Wooten v. California Dept. of Corrections et al

Filing 7

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 05/08/2013. (21) DAY DEADLINE(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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CALIFORNIA DEP’T OF CORRECTIONS, )
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et al.
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Defendants.
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GREGORY E. WOOTEN,

Case No.: 1:13-cv-00570 JLT (PC)
ORDER DISMISSING THE COMPLAINT WITH
LEAVE TO AMEND
(Doc. 1)

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Plaintiff Gregory E. Wooten (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff initiated this

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matter on April 22, 2013. Id. As required, the Court screens the complaint pursuant to 28 U.S.C. §

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1915A, and for the following reasons, the Court ORDERS that Plaintiff’s complaint be DISMISSED.

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I.

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Because Plaintiff is seeking redress from governmental employees in a civil action, the Court is

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required to screen his complaint in order to identify cognizable claims. 28 U.S.C. § 1915A(a)-(b).

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The Court shall “dismiss the complaint, or any portion of the complaint, if the complaint (1) is

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frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary

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relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. §

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1915(e)(2)(B)(i)-(iii).

SCREENING REQUIREMENT

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II.

PLEADING STANDARDS
A.

Fed. R. Civ. P. 8(a)

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“Pro se documents are to be liberally construed” and “‘must be held to ‘less stringent standards

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than formal pleadings drafted by lawyers.’” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “[They] can only be dismissed for failure to state a

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claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim

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which would entitle him to relief.’” Id. Under Federal Rule of Civil Procedure 8(a), “[a] pleading that

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states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court’s

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jurisdiction, . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to

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relief; and (3) a demand for the relief sought.” Fed. R. Civ. P. 8(a). Each allegation must be simple,

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concise, and direct. Fed. R. Civ. P. 8(d)(1). While a complaint “does not need detailed factual

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allegations, a plaintiff’s obligation to provide the ‘grounds’ of his entitlement to relief requires more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations

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omitted).

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In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all non-

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conclusory factual allegations as true, and determines whether those non-conclusory factual

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allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556

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U.S. 662, 676-684 (2009). “The plausibility standard is not akin to a probability requirement, but it

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asks for more than a sheer possibility that a defendant has acted unlawfully.” (Id. at 678) (internal

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quotation marks and citation omitted). In determining plausibility, the Court is permitted “to draw on

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its judicial experience and common sense.” Id. at 679.

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B. 42 U.S.C. § 1983

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In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he

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suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that

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the violation was proximately caused by a person acting under color of state law. See Crumpton v.

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Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a

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plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act,
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or omitted to perform an act which he was legally required to do that caused the deprivation

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complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588

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F.2d 740, 743-44 (9th Cir. 1978)).

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III.

COMPLAINT

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Plaintiff currently resides at Kern Valley State Prison in Delano, California, but his cause of

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action arose during his incarceration at the California Correction Center located in Susanville,

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California. (Doc. 1 at 1). Plaintiff names the following state agencies and individuals as Defendants in

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this matter: (1) the California Department of Corrections and Rehabilitation (“CDCR”), (2) the CCC-

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Susanville, (3) the California Correctional Health Care Services (“CCHCS”), (4) J.D. Lozano, Chief of

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the CDCR Office of Inmate Appeals, (5) R. Fredrickson, a senior psychologist at CCHCS, and (6) D.

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Swingle, the Chief Medical Executive at CCHCS. Id. at 1-2. The following staff members at CCC-

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Susanville are also joined as Defendants: (1) Warden Mullin, (2) Assistant Warden R. Gower, (3)

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Lieutenant (“Lt.”) P. Spoak, (4) Correctional Officer Delgado, (5) Correctional Officer Tisdal, (6)

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Appeals Coordinator K. Henderson, and (7) Correctional Officer Chandler. Id. at 2. Plaintiff seeks

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recompense in the amount of $20,000,000.00. Id. at 3.

