complaint. If Plaintiff chooses to pursue this action, he shall not file the Third Amended Complaint as a "motion," but shall simply caption the document as the "Third 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 Plaintiff 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

9

CENTRAL DISTRICT OF CALIFORNIA

10
GREGORY GENE LEWIS,

11

Case No. EDCV 17-0181 SVW (SS)

Plaintiff,

12

MEMORANDUM DECISION AND ORDER:

v.

13

(1) CONSTRUING “MOTION TO AMEND
COMPLAINT” AS SECOND
AMENDED COMPLAINT (Dkt.
No. 7); AND

ORRY MARCIANO, et al.,

14

Defendants.

15

(2) DISMISSING SECOND AMENDED
COMPLAINT WITH LEAVE TO
AMEND1

16
17
18

I.

19

INTRODUCTION

20
On August 21, 2017, Plaintiff, a California state prisoner

21
22

proceeding

pro

se,

filed

a

document

titled

“Motion

23

Complaint with Leave to Clarify” in the above-captioned civil

24

rights action.

25

stated below, the Court construes the August 21 Motion as a Second

(“August 21 Motion,” Dkt. No. 7).

to

Amend

For the reasons

26
27
28

A magistrate judge may dismiss a complaint with leave to amend
without the approval of a district judge. See McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
1

1

Amended Complaint, and, so construed, DISMISSES the Second Amended

2

Complaint with leave to amend.

3
4

Congress mandates that district courts perform an initial

5

screening of complaints in civil actions where a prisoner seeks

6

redress

7

§ 1915A(a).

8

portion,

9

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

10

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

11

a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-

12

2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir.

13

2000) (en banc).

from

a

governmental

entity

or

employee.

28

U.S.C.

This Court may dismiss such a complaint, or any

before

service

of

process

if

it

concludes

that

the

14
15

II.

16

PRIOR PROCEEDINGS

17
18

On February 1, 2017, Plaintiff filed a civil complaint under

19

the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.;

20

the

21

Government

22

(“Complaint,” Dkt. No. 1).

23

Valley

24

“physician

25

nurse; and Kimberly Seibel, the warden.

26

vaguely

27

Plaintiff’s rights by, among other things, refusing to return his

28

cane; failing to intervene in his work assignment as a kitchen

Civil

Rights

Act,

Claims

State

42

Act,

Prison

U.S.C.
Cal.

that

Gov’t

and

Code

the

California

§§ 905

et

seq.

The Complaint sued three Chuckawalla

(“CVSP”)

assistant/primary

alleged

§ 1983;

employees:
care

Marciano,

2

Orry

physician”;

Marciano,

a

Ms. Beatres,

a

(Id. at 3).

Beatres,

and

The Complaint

Seibel

violated

1

lineback, which required him to carry heavy pans and trays and push

2

heavy carts; and failing to provide medical care both before and

3

after he suffered a mild stroke and heart failure.

(Id. at 5-6).

4
5

On July 7, 2017, the Court dismissed the Complaint with leave

6

to amend due to pleading defects.

(“ODLA,” Dkt. No. 5).

The

7

Court’s Order required Plaintiff to file a First Amended Complaint

8

correcting the deficiencies in the original Complaint within thirty

9

days if he wished to pursue this action.

(Id. at 18).

10
11

On July 27, 2017, Plaintiff submitted two documents to the

12

Court: (1) a Notice of Dismissal stating that “only Defendants”

13

are dismissed from the Complaint (the “July 27 Dismissal Notice,”

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Dkt. No. 9),2 and (2) a civil complaint bearing the caption and

15

case number of the instant case.

16

11).

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25
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27
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(“July 27 Complaint,” Dkt. No.

This pleading once again purported to raise claims under the

The July 27 Dismissal Notice did not identify the Defendants to
be dismissed by name and appeared incomplete. While Plaintiff’s
intent in filing the Notice is somewhat unclear, to the extent that
Plaintiff was attempting to “dismiss” Defendants named in the
original Complaint who were not named in subsequent pleadings, the
Notice was unnecessary and confusing.
2

The filing of an amended complaint supersedes, i.e., entirely
supplants or replaces, the original or any prior complaint, which
is “treated thereafter as nonexistent.” Ramirez v. County of San
Bernardino, 806 F.2d 1002, 1008 (9th Cir. 2015) (internal quotation
marks and citation omitted); see also Charles Alan Wright, et al.,
6 Fed. Prac. & Proc. Civ. § 1476 (3d ed. 2016 update) (“Once an
amended pleading is interposed, the original pleading no longer
performs any function in the case and any subsequent motion made
by an opposing party should be directed at the amended pleading.”)
(footnotes omitted). Therefore, defendants named in an original
complaint who are not named in a first amended or subsequent
complaint are deemed “dismissed” from the case without further
action.
3

1

ADA and section 1983, but against an entirely different set of CVSP

2

employees.

