Hunter v. White, et al.

Filing 9

ORDER DISMISSING Complaint WITH LEAVE TO AMEND; Amended Complaint due by 7/24/2015 signed by Chief Judge Ralph R. Beistline on 6/17/2015. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DEMONDZA HUNTER,
Case No. 1:13-cv-01681-RRB
Plaintiff,
DISMISSAL ORDER
vs.
W. WHITE, et al.,
Defendants.

Plaintiff Demondza Hunter, a California state prisoner appearing pro se and in forma
pauperis, brings this civil rights action under 42 U.S.C. § 1983 against various individuals
employed by the California Department of Corrections and Rehabilitation.1 Hunter is
incarcerated at the California Substance Abuse Treatment Center, Corcoran (“CSATF”),
where the events underlying Hunter’s claims occurred.
///
///

1

In addition to W. White, Correctional Officer, Hunter names as Defendants: J.
Plough, Correctional Officer; W. D. Watkins, Lieutenant; Vechicco, Correctional Officer; A.
Rodriquez, Correctional Officer; J. Martinez, Correctional Officer; Lamb, Correctional
Officer; C. Ogbuehi, Physician’s Assistant; C. Arnold, RN; C. M. Heck, Appeals
Coordinator; J. Cota, Appeals Coordinator; J. Zamora, Appeals Examiner; O. A. Ibarra,
Lieutenant; J. Reynoso, CDW; D. Smiley, CEO; H. Coffee, Lieutenant; R. Diaz, Warden;
L. Cartagena, Administrative Assistant/Public Information Officer; R. Briggs, Chief CDR
Appeals; Frite, SRN; Hashemi, MD; S. Follet, CEO; J. Lewis, Chief Medical Appeals
Officer; and John/Jane Does 1–10, Peace Of ficers.
DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 1

I.

SCREENING REQUIREMENT
This Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity.2 This Court
must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that
“seeks monetary relief against a defendant who is immune from such relief.”3 Likewise, a
prisoner must exhaust all administrative remedies as may be available,4 irrespective of
whether those administrative remedies provide for monetary relief.5
In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”6 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”7 Failure to state a claim under § 1915A incorporates the familiar standard

2

28 U.S.C. § 1915A(a).

3

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203 F.3d
1122, 1126 & n.7 (9th Cir. 2000) (en banc).
4

42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93–95 (2006) (“proper
exhaustion” under § 1997e(a) is mandatory and requires proper adherence to
administrative procedural rules); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion
of administrative remedies must be completed before filing suit).
5

See Booth, 532 U.S. at 734.

6

Fed. R. Civ. P. 8(a)(2).

7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
(continued...)

DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 2

applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed
by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any
doubt, and dismissal should be granted only where it appears beyond doubt that the
plaintiff can plead no facts in support of his claim that would entitle him or her to relief.8
This requires the presentation of factual allegations sufficient to state a plausible
claim for relief.9 “[A] complaint [that] pleads facts that are ‘merely consistent with’ a
defendant’s liability . . . ‘stops short of the line between possibility and plausibility of
entitlement to relief.’”10 Further, although a court must accept as true all factual allegations
contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true.11
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”12
II.

GRAVAMEN OF COMPLAINT
Hunter alleges two causes of action. In his first cause of action Hunter alleges that

Defendants retaliated against him for reporting staff corruption by filing false reports,
confiscated and destroyed personal property, interfered with his medical accommodations,

7

(...continued)
550 U.S. 554, 555 (2007)).
8

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

9

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret Service, 572 F.3d 962, 969
(9th Cir. 2009) (quoting and applying Iqbal and Twombly).
10

Iqbal 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

11

Id.

12

Id. (quoting Twombly, 550 U.S. at 555).

DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 3

obstructed grievances, harassed, and disclosed to prison population that Hunter was a
snitch. Other than the interference with his medical accommodations, this cause of action
is directed against Defendants White, Plough, Vechicco, Watkins, Rodriquez, Martinez,
Lamb, Heck, Cota, Ibarra, Reynoso, Coffee, Diaz, Cartagena, Briggs, and Does 1 – 10.
Hunter contends that Arnold somehow falsified the medical records interfering with
Hunter’s access to medically necessary care for a cane and extra mattress, and that Frite,
Smiley, and Zamora had the duty to correct this improper action but failed to do so by
denying Hunter’s American’s with Disabilities Act (ADA) appeal. 13
In his second cause of action Hunter alleges that Ogbuehi, his primary care
provider, improperly denied him access to his medically necessary disability cane and extra
mattresses, failed to refer Hunter to a specialist for treatment, and improperly prescribed
over-the-counter-pain medications that caused Hunter to suffer internal bleeding.
Defendants Hashemi, Lewis, and Follett failed to properly investigate and remedy the
improper actions of Ogbuehi.
III.

