(PC) Grant v. Lewis et al

Filing 20

ORDER DISMISSING #1 Complaint WITH LEAVE TO AMEND; Amended Complaint due within Twenty-One Days signed by Magistrate Judge Sheila K. Oberto on 3/3/2017. (Attachments: #1 Amended Complaint Form)(Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TRAVARE MONROE GRANT, 10 11 Plaintiff, Case No. 1:16-cv-00424-LJO-SKO (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (Doc. 1) 12 LEWIS, et al., TWENTY-ONE DAY DEADLINE 13 Defendants. 14 INTRODUCTION 15 16 A. Background 17 Plaintiff, Tavare Monroe Grant, is a civil detainee state proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983 based on incidents that occurred 19 while he was a state prisoner, housed at Corcoran State Prison (“CSP”), in Corcoran, California. 20 As discussed below, Plaintiff fails to state a cognizable claim upon which relief may be granted 21 and the Complaint is DISMISSED with leave to file a first amended complaint. 22 B. 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 25 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 26 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 27 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 28 Screening Requirement and Standard 1 1 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 2 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 3 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 4 5 C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 6 "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited 7 exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 8 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain 9 statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). 10 "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 11 the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. 12 Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 13 when a pleading says too little -- the baseline threshold of factual and legal allegations required 14 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 15 129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much. 16 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e 17 have never held -- and we know of no authority supporting the proposition -- that a pleading may 18 be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also 19 McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, 20 and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 21 impose unfair burdens on litigants and judges”). 22 Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a 23 cause of action, supported by mere conclusory statements, do not suffice.@ Iqbal, 556 U.S. at 678, 24 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth 25 Asufficient factual matter, accepted as true, to >state a claim that is plausible on its face.=@ Iqbal, 26 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but 27 legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 28 2 1 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft, 2 3 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 4 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 5 However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze 6 v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may 7 not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit 8 Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 9 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal- 10 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 11 omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 12 “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 13 plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short 14 15 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), 16 when the opportunity to correct the pleadings has been afforded and there has been no 17 modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir. 18 2013). 19 If he chooses to file a first amended complaint, Plaintiff should make it as concise as 20 possible by stating which of his constitutional rights he believes were violated by each Defendant 21 and factual basis for each claim. Plaintiff need not and should not cite legal authority for his 22 claims in a first amended complaint as his factual allegations are accepted as true. 23 24 2. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 25 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 26 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 27 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 28 3 1 substantive rights, but merely provides a method for vindicating federal rights elsewhere 2 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 3 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 4 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 5 or causal connection, between each defendant’s actions or omissions and a violation of his federal 6 rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); 7 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 8 Plaintiff’s allegations must demonstrate that each defendant personally participated in the 9 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 10 presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. 11 at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 12 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 13 F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 14 liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342. DISCUSSION 15 Plaintiff’s Allegations 16 A. 17 Plaintiff is currently incarcerated at California Men’s Colony (“CMC”) in San Luis 18 Obispo, California, but his allegations are based on circumstances that allegedly occurred at the 19 Corcoran State Prison (“CSP”), in Corcoran, California. Plaintiff names the following prison 20 staff as Defendants: Senior Psychologist, Supervisor B. Adam, PhD; CEO Charles E. Young; 21 Primary Clinician L. Clausell; and Deputy Director J. Lewis. 