Bolton v. Holland et al

Filing 18

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Sheila K. Oberto on 2/21/17. 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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WAYNE BOLTON.

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Plaintiff,

Case No. 1:16-cv-00298-SKO (PC)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
(Doc. 1)

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HOLLAND, et al.,
THIRTY-DAY DEADLINE

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Defendants.

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INTRODUCTION

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A.

Background

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Plaintiff, Wayne Bolton, is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state a

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cognizable claim upon which relief may be granted and the Complaint is DISMISSED with leave

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to file a first amended complaint.

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B.

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

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governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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Screening Requirement and Standard

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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C.

Pleading Requirements
1.

Federal Rule of Civil Procedure 8(a)

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"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

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exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

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"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.
Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs

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when a pleading says too little -- the baseline threshold of factual and legal allegations required

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was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678,

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129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much.

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Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e

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have never held -- and we know of no authority supporting the proposition -- that a pleading may

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be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also

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McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8,

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and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case

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impose unfair burdens on litigants and judges”).

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Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is

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plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal , 556 U.S. at 678; see also

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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

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

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short

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and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g),

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when the opportunity to correct the pleadings has been afforded and there has been no

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modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir.

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2013).

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As discussed below, Plaintiff’s allegations are exceedingly conclusory and fail to show

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factual basis to meet the plausibility standard of Iqbal. Plaintiff must state factual allegations for

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the element of each claim he desires to pursue in this action. If he chooses to file a first amended

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complaint, Plaintiff should make it as concise as possible by merely stating which of his

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constitutional rights he believes were violated by each Defendant and its factual basis. Plaintiff

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need not and should not cite legal authority for his claims in a first amended complaint as his

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factual allegations are accepted as true.

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2.

Federal Rule of Civil Procedure 18(a) & 20(a)(2)

Federal Rule of Civil Procedure 18(a) allows a party asserting a claim to relief as an
original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as
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alternate claims, as many claims as the party has against an opposing party. However, Plaintiff

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may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a),

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20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605,

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607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the

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claim(s) arise out of the same transaction or occurrence, or series of transactions and occurrences,

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and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers,

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130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America,

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623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a)

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will the Court review the additional claims to determine if they may be joined under Rule 18(a),

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which permits the joinder of multiple claims against the same party.
The Court must be able to discern a relationship between Plaintiff’s claims or there must

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be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of

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constitutional violation (i.e. retaliation by different actors on different dates, under different

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factual events) does not necessarily make claims related for purposes of Rule 18(a). All claims

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that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. Plaintiff is cautioned

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that if he fails to elect which category of claims to pursue and his amended complaint sets forth

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improperly joined claims, the Court will determine which claims should proceed and which

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claims will be dismissed. Visendi v. Bank of America, N.A., 733 F3d 863, 870-71 (9th Cir. 2013).

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Whether any claims will be subject to severance by future order will depend on the viability of

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claims pled in the amended complaint.

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3.

Linkage and Causation

Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

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other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)

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(citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation

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marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link,

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or causal connection, between each defendant’s actions or omissions and a violation of his federal

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rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013);

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Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).

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Plaintiff’s allegations must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S.

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at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility

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of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572

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F.3d at 969. However, prisoners proceeding pro se in civil rights actions are entitled to have their

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pleadings liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at

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342.
DISCUSSION

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Plaintiff’s Allegations

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A.

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Plaintiff is currently incarcerated at Salinas Valley State Prison (“SVSP”), in Soledad,

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California, but his allegations are based on circumstances that allegedly occurred at the California

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Correctional Institution (“CCI”), in Tehachapi, California. Plaintiff names the following prison

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staff as Defendants: CCI Warden, Kim Holland; Warden Holland’s “responding agent,” Erik

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Sodergra; Supervising Plumbers, Brandon Moser and Beau Steadman; and Dr. O.S. Owolabi.

