Klahn v. Wasco State Prison et al

Filing 19

ORDER Directing Clerk to Assign a District Judge; FINDINGS and RECOMMENDATIONS recommending that this Action Proceed on Plaintiff's Eighth Amendment Claim Against Dr. Seitz and to Dismiss All Other Claims and Defendants re 17 Second Amended Co mplaint signed by Magistrate Judge Jennifer L. Thurston on 3/15/2018. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Jennifer L. Thurston. The new case number is 1:16-cv-00342-DAD-JLT (PC). Referred to Judge Drozd. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL P. KLAHN, Sr,

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Plaintiff,
v.
WASCO STATE PRISON, et al.,

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Case No. 1:16-cv-00342-JLT (PC)
FINDINGS AND RECOMMENDATIONS
FOR ACTION TO PROCEED ON
PLAINTIFF’S EIGHTH AMENDMENT
CLAIM AGAINST DR. SEITZ AND TO
DISMISS ALL OTHER CLAIMS AND
DEFENDANTS

Defendants.
(Doc. 17)

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21-DAY DEADLINE
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CLERK TO ASSIGN A DISTRICT JUDGE
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In this action, the plaintiff complains of various events that occurred while in custody. He

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asserts that his personal property was destroyed, he did not received appropriate dental care and

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was housed in a cell that exposed him to mold, among other complaints. Though he has stated a

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cognizable claim for deliberate indifference to his serious medical need in violation of the Eighth

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Amendment, no other claims are cognizable.

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B.

Screening Requirement

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

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

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frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.

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§ 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed

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per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed

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as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has

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not alleged imminent danger of serious physical injury does not qualify to proceed in forma

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pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

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Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). A complaint

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will be dismissed if it lacks a cognizable legal theory or fails to allege sufficient facts under a

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cognizable legal theory. See Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th

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Cir. 1990).

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C.

Summary of the Second Amended Complaint

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Plaintiff has been released but complains of acts that occurred at WSP during the ninety

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days he was incarcerated there. Plaintiff names WSP Warden John N. Katavich; R. Sietz, D.D.S.;

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A. Klang, M.D.; and “R&R Corrections Officer (Doe 1-female)” as the defendants in this action.

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Plaintiff alleges that his rights to due process were violated when a number of his personal items

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and legal documents were disposed of when he initially arrived at WSP (Doc. 13, pp. 5-10, 20-

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21); that his rights under the Eighth Amendment were violated when he did not receive proper

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treatment for a cracked, infected tooth (id., pp. 11-13, 17-20); and that his rights under the

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Americans with Disabilities Act (“ADA”) were violated when he was placed in housing which

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exposed him to mold since he is a diabetic and was classified “Restricted -- Cocci Area 1” (id.,

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pp. 14-17, 21-22). As discussed below, Plaintiff has stated a cognizable claim for violation of his

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rights under the Eighth Amendment against Dr. Seitz in relation to his infected tooth. However,

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none of his other claims are cognizable. It appears that Plaintiff is unable to cure the deficiencies

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of his other claims such that they should be dismissed with prejudice.

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D.

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.

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Detailed factual allegations are not required, but “[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 “sufficient 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, at 678; see also Moss v. U.S.

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

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While “plaintiffs [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. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir.

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2013); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, “the liberal pleading

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standard . . . applies only to a plaintiff's factual allegations,” Neitze v. Williams, 490 U.S. 319, 330

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n.9 (1989), “a liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled,” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251,

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1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982), and courts

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are not required to indulge unwarranted inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677,

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681 (9th Cir. 2009) (internal quotation marks and citation omitted). The “sheer possibility that a

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defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a

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defendant’s liability” fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129

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S. Ct. at 1949; Moss, 572 F.3d at 969. Plaintiff must identify specific facts supporting the

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existence of substantively plausible claims for relief, Johnson v. City of Shelby, __ U.S. __, __,

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135 S.Ct. 346, 347 (2014) (per curiam) (citation omitted).
2.

