Jenkins v. Yates et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending That This Action be Dismissed, With Prejudice, for Failure to State a Claim, signed by Magistrate Judge Gary S. Austin on 12/6/2012, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMAL ALBERT JENKINS,
1:11-cv-00805-LJO-GSA-PC
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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(Doc. 20.)
Plaintiff,
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v.
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JAMES A. YATES, et al.,
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OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS
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Defendants.
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I.
RELEVANT PROCEDURAL HISTORY
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Jamal Albert Jenkins (“Plaintiff”) is a state prisoner in the custody of the California
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Department of Corrections and Rehabilitation, proceeding pro se and in forma pauperis with this
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civil rights action pursuant to the Civil Rights Act, 42 U.S.C. § 1983 and the Americans with
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Disabilities Act (“ADA”), 42 U.S.C. § 12132. This action was initiated by civil Complaint filed by
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Plaintiff on April 28, 2011, at the United States District Court for the Northern District of California.
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(Doc. 1.) On May 16, 2011, the case was transferred to the Eastern District of California. (Doc. 7.)
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The Court screened the Complaint pursuant to 28 U.S.C. § 1915 and entered an order on July 13,
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2012, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 18.) On
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August 9, 2012, Plaintiff filed the First Amended Complaint, which is now before the Court for
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screening. (Doc. 20.)
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II.
SCREENING REQUIREMENT
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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 is required to 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 Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff’s
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allegations are taken as true, courts “are not required to indulge unwarranted inferences,” Doe I v.
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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation
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omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that
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is plausible on its face.’” Iqbal 129 S.Ct. at 1949. While factual allegations are accepted as true,
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legal conclusions are not. Id.
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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state
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a plausible 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 plausibility
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standard. Id.
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III.
SUMMARY OF FIRST AMENDED COMPLAINT
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Plaintiff is presently incarcerated at Pleasant Valley State Prison (“PVSP”) in Coalinga,
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California, where the events at issue allegedly occurred. Plaintiff names as defendants James A.
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Yates (Warden of PVSP), Anthony S. Lonigro (Chief Executive Officer of PVSP Health Services),
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J. Clark Kelso (Health Care Services Receiver), and Captain C. Herrera.
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Plaintiff alleges as follows in the First Amended Complaint. Plaintiff suffers from a rare but
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serious medical condition known as Paruresis or Shybladder Syndrome, which makes it difficult for
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those afflicted to urinate in front of other people. Some courts have recognized this condition as a
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mental disability which is covered under the Americans With Disabilities Act. Plaintiff alleges that
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since 2008, CDCR Primary Care Providers have failed to provide him appropriate treatment, which
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caused Plaintiff to suffer unnecessary and degenerative injury.
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Plaintiff alleges that defendant J. Clark Kelso, Health Care Services Receiver, decided a
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policy in response to Plaintiff’s condition: “...your condition has no medical solution because the
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situation was unrelated to a physical condition.” First Amd Cmp at 4 ¶11. Plaintiff also alleges that
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the Receiver’s Office has not provided him with medically acceptable treatment. Plaintiff alleges
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that defendant Anthony S. Lonigro followed defendant Kelso’s policy and therefore failed to provide
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him with appropriate medical treatment. Plaintiff also alleges that the Primary Care Providers under
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defendant Lonigro’s supervision have expressed that they are unable to treat Plaintiff’s Paruresis.
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Plaintiff alleges that unnamed Appeals Coordinators have arbitrarily screened out Plaintiff’s
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inmate appeals, thus denying Plaintiff appropriate medical treatment under defendant Lonigro’s
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policy and practice. Plaintiff claims that the Appeals Coordinators’ arbitrary screening has caused
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a “chilling effect on the assertion of legitimate claims.” First Amd Cmp. at 6 ¶19.
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Plaintiff requests monetary damages, preliminary and permanent injunctive relief, declaratory
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relief, and costs and fees.
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IV.
PLAINTIFF’S CLAIMS
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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).
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A.
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Plaintiff names as defendants persons employed in supervisory positions and seeks to hold
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them liable in their supervisory capacity. Under section 1983, Plaintiff must demonstrate that each
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defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002) (emphasis added). Plaintiff must demonstrate that each defendant, through his
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or her own individual actions, violated Plaintiff’s constitutional rights. Iqbal, 129 S.Ct. at 1948-49.
