Jacobs v. CSR Reps et al

Filing 15

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 12/18/2016. Second Amended Complaint due by 1/23/2017. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE E. JACOBS,

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Plaintiff,

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CASE No. 1:16-cv-00791-DAD-MJS (PC)
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

v.
(ECF No. 14)
CSR REPS, et al.,
THIRTY (30) DAY DEADLINE

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. His complaint was dismissed for

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failure to state a claim, but he was given leave to amend. (ECF No. 8.) His first amended

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complaint is before the Court for screening.

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I.

Screening Requirement

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

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing 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 to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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Plaintiff is incarcerated at the California Substance Abuse Treatment Facility

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(“SATF”) but complains of acts that occurred at California State Prison – Corcoran. He

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names the following defendants: (1) Warden Dave Davey, (2) Correctional Sergeant
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Alvarado, (3) Doe 1, Classification Staff Representative (“CSR”), and (4) Doe 2,

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Classification and Parole Rep (“C&PR”).
Plaintiff‟s allegations are somewhat difficult to understand but it appears they

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may fairly be summarized essentially as follows:

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Beginning in 2012, Corcoran officials began to make false allegations that Plaintiff

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had safety and security concerns.1 Since that time, Plaintiff has continually denied that

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he has such concerns.

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At some point, Plaintiff was placed on Administrative Segregation (“AdSeg”)

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status by Sergeant Alvarado. However, Plaintiff was not immediately placed in the

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AdSeg unit, apparently because he was hospitalized.

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On March 11, 2016, Plaintiff was discharged from the hospital pending transfer to

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an outpatient medical institution. Plaintiff was designated as “high risk medical status”

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due to an upper right humerus bone fracture and radial nerve palsy that paralyzed his

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right arm and hand. However, instead of being transferred to a medical institution, he

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was placed in AdSeg based on a report from Alvarado that Plaintiff had safety concerns

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with the “Bloods” security threat group. These reports were false.

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In April 2016, Plaintiff spoke with Defendant Davey in passing. According to
Plaintiff, Davey stated that he knew Plaintiff did not have safety concerns.

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Plaintiff was denied an Institutional Classification Committee (“ICC”) hearing for

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months. On May 3, 2016, he underwent an ICC hearing. Defendant Davey attended.

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The ICC found that there was no basis for the reported safety and security threats

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involving Plaintiff. The ICC elected to release Plaintiff to the general population pending

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transfer to SATF or High Desert State Prison (“HDSP”).

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On May 4, 2016, Plaintiff filed an emergency appeal challenging the ICC‟s

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decision in refusing to send Plaintiff to an outpatient medical facility as ordered by his

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The events of 2012 do not appear to be the basis for Plaintiff‟s complaint and appear to constitute
background to the instant allegations.

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doctor. According to Plaintiff, SATF and HDSP are not equipped to handle his medical

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needs.

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Plaintiff believes his transfer to a medical facility was canceled due to his

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emergency appeal. He claims that Alvarado told him this was so. However, Plaintiff also

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was told by a Correctional Counselor that his medical transfer was cancelled by CSR

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Doe 1 due to other false information regarding Plaintiff.

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C&PR Doe 2 signed off on the cancelation but should have known that the
reasons for the transfer were “insufficient, inadequate, and untrue.”

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Plaintiff remained in AdSeg for a month with a broken arm and without being
operated upon.

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Plaintiff seeks money damages and declaratory and injunctive relief.
IV.

Analysis

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A.

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The Due Process Clause protects prisoners from being deprived of liberty without

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due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a

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cause of action for deprivation of procedural due process, a plaintiff must first establish

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the existence of a liberty interest for which the protection is sought. Liberty interests may

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arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S.

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460, 466 (1983). The Due Process Clause itself does not confer on inmates a liberty

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interest in being confined in the general prison population instead of segregation. See id.

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at 466-68. Liberty interests created by state law are limited to freedom from restraint

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which “imposes atypical and significant hardship on the inmate in relation to the ordinary

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incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).

