Oden v. State of California, et al.

Filing 16

ORDER VACATING 13 Findings and Recommendations Regarding Dismissal of Action; SCREENING ORDER Dismissing Second Amended Complaint With Leave to Amend, signed by Magistrate Judge Barbara A. McAuliffe on 6/1/15. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DERRICK JESUS ODEN, SR.,

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Plaintiff,
v.
STATE OF CALIFORNIA, et al.,

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Defendants.

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Case No.: 1:14-cv-00873-LJO-BAM (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS REGARDING
DIMSISSAL OF ACTION
(ECF No. 13)
SCREENING ORDER DISMISSING SECOND
AMENDED COMPLAINT WITH LEAVE TO
AMEND
(ECF No. 14)
THIRTY-DAY DEADLINE

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I.

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Plaintiff Derrick Jesus Oden, Sr. (“Plaintiff”) is a state prisoner proceeding pro se and in forma

Procedural Background

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 13, 2015, the Court

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dismissed Plaintiff’s first amended complaint with leave to amend within thirty days. (ECF No. 12.)

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After more than thirty days had passed and Plaintiff failed to file a second amended complaint, the

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undersigned issued Findings and Recommendations regarding dismissal of this action for failure to

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obey a court order and failure to state a claim. (ECF No. 13.) The following day, on March 27, 2015,

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Plaintiff filed his second amended complaint. (ECF No. 14.) As it appears the second amended
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complaint and the Findings and Recommendations crossed in the mail, the Court HEREBY

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VACATES the Findings and Recommendations issued on March 26, 2015.
Plaintiff’s second amended complaint, filed on March 27, 2015, is currently before the Court

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for screening. (ECF No. 14.)

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II.

Screening Requirement and Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §

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1915(e)(2)(B)(ii).
A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).
To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v.

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United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant

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acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572

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F.3d at 969.

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Plaintiff’s Allegations

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III.

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Plaintiff is currently housed at California State Prison, Lancaster. Plaintiff has named the

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following defendants: (1) Director of Corrections; (2) Warden Howls, Lancaster; (3) Warden, North

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Kern; (4) Brian Lee, CSR; (5) Chief Medical Officer, North Kern; (6) C. Nungaray, Correctional

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Counselor, Lancaster; (7) C. Wofford, Chief Deputy Warden, Lancaster; (8) R. Knowles, Facility

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Captain, Lancaster; (9) R. Butler, Correctional Counselor, Lancaster; (10) Facility Physician, North

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Kern; (11) Correctional Counselor, North Kern; (12) Correctional Counselor II at North Kern; and

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(13) Facility Captain, North Kern.

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Plaintiff alleges: On May 14, 2009, Defendants Nungaray, C. Wofford, R. Knowles, and R.

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Butler sat in on Plaintiff’s Program Review Committee (ICC). Plaintiff was put for transfer to

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institutions in the Kern County area, which were documented high risk areas for Plaintiff to contract

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Valley Fever due the fact that he was African American with the condition of asthma. A restriction

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chrono was prepared and signed by Dr. T. Bzoskie and S. Mastatania on July 14, 2008, which

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indicated that Plaintiff was high risk of contracting Valley Fever. When Plaintiff mentioned the

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chrono to the committee and his risk of being transferred to the Kern County area, the committee

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assured Plaintiff that he would be transferred to a prison in Kern County and if he tried to challenge

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the system then things would only get worse. Plaintiff was afraid to challenge the transfer and the

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committee made no mention of Plaintiff’s restrictive chrono. The committee also falsely stated that

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Plaintiff was in agreement with the committee’s actions.

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On May 29, 2009, Defendant Brian Lee reviewed Plaintiff’s case for transfer and endorsed him

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to KVSP-IV, which is a Kern County prison in Delano. When Plaintiff’s case was brought before

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Defendant Lee, the restriction chrono was a part of Plaintiff’s case custody file. The high risk caution

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was disregarded by Defendant Lee.

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After his transfer to KVSP, in June or July 2009, Plaintiff appeared before a classification

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committee. Plaintiff alleges that the Warden, Chief Medical Officer, Facility Physician, Correctional

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Counselor I, Correctional Counselor II and Facility Captain participated in the committee. At that

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time, Plaintiff advised the committee that he was a document high risk of Valley Fever and should not

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be housed in the Kern County area. The committee determined that because Plaintiff’s transfer was an

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“adverse transfer,” he had to stay at KVSP.
A KVSP facility physician evaluated Plaintiff upon his arrival to KVSP. In July 2009, the

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physician advised Plaintiff that he was at high risk for Valley Fever and should not have come to the

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prison. He also repeated that Plaintiff was an adverse transfer.
In October 2009, Plaintiff contracted Valley Fever. He was rushed to Delano Regional

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Hospital with a 104° temperature. Plaintiff was advised that he had contracted Valley Fever while

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housed at KVSP. Plaintiff alleges that Valley Fever has caused chronic joint pain, skin discoloration,

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permanent lung damage and lung disease. He is currently taking medications for Valley Fever and has

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experienced night sweats, weight loss, fatigue and difficulty breathing.
IV.

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Discussion
A. Federal Rule of Civil Procedure 18

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Federal Rule of Civil Procedure 18 states that “[a] party asserting a claim, counterclaim,

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crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it

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has against an opposing party.” Fed. R. Civ. P. 18(a). “Thus multiple claims against a single party are

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fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant

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2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort

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of morass [a multiple claim, multiple defendant] suit produce[s] but also to ensure that prisoners pay

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the required filing fees—for the Prison Litigation Reform Act limits to 3 the number of frivolous suits

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or appeals that any prisoner may file without prepayment of the required fees.” George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007) (citing 28 U .S.C. § 1915(g)).
Here, Plaintiff is attempting to bring suit against multiple defendants for different incidents at

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different times and different institutions. For example, Plaintiff is attempting to bring suit against

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prison officials at Lancaster for transferring him to KVSP, while simultaneously bringing suit against

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prison officials at KVSP for retaining him in that facility. If Plaintiff chooses to file an amended

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complaint and it fails to comply with Rule 18(a), all unrelated claims will be subject to dismissal.

