Lamon v. Amrheign et al

Filing 41

FINDINGS and RECOMMENDATIONS That This Action Proceed Against Defendants Austin, Wilson and Yzguerra and That the Remaining Defendants be Dismissed, signed by Magistrate Judge Barbara A. McAuliffe on 9/22/2015, referred to Judge Ishii. Objections to F&R 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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BARRY LOUIS LAMON,

Case No. 1:12-cv-00296-AWI-BAM-PC

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Plaintiff,

FINDINGS AND RECOMMENDATIONS
THAT THIS ACTION PROCEED AGAINST
DEFENDANTS AUSTIN, WILSON AND
YZGUERRA AND THAT THE
REMAINING DEFENDANTS BE
DISMISSED

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v.
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C/O AUSTIN, et al.,
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Defendants.

OBJECTIONS DUE IN FOURTEEN DAYS

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I.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C.
§ 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
636(1)(B) and Local Rule 302.

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Pending before the Court is Plaintiff’s February 23, 2015,

second amended complaint filed in response to the August 12, 2014, order dismissing the first
amended complaint with leave to amend (ECF No. 28.)

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Overview

Plaintiff, an inmate in the custody of the California Department of Corrections and
Rehabilitation (CDCR) at CCI Tehachapi, brings this action correctional officials employed by
the CDCR at CSP Corcoran, where the events at issue occurred. Plaintiff names as defendants
the following individuals: Registered Nurse B. Amrhein; Correctional Officer (C/O) Austin; C/O
Wilson; C/O Yzguerra; Nurse Practitioner J. Bandoc; Dr. E. Clark; Dietitian L. Schultz.
II.

Allegations
As noted in the order dismissing the first amended complaint, Plaintiff sets forth the

following allegations. Prior to May 3, 2009, Plaintiff had submitted more than one hundred
inmate prison grievances and filed more than five civil rights lawsuits against CDCR employees,
and thus earned the derogatory description of “legal beagle” among CDCR personnel at CSP. In
retaliation for Plaintiff’s many grievances and lawsuits, Plaintiff alleges that C/Os tainted his
meals with chemicals that caused him excruciating headaches and esophageal, intestinal and

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1 rectal pain. Plaintiff reported his severe reactions to the Acute Care Hospital in Corcoran more
2 than twenty times. In response to his continuing complaints, Corcoran mental health staff
3 declared Plaintiff delusionally insane and prescribed a wide range of mental health drugs for
4 several years, to no avail. General medical practitioners at Corcoran prescribed an even broader
5 range of medicinal remedies, again to no avail.
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On or about May 3, 2009, Defendant Dr. Clark examined Plaintiff and prescribed a

7 nutritional supplement called Nutren, which was canned and therefore tamper-resistant. Dr.
8 Clark told Plaintiff that he based his decision to issue the Nutren on the grounds that it was the
9 only remedy that had ever worked successfully previously, that it was far less expensive than the
10 majority of the plethora of mental health related and other medicinal approaches that had been
11 used, and its only drawback was more political than medicinal in nature. Dr. Clark said that the
12 C/Os and their supervisor felt that if “Medical” prescribed it for those inmates who alleged that
13 C/Os were tainting their meals, it would prove a sort of medical staff validation, if not
14 agreement, with the claims against them. Dr. Clark told Plaintiff not to tell any of the other
15 inmates that he was prescribing Nutren, or they would also demand it, and he would discontinue
16 Plaintiff’s prescription.
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Plaintiff’s supervising C/Os became angry about the prescription, because it frustrated

18 their efforts to taint Plaintiff’s meals. They began to openly threaten to get the Nutren cancelled.
19 Several of the nurses gave in to the pressure, opened Plaintiff’s canned Nutren, and tainted it
20 prior to the supplement arriving at Plaintiff’s cell.
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On May 5, 2009, Plaintiff filed an inmate health care appeal alleging that LVNs were

22 opening and tainting his Nutren. On or about May 28, 2009, Defendant Nurse Amrhein heard
23 the appeal and asked Plaintiff to withdraw it. Plaintiff refused and Defendant Amrhein said:
24 “Well, fine, if that’s where you want to go with this, but your forget that you were only
25 prescribed Nutren as a courtesy based on your issues with ‘custody.’ You shouldn’t bite the
26 hand that feeds you.” (First Am. Compl. ¶20.) About thirty minutes later, an LVN passed by
27 Plaintiff’s cell and instead of issuing Plaintiff his Nutren, smugly informed him that Defendants
28 Amrhein, Bandoc and Schultz cancelled the Nutren. These nurses did not have the authority to

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1 cancel Dr. Clark’s prescription.