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Plaintiff alleges that on December 26, 2014, he was working his assigned job as an inmate

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plumber and was instructed by Defendants Moser and Steadman to remove materials which

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contained asbestos without safety equipment such as gloves and a mask. Plaintiff developed

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symptoms related to asbestos exposure (coughing, throat and eye irritation, and frequent nose-

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bleeds), for which he was subsequently seen by Dr. Owolabi. Dr. Owolabi “refused” to

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acknowledge Plaintiff’s exposure to asbestos and ordered allergy medication which only made

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Plaintiff’s symptoms worse. Plaintiff stopped using the allergy medication and filed an inmate

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appeal.

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As discussed in detail below, Plaintiff fails to state any cognizable claims. However, he

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will be provided the applicable legal standards for his stated claims and an opportunity to file an

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amended complaint.

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B.

Legal Standards
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Deliberate Indifference
a.

Conditions of Confinement

The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v.

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Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison

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officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

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sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

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2000) (quotation marks and citations omitted). To establish a violation of the Eighth

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Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .”

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Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v.

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County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).

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The deliberate indifference standard involves both an objective and a subjective prong.

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First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834.

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Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate

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health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).

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For screening purposes, inhalation of asbestos is sufficiently serious to meet the objective

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prong. However, Plaintiff’s allegations fail to meet the subjective prong. Specifically, Plaintiff

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fails to show that Defendant Sodergra knew that inmates were being exposed to asbestos aside

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from his involvement in responding to Plaintiff’s inmate appeal which, as discussed in detail

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below, is not cognizable. Plaintiff alleges that Defendants Moser and Steadman denied his

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requests for safety equipment because as long as the material was wet, it posed no threat to

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Plaintiff or his co-workers. This does not show that Defendants Moser and Steadman

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intentionally exposed Plaintiff to a condition that they knew posed a serious risk of harm.

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Plaintiff’s allegations against Warden Holland (based on supervisory liability) and Dr. Owolabi

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(based on his serious medical needs) are discussed in the corresponding sections below.
b.

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Serious Medical Needs

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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a

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prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need

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is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton

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infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

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Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir.1997) (en banc))

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To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must

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first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,

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the plaintiff must show the defendants= response to the need was deliberately indifferent.”

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096

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(quotation marks omitted)).

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As to the first prong, indications of a serious medical need “include the existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,

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1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at

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1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s

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exposure to asbestos, which resulted in coughing, throat and eye irritation and frequent nose-

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bleeds, is accepted as a serious medical need.

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As to the second prong, deliberate indifference is “a state of mind more blameworthy than
negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or
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safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319).

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Deliberate indifference is shown where a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a

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prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680

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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was

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substantial; however, such would provide additional support for the inmate's claim that the

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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974

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F.2d at 1060.
Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from

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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person

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‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If a prison

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official should have been aware of the risk, but was not, then the official has not violated the

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Eighth Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
Plaintiff’s allegations that Dr. Owolabi refused to acknowledge that Plaintiff had been

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exposed to asbestos and prescribed allergy medication that he knew would not work are not

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cognizable since they are conclusory and lack the requisite factual detail to be facially plausible.

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Iqbal, 556 U.S. at 678. Further, Plaintiff fails to state any allegations to show that Dr. Owolabi’s

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allergy diagnosis and treatment was anything other than professional error or a difference of

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opinion -- which is not cognizable. See Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th

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Cir.1980) (indifference, negligence, or medical malpractice insufficient); Estelle v. Gamble, 429

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U.S. 97, 107 (1976) (difference of opinion between a plaintiff and prison medical staff regarding

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his diagnosis, treatment and medical records is insufficient to state a cognizable Eighth

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Amendment violation).

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2.

Conspiracy

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A claim brought for violation of section 1985(3) requires Afour elements: (1) a conspiracy;

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(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the

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equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act

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in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property

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or deprived of any right or privilege of a citizen of the United States.@ Sever v. Alaska Pulp

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Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). A racial, or perhaps otherwise

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class-based, invidiously discriminatory animus is an indispensable element of a section 1985(3)

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claim. Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001) (quotations and

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citation omitted). Plaintiff fails to state any allegations to meet any of the required elements for a

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conspiracy claim.

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3.

