Gaines v. Sherman et al

Filing 21

THIRD DISMISSAL ORDER (Strike) signed by District Judge Ralph R. Beistline on 9/6/2016. CASE CLOSED.(Lundstrom, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
LESLIE J. GAINES, JR.,
Case No. 1:15-cv-01533-RRB
Plaintiff,
THIRD 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, has filed his Second Amended Complaint under the Civil Rights Act (42
U.S.C. § 1983) against various officials of the California Department of Corrections and
Rehabilitation.1

Gaines’ Complaint arises out of his incarceration at the California

Substance Abuse Treatment Facility, Corcoran (“CSATF”) and Kern Valley State Prison
(“KVSP”), where he is currently incarcerated.

1

In addition to CSATF Warden Sherman, Gaines names as Defendants in his Second
Amended Complaint: Dr. Bonilla (SVSP Psychologist); Charles D. Lee (SVSP Chief Medical
Officer); Kipps (CSP LVN); Hurtz (CSP Psychologist); Metts (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.); Talli (CSP LVN); Oberlander (CSP Pyschologist); Hernandez (Correctional
Counselor I); C. Cryer (Chief Medical Officer); C.M. Raymos (Appeals Coordinator); and Does 1–
5 (American Disability Act Board Members); and Does 1-4 (Mental Health Staff).

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 The court
having set forth that standard in its initial Dismissal Order does not repeat them herein.
II.

BACKGROUND/GRAVAMEN OF SECOND AMENDED COMPLAINT
In screening the Complaint the Court dismissed Gaines’ claim under the Religious

Land Use and Institutionalized Persons Act without leave to amend.3 In addition, the Court
provided Gaines with explicit instructions with respect to the format and facts necessary
to be alleged in amending his complaint as to the remaining claims.4 Because Gaines
disregarded the explicit instructions given by the Court in the first Dismissal Order, the
Court summarily dismissed the First Amended Complaint.5
The 69-page, 211-paragraph Second Amended Complaint (“SAC”) alleges eight
causes of action.

Paragraphs 4 through 44, inclusive, identify the Defendants.

In

paragraph 45 Gaines attempts to assert that to the extent the acts complained of occurred
prior to September 15, 2011, the limitations period was tolled. In paragraph 46 Gaines
asserts he is classified as mobility impaired under the Americans with Disabilities Act.
Paragraphs 47 through 168, inclusive, set forth the factual background. Paragraphs 169
through 185, inclusive, allege facts pertaining to the Defendants’ intent. Paragraphs 186

2

28 U.S.C. § 1915A(a).

3

Although the Court granted Gaines leave to amend with respect to his claim under the
California Unruh Act (Cal. Civil Code § 51), Gaines has not raised that claim in his Second
Amended Complaint. Consequently, the Court assumes Gaines has abandoned that claim.
4

Docket 15.

5

Docket 19.

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through 194, inclusive, state facts concerning Gaines’ cruel and unusual punishment claim.
Paragraph 195 appears to set forth a history of Gaines’ attempts to satisfy his internal
administrative remedies.
Based upon those facts Gaines asserts eight separate causes of action against all
of the Defendants collectively.
First Cause of Action. Contends that the actions of the Defendants violated his First
Amendment right to file grievances.
Second Cause of Action.

Alleges that an attack on him by another inmate,

allegedly orchestrated by the Defendants, constituted a retaliation for his exercise of his
First Amendment rights to file grievances.
Third Cause of Action. Alleges that his denial approved medical appliances were
denied to him in retaliation for filing grievances, constituted cruel and unusual punishment,
and deliberate indifference.
Fourth Cause of Action. Alleges that in orchestrating an assault on him by another
inmate, Defendants violated Gaines’ Eighth Amendment right to be free of cruel and
unusual punishment.
Fifth Cause of Action. Alleges that his Eighth and Fourteenth Amendment rights
were violating by changing his diagnosis and promulgating information contained in his
mental health records to non-medical staff allegedly for the purpose of having Gaines
killed.
Sixth Cause of Action. Alleges that Defendants maliciously destroyed his personal
property.