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Linkage Requirement

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The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution . . . shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. ' 1983. The statute plainly requires that there be an actual connection or link between
the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See
Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
(1976).
Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or
other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);
Jones, 297 F.3d at 934. “Section 1983 is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada ex rel.
Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S.
386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation marks omitted). To state a claim,
Plaintiff must allege facts demonstrating the existence of a link, or causal connection, between
each defendant’s actions or omissions and a violation of his federal rights. Lemire v. California
Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d

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1202, 1205-08 (9th Cir. 2011).

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The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

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in another=s affirmative acts or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978). Under section 1983, Plaintiff must demonstrate that each defendant personally

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

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E.

Claims for Relief
1.

Due Process

The Fourteenth Amendment’s Due Process Clause protects persons against deprivations

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of life, liberty, or property; and those who seek to invoke its procedural protection must establish

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that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Prisoners

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have a protected interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir.

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1974), but the procedural component of the Due Process Clause is not violated by a random,

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unauthorized deprivation of property if the state provides an adequate post-deprivation remedy,

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Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir.

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1994). Rather, the Due Process Clause is violated only when the agency “prescribes and enforces

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forfeitures of property without underlying statutory authority and competent procedural

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protections.” Nevada Dept. of Corrections v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing

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Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003)) (internal quotations omitted).

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Plaintiff has no cause of action under 42 U.S.C. § 1983 for an unauthorized deprivation of

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his personal property, intentional or negligent, by a state employee since a meaningful state post-

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deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984).

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California law provides an adequate post-deprivation remedy for any property deprivations.

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Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994) (citing Cal. Gov’t Code '' 810-895).

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Plaintiff also alleges that Doe 1’s destruction of his possessions violated various sections

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of Title 15 of the California Code of Regulations. However, the existence of regulations such as

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these governing the conduct of prison employees does not necessarily entitle plaintiff to sue

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civilly for enforcement or for damages based on the violation of the regulations. The Court has

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found no authority to support a finding that there is an implied private right of action under Title

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15 and Plaintiff cites to none. Given that the statutory language does not support an inference

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that there is a private right of action, the Court finds that Plaintiff fails to state any claims upon

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which relief may be granted based on the violation of Title 15 regulations.

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2.

Access to Court

Finally, it appears that Plaintiff intended to state a claim for violation of his right to access
to the courts, based on the loss/destruction of his legal paperwork for the “several civil suits

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stemming from the closure of his Quizno’s Franchise” which Plaintiff alleges he was involved in

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when he was incarcerated. (Doc. 17, pp. 10-11.). However, though previously provided detailed

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legal standards for such a claim, (Doc. 8, pp. 8-9), Plaintiff fails to show frustration or hindrance

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of “a litigating opportunity yet to be gained” (forward-looking access claim) or from the loss of a

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meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536

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U.S. 403, 412-15 (2002).

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Further, as stated in the first screening order, Plaintiff does not have a fundamental right

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of access to the courts from the frustration or hindrance of any and all legal claims. Inmates do

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not enjoy a constitutionally protected right “to transform themselves into litigating engines

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capable of filing everything from shareholder derivative actions to slip-and-fall claims.” Lewis v.

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Casey, 518 U.S. 343, 355 (1996). Rather, the type of legal claim protected is limited to direct

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criminal appeals, habeas petitions, and civil rights actions such as those brought under section

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1983 to vindicate basic constitutional rights. Id. at 354. “Impairment of any other litigating

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capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction

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and incarceration.” Id. at 355 (emphasis in original). Thus, Plaintiff fails and is unable to state a

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cognizable claim against Doe 1 for the confiscation and destruction of his legal paperwork for his

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civil suits stemming from the closure of his Quizno’s Franchise. Likewise, Plaintiff fails and is

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unable to state a cognizable claim against Appeals Coordinators R. Gonzalez and F. Feliciano for

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not processing Plaintiff’s inmate grievances1 to prevent the destruction of that legal paperwork.

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Finally, Plaintiff is also unable to state a cognizable claim against Warden Katavich for having

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notice, but failing to intervene to prevent confiscation and disposal of Plaintiff’s legal documents

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for his various civil actions.
3.

