Herrera v. Macias et al

Filing 25

FINDINGS and RECOMMENDATIONS to Dismiss Case, With Prejudice, for Failure to State a Claim, signed by Magistrate Judge Gary S. Austin on 3/6/2015, referred to Judge Ishii. Objections to F&R Due Within Thirty Days.(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,

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vs.

1:13-cv-01429-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS TO
DISMISS CASE, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(Doc. 17.)

GILL, et al.,

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Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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I.

BACKGROUND

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Roberto Herrera (APlaintiff@) 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. On September 9, 2013, Plaintiff filed

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the initial Complaint for this action. (Doc. 1.) On January 17, 2014, the court dismissed the

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Complaint for failure to state a claim, with leave to amend. (Doc. 11.) On March 24, 2014,

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Plaintiff filed the First Amended Complaint, which is now before the court for screening.

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(Doc. 17.)

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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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Rule 8(a)‟s simplified pleading standard applies to all civil actions, with limited

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exceptions, none of which apply to § 1983 actions. Swierkeiwicz v. Sorema, N.A., 534 U.S.

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506, 512 (2002). Under federal notice pleading, a complaint is required to contain Aa short and

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plain statement of the claim showing that the pleader is entitled to relief . . . .@ Fed. R. Civ. P.

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8(a)(2). Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements

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of a cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v.

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Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff=s allegations are taken as true,

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courts Aare not required to indulge unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc.,

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572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff

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must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that is

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plausible on its face.=@ Iqbal, 556 U.S. at 678. While factual allegations are accepted as true,

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legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this

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plausibility standard. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Corcoran State Prison (CSP) in Corcoran,

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

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Plaintiff names as defendants Dr. Gill, LVN Ballesteros, CEO Teresa Macias, CMO Dr. Clark,

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CEO Connie Gipson, and numerous unnamed Doe Defendants (LVNs and other CSP staff).

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Plaintiff‟s factual allegations follow.

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Plaintiff suffers from severe chronic pain as the result of a gunshot wound. Plaintiff

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takes prescribed pain medication which needs to be delivered to him three times a day --

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morning, noon, and evening. Because Plaintiff is in the Security Housing Unit (SHU), LVNs

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are responsible to deliver the medication to him.

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On April 17, 2013, defendant LVN Ballesteros refused/failed to deliver Plaintiff‟s

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medication, leaving him to suffer in pain. On April 24, 2013, Doe Defendant LVN (#1) did the

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same. On June 7, 2013, Doe Defendant LVN (#2) did the same. On April 3, 2013, Doe

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Defendant LVN (#3) did the same. Many other LVNs have done the same.

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On August 28, 2013, Plaintiff saw defendant Dr. Gill, primary care provider, and told

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the doctor that his prescribed medication was not effective for his pain. Dr. Gill refused to

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explore other medications, leaving Plaintiff to suffer in pain.

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As acting CMO, defendant Dr. Clark is legally responsible for Corcoran Health Care

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LVNs not delivering Plaintiff‟s pain medication, and for the primary care provider refusing to

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explore other medications for Plaintiff, but Dr. Clark did nothing to stop these events from

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happening. As acting CEO, defendant T. Macias is also legally responsible and knew or should

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have known about these events, but did nothing to stop them from happening. Many other

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CDCR Health Care staff members are also personally responsible, but Plaintiff does not know

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their names.

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Plaintiff also alleges that as an indigent prisoner, he was not provided with the required

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number of envelopes, denying him access to the courts. Defendant Connie Gipson is legally

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responsible because she is the custody CEO at CSP and knew or should have known that

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Plaintiff did not receive enough envelopes, but she did nothing to stop it from happening.

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Many other CDCR custody staff members, including CSP prison staff, floor staff, Captains,

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mail room staff, Lieutenants, acting Corcoran CEO, etc., are responsible for Plaintiff being

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denied access to the courts, but Plaintiff does not know their names.

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On or about August 18, 2013, Plaintiff was moved from one building to another, and

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floor staff issued him a mattress in very bad condition, torn, old, lumpy, and flat, instead of a

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new mattress, depriving Plaintiff of sleep. As CEO, Connie Gipson is responsible and knew or

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should have known that Plaintiff was issued a bad mattress, but she did nothing to stop it.

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Many other CSP staff members are also responsible, but Plaintiff does not know their names.
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While housed in the SHU, Plaintiff had some active court cases pending and was

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approved to use the prison law library. However, from July 8, 2013 to August 9, 2013, Plaintiff

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was not provided access to the law library. Plaintiff‟s legal documents were taken from him on

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July 8, 2013, and he was moved to another yard. His documents were not returned to him until

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August 25, 2013, and many of the documents were missing. As CEO, defendant Connie

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Gipson was responsible and knew or should have known about these incidents, but she did

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nothing about it. Many other Corcoran prison staff members are also responsible, but Plaintiff

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does not know their names.