Out of reprisal for Plaintiff filing the appeal, Defendants

2 Amrhein, Bandoc and Schultz met and discussed the potential threat to Plaintiff’s health, safety
3 and well-being, of which they were aware, and intentionally agreed to interfere with Plaintiff’s
4 doctor-prescribed medical care. Because of this interference, Plaintiff suffered severe headaches,
5 esophageal, intestinal and abdominal pains, muscle cramps, fright, fear, intimidation and loss of
6 rights.
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On July 16, 2009, Plaintiff filed an appeal alleging that Defendants Amrhein, Bandoc and

8 Schultz’s retaliatory cancellation of the Nutren violated Plaintiff’s rights under the First
9 Amendment and went against a full medical doctor’s orders. Afterwards, Dr. Clark saw Plaintiff
10 and reminded him that he had warned Plaintiff not to make waves or he would cancel the Nutren.
11 When Plaintiff objected to the nurses improperly cancelling the prescription, Dr. Clark replied
12 that nevertheless, Plaintiff should not have filed an appeal because they had been doing what
13 they could to help him, and now they felt that Plaintiff should just be left on his own to defend
14 against whatever “custody” did to him.

Plaintiff alleges that Dr. Clark, as a medical

15 professional, knew Plaintiff faced a threat of serious injury to his health, but deliberately
16 disregarded it and elected not to provide the Nutren as a reprisal for Plaintiff filing an appeal
17 against Defendants Amrhein, Bandoc, Schultz and other medical personnel.
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Based on Plaintiff’s continuing complaints that he was suffering pains after consuming

19 his meals, on or about May 23, 2009, prison medical doctors issued orders for Plaintiff to be
20 examined by an off-site cardiovascular specialist. On or about June 18, 2009, Defendants Austin
21 and Wilson, employed as Corcoran Medical Transportation Officers, arrived at Plaintiff’s cell at
22 about 6:20 a.m. to take him to the cardiovascular specialist, despite Plaintiff having been issued a
23 gate pass for 8:00 a.m. and having been informed by medical staff that he would leave at 8:00
24 a.m. Plaintiff was angry that Defendants Austin and Wilson elected to transport him early,
25 which would deprive Plaintiff of a hot breakfast and instead cause him to be issued a bagged
26 peanut butter and jelly sandwich for breakfast. Plaintiff verbally protested and informed the
27 officers that he would file an appeal against them.
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Plaintiff complied with all of the officers’ instructions and otherwise prepared for

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1 transportation. The officers stood outside Plaintiff’s cell and Plaintiff was subjected to a strip2 search. Defendants Austin and Wilson bantered back and forth with C/Os about Plaintiff’s threat
3 to file an appeal against them for arriving so early. Austin and Wilson admitted that “the front
4 desk” had told them Plaintiff was a “legal beagle” who was suing “everyone at the prison,” and
5 that they had come early so they “could [bring] him back and, hopefully, pick up a second
6 transport” during work-time hours, and that Plaintiff “ought to be glad to be going, period.” (Id.
7 ¶ 37.) Plaintiff’s hands and feet were shackled, and he was placed in a security cage in the
8 transportation van.
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Defendants Austin and Wilson drove up to the exit gate supervised by Defendant

10 Yzguerra, who opened the side door of the van and the security cage, and confirmed Plaintiff’s
11 identity. Yzguerra commented to Austin and Wilson, “Wow. He’s a real bundle of joy, what’s
12 got a bug of his a**?” Austin and Wilson told him that Plaintiff was angry about missing
13 breakfast and was threatening to sue them for arriving too early. They said they didn’t know
14 why Medical was sending Plaintiff out, but Plaintiff was “a real a**- hole who was more likely
15 than not only trying to collect evidence to file appeals.” Austin stated, “Well, f*** him. Let’s
16 just put his a**- back and see if we can pull a tour with as close to eight hours as we can get.
17 Why put up with this sh**- for the next four hours?” (Id. ¶ 41.) Plaintiff alleges that Defendants
18 Austin, Wilson and Yzguerra met, discussed, and considered the substantial threat of serious
19 harm that would be posed to Plaintiff’s health if they interfered with Plaintiff’s doctors’ orders to
20 transport Plaintiff to the cardiovascular specialist.
21 III.