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Deliberate Indifference to 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)).
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 v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quotation marks omitted)).
“Indications that a plaintiff has a serious medical need include the existence of an injury

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that a reasonable doctor or patient would find important and worthy of comment or treatment; the

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

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existence of chronic or substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.

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2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113,

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1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).

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As also stated in the first screening order, actions taken in reviewing prisoner’s administrative appeal generally
cannot serve as the basis for liability under § 1983. Buckley v. Barlow, 997 F.3d 494, 495 (8th Cir. 1993); see also
Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on
prisoner). “Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned
by the Fourteenth Amendment.” Azeez v. DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316
(E.D. Mo. 1986).

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Deliberate indifference is “a state of mind more blameworthy than negligence” and

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“requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’ ” Farmer v.

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Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). Deliberate indifference is

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shown where a prison official “knows that inmates face a substantial risk of serious harm and

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disregards that risk by failing to take reasonable measures to abate it.” Id., at 847. Deliberate

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indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004).

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“Under this standard, the prison official must not only ‘be aware of the facts from which the

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inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also

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draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should

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

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Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada,

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290 F.3d 1175, 1188 (9th Cir. 2002)).

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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). More generally, deliberate indifference “may

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appear when prison officials deny, delay or intentionally interfere with medical treatment, or it

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may be shown by the way in which prison physicians provide medical care.” Id. (internal

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quotation marks omitted). Under Jett, “[a] prisoner need not show his harm was substantial.” Id.;

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see also McGuckin, 974 F.2d at 1060 (“[A] finding that the defendant’s activities resulted in

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‘substantial’ harm to the prisoner is not necessary.”).

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For screening purposes, the Court assumes that Plaintiff’s fractured and infected tooth is a

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serious medical need. Plaintiff alleges that Dr. Seitz conducted his exam “through the nurse” and

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that Dr. Seitz ordered that that the tooth must be extracted. Plaintiff also alleges that, as part of

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CDCR’s dental policy, extraction was the only treatment offered and that Dr. Seitz directed that

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Plaintiff not receive medication for pain or the infection since he would not consent to the

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extraction. As a result, Plaintiff alleges he had swelling from the infection and was in pain for

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fourteen days making it difficult for him to chew food, which caused his diabetes to flare, and the

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infection spread resulting in extraction of two teeth and subsequent bridges/implants, instead of

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just the original one. During this time, when Plaintiff submitted a second slip to be seen, Dr.

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Seitz called Plaintiff to dental, but “left him in an outdoor cage” and refused to see him when

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Plaintiff declined to sign the form authorizing tooth extraction. When Plaintiff refused the

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extraction, the nurse informed him that any further requests he submitted to see the dentist would

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be denied. These allegations state a cognizable Eighth Amendment claim against Dr. Seitz for

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deliberate indifference to his serious medical condition.

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Plaintiff also alleges that Dr. Klang, a physician, later saw Plaintiff and examined his

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mouth. Dr. Klang agreed that Plaintiff had an infection, but indicated that he could not prescribe

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medication since it was a dental issue. Though these limited allegations show that Dr. Klang was

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aware that Plaintiff had a tooth infection, Plaintiff fails to show that, as a medical doctor, Dr.

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Klang had the authorization to prescribe medication or treatment for a dental issue. When

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resolving a claim under the Eighth Amendment against individual defendants, causation must be

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resolved via “a very individualized approach which accounts for the duties, discretion, and means

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of each defendant.” Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988) citing with approval

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Williams v. Bennett, 689 F.2d 1370, 1384 (11th Cir. 1982) (“There can be no duty, the breach of

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which is actionable, to do that which is beyond the power, authority, or means of the charged

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party. One may be callously indifferent to the fate of prisoners and yet not be liable for their

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injuries. Those whose callous indifference results in liability are those under a duty -- possessed

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of authority and means -- to prevent the injury.”)

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Plaintiff’s allegations that “a reasonable medical doctor” in Dr. Klang’s position “would

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have prescribed an antibiotic for the infection’ indicates the true nature of Plaintiff’s claim against

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Dr. Klang -- for negligence/medical malpractice. Plaintiff’s difference of opinion as to what Dr.

