Alarcon v. Davey et al

Filing 9

ORDER DISMISSING CASE WITH LEAVE TO AMEND ;ORDER DENYING 7 Motion for Preliminary Injunctive Relief without prejudice, signed by Magistrate Judge Jennifer L. Thurston on 05/09/2017. (First Amended Complaint due by 6/12/2017) (Copy of this order and Plaintiff's Motion send to Litigation Coordinator and Warden @ Salinas Valley State Prison) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS A. ALARCON, 12 13 Plaintiff, Case No. 1:16-cv-01461-JLT (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (Doc. 1) 14 D. DAVEY, et al., 15 Defendants. ORDER DENYING MOTION FOR PRELIMINARY INJUNCTIVE RELIEF WITHOUT PREJUDICE 16 (Doc. 7) 17 30 DAY DEADLINE 18 19 Plaintiff, who is currently housed at Salinas Valley State Prison, complains numerous 20 events that occurred while he was housed at CSP-Cor. As discussed below, the Complaint 21 violates Rule 8 of the Federal Rules of Civil Procedure. However, Plaintiff may be able to state 22 some cognizable claims, so the Complaint is dismissed with leave to file a first amended 23 complaint. 24 A. 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 27 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 28 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or Screening Requirement 1 1 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 2 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 3 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 4 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 5 6 C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 7 "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited 8 exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 9 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain 10 statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). 11 "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 12 the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. 13 Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 14 when a pleading says too little -- the baseline threshold of factual and legal allegations required 15 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009). The Rule is also violated, though, when a pleading says too much. Cafasso, U.S. ex rel. 17 v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e have never held -- 18 and we know of no authority supporting the proposition -- that a pleading may be of unlimited 19 length and opacity. Our cases instruct otherwise.”) (citing cases); see also McHenry v. Renne, 84 20 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, and recognizing that 21 “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case impose unfair burdens 22 on litigants and judges”). Plaintiff’s 48-pages of allegations, most of which are barely more than 23 single-spaced, violate Rule 8 for the latter. 24 Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a 25 cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 27 Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is 28 2 1 plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 2 allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. 3 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 4 While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft, 5 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 6 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 7 However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze 8 v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may 9 not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit 10 Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 11 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal- 12 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 13 omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 14 “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 15 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. 16 Further, Plaintiff is required to submit filings that are Aclearly legible.@ Local Rule 130(b). 17 In submitting a first amended complaint, Plaintiff is required to write his letters in larger, darker 18 print and to double space his sentences. Local Rule 130(c). 19 If he chooses to file a first amended complaint, Plaintiff should endeavor to make it as 20 concise as possible in no more than 25 double-spaced pages. He should merely state which of 21 his constitutional rights he feels were violated by each Defendant or group of Defendants and the 22 factual basis. Plaintiff should not repeat factual scenarios separately where a group of Defendants 23 allegedly engaged in an action together -- i.e. if Plaintiff alleges that a group of Defendants 24 attacked him in one event, he should only state the allegations of the attack once, identify each 25 Defendant involved, and delineate the specific actions of each Defendant towards him during the 26 attack. Plaintiff need not and should not cite legal authority for his claims in a first amended 27 complaint. His factual allegations are accepted as true and need not be bolstered by legal 28 3 1 authority at the pleading stage. If Plaintiff files a first amended complaint, his factual allegations 2 will be screened under the legal standards and authorities stated in this order. 2. 3 4 Federal Rule of Civil Procedure 18(a) & 20(a)(2) Federal Rule of Civil Procedure 18(a) allows a party asserting a claim to relief as an 5 original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as 6 alternate claims, as many claims as the party has against an opposing party. However, Plaintiff 7 may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 8 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 9 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the 10 claim(s) arise out of the same transaction or occurrence, or series of transactions and occurrences, 11 and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 12 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 13 623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) 14 will the Court review the extraneous claims to determine if they may be joined under Rule 18(a), 15 which permits the joinder of multiple claims against the same party. 