Trujillo v. Sherman et al

Filing 8

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Response Due within Thirty Days signed by Magistrate Judge Jennifer L. Thurston on 4/28/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARNOLDO TRUJILLO, 12 Plaintiff, 13 Case No. 1:16-cv-01277-DAD-JLT (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (Doc. 1) 14 SHERMAN, et al., RESPONSE DUE WITHIN THIRTY DAYS 15 Defendants. 16 17 18 I. Background Plaintiff complains of events surrounding his placement on a 24-hour suicide watch at the 19 Substance Abuse and Treatment Facility. Plaintiff fails to state a cognizable claim and the 20 Complaint is dismissed with leave to amend. 21 A. 22 The Court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 26 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 27 § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed 28 per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed 1 1 as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has 2 not alleged imminent danger of serious physical injury does not qualify to proceed in forma 3 pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015). 4 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 5 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 6 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 7 substantive rights, but merely provides a method for vindicating federal rights conferred 8 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 9 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 10 right secured by the Constitution or laws of the United States was violated and (2) that the alleged 11 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 12 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 13 B. Factual allegations 14 Plaintiff names Warden Stuart Sherman, Lieutenant D. Plunket, Sergeant J. Borges, and 15 the CDCR as Defendants and seeks monetary damages. Plaintiff outlines three Causes of 16 Action/Claims: (1) cruel and unusual punishment; (2) deliberate indifference; and (3) negligence. 17 These claims are premised on Plaintiff being placed on suicide watch. 18 Plaintiff does not state any cognizable claims, but may be able to amend to correct the 19 deficiencies in his pleading and is being given the applicable standards based on his stated claims 20 and leave to file a first amended complaint. 21 22 C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 23 "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited 24 exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 25 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain 26 statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). 27 "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 28 the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. 2 1 Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a 2 cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 3 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 4 Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is 5 plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 6 allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. 7 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 8 While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft, 9 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 10 and are afforded the benefit of any doubt. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 11 2013); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, "the liberal pleading 12 standard . . . applies only to a plaintiff's factual allegations," Neitze v. Williams, 490 U.S. 319, 330 13 n.9 (1989), "a liberal interpretation of a civil rights complaint may not supply essential elements 14 of the claim that were not initially pled," Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 15 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982), and courts 16 are not required to indulge unwarranted inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 17 681 (9th Cir. 2009) (internal quotation marks and citation omitted). The “sheer possibility that a 18 defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a 19 defendant’s liability” fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 20 S. Ct. at 1949; Moss, 572 F.3d at 969. Plaintiff must identify specific facts supporting the 21 existence of substantively plausible claims for relief. Johnson v. City of Shelby, __ U.S. __, __, 22 135 S.Ct. 346, 347 (2014) (per curiam) (citation omitted). 23 If he chooses to file a first amended complaint, Plaintiff should endeavor to make it as 24 concise as possible. He should merely state which of his constitutional rights he feels were 25 violated by each Defendant and its factual basis. Plaintiff should also state the date that the 26 incidents he complains of took place. 27 28 2. Linkage Requirement To state a claim under 42 U.S.C. § 1983 there must be an actual connection or link 3 1 between the actions of the defendants and the deprivation alleged to have been suffered by 2 Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 3 U.S. 362 (1976). 4 Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 5 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 6 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 7 Jones, 297 F.3d at 934. “Section 1983 is not itself a source of substantive rights, but merely 8 provides a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada ex rel. 9 Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S. 10 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation marks omitted). To state a claim, 11 Plaintiff must allege facts demonstrating the existence of a link, or causal connection, between 12 each defendant’s actions or omissions and a violation of his federal rights. Lemire v. California 13 Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 14 1202, 1205-08 (9th Cir. 2011). 15 The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a 16 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 17 in another=s affirmative acts or omits to perform an act which he is legally required to do that 18 causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th 19 Cir. 1978). Under section 1983, Plaintiff must demonstrate that each defendant personally 20 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 21 Plaintiff must clarify which defendant he feels are responsible for each violation of his 22 constitutional rights and the factual basis for each violation to put each Defendant on notice of 23 Plaintiff=s claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). 