Mosier v. CDCR, et al.

Filing 14

ORDER DISMISSING First Amended Complaint With Leave To Amend (ECF No. 10 ), Amended Complaint Due Within Thirty (30) Days, signed by Magistrate Judge Michael J. Seng on 7/2/2012. Second Amended Complaint due by 8/6/2012. (Attachments: # 1 First Amended Complaint, # 2 Amended Complaint Form)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES A. MOSIER,

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CASE NO.

1:11-CV-01034-MJS (PC)

ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

Plaintiff,

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(ECF NO. 10)
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v.
AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

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CALIFORNIA DEPARTMENT OF
CORRECTIONS & REHABILITATION, et
al.,

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Defendants.
/

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FIRST SCREENING ORDER

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I.

PROCEDURAL HISTORY
Plaintiff James A. Mosier is a state prisoner proceeding pro se and in forma

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.)

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Plaintiff filed a First Amended Complaint (First Am. Compl., ECF No. 10) prior to
screening of his Complaint. The First Amended Complaint is now before the Court for
screening.

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II.

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

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

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

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

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

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

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

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time if the court determines that . . . the action or appeal . . . fails to state a claim upon

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which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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Section 1983 “provides a cause of action for the ‘deprivation of any rights,
privileges, or immunities secured by the Constitution and laws' of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method

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for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386,

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393–94 (1989).

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SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff, an epileptic, was incarcerated at North Kern State Prison (NKSP) on

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March 17, 2011. (First Am. Compl. at 5.) He was transferred to the California Substance

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1 Abuse Treatment Facility (SATF) on May 13, 2011. (Id. at 7.) He has suffered frequent
2 seizures during incarceration, and they interfere with daily activities. (Id. at 5-14, 17.)
3 Defendant medical staff at NKSP and SATF have been deliberately indifferent to his
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medical needs, have failed to accommodate his epileptic seizures, have denied or

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delayed medication and an ADA helmet, have failed to assist him during seizures, have
improperly processed his grievances, and have failed to transfer him to a more

8 appropriate medical correctional facility. (Id. at 2-3, 5-14.)
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Defendant correctional staff at NKSP and SATF have been similarly deliberately

10 indifferent to his medical needs. They have delayed delivery of medication and the ADA
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helmet, intentionally used flashlights triggering seizures, harassed him and accused him

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of “faking” seizures, improperly processed his grievances, and failed to transfer him to a
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more appropriate medical correctional facility. (Id.)
Plaintiff names Defendants1 (1) the California Department of Corrections and

16 Rehabilitation (CDCR),2 (2) M. Junious, NKSP Warden, (3) J. Yang, NKSP Nurse, (4) M.
17 Cate, Director of CDCR, (5) K. Allison, SATF Warden, (6) E. Enonmeh, SATF Chief
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Medical Officer, (7) T. Brown, SATF Nurse, (8) J. Salinas, SATF Correctional Officer, (9)

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J. Williams, SATF Correctional Officer, (10) Vigarino, SATF Correctional Officer, (11)
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Toste, SATF Correctional Officer, (12) Rodriguez, SATF Correctional Officer, (13) Mata,

22 SATF Correctional Officer, (14) Abeydna, SATF Nurse, (15) Villasenor, SATF Nurse, (16)
23 Olemeko, SATF Nurse, (17) Does 1-50. (Id. at 3-5.)
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The First Amended Complaint references Dr. Vasudeva, but fails to name him as a Defendant.

The First Amended Complaint names the CDCR solely for violations of the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act.

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Plaintiff alleges he has suffered traumatic brain injury (Id. at 3). He seeks a

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2 declaration that his federal rights have been violated, injunctive relief transferring him to a
3 medical correctional facility more appropriate to his needs, and monetary compensation.
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(Id. at 18-19.)

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IV.

ANALYSIS

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A.

