Gaines v. Sherman et al

Filing 15

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by District Judge Ralph R. Beistline on 05/13/2016. Amended Complaint due by 6/27/2016 (Martin-Gill, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
LESLIE J. GAINES, JR.,
Case No. 1:15-cv-01533-RRB
Plaintiff,
DISMISSAL ORDER
vs.
STU SHERMAN (Warden), et al.,
Defendants.

Plaintiff Leslie J. Gaines, Jr., a California state prisoner appearing pro se and in
forma pauperis, brings this civil rights action under the Civil Rights Act (42 U.S.C. § 1983),
the Americans With Disabilities Act (“ADA”) (42 U.S.C. §§ 12101, et seq.), the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”) (42 U.S.C. § 2000cc), and the
California Unruh Act (Cal. Civ. Code § 51) against various officials of the California
Department of Corrections and Rehabilitation. 1
1

In addition to Warden Sherman, Gaines names as Defendants in the caption: Dr.
Bonilla (SVSP Psychologist); Charles D. Lee (SVSP Chief Medical Officer); Kipps (CSP
LVN); Hurtz (CSP Psychologist); Metz (CSP Primary Care Physician); Vella (CSP
Correctional Counselor II); Reynoso (CSP Correctional Officer); Beasly (CSP Correctional
Officer); D. Lopez (CSP Correctional Lt.); Curtis (CSP Correctional Lt.); D. Stohl (CSP
Correctional Lt.); Reynoso (CSP Correctional Lt.); Peterson (CSP Correctional Counselor
I); M. Leflar (CSP Correctional Officer); D. Pelayo (CSP Correctional Officer); A. Sami
(CSP LVN); J. Rising (CSP Correctional Officer) E. Rivera (CSP Correctional Officer);
Renning (CSP Correctional Officer); L. Lorenzo (CSP Correctional Officer); Castelle (CSP
Correctional Sgt.); M. Hacker (CSP Correctional Capt.); Mueller (CSP Correctional Officer);
Sanchez (CSP Correctional Officer); Kuffeeh (CSP Correctional Officer); Arreazolla (CSP
Correctional Officer); Doering (CSP Correctional Officer); Davidson (CSP LVN); Boyd (CSP
Correctional Officer); Flemming (CSP Correctional Officer); Dunning (CSP Correctional
Officer); Boliva (CSP LVN-MTA); Papsqualli (CSP LVN); Ward (CSP Correctional Lt.); Tally
(continued...)
DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-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

1

(...continued)
(CSP LVN); Oberlander (CSP Pyschologist); Hernandez (Correctional Counselor I); Does
1– 5 (American Disability Act Board Members); and Does 1-4 (Mental Health Staff).
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).

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Gaines v. Sherman, 1:15-cv-01533-RRB – 2

accusation.”7 Failure to state a claim under § 1915A incorporates the familiar standard
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
The factual allegations in Gaines’ Complaint consist of the incorporation of what is

captioned as an Amended Complaint in Gaines v. Sherman, Case No. 1:13-cv-01478.13

7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 555 (2007)).
8

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

9

Iqbal, 556 U.S. at 678–79; 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).

13

Docket 1, pp. 8–37.

DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 3

The records in that case indicate that it was voluntarily dismissed without prejudice at
Gaines request on October 28, 2014. 14
Gaines is classified as mobility impaired under the Americans with Disabilities Act.
As a result Gaines wears wrist and knee braces, is provided a cane and orthopedic shoes,
assigned to a ground floor/lower berth cell, restrictions on his physical activity, and
emotional problems.

Consistent with the structure of the Complaint, consisting of

sequentially number paragraphs without any identifiable separation of the claims by either
nature or time, the Court will group it by the allegations made against each Defendant or
group of Defendants where the Defendants are alleged to have acted in concert.
Dr. Bonilla — Gaines characterizes Dr. Bonilla, the psychologist at SVSP, as a
transgender male in a female body and a homosexual. After describing his interactions
with Dr. Bonilla and his religious beliefs regarding homosexuality, Gaines alleges that Dr.
Bonilla: (1) erroneously changed his diagnosis from depression/bipolar/schizophrenic to
pedophilia; (2) challenged Gaines to a fight; (3) caused two unnamed sergeants at SVSP
to threaten Gaines with death if Gaines did not withdraw his grievance against Dr. Bonilla;
and (4) instigated his transfer to CSATF.15
Curtis, Dunning, Flemming, Boyd, and D. Pelayo — The correctional officers
assigned to the housing unit in which Gaines was assigned upon his arrival at CSATFCorcoran. The allegations as against them appear to arise out of Gaines’ arrival at
CSATF-Corcoran and the period immediately thereafter. The allegations are directed

