O'Neal v. California Department of Corrections, et al.

Filing 27

ORDER Dismissing Plaintiff's Second Amended Complaint 26 for Failure to State a Cognizable Claim, Clerk Shall Close the case, signed by Magistrate Judge Michael J. Seng on 9/25/12. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DONNIE RAY O’NEAL, JR.,

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Plaintiff,

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CASE NO.

1:09-cv-01552-MJS (PC)

ORDER DISMISSING PLAINTIFF’S SECOND
AMENDED COMPLAINT FOR FAILURE TO
STATE A COGNIZABLE CLAIM

v.

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CAL IFORNIA DEPARTMENT
CORRECTIONS, et al.,

OF (ECF No. 26)
CLERK SHALL CLOSE THE CASE

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Defendants.

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/

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SCREENING ORDER
I.

PROCEDURAL HISTORY

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On September 2, 2009, Plaintiff Donnie Ray O’Neal, Jr., a state prisoner proceeding
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pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983.
(ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 6.)

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Plaintiff’s Complaint (ECF No. 1) and First Amended Complaint (ECF No. 21) were

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screened and dismissed, with leave to amend, on May 24, 2012 and August 1, 2012,

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respectively, for failure to state a cognizable claim. (ECF Nos. 17, 23.) Plaintiff’s Second

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Amended Complaint (ECF No. 26) is now before the Court for screening.

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II.

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SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

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Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983

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is not itself a source of substantive rights, but merely provides a method for vindicating

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federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
III.

SUMMARY OF SECOND AMENDED COMPLAINT

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The Second Amended Complaint names the following individuals as Defendants:

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(1) Timothy Byers, Physicians Assistant, California Substance Abuse Treatment Facility

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and State Prison at Corcoran (Corcoran); (2) A. Enenmoh, Chief Medical Officer (CMO),

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Corcoran; (3) K. Allison, Warden, Corcoran; and (4) Director, California Department of

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Corrections and Rehabilitation (CDCR).

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Plaintiff alleges the following:

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On February 25, 2009, Defendant Byers altered Plaintiff’s medical status from

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“‘deaf’, to, ‘hearing impaired, correctable to a functioning level w[ith] hearing aids.’” (Compl.

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at 3.) Correctional Officers at Corcoran respond to emergencies with various expectations

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of disabled and non-disabled prisoners. Plaintiff’s hearing impairment is not correctable;

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Defendant Byers falsely changed Plaintiff’s designation. Byers acted with deliberate

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indifference to the risk that Plaintiff is not capable of acting as an inmate with functional

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hearing. Plaintiff challenged Byers’ decision by filling an inmate appeal with the Warden’s

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office. Allison was deliberately indifferent to the risk to Plaintiff’s safety as she knows

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Corcoran policy and the danger a disabled inmate could face without being identified as
disabled. (Id.)

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Defendant Enenmoh was also responsible for reviewing Plaintiff’s appeal. Enenmoh

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allowed Plaintiff’s appeal to sit on his desk awaiting final review “for a long period of time,”

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in deliberate indifference to the risk of harm to Plaintiff. (Id.)

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Plaintiff has at least one incurable medical condition that requires pain

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management, antibiotics, and a special diet. (Id. at 5.) On November 30, 2009, Enenmoh
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ordered Plaintiff’s medical treatment discontinued prior to its prescribed expiration. By this

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time Plaintiff had filed the instant civil action and Plaintiff’s inmate appeal was still “sitting

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on [Enenmoh’s] desk, awaiting his final review . . . .” (Id. at 4.) Plaintiff’s medication was

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discontinued in retaliation for Plaintiff having filed this civil action complaining, in part, of

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Enenmoh’s conduct. On February 9, 2010, Plaintiff filed a notice of his pending civil action

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against the Defendants with the legal affairs division at Corcoran. (Id.)
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On August 12, 2012, Plaintiff awoke sweating, with chest pain, cramps, and
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shortness of breath.

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examinations found that Plaintiff’s blood pressure and heart rate were abnormally high.

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He was transported to the medical clinic where preliminary

An EKG discovered an irregular heart rhythm. The attending nurse related this information

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to a doctor, who put Plaintiff on the medical queue to see a physician later in the week.