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Seventh Cause of Action. Alleges that by refusing to properly treat his mental health
conditions Defendants were deliberately indifferent to Gaines’ serious medical needs.
Eighth Cause of Action. Alleges that a grand conspiracy existed among the
Defendants to deprive Gaines of his constitutionally protected rights.
Attached to the SAC are twelve exhibits. These include a copy of the August 2015
calendar with handwritten notations (Exhibit A); a partial copy of an CDCR 602 appeal
regarding property damage (Exhibit B); two canteen receipts (Exhibit C); CSP Corcoran
mail history (Exhibit D); Additional mail history (Exhibit E); copies of calendars
encompassing January through August 2014 (Exhibit F); copy of May 2015 calendar
(Exhibit G); CDCR 602-HC dated January 4, 2016 (Exhibit H); excerpt from RVR (Exhibit
I); one-page excerpt from an Inmate/Parolee Request for Interview or Service (Exhibit J);
and copies of a CDCR-602 submitted by Gaines on August 13, 2015 (Exhibit K).
Gaines seeks: (1) a declaration that the Defendants violated his rights; (2) a
preliminary and permanent injunction; (3) replacement of lost property; (4) replace lost
credits resulting from an RVR disciplinary action; (5) enjoin the Defendants from taking his
cane and medical appliances; (6) compensatory and punitive damages of $50,000 from
each defendant; and (7) punitive damages in the amount of $25,000 in punitive damages.
III.

DISCUSSION
Initially, the Court notes that the SAC is replete with numerous allegations of various

allegedly improper acts by one or more of the Defendants totally unrelated to any of the
eight claims asserted. This, which requires the Court to ”separate the wheat from the
chaff,” renders the screening process more difficult. The Court’s extensive review of these

THIRD DISMISSAL ORDER
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allegations reveals that they, whether viewed individually or collectively, do not give rise
any claims cognizable in this Court.
Gaines SAC also suffers from several procedural deficiencies. The Court initially
addresses the general deficiencies followed by analysis of each cause of action.
Information and Belief. Numerous allegations contained in the Second Amended
Complaint are based upon a general conclusory statement of “information and belief”
unsupported by specific factual allegations on which that “information and belief” is based.
Such allegations are insufficient.6 This is particularly true with respect to those allegations,
such as the alleged existence of a conspiracy (Gaines’ Eighth Cause of Action discussed
further below), that are inherently implausible on their face.7
Exhaustion.

Prior to seeking judicial relief, a prisoner must exhaust all

administrative remedies as may be available,8 irrespective of whether those administrative
remedies provide for monetary relief.9 The Supreme Court has stated: “Although not
jurisdictional, exhaustion is nonetheless mandatory, and there is no discretion to excuse
it.”10

“Proper exhaustion” means “complet[ing] the administrative review process in

6

Blantz v. Cal. Dep’t of Corr., 727 F.3d 917, 926–27 (9th Cir. 2013) (citing Ashcroft v. Iqbal,
556 U.S. 662, 696 (2009)).
7

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (dismissing a case where
the plaintiffs' allegations had “not nudged their claims across the line from conceivable to
plausible”).
8

42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion of
administrative remedies must be completed before filing suit).
9
10

See Booth, 532 U.S. at 734.
Porter v. Nussle, 534 U.S. 516, 524 (2002).

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accordance with the applicable rules,”11 including “compliance with an agency's deadlines
and other critical procedural rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.”12 Moreover, a
prisoner must exhaust his or her administrative remedies prior to filing suit, not during the
pendency of the suit.13
Exhaustion is an affirmative defense to be raised and proven by the defense.14 A
defendant has the initial burden to prove “that a grievance procedure existed, and the
prisoner did not exhaust that available remedy.”15 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.16
Procedurally, unless otherwise ordered by the Court, a prisoner is not required to
affirmatively plead exhaustion. Because “[e]xhaustion should be decided, if feasible, early
in the proceedings before reaching the merits of a prisoner’s claim,”17 in the interests of
judicial efficiency this Court requires prisoners to affirmative plead the facts establishing
exhaustion.

11

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

12

Woodford v. Ngo, 548 U.S. 81, 91 (2006).

13

42 U.S.C. § 1997e(a) (“[n]o action shall be brought . . . until [the prisoner’s] administrative
remedies . . . are exhausted.”); see Ngo, 548 U.S. at 85, 93–95.
14

Jones, 549 U.S. at 212–17; Albino v. Baca, 747 F3d 1162, 1166, 1168 (9th Cir. 2014 (en

15

Id. at 1172.