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The 4-page complaint fails to set forth any statement of facts. See Id. at 1-4. Rather, Plaintiff

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refers the Court to Exhibits A-1 through F-7, which consists of 44-pages of haphazardly attached

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documents that do not constitute a statement of facts. Id. at 5-48. It appears that Plaintiff believes the

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Court will interpret the facts of his case from these exhibits; not so. Although Plaintiff may present

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exhibits to the Court at a later time, he need not attach exhibits to the complaint. Plaintiff is advised

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that he SHALL set forth a concise statement of facts in his amended complaint to explain the “who,

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what, when, where, how and why” of his claim such to demonstrate why he believes a state actor

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violated his constitutional rights. Fed. R. Civ. P. 8(a); Martin v. Sullivan, Case Number 06-CV-00972-

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OWW-DLB (PC), 2007 WL 613899, at * 2 (E.D. Cal. 2007).

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Nonetheless, the Court has reviewed the exhibits and the apparent claims contained in the

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complaint. Seemingly, Plaintiff alleges retaliation for witnessing prison officials’ disrespect of his

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cellmate Antoine Medina. (Doc. 1 at 5-6). Plaintiff filed complaints concerning the disappearance of

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his legal mail, nine film scripts, and two plays. Id. at 7. Prison officials generally denied Plaintiff
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access to mental healthcare and he suffers from paranoia, depression, and suicidal thoughts. Doc. 1 at

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IV.

DISCUSSION AND ANAYLSIS

A. State agencies and officials sued in their official capacity are not “persons” within the

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meaning of 42 U.S.C. § 1983.

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Generally, a state or state official sued in his or her official capacity are not “persons” under 42

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U.S.C. § 1983.1 Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007). The Eleventh Amendment

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serves as a jurisdictional bar to suits brought by private parties against a state or state agency, unless

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the state consents to the suit. See Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999) (“In

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the absence of a waiver by the state . . . under the [E]leventh [A]mendment, agencies of the state are

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immune from private damage actions or suits for injunctive relief brought in federal court.”) (internal

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quotations omitted). Similarly, suing a state official in his or her official capacity is analogous to

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suiting the state itself. Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007)(quoting Will v. Mich.

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Dep’t of State Police, 491 U.S. 58, 71 (1989).

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Plaintiff brings suit against the CDCR, a state agency, CCC, a state prison, and CCHCS, all of

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which are state entities immune from suit under the Eleventh Amendment. See e.g., Allen v. California

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Dep't of Corr. & Rehab., Case Number 109-CV-00767-AWI-GSA, 2009 WL 4163510, at * 5 (E.D.

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Cal. 2009) report and recommendation adopted, Case Number 109-CV-00767-AWI -GSA (PC), 2009

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WL 5197855 (E.D. Cal. 2009) (CDCR held immune from § 1983 suit). Additionally, Defendants D.

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Lazano, Mullin, Gower, and D. Swindle appear to be brought in their official capacity, which Plaintiff

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cannot do. Fernandez v. California Dep't of Corr., Case Number 2:11-CV-1125 JFM PC, 2013 WL

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322886 (E.D. Cal. Jan. 24, 2013) report and recommendation adopted as modified, Case Number

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2:11-CV-01125 MCE, 2013 WL 1284275 (E.D. Cal. 2013).

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DISMISSED.

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Thus, Plaintiff’s claims are

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A narrow exception to this rule permits a litigant to seek injunctive or declaratory relief against a state official. Flint, 488
F.3d at 825. Given that Plaintiff seeks monetary damages, (Doc. 1 at 3), this exception is inapplicable to the matter at bar.

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B. A 42 U.S.C. § 1983 claim cannot be sustained on a theory of respondeat superior.

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated in

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the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002) (emphasis added).

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Plaintiff must demonstrate that each defendant, through his or her own individual actions, violated

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Plaintiff's constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948–49 (2010).

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Liability may not be imposed on supervisory personnel under section 1983 on the theory of

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respondeat superior, as each defendant is only liable for his or her own misconduct. Id.; Ewing v. City

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of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). A supervisor may be held liable only if he or she

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“participated in or directed the violations, or knew of the violations and failed to act to prevent them.”

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); accord Starr v. Baca, No. 09–55233, 2011 WL

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477094 *4–5 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.2009); Preschooler II v.