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B. Supervisory Liability

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Plaintiff may not impose liability on Defendants Howls and the Director of CDCR based on

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their roles as supervisors. Supervisory personnel may not be held liable under section 1983 for the

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actions of subordinate employees based on respondeat superior, or vicarious liability. Crowley v.

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Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab.,

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726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir.

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2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the

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constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s

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wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (citation and quotation

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marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter

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theory, supervisory liability exists even without overt personal participation in the offensive act if

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supervisory officials implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977

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(citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).
Plaintiff has failed to state a cognizable claim against Defendants Howls and the Director of

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CDCR.
C. Deliberate Indifference/Cruel and Unusual Punishment
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452

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U.S. 337, 347 (1981). A prisoner’s claim does not rise to the level of an Eighth Amendment violation

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unless (1) “the prison official deprived the prisoner of the “minimal civilized measure of life's

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necessities,” and (2) “the prison official ‘acted with deliberate indifference in doing so.’” Toguchi v.

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Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.

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2002) (citation omitted)). In order to find a prison official liable under the Eighth Amendment for

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denying humane conditions of confinement within a prison, the official must know “that inmates face

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a substantial risk of serious harm and disregard [ ] that risk by failing to take reasonable measures to

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abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).

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Defendants Wofford, Knowles, Nungaray, and Butler

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Plaintiff fails to state a cognizable claim for deliberate indifference against Defendants

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Wofford, Knowles, Nungaray and Butler regarding the proposed transfer. There is no indication that

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Defendants reviewed the restriction chrono or that they knew that transfer of Plaintiff to Kern County

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posed a serious risk that he would contract Valley Fever.

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Further, according to Plaintiff’s exhibits, Defendants Wofford, Knowles, Nungaray and Butler

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proposed transfer of Plaintiff to CCI-IV 180/SATF-IV 180. (ECF No. 14, p. 14.) However,

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Defendant Lee, CSR, reported that the facilities proposed by Defendants Wofford, Knowles, Nungaray

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and Butler were “not currently available.” (ECF No. 14, p. 15.) Defendant Lee endorsed Plaintiff to

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KVSP-IV(180). (ECF No. 14, p. 15.) Thus, Defendants Wofford, Knowles, Nungaray and Butler

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were not responsible for Plaintiff’s institutional placement at Kern Valley State Prison.

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Defendant Brian Lee

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Plaintiff fails to state a cognizable claim for deliberate indifference against Defendant Brian

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Lee. According to the exhibits, Defendant Lee endorsed Plaintiff for transfer to “KVSP-IV (18).”

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(ECF No. 14, p. 15.) However, there is no indication that Defendant Lee knew of the restriction

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chrono. Plaintiff’s conclusory statement that the chrono was in Plaintiff’s case file is not sufficient to

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demonstrate that Defendant Lee knew of any serious risk to Plaintiff’s health from a transfer to KVSP.

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Defendants Warden, Correctional Counselor I, Correctional Counselor II, Facility Captain,
Chief Medical Officer and Facility Doctor (North Kern)
Plaintiff fails to state a cognizable deliberate indifference claim against Defendants Warden,

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Correctional Counselor I, Correctional Counselor II, Facility Captain, Chief Medical Officer and

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Facility Doctor.

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With regard to the Facility Doctor, Plaintiff alleges that the doctor evaluated Plaintiff on his

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arrival to KVSP and was aware that Plaintiff suffered from asthma. Although the Facility Doctor

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reportedly acknowledged that Plaintiff should not have been transferred to KVSP, there is no

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indication that the Facility Doctor was responsible for the transfer of Plaintiff or had any ability to

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change Plaintiff’s housing assignment. Further, there are no factual allegations demonstrating

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knowledge of any risk of harm from exposure to Valley Fever at North Kern.
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With regard to the remaining defendants, Plaintiff alleges that they made no initial action of

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transferring Plaintiff to a different prison after receiving the medical chrono indicating that Plaintiff

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was at risk of catching Valley Fever. However, Plaintiff has not sufficiently alleged facts

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demonstrating when and how these defendants learned that Plaintiff was at risk of contracting Valley

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Fever. Plaintiff’s conclusory assertion that defendants received his medical chrono, without more, is

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not sufficient to demonstrate that these defendants knew of and disregarded a substantial risk of

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serious harm.
D. Doe Defendants

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Plaintiff has asserted claims against unknown defendants. “As a general rule, the use of ‘John

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Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980).

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Plaintiff is advised that Doe defendants (i.e., unknown defendants) cannot be served by the United

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States Marshal until Plaintiff has identified them as actual individuals and amended his complaint to

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substitute names for the Does.

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V.

Conclusion and Order

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Plaintiff has failed to state a cognizable claim against any individual defendant. As Plaintiff is

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proceeding pro se, the Court will grant Plaintiff a final opportunity to cure the identified deficiencies.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at

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678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555

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(citations omitted).

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Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims

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in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey, 693 F.3d at 927. Therefore, Plaintiff’s amended complaint must be “complete in itself without

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reference to the prior or superseded pleading.” Local Rule 220.
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Based on the foregoing, it is HEREBY ORDERED that:

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

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Plaintiff’s amended complaint is dismissed with leave to amend;

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

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amended complaint; and
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If Plaintiff fails to file a third amended complaint in compliance with this order, this

action will be dismissed for failure to obey a court order and failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 1, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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