Fourteenth Amendment Due Process

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Assignment to the SHU is an administrative measure rather than a disciplinary

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measure and is “essentially a matter of administrative discretion.” Bruce v. Ylst, 351 F.3d

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1283, 1287 (9th Cir. 2003) (quoting Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir.

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1997)). To satisfy due process, the administrative segregation process must include an

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informal non-adversary hearing within a reasonable time after being segregated, notice
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of the charges or the reasons segregation is being considered, and an opportunity for

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the inmate to present his views. Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th

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Cir.1986), overruled on other grounds by Sandin v. Connor, 515 U.S. 472, 481 (1995).

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The administrative determination also must meet the “some evidence” standard of

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Superintendent v. Hill, 472 U.S. 445, 455 (1985). Bruce, 351 F.3d at 1287-88. Because

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the standard for “some evidence” is not high, a court need only decide whether there is

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any evidence at all that could support the prison officials' administrative decisions. Id. at

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1287-88. A reviewing court does not “examine the entire record, independently assess

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witness credibility, or reweigh the evidence.” Id. at 1287. However, the evidence

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supporting the administrative determination must bear “some indicia of reliability.” Cato

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v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (citations omitted).

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Plaintiff alleges that he was placed in Administrative Segregation on March 11,

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2016, and underwent a hearing regarding the placement on May 3, 2016. These

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allegations may be sufficient to allege that Plaintiff was not provided a hearing within a

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reasonable time after being segregated. However, Plaintiff has not alleged any facts to

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suggest who was responsible for the delay in providing a hearing. See Iqbal, 556 U.S. at

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676-77 (Plaintiff must demonstrate that each named defendant personally participated in

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the deprivation of his rights). Although he was placed on AdSeg status by Alvarado, it is

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not clear whether Alvarado actually placed Plaintiff in AdSeg upon his hospital

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discharge, or even knew that Plaintiff was confined in AdSeg absent an ICC hearing.

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Plaintiff will be given leave to amend to identify the person responsible for the delay.

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To the extent Plaintiff wishes to bring a claim against Defendant Alvarado merely

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for falsely reporting safety concerns, he fails to state a claim. Plaintiff does not have a

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constitutional right to an accurate prison record or to be free from false accusations. See

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Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (independent right to

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accurate prison record has not been recognized); Solomon v. Meyer, No. 11-cv-02827-

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JST (PR), 2014 WL 294576, at *2 (N.D. Cal. Jan. 27, 2014) (“[T]here is no

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constitutionally protected right to be free from false disciplinary charges.”); Johnson v.
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Felker, No. 1:12-cv-02719 GEB KJN (PC), 2013 WL 6243280, at *6 (E.D. Cal. Dec. 3,

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2013) (“Prisoners have no constitutionally guaranteed right to be free from false

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accusations of misconduct, so the mere falsification of a report does not give rise to a

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claim under section 1983.”) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.

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1989) and Freeman v. Rideout, 808 F.2d 949, 951-53 (2d. Cir. 1986)). Instead, Plaintiff‟s

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protection from the arbitrary action of prison officials lies in the procedural due process

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requirements set forth above. C.f. Ellis v. Foulk, No. 14-cv-0802 AC P, 2014 WL

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4676530, at *2 (E.D. Cal. Sept. 18, 2014) (citing Hanrahan v. Lane, 747 F.2d 1137, 1140

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(7th Cir. 1984)); Toscano v. Lewis, No. C-12-5893 EMC PR, 2013 WL 1632691, at *6

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(N.D. Cal. Apr. 16, 2013) (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989);

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Freeman, 808 F.2d at 951; and Hanrahan v. Lane, 747 F.2d 1137, 1140–41 (7th

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Cir.1984)). Again, Plaintiff fails to link Defendant Alvarado to a deprivation of these

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procedural protections.

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B.