3

of whom were sued in the original Complaint:

4

Mr. Vengocher, both “chief cooks”; Mr. Perez and Ms. Prieta, both

5

supervisors; and Dr. Lee, the chief medical doctor.

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claimed that Verduzco and Vengocher improperly required him to

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leave his cane and disability vest in their office when he worked

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in the kitchen; that Perez and Prieta knew that he was required to

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give up his cane and vest while working; and that Lee denied his

10

The July 27 Complaint sued five CVSP employees, none

request for seizure medication.

Mr. Verduzco and

Plaintiff

(Id. at 3-4).

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12

However, the July 27 Complaint also included references to

13

the original Complaint and its Defendants.

In light of the

14

ambiguities on the face of the July 27 Complaint, the Court issued

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an “Order Requiring Clarification” in which it ordered Plaintiff

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to inform the Court whether he intended the July 27 Complaint to

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(1) supplement the original Complaint, (2) supersede the original

18

Complaint, or (3) open an entirely new action.

19

Order,” Dkt. No. 7).

(“Clarification

20
21

In response to the Clarification Order, though not directly

22

addressing it, on August 21, 2017, Plaintiff filed the instant

23

August 21 Motion.

24

contains no argument or requests. Instead, it appears to be another

25

attempt to amend the pleading, as it includes a statement of

26

jurisdiction,

27

recitation of “legal claims,” and a prayer for damages.

28

allegations in the August 21 Motion purport to sue six CVSP

a

Although captioned as a “motion,” the filing

list

of

Defendants,

4

a

statement

of

facts,

a

The

1

employees, some of whom, but not all, were sued in one or the other

2

of the prior versions of Plaintiff’s claims, i.e., staff cooks

3

Viengochia and Verdusco3 and supervisors Perez and Prieta (all of

4

whom were named in the July 27 Complaint, but not the original

5

Complaint); Marciano (who was named in the original Complaint, but

6

not the July 27 Complaint); and correctional officer Moreno, named

7

for the first time, whom Plaintiff alleges is in charge of the

8

safety and security of the C facility kitchen.

9

at 1-2).

(August 21 Motion

The August 21 Motion abandons the claims against Lee in

10

the July 27 Complaint and the claims against Beatres and Seibel in

11

the original Complaint.

12
13

Based upon the evolution of Plaintiff’s claims, and the fact

14

that some, but not all, of the Defendants in the original Complaint

15

and the July 27 Complaint have been named in the most recent

16

iteration of the claims, it appears that Plaintiff intended for

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the July 27 Complaint to be the First Amended Complaint in this

18

matter, and for the August 21 Motion to be the Second Amended

19

Complaint.

20

Complaint be filed as the First Amended Complaint.

21

10).

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as the Second Amended Complaint and DIRECTS the Court Clerk to re-

23

file that document in a separate docket entry as the Second Amended

24

Complaint.4

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26

The Court has separately ordered that the July 27
(See Dkt. No.

The Court now construes the “August 21 Motion” (Dkt. No. 7)

Accordingly, the Second Amended Complaint supersedes

The Court presumes that Defendants “Viengochia” and “Verdusco”
in the August 21 Motion are Defendants “Vengocher” and “Verduzco”
in the July 27 Complaint.
3

27
For the remainder of this Order, the Court will refer to the
“August 21 Motion” as the “Second Amended Complaint” or “SAC.”
4

28

5

1

both the original Complaint and the First Amended Complaint, and

2

is the current operative pleading.

3
4

III.

5

ALLEGATIONS OF THE SECOND AMENDED COMPLAINT

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7

As noted above, the Second Amended Complaint sues six CVSP

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employees:

“staff supervisor cooks” Viengochia and Verdusco;

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“supervisor II cooks” Perez and Prieta, who supervise Viengochia

10

and Verdusco; health care provider Marciano; and correctional

11

officer Moreno.

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their individual and official capacities.

(SAC at 1-2).

All Defendants are sued in both
(Id. at 3).