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Klang should have done for him is insufficient to state a cognizable Eighth Amendment violation.

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See Estelle v. Gamble, 429 U.S. 97, 107 (1976). Thus, Plaintiff fails to state a cognizable claim

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under the Eighth Amendment against Dr. Klang for not treating Plaintiff’s dental infection.

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Plaintiff also alleges that Dr. Klang negligently prescribed an ear wash as a solution to

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Plaintiff’s symptoms of dizziness, constant and severe cough, and worsening trouble breathing --

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this despite Plaintiff informing Dr. Klang “of a visible mold problem surrounding his bunk in the

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dorm” and Plaintiff’s high risk of contracting the cocci virus2 given his age and diabetes. (Doc.

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17, pp. 5-6.) Plaintiff filed another request to be seen for his continuing and worsening symptoms

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and Dr. Klang examined him a second time. Plaintiff asked Dr. Klang to examine the swelling of

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his face and tooth, which Dr. Klang did, but reiterated that he was prohibited by CDCR policy

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from prescribing medication or any treatment for it since it was a dental issue. Plaintiff alleges

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what “a reasonable medical doctor” would have done, but states that Dr. Klang “was convinced”

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that Plaintiff’s symptoms (aside from those connected with his infected tooth) were due to excess

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earwax which would eventually lessen if Plaintiff repeatedly washed his ear with the solution

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provided. (Id.)
Though these allegations show Plaintiff’s disagreement with Dr. Klang’s treatment, they

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do not show that Dr. Klang knew that Plaintiff’s condition required specific treatment (other than

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the ear wash) and purposefully prescribed the ear wash anyway. From Plaintiff’s allegations it is

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clear that Dr. Klang was attempting to treat what he believed to be the cause of Plaintiff’s

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symptoms. Though this might equate to negligence or medical malpractice, it does not show that

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Dr. Klang purposefully prescribed what he knew to be the wrong treatment or failed to respond to

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Plaintiff’s pain and medical need. Wilhelm, 680 F.3d at 1122. Further, Plaintiff fails to show any

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harm that was caused by Dr. Klang’s treatment, or lack thereof. Id. Plaintiff thus fails to state a

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cognizable deliberate indifference claim under the Eight Amendment against Dr. Klang.
4.

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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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Notably, Plaintiff does not allege that he contracted the cocci virus (i.e. Valley Fever). Moreover, there is no
evidence or factual allegation that Valley Fever can be contracted from mold. Rather, it is contracted from spores
released from dirt.

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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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Objectively, extreme deprivations are required to make out a conditions of confinement

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claim and only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992). Although the Constitution “ ‘does not mandate comfortable prisons,’ ”

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Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 349), “inmates are

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entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly

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over a lengthy course of time,” Howard, 887 F.2d at 137. Some conditions of confinement may

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establish an Eighth Amendment violation “in combination” when each would not do so alone, but

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only when they have a mutually enforcing effect that produces the deprivation of a single,

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identifiable human need such as food, warmth, or exercise -- for example, a low cell temperature

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at night combined with a failure to issue blankets. Wilson, 501 U.S. at 304-05(comparing Spain

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v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (outdoor exercise required when prisoners

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otherwise confined in small cells almost 24 hours per day), with Clay v. Miller, 626 F.2d 345, 347

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(4th Cir. 1980) (outdoor exercise not required when prisoners otherwise had access to dayroom

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18 hours per day)). To say that some prison conditions may interact in this fashion is far from

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saying that all prison conditions are a “seamless web” for Eighth Amendment purposes. Id.

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Amorphous “overall conditions” cannot rise to the level of cruel and unusual punishment when

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no specific deprivation of a single human need exists. Id. Further, temporarily unconstitutional

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conditions of confinement do not necessarily rise to the level of constitutional violations. See

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Anderson, 45 F.3d 1310, ref. Hoptowit, 682 F.2d at 1258 (abrogated on other grounds by Sandin,

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515 U.S. 472 (in evaluating challenges to conditions of confinement, length of time the prisoner

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must go without basic human needs may be considered)). Thus, Plaintiff’s factual allegations as

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to the conditions he was subjected during his confinement on management cell/ASU must be

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evaluated to determine whether they demonstrate a deprivation of a basic human need

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individually or in combination.