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No treatment was immediately provided. The nurse told a guard that a patient with these

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symptoms outside of prison would have been admitted for observation. Plaintiff was

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denied medical treatment in retaliation for filling the instant complaint. (Id.)

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IV.

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ANALYSIS
A.

Section 1983

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To state a claim under Section 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal

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conclusions are not. Id. at 1949-50.
B.

Linkage Requirement

Under § 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). This requires the presentation of factual allegations sufficient to state a plausible

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claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this

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plausibility standard. Id.

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The statute requires that there be an actual connection or link between the actions

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of the defendants and the deprivation alleged to have been suffered by the plaintiff. See

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Monell v. Department of Social Services, 436 U.S. 658 (1978). Government officials may

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not be held liable for the actions of their subordinates under a theory of respondeat

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superior. Iqbal, 129 S.Ct. at 1948. Since a government official cannot be held liable under

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a theory of vicarious liability in § 1983 actions, Plaintiff must plead sufficient facts showing

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that the official has violated the Constitution through his own individual actions. Id. at

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1948. In other words, to state a claim for relief under § 1983, Plaintiff must link each

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named defendant with some affirmative act or omission that demonstrates a violation of

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Plaintiff's federal rights.

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The Complaint makes no mention of the CDCR Director after naming him as a

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Defendant. A defendant in a § 1983 action must be linked to the alleged violation with

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some affirmative act or omission. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Plaintiff was previously notified of this specific pleading deficiency and given an opportunity
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to amend, yet has failed to allege facts linking the CDCR Director to any alleged violation.
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Plaintiff’s claims against the Director are dismissed with prejudice.
C.

Eighth Amendment
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Conditions of Confinement

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The Eighth Amendment’s prohibition against cruel and unusual punishment protects

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prisoners not only from inhumane methods of punishment but also from inhumane

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conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006)

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(citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S.

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337, 347 (1981)) (quotation marks omitted). While conditions of confinement may be, and

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often are, restrictive and harsh, they must not involve the wanton and unnecessary

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infliction of pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation

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marks omitted). Thus, conditions which are devoid of legitimate penological purpose or

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contrary to evolving standards of decency that mark the progress of a maturing society

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violate the Eighth Amendment. Morgan, 465 F.3d at 1045 (quotation marks and citations

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omitted); Hope v. Pelzer, 536 U.S. 730, 737 (2002); Rhodes, 452 U.S. at 346.

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Prison officials have a duty to ensure that prisoners are provided adequate shelter,

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food, clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d

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726, 731 (9th Cir. 2000) (quotation marks and citations omitted), but not every injury that

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a prisoner sustains while in prison represents a constitutional violation, Morgan, 465 F.3d

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at 1045 (quotation marks omitted). To maintain an Eighth Amendment claim, a prisoner

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must show that prison officials were deliberately indifferent to a substantial risk of harm to

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his health or safety. E.g., Farmer, 511 U.S. at 847; Thomas v. Ponder, 611 F.3d 1144,

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1151-52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan,
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465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.
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1998).

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Plaintiff alleges that Defendant Byers falsely altered Plaintiff’s medical records by

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categorizing Plaintiff’s ability to hear as functional with a hearing aid when in fact Plaintiff

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is completely deaf. Byers allegedly acted in knowing disregard of the risk that Corcoran

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officials may perceive Plaintiff’s inability to hear commands as a knowing refusal to obey
orders. (Compl. at 3.)

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Assuming that Plaintiff has identified a sufficiently serious risk of harm, his claim

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against Defendant Byers nevertheless fails because the allegations describing deliberate

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indifference are mere conclusions or supposition unsupported by factual allegations. The

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Court is not required to accept legal conclusions as true. Iqbal, 129 S.Ct. at 1949. Plaintiff

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does not describe the circumstances leading up to Byers’ decision or provide any factual
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allegations that would support the conclusion that Byers knowingly inserted false

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information creating a risk of harm. Mere conclusory statements do not suffice to state a

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claim. Id.

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Plaintiff’s claims against Defendants Allison and Enenmoh are similarly deficient.
Plaintiff alleges that he filled an inmate appeal with Defendant Allison’s office and she took

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no action in deliberate indifference to the risk of harm faced by Plaintiff. (Compl. at 3.) He
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also contends that Enenmoh disregarded Plaintiff’s appeal for a long time. (Id.)