22 Plaintiff alleges that he is “CCMS level of care” because he suffers auditory hallucinations 23 (commanding thoughts) that make him act out bizarre behaviors. (Doc. 1, p. 3.) He requested to 24 receive group therapy and was denied by CEO Young and Dr. Adams. (Id.) On September 7, 25 2015, Plaintiff admitted himself to a crisis bed because he was suffering from hearing 26 commanding voices and suicidal thoughts and tendencies. (Id.) Plaintiff alleges that Dr. 27 Clausell “discriminated against my mental illness which amounted to disciplinary punishment 28 4 1 (sic) process.” (Id.) Plaintiff alleges that Dep. Dir. Lewis’ denial of Plaintiff’s Third Level 2 grievance “amounted to [his] mental health needs being discriminated against. . . .” (Id.) 3 As discussed in detail below, Plaintiff fails to state any cognizable claims. However, he is 4 provided the applicable legal standards for his stated claims and an opportunity to file an 5 amended complaint. 6 7 B. Legal Standards 1. Deliberate Indifference to Serious Medical Needs 8 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 9 prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 10 is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton 11 infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 12 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 13 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 14 Cir.1997) (en banc)) 15 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 16 first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition 17 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 18 the plaintiff must show the defendants= response to the need was deliberately indifferent.” 19 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 20 (quotation marks omitted)). 21 As to the first prong, indications of a serious medical need “include the existence of an 22 injury that a reasonable doctor or patient would find important and worthy of comment or 23 treatment; the presence of a medical condition that significantly affects an individual’s daily 24 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 25 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 26 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s 27 hallucinations and “commanding voices” are accepted as a serious medical need. 28 5 1 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 2 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 3 safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 4 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 5 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 6 Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 7 prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 8 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 9 substantial; however, such would provide additional support for the inmate's claim that the 10 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 11 F.2d at 1060. 12 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 13 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 14 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 15 ‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If a prison 16 official should have been aware of the risk, but was not, then the official has not violated the 17 Eighth Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe, 18 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 19 Plaintiff’s allegations are not cognizable as he fails to show that he medically required 20 group therapy as a treatment for his auditory hallucinations of which any of the named 21 Defendants were aware and intentionally denied. Plaintiff also fails to show that he was harmed 22 by any of the Defendants’ actions. Further, it is apparent from the exhibits attached to the 23 Plaintiff’s Complaint that although he was in fact receiving therapy, he nonetheless wanted to be 24 allowed to participate in group therapy outside of the presence of correctional personnel. (See 25 Doc. 1-1, at pp. 2, 3, 5, 6.) Plaintiff presents no allegations from which to infer that his medical 26 care is ineffective because it was given in the presence of correctional staff. Any such inference 27 need not be accepted since it is not facially plausible. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 28 6 1 969. Further, and particularly important given that Plaintiff was housed in the Secured Housing 2 Unit at the time (see Doc. 1-1, pp. 5, 6), deference is to be given “ ‘to correctional officials in the 3 context of maintaining security and discipline in the jail.” Harrington v. Scribner, 785 F.3d 1299, 4 1307-08 (9th Cir. 2015), quoting Florence v. Bd. of Chosen Freeholders, --- U.S. ---, 132 S.Ct. 5 1510, 1515-16 (2012) (citing Turner, 482 U.S. at 89, 107 S.Ct. 2254). Plaintiff fails to state a 6 cognizable claim for deliberate indifference to his serious medical needs. 7 2. Equal Protection -- Discrimination 8 Plaintiff alleges that Defendants’ actions amounted to discrimination, or that they 9 discriminated against him. The Equal Protection Clause requires that persons who are similarly 10 situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 11 439(1985); Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 12 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 13 878, 891 (9th Cir. 2008). To state a claim, Plaintiff must show that Defendants intentionally 14 discriminated against him based on his membership in a protected class. Hartmann, 707 F.3d at 15 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); 16 Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005); Lee v. City of Los 17 Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 18 If the action in question does not involve a suspect classification, a plaintiff may establish 19 an equal protection claim by showing that similarly situated individuals were intentionally treated 20 differently without a rational relationship to a legitimate state purpose. Engquist v. Oregon 21 Department of Agriculture, 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 22 U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch 23 Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 24 F.3d 478, 486 (9th Cir. 2008), see also Squaw Valley Development Co. v. Goldberg, 375 F.3d 25 936, 944 (9th Cir.2004); Sea River Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th 26 Cir. 2002). To state an equal protection claim under this theory, a plaintiff must allege that: (1) 27 the plaintiff is a member of an identifiable class; (2) the plaintiff was intentionally treated 28 7 1 differently from others similarly situated; and (3) there is no rational basis for the difference in 2 treatment. Village of Willowbrook, 528 U.S. at 564. To establish a violation of the Equal 3 Protection Clause, the prisoner must also present evidence of discriminatory intent. See 4 Washington v. Davis, 426 U.S. 229, 239-240 (1976); Serrano, 345 F.3d at 1081-82; Freeman v. 5 Arpio, 125 F.3d 732, 737 (9th Cir. 1997). 