24 25 3. CDCR Plaintiff may not sustain an action against a state prison. The Eleventh Amendment 26 prohibits federal courts from hearing suits brought against a state sovereign. Brooks v. Sulphur 27 Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); see also Seminole Tribe of Fla. v. 28 Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 4 1 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). The 2 Eleventh Amendment bars suits against state agencies as well as those where the state itself is 3 named as a defendant. See Natural Resources Defense Council v. California Dep=t of Tranp., 96 4 F.3d 420, 421 (9th Cir. 1996); Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 5 (9th Cir. 1991); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada 6 Department of Prisons was a state agency entitled to Eleventh Amendment immunity); Mitchell v. 7 Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1989). AThough its language 8 might suggest otherwise, the Eleventh Amendment has long been construed to extend to suits 9 brought against a state by its own citizens, as well as by citizens of other states.@ Brooks, 951 10 F.2d at 1053 (citations omitted). AThe Eleventh Amendment=s jurisdictional bar covers suits 11 naming state agencies and departments as defendants, and applies whether the relief is legal or 12 equitable in nature.@ Id. (citation omitted). Plaintiff may not maintain an action against the 13 CDCR, which is a state agency, as it is entitled to dismissal based on the Eleventh Amendment. 14 15 16 17 18 D. Claims for Relief 1. Claim 1 (Doc. 1, p. 3.) In this claim, Plaintiff alleges that he was forced to stand in a holding cage even when he informed Sgt. Borges that he was diabetic and did not say that he wanted to hurt himself. Plaintiff alleges that the procedure at SATF is that Lt. Plunket is informed of a situation which 19 Sgt. Borges investigates and determines whether allegations are true. Plaintiff was “stripped 20 down naked, put into a cold room with no blankets and placed on suicide watch for 24-hours” to 21 make sure Plaintiff did not want to hurt himself. Plaintiff told Sgt. Borges that he never wanted 22 to hurt himself, nor did he ever tell anyone he wanted to do so. After 24-hours, it came to light 23 that Plaintiff was being investigated for harassment via the prison phones. He was eventually 24 cleared of all charges and returned to F-yard. Plaintiff says the allegations should have been 25 investigated before he was put on suicide watch. Plaintiff alleges that he is innocent until proven 26 guilty and that Warden Sherman should have protocols in place to prevent this kind of a situation 27 from happening. Plaintiff alleges that these circumstances violated his rights under the Eighth 28 5 1 Amendment to freedom from cruel and unusual punishment, under the Fourteenth Amendment to 2 due process, and amounted to retaliation. a. 3 4 Cruel & Unusual Punishment The Eighth Amendment protects prisoners from inhumane methods of punishment and 5 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. 6 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison 7 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 8 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 9 2000) (quotation marks and citations omitted). To establish a violation of the Eighth 10 Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .” 11 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. 12 County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). 13 The deliberate indifference standard involves both an objective and a subjective prong. 14 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834. 15 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 16 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). 17 Objectively, extreme deprivations are required to make out a conditions of confinement claim and 18 only those deprivations denying the minimal civilized measure of life’s necessities are 19 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 20 503 U.S. 1, 9 (1992). 21 22 23 24 25 26 27 28 The Constitution “ ‘does not mandate comfortable prisons,’ ” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 349), and temporarily unconstitutional conditions of confinement do not necessarily rise to the level of constitutional violations, see Anderson, 45 F.3d 1310, ref. Hoptowit, 682 F.2d at 1258 (abrogated on other grounds by Sandin, 515 U.S. 472 (in evaluating challenges to conditions of confinement, length of time the prisoner must go without basic human needs may be considered)). While being placed in a cold cell room without clothing or blankets may amount to deprivation of adequate clothing/warmth, Plaintiff twice states that he was on suicide watch under these conditions for only 24-hours. Being subjected to 6 1 deplorable conditions for a single day does not amount to an objectively extreme deprivation to 2 state a cognizable claim under the Eighth Amendment. 3 Subjectively, if Plaintiff had shown an objective deprivation, he would be required to 4 show that prison officials acted with a sufficiently culpable state of mind, that of “deliberate 5 indifference.” Wilson, 501 U.S. at 303; Labatad, 714 F.3d at 1160; Johnson, 217 F.3d at 733. 6 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th 7 Cir.2004). AUnder this standard, the prison official must not only >be aware of the facts from 8 which the inference could be drawn that a substantial risk of serious harm exists,= but that person 9 >must also draw the inference.