16

Id.

banc).

17

Albino, 747 F3d at 1170. 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.
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In its prior dismissal orders the Court specifically instructed Gaines to attach to the
Complaint copies of all documents referred to in the Complaint. The Court also instructed
Gaines that, in addition to pleading proper exhaustion, he should attach all documents
evidencing such exhaustion.18 California law provides for three levels of review,19 the third
level conducted by the Secretary of the California Department of Corrections and
Rehabilitation, or by a designated representative.20 Attached to his SAC are three CDCR
602s: Exhibit B (side 2 of a CDCR 602 referring to a property damage claim bearing a date
of January 30, 2013, appearing to be addressed to the second level of review); Exhibit H
(KVSP HC16036837, dated January 4, 2016, alleging a failure to establish/maintain an
appropriate treatment plan denied at the third level on August 2, 2016); and Exhibit K
(SATF-15-C-04167, dated August 13, 2015, alleging that Defendants D. Pelayo and M.
Leflar provided an inmate with a weapon used to assault Gaines).
In the Body of his SAC, Gaines identifies 17 CDCR 602's.21 Of these Gaines
alleges that five, spanning the period June 2013 through July 2014 were destroyed by
Defendant D. Stahl and the log numbers are unknown. Of the remaining 12 having log
numbers as described in the SAC eight may be relevant to the issues raised herein.
However, the Court’s specific instructions notwithstanding, except for KVSP HC16036837,
Gaines has not attached the documents establishing that he has exhausted his
18

Dockets 15, 19.

19

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.”).
20

See Brown v. Valoff, 422 F.3d 926, 929–30 (9th Cir. 2005).

21

Docket 20, pp. 61–62.

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administrative remedies, nor has he provided any explanation to why he could not as to
several.22
With respect to KVSP HC16036837, final administrative review was not completed
until August 2, 2016, nearly a year after the Complaint was filed. Normally a prisoner must
exhaust his administrative remedies prior to filing suit, not during the pendency of the suit.23
“If, however, a plaintiff files an amended complaint adding new claims based on conduct
that occurred after the filing of the initial complaint, the plaintiff need only show that the
new claims were exhausted before tendering the amended complaint to the clerk for
filing.”24 Because the acts of which Gaines complains all occurred prior to the date he
initially filed his Complaint, not after, that grievance does not constitute proper exhaustion.
A Court may dismiss an action on its own volition for the failure to follow a court
order.25 Here Gaines has clearly failed to follow the Court’s order regarding pleading
proper exhaustion.
Statute of Limitations. The Complaint is dated September 15, 2015. In both its
Dismissal Order and Second Dismissal Order the Court specifically instructed Gaines that,

22

In addition to SATF-15-C-04167, it appears that at least five others more likely than not
were not fully exhausted by the date Gaines filed his Complaint, September 15, 2015. Gaines also
refers to documents that were filed in connection with an earlier case filed in this Court, Gaines v.
Diaz, 1:13-cv-01478-MJS. In the interests of justice the Court has reviewed and takes judicial
notice of the file in that case under Fed. R. Evid. 201. As relevant to the exhaustion issue that
review shows that the only grievance attached thereto concerned a Sgt. Monroy, SVSP-L-12-02046
(Exhibit G to the Amended Complaint).
23

McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam).

24

Akhtar, 698 F.3d at 1210 (citing Rhodes v. Robinson, 621 F.3d 1002, 1007 (9th Cir.

25

Fed. R. Civ. P. 41(b); Yourish v. California Amplifier, 191 F.3d 983, 986–87 (9th Cir.

