Jones v. Magallon

Filing 22

ORDER Requiring Plaintiff to Either File a Second Amended Complaint or Notify Court of Willingness to Proceed Only on Cognizable Claims Against Defendant Magallon, signed by Magistrate Judge Michael J. Seng on 1/30/2017. (Case Management Deadline: 30-Day Deadline) (Attachments: # 1 Complaint, dated 01/13/17, # 2 Amended Complaint Form)(Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 HOLLIE JONES, 12 CASE NO. 1:15-cv-01897-DAD-MJS (PC) Plaintiff, 13 14 15 v. Y. MAGALLON, (ECF NO. 21) 16 17 ORDER REQUIRING PLAINTIFF TO EITHER FILE A SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS AGAINST DEFENDANT MAGALLON Defendant. THIRTY DAY DEADLINE 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Hollie Jones, a prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 21, 2015. (ECF No. 1.) He has declined Magistrate judge jurisdiction. (ECF No. 5.) On September 27, 2016, the Court screened Plaintiff’s first amended complaint. (ECF No. 16.) Finding certain claims to be cognizable and dismissing the rest, the Court directed Plaintiff to file an amended complaint or a notice of willingness to proceed only on his cognizable claims. Plaintiff’s second amended complaint is before the Court for screening. (ECF No. 21.) 1 I. Screening Requirement 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner 5 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 6 which relief may be granted, or that seek monetary relief from a defendant who is 7 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, 8 or any portion thereof, that may have been paid, the court shall dismiss the case at any 9 time if the court determines that . . . the action or appeal . . . fails to state a claim upon 10 which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 11 II. Pleading Standard 12 A complaint must contain “a short and plain statement of the claim showing that 13 the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 14 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 15 by mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are 17 not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 18 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual 19 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678. 20 Under section 1983, Plaintiff must demonstrate that each defendant personally 21 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 22 2002). This requires the presentation of factual allegations sufficient to state a plausible 23 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 24 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to 25 have their pleadings liberally construed and to have any doubt resolved in their favor, 26 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, 27 the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 28 556 U.S. at 678; Moss, 572 F.3d at 969. 2 1 III. Plaintiff’s Allegations 2 Plaintiff, who is currently housed at California State Prison in Corcoran, California, 3 complains of acts that occurred at the California Substance Abuse Treatment Facility 4 (“CSATF”), also in Corcoran. He brings this action against Medical Clinic Officer Y. 5 Magallon, Nurse S. Thomas, Nurse Practitioner L. Merritt, and Drs. N. Kandkhorov and 6 Jane Doe. His allegations may be summarized as follows: 7 In September 2014, Defendant Dr. Kandkhorov prescribed blood pressure and 8 diabetes medications for Plaintiff. Plaintiff stated he did not wish to take them. 9 On January 27, 2015, Plaintiff had an appointment with Defendant Merritt, during 10 which he told her that he did not want to take the blood pressure and diabetes medication 11 prescribed by Defendant Dr. Kandkhorov. Merritt disregarded Plaintiff’s wishes and 12 prescribed him the medications. That same day, Plaintiff saw Defendant Dr. Doe and 13 stated he did not want to take the blood pressure and diabetes medications he had been 14 prescribed. That doctor refused to discontinue Plaintiff’s prescriptions. 15 Between September 2014 and March 20, 2015, Plaintiff signed several forms 16 indicating his refusal to take these medications. During that time, Plaintiff was harassed 17 by medical staff because of his cane, and Plaintiff overheard comments made by 18 Defendant Thomas about Plaintiff’s cane. Defendant Thomas had an “attitude” towards 19 black inmates because of 602s filed against her and because she worked with another 20 doctor to have black inmates’ medical devices (such as canes and wheelchairs) taken 21 away because “black inmates had too many weapons on the yard.” On one occasion 22 Defendant Thomas interrupted Plaintiff while he was speaking with a doctor and said she 23 hoped all of the inmates killed themselves. 24 On March 20, 2015, Plaintiff signed a form stating he would refuse all medical 25 treatment until further notice. 26 On March 23, 2015, Defendants Magallon and Thomas called Plaintiff to the 27 medical clinic. When Plaintiff arrived, he was met by both Defendants. Plaintiff told 28 Magallon that he had signed a form stating he did not want any medical treatment and 3 1 told her to stop harassing him. Magallon became aggressive and tried to lock Plaintiff 2 inside the clinic and block Plaintiff from leaving. Magallon hit Plaintiff in the left side of his 3 ribs with her arm repeatedly, knocking the wind out of him. Plaintiff tried to leave. 