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While at CSP, Plaintiff‟s incoming and outgoing mail was tampered with by CSP

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officials who sometimes opened Plaintiff‟s mail out of his presence before delivering it to him,

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sometimes did not deliver it at all, and sometimes did not mail out some of his outgoing legal

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mail, preventing Plaintiff from meeting his legal deadlines. As CEO, defendant Connie Gipson

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was responsible and knew or should have known about these incidents, but she did nothing

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about it. Plaintiff filed prison grievances as required, without resolution of the issues.

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Plaintiff requests monetary damages 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.

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A.

Personal Participation and Supervisory Liability – Defendants Gipson,
Macias, and Clark

Plaintiff seeks to hold defendants Connie Gipson, Teresa Macias, and Dr. Clark liable in

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their supervisory capacities.

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defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002) (emphasis added). Plaintiff must demonstrate that each defendant,

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through his or her own individual actions, violated Plaintiff=s constitutional rights. Iqbal, 556

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U.S. at 676. Liability may not be imposed on supervisory personnel under section 1983 on the

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theory of respondeat superior, as each defendant is only liable for his or her own misconduct.

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Id.; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). A supervisor may be held

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liable only if he or she Aparticipated in or directed the violations, or knew of the violations and

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failed to act to prevent them.@ Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr

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v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th

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Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

Under section 1983, Plaintiff must demonstrate that each

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Plaintiff fails to allege facts demonstrating that defendants Gipson, Macias, or Clark

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personally acted to violate his rights. It is not enough to allege that a defendant is responsible

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because of his or her position. Moreover, Plaintiff‟s allegations that these defendants “knew

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about” or “allowed” the violations, without supporting facts, are vague and conclusory and

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without more, fail to state a claim.

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Therefore, Plaintiff fails to state any claims in the First Amended Complaint against
defendants Gipson, Macias, and Clark.

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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

Eighth Amendment Medical Claim

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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)).

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

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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)).

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

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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 has demonstrated that he has a serious medical need because he suffers severe
However, Plaintiff‟s allegations against

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chronic pain resulting from a gunshot wound.

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Defendants do not demonstrate deliberate indifference. Plaintiff alleges that Dr. Gill knew

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Plaintiff‟s medication was not effective, yet prescribed him the same treatment, but Plaintiff

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has not shown that Dr. Gill acted, or failed to act, while knowing about and deliberately

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disregarding a substantial risk of serious harm to Plaintiff‟s health. Plaintiff‟s allegations that

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the LVNs failed/refused to issue his medication, without more, are insufficient to state a claim.

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Plaintiff has not alleged facts showing what the LVNs did or said to indicate that they knew

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about Plaintiff‟s serious medical need, how they acted or failed to act, and how they

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deliberately disregarded a substantial risk of harm to Plaintiff. Plaintiff‟s allegations that the

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LVNs “failed/refused” to act is ambiguous and does not describe how each LVN personally

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acted.

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Therefore, Plaintiff fails to state a claim against defendants Dr. Gill, LVN Ballesteros,

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and the unnamed LVNs and other staff members, and fails to state an Eighth Amendment

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medical claim against any of the Defendants.

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C.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

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Cir. 2006). Extreme deprivations are required to make out a conditions of confinement claim,

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and only those deprivations denying the minimal civilized measure of life=s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations omitted). In order to state a claim

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for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a

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claim that prison officials knew of and disregarded a substantial risk of serious harm to the

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plaintiff. E.g., Farmer, 511 U.S. at 847; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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The circumstances, nature, and duration of the deprivations are critical in determining whether

Eighth Amendment Claim -- Conditions of Confinement

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the conditions complained of are grave enough to form the basis of a viable Eighth Amendment

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claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). A[R]outine discomfort inherent in

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the prison setting@ does not rise to the level of a constitutional violation. Id. at 731.

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Plaintiff alleges that he was issued a mattress in very bad condition, torn, old, lumpy,

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and flat, instead of a new mattress, depriving him of sleep. This allegation, without more, does

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not rise to the level of a constitutional violation. Therefore, Plaintiff fails to state an Eighth

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Amendment claim for adverse conditions of confinement based on the mattress he was issued.

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D.

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While Plaintiff has a constitutional right to access the courts, the interferences

Denial of Access to Courts

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complained of by Plaintiff must have caused him to sustain an actual injury. Christopher v.