13
14

Plaintiff alleges that he is “mobility impaired” because his

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right leg is shorter than his left leg, and his left leg “sometimes

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gives out on [him],” (id.), which leaves him with a “severe

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a[b]normal limp.” (Id. at 5).

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reported to work on December 10, 2015 with his “mobility impaired

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lime green vest and cane,” Viengochia asked him what was “wrong”

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with him. (Id. at 3). Viengochia told Plaintiff that if he refused

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to work, he would issue a Rules Violation Report for failure to

22

work at his assigned duties.

23

that he “wanted no problems and could not afford any disciplinary

24

infractions.”

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pans,” which required him to stand for six or seven hours.

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Viengochia allowed Plaintiff to sit on a “chair” made out of milk

27

crates, but nonetheless confiscated his cane, as he did on a daily

(Id.).

Plaintiff states that when he

(Id.).

Plaintiff told Viengochia

Viengochia assigned Plaintiff to “pots and

28
6

(Id.).

1

basis

for

four

months.

(Id.).

However,

Viengochia

2

Plaintiff to pick up his cane at the end of the shift.

allowed

(Id.).

3
4

When Verdusco filled in for Viengochia, he, too, would take

5

away Plaintiff’s cane every day, and return it to him at the end

6

of the shift.

7

would write Plaintiff up in a disciplinary report if Plaintiff

8

missed work or failed to comply with a “direct order.”

9

4).

10

(Id. at 4-5).

Verdusco made verbal threats that he

(Id. at

Verdusco, like Viengochia, knew that Plaintiff was mobility

impaired because he had seen Plaintiff in his vest.

(Id.).

11
12

Perez and Prieta are in “charge of the overall functions of

13

the culinary kitchens” at CVSP.

14

on

15

supervisors,” and have daily meetings with them.

16

Perez and Prieta saw Plaintiff and inquired about him.

the

“functions

and

(Id. at 5).

operations”

They check in daily

managed

by

their

“cook

(Id.).

Both

(Id.).

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18

Moreno is in charge of the security of the C facility kitchen.

19

(Id. at 6).

He was aware of Plaintiff’s “mobility impairment” vest

20

and cane, but nonetheless condoned Viengochia’s and Verdusco’s

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actions “by allowing them to do as they please[d]” with Plaintiff.

22

(Id.).

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24

From the date of Plaintiff’s initial medical consultation at

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CVSP, Marciano knew of Plaintiff’s medical history, including his

26

limp, his medical vest and cane, and his “chronos for lower

27

bed/lower tier.”

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“used to take sei[z]ure medication.”

(Id. at 6-7).

Marciano also knew that Plaintiff

7

(Id. at 6).

Plaintiff asked

1

for Marciano’s help in getting him out of his kitchen assignment,

2

but Marciano “did nothing for [him] even after . . . [he] had a

3

mild stroke while at work in the kitchen.”

4

was sent to the hospital by ambulance on January 10, 2016 because

5

he was suffering from chest pains.

(Id. at 7).

Plaintiff

(Id. at n.4).

6
7

Plaintiff alleges that “he was denied equal protection of the

8

law” because of his race and mobility disability.

9

Plaintiff further claims that he suffered physical pain and “mental

10

anguish” for “well over four months” by being “forced to work

11

beyond [his] means” in violation of Eighth and Fourteenth Amendment

12

rights.

13

from each Defendant, and “compensatory damages from each defendant

14

for the sum of $1,000,000 each.”

15

seeks nominal damages for mental anguish from each defendant for

16

the sum of $20,000 each.”

(Id. at 8-9).

(Id. at 8).

Plaintiff seeks punitive damages of $20,000

(Id. at 8).

Plaintiff “further

(Id. at 9).

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18

IV.

19

DISCUSSION

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21

Under 28 U.S.C. section 1915A(b), the Court must dismiss

22

Plaintiff’s Second Amended Complaint due to multiple pleading

23

defects.

24

amend his defective complaint unless “it is absolutely clear that

25

the deficiencies of the complaint could not be cured by amendment.”

26

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

27

internal quotation marks omitted).

However, the Court must grant a pro se litigant leave to

28
8

Accordingly, for the reasons

1

stated below, the Second Amended Complaint is DISMISSED with leave

2

to amend.

3
4

A.

5

The Second Amended Complaint Violates Federal Rule Of Civil
Procedure 8

6
7

Federal Rule of Civil Procedure 8 requires that a complaint

8

contain “‘a short and plain statement of the claim showing that

9

the pleader is entitled to relief’ in order to ‘give the defendant

10

fair notice of what the . . . claim is and the grounds upon which

11

it rests.’”