2010)).
1999).
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to the extent his action is based upon acts occurring prior to September 15, 2011, he must
set forth the specific facts that support the tolling of the limitations period.
In his Second Amended Complaint Gaines relies on the theory that, because he has
alleged a conspiracy, the “last-overt-act-doctrine” marks the starting point for the limitations
period.26 Because, as discussed below, the Court rejects Gaines conspiracy allegations,
Gaines argument fails. Accordingly, to the extent that Gaines’ allegations concerning the
actions of Dr. Bonilla occurring prior to September 15, 2011, they are barred by the statute
of limitations.27
Lost Credits. 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.28

Heck, however, does not bar a § 1983

claim that “threatens no consequence for [an inmates’] conviction or the duration of [his
or her sentence.]”29 To the extent that Gaines seeks invalidation of his RVR conviction
and restoration of his good time credits it is not within the province of this Court in a civil
rights action. Nor, because he has not pleaded he sought relief in the California Courts,
is it properly before the Court as a habeas corpus petition under 28 U.S.C. § 2254.
The Court further notes that in dismissing the Complaint, the Court specifically
instructed Gaines that if he intended to pursue this claim “he must: (1) identify the
26

Second Amended Complaint, ¶ 45.

27

These allegations are encompassed by ¶¶ 47–64. It appears that all other acts forming
th basis for this action occurred after September 15, 2011.
28

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).
29

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

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Defendant(s); (2) specifically allege the punishment, if any, imposed; and (3) attach a copy
of the disciplinary proceeding.”30 Gaines has failed to comply with the Court’s instructions.
Consequently, that claim will be dismissed as well.
Supervisory Capacity. The SAC names Defendants Sherman and Lee solely in their
supervisory capacity. The Supreme Court has held that “states or governmental entities
that are considered ‘arms of the State’ for Eleventh Amendment” are not “persons” under
§ 1983.31 The Supreme Court also clarified that “a suit against a state official in his or her
official capacity . . . . is no different from a suit against the state itself.”32 Thus a suit
against a state official may only be asserted against the official in his individual capacity.
Thus, to the extent a plaintiff seeks monetary damages from an official acting in his or her
official capacity the claim must be dismissed. Eleventh Amendment immunity does not,
however, preclude the granting of prospective relief.33
Accordingly, to the extent that Gaines seeks monetary damages from Defendants
Sherman and Lee it must be dismissed. To the extent that Gaines is seeking prospective
relief is dependent upon whether Gaines is otherwise entitled to such relief. As discussed

30

Docket 15, p. 13.

31

Will v. Mich. Dept. of State Police, 491 U.S. 58, 70 (1989).

32

Id. at 71; Kentucky v. Graham, 473 U.S. 159, 166 (1985) (holding that an official capacity
claim is simply “‘another way of pleading an action against an entity of which an officer is an
agent.’”) (quoting Monell v. Dep’t of Soc. Svcs. of N.Y. City, 436 U.S. 658, 690 n.55 (1978));
Edelman v. Jordan, 415 U.S. 651, 663 (1974) (stating that “when the action is in essence one for
the recovery of money from the state, the state is the real, substantial party in interest and is
entitled to invoke its [Eleventh Amendment] sovereign immunity from suit even though individual
defendants are nominal defendants”).
33

Ex parte Young, 209 U.S. 123 (1908). The Young doctrine “permits federal courts to
enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a
direct and substantial impact on the state treasury.” Milliken v. Bradley, 433 U.S. 267, 289 (1977).
THIRD DISMISSAL ORDER
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further below, Gaines is not so entitled.

Consequently, the Complaint as against

Defendants Sherman and Lee will be dismissed in it entirety.
First Cause of Action – First Amendment (Jailhouse Lawyer Activities).
Second Cause of Action – First Amendment (Retaliation)
These claims, which are but a single claim stated in somewhat different ways,
appear to contend that in some way the actions of the Defendants were taken in retaliation
for the filing of grievances.
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.34
Initially the Court notes that by his use of a “shotgun” approach in his First Cause
of Action Gaines does not identify which activity of which Defendant had an adverse effect
on his First Amendment right. Except as alleged in his Second Cause of Action, it does
not appear from the SAC that any adverse action or actions taken by which Defendant met
the foregoing standard. Thus, standing alone, the First Cause of Action does not state
facts sufficient to warrant the granting of any relief.
With respect to the Second Cause of Action Gaines contends that the assault
alleged in the Fourth Cause of Action was instigated by the Defendants in retaliation for
the filing of grievances. Therefore, because this Cause of Action stands or falls on the
Fourth Cause of Action, it fails for the same reason the Fourth Cause of Action fails.