16 The Court must be able to discern a relationship between Plaintiff’s claims or there must 17 be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of 18 constitutional violation (i.e. deliberate indifference to different medical issues) does not 19 necessarily make claims related for purposes of Rule 18(a); nor are Plaintiff’s claims all related 20 because he feels the Warden, or other supervising personnel failed to properly train or supervise 21 all of the culpable actors. 22 All claims that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. 23 Plaintiff is cautioned that if his amended complaint sets forth improperly joined claims, the Court 24 will determine which claims may proceed and which claims will be dismissed. Visendi v. Bank of 25 America, N.A., 733 F3d 863, 870-71 (9th Cir. 2013). Whether any claims will be subject to 26 severance by future order will depend on the viability of the claims raised in the first amended 27 complaint. 28 4 1 2 3. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 3 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 4 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 5 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 6 substantive rights, but merely provides a method for vindicating federal rights elsewhere 7 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 8 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 9 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 10 or causal connection, between each defendant’s actions or omissions and a violation of his federal 11 rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); 12 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 13 Plaintiff’s allegations must demonstrate that each defendant personally participated in the 14 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 15 presentation of factual allegations sufficient to state a plausible claim for relief against each 16 defendant. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 17 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 18 556 U.S. at 678; Moss, 572 F.3d at 969. However, prisoners proceeding pro se in civil rights 19 actions are still entitled to have their pleadings liberally construed and to have any doubt resolved 20 in their favor. Hebbe, 627 F.3d at 342. 21 22 4. Exhibits At screening, the submission of evidence is premature as Plaintiff is only required to state 23 a prima facie claim for relief via his factual allegations. Thus, in amending his Complaint, 24 Plaintiff would do well to simply state the facts upon which he alleges a defendant has violated 25 his constitutional rights and refrain from submitting exhibits. 26 27 If Plaintiff feels compelled to submit exhibits with an amended complaint, he is reminded that such exhibits must be attached to the amended pleading and must be incorporated by 28 5 1 reference. Fed. R. Civ. Pro. 10(c). For example, Plaintiff must state Asee Exhibit A@ or 2 something similar to direct the Court to the specific exhibit Plaintiff’s allegations reference and 3 Plaintiff would do well to state what he intends the exhibit to show the reader. Further, if the 4 exhibit consists of more than one page, Plaintiff must reference the specific page of the exhibit 5 (i.e. ASee Exhibit A, page 3@). 6 Finally, even if exhibits are properly attached and incorporated in a pleading, Plaintiff is 7 cautioned that it is the Court=s duty on screening to assume the factual allegations are true and to 8 assess merely whether a cognizable claim is stated -- not to wade through exhibits to verify 9 evidentiary support. Therefore, it is generally unnecessary for Plaintiff to submit exhibits in 10 support of the allegations in a complaint. Plaintiff’s Allegations 11 D. 12 Plaintiff complains of a number of actions that occurred in 2015 and names 22 individuals 13 as defendants along with “Does 1-25.” Plaintiff seeks monetary damages as well as declaratory 14 and injunctive relief. The Complaint is 52 pages in length, 48 of which are Plaintiff’s factual 15 allegations -- most of which are less than double-spaced and difficult to read. The Court declines 16 to expend its limited resources to review and summarize Plaintiff’s allegations since the 17 Complaint clearly violates Rule 8 and likely also violates Rules 18 and 20. In light of Plaintiff’s 18 pro se status, he is given the legal standards for the claims it appears he is attempting to state and 19 is granted leave to file a first amended complaint that is no more than 25 double-spaced pages, 20 exclusive of exhibits. 21 22 B. Legal Standards 1. Deliberate Indifference to Serious Medical Needs 23 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 24 prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 25 is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton 26 infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 27 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 28 6 1 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 2 Cir.1997) (en banc)) 3 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 4 first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition 5 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 6 the plaintiff must show the defendants= response to the need was deliberately indifferent.” 7 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 8 1096 (9th Cir. 2006) (quotation marks omitted)). 9 “Indications that a plaintiff has a serious medical need include the existence of an injury 10 that a reasonable doctor or patient would find important and worthy of comment or treatment; the 11 presence of a medical condition that significantly affects an individual’s daily activities; or the 12 existence of chronic or substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 13 2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113, 14 1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). 