12

Each claim must be simple, concise, and direct.

13

8(d)(1).

Rule 8 can be violated when “too much” or “too little”

14

is said.

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

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Fed. R. Civ. P.

15
16

Here, the Second Amended Complaint does not comply with Rule

17

8.

Although the

“factual allegations” in the Second Amended

18

Complaint against each of the six Defendants are concise and

19

clearly organized, they are extremely vague and conclusory.

20

allegations do not explain which acts by which Defendants violated

21

which particular federal constitutional rights.

22

although Plaintiff summarily claims that his due process rights

23

were violated, he does not state whether he is bringing a due

24

process claim against each of the six Defendants, or just one or

25

some of them.

26

due, or identify what each of the Defendants separately did to

27

violate his due process rights.

28

Defendants with fair notice of the claims in a short, clear and

The

For example,

Nor does he explain what process he believes he was

The complaint fails to provide

9

1

concise statement.

See Twombly, 550 U.S. at 555.

Accordingly,

2

the Second Amended Complaint is dismissed, with leave to amend.

3
4

Dismissal is appropriate based solely on Plaintiff’s failure

5

to comply with Rule 8.

However, to the extent that the Court is

6

able to discern claims that Plaintiff may be attempting to raise,

7

the Court reviews these claims and the relevant law below.

8
9

B.

Plaintiff’s Official Capacity Claims Are Defective

10
11

Plaintiff sues Defendants for damages in both their official

12

and individual capacities.

(SAC at 3).

However, Plaintiff’s

13

official capacity claims are barred by the Eleventh Amendment and

14

cannot proceed.

15
16

Pursuant to the Eleventh Amendment, states are immune from

17

suits for damages under section 1983.

See Howlett v. Rose, 496

18

U.S. 356, 365 (1990); Brown v. Cal. Dep’t of Corr., 554 F.3d 747,

19

752 (9th Cir. 2009) (“California has not waived its Eleventh

20

Amendment immunity with respect to claims brought under § 1983 in

21

federal court.”).

22

her official capacity . . . is no different from a suit against

23

the State itself.”

24

Cir. 2007) (citation omitted).

25

for damages in their official capacity are generally entitled to

26

immunity.

27

damages under section 1983 from state employees in their individual

28

capacity.

“[A] suit against a state official in his or

Flint v. Dennison, 488 F.3d 816, 824-25 (9th

Id. at 825.

Therefore, state employees sued

However, a plaintiff may seek monetary

See Adler v. Lewis, 675 F.2d 1085, 1098 (9th Cir. 1982)
10

1

(“State officials must be sued in their individual capacity in an

2

action for monetary damages.”).

3
4

Here, the Second Amended Complaint prays for monetary damages

5

only, a remedy Plaintiff cannot obtain from state employees in

6

their official capacity.

7

Plaintiff is seeking only monetary damages in this action, the

8

official capacity claims are defective and must be dismissed.

(SAC at 8-9).

Thus, to the extent that

9
10

C.

Plaintiff Fails To State An Equal Protection Claim

11
12

The Equal Protection Clause broadly requires the government

13

to treat similarly situated people equally.

Hartman v. California

14

Dep’t of Corr. and Rehabilitation, 707 F.3d 1114, 1123 (9th Cir.

15

2013).

16

must allege that “‘defendants acted with an intent or purpose to

17

discriminate against [him] based upon membership in a protected

18

class,’” such as a particular race or religion.

19

Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (quoting Barren v.

20

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)).

21

discrimination means that a defendant acted at least in part

22

because of a plaintiff’s protected status.”

23

345 F.3d 1071, 1082 (9th Cir. 2003) (internal quotation marks and

24

citation omitted) (emphasis in original); see also Byrd v. Maricopa

25

Cnty. Sheriff’s Dep’t, 565 F.3d 1205, 1212 (9th Cir. 2009) (to

26

state an equal protection claim, plaintiff “must plead intentional

27

unlawful

28

susceptible of an inference of discriminatory intent”).

To state an equal protection claim, typically a plaintiff

discrimination

or

allege

11

facts

Furnace v.

“Intentional

Serrano v. Francis,

that

are

at

least

1

Where the governmental classification does not involve a

2

suspect or protected class, or impinge upon a fundamental right,

3

the classification will not “‘run afoul of the Equal Protection

4

Clause if there is a rational relationship between disparity of

5

treatment and some legitimate governmental purpose.’”

