Desiderio v. Saint Clair

Filing 16

FINDINGS And RECOMMENDATIONS Recommending That Plaintiff's First Amended Complaint Be Dismissed Without Leave To Amend (ECF No. 15 ), Objections Due Within Thirty (30) Days, signed by Magistrate Judge Stanley A. Boone on 1/24/2014. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/27/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MAYA DESIDERIO,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT PLAINTIFF’S
FIRST AMENDED COMPLAINT BE
DISMISSED WITHOUT LEAVE TO
AMEND

v.

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Case No. 1:11-cv-01388-LJO-SAB

JACK SAINT CLAIR,

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Defendant.

ECF NO. 15
OBJECTIONS DUE WITHIN THIRTY (30)
DAYS

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I.

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INTRODUCTION

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Plaintiff Maya Desiderio (“Plaintiff”) is a state prisoner proceeding pro se and in forma

21 pauperis in this action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on August 22,
22 2011. (ECF No. 1.) On October 11, 2013, the Court screened and dismissed the original
23 complaint. (ECF No. 14.) This action proceeds on the First Amended Complaint filed on
24 November 8, 2013. (ECF No. 15.)
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For the reasons set forth below, the Court finds that Plaintiff’s First Amended Complaint

26 fails to state any cognizable claims.
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II.

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SCREENING

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The Court is required to screen complaints brought by prisoners seeking relief against a

4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
5 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
6 legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or
7 that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
8 1915(e)(2)(B).
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A complaint must contain “a short and plain statement of the claim showing that the

10 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate
14 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v.
15 Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

17 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d
18 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be
19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer
20 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss
21 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant
22 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s
23 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572
24 F.3d at 969.
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III.

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PLAINTIFF’S COMPLAINT

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The events described in Plaintiff’s complaint took place while he was incarcerated at the

28 Sierra Conservation Center in Jamestown, California. Plaintiff names Jack Saint Clair (chief

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1 medical officer) and H. Christie (correctional officer) as defendants (all defendants collectively
2 referred to as “Defendants”).
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Plaintiff contends that he was repeatedly denied adequate health care and treatment.

4 (First Am. Compl. ¶ 2.) Plaintiff further alleges that Defendant “abused his position as [chief
5 medical officer] to chill and/or silence Plaintiff’s right to exercise his First Amendment right to
6 seek redress.” (First Am. Compl. 2.)
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On April 12, 2010, Dr. Bangi prescribed pain medication for Plaintiff in tablet form

8 (Gabapentin). (First Am. Compl. ¶ 3.) However, Plaintiff’s prescription was later cancelled.
9 (First Am. Compl. ¶ 5.)

Plaintiff alleges that his Gabapentin medication was “arbitrarily

10 stopped” based on an unsupported allegation that Plaintiff was caught with a Gabapentin pill in
11 his cell. (First Am. Compl. ¶ 15.) On April 13, 2010, Plaintiff filed an appeal regarding the
12 Gabapentin issue. (First Am. Compl. ¶ 6.) Plaintiff’s appeal was screened out, with the cited
13 basis being Plaintiff’s “Appeal System Abuse” and excessive filing. (First Am. Compl. ¶ 7.)
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On July 30, 2010, Plaintiff was injured after slipping on a wet floor. (First Am. Compl. ¶

15 23.) Plaintiff filed an appeal regarding the accident. (First Am. Compl. ¶ 24.) Plaintiff contends
16 that Defendant Christie gave untrue statements regarding the accident. (First Am. Compl. ¶ 25.)
17 Plaintiff contends that Christie stated that the floor was mopped properly, wet floor caution signs
18 were in place, and that Plaintiff was seen running across the floor without his cane. (First Am.
19 Compl. ¶ 29.) Plaintiff contends that Christie was not in position to observe Plaintiff’s fall.
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IV.

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DISCUSSION

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A.

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Plaintiff contends that Defendants violated his rights under the Eighth Amendment,

Eighth Amendment Claim

25 which prohibits cruel and unusual punishment. To constitute cruel and unusual punishment in
26 violation of the Eighth Amendment, prison conditions must involve “the wanton and
27 unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “[A] prison
28 official violates the Eighth Amendment only when two requirements are met.

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First, the

1 deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S.
2 825, 834 (1994) (citations omitted). Second, “a prison official must have a ‘sufficiently culpable
3 state of mind.’ [Citations.] In prison-conditions cases that state of mind is one of ‘deliberate
4 indifference’ to inmate health or safety.” Id. A prison official acts with “deliberate indifference”
5 if:
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the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.