Claims

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In the order dismissing the first amended complaint, the Court found that Plaintiff’s

23 claims of retaliation, denial of medical care, due process, conspiracy and state law claims failed
24 to state a claim for relief. Plaintiff’s February 23, 2015, second amended complaint consists of a
25 form complaint, along with a typed complaint in pleading form titled as a supplement to the
26 second amended complaint. The Court will consider both documents as an inclusive second
27 amended complaint. In his statement of claim in the form portion of the second amended
28 complaint, Plaintiff lists under claim 1, the following: “Conspiracy to Retaliate against, and

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1 interfere with Plaintiff’s First Amendment right to petition the government, also violate
2 Plaintiff’s Fourteenth Amendment right to due process and equal protection under the law.” In
3 the pleading portion of the second amended complaint, sets forth claims of First Amendment
4 retaliation, denial of medical care, interference with medical care, state law negligence and a
5 claim pursuant to California Civil Code § 52.1.
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A.

Medical Care

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A prisoner’s claim of inadequate medical care does not constitute cruel and unusual

8 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of
9 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
10 2006)(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate
11 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure
12 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and
13 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately
14 indifferent.” Jett, 439 F.3d at 1096. A defendant does not act in a deliberately indifferent
15 manner unless the defendant “knows of and disregards an excessive risk to inmate health or
16 safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference is a high legal
17 standard,” Simmons v. Navajo County Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v.
18 Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or
19 failure to respond to a prisoner’s pain or possible medical need” and the indifference caused
20 harm. Jett, 439 F.3d at 10986.
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In applying this standard, the Ninth Circuit has held that before it can be said that a

22 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
23 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
24 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)(citing
25 Estelle, 429 U.S. at 105-106). “[A] complaint that a physician has been negligent in diagnosing
26 or treating a medical condition does not state a valid claim of medical mistreatment under the
27 Eighth Amendment. Medical malpractice does not become a constitutional violation merely
28 because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern,

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1 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate
2 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.
3 1990).

Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not

4 support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
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In the order dismissing the first amended complaint, the Court noted that Plaintiff

6 demonstrated that he had a serious medical need because he was suffering excruciating
7 headaches and esophageal, intestinal and rectal pains. However, Plaintiff failed to allege facts
8 showing that any of the defendants were deliberately indifferent to his serious medical needs.
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1.

Dr. Clark

In the order dismissing the first amended complaint, the Court noted that Plaintiff had not

11 shown that Dr. Clark acted, or failed to act, while knowing about and deliberately disregarding a
12 substantial risk of serious harm to Plaintiff’s health. Plaintiff alleged that Dr. Clark knew he had
13 a serious medical need. Dr. Clark met with Plaintiff, examined him, and prescribed a nutritional
14 supplement, Nutren. Dr. Clark refused to reinstate the prescription after Plaintiff alleged that the
15 supplement was being tainted by nurses before being given to him. The Court noted that such
16 conduct did not amount to deliberate indifference under the Eighth Amendment. The Court
17 found that Plaintiff’s conclusory language that “Dr. Clark, as a medical professional, knew
18 Plaintiff faced a threat of serious injury to his health, but deliberately disregarded it and elected
19 not to provide the Nutren” was insufficient to state a claim for deliberate indifference.
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In the second amended complaint, Plaintiff alleges generally that he informed Dr. Clark,

21 along with Defendants Bandoc, Branson, Schultz “and other Corcoran medical staff” about his
22 suffering, and requesting “evaluative tests to confirm the presence of pain-causing chemical
23 substances in my anatomical system,” and requesting medical care. (Second Am. Compl. ¶ 20.)
24 Although Plaintiff alleges that “they” denied his request for testing and refused to accept the
25 declarations of other prisoners, they did take his blood pressure, provided him with
26 gastrointestinal remedies and “otherwise try to intentionally minimize and/or entirely suppress
27 my allegations that c/o’s were tainting my meals.” (Id.) Plaintiff alleges that prior to 2009, Dr.
28 Clark did examine and treat him, but was careful to avoid any treatment or medicine that would

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1 lend credence to Plaintiff’s allegations of harassment. (Id. ¶ 21.)
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Plaintiff alleges that in May of 2009, Defendant Clark expressed his belief that Plaintiff’s