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of

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the facts from which the inference could be drawn that a substantial risk of serious harm

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exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511
U.S. at 837). “‘If a prison official should have been aware of the risk, but was not, then the

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official has not violated the Eighth Amendment, no matter how severe the risk.’” Id.

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(quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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Plaintiff does not allege the Defendant Allison was actually aware of the serious risk
of harm, only that Plaintiff submitted an appeal to her office and no action was taken.

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Plaintiff’s claim against Defendant Enenmoh is that he failed to review the appeal; this

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allegation effectively concedes Enenmoh’s lack of awareness of Plaintiff’s plight. Plaintiff

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has failed to establish that either Defendant was actually aware of a serious risk of harm

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to Plaintiff and thus does not state a cognizable claim.

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The Court’s previous screening order gave Plaintiff leave to amend and instructed
him as to the need to fully explain how each Defendant was actually aware of the risk of

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harm to Plaintiff and how each disregarded that risk. Plaintiff’s twice-amended pleading
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remains deficient in demonstrating a violation of his Eighth Amendment rights. The fact

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that he has been unable successfully to amend after being advised of the necessity of

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doing so and of what is needed to state a cognizable claim is reason to conclude he can

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not successfully amend. Thus, no useful purpose would be served in once again advising

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him of the applicable standard and giving him further leave to amend.

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2.

Inadequate Medical Care

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Plaintiff does not explicitly allege a violation of his right to adequate medical care.

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However, the allegations that Enenmoh prematurely discontinued prescribed medical

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treatment and that a John Doe Doctor sent Plaintiff to the doctors’ line rather than admitting

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Plaintiff to the clinic suggest the possibility of inadequate medical care claims. However,

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for the reasons stated below, Plaintiff does not state a cognizable claim.
Plaintiff alleges that Enenmoh cut off Plaintiff’s medical treatment prematurely.

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There are no factual allegations describing the context of Enenmoh’s decision and Plaintiff

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is vague when describing his medical needs. As pled, the Court can not determine that

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Enenmoh “[knew] of and disregard[ed] an excessive risk to [Plaintiff's] health . . . .”

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Farmer, 511 U.S. at 837. Enenmoh may have been negligent, even grossly negligent, but

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medical malpractice is not sufficient to satisfy deliberate indifference. Estelle v. Gamble,

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429 U.S. 97, 106 (1976). Likewise, Plaintiff’s allegations against the Doe Doctor do not

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demonstrate that he disregarded a known risk. The Doctor assessed Plaintiff’s condition

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and determined that hospitalization was not necessary. The fact that the attending nurse

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disagreed is not sufficient to state a claim. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th

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Cir. 1981) (“a difference of opinion between a prisoner-patient and prison medical

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authorities regarding treatment does not give rise to a § 1983 claim.”) (internal citation
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omitted).

The fact that Plaintiff disagrees with the medical choices made by the

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Defendants does not mean they acted with deliberate indifference. The Court has twice

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before instructed Plaintiff on the deliberate indifference standard and the inadequacy of

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conclusory pleading. No useful purpose would be served by granting further leave to

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amend.

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D.

Retaliation

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Allegations of retaliation against a prisoner’s First Amendment rights to speech or

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to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d

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527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir.

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1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a

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viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that

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a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s
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protected conduct, and that such action (4) chilled the inmate’s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v.

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Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th

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Cir. 2009).

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Plaintiff alleges that (1) Defendant Enenmoh denied Plaintiff prescribed medical

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accommodations and a Doe Doctor declined to hospitalize Plaintiff (2) because (3) Plaintiff

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filed this civil rights action complaining, in part, about Enenmoh’s conduct. Plaintiff further

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alleges that denial of necessary medical accommodations (4) chilled Plaintiff’s exercise of

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his First Amendment rights and (5) did not reasonably advance a legitimate correctional

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goal. (Compl. at 4.)
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Plaintiff alleges that Defendants Enenmoh and the Doctor denied medical

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accommodations after Plaintiff exercised his right to file this civil rights action. (Id.) Plaintiff

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has satisfied the third element of his retaliation claim; filing a civil rights claim is a First

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Amendment protected activity. Rhodes, 408 F.3d at 567.

