Shehee v. Ahlin et al

Filing 12

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Dennis L. Beck on 12/25/2014. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
GREGORY ELL SHEHEE,
Plaintiff,

Case No. 1:14-cv-0005-LJO-DLB
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
PAMELA ANLIN, et al.,

THIRTY-DAY DEADLINE

Defendants.
_____________________________________/
Plaintiff Gregory Ell Shehee, a civil detainee proceeding pro se and in forma pauperis,
filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 2, 2014. The Court screened
the complaint on May 20, 2014, and dismissed it with leave to amend.
Plaintiff filed his First Amended Complaint on June 11, 2014. He names numerous
Defendants.
I.

SCREENING STANDARD
The Court is required to screen Plaintiff=s complaint and dismiss the case, in whole or in

part, if the Court determines it fails to state a claim upon which relief may be granted. 28 U.S.C. '
1915(e)(2)(B)(ii). A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

courts “are not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572
F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual
allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Pro se litigants are entitled to have their pleadings liberally construed and to have any
doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe
v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff=s claims must be facially plausible to
survive screening, which requires sufficient factual detail to allow the Court to reasonably infer
that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation
marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer
possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability
falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks
omitted); Moss, 572 F.3d at 969.
II.

ALLEGATIONS IN FIRST AMENDED COMPLAINT
Plaintiff is a civil detainee at Coalinga State Hospital (“CSH”) in Coalinga, California. His

allegations are grouped into three distinct issues.
Religious Diet
Plaintiff complains that he was denied an opportunity to exercise his religion on December
24, 2012. He states that Defendant Ahlin approved contracts for vegan religious diets. Defendant
Fenton brought the contract to Plaintiff for signature. The contract was then taken to Defendant
Dang for approval. Defendant Mativo, Director of Diet Services, denied Plaintiff’s religious diet.
When Defendant King became the acting Executive Director of the Department of State Hospitals
(“DSH”), Plaintiff filed a complaint with her office.
Defendant Abrahamson, the dietician covering unit 2, retaliated against Plaintiff when he
asked her to help him in securing his religious diet. Defendant Abrahamson went to the unit 2
staff office and got a male staff member to talk to Plaintiff. This staff member stood over
Plaintiff, inappropriately close and in an “intimidating and aggressive manner,” and used a “cold
stare technique as if he was some kind of mafia enforcer from the movies.” ECF No. 11, at 10.

2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Defendant Abrahamson and this psych tech denied Plaintiff the opportunity to exercise his
religion.
Plaintiff further alleges that on fourteen days in November and December 2012, Defendant
Maylin, the chow hall server/supervisor, and Does 4-8, refused to serve Plaintiff his diet tray and
instead tried to substitute religiously prohibited items. Defendants Maylin and Does 4-8 ignored
Plaintiff’s contract and compelled him to sign a Special Diet Meal Refusal Form, indicating that
the offerings were in violation of his dietary contract. Also, on numerous occasions, Defendants
Maylin and Does 4-8 offered Plaintiff nuts and apple products, to which he was noted to be
allergic. Defendants Maylin and Does 4-8 refused to make the corrections and ignored Plaintiff’s
dietary contract.
Plaintiff attempted to communicate the issue to Defendant Sandoval, but she did not give
him an opportunity to discuss the problem and refused to remedy the problem.
Plaintiff alleges that Defendant King’s response dated October 13, 2010,1 was the “final
appeal response to [his] written complaints” about the religious diet issue. ECF No. 11, at 12.
Medical Care- CSH
Plaintiff alleges that on November 4, 2011, Defendants denied medical treatment for his
right hand for over one year. Plaintiff states that he dislocated his thumb and wrist, but he was
denied surgery to correct the injury and relieve the pain. Plaintiff saw Defendants Tur and
Nguyen, but they only prescribed Tylenol.
After one year of suffering a scaphoid fracture, Plaintiff alleges that the surgery was
provided, but he continues to suffer. Plaintiff believes that the one-year delay for surgery reduced
the chances of a pain-free outcome.
After the surgery, surgeon Dr. Smith directed Defendant Nguyen to leave the cast on for
three months and then return Plaintiff to him for evaluation and treatment. Defendant Nguyen did
not send Plaintiff back to Dr. Smith. Four months after his surgery, Plaintiff’s hand began to swell
inside the cast, causing excruciating pain. Defendant Nguyen provided effective pain relief for
two days, but then switched Plaintiff to Tylenol/Motrin, which was ineffective. Plaintiff remained
1