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“‘Mere negligence in diagnosing or treating a medical condition, without more, does not

11 violate a prisoner’s Eighth Amendment rights.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th
12 Cir. 2004) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). In order to rise to
13 the level of deliberate indifference, plaintiff must allege “(a) a purposeful act or failure to
14 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.”
15 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “[A] mere ‘difference of medical opinion ...
16 [is] insufficient, as a matter of law, to establish deliberate indifference.’” Id. at 1058 (quoting
17 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). “Rather, to prevail on a claim involving
18 choices between alternative courses of treatment, a prisoner must show that the chosen course of
19 treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in conscious
20 disregard of an excessive risk to [the prisoner’s health.’” Id. (quoting Jackson, 90 F.3d at 332).
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Plaintiff does not state any cognizable claims under the Eighth Amendment. Plaintiff

22 does not allege any facts that plausibly support the conclusion that Defendant Saint Clair acted
23 with deliberate indifference. Plaintiff alleges that his medication was discontinued after Plaintiff
24 was suspected of not taking his medications and instead keeping them in his cell for improper
25 purposes. Plaintiff also alleges that his administrative appeal was rejected due to his suspected
26 abuse of the appeals process. Regardless of whether these justifications were true, Plaintiff has
27 not alleged any facts that suggest that Saint Clair acted with actual knowledge and belief of a
28 substantial risk of harm to Plaintiff.

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B.

First Amendment Free Speech Claims

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Plaintiff contends that Defendants chilled Plaintiff’s exercise of his First Amendment

3 right to file administrative grievances. “Within the prison context, a viable claim of First
4 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some
5 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that
6 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did
7 not reasonable advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 5678 68 (9th Cir. 2004).
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Plaintiff does not state a cognizable First Amendment claim against Defendant Saint

10 Clair. Plaintiff does not allege facts that plausibly support the conclusion that Saint Clair took
11 adverse action against Plaintiff “because of” Plaintiff’s protected conduct. Plaintiff alleges that
12 Saint Clair screened out Plaintiff’s appeal because the appeal violated a prison rule that limited
13 prisoners to filing one non-emergency appeal every seven days. Although Plaintiff alleges that
14 he had not filed a second medical appeal within the seven day limit, Plaintiff does not allege any
15 facts that plausibly support the conclusion that Saint Clair’s motives were retaliatory. Moreover,
16 Plaintiff has not alleged a sufficient effect to support a retaliation claim. In order to state a claim,
17 Plaintiff must allege adverse action that would chill or silence a person of ordinary firmness from
18 future First Amendment activities. Screening out an administrative appeal and informing a
19 prisoner to re-file after the seven day time limit passes is not action that would chill or silence a
20 person of ordinary firmness from future First Amendment activities. Accordingly, Plaintiff fails
21 to state a cognizable retaliation claim against Saint Clair.
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Plaintiff does not state a cognizable First Amendment claim against Defendant Christie.

23 Plaintiff does not allege facts that plausibly support the conclusion that Christie made false
24 statements accusing Plaintiff of being responsible for his accident “because of” Plaintiff’s
25 protected conduct. Further, making a false statement accusing Plaintiff of causing his own
26 accident is not the type of adverse action that would chill or silence a person of ordinary firmness
27 from future First Amendment activities.

Accordingly, Plaintiff fails to state a cognizable

28 retaliation claim against Christie.

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C.

Dismissal Without Leave to Amend

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Generally, leave to amend a dismissed complaint should be granted if it appears at all

3 possible that the plaintiff can correct the defects in the complaint. Lopez v. Smith, 203 F.3d
4 1122, 1130 (9th Cir. 2000). However, leave to amend may be denied when a plaintiff was
5 previously notified of the deficiencies in his claims but did not cure them. See Chodos v. West
6 Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002).
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Here, Plaintiff was previously informed of the deficiencies in his claims and his First

8 Amended Complaint failed to cure them. Accordingly, the Court will dismiss Plaintiff’s First
9 Amended Complaint without leave to amend.
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V.

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CONCLUSION AND ORDER

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For the reasons set forth above, the Court finds that Plaintiff’s First Amended Complaint

13 fails to state any cognizable claims. Moreover, the Court finds that leave to amend should be
14 denied because Plaintiff’s claims cannot be cured by granting further leave to amend.
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Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s First Amended Complaint

16 be DISMISSED, without leave to amend.
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These findings and recommendations are submitted to the district judge assigned to this

18 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30)
19 days of service of this recommendation, any party may file written objections to these findings
20 and recommendations with the Court and serve a copy on all parties. Such a document should be
21 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district
22 judge will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. §
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1 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may
2 waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
3 1991).
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IT IS SO ORDERED.
Dated:

January 24, 2014
UNITED STATES MAGISTRATE JUDGE

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