Pleading Requirements Generally

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)

9 that a right secured by the Constitution or laws of the United States was violated and (2)
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that the alleged violation was committed by a person acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245

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(9th Cir. 1987).
A complaint must contain “a short and plain statement of the claim showing that

15 the pleader is entitled to relief . . . .“ Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are
16 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
17 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is
plausible on its face.’“ Id. Facial plausibility demands more than the mere possibility that

22 a defendant committed misconduct and, while factual allegations are accepted as true,
23 legal conclusions are not. Id. at 1949–50.
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B.

Federal Rule of Civil Procedure 18(a)

“Fed.R.Civ.P. 18(a) [states that]: A party asserting a claim to relief as an original

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claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or
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as alternate claims, as many claims, legal, equitable, or maritime, as the party has

2 against an opposing party. Thus multiple claims against a single party are fine, but Claim
3 A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2.
4 Unrelated claims against different defendants belong in different suits, not only to prevent
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the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to

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ensure that prisoners pay the required filing fees - for the Prison Litigation Reform Act
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limits to 3 the number of frivolous suits or appeals that any prisoner may file without

9 prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605,
10 607 (7th Cir. 2007).
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The fact that claims are premised on the same type of constitutional violation(s)
(here deliberate indifference and failure to accommodate) against multiple defendants

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does not make them factually related. Claims are related where they are based on the
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same precipitating event, or a series of related events caused by the same precipitating

16 event.
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The First Amended Complaint contains a number of unrelated claims in violation

18 of Rule 18(a). There are at least two distinct groupings of unrelated claims within
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Plaintiff's allegations: (1) deliberate indifference and failure to accommodate claims
against Defendants CDCR, Junious, Cate, Yang, and Does arising at NKSP, and (2)

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deliberate indifference and failure to accommodate claims against Defendants CDCR,

23 Allison, Cate, Vigarino, Olemeko, Enonmeh, Mata, Williams, Abeydna, Toste, Salinas,
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24 Villasenor, Brown, Gipson, and Does arising at SATF.

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Claims against prison personnel at different facilities are generally unrelated and Plaintiff alleges
no basis to reasonably infer that the actions of NKSP Defendants were related to actions of SATF
Defendants.

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The Court will review and discuss all of Plaintiff's claims and the law applicable

2 thereto so that Plaintiff might evaluate which, if any, may be and should be pursued here
3 and which, if any, may be and should be pursued in different action(s).
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Plaintiff must file a separate complaint for each unrelated claim against different
Defendants. If he does not, all unrelated claims will be subject to dismissal.

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C.

Personal Participation and Doe Defendants

To state a claim under § 1983, Plaintiff must demonstrate that each individually

9 named defendant personally participated in the deprivation of his rights. Jones v.
10 Williams, 297 F.3d 930, 934 (9th Cir. 2002). The Supreme Court has emphasized that
11 the term “supervisory liability,” loosely and commonly used by both courts and litigants
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alike, is a misnomer. Iqbal, 129 S.Ct. at 1949. Plaintiff must demonstrate that each

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defendant, through his or her own individual actions, violated Plaintiff's constitutional
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rights. Id. at 1948–49.
Plaintiff fails to allege any facts personally linking Defendants Cate, Allison,

17 Junious, and Enonmeh to any alleged rights violation. These Defendants can not be held
18 liable under § 1983 solely because of their supervisory capacity. Nor is their involvement
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in review of prison health care appeals alone a basis for liability. “Inmates lack a separate

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constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza,
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334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

23 1988); see also Buckley v. Barlow, 997 F.2d 494,495 (8th Cir. 1993) (actions in reviewing
24 a prisoner's administrative appeal cannot serve as the basis for liability under § 1983).
25 Plaintiff may not proceed against these Defendants unless he alleges facts plausibly
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claiming each personally violated, or knowingly directed a violation of, his constitutional

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rights.
Moreover, “[a]s a general rule, the use of ‘John Doe’ to identify a defendant is not

