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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1 2 3 4 5 6 7 8 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,” 14 Dkt. No. 9),2 and (2) a civil complaint bearing the caption and 15 case number of the instant case. 16 11). 17 18 19 20 21 22 23 24 25 26 27 28 (“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. 6 claimed that Verduzco and Vengocher improperly required him to 7 leave his cane and disability vest in their office when he worked 8 in the kitchen; that Perez and Prieta knew that he was required to 9 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). 11 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 15 an “Order Requiring Clarification” in which it ordered Plaintiff 16 to inform the Court whether he intended the July 27 Complaint to 17 (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 17 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). 22 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 25 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 6 7 As noted above, the Second Amended Complaint sues six CVSP 8 employees: “staff supervisor cooks” Viengochia and Verdusco; 9 “supervisor II cooks” Perez and Prieta, who supervise Viengochia 10 and Verdusco; health care provider Marciano; and correctional 11 officer Moreno. 12 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 15 right leg is shorter than his left leg, and his left leg “sometimes 16 gives out on [him],” (id.), which leaves him with a “severe 17 a[b]normal limp.” (Id. at 5). 18 reported to work on December 10, 2015 with his “mobility impaired 19 lime green vest and cane,” Viengochia asked him what was “wrong” 20 with him. (Id. at 3). Viengochia told Plaintiff that if he refused 21 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.” 25 pans,” which required him to stand for six or seven hours. 26 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.). 17 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 21 actions “by allowing them to do as they please[d]” with Plaintiff. 22 (Id.). 23 24 From the date of Plaintiff’s initial medical consultation at 25 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.” 28 “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). 17 18 IV. 19 DISCUSSION 20 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

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