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Subjectively, if an objective deprivation is shown, a plaintiff must show that prison

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officials acted with a sufficiently culpable state of mind, that of “deliberate indifference.” Wilson,

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501 U.S. at 303; Labatad, 714 F.3d at 1160; Johnson, 217 F.3d at 733. Again, “[d]eliberate

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indifference is a high legal standard.” Toguchi, 391 F.3d at 1060, requiring a showing that the

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prison official was “aware of the facts from which the inference could be drawn that a substantial

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risk of serious harm exists,” drew that inference, Id. at 1057, and failed to take corrective action.

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“‘If a prison official should have been aware of the risk, but was not, then the official has not

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violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County

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of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). To prove knowledge of the risk,

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however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the

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risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70

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F.3d 1074, 1077 (9th Cir. 1995).

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Plaintiff alleges that Warden Katavich knew of the mold surrounding the area of

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Plaintiff’s bunk bed and along the wall in his section of the dorm but ignored Plaintiff’s request to

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rectify it and other conditions (officers leaving milk and fruit outside the patio sitting on the

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ground for long periods as punishment for noise at meal time and no “proper cleaning supplies”

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for inmates to properly clean the restroom and showers). (Doc. 17, pp. 7-8.) Plaintiff alleges that

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Warden Katavich was “directly notified” of the conditions within Plaintiff’s dorm when Plaintiff

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“filed a complaint with the Fresno County Health Department.” (Doc. 17, p. 7.) However, WSP

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is not in Fresno County. Thus, there is no support for the assertion that this complaint would

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have given Warden Katavich notice of the conditions. Plaintiff also fails to indicate the date that

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he filed this complaint, or that he contemporaneously had a courtesy copy of any such complaint

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delivered to Warden Katavich.

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Plaintiff also alleges that “a written CDCR form was sent three different times address

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(sic) to the Warden.” (Doc. 17, p. 7.) Despite being informed that his allegations must supply

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essential factual elements of his claims, Bruns., 122 F.3d at 1257, Plaintiff failed to specify what

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CDCR forms were sent to the warden by whom, what dates they were sent, and which

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objectionable conditions of confinement were raised in each. General, vague allegations such as

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stated by Plaintiff about the written CDCR forms being thrice sent to the warden (Doc. 17, 7) or

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that he “was given specific written information of violations by his staff,” (id., p. 9) or that he

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“knew of the violations” (id.) fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678; Moss, 572 F.3d at 969. Plaintiff’s allegations do not show that Warden Katavich received

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notice and was aware of the conditions Plaintiff complains of in this action and failed to take

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corrective action.

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5.

Inmate Appeals

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As stated in the both prior screening orders, the Due Process Clause protects prisoners

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from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539,

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556 (1974). However, “inmates lack a separate constitutional entitlement to a specific prison

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grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest

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in processing of appeals because no entitlement to a specific grievance procedure), citing Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988). “[A prison] grievance procedure is a procedural right

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only, it does not confer any substantive right upon the inmates.” Azeez v. DeRobertis, 568 F.

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Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see

23

also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure

24

confers no liberty interest on prisoner). “Hence, it does not give rise to a protected liberty interest

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requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez v.

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DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Actions in reviewing prisoner’s administrative appeal generally cannot serve as the basis

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13

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for liability under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who

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knows about a violation of the Constitution, and fails to cure it, has violated the Constitution

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himself is not correct. “Only persons who cause or participate in the violations are responsible.

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Ruling against a prisoner on an administrative complaint does not cause or contribute to the

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violation.” Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507

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F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance

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v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996). Plaintiff thus fails and is unable to state cognizable

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claims against Appeals Coordinators K. Gonzalez and F. Feliciano for their involvement in the

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handling and processing of his inmate appeals.