3 favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). “It is permissible to use
4 Doe defendant designations in a complaint to refer to defendants whose names are
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unknown to plaintiff. Although the use of Doe defendants is acceptable to withstand

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dismissal of a complaint at the initial review stage, using Doe defendants creates its own
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problem: those persons cannot be served with process until they are identified by their

9 real names.” Robinett v. Correctional Training Facility, 2010 WL 2867696, *4 (N.D. Cal.
10 July 20, 2010).
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Plaintiff is advised that Doe Defendants cannot be served by the United States
Marshal until Plaintiff has identified them as actual individuals and amended his

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complaint to substitute the Defendants' actual names. The burden is on Plaintiff to
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promptly discover the full names of Doe Defendants. Id.
D.

Deliberate Indifference
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Serious Medical Needs

Plaintiff alleges Defendants have been deliberately indifferent to his epilepsy and
thereby violated his Eighth Amendment rights.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an
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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439

23 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
24 The two prong test for deliberate indifference requires a plaintiff to show (1) “‘a serious
25 medical need’ by demonstrating that ‘failure to treat a prisoner's condition could result in
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further significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the

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defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096

2 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). Deliberate indifference
3 is shown by “a purposeful act or failure to respond to a prisoner's pain or possible
4 medical need, and harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing
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McGuckin, 974 F.2d at 1060). In order to state a claim for violation of the Eighth

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Amendment, a plaintiff must allege sufficient facts to support a claim that the named
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defendants “[knew] of and disregard[ed] an excessive risk to [plaintiff's] health . . . .”

9 Farmer v. Brennan, 511 U.S. 825, 837 (1994).
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A difference of opinion between medical professionals concerning the appropriate

11 course of treatment generally does not amount to deliberate indifference to serious
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medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild,

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891 F.2d 240, 242 (9th Cir. 1989). Also, “a difference of opinion between a
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prisoner-patient and prison medical authorities regarding treatment does not give rise to a

16 [§] 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
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To establish that such a difference of opinion amounted to deliberate indifference,

18 the prisoner “must show that the course of treatment the doctors chose was medically
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unacceptable under the circumstances” and “that they chose this course in conscious
disregard of an excessive risk to [the prisoner's] health.” See Jackson v. McIntosh, 90

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F.3d 330, 332 (9th Cir. 1996); see also Wilhelm v. Rotman, ––– F .3d ––––, 2012 WL

23 1889786 *7 (9th Cir. May 25, 2012) (doctor's awareness of need for treatment followed
24 by his unnecessary delay in implementing the prescribed treatment sufficient to plead
25 deliberate indifference); see also Snow v. McDaniel, ––– F.3d. ––––, 2012 WL 1889774
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*7 (9th Cir. May 25, 2012) (decision of non-treating, non-specialist physicians to

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1 repeatedly deny recommended surgical treatment may be medically unacceptable under
2 all the circumstances).
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Plaintiff's allegations of epilepsy and related seizures interfering with his daily
activities, taken as true on screening, are sufficient to show a serious medical need

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satisfying the first prong of deliberate indifference.4
However, Plaintiff has not stated facts claiming any particular medical staff

8 Defendant(s) intentionally denied, delayed or interfered with treatment of his needs in a
9 medically unacceptable manner. It appears Plaintiff has had ongoing access to medical
10 staff and medical treatment and was issued a May 18, 2011 medical chrono for his
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epilepsy and seizures. His allegations of occasional delay in receiving medication and of

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a nurse providing medication “in spite of the fact that Plaintiff stated he was allergic” to
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the medication might under some circumstances give rise to a deliberate indifference

15 claim, but Plaintiff has not alleged sufficient factual detail under the standards stated
16 above for the Court to find deliberate indifference.
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Plaintiff’s allegations, taken as true for purposes of screening suggest no more
than mere negligence. Cf., White v. Napoleon, 897 F.2d 103, 110 (3rd Cir. 1990)