=@ Id. at 1057 (quoting Farmer, 511 U.S. at 837). Being without 10 clothing and a blanket for 24-hours does not provide basis for a prison official to suspect a 11 substantial risk of serious harm exists. On the contrary, however, where there is basis to suspect 12 that an inmate is suicidal, failure to take measures for that person’s safety -- including removing 13 clothing and blankets with which he might cause himself harm -- would amount to deliberate 14 indifference. Thus, Plaintiff’s allegations of being placed on suicide watch without clothes or 15 blankets for 24-hours does not state a cognizable claim under the Eighth Amendment. b. 16 17 Retaliation Prisoners have a First Amendment right to file grievances against prison officials and to 18 be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir. 19 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five 20 elements. Id. at 1114. 21 22 23 24 25 26 27 28 First, the plaintiff must show that the retaliated-against conduct is protected. Id. The filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff must show a causal connection between the adverse action and the protected conduct. Waitson, 668 F.3d at 1114. Fourth, the plaintiff must show that the “official’s acts would chill or silence a 7 1 person of ordinary firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568 2 (internal quotation marks and emphasis omitted). Fifth, the plaintiff must show “that the prison 3 authorities’ retaliatory action did not advance legitimate goals of the correctional institution. . . .” 4 Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). It bears repeating that while Plaintiff must show facts sufficient to support a plausible 5 6 claim for relief; the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at 678-79, 7 and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 8 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). The conduct 9 identified by Plaintiff as retaliatory must have been motivated by his engaging in a protected 10 activity, and the retaliatory conduct must not have reasonably advanced a legitimate penological 11 goal. Brodheim, 584 F.3d at 1271-72 (citations omitted). Thus, merely showing that Plaintiff 12 engaged in protected activity, without knowledge resulting in animus by a Defendant, is 13 insufficient to show that Plaintiff=s protected activity was the motivating factor behind a 14 Defendant’s actions. Here, Plaintiff merely checked the retaliation box at the top of the page on 15 Claim 1, but did not state allegations to meet any of the elements for a cognizable retaliation 16 claim. 17 18 c. Due Process The Due Process Clause protects Plaintiff against the deprivation of liberty without the 19 procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 20 221, 125 S.Ct. 2384 (2005). “[L]awfully incarcerated persons retain only a narrow range of 21 protected liberty interests.” Hewitt v. Helms, 459 U.S. 460, 467 (1983). “As long as the 22 23 24 25 26 27 28 conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242 (1976). Transfer to less amenable quarters for non-punitive reasons has been held to be “ordinarily contemplated by a prison sentence.” Hewitt, 459 U.S. at 468; see also Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (explaining that “[t]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of 8 1 confinement”). Indeed, the Due Process Clause does not protect against all changes in conditions 2 of confinement even where they “hav[e] a substantial adverse impact on the prisoner involved.” 3 Meachum v. Fano, 427 U.S. 215, 224 (1976). 4 To state a claim, Plaintiff must first identify the interest at stake. Wilkinson, 545 U.S. at 5 221. Liberty interests may arise from the Due Process Clause itself or from state law. Id. The 6 Due Process Clause does not confer on inmates a liberty interest in avoiding more adverse 7 conditions of confinement, and under state law, the existence of a liberty interest created by 8 prison regulations is determined by focusing on the nature of the condition of confinement at 9 issue. Id. at 221-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) 10 (quotation marks omitted). Liberty interests created by prison regulations are generally limited to 11 freedom from restraint which imposes atypical and significant hardship on the inmate in relation 12 to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 221 (citing Sandin, 515 U.S. at 13 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). 14 “It is plain, that the transfer of an inmate to less amenable and more restrictive quarters for 15 non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison 16 sentence.” Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir.1986). “Only the most 17 extreme changes in the conditions of confinement have been found to directly invoke the 18 protections of the Due Process Clause, such as involuntary commitment to a mental institution, or 19 the forced administration of psychotropic drugs. Chappell v. Mandeville, 706 F.3d 1052, 1062- 20 1063 (9th Cir. 2013) (citing Vitek v. Jones, 445 U.S. 480, 493-94 (1980); Washington v. Harper, 21 494 U.S. 210, 221B22 (1990)). “[A]dministrative segregation is the sort of confinement that 22 23 24 25 26 27 28 inmates should reasonably anticipate receiving at some point in their incarceration.” Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir.1986). “An investigative contraband watch is [also] the type of condition of confinement that is ordinarily contemplated by the sentence imposed.” Chappell v. Mandeville, 706 F.3d 1052, 1062-1063 (9th Cir. 2013). Plaintiff’s allegation that he was placed on a 24-hour suicide watch without blankets or clothes does not meet the extreme requirements necessary to state a conditions of confinement claim under the Due Process Clause. 9 1 d. Supervisory Liability 2 Plaintiff seeks to hold Warden Sherman liable for his placement on 24-hour suicide watch. 3 Under section 1983, liability may not be imposed on supervisory personnel for the actions of their 4 employees under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). 5 “In a § 1983 suit or a Bivens action - where masters do not answer for the torts of their servants - 6 the term ‘supervisory liability’ is a misnomer.” Id. Therefore, when a named defendant holds a 7 supervisory position, the causal link between him and the claimed constitutional violation must be 8 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 9 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state such a claim, a plaintiff must allege facts that show supervisory defendants either: 10 11 personally participated in the alleged deprivation of constitutional rights; knew of the violations 12 and failed to act to prevent them; or promulgated or “implemented a policy so deficient that the 13 policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force of the 14 constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations 15 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). An unconstitutional policy cannot 16 be proved by a single incident “unless proof of the incident includes proof that it was caused by 17 an existing, unconstitutional policy.