14

Case No. 1:13-cv-01478-MJS, Docket 21. The Court takes judicial notice of the
file in that case. Fed. R. Evid. 201.
15

Complaint, pp. 14–18, ¶¶ 23–36.

DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 4

against Curtis and appear to contend that by tone of voice and Gaines’ subjective
interpretation of the words used Curtis was threatening Gaines with retaliation if Gaines
continued to file grievances. Although they were present at the time of the alleged
interaction between Gaines and Curtis, it does not appear that either Dunning or Flemming
were involved or participated. With respect to Boyd and Pelayo, other than to be identified
by name, there are no allegations made against them. Gaines also accuses Curtis, Boyd,
Flemming, Dunning, and Pelayo of being part of an operation introducing contraband into
CSATF.16
D. Lopez — Although it is unclear, Gaines appears to allege that Lopez threatened
Gaines with placement in Ad-Seg if Gaines did not accede to being issued two regular
mattresses instead of the regular mattress and orthopedic mattress to which Gaines was
entitled under the medical chrono.17
E. Reynoso — The claim against Reynoso appears to be that Reynoso implied that
Gaines should kill Gaines’ cell mate. When he declined, Gaines was sent to Ad-Seg.
Gaines further alleges that Reynoso failed to promptly and properly inventory Gaines’
property as a result of which several items of Gaines’ property were lost.18

16

Id., pp. 18–23, ¶¶ 37–46, 50–53.

17

Id., pp. 21–22, ¶¶ 48–49

18

Id., pp. 23–27, ¶¶ 54–66. In the caption Gaines identifies two Defendants by the
name Reynoso: a Correctional Officer and a Correctional Lieutenant. Gaines does not
identify against which of the two these allegations are addressed. In amending his
Complaint Gaines should specifically identify which Reynoso committed the act underlying
his claim.
DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 5

LVNs Kipps, Davidson, Boliva, Papsqualli, and Tally — Allegedly signed doctor’s
orders changing Gaines’ use of a cane and work restrictions, and lied on the RVR reports
that apparently led to RVR violation conviction.19
Beasley, Renning, D. Pelayo, M. Leflar, Arreazolla, Kufeeh, Sanchez, Mueller, and
Rivera — Allegedly used Boyd’s inmate criminal group to attack Gaines with a knife.20
A. Sami — Gaines contends that he did not receive medical treatment for an alleged
stabbing on August 15, 2015. Gaines does not provide any factual basis for this allegation
other than to allege that Sami wrote a medical report following an examination on that
date.21
Oberlander — In response to Gaines declining to leave his cell to be interviewed
Oberlander, a psychologist, allegedly remarked in a loud voice: “Is it because you feel bad
about being in prison for child molestation.” Gaines further alleges that as a result of
Oberlander’s remark an attempt was made on Gaines’ life by other inmates.22
Mueller, Arreazolla, Rivera, Castelle, Sanchez, Kuffeeh, Doering, and Ward —
Allegedly blocked an appeal Gaines made to the Warden to be removed from an “all Crip
Gang member” building, allegedly so that the inmates who were allegedly working with the
Defendants to introduce contraband into the prison could kill Gaines. 23

19

Id., p. 28, ¶ 70.

20

Id.

21

Id.

22

Id., p. 29, ¶¶ 71–73.

23

Id., pp. 29–30, ¶ 74.

DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 6

As and for relief Gaines seeks: (1) a declaration that his rights were violated; (2)
reverse the guilty findings of the disciplinary proceeding; (3) restoration of the good time
credits; (4) expunge the disciplinary proceeding from the records; (5) compensatory
damages of $50,000 against each Defendant; (6) recovery of lost/destroyed property; and
(7) such other relief as may be justified. In addition, Gaines seeks to have the filing fee he
is paying in this prior case (1:13-cv-01748-MJS) apply to this case.
III.