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(doctor’s use of inappropriate drug for no valid reason, or persistent use of a particular
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medication after prisoner told doctor that seizures had increased in ferocity and

22 frequency, may be sufficient to state deliberate indifference); Gallagher v. City of
23 Winlock, Wash. 287 Fed.Appx. 568, 576 (9th Cir. 2008) (deliberately indifference to
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See McGuckin, 974 F.2d at 1059–60 (“[T]he existence of an injury that a reasonable doctor or
patient would find important and worthy of comment or treatment; the presence of a medical condition that
significantly affects an individual's daily activities; or the existence of chronic and substantial pain are
examples of indications that a prisoner has a ‘serious' need for medical treatment.”).

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1 serious medical needs where police denied for over one hour arrestee’s repeated
2 requests to take epilepsy medication and arrestee later suffers a seizure); Hudson v.
3 McHugh, 148 F.3d 859, 864 (7th Cir.1998) (deliberate indifference where jail officers and
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nurse knew plaintiff had epilepsy, knew he was not receiving any medication, and ignored

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his repeated requests for treatment).
Similarly, nothing before the Court suggests that corrections staff was aware of

8 any specific risk from Plaintiff’s epilepsy or deliberately failed to comply with his medical
9 chrono. He alleges they used flashlights to induce seizure activity. However, the
10 allegations are insufficient for the Court to determine whether Plaintiff merely assumes
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such improper motivation or whether something about what the staff said or did supports

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it or, conversely, rules out a valid penological purpose for using the flashlights to, for
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example, assist medical personnel in diagnosing, measuring or treating his epileptic

15 condition or simply to check on the status of prisoners. If he wishes to pursue a claim in
16 this regard, Plaintiff should include all facts known to him which he feels support his belief
17 that the lights were used deliberately for an improper purpose. What was said by
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corrections staff when they used the lights? Did Plaintiff object? What was the response

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from staff and their supervisors? Were flashlights used that way on non-epileptic
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prisoners? How often did this happen to Plaintiff?
His allegations of delay in providing the helmet required by his chrono and

23 occasional delay in providing prescribed medication could under some circumstances
24 suggest deliberate indifference, but again there is insufficient factual detail to reveal
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deliberate indifference by any Defendant(s) under the standards stated above. Plaintiff’s
allegations, taken as true for purposes of screening, suggest no more than mere

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negligence by the correctional staff.
Allegation of “verbal harassment or abuse . . . is not sufficient to state a

3 constitutional deprivation under [§] 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139
4 (9th Cir. 1987); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by
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135 F.3d 1318 (9th Cir. 1998).

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Plaintiff fails to allege facts plausibly claiming any deliberate denial, delay, or
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interference in addressing his medical needs resulting in harm. The Court will give

9 Plaintiff an opportunity to amend to correct the noted deficiencies. If Plaintiff chooses to
10 amend he must set forth sufficient facts claiming in addition to his demonstrated serious
11 medical need, a deliberately indifferent response to that need on the part of Defendants
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causing harm to Plaintiff.

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2.

Conditions of Confinement

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Plaintiff alleges his housing is inappropriate and inadequately equipped to meet

16 his needs in violation of his rights against cruel and unusual punishment.
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The Eighth Amendment protects prisoners from inhumane methods of punishment

18 and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041,
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1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of
confinement claim, and only those deprivations denying the minimal civilized measure of

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life's necessities are sufficiently grave to form the basis of an Eighth Amendment

23 violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992).
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To establish a violation of this duty, a prisoner must satisfy both an objective and

25 subjective component. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). First, a prisoner
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must demonstrate an objectively serious deprivation, one that amounts to a denial of “the

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minimal civilized measures of life's necessities.” Keenan, 83 F.3d 1083 at 1089 (quoting

2 Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). In determining whether a deprivation is
3 sufficiently serious within the meaning of the Eighth Amendment, “the circumstances,
4 nature, and duration” of the deprivation must be considered. Johnson v. Lewis, 217 F.3d
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726, 731 (9th Cir. 2000).