6 Plaintiff’s Equal Protection claim is not cognizable. Plaintiff fails to state any allegations 7 to show his membership in a protected class or that he was intentionally treated differently from 8 others similarly situated. Nor does Plaintiff demonstrate any discriminatory intent on the part of 9 the named Defendants. 10 11 3. Inmate Appeals It appears that Plaintiff intends to grieve the actions of Dr. Adams, CEO Young, and Dep. 12 Dir. Lewis for their involvement in the processing and reviewing of his inmate appeals in which 13 he attempted to obtain group therapy sessions within his housing unit outside the presence of 14 correctional staff. 15 The Due Process Clause protects prisoners from being deprived of liberty without due 16 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To state a cause of action for 17 deprivation of due process, a plaintiff must first establish the existence of a liberty interest for 18 which the protection is sought. AStates may under certain circumstances create liberty interests 19 which are protected by the Due Process Clause.@ Sandin v. Conner, 515 U.S. 472, 483-84 (1995). 20 Liberty interests created by state law are generally limited to freedom from restraint which 21 Aimposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 22 prison life.@ Sandin, 515 U.S. at 484. 23 A[A prison] grievance procedure is a procedural right only, it does not confer any 24 substantive right upon the inmates.@ Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing 25 Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 26 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a 27 specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of 28 8 1 grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 2 (9th Cir. 1988). AHence, it does not give rise to a protected liberty interest requiring the 3 procedural protections envisioned by the Fourteenth Amendment.@ Azeez v. DeRobertis, 568 F. 4 Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). 5 Actions in reviewing prisoner=s administrative appeal cannot serve as the basis for liability 6 under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows about a 7 violation of the Constitution, and fails to cure it, has violated the Constitution himself is not 8 correct. AOnly persons who cause or participate in the violations are responsible. Ruling against 9 a prisoner on an administrative complaint does not cause or contribute to the violation. A guard 10 who stands and watches while another guard beats a prisoner violates the Constitution; a guard 11 who rejects an administrative complaint about a completed act of misconduct does not.@ George 12 v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) citing Greeno v. Daley, 414 F.3d 645, 656-57 (7th 13 Cir.2005); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 14 992-93 (7th Cir.1996). 15 Further, at least one Appellate Circuit has held that A[o]nce a [non-medical] prison 16 grievance examiner becomes aware of potential mistreatment, the Eight Amendment does not 17 require him or her to do more than >review [the prisoner=s] complaints and verif[y] with the 18 medical officials that [the prisoner] was receiving treatment.@ Greeno, 414 F.3d at 656 citing 19 Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004) (non-physician defendants cannot Abe 20 considered deliberately indifferent simply because they failed to respond directly to the medical 21 complaints of a prisoner who was already being treated by the prison doctor@ and if Aa prisoner is 22 under the care of medical experts . . . a non-medical prison official will generally be justified in 23 believing that the prisoner is in capable hands.@) This Court concurs with the analysis in Greeno 24 and Spruill. Non-medical prison personnel and lower medical staff, such as nurses and/or 25 medical technicians, cannot be held liable for their involvement in processing and/or ruling on 26 inmate appeals for medical issues where the inmate is under the care of a physician for the issues 27 raised. Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals, 28 9 1 Plaintiff is unable to prove the elements of a constitutional violation against Dep. Dir. Lewis and 2 CEO Young for the processing and/or reviewing of his inmate appeals. 3 However, Plaintiff may be able to prove the elements for a claim under the Eight 4 Amendment for deliberate indifference to his serious medical needs against Dr. Adams since he 5 apparently had both medical training and the authority to intercede on Plaintiff’s behalf. If 6 Plaintiff meets his burden of proof as to the elements of a claim against medical personnel for 7 deliberate indifference to his serious medical needs, he will likely also be able to meet his burden 8 of proof as to the elements of a claim against defendants with medical training if they reviewed 9 and ruled against Plaintiff in his medical appeals on that same issue. However, as discussed 10 above, Plaintiff has not stated a cognizable claim for deliberate indifference to his serious medical 11 needs. Thus, he fails to state a claim against Dr. Adams for failing to take corrective action via 12 the inmate appeals process. 