Berreondo v. Akanno et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants, signed by Magistrate Judge Dennis L. Beck on 11/16/2011, referred to Judge O'Neill. Objections, If Any, Due Within Fourteen Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MAXIMO BERREONDO,
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Plaintiff,
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CASE NO. 1:11-CV-00432-LJO-DLB PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
CERTAIN CLAIMS AND DEFENDANTS
v.
JONATHAN AKANNO, et al.,
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(DOCS. 10, 14, 15)
Defendants.
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OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS
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FINDINGS AND RECOMMENDATIONS
I.
BACKGROUND
Plaintiff Maximo Berreondo (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his
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complaint on March 14, 2011. Plantiff filed his first amended complaint on June 30, 2011. On
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October 4, 2011, the Court screened Plaintiff’s first amended complaint and found that it stated a
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cognizable claim against Defendant Akanno for deliberate indifference in violation of the Eighth
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Amendment, and no other claims. Doc. 14. Plaintiff was provided the opportunity to file a
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second amended complaint curing the deficiencies identified, or to notify the Court of his
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willingness to proceed only on the cognizable claim. On October 18, 2011, Plaintiff notified the
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Court of his willingness to proceed only against Defendant Akanno. The Court thus issues the
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following Findings and Recommendations.
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II.
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SCREENING REQUIREMENT
The court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
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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
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual
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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly,
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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
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III.
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SUMMARY OF COMPLAINT
Plaintiff, a paraplegic individual who is currently incarcerated at Kern Valley State Prison
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(“KVSP”) in Delano, California, brings this action for adverse conditions of confinement,
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deliberate indifference to serious medical needs, law library access, visiting privileges, court
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access and violations of the Americans with Disabilities Act. The events at issue occurred
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between November 2009 and the filing of the complaint.
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In his complaint, Plaintiff alleges as follows: On October 30, 2009, Plaintiff was
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transferred from Corcoran State Prison’s Acute Care Hospital to a wheelchair cell in the general
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population at KVSP. Within two days of his arrival, Plaintiff began to show signs of skin
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breakdown on his right hip. He immediately informed a nurse. On November 4, 2009, Plaintiff
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saw Defendant Dr. Akanno, who refused to look at the affected area. Plaintiff’s condition began
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to worsen and he continued to file medical slips. Dr. Akanno would see Plaintiff, but refuse to
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examine him. Plaintiff developed three pressure sores, one on each hip and one on the tailbone
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area. His sores became infected.
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On April 30, 2010, Plaintiff was examined by Dr. Sweffler from Sacramento and moved
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to KVSP’s Correctional Treatment Center on May 1, 2010. Plaintiff’s condition deteriorated and
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on June 12, 2010, he began to suffer from chills, high fevers and severe muscle and joint pain.
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On June 22, 2010, Plaintiff was admitted to Mercy Hospital for severe bone and wound
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infections. For the next three months, Plaintiff underwent surgeries to remove necrotic and
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infected tissue. On July 4, 2010, Plaintiff suffered from massive blood loss from his left hip. On
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September 23, 2010, Plaintiff was discharged from Mercy Hospital to the KVSP’s Correctional
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Treatment Center to continue treatment of his pressure sores. On December 9, 2010, Plaintiff
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was readmitted to Mercy Hospital with chills, high fevers, rapid heart rate and muscle and joint
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pain. On February 17, 2011, Plaintiff was discharged from Mercy Hospital to KVSP’s
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Correctional Treatment Center. He remains bedridden and connected to a wound VAC, which is
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treating his open and infected pressure sores.
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Plaintiff contends that Dr. Akanno failed to provide him adequate medical care and was
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deliberately indifferent to his medical needs. Plaintiff also claims that he filed multiple
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complaints, which were deliberately ignored by Defendant Sherry Lopez, Chief Medical Officer
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at KVSP.
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Plaintiff alleges that other denials contributed to his pressure sores and severe infections.
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Plaintiff alleges that while at KVSP, Dr. Akanno denied him a proper mattress and daily
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showers. Plaintiff further alleges that he was deprived of outside yard time due to prolonged
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lockdowns and could not perform range of motion exercises to prevent muscle atrophy. Plaintiff
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alleges that he either was denied showers or was exposed to dirty water in backed-up showers.