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 18 S.Ct. 2427 (1985). In this instance, a single incident establishes a “policy” only when the 19 decision-maker has “final authority” to establish the policy in question. Collins v. City of San 20 Diego, 841 F.2d 337, 341 (9th Cir. 1988), citing Pembauer v. City of Cincinnati, 475 U.S. 469 21 (1986). Plaintiff fails to state any allegations to show that Warden Sherman personally 22 23 24 25 26 27 28 participated in his placement on 24-hour suicide watch, that he knew Plaintiff was placed on 24hour suicide watch and that Plaintiff was not suicidal and failed to act to prevent it; or that this occurred more than once for Warden Sherman to have promulgated or implemented a deficient policy. 2. Claim 2 (Doc. 1, p. 4.) In this claim, Plaintiff alleges that he has diabetes, that staff at SATF knew of his 10 1 condition and that he told staff he is diabetic when he was placed on 24-hour suicide watch. 2 Despite this, Plaintiff alleges that he was not provided his required medication. Plaintiff alleges 3 this put him at risk of serious injury, even death. Plaintiff alleges that Sgt. Borges and Lt. Plunket 4 did not follow proper procedure and should have investigated the allegations and a captain should 5 have been informed before he was placed on suicide watch. Plaintiff alleges that this “chain of 6 command” failed in his situation and that Warden Sherman is responsible for making sure that 7 staff know of a serious medical need or condition and address it. As a result of being placed in 8 the holding cage, Plaintiff states that his hip and back were bruised and his knee hurt from the 9 hours of standing. Plaintiff states that the pain continued 4 to 5 days, but that the humiliation he 10 suffered still exists. a. 11 Deliberate Indifference to Serious Medical Needs 12 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 13 prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 14 is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton 15 infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 16 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 17 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 18 Cir.1997) (en banc)) 19 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 20 first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition 21 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 22 23 24 25 26 27 28 the plaintiff must show the defendants= response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 (quotation marks omitted)). As to the first prong, indications of a serious medical need “include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 11 1 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 2 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s 3 diabetes, which apparently required medication to regulate, is accepted as a serious medical need. 4 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 5 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 6 safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 7 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 8 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 9 Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 10 prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 11 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 12 substantial; however, such would provide additional support for the inmate's claim that the 13 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 14 F.2d at 1060. 15 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 16 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 17 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 18 ‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If a prison 19 official should have been aware of the risk, but was not, then the official has not violated the 20 Eighth Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe, 21 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 22 23 24 25 26 27 28 Plaintiff fails to state allegations to show that his inability to access the medication for his diabetes for 24-hours subjected him to a substantial risk of serious harm or that he suffered any physical injury as a result. Further, though Plaintiff states that “staff” at SATF knew he is diabetic and that he informed “staff” that he needed his medication, a general title such as “staff” is insufficient to link any of the named defendants to Plaintiff’s allegations under section 1983. Monell, 436 U.S. 658; Rizzo, 423 U.S. 362. Under this claim Plaintiff also fails to state any allegations to show that Warden Sherman 12 1 personally participated in denying him medication for his diabetes while Plaintiff was on 24-hour 2 suicide watch, that he knew Plaintiff was placed on 24-hour suicide watch and didn’t have access 3 to his diabetes medication; or that this occurred more than once for Warden Sherman to have 4 promulgated or implemented a deficient policy which caused or allowed the situation to occur. 3. Claim 3 (Doc. 1, p. 5.) 