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Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir.2007); Harris v. Roderick, 126

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F.3d 1189, 1204 (9th Cir.1997). Given Plaintiff does not set forth any statement of facts, the Court

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cannot presume which Defendants are sued on the theory of respondeat superior. However, to the

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extent Plaintiff seeks to impose liability on any defendant by reason of his or her supervisory position,

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the complaint is DISMISSED.
C. No constitutional right to a particular inmate appeals procedure.

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Plaintiff alleges that he was “intentionally neglected.”2 (Doc. 1 at 3). To the extent that

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Plaintiff alleges that prison officials ignored his inmate grievances, he is advised that “inmates lack a

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separate constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334

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F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Therefore,

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when a prison official denies, screens-out, or ignores an inmate’s grievance, the prison official does

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The term “intentional neglect” may also be interpreted as Plaintiff’s attempt to assert a California tort claim against
Defendants. If Plaintiff intended to do so, he is advised that under the California Tort Claims Act (“CTCA”), a plaintiff
may not maintain an action for damages against a public employee unless he has presented a written claim to the state
Victim Compensation and Government Claims Board within six months of accrual of the action. See Cal. Gov’t Code §§
905, 911.2(a), 945.4 & 950.2; Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). Thus, in
pleading a state tort claim, plaintiff must allege facts demonstrating that he has complied with CTCA’s presentation
requirement. State of California v. Superior Court (Bodde), 32 Cal.4th 1234, 1243-44 (2004). Failure to allege
compliance constitutes a failure to state a cause of action and will result in the dismissal of plaintiff’s state law claims. Id.

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not deprive the inmate of any constitutional right. See, e.g., Wright v. Shannon, No. CIV F-05-1485

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LJO YNP PC, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff’s allegation that prison

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officials denied or ignored his inmate appeals failed to state a cognizable claim); Walker v. Vazquez,

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No. CIV F-09-0931 YNP PC, 2009 WL 5088788, at *6-7 (E.D. Cal. Dec. 17, 2009) (plaintiff’s

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allegation that prison officials failed to timely process his inmate appeals failed to state a cognizable

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claim); Towner v. Knowles, No. CIV S-08-2833 LKK EFB P, 2009 WL 4281999, at *2 (E.D. Cal.

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Nov. 20, 2009) (plaintiff’s allegation that prison officials screened-out his inmate grievances without

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any basis failed to show a deprivation of federal rights). Thus, he fails to state a claim against

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Defendants on the grounds of “intentional neglect” and the claims is DISMISSED.

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D. Retaliation in violation of the First Amendment.

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Under the First Amendment, prison officials may not retaliate against prisoners for initiating

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litigation or filing administrative grievances. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005).

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A viable claim of First Amendment retaliation entails five basic elements: (1) an assertion that a state

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actor took some adverse action against an inmate (2) because of (3) the inmate’s protected conduct and

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that the adverse action (4) chilled the inmate’s exercise of his First Amendment rights and (5) did not

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reasonably advance a legitimate penological purpose. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.

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2009) (quoting Rhodes, 408 F.3d at 567-68).

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Plaintiff concludes that he was the victim of retaliation without more. (Doc. 1 at 3). In support

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of this allegation, Plaintiff claims that he witnessed prison officials’ derogatory treatment of his

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cellmate, that a broken toilet caused a foul stench in his cell, and that he was housed with gang

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members in the administrative segregation unit (“Ad Seg”). Id. at 5-6. The fact that these events

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occurred prior to his filing of an administrative grievance is tantamount to a failure to state a

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cognizable claim. Plaintiff demonstrates no causal link between an exercise of his constitutional right

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and the retaliation alleged. Stinson v. Galaza, 73 F. App'x 312, 314 (9th Cir. 2003) (no cognizable

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claim existed where inmate could not show that he was punished for exercising a First Amendment

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right). Thus, Plaintiff3 claim of retaliation is DISMISSED.
E. Eighth Amendment claim of failure to provide adequate medical care.