3 food was being tainted and his frustration at his inability to help Plaintiff. Dr. Clark did provide
4 Plaintiff with Nutren, conditioned on Plaintiff’s promise that he not tell any inmates or staff that
5 he did so. Plaintiff alleges that “Nutren was the best solution of many approaches taken to
6 protect me thereto, because it was far less expensive than most of the ‘medications’ his
7 subordinates had prescribed.” (Id. ¶ 28.)
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On July 16, 2009, Plaintiff filed another grievance, contending that Defendants Amrhein,

9 Bandoc and Schultz conspired “to participate in a scheme designed to subject me to the brutal,
10 wanton, and unnecessary cruelty of the c/o’s that they knew I would suffer after they cancelled
11 the Nutren.” (Id. ¶ 35.) Defendant Clark heard Plaintiff’s grievance, and warned Plaintiff not to
12 “make waves” and let custody know that he had prescribed the Nutren. Plaintiff explained that
13 he did tell custody, but nobody else, and refused to drop his grievance.” (Id. ¶ 36.)

Plaintiff

14 alleges generally that Clark, along with Defendants Amrhein, Bandoc and Schultz were
15 medically trained and were aware that Plaintiff was being subjected to “brutal, wanton,
16 cancellation” of his Nutren.” (Id. ¶ 39.)
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The Court finds that Plaintiff has failed to cure the defects identified in the order

18 dismissing the first amended complaint as to Defendant Dr. Clark. Plaintiff’s second amended
19 complaint includes a rambling narrative that concludes that Dr. Clark was deliberately indifferent
20 to his serious medical needs. Plaintiff fails, however, to allege specific facts indicating that Dr.
21 Clark knew of and disregarded a serious medical need of Plaintiff’s. Plaintiff’s central grievance
22 is the cancellation of his canned Nutren. Plaintiff, who is not a medical professional, does not
23 allege any facts indicating that Dr. Clark wholly failed to address Plaintiff’s medical needs. The
24 second amended complaint alleges that Plaintiff was treated with medication and
25 “gastrointestinal remedies.” That Dr. Clark prescribed Nutren then cancelled the prescription
26 does not constitute deliberate indifference. As noted above, a disagreement with diagnosis or
27 treatment does not support a claim of deliberate indifference.

Sanchez, 891 F.2d at 242.

28 Plaintiff has been afforded an opportunity to cure the defects identified in the order dismissing

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1 the first amended complaint. Plaintiff has failed to do so, and the Court will recommend that
2 Defendant Clark be dismissed.
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2.

Defendants Amrhein, Bandoc and Schultz

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Plaintiff alleges that Defendants Amrhein, Bandoc (nurses) and Schultz (dietitian)

5 subjected Plaintiff to deliberate indifference by cancelling his prescription for Nutren. In the
6 order dismissing the first amended complaint, the Court noted Plaintiff failed to allege any facts
7 indicating that any of these Defendants cancelled the prescription knowing that their actions
8 would subject Plaintiff to a substantial risk of serious harm to his health.
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In the second amended complaint, Plaintiff again sets forth generalized allegations as to

10 these Defendants. Plaintiff alleges that on “numerous occasions,” he met with these Defendants,
11 explained his symptoms and presented them with written declarations of other inmates who
12 experienced similar symptoms. Plaintiff alleges that “on each of the many (more than ten)
13 occasions that I informed Defendants about my suffering,” Defendants denied Plaintiff’s request
14 for medical evaluations and instead provided him with “gastrointestinal remedies” and tried to
15 “minimalize and/or entirely suppress my allegation that c/o’s were tainting my meals.” (Second
16 Am. Compl. ¶¶ 19, 20.)
17

Plaintiff alleges that Defendant Bandoc, along with “medical staff,” examined Plaintiff

18 prior to January of 2009, and “were consciously-careful to avoid prescribing me any treatment or
19 medicine that, ultimately, might lend credence or support to my allegation of c/o harassment of
20 my (and other inmate’s) meals, prescribed me a number of medications, for pain, acid-reflux
21 disease, irritable-bowel syndrome, ulcers, as well as a similarly vast number of ‘over-the22 counter-type’ medications to provide superficial and inadequate treatment for the broad range of
23 ailments” suffered by Plaintiff. (Id. ¶ 21.)