DISCUSSION
Initially, the Court notes that several of Hunter’s claims are based upon violations

of state law, not a violation of a constitutionally protected right. To the extent that Hunter
alleges that the actions of Defendants violated state law, § 1983 does not provide a cause
13

Hunter included allegations against Tann, Garza, Foston, and Lozano in the body
of his Complaint, but did not include them as a named defendants in the caption. Hunter
also appears to include his claims against Defendant Ogbuehi in his first cause of action,
essentially duplicating them in his second cause of action. For the purposes of screening
the Court considers all claims against Ogbuehi as part of the second cause of action, not
the first.
DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 4

of action for those claims.14 In addition, Hunter must show compliance with the
presentment requirements of the California Tort Claims Act,15 which he has not done.
First Claim for Relief
Hunter’s first claim for relief presents a “shotgun” approach, naming as defendants
several correctional officers whose actions allegedly violated Hunter’s constitutionally
protected rights. To some extent, Hunter’s allegations are implausible.16 To a substantial
extent, Hunter’s Complaint consists of vague, conclusory statements devoid of specific
facts.
The heart of Hunter’s first cause of action is described in the first two paragraphs:
On October 30, 2011 Plaintiff reported to Defendants White and
Plough, who responded to process crime scene, that staff misconduct
caused incident by making inmates think Plaintiff was a snitch and, that
Plaintiff had personal writings in cell disclosing evidence how staff corruption
is a major sponsor in prison violence. In response, White and Plough
violated prison regulations and procedures by coordinating efforts to prevent
Plaintiff from reporting staff misconduct and violated the First Amendment by
retaliating against and caused injuries to Plaintiff for reporting staff
misconduct.
White and Plough met with and instructed Defendant Coffee, incident
commander, who alerted and instructed Defendant Watkins, ASU secondwatch Lieutenant (Lt.), that Plaintiff blaming staff for incident so White will
cook-up incident report for Wadkins to use and generally disclose to ASU
inmate and staff population that Plaintiff is snitching.17

14

Loftis v. Almagar, 704 F.3d 645, 647 (9th Cir. 2012) (citing Estelle v. McGuire, 502
U.S. 62, 67 (1991).
15

See Karim-Panahi v. Los Angeles Police Dep’t., 839 F.2d 621, 627 n.4 (9th Cir.

1988).
16

For example, Hunter has correctional officers giving orders to a correctional
lieutenant, their superior.
17

Complaint, Docket 1, p. 5.

DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 5

The remainder of Hunter’s first claim for relief details how that White and Plough, allegedly
in concert with the other Defendants, violated Hunter’s rights.
The Ninth Circuit has defined the parameters of a retaliation claim:
Within the prison context, a viable claim of First Amendment
retaliation entails five basic elements: (1) An assertion that a state actor took
some adverse action against an inmate (2) because of (3) that prisoner's
protected conduct, and that such action (4) chilled the inmate's exercise of
his First Amendment rights, and (5) the action did not reasonably advance
a legitimate correctional goal.18
The Ninth Circuit has “also noted that a plaintiff who fails to allege a chilling effect may still
state a claim if he has suffered some harm.”19 Moreover, “the mere threat of harm can be
an adverse action, regardless of whether it is carried out because the threat itself can have
a chilling effect.”20 Nor need the threat be explicit or specific.21
A prisoner must show some causal connection between the action taken by the
state actor and prisoner’s protected conduct. That is, “[t]o prevail on a retaliation claim, a
plaintiff must show that his protected conduct was the substantial or motivating factor
behind the defendant's conduct.” 22
A prisoner need not show that his speech was actually inhibited or suppressed. The
appropriate test is whether the adverse action at issue “would chill or silence a person of

18

Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote and citations
omitted).
19

Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing Rhodes, 408 F.3d
at 568 n. 11).
20

Id. at 1270 (emphasis in the original).

21

Id.