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He was unable to properly clean himself after unintended bowel movements or condom catheter
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leaks, which resulted in irritation and infection. On more than one occasion, he fell onto the dirty
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floor in the shower, exposing his wound to germs and bacteria.
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KVSP, he was exposed to extreme temperatures, dust in the ventilation system, arsenic in the
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water and poor nutrition.
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Plaintiff alleges that while at
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Court and Law Library Access
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Plaintiff alleges that he is currently being denied access to the law library, to persons
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learned in law and to the court.
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Visiting Privileges
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Plaintiff alleges that while hospitalized he was denied the right to communicate with his
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family through correspondence, phone calls and/or visits.
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Plaintiff’s Request for Relief
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Plaintiff requests money damages and injunctive relief.
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IV.
PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:
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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.
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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)
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(internal quotations omitted). “To the extent that the violation of a state law amounts to the
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deprivation of a state-created interest that reaches beyond that guaranteed by the federal
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Constitution, Section 1983 offers no redress.” Id.
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1.
Deficiencies of the Complaint
A.
Rule 8(a)
Under federal pleading requirements, a complaint must contain “a short and plain
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statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2).
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause
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of action, supported by mere conclusory statements, do not suffice,” Iqbal, 129 S.Ct. at 1949
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(citing Twombly, 550 U.S. at 555), and courts “are not required to indulge unwarranted
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inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation
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marks and citation omitted). Factual allegations are accepted as true but legal conclusions are
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not, and Plaintiff is required to present factual allegations sufficient to state a plausible claim for
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relief. Iqbal, 129 S.Ct at 1949-50; Moss. v. United States Secret Service, 572 F.3d 962, 969 (9th
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Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard.
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Id.
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B.
Eleventh Amendment Immunity
Plaintiff names Kern Valley State Prison as a defendant. Plaintiff may not sustain an
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action against a state prison. The Eleventh Amendment prohibits federal courts from hearing
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suits brought against an unconsenting state. Brooks v. Sulphur Springs Valley Elec. Co-op., 951
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F.2d 1050, 1053 (9th Cir.1991) (citation omitted); Seminole Tribe of Fla. v. Florida, 517 U.S.
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44, 54 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144
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(1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir.1991). The Eleventh
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Amendment bars suits against state agencies as well as those where the state itself is named as a
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defendant. See Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420,
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421 (9th Cir.1996); Brook, 951 F.2d at 1053; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989)
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(concluding that Nevada Department of Prisons was a state agency entitled to Eleventh
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Amendment immunity); Mitchell v. L.A. Community College Dist., 861 F.2d 198, 201 (9th
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Cir.1989). Kern Valley State Prison is part of the California Department of Corrections, a state
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agency, and it is entitled to Eleventh Amendment immunity from suit.
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C.
Official Capacity
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Plaintiff may not bring suit against defendants in their official capacities. “The Eleventh
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Amendment bars suits for money damages in federal court against a state, its agencies, and state
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officials in their official capacities.” Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th
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Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits seeking
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damages against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 30
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(1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003).
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“Personal-capacity suits . . . seek to impose individual liability upon a government officer
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for actions taken under color of state law.” Hafer, 502 U.S. at 25; Suever v. Connell, 579 F.3d
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1047, 1060 (9th Cir. 2009). Where a plaintiff is seeking damages against a state official and the
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complaint is silent as to capacity, a personal capacity suit is presumed given the bar against an
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official capacity suit. Shoshone-Bannock Tribes v. Fish & Game Comm’n, 42 F.3d 1278, 1284
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(9th Cir. 1994); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1991).
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D.
Supervisory Liability
Although not named in the caption, Plaintiff appears to attribute supervisory liability to
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the Warden. Plaintiff fails to state a claim. The term “supervisory liability,” loosely and
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commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949.
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“Government officials may not be held liable for the unconstitutional conduct of their
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subordinates under a theory of respondeat superior.” Id. at 1948. Rather, each government
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official, regardless of his or her title, is only liable for his or her own misconduct.
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When the named defendant holds a supervisory position, the causal link between the
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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.
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1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege
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some facts indicating that the defendant either: personally participated in the alleged deprivation
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of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated
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or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional
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rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642,
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646 (9th Cir. 1989) (internal citations omitted); Taylor, 880 F.2d at 1045. Plaintiff alleges no
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facts that demonstrate that the Warden personally deprived Plaintiff of his constitutional rights,
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knew of constitutional violations and failed to act, or promulgated a policy that violated
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Plaintiff’s constitutional rights.