The second amended complaint consists of vague

24 and conclusory allegations that defendants in general knew of Plaintiff’s painful symptoms, yet
25 failed to offer the treatment that, in Plaintiff’s view, was the appropriate treatment. Plaintiff
26 alleges that treatment was provided, but was not the type of treatment he wanted. As with Dr.
27 Clark, Plaintiff fails to allege any facts suggesting a lack of treatment, or any facts indicating that
28 Defendants Amrhein, Bandoc and Schultz knew of a particular danger to Plaintiff’s health and

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1 was deliberately indifferent to that danger. These Defendants should therefore be dismissed.
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3.

Defendant Branson

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Although Plaintiff does not name Branson as a Defendant in either the form pleading or

4 narrative second amended complaint, he does refer to a Defendant Branson in his statement of
5 facts. Plaintiff alleges that prison policy required Branson “to respond to the prisoner’s housing
6 area to evaluate him and make a determination whether or not that prisoner should be escorted to
7 the prison hospital for further examination.” Plaintiff vaguely refers to prisoner complaints of
8 chest pains. (Id. ¶ 22.) Plaintiff also alleges that “LVN’s, including but not limited to, Defendant
9 Branson . . . act as Gate-Keepers to deny inmates, including Plaintiff, access to the more
10 thorough examinations, evaluations, and myriad other potential treatment regimens available to
11 inmates suffering from chest-pains at the hospital-locale, but not otherwise available in the
12 housing areas, by presenting said such inmates with biased examinations to support arbitrarily
13 arrived-at evaluative findings that precluded any need that said such inmates be escorted to the
14 hospital from our housing-areas.” (Id. ¶ 23.)
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Plaintiff alleges in general that he routinely presented his complaints to Defendants and

16 other prison staff as “a generalized chest-pain” complaint, until such time as he arrived at the
17 prison hospital, at which time he would “more fully explain my symptoms and/or sensations to
18 medical staff there.” (Id. ¶ 25.)

Plaintiff does not allege any facts indicating that Defendant

19 Branson knew of a particular instance of chest pain and was deliberately indifferent to it.
20 Plaintiff’s allegations indicate, at most, routine complaints of chest pain, at which time he was
21 taken to the prison hospital and more fully evaluated. In order to hold Defendant Branson liable,
22 Plaintiff must allege facts indicating that Defendant Branson knew of a specific risk to Plaintiff’s
23 health and was deliberately indifferent to that risk, causing injury to Plaintiff. Plaintiff has failed
24 to do so. Defendant Branson should therefore be dismissed.
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B.

Retaliation

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A plaintiff may state a claim for a violation of his First Amendment rights due to

27 retaliation under section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable
28 claim of retaliation in violation of the First Amendment consists of five elements:” “(1) an

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1 assertion that a state actor took some adverse action against an inmate (2) because of (3) that
2 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First
3 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”
4 Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005); accord Watison v. Cartier, 668 F.3d
5 1108, 1114 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 169 (9th Cir. 2009).
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1.

Defendants Amrhein, Bandoc and Schultz

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In the first amended complaint, Plaintiff claimed that Defendants Amrhein, Bandoc and

8 Schultz retaliated against him when they cancelled his prescription for Nutren after he filed an
9 appeal against the nurses. Plaintiff alleged that he filed an inmate appeal on May 9, 2009,
10 complaining that the nurses were opening and tainting his nutritional supplement, Nutren, before
11 it was given to him. Plaintiff alleges that after he refused to withdraw the appeal, Defendants
12 Amrhein, Bandoc and Schultz cancelled his Nutren prescription.
13

In the order dismissing the first amended complaint, the Court found that Plaintiff failed

14 to state a cognizable claim for retaliation against the nurses and dietitian because he failed to
15 show that cancelling the Nutren prescription was an adverse action against him. If the Nutren
16 was being tainted, as Plaintiff alleged, then preventing the consumption of Nutren was an action
17 that was beneficial, not adverse, to Plaintiff. Further, cancelling medication that Plaintiff alleged
18 was being tainted is not an action that would chill or silence Plaintiff from filing more appeals.
19 Plaintiff fails to correct this deficiency in the second amended complaint.

The essential

20 allegations are the same – that Plaintiff was provided a prescription for Nutren, that it was
21 tainted, and that the prescription was cancelled. Plaintiff sets forth his allegations in a different
22 narrative format, but the allegations remain the same.