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“[A] plaintiff may state a claim against a supervisor for deliberate indifference based upon

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the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her

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subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (2011). Such knowledge and acquiescence

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may be shown via the inmate appeals process where the supervisor was involved in reviewing

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Plaintiff’s applicable inmate appeal and had the ability, but failed to take corrective action so as to

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allow the violation to continue. However, such involvement in processing or reviewing an inmate

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appeal based on one incident is necessarily insufficient. A defendant may be held liable as a

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supervisor under § 1983 “if there exists either (1) his or her personal involvement in the

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

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conduct and the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989).

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“[A] plaintiff must show the supervisor breached a duty to plaintiff which was the proximate

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cause of the injury. The law clearly allows actions against supervisors under section 1983 as long

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as a sufficient causal connection is present and the plaintiff was deprived under color of law of a

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federally secured right.” Redman v. County of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991)

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(internal quotation marks omitted)(abrogated on other grounds by Farmer v. Brennan, 511 U.S.

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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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Thus, if a plaintiff complains of actions by prison personnel in an inmate appeal that state

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a cognizable claim against the prison personnel involved, which is processed or ruled on by their

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supervisor and the supervisor fails to take actions to address the issue, a cognizable claim might

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be stated by showing that the supervisor knowingly refused to terminate those acts by his

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subordinates. As discussed under the various legal standards above, Plaintiff fails to show such

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knowledge and acquiescence by any of the defendants in this action.

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6.

State Law Claims

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Plaintiff peppers the Second Amended Complaint with various forms of the word

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“negligence,” which sounds in state law claim. As stated in the first screening order, (Doc. 8, pp.

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13-14), the California Government Claims Act (“CGCA”), set forth in California Government

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Code sections 810 et seq., prohibits a plaintiff from bringing suit for monetary damages against a

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public employee or entity unless the claim was first presented to the California Victim

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Compensation and Government Claims Board, and the Board acted on the claim, or the time for

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doing so expired. “The Tort Claims Act requires that any civil complaint for money or damages

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first be presented to and rejected by the pertinent public entity.” Munoz v. California, 33

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Cal.App.4th 1767, 1776 (1995). The purpose of this requirement is “to provide the public entity

24

sufficient information to enable it to adequately investigate claims and to settle them, if

25

appropriate, without the expense of litigation.” City of San Jose v. Superior Court, 12 Cal.3d 447,

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455 (1974) (citations omitted). Compliance with this “claim presentation requirement” constitutes

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

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15

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Court (Bodde), 32 Cal.4th 1234, 1244 (2004). Thus, in the state courts, “failure to allege facts

2

demonstrating or excusing compliance with the claim presentation requirement subjects a claim

3

against a public entity to a demurrer for failure to state a cause of action.” Id. at 1239, 13

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Cal.Rptr.3d 534, 90 P.3d 116 (fn. omitted).

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

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

7

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

8

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

9

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

10

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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13

Plaintiff fails to state any allegations which show he complied with the CGCA upon
which to be allowed to pursue claims for violations of California law in this action.
CONCLUSION & RECOMMENDATION

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15

Plaintiff’s Second Amended Complaint states cognizable deliberate indifference claim

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against Dr. Seitz upon which he should be allowed to proceed. However, none of the rest of

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Plaintiff’s claims are cognizable such that all other claims and Defendants should be dismissed.

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Given that Plaintiff has been twice provided the pleading and legal standards for his claims, it

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appears the deficiencies in Plaintiff’s pleading are not capable of cure through amendment

20

making subsequent leave to amend futile and unnecessary. Akhtar v. Mesa, 698 F.3d 1202, 1212-

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13 (9th Cir. 2012).

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Accordingly, based on the foregoing, the Court RECOMMENDS:

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1.

This action be allowed to proceed on Second Amended Complaint on Plaintiff’s

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deliberate indifference claim against Defendant R. Seitz, DDS related to the

25

plaintiff’s broken/infected tooth;

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2.

All other claims and defendants should be dismissed with prejudice; and

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3.

The Clerk of the Court is directed to assign a District Judge to this action.

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These Findings and Recommendations will be submitted to the United States District
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1

Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 21

2

days after being served with these Findings and Recommendations, Plaintiff may file written

3

objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

4

Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

5

specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

6

839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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9

IT IS SO ORDERED.
Dated:

March 15, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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