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Second, a prisoner must also demonstrate that prison officials acted with a
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sufficiently culpable state of mind, that of “deliberate indifference.” Wilson, 501 U.S. at

9 303; Johnson, 217 F.3d at 733. A prison official acts with deliberate indifference if he
10 knows of and disregards an excessive risk to the prisoner's health and safety. Farmer,
11 511 U.S. at 837. In other words, the prison official “must both be aware of facts from
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which the inference could be drawn that a substantial risk of serious harm exists [to the

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inmate], and [the prison official] must also draw the inference.” Id.
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Nothing before the Court suggests how or why SATF is inappropriate and

16 inadequate for Plaintiff’s needs. Plaintiff fails to allege facts claiming that he has been
17 denied “the minimal civilized measure of life's necessities.” Plaintiff can not then allege
18 facts of Defendants’ deliberate indifference thereto.
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Plaintiff has failed to allege an objectively serious deprivation or Defendants'
subjective deliberate indifference thereto. The Court will allow an opportunity to amend to

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correct the noted deficiencies. In order to state a cognizable claim, Plaintiff must set forth

23 sufficient facts plausibly claiming the above noted elements attributable to each
24 Defendant.
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E.

Accommodation

Plaintiff alleges Defendants have failed to accommodate his epileptic disability.

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Title II of the Americans with Disabilities Act (ADA) and Section 504 of the

2 Rehabilitation Act (RA) “both prohibit discrimination on the basis of disability.” Lovell v.
3 Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II of the ADA provides that “no
4 qualified individual with a disability shall, by reason of such disability, be excluded from
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participation in or be denied the benefits of the services, programs, or activities of a

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public entity, or be subject to discrimination by such entity.” 42 U.S.C. § 12132.
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Section 504 of the RA provides that “no otherwise qualified individual with a

9 disability . . . shall, solely by reason of her or his disability, be excluded from the
10 participation in, be denied the benefits of, or be subjected to discrimination under any
11 program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794.
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Title II of the ADA and the RA apply to inmates within state prisons. Pennsylvania

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Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998); see also Armstrong v. Wilson, 124
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F.3d 1019, 1023 (9th Cir. 1997); Duffy v. Riveland, 98 F.3d 447, 453–56 (9th Cir. 1996).
“To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is

17 a qualified individual with a disability; (2) [he] was excluded from participation in or
18 otherwise discriminated against with regard to a public entity's services, programs, or
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activities; and (3) such exclusion or discrimination was by reason of [his] disability.”
Lovell, 303 F.3d at 1052.

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“To establish a violation of [Section] 504 of the RA, a plaintiff must show that

23 (1)[he] is handicapped within the meaning of the RA; (2) [he] is otherwise qualified for the
24 benefit or services sought; (3) [he] was denied the benefit or services solely by reason of
25 [his] handicap; and (4) the program providing the benefit or services receives federal
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financial assistance.” Id.

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“To recover monetary damages under Title II of the ADA, a plaintiff must prove

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2 intentional discrimination on the part of the defendant,” and the standard for intentional
3 discrimination is deliberate indifference. Duvall v. County of Kitsap, 260 F.3d 1124, 1138
4 (9th Cir. 2001). “Deliberate indifference requires both knowledge that a harm to a
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federally protected right is substantially likely, and a failure to act upon that likelihood.” Id.