DISCUSSION
As discussed below, as presently constituted Gaines’ Complaint suffers from several

infirmities. As a result, the Complaint will be dismissed for failure to state facts upon which
relief may be granted.
Exhaustion. Exhaustion of administrative remedies prior to bringing suit is required
irrespective of the relief sought by the prisoner and regardless of the relief provided by the
process.24 Although not jurisdictional, exhaustion is nonetheless mandatory, and there is
no discretion to excuse it.25 “Proper exhaustion” means “complet[ing] the administrative
review process in accordance with the applicable rules.” 26 “The level of detail necessary
in a grievance to comply with the grievance procedures will vary from system to system and
claim to claim, but it is the prison's requirements, and not the PLRA, that define the

24

42 U.S.C. § 1997e(a) (mandating that “[n]o action shall be brought . . . until [the
prisoner’s] administrative remedies . . . are exhausted.”); Woodford v. Ngo, 548 U.S. 81,
85 (2006); Booth v. Churner, 532 U.S. 731, 742 (2001).
25

Porter v. Nussle, 534 U.S. 516, 524 (2002).

26

Jones v. Bock, 549 U.S. 199, 218 (2007).

DISMISSAL ORDER
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boundaries of proper exhaustion.”27 Although all available remedies must be exhausted,
“those remedies need not meet federal standards, nor need they be plain, speedy and
effective.”28 “For prisons, . . ., that do not instruct prisoners on what precise facts must be
alleged in a grievance, a grievance suffices if it alerts the prison to the nature of the wrong
for which redress is sought.”29 California provides a procedure for prisoner grievances.30
A prisoner is not required to affirmatively plead exhaustion. Instead, exhaustion is
an affirmative defense to be raised and proven by the defense.31 “Exhaustion should be
decided, if feasible, early in the proceedings before reaching the merits of a prisoner’s
claim.”32 This will usually be by a motion for summary judgment,33 priced, however, “in

27

Id.

28

Porter v. Nussle, 534 U.S. 516, 524 (2002) (quoting Booth, 532 U.S. at 739)
(internal quotation marks omitted)).
29

Akhtar v. Mesa, 698 F.3d 1202, 1211 (9th Cir. 2012) (internal citations and
quotation marks omitted).
30

Cal. Code Regs. tit. 15, § 3084.1(b) (“Unless otherwise stated in these
regulations, all appeals are subject to a third level of review, as described in section
3084.7, before administrative remedies are deemed exhausted. All lower level reviews are
subject to modification at the third level of review.”). Section 3084.7 provides for three
levels of review, the third level conducted by the Secretary of the California Department of
Corrections and Rehabilitation, or by a designated representative. See Brown v. Valoff,
422 F.3d 926, 929–30 (9th Cir. 2005)
31

Jones v. Bock, 549 U.S. 199, 212–17 (2007); Albino, 747 F3d at 1166, 1168.

32

Albino v. Baca, 747 F3d 1162, 1170 (9th Cir. 2014) (en banc). The Ninth Circuit
also noted that “if discovery is appropriate, the district court may in its discretion limit
discovery to evidence concerning exhaustion, leaving to later—if it becomes
necessary—discovery directed to the merits of the suit.” Id.
33

Id. at 1166, 1168–69 (overruling in part Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.

2003)).
DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 8

those rare cases where a failure to exhaust is clear from the face of the complaint, a
defendant may move under Rule 12(b)(6) for failure to state a claim.”34
A defendant has the initial burden to prove “that a grievance procedure existed, and
the prisoner did not exhaust that available remedy.”35 Once a defendant has met this
burden, the burden shifts to the plaintiff to demonstrate that the grievance procedure was
inadequate, ineffective, unobtainable, unduly prolonged, inadequate, or futile.36 If a court
finds that a plaintiff has failed to exhaust, “the proper remedy is dismissal of the claim
without prejudice.”37 It is the policy of this Court to address the issue of exhaustion as early
in the proceeding as possible. Thus, a prisoner must specifically plead the facts evidencing
that all available remedies have been exhausted with respect to each claim asserted. The
Complaint in this case does not meet that standard.
ADA. Title II of the Americans With Disabilities Act38 applies to inmates in state
correctional systems.39 Gaines unquestionably is a disabled person as defined in the
ADA.40 Under the ADA “no qualified individual with a disability shall, by reason of such
disability, be excluded from the benefits of services, programs, or activities of a public

34

Id. at 1166.