6

Whitehead, 580 F.3d 1067, 1098 (9th Cir. 2009) (quoting Cent. State

7

Univ. v. Am. Ass’n of Univ. Professors, 526 U.S. 124, 127–28

8

(1999)).

9

class,

Nurre v.

“Although disabled people do not constitute a suspect
the

Equal

Protection

Clause

[nonetheless]

prohibits

10

irrational and invidious discrimination against them.”

11

California, 191 F.3d 1167, 1174 (9th Cir. 1999). However, “a

12

governmental

13

differently from the non-disabled need only be rationally related

14

to legitimate legislative goals to pass constitutional muster.”

15

Martin v. California Dep’t of Veterans Affairs, 560 F.3d 1042,

16

1049–50 (9th Cir. 2009) (internal quotation marks and citation

17

omitted).

policy

that

purposefully

treats

the

Dare v.

disabled

18
19

Courts have also recognized equal protection claims brought

20

by a “class of one” where the plaintiff alleges that he or she has

21

been

22

situated and that there is no rational basis for the difference in

23

treatment.

24

(2000).

25

show

26

discretionary state action.

27

Agriculture, 553 U.S. 591 (2008).

intentionally

treated

differently

from

others

similarly

See Village of Willowbrook v. Olech, 528 U.S. 562, 564

A “class-of-one” equal protection claim must generally

that

the

difference

in

treatment

resulted

from

non-

See Engquist v. Oregon Dep’t of

28
12

As the Supreme Court explained,

1

There are some forms of state action . . . which by their

2

nature involve discretionary decisionmaking based on a

3

vast array of subjective, individualized assessments.

4

In such cases the rule that people should be “treated

5

alike, under like circumstances and conditions” is not

6

violated when one person is treated differently from

7

others, because treating like individuals differently is

8

an accepted consequence of the discretion granted.

9

such

situations,

allowing

a

challenge

based

on

In
the

10

arbitrary singling out of a particular person would

11

undermine the very discretion that such state officials

12

are entrusted to exercise.

13
14

Id. at 603 (explaining that the equal protection clause would not

15

prohibit an officer from issuing a speeding ticket to one person

16

and not others even for no discernable reason unless the decision

17

to cite was based on the speeder’s membership in a protected class);

18

see also Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (the

19

“class-of-one doctrine” does not apply to “forms of state action

20

that involve discretionary decisionmaking”); Kansas Penn Gaming,

21

LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (observing

22

that successful “class of one” equal protection claims typically

23

“have arisen from unfavorable zoning decisions, withholding of

24

permits, and selective regulatory enforcement”) (internal citation

25

omitted).

26
27
28

Liberally construed, the Second Amended Complaint identifies
two bases for Plaintiff’s equal protection claims:
13

his race and

1

his disability. (Id. at 8).

2

contains

3

discriminated against because of his race -- in fact, it does not

4

even identify Plaintiff’s race.

5

facts relating to his disability, it is unclear whether he is

6

contending

7

disabled, and disabled prisoners as a class are treated differently

8

than able-bodied prisoners with no rational justification for the

9

difference,

absolutely

that

or

he

that

no

was

However, the Second Amended Complaint
facts

showing

that

Plaintiff

was

While Plaintiff does allege some

discriminated

Plaintiff,

as

against

a

“class

because

of

he

one,”

is

was

10

irrationally treated differently than other disabled or able-bodied

11

prisoners in some non-discretionary state action.

12

wishes to pursue an equal protection claim, he must allege facts

13

showing

14

identify which acts he contends constitute discrimination, and who

15

committed them.

16

dismissed, with leave to amend.

his

membership

in

an

identifiable

group

If Plaintiff

and

clearly

Accordingly, the Second Amended Complaint is

17
18

D.

Plaintiff Fails To State A Due Process Claim

19
20

The Fourteenth Amendment provides that the State shall not

21

“deprive any person of life, liberty or property, without due

22

process of the law.”

23

substantive due process claim, a plaintiff must allege that a state

24

actor deprived him “of life, liberty, or property in such a way

25

that ‘shocks the conscience’ or ‘interferes with rights implicit

26

in the concept of ordered liberty.’”

27

554, 568 (9th Cir. 2009) (quoting United States v. Salerno, 481

28

U.S. 739, 746 (1987)); Resnick v. Hayes, 213 F.3d 443, 447 (9th

U.S. Const. amend. XIV, § 1.