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Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179 (2002); Lewis v. Casey, 518 U.S. 343, 351, 116

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S.Ct. 2174 (1996); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Phillips v. Hust, 588

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F.3d 652, 655 (9th Cir. 2009); Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004). In order to

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meet the requisite actual injury showing, a plaintiff must plead facts alleging “a nonfrivolous

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legal claim had been frustrated or was being impeded.” Lewis, 518 U.S. at 353; see also

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Christopher, 536 U.S. at 415. “The complaint should „state the underlying claim in accordance

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with Federal Rule of Civil Procedure 8(a) just as if it were being independently pursued, and a

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like plain statement should describe any remedy available under the access claim and presently

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unique to it.‟” Gonzalez v. Diaz, No. 1:10–CV–01287–GBC PC, 2011 WL 2671535 (E.D.Cal.

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July 6, 2011) (quoting Christopher, 536 U.S. at 417–18). The absence of an injury precludes an

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access claim. Harbury, 536 U.S. at 415-16; Jones, 393 F.3d at 936.

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Inmates do not have the right to a law library or legal assistance. Lewis, 518 U.S. at

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351. Law libraries and legal assistance programs are only the means of ensuring access to the

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courts. Id. Because inmates do not have “an abstract, freestanding right to a law library or

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legal assistance, an inmate cannot establish relevant actual injury by establishing that his

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prison‟s law library or legal assistance program is subpar in some theoretical sense.” Id.

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Plaintiff alleges that he was denied access to the law library and his legal documents,

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was not given enough indigent envelopes, and sometimes the mailroom staff failed to mail out
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some of his outgoing legal mail, preventing Plaintiff from meeting his legal deadlines.

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Plaintiff‟s vague and conclusory allegation that he was prevented from meeting legal deadlines

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is not sufficient to show the injury required to state a claim for denial of access to the courts.

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Therefore, Plaintiff fails to state a claim for denial of access to the courts.

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E.

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Prisoners have Aa First Amendment right to send and receive mail.@ Witherow v. Paff,

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52 F.3d 264, 265 (9th Cir. 1995). The right to receive mail is subject to substantial limitation,

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however, and the regulation or policy infringing on the right will be upheld if it is reasonably

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related to legitimate penological interests. Prison Legal News v. Lehman, 397F.3d 692, 699

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(9th Cir. 2005) (citations omitted). Isolated incidents of mail interference or tampering will not

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support a claim under section 1983 for violation of plaintiff=s constitutional rights. See Davis

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v. Goord, 320 F.3d 346, 351 (2d. Cir. 2003); Gardner v. Howard, 109 F.3d 427, 431 (8th Cir.

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1997); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990).

Mail Interference

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Prison regulations relating to the regulation of incoming mail are analyzed under the

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Turner reasonableness standard set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987).

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Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). The regulation is valid if it is reasonably

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related to legitimate penological interests.

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reasonableness of the regulation, the court must consider the following factors: (1) whether

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there is a Avalid, rational connection between the regulation and the legitimate government

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interest put forward to justify it,@ (2) Awhether there are alternative means of exercising the

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right,@ (3) the impact that the Aaccommodation of the asserted constitutional right will have on

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guards and other inmates,@ and (4) Athe absence of ready alternatives.@ Id. at 89-90. Further,

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the mere fact that prison officials open and conduct a visual inspection of a prisoner=s legal

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correspondence, which appears to be the case here, does not support a claim for violation of a

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prisoner=s constitutional rights.

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Mitchell v. Dupnick, 75 F.3d 517, 523 (9th Cir. 1996).

Turner, 482 U.S. at 89.

In determining the

See Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974);

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Censorship of outgoing prisoner mail is justified if the following criteria are met: (1) the

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regulation furthers Aan important or substantial government interest unrelated to the suppression
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of expression@ and (2) Athe limitation on First Amendment freedoms must be no greater than is

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necessary or essential to the protection of the particular governmental interest involved.@

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Procunier v. Martinez, 416 U.S. 396, 413 (1974) (overturned by Thornburgh, 490 U.S. 401

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only as test relates to incoming mail - Turner test applies to incoming mail).

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Plaintiff‟s vague allegations that unnamed CSP officials sometimes opened his mail out

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of his presence before delivering it to him, sometimes did not deliver his mail at all, and

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sometimes failed to mail out some of his outgoing legal mail, are insufficient to state a

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cognizable claim for mail interference. Therefore, Plaintiff fails to state a cognizable claim for

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interference with his mail.

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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. The Court previously granted Plaintiff

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leave to amend the complaint, with ample guidance by the Court. Plaintiff has now filed two

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complaints without stating any claims upon which relief may be granted under § 1983. The

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Court finds that the deficiencies outlined above are not capable of being cured by amendment,

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and therefore further leave to amend should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii);

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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 result in the waiver of rights on appeal. Wilkerson v.
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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 6, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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