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at 1139.
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Prison medical care is considered a service, program or activity covered by the

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9 ADA. Kiman v. New Hampshire Dept. of Corrs., 451 F.3d 274, 284 (1st Cir. 2006) (citing
10 United States v. Georgia, 546 U.S. 151 (2006)).
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Plaintiff’s epilepsy is sufficient to allege a disability. See Bilal v. New York City
Dept. Of Corrections 2010 WL 1875731 **4 (S.D.N.Y. May 10, 2010) (“Epilepsy is

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recognized as a ‘disability’ under the ADA.) However, Plaintiff fails to allege facts
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showing he was denied access to medical treatment. “Whether and when the ADA

16 supports claims by prisoners regarding a prison's medical . . . services is a close question
17 that turns on distinguishing actionable claims of ‘denial of medical treatment’ from
18 non-actionable claims of mere inadequate or negligent medical treatment.” Payne, 2012
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WL 1151957 *6; see also Kiman, 451 F.3d 274 at 284 (noting courts have “differentiated
ADA claims based on negligent medical care from those based on discriminatory medical

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care”).
The treatment, or lack of treatment, concerning Plaintiff’s medical condition does

24 not provide a basis upon which to impose liability under the RA or the ADA. Simmons v.
25 Navajo County, 609 F.3d 1011, 1022 (9th Cir. 2010) (citing Bryant v. Madigan, 84 F.3d
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246, 249 (7th Cir. 1996) (“The ADA does not create a remedy for medical malpractice.”);

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Burger v. Bloomberg, 418 F.3d 882, 882 (8th Cir. 2005) (medical treatment decisions not

2 a basis for RA or ADA claims).
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Plaintiff's predicate deliberate indifference claim fails for the reasons stated above.

4 Plaintiff does not allege facts plausibly claiming denial of medical treatment. “Where a
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prisoner has received some medical attention and the dispute is over the adequacy of the

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treatment, federal courts are generally reluctant to second guess medical judgments and
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to constitutionalize claims that sound in state tort law.” Graham ex rel. Estate of Graham

9 v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004) (quoting Westlake v. Lucas,
10 537 F.2d 857, 860, n.5 (6th Cir. 1976)).
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Plaintiff fails to allege facts claiming the prison medical care program providing the
benefit or services in issue receives federal financial assistance for purposes of the RA.

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To the extent that Plaintiff wishes to seek assistance that he believes is due
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pursuant to the Armstrong Remedial Plan,5 he “must pursue his request via the consent

16 decree or through class counsel.” Crayton v. Terhune, No. C 98-4386 CRB(PR), 2002
17 WL 31093590, *4 (N.D. Cal. Sept. 17, 2002). Plaintiff may not sue for damages in this
18 action solely on the basis that defendants allegedly violated the Armstrong Remedial
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Plan.
Plaintiff fails to state a claim for relief under the ADA and RA. The Court will allow

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leave to amend. If Plaintiff chooses to amend, he must set forth sufficient facts showing

23 the above noted elements attributable to each of the Defendants. Plaintiff should note
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The Armstrong Remedial Plan refers to a remedial order issued in Armstrong v. Davis, No.
CV94-2307-CW, by the District Court for the Northern District of California to enjoin practices that
discriminated against disabled inmates in California Prisons. See generally Armstrong v. Davis, 275 F.3d
849 (9th Cir.2001); Armstrong v. Wilson, 124 F.3d 1019 (9th Cir.1997) (affirming order requiring
submission of a remedial plan for CDCR's compliance with both the Americans with Disabilities Act, 42
U.S.C. §§ 12131-34, as well as the Rehabilitation Act of 1973, 29 U.S.C. § 749).

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that he may not name prison officials in their individual capacities. See Shaughnessy v.

2 Hawaii, No. 09-00569 JMS/BMK, 2010 WL 2573355, at *8 (D.Hawai’i June 24, 2010)
3 (Individual liability is precluded under the ADA); accord Anaya v. Campbell, No. CIV
4 S-07-0029 GEB GGH P, 2009 WL 3763798, at *5-6 (E.D. Cal. Nov. 9, 2009).
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F.

Injunctive Relief

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Plaintiff seeks injunctive relief in the form transfer to a medical correctional facility
appropriate for his needs.
Injunctive relief is an “extraordinary remedy, never awarded as of right.” Winter v.