Plaintiff’s retaliation claim should

23 therefore be dismissed as to Defendants Amrhein, Bandoc and Schultz.
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2.

Defendant Clark

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Plaintiff claims that Dr. Clark retaliated against him because he filed an appeal against

26 the nurses. Plaintiff alleges that on July 16, 2009, he filed an inmate appeal alleging that the
27 nurses had cancelled his prescription against doctor’s orders. After filing the appeal, Plaintiff
28 met with Dr. Clark and complained about the cancellation. Dr. Clark told Plaintiff he should not

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1 have filed the appeal. Dr. Clark refused to reinstate the prescription.
2

In the order dismissing the first amended complaint, the Court noted that Plaintiff failed

3 to state a claim against Dr. Clark for retaliation because Plaintiff failed to show the requisite
4 causal connection between his appeal against the nurses and Dr. Clark’s refusal to reinstate the
5 prescription. Plaintiff fails to cure this defect in the second amended complaint. Plaintiff simply
6 concludes that Dr. Clark retaliated against him because of his appeal. Plaintiff fails to allege any
7 specific facts indicating a causal connection between his appeal against the nurses and Dr.
8 Clark’s decision to reinstate the prescription. Dr. Clark should therefore be dismissed.
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3.

Defendants Austin, Wilson and Yzguerra

Plaintiff claims that Defendants Austin, Wilson and Yzguerra retaliated against him when

11 they refused to transport Plaintiff to his off-site medical appointment after Plaintiff threatened to
12 file an appeal against them for transporting him so early in the morning. In the order dismissing
13 the first amended complaint, the Court noted that Plaintiff failed to allege facts showing that
14 Yzguerra acted against him, or that there was a causal connection between Yzguerra’s conduct
15 and Plaintiff’s litigation activities.
16

In the second amended complaint, Plaintiff restates his allegations that Defendants

17 Austin, Wilson and Yzguerra conspired to deny him transportation to his medical appointment.
18 Plaintiff specifically alleges that Wilson suggested that “it’s early enough for us to get that other
19 transport with more hours so why put up with this guy’s s***, we’ve got his number, he sues
20 everybody that looks at him wrong . . . Let’s keep this s*** in the gate. I suggest we haul his
21 ass back to his house and see what else we can get before all the best jobs are taken.” (Second
22 Am. Compl. ¶ 46.)

“Defendants Austin, Wilson and Yzguerra agreed, in front of me, that

23 Austin and Wilson should return me to my cell.” (Id.) Plaintiff was returned to his cell, and had
24 to re-initiate the process for getting an outside medical appointment, which took a month.
25

The Court finds that Plaintiff has cured the defects identified in the earlier order. Plaintiff

26 has alleged facts indicating that Defendants agreed to return Plaintiff to his cell instead of taking
27 him to his medical appointment because of his litigiousness. Plaintiff therefore states a claim
28 against Defendants Austin, Wilson and Yzguerra for retaliation.

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C.

Due Process

2

The Due Process Clause of the Fourteenth Amendment protects prisoners from being

3 deprived of life, liberty or property without due process of law. Wolff v. McDonnell, 418 U.S.
4 539, 556 (1974). In order to state a cause of action for deprivation of procedural due process, a
5 plaintiff must first establish the existence of a liberty interest for which the protection is sought.
6 Liberty interests may arise from the Due Process Clause itself of from state law. Hewitt v.
7 Helms, 459 U.S. 460, 466-68 (1983). With respect to liberty interests arising from state law, the
8 existence of a liberty interest created by prison regulations is determined by focusing on the
9 nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Liberty interests
10 created by prison regulations are limited to freedom from restraint which “imposes atypical and
11 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484.
12

Plaintiff claims that his right to due process was violated because he was not provided

13 with a meaningful inmate appeals process. Defendants’ actions in responding to Plaintiff’s
14 appeals, alone, cannot give rise to any claims for relief under section 1983 for violation of due
15 process. “[A prison] grievance procedure is a procedural right only, it does not confer any
16 substantive right upon the inmate.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)(citing
17 Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d
18 850, 860 (9th Cir. 2003)(no liberty interest in processing of appeals because no entitlement to a
19 specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)(existence of
20 grievance procedure confers no liberty interest in prisoner); Mann v. Adams, 855 F.2d 639, 640
21 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty interest requiring the
22 procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568 F. Supp. At 10;
23 Spencer v. Moore, 638 F. Supp. 315, 316 (E. D. Mo. 1986). Actions in reviewing a prisoner’s
24 administrative appeal, without more, are not actionable under section 1983. Buckley, 997 F.2d
25 at 495. Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals,
26 Plaintiff fails to state a cognizable claim for the processing and/or reviewing of his 602 inmate
27 appeals.
28

D.