4 Magallon pushed and choked Plaintiff and shoved the back of Plaintiff’s hand into the cell 5 bars, and told him to get his “black ass” down. Thomas approached holding an unknown 6 object and told Magallon to lock the door. Plaintiff had just managed to wedge his cane in 7 the doorway and squeeze the right side of his body through when Magallon tackled 8 Plaintiff to the ground. Plaintiff was taken to administrative segregation (“ad-seg”) and 9 charged with battery with a weapon on a peace officer. When Plaintiff’s cane “came back 10 up,” Defendant Thomas confiscated it. 11 Plaintiff states Defendants violated the Equal Protection Clause of the Fourteenth 12 Amendment when they discriminated against him on the basis of his diabetes and his 13 status as “ADA.” He also claims Defendants violated his Fourteenth Amendment right to 14 refuse unwanted medical treatment, and subjected him to excessive force, in violation of 15 the Eighth Amendment, and retaliation, in violation of the First Amendment. Plaintiff 16 seeks compensatory and punitive damages. 17 IV. Discussion 18 A. 19 Plaintiff states that Defendants violated his Fourteenth Amendment right to refuse Right to Refuse Medical Treatment 20 medical treatment. Cruzan by Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261, 278 21 (1990) (A “competent person has a constitutionally protected liberty interest in refusing 22 unwanted medical treatment.”). In order to determine whether Plaintiff's right to refuse 23 treatment was violated, the Court must balance Plaintiff's “liberty interests against the 24 relevant state interests.” Cruzan, 497 U.S. at 279. Specifically, the Court must consider 25 “the need for the government action in question, the relationship between the need and 26 the action, the extent of harm inflicted, and whether the action was taken in good faith or 27 for the purpose of causing harm.” Plumeau v. Sch. Dist. No. 40, 130 F.3d 432, 438 (9th 28 Cir.1997) (quotation omitted); see also Jacobson v. Massachusetts, 197 U.S. 11, 24-30 4 1 (1905) (where the Court balanced an individual’s liberty interest in declining an unwanted 2 smallpox vaccine against the State’s interest in preventing the disease). 3 The treatment Plaintiff reportedly refused was intended to treat high blood 4 pressure and diabetes. Balancing Plaintiff’s liberty interests against the relevant state 5 interests of safety and security, Plaintiff has sufficiently pled that he had a right to refuse 6 this treatment. However, nothing in Plaintiff’s complaint suggests that he actually took 7 the prescribed medications or that any Defendant attempted to forcibly administer the 8 treatment. It appears that at most, Defendants continued to issue Plaintiff prescriptions 9 for medications he did not want. The mere issuance of these prescriptions does not rise 10 to the level of a constitutional violation. The Due Process Clause protects against 11 unjustified intrusions into the body, Benson v. Terhune, 304 F.3d 874, 884 (9th Cir. 12 2002). Plaintiff’s Fourteenth Amendment Due Process claims on the basis of his refusal 13 of medical treatment will be dismissed. He has previously been advised of this pleading 14 deficiency and did not correct it. No useful purpose would be served in again granting 15 leave to amend. 16 B. 17 The unnecessary and wanton infliction of pain violates the Cruel and Unusual Eighth Amendment Claims 18 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 19 (1992) (citations omitted). For claims arising out of the use of excessive physical force, 20 the issue is “whether force was applied in a good-faith effort to maintain or restore 21 discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 22 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal quotation marks omitted); 23 Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The objective component of an 24 Eighth Amendment claim is contextual and responsive to contemporary standards of 25 decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de 26 minimis uses of force do not violate the Constitution, the malicious and sadistic use of 27 force to cause harm always violates contemporary standards of decency, regardless of 28 whether or not significant injury is evident, Wilkins, 559 U.S. at 37-8 (citing Hudson, 503 5 1 U.S. at 9-10) (quotation marks omitted); Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2 2002). 3 Prison officials also have a duty to take reasonable steps to protect inmates from 4 physical abuse. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Thus, a “prison official can 5 violate a prisoner’s Eighth Amendment rights by failing to intervene” to protect the 6 prisoner from harm. Robins v. Meachum, 60 F.3d 1436, 1442 (9th Cir. 1995). To 7 demonstrate that a prison official was deliberately indifferent to a serious threat to the 8 inmate's safety, the prisoner must show that “the official [knew] of and disregard[ed] an 9 excessive risk to inmate . . . safety; the official must both be aware of facts from which 10 the inference could be drawn that a substantial risk of serious harm exists, and [the 11 official] must also draw the inference.” Farmer, 511 U.S. at 837; Anderson v. County of 12 Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). However, to prove knowledge of the risk, the 13 prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk 14 may be sufficient to establish knowledge. Farmer, 511 U.S. at 842. 