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The Eighth Amendment‟s Cruel and Unusual Punishments Clause prohibits

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deliberate indifference to the serious medical needs of prisoners. McGuckin v. Smith,

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974 F.2d 1050, 1059 (9th Cir. 1992). A claim of medical indifference requires (1) a

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serious medical need, and (2) a deliberately indifferent response by defendant. Jett v.

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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The deliberate indifference standard is met

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by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible

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medical need and (b) harm caused by the indifference. Id. Where a prisoner alleges

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deliberate indifference based on a delay in medical treatment, the prisoner must show

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that the delay led to further injury. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir.

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2002); McGuckin, 974 F.2d at 1060a; Shapley v. Nevada Bd. Of State Prison Comm‟rs,

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766 F.2d 404, 407 (9th Cir. 1985) (per curiam). Delay which does not cause harm is

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insufficient to state a claim of deliberate medical indifference. Shapley, 766 F.2d at 407

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(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Medical Indifference

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only „be

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aware of the facts from which the inference could be drawn that a substantial risk of

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serious harm exists,‟ but that person „must also draw the inference.‟” Id. at 1057 (quoting

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Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “„If a prison official should have been

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

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no matter how severe the risk.‟” Id. (brackets omitted) (quoting Gibson, 290 F.3d at

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1188). Mere indifference, negligence, or medical malpractice is not sufficient to support

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the claim. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v.

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Gamble, 429 U.S. 87, 105-06 (1976)). A prisoner can establish deliberate indifference by

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showing that officials intentionally interfered with his medical treatment for reasons

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unrelated to the prisoner‟s medical needs. See Hamilton v. Endell, 981 F.2d 1062, 1066

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(9th Cir. 1992); Estelle, 429 U.S. at 105.

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Plaintiff‟s allegation of a broken humerus and paralysis is sufficient to state a

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serious medical need. Jett, 439 F.3d at 1096 (a “serious medical need” may be shown

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by demonstrating that “failure to treat a prisoner's condition could result in further

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significant injury or the „unnecessary and wanton infliction of pain‟”); McGuckin, 974 F.2d

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at 1059-60 (“The existence of an injury that a reasonable doctor or patient would find

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important and worthy of comment or treatment; the presence of a medical condition that

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significantly affects an individual's daily activities; or the existence of chronic and

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substantial pain are examples of indications that a prisoner has a „serious‟ need for

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medical treatment.”). However, he fails to allege sufficient facts to suggest that any of the

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Defendants were deliberately indifferent to that need.

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Plaintiff complains that he was discharged from the hospital to AdSeg, rather than

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to a medical facility. However, he does not identify the person responsible for his

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placement following discharge.

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He complains that the ICC endorsed him to SATF or HDSP rather than a medical

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facility. However, he does not name the members of the ICC as Defendants. Nor is it
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clear what information, if any, was presented to the ICC regarding Plaintiff‟s medical

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needs or his need for medical housing. For the same reason, Plaintiff‟s allegations

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against Defendant Davey are deficient.

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Plaintiff alleges that Doe 1 cancelled his medical transfer. However, it is unclear

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that any medical transfer actually was ordered, given that Plaintiff also states he was

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endorsed by the ICC to the general population pending transfer to a non-medical facility.

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It therefore is unclear whether Doe 1 had any information regarding Plaintiff‟s medical

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needs. This is also true of Doe 2, who signed off on the transfer.

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Plaintiff does not allege that he was harmed as a result of his transfer to a non-

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medical facility. Absent a showing of harm resulting from the Defendants‟ decisions,

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Plaintiff is unable to state a claim on this basis.

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Lastly, Plaintiff alleges he remained in AdSeg for one month without receiving

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surgery. However, he does not identify anyone responsible for this decision, or anyone

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who was aware of his need for surgery but failed to act.

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Plaintiff will be given leave to amend.

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C.

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“Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against

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an inmate (2) because of (3) that prisoner‟s protected conduct, and that such action (4)

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chilled the inmate‟s exercise of his First Amendment rights, and (5) the action did not

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reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005).