Conspiracy

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1

In the order dismissing the first amended complaint, Plaintiff was advised that in the

2 context of conspiracy claims brought pursuant to section 1983, a complaint must “allege [some]
3 facts to support the existence of a conspiracy among the defendants.” Buckey v. County of Los
4 Angeles, 968 F.2d 791, 794 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police Department,
5 839 F.2d 621, 626 (9th Cir. 1988). Plaintiff must allege that defendants conspired or acted
6 jointly in concert and that some over act was done in furtherance of the conspiracy. Plaintiff
7 must allege that defendants conspired or acted jointly in concert and that some over act was done
8 in furtherance of the conspiracy. Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974).
9

A conspiracy claim brought under section 1983 requires proof of “an agreement or

10 meeting of the minds to violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th
11 Cir. 2001)(quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41
12 (9th Cir. 1989)(citation omitted), and an actual deprivation of constitutional rights, Hart v. Parks,
13 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866
14 F.2d 1121, 1126 (9th Cir. 1989)). “To be liable, each participant in the conspiracy need not
15 know the exact details of the plan, but each participant must at least share the common objective
16 of the conspiracy.” Franklin, 312 F.3d at 441(quoting United Steel Workers, 865 F.2d at 1541).
17

In the second amended complaint, Plaintiff restates his allegations that Defendants

18 Austin, Wilson and Yzguerra conspired to deny him transportation to his medical appointment.
19 Plaintiff specifically alleges that Wilson suggested that “it’s early enough for us to get that other
20 transport with more hours so why put up with this guy’s s***, we’ve got his number, he sues
21 everybody that looks at him wrong . . . Let’s keep this s*** in the gate. I suggest we haul his
22 ass back to his house and see what else we can get before all the best jobs are taken.” (Second
23 Am. Compl. ¶ 46.)

“Defendants Austin, Wilson and Yzguerra agreed, in front of me, that

24 Austin and Wilson should return me to my cell.” (Id.) Plaintiff was returned to his cell, and had
25 to re-initiate the process for getting an outside medical appointment, which took a month.
26

As noted above, in order to state a claim for conspiracy, Plaintiff must allege facts

27 indicating an actual deprivation of a constitutional right. The right at issue here is the delay in
28 Plaintiff’s medical appointment. A delay in providing medical care does not constitute deliberate

13

1 indifference unless an inmate suffers significant harm as a result of the delay. Hallett v. Morgan,
2 296 F.3d 732, 745-46 (9th Cir. 2002). To establish deliberate indifference based on a delay in
3 medical treatment, Plaintiff must show the delay itself caused harm. Berry v. Bunnell, 39 F.3d
4 1056, 1057 (9th Cir. 1994).
5

Plaintiff alleges that the approximately one month delay in being seen by a cardiac

6 specialist resulted in “severe chronic pains derived from my doctor’s stated unwillingness to
7 adopt any treatment options for the pain until they had a brief and medical analysis from the
8 cardiac specialist upon which they might better inform any course of treatment.” (Second. Am.
9 Compl. ¶ 49.)

Plaintiff does not allege any facts indicating that he suffered from a specific

10 cardiac condition, or any facts indicating that a medical professional diagnosed any injury as a
11 result of the delay in seeing a cardiac specialist. There are no facts alleged indicating that the
12 Defendant transportation officers knew of a serious risk to Plaintiff’s health. The allegations of
13 the second amended complaint indicate that Plaintiff constantly suffered from the alleged lack of
14 Nutren, and not from a diagnosed cardiac condition. The second amended complaint alleges that
15 Plaintiff routinely complained of chest pains, but does not allege any facts indicating that any of
16 the named Defendants, or any other medical staff, diagnosed Plaintiff with a cardiac condition
17 necessitating any particular treatment. Plaintiff alleges, at most, that he was sent out for a
18 cardiac consultation to help diagnose Plaintiff’s condition.