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2.
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In the paragraphs that follow, the court will provide Plaintiff with the legal standards that
Legal Standards
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appear to apply to his claims. Plaintiff should carefully review the standards and amend only
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those claims that he believes, in good faith, are cognizable.
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A.
Inmate Appeals Process
Plaintiff alleges that Defendant Lopez and the Warden failed to respond properly to his
inmate appeals. Defendants’ actions in responding to Plaintiff’s appeals, alone, cannot give rise
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to any claims for relief under section 1983 for violation of due process. “[A prison] grievance
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procedure is a procedural right only, it does not confer any substantive right upon the inmates.”
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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp.
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8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty
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interest in processing of appeals because no entitlement to a specific grievance procedure);
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Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers
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no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it
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does not give rise to a protected liberty interest requiring the procedural protections envisioned
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by the Fourteenth Amendment.” Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315,
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316 (E.D. Mo. 1986). Actions in reviewing a prisoner’s administrative appeal cannot serve as
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the basis for liability under a section 1983 action. Buckley, 997 F.2d at 495.
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B.
Conditions of Confinement
Plaintiff alleges that defendants deprived him of yard time, meals, and showers. The
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Eighth Amendment protects prisoners from inhumane methods of punishment and from
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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
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2006). Extreme deprivations are required to make out a conditions of confinement claim, and
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only those deprivations denying the minimal civilized measure of life’s necessities are
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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,
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503 U.S. 1, 9 (1992) (citations and quotations omitted). In order to state a claim for violation of
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the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison
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officials knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer
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v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
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Plaintiff fails to demonstrate that any of the defendants knew of and disregarded a substantial risk
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of serious harm to Plaintiff when depriving him of yard time, proper nutrition, arsenic-free
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water, dust-free ventilation and showers. Plaintiff must set forth facts identifying which
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defendant, whether named or unknown, and his/her alleged acts or omissions that resulted in the
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alleged violation of Plaintiff’s federal rights.
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Further, Plaintiff complains of prolonged lockdowns. There is no outright constitutional
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prohibition against “mass punishment” or “lockdown.” See, e.g., Pepperling v. Crist, 678 F.2d
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787, 789 (9th Cir.1982) (lockdown “may constitute a due process violation, as well as a violation
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of the Eighth Amendment, if [it] persist[s] too long.”) (emphasis added); Hayward v. Procunier,
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629 F.2d 599, 600-03 (9th Cir.1980) (five-month lockdown did not violate Due Process Clause
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or Eighth Amendment).
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The extent of the lockdowns experienced by Plaintiff is not clear. Plaintiff has failed to
provide sufficient facts to state a cognizable claim.
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Eighth Amendment Medical Care Claim
Plaintiff alleges that defendants failed to afford him adequate medical care at KVSP.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must
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show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096
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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The two part test for
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deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by
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demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury
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or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need
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was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050,
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1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133,
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1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown
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by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm
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caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). In order to state a claim
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for violation of the Eighth Amendment, Plaintiff must allege sufficient facts to support a claim
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that the named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . .
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. .” Farmer, 511 U.S. at 837.
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In applying this standard, the Ninth Circuit has held that before it can be said that a
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prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing
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Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been negligent in diagnosing or
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treating a medical condition does not state a valid claim of medical mistreatment under the
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Eighth Amendment. Medical malpractice does not become a constitutional violation merely
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because the victim is a prisoner.” Estelle, 429 U.S. at 106. Even gross negligence is insufficient
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to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d
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1332, 1334 (9th Cir. 1990).
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Also, “[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.” Franklin v. Oregon, 662
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F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must show that
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the course of treatment the doctors chose was medically unacceptable under the circumstances . .
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. and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff’s
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health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal citations omitted). A
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prisoner’s mere disagreement with diagnosis or treatment does not support a claim of deliberate
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indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
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The court finds that Plaintiff’s allegations state a cognizable claim for deliberate
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indifference to Plaintiff’s serious medical need against Defendant Akanno. However, Plaintiff
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has not alleged facts showing that Defendant Lopez or the Warden were deliberately indifferent
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to Plaintiff’s serious medical need, or that the course of treatment given to him was medically
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unacceptable under the circumstances.
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D.