14

To state a

Corales v. Bennett, 567 F.3d

1

Cir. 2000) (same).

2

plaintiff must demonstrate that he was denied substantive due

3

process,

4

deprivation were constitutionally insufficient. Ky. Dep’t of Corr.

5

v. Thompson, 490 U.S. 454, 459–60 (1989).

then

show

To state a procedural due process claim, a

that

the

procedures

attendant

upon

the

6
7

Similar to the deficiencies in Plaintiff’s equal protection

8

claim, it is unclear whether Plaintiff is asserting a due process

9

claim against all, or just one or some, of the Defendants; what

10

liberty

or

property

11

violated; whether Plaintiff is attempting to allege a substantive

12

or

13

specifically, Plaintiff believes each Defendant did to violate his

14

due process rights.

15

dismissed, with leave to amend.

procedural

due

interest

process

Plaintiff

violation,

claims

or

to

both;

have

and

been

what,

Accordingly, the Second Amended Complaint is

16
17

E.

Plaintiff Fails To State A Deliberate Indifference Claim

18
19

To state an Eighth Amendment claim based on a prisoner’s

20

medical treatment, the prisoner must demonstrate that the defendant

21

was “deliberately indifferent” to his “serious medical needs.”

22

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also West

23

v. Atkins, 487 U.S. 42, 49 (1988).

24

need,” the prisoner must demonstrate that “failure to treat a

25

prisoner’s condition could result in further significant injury or

26

the ‘unnecessary and wanton infliction of pain.’”

27

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

28
15

To establish a “serious medical

Jett, 439 F.3d

1

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

2

is determined by an objective standard).

3
4

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

5

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

6

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

7

caused by the indifference.”

8

appear when prison officials deny, delay or intentionally interfere

9

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

provide

Id.

medigcal

Deliberate indifference “may

10

prison

care.”

Id.

(citations

11

omitted).

12

serious risk of harm and must have consciously disregarded that

13

risk.

The defendant must have been subjectively aware of a

See Farmer v. Brennan, 511 U.S. 825, 845 (1994).

14
15

“‘[A] plaintiff’s showing of nothing more than a difference

16

of medical opinion as to the need to pursue one course of treatment

17

over another [is] insufficient, as a matter of law, to establish

18

deliberate indifference.’”

19

(9th Cir. 2012) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th

20

Cir. 1996)); see also Hamby v. Hammond, 821 F.3d 1085, 1092 (9th

21

Cir. 2016) (“[A] difference of opinion between a physician and the

22

prisoner –– or between medical professionals –– concerning what

23

medical

24

indifference.”) (quoting Snow v. McDaniel, 681 F.3d 978, 987 (9th

25

Cir. 2012), overruled in part on other grounds by Peralta v.

26

Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc)).

27

physician defendant opts for one course of treatment over another,

28

or for no affirmative treatment at all, the plaintiff must show

care

is

Wilhelm v. Rotman, 680 F.3d 1113, 1122

appropriate

does

16

not

amount

to

deliberate

Where a

1

that the option the physician chose was medically unacceptable

2

under

3

conscious disregard of an excessive risk to the plaintiff’s health.

4

Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).

the

circumstances,

and

that

the

physician

chose

it

in

5
6

Although the SAC does not identify the specific Defendants

7

against whom Plaintiff may be attempting to assert a deliberate

8

indifference claim, the Court presumes that the list includes, at

9

a minimum, Marciano.

Plaintiff alleges that Marciano was aware of

10

his

and

11

intervene when Plaintiff asked him for “medical help to get out of

12

[his]

13

allegations fail to state a deliberate indifference claim.

14

it is not clear from the SAC that Plaintiff has or had a serious

15

medical condition.

16

why his limp was so serious that the failure to exempt him from

17

kitchen detail would likely result in significant additional injury

18

or

19

Plaintiff does not allege facts showing that Marciano’s failure to

20

exempt

21

unacceptable”

22

excessive risk” to Plaintiff’s health.

23

(internal quotation marks and citation omitted).

medical

history

assignment”

the

in

and

the

C

but

facility

nonetheless

kitchen.

failed

These

to

spare
First,

Plaintiff does not allege any facts showing

unnecessary

Plaintiff

condition,

and

from
was

wanton

his

infliction

kitchen

“chosen

in

of

pain.

assignment
conscious

was

Second,

“medically

disregard

of

an

Hamby, 821 F.3d at 1092

24
25

Third,

even though Plaintiff alleges that he suffered mental

26

anxiety from being required to work in the kitchen, this allegation

27

fails to show the “harm” necessary for a deliberate indifference

28

claim because “an inmate may not pursue an emotional distress
17

1

injury unless accompanied by a physical injury” that is more than

2

“de minimus.”