The allegations of the second

19 amended complaint indicate that Plaintiff was eventually seen by a specialist, but does not allege
20 what that specialist discovered. Specifically, there are no allegations that Plaintiff was diagnosed
21 with any injury that was caused by the delay. Plaintiff therefore fails to allege facts stating a
22 claim for an Eighth Amendment violation against Defendants Austin, Wilson and Yzguerra.
23 Because Plaintiff was not actually deprived of a constitutional right, Defendants are not liable for
24 conspiracy to violate Plaintiff’s constitutional rights.
25

E.

California Civil Code

26

Plaintiff alleges a claim for violation of California Civil Code § 52.1, which authorizes a

27 claim for relief “against anyone who interferes, or tries to do so, by threats, intimidation, or
28 coercion, with individual’s exercise or enjoyment of rights secured by federal or state law.”

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1 Jones v. Kmart Corp., 17 Cal. 4th 329, 331 (1998). A claim under section 52.1 requires “an
2 attempted or completed act of interference with a legal right, accompanied by coercion.” Id. at
3 334. Plaintiff has not alleged any facts demonstrating that he was threatened, intimidated or
4 coerced during the interference with his First Amendment rights. Therefore, Plaintiff fails to
5 state a cognizable claim for violation of section 52.1.
6

F.

Negligence

7

Plaintiff claims that Defendants Amrhein, Austin, Branson, Bandoc, Clark, Schultz,

8 Wilson and Yzguerra owed a duty of care to Plaintiff and as a direct and proximate result of their
9 violations of his rights as alleged in the complaint, each Defendant breached their duty, resulting
10 in injury to Plaintiff.
11

As to Defendants Amrhein, Branson, Bandoc, Clark and Schultz, the federal claims

12 against them have been dismissed. Supplemental jurisdiction in federal question cases extends to
13 claims by any party that are sufficiently related to the federal claim to be a part of the “same case
14 or controversy.” 28 U.S.C. § 1367(a). The “common nucleus of operative facts” test is the
15 standard for supplemental jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 725
16 (1966). Here, Plaintiff sets forth two distinct “nuclei” of operative facts. The central grievance
17 in this action as to Defendants Amrhein, Branson, Bandoc, Clark and Schultz is the failure of
18 medical officials to provide Nutren for Plaintiff, and their decision to discontinue it. The
19 decision to not transport Plaintiff to a medical appointment because of his litigious history is
20 separate and apart from Plaintiff’s medical claims. The Court therefore declines to exercise
21 supplemental jurisdiction over Plaintiff’s negligence claim against Defendants Amrhein,
22 Branson, Bandoc, Clark and Schultz. The negligence claim against Defendants Austin, Wilson
23 and Yzguerra survives.
24 IV

Conclusion.

25

The February 23, 2015, second amended complaint states a claim for relief against

26 Defendants Austin, Wilson and Yzguerra for retaliation in violation of the First Amendment and
27 state law negligence. The second amended complaint fails to state a claim for relief on any of
28 Plaintiff’s remaining claims.

The order dismissing the first amended complaint provided

15

1 Plaintiff with notice of the deficiencies and granted Plaintiff an opportunity cure the deficiencies
2 identified in that order. The Court therefore will recommend dismissal of the remaining claims
3 and Defendants with prejudice.

See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.

4 1992)(dismissal with prejudice upheld where court had instructed plaintiff regarding deficiencies
5 in prior order dismissing claim with leave to amend).
6

Accordingly, IT IS HEREBY RECOMMENDED that:

7

1.

This action proceed on the February 23, 2015, second amended complaint

8

against Defendants Austin, Wilson and Yzguerra on Plaintiff’s claims of

9

retaliation in violation of the First Amendment and Plaintiff’s state law
negligence;

10
11

2.

Plaintiff’s claims of Eighth Amendment deliberate indifference, Due Process,
Conspiracy, and California Civil Code Section 52.1 be dismissed;

12
13

3.

Defendants Amrhein, Bandoc, Clark, Schultz and Branson be dismissed.

14

These findings and recommendations will be submitted to the United States District

15 Judge assigned to the case, pursuant to the provision of Title 28 U.S.C. (b)(1). Within fourteen
16 (14) days after being served with these Finding and Recommendations, the parties may file
17 written objections with the Court. The document should be captioned “Objections to Findings
18 and Recommendations.”

The parties are advised that failure to file objections within the

19 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d
20 834, 838-39 (9th Cir. 2014)(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
21
22
23
24

IT IS SO ORDERED.
Dated:

/s/ Barbara

September 22, 2015

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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