35

Id. at 1172.

36

Id.

37

Wyatt, 315 F.3d at 1120 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s
Union, 837 F.3d 365, 368 & n.3 (9th Cir. 1988) (per curiam)).
38

42 U.S.C. §§ 12131–12165.

39

Armstrong v. Wilson, 124 F.3d 1019, 1022–23 (9th Cir. 1997).

40

42 U.S.C. § 12131(2).

DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 9

entity, or be subjected to discrimination by any such entity.”41 It is unclear just what act of
which Defendant falls within the scope of Title II. Gaines has not identified any service,
program, or activity of which he has been denied the benefits. Although it is unlikely that
Gaines can truthfully plead facts that fall within the scope of Title II of the ADA, the Court
will grant him the opportunity to do so.
RLUIPA. The Religious Land Use and Institutionalized Persons Act provides:
(a) General rule. No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an institution, as
defined in section 1997 of this title, even if the burden results from a rule of
general applicability, unless the government demonstrates that imposition of
the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
(b) Scope of application. This section applies in any case in which—
(1) the substantial burden is imposed in a program or activity that
receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial
burden would affect, commerce with foreign nations, among the several
States, or with Indian tribes. 42
Congress enacted the RLUIPA under its Spending Clause and Commerce Clause
powers.43 In so doing, Congress limited its reach to state and local government land-use
regulations and restrictions on the religious exercise of institutionalized persons.44 “With
respect to prisons, RLUIPA’s reach is limited to prohibiting a ‘government’ from burdening

41

42 U.S.C. § 12132.

42

42 U.S.C. § 2000cc-1.

43

Sossamon v. Texas, 563 U.S. 277, 281 (2011).

44

Id.

DISMISSAL ORDER
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religious exercise in correctional institutions.”45 In that respect, RLUIPA provides that “no
government shall impose a substantial burden on the religious exercise” of an
institutionalized person unless the government demonstrates that the burden “is in
furtherance of a compelling government interest” and “is the least restrictive means of
furthering” that interest.46
The problem Gaines faces in this case is that nothing in his Complaint even
remotely supports a judgment in his favor based upon the RLUIPA. it is also evident from
the Complaint that Gaines cannot truthfully plead facts sufficient to warrant the granting of
any relief under the RLUIPA. Consequently, to the extent Gaines seeks relief under the
RLUIPA, dismissal will be without leave to amend.
Deliberate Indifference. “Deliberate indifference is a high legal standard. A showing
of medical malpractice or negligence is insufficient to establish a constitutional deprivation
under the Eighth Amendment.”47 A mere difference of medical opinion regarding the
course of medical treatment is “insufficient as a matter of law, to establish deliberate
indifference.”48 A defendant must purposely ignore or fail to respond to a prisoner’s pain

45

Woody v. Yordy, 753 F.3d 899, 902 (9th Cir. 2014).

46

Sossaman, 563 U.S. at 281.

47

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
curiam) (noting mere indifference, medical malpractice, or negligence do not support a
cause of action under the Eighth Amendment).
48

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
(continued...)
DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 11

or medical need in order for deliberate indifference to be established. Where the claim is
based upon delay in providing a specified treatment, a prisoner has no claim for deliberate
medical indifference unless the delay was harmful.49
The allegations of the Complaint, directed against Sami for allegedly failing to
provide treatment on the date of the stabbing incident, fall far short of meeting this
standard. Likewise, the allegation that Dr. Bonilla erroneously changed Gaines’ diagnosis
from depression/bipolar/schizophrenic to pedophilia also falls far short. Accordingly, those
claims must also be dismissed. Although it is highly unlikely that Gaines can truthfully plead
sufficient facts to support a medical indifference claim the Court will grant him an
opportunity to amend.
Conspiracy. Plaintiff makes general, omnibus allegations that some of the
Defendants in doing the myriad of acts alleged were doing so in the furtherance of some
grand conspiracy. A plaintiff must plead the basic elements of a civil conspiracy: an
agreement and concerted action amongst the defendants in the furtherance of that
agreement.50 Because it is presently drafted in purely conclusory terms, the Complaint falls
far short of meeting this standard. Furthermore, because the allegation that correctional

