Clation v. Pendleton et al

Filing 19

FINDINGS and RECOMMENDATIONS Recommending that this 14 Case be Dismissed, with Prejudice, for Failure to State a Claim; Objections, if any, Due within Thirty Days signed by Magistrate Judge Gary S. Austin on 2/24/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 3/31/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TYRONE CLATION,

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Plaintiff,

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vs.

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C. PENDLETON, et al.,

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Defendants.

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I.

1:12-cv-01974-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(Doc. 14.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

BACKGROUND

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Tyrone Clation ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on December 4, 2012. (Doc. 1.) The court screened the Complaint

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pursuant to 28 U.S.C. 1915A and issued an order on April 22, 2013, dismissing the Complaint

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for failure to state a claim, with leave to amend. (Doc. 12.) On May 28, 2013, Plaintiff filed

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the First Amended Complaint, which is now before the court for screening. (Doc. 14.)

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II.

SCREENING REQUIREMENT

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or
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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

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state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this

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plausibility standard. Id.

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at the R.J. Donovan Correctional Facility in San

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Diego, California. The events at issue in the First Amended Complaint allegedly occurred at

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the California Correctional Institution in Tehachapi, California, when Plaintiff was incarcerated

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there. Plaintiff names as defendants Correctional Officer (C/O) Carla Pendleton, C/O Shane

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Thomas, C/O Solis, C/O Hector Dotson, Charles Reinhold (medical staff), and Sergeant Luis

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Haskell (collectively, “Defendants”). Plaintiff’s statement of claim consists of the following, it

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its entirety:

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“C/O’s Carla Pendleton, Shane Thomas & C/O Solis all have Personal
Involvement in failing to summons Mental Health Staff & Under the Color of
State Law Carla Pendleton, Shane Thomas & C/O Solis are directly involve[d]
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in assaulting me w Pepper Spray and Making false Report of Incident without
affording Decontamination. Sgt. Luke Haskell in his official Capacity Arrived
on the Scene of the Incident on 10-10-2010 and Order[ed] the Medical Staff
Charles Reinhold to not afford decontamination. Assisted C/O’s in their Peace
Officer Perjury & Fake Reports, Negligence or Deliberately Indifferent &
failure to Summons Mental Health Physician. MTA Charles Reinhold has failed
to act to afford Inmate Decontamination and to Summons Roth Medical Mental
Health Treatment Care and Physicians stemming from the 10-10-2010 incident.
The[re] may be other unknown Violations These Parties are involved in
Regarding this Incident in Tehachapi Prisons 4A 8 Block on the date of October
10, 2010 Just Around 5:45pm. There are Departmental Due Process Violations
Plaintiff has been deprived of by CDC Rule Violation Reports & Departmental
Disciplinary Hearing officers & Staff.”

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First Amended Complaint at 3 ¶IV. Plaintiff requests monetary damages.

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IV.

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PLAINTIFF=S CLAIMS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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A.

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The court finds the allegations in Plaintiff's First Amended Complaint to be vague and

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conclusory. Although the Federal Rules adopt a flexible pleading policy, a complaint must

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give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community

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Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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sufficient facts showing personal acts or failure to act by any of the Defendants to give rise to

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any cognizable claim for relief under section 1983. As discussed above, A[t]hreadbare recitals

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of the elements of a cause of action, supported by mere conclusory statements, do not suffice.@

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Iqbal, 556 U.S. at 678.

Vague and Conclusory Allegations

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In short, Plaintiff has not alleged

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B.

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A[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 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)).

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The two-part test for deliberate indifference requires the plaintiff to show (1) A>a serious

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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) Athe

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defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations

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omitted)). Deliberate indifference is shown by Aa purposeful act or failure to respond to a

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prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing

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McGuckin, 974 F.2d at 1060).

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officials deny, delay or intentionally interfere with medical treatment, or it may be shown by

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the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a

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delay in receiving medical treatment, the delay must have led to further harm in order for the

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prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at

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1060 (citing Shapely v. Nevada Bd. of State Prison Comm=rs, 766 F.2d 404, 407 (9th Cir.

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1985)).

Eighth Amendment Medical Claim

Deliberate indifference may be manifested Awhen prison

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ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the

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facts from which the inference could be drawn that a substantial risk of serious harm exists,= but

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that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

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825, 837, 114 S.Ct. 1970 (1994)). A>If a prison official should have been aware of the risk, but

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was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir.

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2002)).

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constitutional deprivation under the Eighth Amendment. Id. at 1060. A[E]ven gross negligence

AA showing of medical malpractice or negligence is insufficient to establish a

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is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900

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F.2d 1332, 1334 (9th Cir. 1990)).

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AA difference of opinion between a prisoner-patient and prison medical authorities

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regarding treatment does not give rise to a ' 1983 claim.@ Franklin v. Oregon, 662 F.2d 1337,

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1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff Amust show that the course

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of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . .

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that they chose this course in conscious disregard of an excessive risk to plaintiff=s health.@

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

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Plaintiff alleges that he was assaulted by Defendants with pepper spray, demonstrating

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that he had a serious medical need for decontamination, and alleges that medical staff was told

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not to allow him to decontaminate. However, Plaintiff fails to allege facts showing that any of

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the Defendants were deliberately indifferent to those needs or that any harm resulted. Plaintiff

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fails to show that any of the Defendants acted or failed to act while deliberately disregarding a

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substantial risk of harm to Plaintiff.

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Plaintiff also alleges that Defendants failed to summons mental health staff for Plaintiff.

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However, there are no facts demonstrating that Plaintiff had a serious medical need which

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required the assistance of mental health staff, or that any of the Defendants were deliberately

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indifferent in failing to act.

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Based on the foregoing, Plaintiff fails to state a cognizable medical claim upon which

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he may proceed.

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C.

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The Due Process Clause protects prisoners from being deprived of liberty without due

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process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of

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action for deprivation of procedural due process, a plaintiff must first establish the existence of

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a liberty interest for which the protection is sought. Liberty interests may arise from the Due

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Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). With

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respect to liberty interests arising from state law, the existence of a liberty interest created by

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prison regulations is determined by focusing on the nature of the deprivation. Sandin v.

Due Process

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Conner, 515 U.S. 472, 481-84 (1995). Liberty interests created by prison regulations are

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limited to freedom from restraint which Aimposes atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life.@ Id. at 484.

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Plaintiff claims that Defendants violated his rights to due process in making a false

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Rules Violation Report (RVR) against him and conducting a disciplinary hearing. However,

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Plaintiff has not alleged facts demonstrating that he was deprived of any protected interest

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which entitled him to due process protections under federal law. Therefore, Plaintiff fails to

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state a claim for violation of due process.

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D.

Negligence

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Plaintiff also brings a claim for negligence, which is a state tort. Plaintiff is informed

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that violation of state tort law is not sufficient to state a claim for relief under ' 1983. To state

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a claim under ' 1983, there must be a deprivation of federal constitutional or statutory rights.

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See Paul v. Davis, 424 U.S. 693 (1976). Although the court may exercise supplemental

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jurisdiction over state law claims, Plaintiff must first have a cognizable claim for relief under

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federal law. See 28 U.S.C. ' 1367. In this instance, the Court fails to find any cognizable

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federal claims in the First Amended Complaint. Therefore, Plaintiff=s claim for negligence

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fails.

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E.

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AWhat is necessary to show sufficient harm for purposes of the Cruel and Unusual

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Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .@ Hudson

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v. McMillian, 503 U.S. 1, 8 (1992). AThe objective component of an Eighth Amendment claim

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is . . . contextual and responsive to contemporary standards of decency.@ Id. (internal quotation

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marks and citations omitted). The malicious and sadistic use of force to cause harm always

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violates contemporary standards of decency, regardless of whether or not significant injury is

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evident.

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Amendment excessive force standard examines de minimis uses of force, not de minimis

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injuries)). However, not Aevery malevolent touch by a prison guard gives rise to a federal cause

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of action.@ Id. at 9. AThe Eighth Amendment=s prohibition of cruel and unusual punishments

Excessive Force

Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth

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necessarily excludes from constitutional recognition de minimis uses of physical force,

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provided that the use of force is not of a sort >repugnant to the conscience of mankind.@ Id. at

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9-10 (internal quotations marks and citations omitted).

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A[W]henever prison officials stand accused of using excessive physical force in

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violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically to cause harm.@ Id. at 7. AIn determining whether the use of force was wanton and

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unnecessary, it may also be proper to evaluate the need for application of force, the relationship

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between that need and the amount of force used, the threat reasonably perceived by the

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responsible officials, and any efforts made to temper the severity of a forceful response.@ Id.

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(internal quotation marks and citations omitted). AThe absence of serious injury is . . . relevant

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to the Eighth Amendment inquiry, but does not end it.@ Id.

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Plaintiff alleges that Defendants assaulted him with pepper spray. However, Plaintiff

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fails to allege facts describing the circumstances under which the pepper spray was used against

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him. Plaintiff fails to demonstrate whether force was applied against him in a good-faith effort

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to maintain or restore discipline, or maliciously and sadistically to cause harm.

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additional facts, Plaintiff is unable to state a cognizable claim for use of excessive force by any

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of the Defendants.

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V.

Without

CONCLUSION AND RECOMMENDATIONS

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The Court finds that Plaintiff=s First Amended Complaint fails to state any cognizable

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claims upon which relief may be granted under ' 1983. In this action, the Court previously

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granted Plaintiff an opportunity to amend the complaint, with ample guidance by the Court.

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Plaintiff has now filed two complaints without alleging facts against any of the Defendants

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which state a claim under ' 1983. The Court finds that the deficiencies outlined above are not

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capable of being cured by amendment, and therefore further leave to amend should not be

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granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Therefore, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A

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and 28 U.S.C. ' 1915(e), this action be dismissed with prejudice for failure to state a claim
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upon which relief may be granted under ' 1983, and that this dismissal be subject to the Athree-

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strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th

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Cir. 2011).

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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thirty (30) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the court. The document should be captioned AObjections to

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Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court=s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

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February 24, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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