First Amendment Retaliation

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The second element focuses on causation and motive. See Brodheim v. Cry, 584

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F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a

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“„substantial‟ or „motivating‟ factor behind the defendant‟s conduct.” Id. (quoting

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Sorrano‟s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can

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be difficult to establish the motive or intent of the defendant, a plaintiff may rely on

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circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that
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a prisoner established a triable issue of fact regarding prison officials‟ retaliatory motives

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by raising issues of suspect timing, evidence, and statements); Hines v. Gomez, 108

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F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995)

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(“timing can properly be considered as circumstantial evidence of retaliatory intent”).

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In terms of the third prerequisite, filing a grievance is a protected action under the
First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).

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With respect to the fourth prong, “[it] would be unjust to allow a defendant to

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escape liability for a First Amendment violation merely because an unusually determined

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plaintiff persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino Cnty.,

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192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an

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official‟s acts would chill or silence a person of ordinary firmness from future First

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Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192

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F.3d at 1300).

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With respect to the fifth prong, a prisoner must affirmatively allege that “„the prison

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authorities‟ retaliatory action did not advance legitimate goals of the correctional

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institution or was not tailored narrowly enough to achieve such goals.” Rizzo v. Dawson,

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778 F.2d 527, 532 (9th Cir. 1985).

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Plaintiff alleges that Does 1 and 2 retaliated against him for filing a 602 by

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cancelling his transfer to a medical facility. However, it does not appear that any medical

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transfer ever was ordered. Rather, it appears Plaintiff is challenging the decision to

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transfer him to a regular prison, rather than a medical facility. Regardless, however, his

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allegations fail to state a claim. Plaintiff alleges that the ICC endorsed him to the general

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population pending transfer to SATF or HDSP. This occurred prior to Plaintiff‟s filing of

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an emergency appeal (and in fact formed the basis for his appeal). He does not name

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members of the ICC as Defendants, nor could he allege a retaliation claim against them

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as their conduct preceded his protected conduct.

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Plaintiff then alleges that Does 1 and 2 approved of the transfer recommended by

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the ICC. The fact that these Defendants merely approved the action taken by the ICC
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belies Plaintiff‟s claim that they acted with retaliatory animus. Indeed, Plaintiff alleges

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that they were motivated by other, false information regarding Plaintiff.

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Plaintiff does not state a cognizable retaliation claim. He will be given leave to

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amend.

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V.

Conclusion and Order

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Plaintiff‟s first amended complaint does not state a cognizable claim for relief.

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The Court will grant Plaintiff one final opportunity to file an amended complaint

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to cure noted defects. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff

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chooses to amend, he must demonstrate that the alleged acts resulted in a deprivation

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of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient

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factual matter . . . to „state a claim that is plausible on its face.‟” Id. at 678 (quoting

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Twombly, 550 U.S. at 555). Plaintiff should note that although he has been given the

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opportunity to amend, it is not for the purposes of adding new claims. George v. Smith,

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507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff should carefully

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read this screening order and focus his efforts on curing the deficiencies set forth above.

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If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but it

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must state what each named defendant did that led to the deprivation of Plaintiff‟s

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constitutional rights, Iqbal, 556 U.S. at 676-677. Although accepted as true, the “[f]actual

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allegations must be [sufficient] to raise a right to relief above the speculative level. . . .”

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Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supersedes the prior complaint, see Loux v. Rhay,

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375 F.2d 55, 57 (9th Cir. 1967), and it must be “complete in itself without reference to the

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prior or superseded pleading,” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:
1. The Clerk‟s Office shall send Plaintiff a blank civil rights complaint form and
copies of his first amended complaint (ECF No. 14);

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

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file a second amended complaint curing the deficiencies identified by the

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Court in this order, or a notice of voluntary dismissal; and

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3. If Plaintiff fails to comply with this order, the undersigned will recommend

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that this action be dismissed for failure to obey a court order, failure to

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prosecute, and failure to state a claim, subject to the “three strikes”

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provision set forth in 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:

December 18, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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