48

(...continued)
over the most appropriate course of treatment cannot give rise to a viable claim of
deliberate indifference).
49

McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other
grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
50

See Wasco Products, Inc. v. Southwall Technologies, Inc., 435 F.3d 989, 990–91
(9th Cir. 2006); see also Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008)
(noting that a bare allegation of a conspiracy is almost impossible to defend against where
numerous individuals are concerned).
DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 12

officers conspired with prisoners to inflict serious bodily injury or death on Gaines, if
proven, could result in a criminal prosecution of the correctional officers involved, it is
inherently improbable that such a conspiracy existed. That fact notwithstanding, the Court
will grant Gaines an opportunity to properly plead a conspiracy.
Disciplinary Proceeding. Gaines appears to challenge the validity of a disciplinary
proceeding in which he alleges his due process rights were denied.51 Under Heck an
inmate may not seek damages in a § 1983 claim when establishing the basis for the claim
necessarily involves demonstrating that the conviction, sentence, or length of incarceration
is invalid.52 Heck, however, does not bar a § 1983 claim that “threatens no consequence
for [an inmates’] conviction or the duration of [his or her sentence.]”53 Because as
presently pleaded the result of the disciplinary proceeding does not appear, the Court
cannot determine whether or not this claim falls within the scope of Heck. Should Gaines
intend to pursue this claim further in his Amended Complaint he must: (1) identify the
Defendant(s); (2) specifically allege the punishment, if any, imposed; and (3) attach a copy
of the disciplinary proceeding.
Omitted Defendants. Although named in the Caption and identified as Defendants,
Gaines does not include any factual allegations in the body of the Complaint against:
Warden Sherman; Charles D. Lee (Chief Medical Officer); Hurtz (CSP Pyschologist); Vella

51

Docket 1, p. 27, ¶ 67.

52

See Heck v. Humphrey, 512 U.S. 477, 486–97 (1994); see also Edwards v.
Balisok, 520 U.S. 641, 643–47 (1997) (extending the Heck rule to § 1983 claims that, if
successful, would imply the invalidity of deprivations of good-time credits provided for by
prison disciplinary proceedings).
53

Muhammed v. Close, 540 U.S. 749, 751 (2004).

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(Correctional Counselor II); D. Stohl (Correctional Lt.); Peterson (CSP Correctional
Counselor); L. Lorenzo (CSP Correctional Officer); or M. Hacker (CSP Correctional Capt.).
Consequently, as against these Defendants the Complaint fails to allege facts sufficient to
warrant granting any relief, and the Complaint must be dismissed as against them.
In amending his Complaint Gaines should keep certain principles in mind. To
impose liability on a supervisor, the supervisor’s wrongful conduct must be sufficiently
causally connected to the constitutional violation.54 That is, the official must “implement
a policy so deficient that the policy itself is a repudiation of constitutional rights and is the
moving force of the constitutional violation.”55
A person deprives another “of a constitutional right, within the
meaning of section 1983, if he does an affirmative act, participates in
another's affirmative acts, or omits to perform an act which he is legally
required to do that causes the deprivation of which [the plaintiff complains].”
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978) (Johnson) (emphasis
added). The inquiry into causation must be individualized and focus on the
duties and responsibilities of each individual defendant whose acts or
omissions are alleged to have caused a constitutional deprivation. [Citations
omitted.]56
In amending his Complaint as against these Defendants, in the absence of a specific
allegation of otherwise actionable conduct, Gaines must allege specific facts that fall within
the foregoing standard.

54

See Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en
banc) (abrogated in part on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994)).
55

Id. (internal quotation marks and citations omitted).