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Supervisory Liability

It appears that Plaintiff named Warden Holland as a Defendant based on her supervisory

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position. Generally, supervisory personnel are not liable under section 1983 for the actions of

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their employees under a theory of respondeat superior -- when a named defendant holds a

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supervisory position, the causal link between him and the claimed constitutional violation must be

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specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld,

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589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief

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under this theory, Plaintiff must allege some facts that would support a claim that supervisory

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defendants either: personally participated in the alleged deprivation of constitutional rights; knew

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of the violations and failed to act to prevent them; or promulgated or "implemented a policy so

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deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of

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the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal

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citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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To show this, “a plaintiff must show the supervisor breached a duty to plaintiff which was

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the proximate cause of the injury. The law clearly allows actions against supervisors under

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section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived

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under color of law of a federally secured right.” Redman v. County of San Diego, 942 F.2d 1435,

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1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other grounds by Farmer v.

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Brennan, 511 U.S. 825 (1994).

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“The requisite causal connection can be established . . . by setting in motion a series of

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acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly

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refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably

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should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty.

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of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). “A supervisor can be liable in his individual

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capacity for his own culpable action or inaction in the training, supervision, or control of his

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subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a

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reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d

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1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted).

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Plaintiff's allegations can be construed to allege that by reviewing Plaintiff's IAs on this

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issue, Warden Holland and Sodergra knew that Plaintiff was being exposed to asbestos without

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safety equipment and failed to take preventative/reparative action. However, "inmates lack a

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separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza,

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334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no

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entitlement to a specific grievance procedure), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). A[A prison] grievance procedure is a procedural right only, it does not confer any

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substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)

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accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Massey v. Helman, 259

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F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on

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prisoner).

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However, a plaintiff may "state a claim against a supervisor for deliberate indifference

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based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or

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her subordinates," Starr v. Baca, 652 F.3d 1202, 1207 (2011), which may be shown via the

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inmate appeals process where the supervisor reviewed Plaintiff's applicable inmate appeal and

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failed to take corrective action, allowing the violation to continue.
Plaintiff's claims against Defendant Sodergra rest exclusively on his involvement in the

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handling and processing of Plaintiff’s inmate appeal as the “responding agent of Warden

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Holland,” (Doc. 1, p. 2), which is not actionable. Ramirez, 334 F.3d at 860. Likewise, Plaintiff’s

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allegations against Warden Holland are not actionable as he fails to show that Warden Holland

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knew inmates were being exposed to asbestos without safety equipment prior to Plaintiff’s inmate

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appeal. Plaintiff’s allegations that Warden Holland knew the facility contained asbestos and

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continued to allow her subordinates to expose inmate workers to asbestos without protective

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equipment are merely consistent with Warden’s liability and “fall short of satisfying the

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plausibility standard.” Iqbal, 556 U.S. at 678. Further, to be liable in a supervisorial capacity,

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Plaintiff must first state cognizable claims against Warden Holland’s subordinates, which as

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discussed above, Plaintiff has not done.
4.

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State Law Claims
a.

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Government Claims Act

Under the Government Claims Act (“GCA”),1 set forth in California Government Code

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sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public

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employee or entity unless the plaintiff first presented the claim to the California Victim

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Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board acted on

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the claim, or the time for doing so expired. “The Tort Claims Act requires that any civil

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complaint for money or damages first be presented to and rejected by the pertinent public entity.”

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Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this

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requirement is “to provide the public entity sufficient information to enable it to adequately

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investigate claims and to settle them, if appropriate, without the expense of litigation.” City of

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San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974)

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(citations omitted). Compliance with this “claim presentation requirement” constitutes an

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The Government Claims Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior
Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than
California Tort Claims Act).

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element of a cause of action for damages against a public entity or official. State v. Superior

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Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state

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courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation

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requirement subjects a claim against a public entity to a demurrer for failure to state a cause of

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action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn. omitted).

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Federal courts likewise must require compliance with the GCA for pendant state law

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claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d

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702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477

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(9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983,

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may proceed only if the claims were first presented to the state in compliance with the claim

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presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627

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(9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008).

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Plaintiff fails to state any allegations which show he complied with the GCA so as to be

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able to pursue claims for violation of California law in this action. Further, though Plaintiff

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alleges that Defendants Holland and Sodergra violated California Penal Code sections 132 and

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134, a private right of action under a criminal statute has rarely been implied. Chrysler Corp. v.