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Plaintiff’s claim of neglect based on his psychological condition necessitates an Eighth

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Amendment analysis for failure to provide adequate medical care. (Doc. 1 at 3). To establish a

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violation of the Eighth Amendment based on inadequate medical care, a plaintiff must demonstrate

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“acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”

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Estelle v. Gamble, 429 U.S. 97, 106 (1976). In other words, the plaintiff must show the existence of

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(1) a serious medical need and (2) a deliberately indifferent response by the defendant. Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir. 2006).

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A medical need is serious “if the failure to treat the condition could result in further significant

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injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir.

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1997). Indications that a person has a serious need for medical treatment include: the existence of an

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injury that a reasonable doctor or patient would find worthy of comment or treatment; the presence of

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a medical condition that significantly affects an individual’s daily activities; or the existence of

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chronic and substantial pain. McGuckin, 974 F.2d at 1059-60 (citations omitted).

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A defendant acts with deliberate indifference when he knowingly fails to respond to a serious

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medical need, thereby inflicting harm on the plaintiff. See Farmer v. Brennan, 511 U.S. 825, 837-42

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(1994); Jett, 439 F.3d at 1096. Deliberate indifference may appear when a defendant denies, delays,

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or otherwise interferes with medical treatment. See Hutchinson v. United States, 838 F.2d 390, 394

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(9th Cir. 1988). Nevertheless, “[d]eliberate indifference is a high legal standard.” Toguchi v. Chung,

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391 F.3d 1051, 1060 (9th Cir. 2004). “Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will

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not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)

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(citing Estelle, 429 U.S. at 105-06).
Plaintiff appears to suffer from depression, paranoia, and suicidal thoughts, (Doc. 1 at 29),

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Plaintiff’s exhibits reference claims of denial of access to the Courts and mail access without providing sufficient facts to
support such a claim. See e.g., (Doc. 1 at 9-11). As Plaintiff does not allege First Amendment violations in the body of his
pleading, the Court does not assume that he now claims that some Defendant caused a denial of access to the courts or his
right to receive or send mail.

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which may be construed as a serious medical condition. However, Plaintiff fails to demonstrate how

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any prison officials were aware of his condition, other than the fact he filed a series of administrative

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grievances. Additionally, Plaintiff fails to allege that he sustained any underlying harm. Therefore,

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Plaintiff fails to state a cognizable claim for inadequate medical care and the claim is DISMISSED.

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V.

LEAVE TO AMEND

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The Court will provide Plaintiff a final opportunity to amend his pleading to cure the

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deficiencies noted in this order. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) (“A pro

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se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.”) (internal quotations omitted). In his

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first amended complaint, Plaintiff must address the deficiencies noted here. Plaintiff is advised

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that his failure to do so will result in an order dismissing this action.

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In addition, Plaintiff is cautioned that in his first amended complaint, he may not change the

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nature of this suit by adding new, unrelated claims in his amended complaint. See George v. Smith,

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507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff is also advised that once he

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files his second amended complaint, his original pleadings are superceded and no longer serve any

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function in the case. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, the first amended

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complaint must be “complete in itself without reference to the prior or superceded pleading.” Local

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Rule 220. “All causes of action alleged in an original complaint which are not [re-]alleged in an

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amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations

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omitted).

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Finally, the first amended complaint, including any attached documents, SHALL NOT exceed

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20 pages. The first amended complaint SHALL contain a plain and concise statement of facts in

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compliance with Fed. R. Civ. P. 8(a). While Plaintiff may do so, there is NO NEED to attach exhibits

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to the first amended complaint.

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ORDER

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In accordance with the foregoing, it is HEREBY ORDERED that:

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The complaint is DISMISSED with leave to amend;

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Plaintiff is GRANTED 21 days from the date of service of this Order to file a first

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amended complaint attempting to cure the deficiencies identified by the Court in this

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screening order. Plaintiff is advised that should he file a first amended complaint, it

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SHALL be no longer than 20 pages. This 20 page limitation includes attached

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exhibits;
3.

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The Clerk of the Court is DIRECTED to send Plaintiff the form complaint for use in a
civil rights action; and

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4.

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Plaintiff is cautioned that his failure to comply with this Order will result in a
recommendation that this action be dismissed.

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IT IS SO ORDERED.

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Dated:

May 8, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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