Beck v. Wanger et al

Filing 15

ORDER signed by Magistrate Judge Sheila K. Oberto on 8/24/2011 DISMISSING COMPLAINT WITH LEAVE TO AMEND and denying 13 Motion to Appoint Counsel. (Amended Complaint due by 9/29/2011). (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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REVEREND BECK,

CASE NO. 1:11-cv-00075-AWI-SKO PC

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Plaintiff,

ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO
STATE A CLAIM

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v.
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OLIVER W. WANGER, et al.,

(Doc. 1)

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Defendants.

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

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(Doc. 13)
/

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Screening Order
I.

Screening Requirement and Standard

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Plaintiff Reverend Beck, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of

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Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for

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violation of civil rights by federal actors.1 The Court is required to screen complaints brought by

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prisoners seeking relief against a governmental entity or an officer or employee of a governmental

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entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner

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

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may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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Plaintiff’s claims against state prison officials are brought pursuant to section 1983 and Plaintiff’s claim
against United States District Judge Oliver W . W anger is brought pursuant to Bivens.

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U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have

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been paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to

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indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 129 S.Ct. at 1949.

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility

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of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss,

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572 F.3d at 969.

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II.

Plaintiff’s Claims

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A.

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On April 7, 2010, Plaintiff filed case number 1:10-cv-00599-OWW-GBC PC Beck v. Dileo,

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a civil rights suit against prison officials. In this action, Plaintiff alleges that as of January 1, 2010,

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United States District Judge Oliver W. Wanger was on notice that Plaintiff’s rights were being

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violated and he disregarded those violations. Further, Judge Wanger refused to recuse himself in

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Beck v. Dileo and he struck exhibits from the record, contrary to law and in exhibition of personal

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dislike for Plaintiff.

Bivens Claim Barred by Judicial Immunity

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Plaintiff’s claim against Judge Wanger arises in part from Plaintiff’s contention that liability

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for the alleged ongoing violation of his constitutional rights by prison officials transferred to Judge

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Wanger by virtue of the fact that Judge Wanger had knowledge of the violations because he was

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assigned to Beck v. Dileo. Plaintiff also bases his claim in part on his disagreement with rulings

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made in Beck v. Dileo and his belief that the rulings evidence Judge Wanger’s personal bias against

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him.

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It is well established that judges are entitled to absolute immunity for judicial acts.

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Cleavinger v. Saxner, 474 U.S. 193, 199-200, 106 S.Ct. 496 (1985); Stump v. Sparkman, 435 U.S.

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349, 355-56, 98 S.Ct. 1099 (1978); Crowe v. County of San Diego, 608 F.3d 406, 430 (9th Cir.

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2010); Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003).

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Neither the fact of the pendency of Beck v. Dileo nor the rulings issued in Beck v. Dileo provides

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a basis for the imposition of liability against Judge Wanger. Plaintiff’s claim arises from matters

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which are judicial actions for which Judge Wanger is entitled to judicial immunity.

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B.

Section 1983 Claims
1.

Defendants Cate and Harrington

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Plaintiff alleges that since January 1, 2009, Defendant Cate has known that Plaintiff’s

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constitutional rights are being violated and he has blatantly ignored Dr. Dileo’s sexual misconduct.

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Plaintiff alleges that since January 1, 2009, Defendant Harrington has had firsthand knowledge that

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Plaintiff’s constitutional rights are being violated, but he turned a blind eye toward the violations

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in retaliation against Plaintiff for filing a sexual misconduct complaint against Dr. Dileo and for

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filing grievances.

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Under section 1983, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 129 S.Ct. 1937 at 1948-49; Simmons v. Navajo

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County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218,

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1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Defendant Cate and Harrington hold, or held during

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the relevant time period, management positions within the California Department of Corrections and

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Rehabilitation. However, liability may not be imposed on supervisory personnel under the theory

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of respondeat superior, as each defendant is only liable for his own misconduct. Iqbal, 129 S.Ct. at

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1948-49; Ewing, 588 F.3d at 1235. Supervisors may only be held liable if they “participated in or

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directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, No. 09-55233, 2011 WL 2988827, at *4-5

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(9th Cir. Jul. 25, 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v.