15 Plaintiff alleges that Defendant Magallon began hitting, pushing, and choking 16 Plaintiff after Plaintiff refused medical treatment. She also blocked the clinic door and 17 tried to lock him in when he attempted to leave. Defendant Thomas, in turn, told Magallon 18 to lock the door when Plaintiff tried to leave. Taking Plaintiff’s factual allegations as true, 19 as the court must at this stage of the proceedings, Plaintiff has alleged, in essence, that 20 Magallon became angry with Plaintiff and began to assault him simply because he 21 exercised his right not to take medical treatment. Alleging such a wholly unprovoked 22 attack sufficiently pleads a cognizable Eighth Amendment claim against Defendant 23 Magallon. 24 As to Defendant Thomas, it is alleged only that she told Magallon to lock the clinic 25 door while she approached holding an unknown object. Plaintiff does not suggest that 26 Thomas herself used any force, much less excessive force, against Plaintiff. If Plaintiff 27 seeks to sue Thomas for failing to stop Magallon’s attack, he has not alleged facts 28 indicating Thomas was in a position where she could and should have stopped the 6 1 attack. Farmer, 511 U.S. at 837. Plaintiff will be given leave to amend to assert facts 2 showing a failure to protect. 3 C. 4 The Equal Protection Clause of the Fourteenth Amendment requires that persons Equal Protection 5 who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, 6 Inc., 473 U.S. 432, 439 (1985). To make an Equal Protection Claim, an inmate must 7 show either that Defendants intentionally discriminated against him on the basis of his 8 membership in a protected class, see Hartmann, 707 F.3d at 1123; Thornton v. City of St. 9 Helens, 425 F.3d 1158, 1167 (9th Cir. 2005), or that he received disparate treatment 10 compared to other similarly situated inmates and there was no rational basis for that 11 difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 12 Plaintiff claims he was discriminated against because of his diabetes and “ADA” 13 status. These conclusory allegations are insufficient to state a claim. Furthermore, while 14 he states generally that Defendant Thomas had an “attitude” towards black inmates, he 15 fails to show how she or any other Defendant intentionally treated him differently from 16 other inmates because of his race. Plaintiff’s Equal Protection claim will be dismissed. He 17 will not be given leave to amend. 18 D. 19 It is well-settled that § 1983 provides for a cause of action against prison officials Retaliation 20 who retaliate against inmates for exercising their constitutionally protected rights. Pratt v. 21 Rowland, 65 F.3d 802, 806 n. 4 (9th Cir. 1995) (“[R]etaliatory actions by prison officials 22 are cognizable under § 1983.”) Within the prison context, a viable claim of retaliation 23 entails five basic elements: “(1) An assertion that a state actor took some adverse action 24 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such 25 action (4) chilled the inmate’s exercise of his constitutional rights, and (5) the action did 26 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 27 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d at 1114-15; Silva v. Di 28 Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011); Brodheim v. Cry, 584 F.3d at 1269. 7 1 The second element focuses on causation and motive. See Brodheim v. Cry, 584 2 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a 3 “‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Id. (quoting 4 Sorrano’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can 5 be difficult to establish the motive or intent of the defendant, a plaintiff may rely on 6 circumstantial evidence. Bruce, 351 F.3d at 1289 (finding that a prisoner established a 7 triable issue of fact regarding prison officials’ retaliatory motives by raising issues of 8 suspect timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th 9 Cir. 1997); Pratt, 65 F.3d at 808 (“timing can properly be considered as circumstantial 10 evidence of retaliatory intent”). 11 In terms of the third prerequisite, the right to refuse unwanted medical treatment is 12 constitutionally protected. Cruzan, 497 U.S. at 278. 13 With respect to the fourth prong, the correct inquiry is to determine whether an 14 official’s acts “could chill a person of ordinary firmness from continuing to engage in the 15 protected activity[].” Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 16 2006); see also White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000). 17 With respect to the fifth prong, a prisoner must affirmatively allege that “‘the prison 18 authorities’ retaliatory action did not advance legitimate goals of the correctional 19 institution or was not tailored narrowly enough to achieve such goals.” Rizzo v. Dawson, 20 778 F.2d at 532. 21 Here, Plaintiff states that when he refused medical treatment, Defendant Magallon 22 immediately began assaulting and restraining him. There is no indication that such force 23 was necessary to advance any legitimate penological interest. Plaintiff has alleged 24 sufficient facts to state a claim for retaliation against Defendant Magallon. 