Esparza v. Mims

Filing 8

ORDER DISMISSING CASE (Strike), with Prejudice, for Failure to State a Claim upon which Relief may be Granted Under Section 1983; ORDER THAT THIS DISMISSAL IS SUBJECT TO THE "THREE STRIKES" PROVISION SET FORTH IN 28 U.S.C. 1915(g); ORDER for Clerk to CLOSE this CASE signed by Magistrate Judge Gary S. Austin on 5/8/2014. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUBEN S. ESPARZA,

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Plaintiff,

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vs.
MARGARET MIMS, et al.,

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Defendants.

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1:13-cv-00593-GSA-PC
ORDER DISMISSING CASE, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED UNDER SECTION 1983
(Doc. 7.)
ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE ATHREE-STRIKES@
PROVISION SET FORTH IN 28 U.S.C. '
1915(g)
ORDER FOR CLERK TO CLOSE THIS
CASE

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I.

BACKGROUND

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Ruben S. Esparza ("Plaintiff") is a 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 April 24, 2013. (Doc. 1.)

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On May 3, 2013, Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28

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U.S.C. § 636(c) in this action, and no other parties have made an appearance. (Doc. 5.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
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On September 16, 2013, the Court dismissed Plaintiff’s Complaint for failure to state a

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claim, with leave to amend. (Doc. 6.) On September 23, 2013, Plaintiff filed the First

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Amended Complaint, which is now before the court for screening. (Doc. 7.)

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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 a prisoner in the custody of the Fresno County Jail in Fresno, California,

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where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names

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as defendants Margaret Mims, Dr. Aw, Dr. Rucker, and the Medical Staff at the jail. Plaintiff's

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factual allegations follow, in their entirety:
“I was not provided adequate medical attention. I was deprived
of medication several weeks at a time. I was not given proper
medical treatment on several occasion[s]. I was left to endure
grat (sic) pain several weeks, & months. I submited (sic) several
medical slips to be seen by my floor Dr. with no responces (sic)
or treatment. I submited (sic) grievances witch (sic) where (sic)
not answered in a timely manner, with no fair out come (sic) as
well. I was placed in a living area (G.P.) not suitable for my
handy caps (sic) & medical disabilities. Attached are grievances
for medical attention as well as treatment. Attached ar (sic)
medical slips for attention & treatment.”

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(First Amended Cmp at 3 ¶IV.) Plaintiff requests monetary and injunctive relief.
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.
Supervisory Liability – defendant Margaret Mims

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A.

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Plaintiff has named Margaret Mims, Fresno County Sheriff, who holds a supervisory

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position. Plaintiff is advised that liability may not be imposed on supervisory personnel under

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section 1983 on the theory of respondeat superior, as each defendant is only liable for his or her

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own misconduct. Iqbal, 556 U.S. at 676; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th

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Cir. 2009). A supervisor may be held liable only if he or she Aparticipated in or directed the

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violations, or knew of the violations and failed to act to prevent them.@ Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011);

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Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School

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Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189,

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1204 (9th Cir. 1997). Therefore, to the extent that Plaintiff seeks to impose liability upon

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defendant Margaret Mims, or any of the other defendants, in their supervisory capacity,

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Plaintiff fails to state a claim.

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B.

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Under section 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002) (emphasis added). Plaintiff was advised in the court’s prior screening order that in order

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to state a claim and hold a defendant liable, he must name the individual defendant, describe

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where that defendant is employed and in what capacity, and explain how that defendant acted

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under color of law. (Doc. 6 at 3:13-16.) Plaintiff was also advised that he “may not simply file

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a complaint and refer the Court to the exhibits.” (Id. at 3:9-11.) Plaintiff fails to follow the

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court’s instructions. Plaintiff does not make any allegations in the First Amended Complaint

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showing that an individual named defendant personally acted against him. Further, Plaintiff

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names the “Medical Staff” as defendants, which is insufficient. Plaintiff was advised that he

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must describe what each defendant, by name, did to violate his rights. (Id. at 3:15-18.)

Personal Participation

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Plaintiff fails to allege any personal conduct by any of the individual Defendants in the

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First Amended Complaint. Therefore, Plaintiff fails to state any claims against any of the

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Defendants.

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C.

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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

Eighth Amendment Medical Claim

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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
Deliberate indifference may be manifested Awhen prison

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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)).

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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

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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 showing of medical malpractice or negligence is insufficient to establish a

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Plaintiff has demonstrated that he had serious medical needs because he suffered great

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pain.

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deliberately indifferent to those needs. Plaintiff fails to show that any of the Defendants

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personally acted or failed to act while knowing of and deliberately disregarding a substantial

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risk of serious harm to Plaintiff. Accordingly, Plaintiff fails to state a cognizable claim for

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inadequate medical care under the Eighth Amendment.

However, Plaintiff fails to allege facts showing that any of the Defendants were

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D.

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Plaintiff also alleges that he submitted grievances which were not answered in a timely

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manner, with no fair outcome. Defendants= actions in responding to Plaintiff=s grievances,

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alone, cannot give rise to any claims for relief under section 1983 for violation of due process.

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A[A prison] grievance procedure is a procedural right only, it does not confer any substantive

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right upon the inmates.@ Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v.

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DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860

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(9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a specific

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grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of

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grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639,

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640 (9th Cir. 1988). AHence, it does not give rise to a protected liberty interest requiring the

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procedural protections envisioned by the Fourteenth Amendment.@ Azeez, 568 F. Supp. at 10;

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Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a prisoner=s

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administrative appeal, without more, are not actionable under section 1983. Buckley, 997 F.2d

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at 495. Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals,

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Plaintiff fails to state a cognizable claim for the processing and/or reviewing of his 602 inmate

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appeals.

Inmate Appeals Process

Adverse Conditions of Confinement – Eighth Amendment

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E.

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AAn Eighth Amendment claim that a prison official has deprived inmates of humane

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conditions of confinement must meet two requirements, one objective and the other subjective.@

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Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 2010) cert. denied, 514 U.S. 1065 (1995). The

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objective requirement is met if the prison official=s acts or omissions deprived a prisoner of Athe
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minimal civilized measure of life=s necessities.=@ Id. (quoting Farmer v. Brennan, 511 U.S. 825,

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834 (1994)). To satisfy the subjective prong, a plaintiff must show more than mere

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inadvertence or negligence. Neither negligence nor gross negligence will constitute deliberate

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indifference. Farmer, 511 U.S. at 833, & n. 4; Estelle v. Gamble, 429 U.S. 97, 106 (1976). The

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Farmer court concluded that Asubjective recklessness as used in the criminal law is a familiar

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and workable standard that is consistent with the Cruel and Unusual Punishments Clause@ and

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adopted this as the test for deliberate indifference under the Eighth Amendment. Farmer, 511

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U.S. at 839-40.

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Plaintiff alleges that he was placed in a living area not suitable for his handicaps and

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medical disabilities. However, Plaintiff does not describe conditions that rise to the level of an

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Eighth Amendment violation. Plaintiff fails to allege facts showing that a prison official=s acts

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or omissions deprived him of Athe minimal civilized measure of life=s necessities.@ Moreover,

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Plaintiff fails to describe any conduct by an individual Defendant which violated his rights.

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Therefore, Plaintiff fails to state a claim for adverse conditions of confinement under the Eighth

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Amendment.

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V.

CONCLUSION AND ORDER

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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 ORDERED that:

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Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action is

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DISMISSED with prejudice for failure to state a claim upon which relief may be

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granted under ' 1983;

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2.

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This dismissal is subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g); Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and

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The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

May 8, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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