56

Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoted with approval in
Tennison v. City and County of San Francisco., 570 F.3d 1078, 1096 (9th Cir. 2009)).
DISMISSAL ORDER
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Doe Defendants. As a general rule, the use of “John Doe” to identify a defendant
is not favored.57 “[W]here the identity of alleged defendants will not be known prior to the
filing of the complaint[,] . . . the plaintiff should be given an opportunity through discovery
to identify the unknown defendants.”58 Dismissal for failure to identify unnamed defendants
is appropriate only if “it is clear that discovery would not uncover the identities, or that the
complaint would be dismissed on other grounds.”59
Here, Gaines does not allege any facts that support a claim against either the
California Disability Act Board Members or the Mental Health Staff. Nor does it appear
from the Complaint that Gaines can truthfully allege a viable claim against either the
California Disability Act Board Members or the Mental Health Staff. Furthermore, Gaines
uses the same Doe 1–4 to identify both sets of Doe Defendants. Should he elect to
include those Defendants Gaines should use separate Doe numbers for each set of
Defendants as well as specific facts that support a viable claim.
Unruh Act. To the extent that Gaines alleges that the actions of Defendants violated
state law, § 1983 does not provide a cause of action for those claims.60 In addition, a
Plaintiff must show compliance with the presentment requirements of the California Tort
Claims Act.61

In this case, it does not appear that Gaines has complied with the

57

See Wiltsie v. Calif. Dept. of Corr., 406 F.2d 515, 518 (9th Cir. 1968).

58

Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).

59

Id.

60

Loftis v. Almagar, 704 F.3d 645, 647 (9th Cir. 2012) (citing Estelle v. McGuire,
502 U.S. 62, 67 (1991).
61

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

1988).
DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 15

requirements of presenting a claim a tort claim under California law; nor does it appear
likely that he could have. In amending his Complaint Gaines must specifically allege
compliance with the California Tort Claims Act and attach the documents evidencing such
compliance.
Filing Fee. There is no authority that permits the Court to apply the filing fee
assessed in a prior case that was voluntarily apply to a subsequent case. Consequently,
the request that the filing fee in Gaines v. Sherman, Case No. 1:13-cv-01478 be applied
to this case must be denied.
IV.

ORDER
The request to have the filing fee assessed in Gaines v. Sherman, Case No. 1:13-

cv-01478 applied to this case is hereby DENIED.
The Claim under The Religious Land Use and Institutionalized Persons Act is
hereby DISMISSED without leave to amend.
All other claims are hereby DISMISSED with leave to amend.
Plaintiff is granted through and including Monday, June 27, 2016, within which to
file an Amended Complaint consistent with this Order.

In preparing his Amended

Complaint, Plaintiff must:
1.

Adhere to the Federal Rules of Civil Procedure regarding pleadings, in

particular, Rule 8(a), which provides—
(a) CLAIM FOR RELIEF. A pleading that states a claim for relief must
contain:
(1) a short and plain statement of the grounds for the court’s
jurisdiction, unless the court already has jurisdiction and the claim needs no
new jurisdictional support;

DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 16

(2) a short and plain statement of the claim showing that the pleader
is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
2.

Use and follow the instructions for completing the form provided by the Clerk

of the Court.
3.

With respect to each claim plead without legal argument or citation to

authority the facts entitling him to relief, specifically: (1) the identity of the person(s) doing
the act; (2) description of the act and the date it occurred; (3) the harm/injury suffered as
a result of the act; and (4) the specific relief requested, e.g., amount of monetary damages.
4.

Sequentially number paragraphs and, to the extent based upon separate

events either in time or nature, separate and caption each claim, e.g., “First Cause of
Action – Deliberate Indifference” or “Second Cause of Action – Denial of Due Process.”
5.

Attach copies of all documents referred to in the body of the complaint to the

extent that copies of such documents are within his possession, custody, or control.
6.

If the act occurred prior to September 15, 2011, set forth specific facts that

support the tolling of the limitations period.
7.

With respect to each claim affirmatively plead that he has exhausted his

available administrative remedies or was prevented by circumstances beyond his control
from exhausting his administrative remedies and, to the extent they are in his possession,
custody, or control, attach to the Amended Complaint copies of all documents evidencing
such exhaustion.

DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 17

In the event Plaintiff fails to file an amended complaint consistent with this
Order within the time specified, or such later time as the Court may order, a
judgment of dismissal may be entered without further notice.
IT IS SO ORDERED this 13th day of May, 2016.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

DISMISSAL ORDER
Gaines v. Sherman, 1:15-cv-01533-RRB – 18