22

Id. at 1271 (internal quotation marks and citation omitted).

DISMISSAL ORDER
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ordinary firmness from future First Amendment activities.”23 Otherwise, a defendant could
escape liability merely because a particularly determined prisoner persists in this protected
activity.24
The crux of the problem is that, as presently pleaded, other than to allude to
personal writings in his cell containing evidence of staff corruption, Hunter pleads no facts
regarding the nature of those writings.
Although Hunter alleges that, in addition to the confiscation of his cane and extra
mattress, his personal property was destroyed, other than the personal writings, he does
not identify that additional personal property. Indeed, in the context of the Complaint taken
as a whole, the only personal property confiscated was the cane, extra mattress, and
personal writings. To the extent that Hunter contends that additional personal property was
confiscated or destroyed be must specifically identify that property.
Defendants’ acts in labeling Hunter a “snitch” may constitute a cognizable violation
under the Fourteenth Amendment.25 On the other hand, Hunter has not alleged that he has
been threatened with any violence as a result of the “snitch” labeling. In the absence of
threats or some other adverse effect, Hunter has not suffered any cognizable injury.
Although it is unclear from the Complaint, it appears that at least some of the Defendants,
e.g., White, Lamb, Wadkins, Vechecco, Martinez, and Rodriquez, publicly labeled Hunter
a “snitch.” In amending his Complaint Hunter must specifically identify which defendant

23

Id. (internal quotation marks and citation omitted).

24

Id. (emphasis in the original).

25

See Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989); see also
Douglas v. Oregonian, 465 Fed. Appx. 714, 715 (9th Cir. 2012) (citing Valandingham).
DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 7

or defendants publicly labeled him a “snitch,” and the harm or threatened harm he suffered
as a result.
To the extent that Hunter’s claims rest upon some conspiracy theory, it also falls far
short of the mark. The elements of a conspiracy are twofold: (1) an agreement or meeting
of the minds to violate constitutional rights; and (2) an actual deprivation of those rights.26
The function of a conspiracy claim is to attribute the acts of each co-conspirator to each
of the other conspirators. No facts have been alleged to support the finding of a
conspiracy. In short, Hunter’s conspiracy theory is based solely upon conjecture and
speculation.
Hunter’s claims against Tann, Garza, Diaz, Lozano, Cartagena, Heck, Cota,
Reynoso, Zamora, Briggs, and Ibarra all appear to arise out of the processing of Hunter’s
administrative appeals. While relevant to the question of whether or not Hunter properly
exhausted his administrative remedies, in the absence of a Fourteenth Amendment due
process violation, the incorrect resolution of his claims does not give rise to a constitutional
violation.
Second Claim for Relief
Reduced to its essence Hunter’s claim is that Ogbuehi: (1) improperly prescribed
an ineffective over-the-counter (“OTC”) medication, which caused internal bleeding, instead
of morphine; (2) denied Hunter access to appropriate specialist medical care; and (3)
rescinded the requirement that Hunter be issued a cane and second mattress. With

26

See Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Hart v. Parks, 450 F.3d
1059, 1069 (9th Cir. 2006) (quoting Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002)).
DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 8

respect to Hashemi, Follett, and Lewis, Hunter contends that they had the responsibility
to correct Ogbuehi’s medical errors.27
In determining deliberate indifference, the court scrutinizes the particular facts and
looks for substantial indifference in the individual case, indicating more than mere
negligence or isolated occurrences of neglect.28 The Ninth Circuit has spoken to the subject
of the appropriate test under Estelle:
In the Ninth Circuit, the test for deliberate indifference consists of two parts.
First, the plaintiff must show a serious medical need by demonstrating that
failure to treat a prisoner’s condition could result in further significant injury
or the unnecessary and wanton infliction of pain. Second, the plaintiff must
show the defendant’s response to the need was deliberately indifferent. This
second prong—defendant’s response to the need was deliberately
indifferent—is satisfied by showing (a) a purposeful act or failure to respond
to a prisoner’s pain or possible medical need and (b) harm caused by the
indifference. Indifference may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way
in which prison physicians provide medical care. Yet, an inadvertent [or
negligent] failure to provide adequate medical care alone does not state a
claim under § 1983. A prisoner need not show his harm was substantial;
however, such would provide additional support for the inmate’s claim that
the defendant was deliberately indifferent to his needs. If the harm is an
isolated exception to the defendant’s overall treatment of the prisoner [it]
ordinarily militates against a finding of deliberate indifference.29
A defendant must purposely ignore or fail to respond to a prisoner’s pain or medical
need in order for deliberate indifference to be established. “Deliberate indifference is a high
legal standard. A showing of medical malpractice or negligence is insufficient to establish