25 As for Defendant Thomas, if Plaintiff can allege sufficient facts to show that 26 Defendant Thomas could have intervened to stop the attack but failed to do, he may be 27 able to allege that Thomas’ failure to intervene was in retaliation for Plaintiff’s refusal to 28 take his medication. As yet, however, Plaintiff fails to state a claim for retaliation against 8 1 Thomas. 2 E. 3 Plaintiff alleges he was placed in ad-seg after he was falsely charged with battery False Charges 4 on a peace officer. His complaint is silent on the procedures afforded him during the 5 hearing, if any, on this disciplinary charge. 6 “The Due Process Clause does not provide a guarantee that Plaintiff will be free 7 from fabricated accusations.” Saenz v. Spearman, No. CV-1:09-00557-GSA-YNP, 2009 8 WL 2365405, *8 (E.D. Cal. July 29, 2009). Rather, the Due Process Clause protects 9 prisoners from being arbitrarily deprived of a liberty interest without due process of law. 10 Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action for 11 deprivation of procedural due process, a plaintiff must first establish the existence of a 12 liberty interest for which the protection is sought. Hewitt v. Helms, 459 U.S. 460, 466 13 (1983). The prisoner must next establish that the prison failed to meet the minimal 14 procedural requirements before depriving him of that interest. Wolff, 418 U.S. at 556. In 15 the prison disciplinary context, the minimum procedural requirements that satisfy due 16 process are as follows: (1) written notice of the charges; (2) at least 24 hours between 17 the time the prisoner receives written notice and the time of the hearing, so that the 18 prisoner may prepare his defense; (3) a written statement by the fact finders of the 19 evidence they rely on and reasons for taking disciplinary action; (4) the right of the 20 prisoner to call witnesses in his defense, when permitting him to do so would not be 21 unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to 22 the prisoner where the prisoner is illiterate or the issues presented are legally complex. 23 Id. at 563-71. As long as the five minimum Wolff requirements are met, due process has 24 been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other 25 grounds by Sandin v. Connor, 515 U.S. 472 (1995). 26 As Plaintiff was not previously advised of the deficiency in this pleading, he will be 27 given the opportunity to amend if he believes, in good faith, that he can state a claim for 28 the denial of procedural due process. 9 1 V. Conclusion 2 Plaintiff’s second amended complaint states cognizable claims against Defendant 3 Magallon for excessive force in violation of the Eighth Amendment and retaliation in 4 violation of the First Amendment. It states no other cognizable claims. 5 Plaintiff has not previously been advised of the pleading deficiencies in his 6 procedural due process claims arising out of the false disciplinary charges. He also was 7 not previously advised of the elements of a failure to intervene claim. Therefore, he will 8 be given an opportunity to amend these potential claims only. Plaintiff has previously 9 been advised of the pleading deficiencies in his Equal Protection and refusal of medical 10 care claims, therefore he will not be permitted to renew these claims in his amended 11 complaint. If Plaintiff amends, he also may not change the nature of this suit by adding 12 new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 13 (7th Cir. 2007). 14 If Plaintiff does not wish to file an amended complaint and he is agreeable to 15 proceeding only on the claims found to be cognizable, he may file a notice informing the 16 Court that he does not intend to amend and he is willing to proceed only on his 17 cognizable claims. The Court then recommend the non-cognizable claims be dismissed 18 and Plaintiff be provided with the requisite forms to complete and return so that service of 19 process may be initiated. 20 If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but 21 under section 1983, it must state what each named defendant did that led to the 22 deprivation of Plaintiff’s constitutional rights and liability may not be imposed on 23 supervisory personnel under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; 24 Starr, 652 F.3d at 1205-07. Although accepted as true, the “[f]actual allegations must be 25 [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 26 555 (citations omitted). 27 Finally, an amended complaint supersedes the original complaint, Lacey v. 28 Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be 10 1 “complete in itself without reference to the prior or superseded pleading.” Local Rule 220. 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. The Clerk’s Office shall send Plaintiff a blank complaint form along with a copy 4 5 of the complaint filed January 13, 2017; 2. Within thirty (30) days from the date of service of this order, Plaintiff must 6 either: 7 a. File an amended complaint curing the deficiencies identified by the 8 Court in this order, or 9 b. Notify the Court in writing that he does not wish to file an amended 10 complaint and he is willing to proceed only on the claims found to be 11 cognizable in this order; and 12 3. If Plaintiff fails to comply with this order, the Court will recommend this action 13 be dismissed for failure to obey a court order. 14 15 16 17 IT IS SO ORDERED. Dated: January 30, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 11

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