It is unclear if this date is a typographical error.

3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

in pain for two more months, until Defendant Nguyen had Plaintiff return to Dr. Smith for
evaluation and treatment.
Plaintiff contends that Defendant King, the Executive Director of DSH during this time
period, was made aware of his suffering through his written complaints, which were sent as
appeals directly to her office. Defendant King did not take any action and ignored Plaintiff’s
suffering. Defendant King allowed Plaintiff to be transferred from DSH to the Los Angeles
County Jail while in extreme pain.
Plaintiff further alleges that Defendants Sandhu, Nguyen and Tur ignored Plaintiff’s
injuries and allowed him to be transferred from DSH to the Los Angeles County Jail while in
extreme pain.
Medical Care- Los Angeles County Jail
Plaintiff contends that while at the Los Angeles County Jail, Defendant Doe 1, the Chief
Medical Officer, denied medical care. Plaintiff had been suffering from a scaphoid fracture for
one year, and was forced to participate in his Sexually Violent Predator trial “in a severely
exhausted and pain ridden condition.” ECF No. 11, at 14.
Access to Courts- CSH
Plaintiff alleges that on September 20, 2011, he was transferred to unit 9 from unit 17.
Prior to transfer, he had 36 bundles of legal papers. During the transfer, Defendants Perryman and
Hill confiscated his legal papers and refused to transfer them to unit 9 in accordance with DSH
policy. This prevented Plaintiff from preparing his case(s).
Access to Courts- Los Angeles County Jail
Plaintiff was later transported to the Los Angeles County Jail with six boxes of legal
documents that were left over from the 36 bundles. Upon entering the Los Angeles County Jail,
Sergeant Bisselhof was shown relevant case numbers and minute orders, and Plaintiff told him
that he was pro se. Defendants Bisselhof and Does told Plaintiff that “none of that paperwork will
be coming into L.A. County Jail,” and “there is a truck in the back that we will throw it in.” ECF
No. 11, at 13. They told Plaintiff that he had ten minutes to give them a phone number so they \

4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

could call someone to come get it, before they threw it into the trash. Plaintiff provided a phone
number for Shoyne Riggins.
Plaintiff contends that Defendants Bisselhof and Does denied him the right to present
evidence at his Sexually Violent Predator trial, after which he was committed to CSH. Plaintiff
contends that had he been allowed to present evidence, the trial may have had a different result.
III.

DISCUSSION
A.

Unrelated Claims

As an initial matter, Plaintiff may not proceed in this action on a myriad of unrelated
claims against different staff members at different institutions in a single action. Fed. R. Civ. P.
18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1)
the claim arises out of the same transaction or occurrence, or series of transactions and
occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2);
Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of
North America, 623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined
under Rule 20(a) will the Court review the other claims to determine if they may be joined under
Rule 18(a), which permits the joinder of multiple claims against the same party.
Here, Plaintiff’s First Amended Complaint includes five distinct and unrelated claims: (1)
denial of a religious diet at CSH; (2) denial of medical care at CSH; (3) denial of medical care at
the Los Angeles County Jail; (4) denial of access to the courts at CSH; and (5) denial of access to
the courts at the Los Angeles County Jail. With the exception of Defendant King, there is no
cross-over in the defendants involved in each claim.
Plaintiff must determine which claim he wants to pursue in this action. He is cautioned
that if his amended complaint fails to comply with Rule 18(a), the Court will choose which claims
will proceed and will dismiss out all unrelated claims.
B.