27

It appears from the allegations of the Complaint that this malfeasance was in
connection with Hunter’s internal appeals.
28

Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

29

Jett v. Penner, 429 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks and
citations omitted).
DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 9

a constitutional deprivation under the Eighth Amendment.”30 A mere difference of medical
opinion regarding the course of medical treatment is “insufficient as a matter of law, to
establish deliberate indifference.”31
In this case, except for perhaps the allegation that Ogbuehi continued to prescribe
the OTC medication (naproxin?) for a period of approximately six months after it was
determined it was causing internal bleeding, nothing in Hunter’s allegations comes even
close to satisfying the threshold requirements for a deliberate indifference claim. Even with
respect to the internal bleeding contention all the Court has before it is Hunter’s conclusory
statement, which is itself unclear as to whether the continuation on the OTC medication
was ordered by Ogbuehi or another physician (Dr. Wang).32
To the extent that Hunter includes a claim against Ogbuehi and Hashemi based
upon medical malpractice under California law, the Court declines to exercise its pendant
jurisdiction over that claim. Accordingly, it will be dismissed without leave to amend.33
30

Toguchi v. Chung, 391 F. 3d 1051, 1060 (9th Cir. 2004); see Hallett v. Morgan,
296 F.3d 732, 744 (9th Cir. 2002); see also Wood v. Housewright, 900 F.2d 1332, 1334
(9th Cir. 1990) (stating that even gross negligence is insufficient to establish a
constitutional violation); Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (per
curium) (noting mere indifference, medical malpractice, or negligence do not support a
cause of action under the Eighth Amendment).
31

Toguchi, 391 F.3d at 1059–60 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir. 1996)); Franklin v. State of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir.
1981) (noting, also, that a disagreement between a prisoner and a medical professional
over the most appropriate course of treatment cannot give rise to a viable claim of
deliberate indifference).
32

The Court finds somewhat puzzling that Hunter refers to “undisclosed documents”
while simultaneously describing in some detail to not only what was contained in those
documents, but also what was omitted.
33

The Court notes that, given the time lapse between the time it appears Hunter
(continued...)

DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 10

While it appears unlikely that Hunter can properly plead a viable deliberate
indifference cause of action, because it is not clearly evident that he cannot, this Court is
reluctant at this earlier stage to dismiss without leave to amend.34 Consequently, except
to the extent it is based upon state law, dismissal of the second claim for relief will be with
leave to amend.
IV.

ORDER
Based upon the foregoing:
1.

The claims against Defendants Lozano, Frite, D. Smiley, Tann, Garza, R.

Diaz, L. Cartagena, C. M. Heck, J. Cota, J. Reynoso, J. Zamora, Briggs, O. A. Ibarra,
Hashemi, S. Follett, and J. Lewis are DISMISSED without leave to amend.
2.

In all other respects the first claim for relief as against W. White, J. Plough,

W. D. Watkins, Vechicco, A. Rodriquez, J. Martinez, Lamb, and Does 1 – 10 is
DISMISSED with leave to amend consistent with this decision. In amending his complaint
Hunter should attach thereto complete copies of all documents to which he refers or
support his contentions to the extent that copies of the document are within Hunter’s
possession, custody or control.
3.

To the extent the second claim for relief is based upon California law, it is

DISMISSED without leave to amend.
33

(...continued)
completed his internal administrative appeals and the date of his Complaint, less than one
month, Hunter could not have possibly complied with the California Tort Claims Act.
34

See Hartman v. California Dept. of Corr. and Rehab., 707 F.3d 1141, 1130 (9th
Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”);
Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (explaining that leave
to amend should be given unless amendment would be futile).
DISMISSAL ORDER
Hunter v. White, 1:13-cv-01681-RRB – 11

4.

To the extent the second claim for relief is based upon a violation of the

Eighth Amendment (deliberate indifference), it is DISMISSED with leave to amend.
Plaintiff is hereby granted through and including July 24, 2015, within which to file
an Amended Complaint consistent with this Order.
IT IS ORDERED this 17th day of June, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

DISMISSAL ORDER
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