13 14 4. Supervisory Liability It appears that Plaintiff named CEO Young and Dep. Dir. Lewis based on their 15 supervisory positions. Generally, supervisory personnel are not liable under section 1983 for the 16 actions of their employees under a theory of respondeat superior -- when a named defendant 17 holds a supervisory position, the causal link between him and the claimed constitutional violation 18 must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. 19 Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). 20 To state a claim for relief under this theory, Plaintiff must allege some facts that would 21 support a claim that supervisory defendants either: personally participated in the alleged 22 deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or 23 promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of 24 constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black, 25 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 26 (9th Cir. 1989). To show this, “a plaintiff must show the supervisor breached a duty to plaintiff 27 which was the proximate cause of the injury. The law clearly allows actions against supervisors 28 10 1 under section 1983 as long as a sufficient causal connection is present and the plaintiff was 2 deprived under color of law of a federally secured right.” Redman v. County of San Diego, 942 3 F.2d 1435, 1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other grounds by 4 Farmer v. Brennan, 511 U.S. 825 (1994). 5 “The requisite causal connection can be established . . . by setting in motion a series of 6 acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly 7 refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably 8 should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty. 9 of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). “A supervisor can be liable in his individual 10 capacity for his own culpable action or inaction in the training, supervision, or control of his 11 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a 12 reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 13 1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted). 14 It is true that "inmates lack a separate constitutional entitlement to a specific prison 15 grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest 16 in processing of appeals because no entitlement to a specific grievance procedure), citing Mann v. 17 Adams, 855 F.2d 639, 640 (9th Cir. 1988). A[A prison] grievance procedure is a procedural right 18 only, it does not confer any substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F. 19 Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see 20 also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure 21 confers no liberty interest on prisoner). 22 However, a plaintiff may "state a claim against a supervisor for deliberate indifference 23 based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or 24 her subordinates," Starr v. Baca, 652 F.3d 1202, 1207 (2011), which may be shown via the 25 inmate appeals process where the supervisor reviewed Plaintiff's applicable inmate appeal and 26 failed to take corrective action, allowing the violation to continue. 27 28 Plaintiff's claim against Dep. Dir. Lewis rests exclusively on his involvement in the 11 1 handling and processing of Plaintiff’s inmate appeal, which as noted above is not actionable. 2 Ramirez, 334 F.3d at 860. Likewise, Plaintiff’s allegations against CEO Young are not actionable 3 as Plaintiff fails to show that CEO Young had knowledge that Plaintiff needed group therapy 4 prior to Plaintiff’s inmate appeal. Further, to be liable in a supervisorial capacity, Plaintiff must 5 first state cognizable claims against subordinates of CEO Young and Dep. Dir. Lewis, which as 6 discussed above, Plaintiff has not done. ORDER 7 8 9 For the reasons set forth above, Plaintiff's Complaint is dismissed with leave to file a first amended complaint within twenty-one (21) days. If Plaintiff needs an extension of time to 10 comply with this order, Plaintiff shall file a motion seeking an extension of time no later than 11 twenty-one (21) days from the date of service of this order. 12 Plaintiff must demonstrate in any first amended complaint how the conditions complained 13 of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 14 227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named 15 defendant is involved. There can be no liability under section 1983 unless there is some 16 affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo 17 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 18 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 19 Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and 20 plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon 21 which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 22 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be 23 [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 24 (2007) (citations omitted). 25 Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v. 26 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 27 2012) (en banc), and must be "complete in itself without reference to the prior or superceded 28 12 1 pleading," Local Rule 220. The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 2 3 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 4 may not change the nature of this suit by adding new, unrelated claims in his first amended 5 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). 6 Based on the foregoing, it is HEREBY ORDERED that: 7 1. Plaintiff's Complaint is dismissed, with leave to amend; 8 2. The Clerk's Office shall send Plaintiff a civil rights complaint form; 9 3. Within twenty-one (21) days from the date of service of this order, Plaintiff must 10 file a first amended complaint curing the deficiencies identified by the Court in 11 this order or a notice of voluntary dismissal; and 5. 12 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. 13 14 15 16 17 IT IS SO ORDERED. Dated: March 3, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 Sheila K. Oberto 13 .

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