Supervisory Liability

Supervisory personnel may not be held liable under section 1983 for the actions of
subordinate employees based on respondeat superior, or vicarious liability. Crowley v. Bannister,
5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726
F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir.
2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the
constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s
wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow, 681
F.3d at 989) (internal quotation marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693
F.3d at 915-16. “Under the latter theory, supervisory liability exists even without overt personal
participation in the offensive act if supervisory officials implement a policy so deficient that the
policy itself is a repudiation of constitutional rights and is the moving force of a constitutional
violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989))
(internal quotation marks omitted).
Plaintiff alleges that he submitted appeals to Defendant King’s office, but she failed to take
action. In some situations, a supervisor may be held liable for reviewing an appeal and failing to
take action, Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006), but that situation has not been
presented here. Plaintiff simply alleges that appeals were submitted to her office. This
insufficient to demonstrate that Defendant King had knowledge of the alleged constitutional
violations and failed to prevent them. While the appeals may have been submitted to her office,
Plaintiff offers no allegations or exhibits suggesting that she actually reviewed the appeals.
Moreover, as discussed below, Plaintiff has not stated a viable claim against any
Defendant. Absent the presentation of facts sufficient to show a constitutional violation in the first
place, Plaintiff cannot pursue a claim against those who reviewed the administrative appeal
grieving the underlying actions.
C.

First Amendment Claim

The First Amendment to the United States Constitution provides that “Congress shall make
no law respecting the establishment of religion, or prohibiting the free exercise thereof....”
Prisoners “retain protections afforded by the First Amendment,” including the free exercise of
religion. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). The protections of the Free
Exercise Clause are triggered when prison officials substantially burden the practice of an
6

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

inmate’s religion by preventing him from engaging in conduct which he sincerely believes is
consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir.2008); Freeman v.
Arpaio, 125 F.3d 732, 737 (9th Cir.1997).
“[C]ivil detainees retain greater liberty protections than individuals detained under criminal
process.... Jones v. Blanas, 393 F.3d 918, 932 (9th Cir.2004) (citations omitted). “However, as
with other First Amendment rights in the inmate context, detainees’ rights may be limited or
retracted if required to ‘maintain [ ] institutional security and preserv[e] internal order and
discipline.’” Pierce, 526 F.3d at 1209 (quoting Bell v. Wolfish, 441 U.S. 520, 549 (1979)).
As in his original complaint, Plaintiff’s allegations are too vague to state a claim. In fact,
Plaintiff does not even state what religion he practices. He only includes conclusory statements
that he was denied an “opportunity to exercise” his religion, but the First Amendment does not
secure an “opportunity to exercise” a chosen religion. Rather, the First Amendment prohibits
officials from substantially burdening Plaintiff’s religious practice. Plaintiff has not explained
how the alleged failure to provide him with a religious diet on various occasions in November and
December 2012, substantially burdened the practice of his religion by preventing him from
engaging in conduct which he sincerely believes is consistent with his faith.
The Court also notes that Defendants Ahlin, Fenton and Dang are alleged to have assisted
Plaintiff in securing his religious diet contract.
Plaintiff therefore fails to state a claim based on the denial of a religious diet.
D.