34

Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (applied in Brodheim v. Cry,
584 F.3d 1262, 1269–72 (9th Cir. 2009)).
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Third Cause of Action (Deliberate Indifference).
Appears to allege that in stopping his medications, rescinding the order for a painrelieving cane, and removing all restrictions on Gaines’s activities, i.e., ground floor cell,
lower bunk, and weight lifting restrictions, Dr. Metts acted with deliberate indifference to
Gaines’ serious medical needs subjecting Gaines to cruel and unusual punishment.
The Supreme Court, holding that the infliction of unnecessary suffering on prisoners
violated the Eighth Amendment, stated:
[D]eliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed. Regardless of how
evidenced, deliberate indifference to a prisoner’s serious illness or injury
states a cause of action under § 1983. 35
In Estelle the Supreme Court distinguished “deliberate indifference to serious medical
needs of prisoners,” from “negligen[ce] in diagnosing or treating a medical condition,”
holding that only the former violates the Constitution.36 In short, Eighth Amendment liability
requires “more than ordinary lack of due care for the prisoner's interests or safety.”37
In determining deliberate indifference, the court scrutinizes the particular facts and
looks for substantial indifference in the individual case, indicating more than mere

35

Estelle v. Gamble, 429 U.S. 97, 104–105 (1976) (footnotes, internal quotation marks and
citations omitted).
36

Id. at 106.

37

Whitley v. Albers, 475 U.S. 312, 319 (1986).

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negligence or isolated occurrences of neglect.38 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.39
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. 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.40
To make a claim, Plaintiff must show that a defendant exhibited “deliberate
indifference to serious medical needs.”41 Such a showing is sufficient to demonstrate the

38

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

39

Jett v. Penner, 429 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks and
citations omitted).
40

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).
41

Estelle v. Gamble, 429 U.S. 97, 105 (1976).

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“unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.”42 The
Constitution “does not necessitate comfortable prisons,”43 nor is the Eighth Amendment a
mandate for “broad prison reform” or excessive federal judicial involvement.44 However,
the Eighth Amendment does not permit inhumane conditions, and prison conditions are
subject to scrutiny under its provisions.45
“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.”46 A mere difference of medical opinion regarding the course of medical
treatment is “insufficient as a matter of law, to establish deliberate indifference.”
At best, the allegations in the Third Cause of Action establish nothing more than a
difference of medical opinion. Thus, the Third Cause of Action must also be dismissed for
failure to state a claim upon which relief may be granted.
Fourth Cause of Action (Assault).
The Fourth Cause of Action is predicated upon an alleged assault (stabbing) on
Gaines by a fellow prisoner. Gaines asserts two theories: (1) that the assault was

42

Id. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)) (internal quotation marks
and citation omitted)).
43

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S.
337, 349 (1981))
44

Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (abrogated on other grounds by
Sandlin v. O’Connor, 515 U.S. 472 (1995)).
45

Farmer, 511 U.S. at 832.

46

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).
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instigated by several of the Defendants; and (2) other Defendants denied him proper
medical care. Both theories fail.
Because the allegation that correctional officers somehow 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. In addition to being inherently improbable, those allegations are based
upon nothing more than innuendo and supposition.
With respect to the alleged denial of medical care, Gaines does not describe with
particularity the nature of the wounds he suffered, the damages he incurred as a result of
the alleged failure to provide medical attention to his wounds, or that he suffered any illeffects from the lack of medical treatment. Indeed, it is apparent from Gaines’ allegations
that he did not suffer any serious injury.
151. Defendants Talli, Metts, Sami, and Kipps were all aware of the injuries
to plaintiff, yet none of them offered any type of treatment to plaintiff, while
the defendants were all aware of the plaintiff’s injuries and they were all
witness to the untreated wounds. Defendants Talli, Metts, Sami, and Kipps
only looked and walked away. An officer at a later time offered plaintiff a cup
to fill with water to rinse the wounds sustained in the attack. 47
Notably absent are any allegations concerning any later treatment Gaines may or
may not have received for the wounds, or any significant injury resulting from the failure
to provide him with immediate medical attention. While this Court does not condone such
action by correctional officers, while it may suffice to warrant relief under applicable State
law, it does not rise to the level of a constitutional violation. Accordingly, the Fourth Cause

47

Docket 20, p. 46.