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Brown, 441 U.S. 281, 316 (1979). Where a private right of action has been implied, A>there was

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at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of

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someone.=@ Chrysler Corp., 441 U.S. at 316 (quoting Cort v. Ash, 422 U.S. 66, 79 (1975)). The

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Court has reviewed sections 132 and 134, and finds no indication that civil enforcement of any

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kind is available to Plaintiff. Cort, 422 U.S. at 79-80; Keaukaha-Panaewa Cmty. Ass=n v.

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Hawaiian Homes Comm=n, 739 F.2d 1467, 1469-70 (9th Cir. 1984). Accordingly, Plaintiff fails

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to state a claim upon which relief may be granted under state law based on alleged violations of

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California Penal Code sections 132 and 134.

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5.

Injunctive Relief

Plaintiff seeks injunctive relief via medical treatment for asbestos exposure; prohibiting
harassment and retaliation for filing this action; and facilitating his communication with persons
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necessary to his pursuit of this action. (Doc. 1, p. 6.)
Federal courts are courts of limited jurisdiction and in considering a request for

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preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it

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have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103

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S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church

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and State, Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or

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controversy before it, it has no power to hear the matter in question. Id.

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As a threshold matter, Plaintiff must establish that he has standing to seek preliminary

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injunctive relief. Summers v. Earth Island Institute, 555 U.S. 488, 493-94, 129 S.Ct. 1142, 1149

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(2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). Plaintiff Amust show that he

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is under threat of suffering an >injury in fact= that is concrete and particularized; the threat must be

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actual and imminent, not conjectural or hypothetical; it must be fairly traceable to challenged

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conduct of the defendant; and it must be likely that a favorable judicial decision will prevent or

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redress the injury.@ Summers, 555 U.S. at 493 (citation and quotation marks omitted); Mayfield,

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599 F.3d at 969. Requests for prospective relief are limited by 18 U.S.C. ' 3626(a)(1)(A) of the

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Prison Litigation Reform Act, which requires that the Court find the Arelief [sought] is narrowly

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drawn, extends no further than necessary to correct the violation of the Federal right, and is the

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least intrusive means necessary to correct the violation of the Federal right.@

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The pendency of this action does not give the Court jurisdiction over prison officials in

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general or over Plaintiff=s medical issues. Summers, 555 U.S. at 492-93; Mayfield, 599 F.3d at

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969. Jurisdiction is limited to the parties in this action and to the cognizable legal claims upon

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which this action is proceeding. Id.

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The claims which Plaintiff alleges in this action arise from events which occurred at CCI

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while Plaintiff is currently housed at SVSP. Accordingly, Plaintiff lacks standing in this action to

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seek relief directed at his current conditions of confinement at SVSP. Further his requests for

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injunctive relief to remedy his conditions of confinement at CCI were rendered moot upon his

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transfer to SVSP. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore,

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948 F.2d 517, 519 (9th Cir. 1991). Thus, the Court cannot grant Plaintiff’s request for injunctive

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relief.
ORDER

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For the reasons set forth above, Plaintiff's Complaint is dismissed with leave to file a first

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amended complaint within thirty (30) days. If Plaintiff needs an extension of time to comply

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with this order, Plaintiff shall file a motion seeking an extension of time no later than thirty (30)

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days from the date of service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions of which he

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complains resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625

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F.2d 227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each

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named defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and

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plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957). 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. 127, 555

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(2007) (citations omitted).

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Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be "complete in itself without reference to the prior or superceded

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pleading," Local Rule 220.

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The Court is providing Plaintiff with opportunity to amend to cure the deficiencies

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identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his first

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amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot"

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complaints).

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff's Complaint is dismissed, with leave to amend;

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2.

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

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4.

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

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first amended complaint curing the deficiencies identified by the Court in this

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order or a notice of voluntary dismissal; and
5.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order and for failure to state a cognizable claim.

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IT IS SO ORDERED.
Dated:

February 21, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Sheila K. Oberto

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.