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Liability may not be imposed on supervisory personnel under section 1983 on the theory of
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respondeat superior, as each defendant is only liable for his or her own misconduct. Iqbal, 129 S.Ct.
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at 1948-49; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). A supervisor may be
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held liable only if he or she “participated in or directed the violations, or knew of the violations and
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failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v.
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Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.
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2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir.
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2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Therefore, to the extent that
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Plaintiff seeks to impose liability upon any of the other Defendants in their supervisory capacity, the
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Court finds that Plaintiff fails to state a cognizable claim.
Supervisory Liability
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B.
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“Title II of the ADA prohibits discrimination on the basis of disability.” Lovell v. Chandler,
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303 F.3d 1039, 1052 (9th Cir. 2002). Title II of the ADA provides that “no qualified individual with
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a disability shall, by reason of such disability, be excluded from participation in or be denied the
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benefits of the services, programs, or activities of a public entity, or be subject to discrimination by
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such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to inmates within state prisons.
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Pennsylvania Dept. of Corrections v. Yeskey, 118 S.Ct. 1952, 1955 (1998); see also Armstrong v.
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Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir.
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1996).
ADA Claim
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The treatment, or lack of treatment, concerning Plaintiff’s medical condition does not provide
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a basis upon which to impose liability under the RA or ADA. Burger v. Bloomberg, 418 F.3d 882,
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882 (8th Cir. 2005) (medical treatment decisions not a basis for RA or ADA claims); Schiavo ex
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rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005) (RA not intended to apply to medical
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treatment decisions); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005)
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(medical decisions not ordinarily within scope of ADA or RA); Bryant v. Madigan, 84 F.3d 246, 249
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(7th Cir. 1996) (“The ADA does not create a remedy for medical malpractice.”).
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Plaintiff seeks to bring an ADA claim because he was not provided adequate medical
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treatment for a condition known as Paruresis or Shybladder Syndrome. Plaintiff has not alleged facts
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demonstrating that he was “improperly excluded from participation in, and denied the benefits of,
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a prison service, program, or activity on the basis of his physical handicap.” Armstrong, 124 F.3d
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at 1023. Thus, the Court finds that Plaintiff fails to state a cognizable claim under the ADA.
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C.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate
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must 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, 104, 97 S.Ct. 285, 291 (1976). The two-
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part test for 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 or
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the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was
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deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059
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(9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136
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(9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a
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purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm caused
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by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be
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manifested “when prison officials deny, delay or intentionally interfere with medical treatment, or
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it may be shown by the way in which prison physicians provide medical care.” Id. Where a prisoner
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is alleging a delay in receiving medical treatment, the delay must have led to further harm in order
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for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at
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1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).
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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060
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(9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from
Eighth Amendment Medical Claim
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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person
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‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114
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S.Ct. 1970, 1979 (1994)). “‘If a prison official should have been aware of the risk, but was not, then
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the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting
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Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of
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medical malpractice or negligence is insufficient to establish a constitutional deprivation under the
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Eighth Amendment.
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constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).
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“A difference of opinion between a prisoner-patient and prison medical authorities regarding
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treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.
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1981) (internal citation omitted). To prevail, plaintiff “must show that the course of treatment the
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doctors chose was medically unacceptable under the circumstances . . . and . . . that they chose this
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course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90
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F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).
Id. at 1060.
“[E]ven gross negligence is insufficient to establish a
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Plaintiff alleges that he suffers from a serious medical condition which causes him
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continuous excruciating abdominal pain. However, Plaintiff fails to make factual allegations
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demonstrating that any of the Defendants consciously disregarded an excessive risk to his health or
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safety. At most, Plaintiff alleges a difference of opinion about medical treatment, which is not
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actionable under § 1983. Therefore, the Court finds that Plaintiff fails to state a cognizable Eighth
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Amendment medical claim against any of the defendants.
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D.
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Defendants’ actions in responding to Plaintiff’s appeals, alone, cannot give rise to any claims
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for relief under section 1983 for violation of due process. “[A prison] grievance procedure is a
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procedural right only, it does not confer any substantive right upon the inmates.” Buckley v. Barlow,
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997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982));
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see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of
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appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641,
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647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann
Inmate Appeals Process
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v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty
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interest requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568
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F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a
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prisoner’s administrative appeal, without more, are not actionable under section 1983. Buckley, 997
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F.2d at 495.