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Plaintiff alleges that being deprived of prescribed medical accommodations caused

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him to suffer chronic pain and mental stress such that he is unable to function normally on
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a daily basis.

Plaintiff also alleges that the delayed medical treatment created an

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increased risk to his health. (Compl. at 4.) These allegations are sufficient to satisfy the

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first and fourth elements of Plaintiff’s retaliation claim. See Pinard v. Clatskanie School

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Dist., 467 F.3d 755, 770 (9th Cir. 2006) (adverse action is action that “would chill a person

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of ordinary firmness” from engaging in that activity); Rhodes, 408 F.3d at 568, n. 11
(Plaintiff need not explicitly allege a chilling effect, “allegations that he suffered harm would

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suffice, since harm that is more than minimal will almost always have a chilling effect.”).

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The fifth prong requires a prisoner to allege that “the prison authorities’ retaliatory

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action did not advance legitimate goals of the correctional institution or was not tailored

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narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 532. This is not a high burden

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to reach. See id. (prisoner’s allegations that search was arbitrary and capricious sufficient

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to satisfy this inquiry). The amended complaint alleges that the Defendants’ actions served

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no purpose other than to punish Plaintiff for filing his claims. (Compl. at 4.) Thus, the

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Court finds that Plaintiff has satisfied the fifth element of his retaliation claim.

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The second element of a prisoner retaliation claim focuses on causation and motive.
See Brodheim, 584 F.3d at 1271. A plaintiff must show that his protected conduct was a

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“‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Id. (quoting Soranno's
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Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). Although it can be difficult

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to establish the motive or intent of the defendant, a plaintiff may rely on circumstantial

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evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner

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established a triable issue of fact regarding prison officials’ retaliatory motives by raising

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issues of suspect timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265,

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267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can
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properly be considered as circumstantial evidence of retaliatory intent”).

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Plaintiff alleges that Defendants Enenmoh and a John Doe Doctor engaged in

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retaliatory acts because Plaintiff filed this legal action. This action was filed on September

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2, 2009. Defendant Enenmoh ordered Plaintiff’s treatment discontinued on November 30,

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2009. None of the Defendants have appeared in this case and the Court has not ordered
service. Plaintiff does not allege that he told Enenmoh of this action. Plaintiff has failed

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to allege that Enenmoh was aware of this claim prior to his alleged adverse act.

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Circumstantial evidence may be sufficient to satisfy the causation element, but in this case

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Plaintiff has not explained how his protected conduct was the motivating factor behind

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Enenmoh’s adverse act. See Watison, 668 F.3d at 1115 (causation satisfied with evidence

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that adverse actions occurred shortly after plaintiff filed inmate grievance of which

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defendant was actually aware). Based on the facts alleged Plaintiff’s inmate appeal

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likewise could not have motivated Enenmoh because Plaintiff concedes that his appeal

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remained unreviewed by Enenmoh when his treatment was discontinued. (Compl. at 4.)

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Plaintiff notified Corcoran’s legal affairs department of his claim on February 9,

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2010. John Doe Doctor sent Plaintiff to the doctors’ line rather than immediately admitting

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him on August 12, 2012. However, the Doctor was not named in Plaintiff’s civil action and
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the amended complaint contains no facts explaining why Plaintiff believes the Doctor was
motivated by Plaintiff’s exercise of protected rights.

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Plaintiff has satisfied all the elements of his retaliation claim except causation. The

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Court’s previous screening order identified causation as the missing element in the First

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Amendment Complaint. Plaintiff was provided with the applicable legal standard and an

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opportunity to amend. The amendment does not address the deficiency. Under the
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circumstances, further leave to amend would be pointless.
V.

CONCLUSION AND ORDER

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For the reasons stated above, the Court finds that Plaintiff’s Second Amended

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Complaint fails to state a claim upon which relief may be granted and that leave to amend

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would be futile. See Noll v. Carson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Accordingly,

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Plaintiff’s Second Amended Complaint is DISMISSED WITH PREJUDICE for failure to
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state a claim. The Clerk shall close the case.

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IT IS SO ORDERED.

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Dated:
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September 25, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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