10 Natural Res. Defense Council, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary
11 injunction must establish that he is likely to succeed on the merits, that he is likely to
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suffer irreparable harm in the absence of preliminary relief, that the balance of equities

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tips in his favor, and that an injunction is in the public interest.” Id. (citing Munaf v. Geren,
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553 U.S. 674, 689–90 (2008)).
In cases brought by prisoners involving conditions of confinement, the Prison

17 Litigation Reform Act (PLRA) requires that any preliminary injunction “be narrowly drawn,
18 extend no further than necessary to correct the harm the court finds requires preliminary
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relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. §

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3626(a).
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22

Plaintiff has not demonstrated that he will succeed on the merits of his case. His

23 Complaint fails to state any cognizable claim.
24

Nothing in the Complaint suggests real and immediate threat of injury. See City of

25 Los Angeles v. Lyons, 461 U.S. 95 (1983) (plaintiff must show “real and immediate”
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threat of injury, and “past exposure to illegal conduct does not in itself show a present

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case or controversy regarding injunctive relief . . . if unaccompanied by any continuing,

2 present, adverse effects.”). Plaintiff has a medical chrono in place. He does not indicate
3 why his current housing is inadequate or why other facilities are adequate.
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5

Plaintiff does not address the third or fourth elements, i.e., the balancing of
equities and public interest concerns. First, absent a showing sufficient to find harm to

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Plaintiff, there is nothing to tip the balance of equities in Plaintiff's favor. Second, while
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the public has an interest in providing the best practical prisoner care, the record before

9 the Court does not justify the Court substituting its judgment in these matters for that of
10 the prison medical staff.
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The various criteria not having been met, Plaintiff is not entitled to injunctive relief.
The Court will allow leave to amend. If Plaintiff chooses to amend, he must set forth

13
sufficient facts showing the above noted elements.
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V.

CONCLUSION AND ORDER
Plaintiff's Complaint does not state a claim for relief under § 1983. The Court will

17 grant Plaintiff an opportunity to file an amended complaint. Lopez v. Smith, 203 F.3d
18 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
19

If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a

20
deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948–49. Plaintiff must set forth
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22

“sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 1949

23 (quoting Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each named
24 Defendant personally participated in a deprivation of his rights. Jones, 297 F.3d at 934.
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Plaintiff should note that although he has been given the opportunity to amend, it
is not for the purposes of adding new claims. George, 507 F.3d at 607. Plaintiff should

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carefully read this screening order and focus his efforts on curing the deficiencies set

2 forth above.
3

Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint

4 be complete in itself without reference to any prior pleading. As a general rule, an
5

amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

6
57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer
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8

serves any function in the case. Therefore, in an amended complaint, as in an original

9 complaint, each claim and the involvement of each defendant must be sufficiently
10 alleged. The amended complaint should be clearly and boldly titled “Second Amended
11 Complaint”, refer to the appropriate case number, and be an original signed under
12

penalty of perjury. Plaintiff's amended complaint should be brief. Fed.R.Civ.P. 8(a).

13
Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to
14
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relief above the speculative level. . . .” Twombly, 550 U.S. at 555. Plaintiff is cautioned to

16 comply with Fed.R.Civ.P. 18(a) in any amended pleading.
17

Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk's Office shall send Plaintiff (1) a blank civil rights amended complaint

19

form and (2) a copy of his First Amended Complaint filed November 30, 2011.

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Plaintiff's First Amended Complaint is dismissed for failure to state a claim upon
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22

which relief may be granted.
Plaintiff shall file an amended complaint within thirty (30) days from service of this

23
24 order.
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26

If Plaintiff fails to file an amended complaint in compliance with this order, it is
recommended that this action be dismissed, with prejudice, for failure to state a claim

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and failure to prosecute, subject to the “three strikes” provision set forth in 28 U.S.C. §

2 1915(g). Silva v. Di Vittorio 658 F.3d 1090 (9th Cir. 2011).
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11 IT IS SO ORDERED.
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13 Dated:
ci4d6
14

July 2, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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