Medical Treatment

As a civil detainee, Plaintiff is entitled to treatment more considerate than that afforded
pretrial detainees or convicted criminals. Jones v. Blanas, 393 F.3d 918, 931–32 (9th Cir.2004).
Plaintiff's right to constitutionally adequate conditions of confinement is protected by the
substantive component of the Due Process Clause. Youngberg v. Romeo, 457 U.S. 307, 315
(1982).
A determination whether Plaintiff’s rights were violated requires “balancing of his liberty
interests against the relevant state interests.” Youngberg, 457 U.S. at 321. Plaintiff is “entitled to
more considerate treatment and conditions of confinement than criminals whose conditions of
7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

confinement are designed to punish,” but the Constitution requires only that courts ensure that
professional judgment was exercised. Youngberg, 457 U.S. at 321-22. A “decision, if made by a
professional, is presumptively valid; liability may be imposed only when the decision by the
professional is such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible actually did not base the decision on such a
judgment.” Id. at 322–23. The professional judgment standard is an objective standard and it
equates “to that required in ordinary tort cases for a finding of conscious indifference amounting
to gross negligence.” Ammons v. Washington Dep't of Soc. & Health Servs., 648 F.3d 1020, 1029
(9th Cir.2011).
In his First Amended Complaint, Plaintiff first argues that while at CSH, Defendants Tur,
Nguyen and Sandu ignored his pain, delayed surgery, and/or permitted him to be transferred
without surgery. Plaintiff alleges that Defendants Nguyen and Tur provided treatment for his
hand, but did not prescribe adequate pain medication. He also alleges that Defendant Nguyen
failed to send him back to Dr. Smith for further treatment.
Plaintiff’s allegations continue to be too vague to state a claim. Plaintiff includes no
factual allegations against Defendant Sandu. He alleges that his surgery was delayed, but he does
not state who was responsible for the delay. Plaintiff also contends that Defendants Tur and
Nguyen provided only Tylenol, but he does not include facts to demonstrate that their treatment
decisions were substantial departures from accepted professional judgment. Similarly, while
Plaintiff complains that Defendant Nguyen failed to send him back to Dr. Smith, he does not
include sufficient facts to demonstrate a constitutional violation.
As for Plaintiff’s claim relating to his medical treatment at the Los Angeles County Jail, he
contends that Defendant Doe 1, the Chief Medical Officer, denied medical care. He does not,
however, further explain his claims.
For these reasons, Plaintiff fails to state a claim for denial of adequate medical care.
E.

Access to Courts

While Plaintiff has a constitutional right to access the courts, the interferences complained
of by Plaintiff must have caused him to sustain an actual injury. Christopher v. Harbury, 536 U.S.
8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

403, 415 (2002); Lewis v. Casey, 518 U.S. 343, 351 (1996); Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009); Jones, 393 F.3d at 936.
The absence of an injury precludes an access claim, and Plaintiff’s vague, conclusory
allegations of injury are insufficient. While at CSH, Plaintiff contends that Defendants Perryman
and Hill confiscated his legal papers, but he alleges only that it prevented him from preparing his
case(s). Similarly, he alleges that while housed at the Los Angeles County Jail, Defendants
Bisselhof and Does denied him access to his legal documents, resulting in his inability to present
evidence at his Sexually Violent Predator trial. Plaintiff contends that had he been allowed to
present evidence, the trial “may” have had a different result. This, too, is insufficient to
demonstrate an actual injury. Harbury, 536 U.S. at 415-16; Jones, 393 F.3d at 936.
Therefore, Plaintiff fails to state a claim.
IV.

CONCLUSION AND ORDER
Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

1983. In an abundance of caution, the Court will provide Plaintiff with one final opportunity to
file an amended complaint. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what
each named defendant did that led to the deprivation of Plaintiff’s federal rights and liability may
not be imposed on supervisory personnel under the theory of mere respondeat superior, Iqbal, 556
U.S. at 676-77; Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct.
2101 (2012). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a
right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).
Plaintiff’s amended complaint must also comply with Rules 18 and 20.
Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa
County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be “complete in itself without
reference to the prior or superceded pleading,” Local Rule 220.
///
///
9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Accordingly, it is HEREBY ORDERED that:
1.

Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim

under section 1983;
2.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

amended complaint; and
4.

If Plaintiff fails to file an amended complaint in compliance with this order, this

action will be dismissed, with prejudice, for failure to state a claim.
IT IS SO ORDERED.
Dated:

/s/ Dennis

December 25, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

10