3

867 (D. Idaho 2005); 42 U.S.C. § 1997e(e); Oliver v. Keller, 289

4

F.3d 623, 629 (9th Cir. 2002) (pretrial detainee failed to state

5

deliberate indifference claim for “mental and emotional injury”

6

where the only physical injuries alleged were a canker sore and

7

back and leg pain).

8

plausible physical pain he may have endured as a consequence of

9

his job.

Wood v. Idaho Dep’t of Corr., 391 F. Supp. 2d 852,

Plaintiff does not sufficiently describe any

Indeed, Plaintiff admits that he was allowed to sit on a

10

makeshift chair while working, and that his cane was returned to

11

him at the end of every shift.

12

Complaint is dismissed, with leave to amend.

Accordingly, the Second Amended

13
14

F.

Plaintiff Fails To State A Cruel And Unusual Punishment Claim

15
16

Alternatively,

it

is

possible

that

Plaintiff’s

Eighth

17

Amendment claim is based on the contention that his work assignment

18

as a kitchen lineman constitutes “cruel and unusual punishment”

19

because it requires him to lift heavy trays and pans and push heavy

20

carts.

This ground for an Eighth Amendment claim also fails.

21
22

Infliction of suffering on prisoners that is “totally without

23

penological justification” violates the Eighth Amendment.

Rhodes

24

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

25

wanton infliction of pain . . . constitutes cruel and unusual

26

punishment forbidden by the Eighth Amendment.”

27

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

28

omitted).

Only “the unnecessary and

Whitley v. Albers,

The punishment must constitute “shocking and barbarous
18

1

treatment.”

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

2

1985).

3

purport to be punishment at all must involve more than ordinary

4

lack of due care for the prisoner’s interests or safety.”

5

475 U.S. at 319.

6

or error in good faith, that characterize the conduct prohibited

7

by the Cruel and Unusual Punishments Clause . . . .”

8

Seiter, 501 U.S. 294, 299 (1991) (internal quotation marks and

9

citation omitted).

“To be cruel and unusual punishment, conduct that does not

Whitley,

“It is obduracy and wantonness, not inadvertence

Wilson v.

Accordingly, “courts considering a prisoner’s

10

[cruel and unusual punishment] claim must ask: 1) if the officials

11

acted with a sufficiently culpable state of mind; and 2) if the

12

alleged wrongdoing was objectively harmful enough to establish a

13

constitutional violation.”

14

(9th Cir. 1997) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)).

Somers v. Thurman, 109 F.3d 614, 622

15
16

The Second Amended Complaint simply does not provide any facts

17

about Plaintiff’s work detail, or his alleged inability to perform

18

the tasks required of him, to establish that requiring him to work

19

as a kitchen lineman was “shocking and barbarous treatment” with

20

no penological justification.

21

other claims, the SAC does not identify which Defendants allegedly

22

violated Plaintiff’s Eighth Amendment rights, or explain why each

23

one is individually liable for any pain Plaintiff suffered as a

24

consequence of his job.

25

is dismissed, with leave to amend.

26

\\

27

\\

28

\\

Additionally, as with the SAC’s

Accordingly, the Second Amended Complaint

19

1

G.

Plaintiff Fails To State A Claim Against The Supervisory

2

Defendants

3
4

To demonstrate a civil rights action against a government

5

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

6

personal participation in the harm, or some sufficiently direct

7

connection

8

constitutional violation.

9

06 (9th Cir. 2011).

between

the

official’s

conduct

and

the

alleged

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

A supervising officer must personally take

10

some action against the plaintiff or “set in motion a series of

11

acts by others . . . which [s]he knew or reasonably should have

12

known, would cause others to inflict the constitutional injury” on

13

the plaintiff.

14

(9th

15

officials may not be held liable for the unconstitutional conduct

16

of their subordinates.

17

(2009).

18

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

19

or

20

constitutional deprivations of which the complaint is made, or for

21

conduct that showed a reckless or callous indifference to the

22

rights of others.”

23

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

Cir.

Larez v. City of Los Angeles, 946 F.2d 630, 646

1991)

(internal

quotations

omitted).