Americans with Disabilities Act
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Title II of the Americans with Disabilities Act (ADA) provides that “no qualified
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individual with a disability shall, by reason of such disability, be excluded from participation in
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or be denied the benefits of the services, programs, or activities of a public entity, or be subject to
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discrimination by such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to inmates within
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state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210(1998); see also
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Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); Duffy v. Riveland, 98 F.3d 447, 453-
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56 (9th Cir. 1996).
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In order to state a claim under the ADA, plaintiff must have been “improperly excluded
from participation in, and denied the benefits of, a prison service, program, or activity on the
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basis of his physical handicap.” Armstrong, 124 F.3d at 1023. Further, the treatment or lack of
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medical treatment for plaintiff’s condition does not provide a basis upon which to impose
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liability. Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (medical treatment decisions
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not basis for ADA claims); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir.
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2005) (medical decisions not ordinarily within the scope of the ADA); Bryant v. Madigan, 84
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F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create a remedy for medical malpractice.”).
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Aside from the medical treatment decisions, which are not an appropriate basis upon which to
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predicate an ADA claim, Plaintiff alleges no facts to show that any defendant participated in, or
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was otherwise responsible for, excluding him from numerous activities, programs, and benefits
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otherwise available to him.
E.
Court and Law Library Access
Plaintiff alleges that he is currently being denied access to the law library, persons learned
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in law and the court. Inmates have a fundamental constitutional right of access to the courts.
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Lewis v. Casey, 518 U.S. 343, 346 (1996). The right of access is merely the right to bring to
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court a grievance the inmate wishes to present, and is limited to direct criminal appeals, habeas
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petitions, and civil rights actions. Id. at 354. The State is not required to enable the inmate to
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discover grievances or to litigate effectively once in court. Id.
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Inmates do not have the right to a law library or legal assistance. Id. at 351. Law
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libraries and legal assistance programs are only the means of ensuring access to the courts. Id.
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Because inmates do not have "an abstract, freestanding right to a law library or legal assistance,
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an inmate cannot establish relevant actual injury by establishing that his prison's law library or
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legal assistance program is subpar in some theoretical sense." Id. Rather, an inmate claiming
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interference with or denial of access to the courts must show that he suffered an actual injury. Id.
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Plaintiff has not alleged an actual injury.
E.
Visitor & Communication Privileges
The Due Process Clause protects prisoners from being deprived of liberty without due
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process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action
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for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty
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interest for which the protection is sought. Id. Liberty interests may arise from the Due Process
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Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). With respect to
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liberty interests arising from state law, the existence of a liberty interest created by prison
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regulations is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515
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U.S. 472, 481-84 (1995). Liberty interests created by prison regulations are limited to freedom
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from restraint which “imposes atypical and significant hardship on the inmate in relation to the
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ordinary incidents of prison life.” Id. at 484. The Due Process Clause does not guarantee a right
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to unfettered visitation. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460-61 (1989). It is
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unclear to what extent Plaintiff was denied visitation during his hospitalizations. It also is
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unclear whether the alleged denial resulted from prison regulations or hospital regulations.
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Similarly, Plaintiff has made assertions regarding denial of telephone contact and
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correspondence with his family while hospitalized. Inmates have a First Amendment right to
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telephone access, subject to reasonable security limitations, and a First Amendment right to send
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and receive mail. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996); Witherow v. Paff, 52
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F.3d 264, 265 (9th Cir. 1995). It is unclear to what extent Plaintiff was denied telephone access
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and correspondence with his family during his hospitalizations and whether prison or hospital
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regulations resulted in the alleged denial.
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V.
CONCLUSION AND RECOMMENDATION
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The Court finds that Plaintiff’s complaint states a cognizable claim for deliberate
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indifference against Defendant Akanno. However, Plaintiff fails to state any other claims upon
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which relief can be granted under § 1983 against Defendants. Plaintiff was provided the
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opportunity to amend his first amended complaint to cure the deficiencies identified or to
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proceed only against Defendant Akanno. Plaintiff chose the latter.
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Accordingly, it is HEREBY RECOMMENDED that:
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1.
This action proceed on Plaintiff’s first amended complaint against Defendant
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Jonathan Akanno for deliberate indifference in violation of the Eighth
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Amendment;
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2.
All other claims be dismissed with prejudice for failure to state a claim; and
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3.
All other Defendants be dismissed from this action.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Fourteen (14)
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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153, 1157 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
3b142a
November 16, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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