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Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick,

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126 F.3d 1189, 1204 (9th Cir. 1997), and Plaintiff’s allegations fall well short of supporting a

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plausible claim for relief against Defendant Cate or Defendant Harrington for involvement in the

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violation of his constitutional rights.

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2.

Defendants Todd, Hammond, and Foston

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Plaintiff alleges that since January 1, 2009, Defendants Todd, Hammond, and Foston have

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deprived Plaintiff of due process regarding the loss of his property and intervened in Plaintiff’s

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medical care issues.

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The precise bases for Plaintiff’s claims are unclear. The Due Process Clause of the

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Fourteenth Amendment protects prisoners from being deprived of life, liberty, or property without

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due process of law, but Plaintiff has not alleged any facts that would support a claim that he was

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deprived of a protected interest without procedural due process. Wolff v. McDonnell, 418 U.S. 539,

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556, 94 S.Ct. 2963 (1974). Nor has Plaintiff alleged any facts demonstrating that Defendants

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violated the Eighth Amendment by acting with deliberate indifference to his serious medical needs.

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Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970 (1994); Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006).

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3.

Defendants Dileo, Lopez, Shittu, Natel, and Horton

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Finally, Plaintiff alleges that he was transferred to Kern Valley State Prison on May 15, 2009,

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and he was provided with a wheelchair and morphine sulfate. After Plaintiff failed to welcome

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Defendant Dileo’s sexual misconduct, Defendants Lopez, Shittu, Natel, and Horton denied Plaintiff

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his morphine sulfate and prescribed a different medication for him.

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Plaintiff’s allegations do not support any claims. Plaintiff’s disagreement with the decision

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to change his prescription medication does not support a claim, Franklin v. Oregon, 662 F.2d 1337,

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1344 (9th Cir. 1981), and a difference of opinion between medical personnel regarding prescriptions

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does not support a claim, Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Plaintiff has not

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alleged any facts demonstrating that Defendants knowingly disregarded an excessive risk to his

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health and he therefore fails to state a viable Eighth Amendment claim. Farmer, 511 U.S. 825 at

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834; Jett, 439 F.3d at 1096.

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C.

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Plaintiff’s complaint fails to state any claims upon which relief may be granted. Not all of

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the deficiencies identified by the Court are capable of being cured through amendment. However,

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because Plaintiff may be able to amend some of his claims, the Court will provide one opportunity

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to file an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson,

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809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding

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new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (no “buckshot” complaints).

Conclusion

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 129

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S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise

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a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supercedes the prior complaint, Forsyth v. Humana, Inc., 114

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F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and it must be

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“complete in itself without reference to the prior or superceded pleading,” Local Rule 220.

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Therefore, “[a]ll causes of action alleged in an original complaint which are not alleged in an

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amended complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand,

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644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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III.

Motion for Appointment of Counsel

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On May 10, 2011, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff does

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not have a constitutional right to the appointment of counsel in this action. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The Court

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may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1), but it will do

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so only if exceptional circumstances exist. Palmer, 560 F.3d at 970; Wilborn v. Escalderon, 789

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F.2d 1328, 1331 (9th Cir. 1981). In making this determination, the Court must evaluate the

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likelihood of success on the merits and the ability of Plaintiff to articulate his claims pro se in light

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of the complexity of the legal issues involved. Palmer, 560 F.3d at 970 (citation and quotation marks

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omitted); Wilborn, 789 F.2d at 1331. Neither consideration is dispositive and they must be viewed

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together. Palmer, 560 F.3d at 970 (citation and quotation marks omitted); Wilborn 789 F.2d at 1331.

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In the present case, the Court does not find the required exceptional circumstances. Plaintiff

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is able to adequately articulate his claims and in light of this screening order, the Court cannot find

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at this juncture that Plaintiff is likely to succeed on the merits. Therefore, Plaintiff’s motion for the

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appointment of counsel is denied.

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IV.

Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for the appointment of counsel, filed May 10, 2011, is denied;

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2.

The Clerk’s Office shall send Plaintiff a complaint form;

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3.

Plaintiff’s complaint, filed January 14, 2011, is dismissed for failure to state a claim

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upon which relief may be granted;

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4.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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5.

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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
ie14hj

August 24, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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