Government

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

Rather, a supervisor may be held accountable only “for

control

of

his

subordinates,

for

his

acquiescence

in

the

Preschooler II v. Clark County Bd. of Trustees,

24
25

The SAC fails to state a supervisory claim against Perez,

26

Prieta or Moreno.

Plaintiff merely alleges that Perez and Prieta,

27

who supervised Viengochia and Verdusco, “saw” Plaintiff with his

28

vest and cane and “inquired” about him.
20

(Id. at 5).

Making an

1

inquiry about a prisoner does not, by itself, show a violation of

2

the prisoner’s constitutional rights.

3

that because Perez and Prieta supervise Viengochia and Verdusco,

4

they

5

However,

6

committed by each Defendant personally.

7

merely because a subordinate violated a plaintiff’s constitutional

8

rights.

should

be

responsible

liability

under

for

section

Plaintiff appears to imply

their

subordinates’

1983

arises

only

actions.
for

acts

A supervisor is not liable

9
10

Plaintiff further alleges that Moreno, who was “in charge of

11

the

safety

and

security

of

the

‘C’

facility

kitchen”

12

Plaintiff worked, “condoned” Viengochia’s and Verdusco’s actions

13

toward Plaintiff because he knew what they were doing but still

14

allowed them to “do what they pleased.”

15

only facts alleged against Viengochia and Verdusco are that they

16

confiscated Plaintiff’s cane, which they returned to him at the

17

end of his shift. Even if Moreno’s responsibilities for the “safety

18

and security” of the C facility kitchen authorized him to intervene

19

in individual work assignments, which Plaintiff does not allege

20

and which seems questionable, Plaintiff has not explained why

21

confiscating his cane presented a security threat.

22

the Second Amended Complaint is dismissed, with leave to amend.

(Id. at 6).

where

However, the

Accordingly,

23
24

IV.

25

CONCLUSION

26
27
28

For the reasons stated above, the Second Amended Complaint is
dismissed with leave to amend.

If Plaintiff still wishes to pursue
21

1

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

2

Memorandum

3

Complaint.

4

defects

5

defendants or new allegations that are not reasonably related to

6

the claims asserted in the SAC.

7

any, shall be complete in itself and shall not refer in any manner

8

to the original complaint, the First Amended Complaint, or the

9

Second

and

Order

within

which

to

file

a

Third

Amended

In any amended complaint, Plaintiff shall cure the

described

Amended

above.

Complaint.

Plaintiff

shall

not

include

new

The Third Amended Complaint, if

Its

caption

page

shall

bear

the

10

designation “Third Amended Complaint” and the case number assigned

11

to this action.

12

shall not file the Third Amended Complaint as a “motion,” but shall

13

simply caption the document as the “Third Amended Complaint.”

If Plaintiff chooses to pursue this action, he

14
15

The Third Amended Complaint should be short and concise.

16

any amended complaint, Plaintiff should confine his allegations to

17

those operative facts supporting each of his claims.

18

advised that pursuant to Federal Rule of Civil Procedure 8(a), all

19

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

20

showing that the pleader is entitled to relief.”

21

strongly encouraged to utilize the standard civil rights complaint

22

form when filing any amended complaint, a copy of which is attached.

23

In any amended complaint, Plaintiff should identify the nature of

24

each separate legal claim and the Defendant (by name) against whom

25

the

26

allegations support each separate claim.

27

encouraged to keep his statements concise and to omit irrelevant

claim

is

asserted,

and

make

28
22

clear

what

In

Plaintiff is

Plaintiff is

specific

factual

Plaintiff is strongly

1

details.

It is not necessary for Plaintiff to cite case law or

2

include legal argument.

3
4

Plaintiff is explicitly cautioned that failure to timely file

5

a Third Amended Complaint, or failure to correct the deficiencies

6

described above, will result in a recommendation that this action

7

be dismissed with prejudice for failure to prosecute and obey Court

8

orders

9

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

10

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

11

Dismissal

in

12

41(a)(1).

A form Notice of Dismissal is attached for Plaintiffs’

13

convenience.

14

instructed to clearly state whether he is dismissing the entire

15

action or only certain claims or certain Defendants.

pursuant

to

Federal

accordance

with

Rule

of

Federal

Civil

Rule

of

Procedure

Civil

41(b).

Procedure

If Plaintiff utilizes the Notice of Dismissal, he is

16
17

DATED:

September 18, 2017

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

19
20
21
22
23

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

24
25
26
27
28
23