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Plaintiff alleges that unnamed Appeals Coordinators arbitrarily screened out Plaintiff’s
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inmate appeals. Because actions in reviewing a prisoner’s administrative appeal, without more, are
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not actionable under section 1983, the Court finds that Plaintiff fails to state a cognizable claim for
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the processing and/or reviewing of his 602 inmate appeals.
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E.
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To state a claim for retaliation under the First Amendment, Plaintiff must satisfy five
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elements. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). First, the plaintiff must allege
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that the retaliated-against conduct is protected. The filing of an inmate grievance is protected
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conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Second, the plaintiff must claim
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the defendant took adverse action against the plaintiff. Id. at 567. The adverse action need not be
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an independent constitutional violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he
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mere threat of harm can be an adverse action . . . .” Brodheim, 584 F.3d at 1270. Third, the plaintiff
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must allege a causal connection between the adverse action and the protected conduct. Because
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direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology
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of events from which retaliation can be inferred is sufficient to survive dismissal. Pratt, 65 F.3d at
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808 (“timing can properly be considered as circumstantial evidence of retaliatory intent”); Murphy
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v. Lane, 833 F.3d 106, 108-09 (7th Cir. 1987). Fourth, the plaintiff must allege that the “official’s
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acts would chill or silence a person of ordinary firmness from future First Amendment activities.”
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Robinson, 408 F.3d at 568 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails
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to allege a chilling effect may still state a claim if he alleges he suffered some other harm,”
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Brodheim, 584 F.3d at 1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n. 11. Fifth,
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the plaintiff must allege “that the prison authorities’ retaliatory action did not advance legitimate
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goals of the correctional institution . . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). A
Retaliation
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plaintiff successfully pleads this element by alleging, in addition to a retaliatory motive, that the
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defendant’s actions were arbitrary and capricious, id., or that they were “unnecessary to the
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maintenance of order in the institution,” Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984).
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Here, Plaintiff alleges that unnamed Appeals Coordinators arbitrarily screened out Plaintiff’s
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inmate appeals, causing a “chilling effect on the assertion of legitimate claims.” First Amd Cmp.
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at 6 ¶19. To the extent that Plaintiff alleges that Appeals Coordinators retaliated against him by
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screening out his inmate appeals, the court finds that Plaintiff fails to state a cognizable claim.
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Plaintiff has not alleged a causal connection between the adverse action and the protected conduct,
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or alleged that screening out Plaintiff’s complaints did not advance legitimate goals of the
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correctional institution.
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F.
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To state a claim against a defendant under § 1983, the plaintiff must allege some facts
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indicating that the defendant either personally participated in the alleged deprivation of constitutional
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rights; knew of the violations and failed to act to prevent them; or promulgated or “implemented a
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policy so deficient that the policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving
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force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal
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citations omitted); Taylor, 880 F.2d at 1045. In this instance, Plaintiff claims that defendant J. Clark
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Kelso, Health Care Services Receiver, made policy when he decided that Plaintiff’s condition,
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Paruresis or Shybladder Syndrome, has no medical solution because the situation is unrelated to a
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physical condition. However, Plaintiff has not alleged facts indicating that a policy was promulgated
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or implemented, or that any such policy is a repudiation of constitutional rights and is the moving
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force of one or more constitutional violations against Plaintiff. Therefore, the Court finds that
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Plaintiff fails to state a cognizable claim against defendant Kelso for making a policy decision.
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VI.
Policy Decision
CONCLUSION AND RECOMMENDATIONS
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The Court finds that Plaintiff’s First Amended Complaint fails to state any cognizable claims
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upon which relief may be granted under § 1983. Therefore, the First Amended Complaint should
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be dismissed for failure to state a claim. In this action, the Court previously granted Plaintiff an
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opportunity to amend the complaint, with ample guidance by the Court. Plaintiff has now filed two
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complaints without alleging facts against any of the defendants which state a claim under § 1983.
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The Court finds that the deficiencies outlined above are not capable of being cured by amendment,
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and therefore further leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez
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v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
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Therefore, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A and
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28 U.S.C. § 1915(e), this action be dismissed with prejudice for failure to state a claim upon which
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relief may be granted under § 1983, and that this dismissal be subject to the “three-strikes” provision
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set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)
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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 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
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December 6, 2012
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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