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of Action will also be dismissed for failure to state a claim upon which relief may be
granted.
Fifth Cause of Action (Mental Health Misclassification).
Here Gaines alleges that by changing his diagnosis and disclosing the information
contained in his mental health records to non-medical staff Defendants violated his rights
under the Eighth and Fourteenth Amendments.48 To the extent that this cause of action
is based upon the change in Gaines’ diagnosis, it fails for the same reasons as did the
Third Cause of Action, it is based upon a mere difference of medical opinion regarding the
course of medical treatment. To the extent it based upon the alleged disclosure of his
medical information tp non-medical personnel, it fails to state a claim cognizable in this
Court.49
Therefore, the Fifth Cause of Action must also be dismissed for failure to state a
claim upon which relief may be granted.
Sixth Cause of Action (Destruction of Property).
Alleges that Defendants maliciously destroyed his personal property.

An

unauthorized intentional deprivation of property is not a violation of the Due Process
Clause of the Fourteenth Amendment where the state provides a meaningful post-

48

The Court notes that the alleged improper disclosure occurred prior to September 15,
2011, and is therefore barred by the statute of limitations in any event.
49

The Court notes that in adding the conclusory descriptive adjectives “maliciously and
sadistically” does not add any weight to this claim.
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deprivation remedy for the loss.50 California does provide such a remedy.51 Accordingly,
the Sixth Cause of Action will be dismissed.
Seventh Cause of Action (Deliberate Indifference).
Alleges that in mis-diagnosing and refusing to treat his severe mental health
conditions Defendants were deliberately indifferent to Gaines’ serious medical needs.
Because it is unsupported by any competent medical evidence, this cause of action fails
for the same reasons as did the Third Cause of Action,52 and will be dismissed for failure
to state a claim upon which relief may be granted.
Eighth Cause of Action – Conspiracy.
In his Eighth Cause of Action Gaines has joined several different actions by different
defendants at different times alleging that acts of each were all part of some alleged grand
conspiracy to deprive him of his constitutionally protected rights as alleged in the first
seven causes. As the Court pointed out in dismissing the Complaint, 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.53 As was the case in Gaines’ Complaint
the Second Amended Complaint, which is drafted in purely conclusory terms, falls far short
of meeting this standard. Furthermore, because as discussed above the allegation that
correctional officers and medical personnel conspired with prisoners to inflict serious bodily
50

Hudson v. Palmer, 468 U.S. 517, 533 (1984).

51

Barnett v. Centoni, 31 F.3d 816–17 (9th Cir. 1994) (per curium); see Cal. Gov’t Code
§§ 810-895 (Claims and Actions Against Public Entities and Public Employees);
52

The Court notes that, as with his Fifth Cause of Action, in adding the conclusory
descriptive adjectives “maliciously and sadistically” does not add any weight to this claim.
53

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).
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injury or death on Gaines, if proven, could result in a criminal prosecution of the
Defendants, it is inherently improbable that such a conspiracy existed.54 Accordingly, the
Eighth Cause of Action will also be dismissed for failure to state a claim upon which relief
may be granted.
IV.

CONCLUSION/ORDER
Because it fails to plead facts sufficient to warrant granting the relief requested, or

any relief at all, the Second Amended Complaint is hereby DISMISSED in its entirety.
“[W]hen a district court has already granted a plaintiff leave to amend, its discretion
in deciding subsequent motions to amend is particularly broad.”55 In addition to his failure
to follow the explicit instructions given, it is evident that, even if the procedural defects are
cured, Gaines cannot plead a plausible cause of action against any Defendant.
Consequently, dismissal is without further leave to amend.56
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of Gaines’ constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.
Therefore, any appeal would be frivolous or taken in bad faith.57 Accordingly, Plaintiff’s in
forma pauperis status is hereby REVOKED.

54

The Court notes that the Complaint spans a period exceeding five years involving three
separate incarcerations: twice at CSATF with an intervening incarceration at CSP, Cochran.
55

See Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (citation and internal
quotation marks omitted).
56

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).
57

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir.

2002).
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The Clerk of the Court is directed to enter judgment of dismissal, with prejudice,
which states that the dismissal counts as a “strike” under 42 U.S.C. § 1915(g).
IT IS SO ORDERED this 6th day of September, 2016
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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