5 6 In this claim, Plaintiff alleges that when he was placed on 24-hour suicide watch his 7 property was removed from his regular cell and some of his items (coffee, food, hygiene supplies) 8 were lost and his TV was broken. Plaintiff again states that he was placed on suicide watch for 9 officers to investigate allegations that he was harassing someone via telephone. Plaintiff alleges 10 that Sgt. Borges, Lt. Plunket, and Warden Sherman “should have never allowed this kind of 11 negligence under their authority by staff or anyone else.” a. 12 State Law Claim -- Negligence Plaintiff states that this claim is for negligence over the loss/destruction of his property 13 14 which is a tort action under California law. Under the California Government Claims Act 15 (“CGCA”),1 set forth in California Government Code sections 810 et seq., a plaintiff may not 16 bring a suit for monetary damages against a public employee or entity unless the plaintiff first 17 presented the claim to the California Victim Compensation and Government Claims Board, and 18 the Board acted on the claim, or the time for doing so expired. “The Tort Claims Act requires 19 that any civil complaint for money or damages first be presented to and rejected by the pertinent 20 public entity.” Munoz v. California, 33 Cal.App.4th 1767, 1776 (1995). The purpose of this 21 requirement is “to provide the public entity sufficient information to enable it to adequately 22 23 24 25 investigate claims and to settle them, if appropriate, without the expense of litigation,” City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974) (citations omitted), and “to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the Act are satisfied,” Nuveen Mun. High Income Opportunity Fund v. City of 26 27 28 1 The Government Claims Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort Claims Act). 13 1 Alameda, Cal., 730 F.3d 1111, 1125 (9th Cir. 2013). Compliance with this “claim presentation 2 requirement” constitutes an element of a cause of action for damages against a public entity or 3 official. State v. Superior Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 4 (2004). Thus, in the state courts, “failure to allege facts demonstrating or excusing compliance 5 with the claim presentation requirement subjects a claim against a public entity to a demurrer for 6 failure to state a cause of action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted). 7 Federal courts likewise must require compliance with the CGCA for pendant state law 8 claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 9 702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 10 (9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, 11 may proceed only if the claims were first presented to the state in compliance with the claim 12 presentation requirement. Karim–Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 13 (9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). 14 15 Plaintiff fails to state any allegations which show he complied with the CGCA upon which to be allowed to pursue claims for violation of California law in this action. 16 Further, “[a]n action in negligence requires a showing that the defendant owed the 17 plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or 18 legal cause of injuries suffered by the plaintiff. [Citations.]” Regents of the Univ. of California v. 19 Superior Court of Los Angeles Cty., 240 Cal. App. 4th 1296, 1310 (2015), reh'g denied (Oct. 26, 20 2015) quoting Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (Ann M.) 21 [disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5].) 22 23 24 25 26 27 28 Plaintiff fails to state any allegations to address the elements of a negligence cause of action. As Claim 3 is entirely based on his property that was either negligently or intentionally lost or broken, Plaintiff must pursue any such claim under California law. A state prisoner has no cause of action under 42 U.S.C. § 1983 for an unauthorized deprivation of property, either intentional or negligent, by a state employee if a meaningful state post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). California law provides an adequate post-deprivation remedy for any property deprivations. Barnett v. Centoni, 31 F.3d 813, 14 1 816-817 (9th Cir. 1994) (citing Cal. Gov=t Code '' 810-895). 2 II. CONCLUSION For the reasons set forth above, Plaintiff's Complaint is dismissed, with leave to file a first 3 4 amended complaint within 30 days. If Plaintiff chooses not to pursue this issue in an action 5 under § 1983, he may file a notice of voluntary dismissal of this action in that same time. If 6 Plaintiff fails to file either a first amended complaint or a notice of voluntary dismissal, the action 7 will be dismissed for his failure to state a claim which may count as a strike under 28 U.S.C. § 8 1915. If Plaintiff needs an extension of time to comply with this order, Plaintiff shall file a 9 motion seeking an extension of time no later than thirty days from the date of service of this 10 order. 11 Plaintiff must demonstrate in any first amended complaint how the conditions complained 12 of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 13 227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named 14 defendant is involved. There can be no liability under section 1983 unless there is some 15 affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo 16 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 17 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and 19 plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon 20 which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 21 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be 22 23 24 25 26 27 28 [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 (2007) (citations omitted). Plaintiff is further advised that an amended complaint supercedes the original, Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 2012) (en banc), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 220. The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 15 1 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 2 may not change the nature of this suit by adding new, unrelated claims in his first amended 3 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). 4 Based on the foregoing, the Court ORDERS: 5 1. Plaintiff's Complaint is dismissed, with leave to amend; 6 2. The Clerk's Office shall send Plaintiff a civil rights complaint form; 7 3. Within 30 days from the date of service of this order, Plaintiff must file a first 8 amended complaint curing the deficiencies identified by the Court in this order, or 9 a notice of voluntary dismissal; and 10 4. If Plaintiff fails to comply with this order, this action will be dismissed for 11 failure to prosecute, failure to obey a court order, and for failure to state a 12 claim. 13 IT IS SO ORDERED. 14 15 Dated: April 28, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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