15 Deliberate indifference is “a state of mind more blameworthy than negligence” and 16 “requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’ ” Farmer v. 17 Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). Deliberate indifference is 18 shown where a prison official “knows that inmates face a substantial risk of serious harm and 19 disregards that risk by failing to take reasonable measures to abate it.” Id., at 847. Deliberate 20 indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). 21 “Under this standard, the prison official must not only ‘be aware of the facts from which the 22 inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also 23 draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If a prison official should 24 have been aware of the risk, but was not, then the official has not violated the Eighth 25 Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 26 290 F.3d 1175, 1188 (9th Cir. 2002)). 27 In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 28 7 1 prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 2 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). More generally, deliberate indifference Amay 3 appear when prison officials deny, delay or intentionally interfere with medical treatment, or it 4 may be shown by the way in which prison physicians provide medical care.@ Id. (internal 5 quotation marks omitted). Under Jett, A[a] prisoner need not show his harm was substantial.@ Id.; 6 see also McGuckin, 974 F.2d at 1060 (A[A] finding that the defendant=s activities resulted in 7 >substantial= harm to the prisoner is not necessary.@). 2. 8 9 Excessive Force The Eighth Amendment prohibits those who operate our prisons from using Aexcessive 10 physical force against inmates.@ Farmer v. Brennan, 511 U.S. 825 (1994); Hoptowit v. Ray, 682 11 F.2d 1237, 1246, 1250 (9th Cir.1982) (prison officials have Aa duty to take reasonable steps to 12 protect inmates from physical abuse@); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th 13 Cir.1988), cert. denied, 490 U.S. 1012 (1989) (Aprison administrators= indifference to brutal 14 behavior by guards toward inmates [is] sufficient to state an Eighth Amendment claim@). As 15 courts have succinctly observed, A[p]ersons are sent to prison as punishment, not for punishment.@ 16 Gordon v. Faber, 800 F.Supp. 797, 800 (N.D. Iowa 1992) (citation omitted), aff=d, 973 F.2d 686 17 (8th Cir.1992). ABeing violently assaulted in prison is simply not >part of the penalty that criminal 18 offenders pay for their offenses against society.=@ Farmer, 511 U.S. at 834, (quoting Rhodes, 452 19 U.S. at 347). 20 When a prison official stands accused of using excessive physical force in violation of the 21 cruel and unusual punishment clause of the Eighth Amendment, the question turns on Awhether 22 force was applied in a good-faith effort to maintain or restore discipline, or maliciously and 23 sadistically for the purpose of causing harm.@ Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing 24 Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was 25 wanton and unnecessary, it is proper to consider factors such as the need for application of force, 26 the relationship between the need and the amount of force used, the threat reasonably perceived 27 by the responsible officials, and any efforts made to temper the severity of the forceful response. 28 8 1 Hudson, 503 U.S. at 7. The extent of a prisoner=s injury is also a factor that may suggest whether 2 the use of force could plausibly have been thought necessary in a particular situation. Id. 3 Although the absence of serious injury is relevant to the Eighth Amendment inquiry, it is not 4 determinative. Id. That is, use of excessive physical force against a prisoner may constitute cruel 5 and unusual punishment even though the prisoner does not suffer serious injury. Id. at 9. 6 Further, verbal harassment or abuse alone is not sufficient to state a claim under section 7 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Even threats do not rise to the 8 level of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). 3. 9 10 Failure to Protect Prison officials have a duty under the Eighth Amendment “to take reasonable measures to 11 guarantee the safety of inmates, which has been interpreted to include a duty to protect prisoners.” 12 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer, 13 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). 14 To establish a violation of this duty, the prisoner must “show that the officials acted with 15 deliberate indifference to threat of serious harm or injury to an inmate.” Labatad, at 1160 (citing 16 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective 17 and subjective components. 18 First, objectively, the alleged deprivation must be “sufficiently serious” and where a 19 failure to prevent harm is alleged, “the inmate must show that he is incarcerated under conditions 20 posing a substantial risk of serious harm.” Id. at 834, quoting Rhodes v. Chapman, 452 U.S. 337, 21 349 (1981). Second, subjectively, the prison official must “know of and disregard an excessive 22 risk to inmate health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th 23 Cir. 1995). A prison official must “be aware of facts from which the inference could be drawn 24 that a substantial risk of serious harm exists, and . . . must also draw the inference.” Farmer, 511 25 U.S. at 837. Liability may follow only if a prison official “knows that inmates face a substantial 26 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 27 Id. at 847. 28 9 4. 1 Due Process a. 2 Procedural The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 3 4 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 5 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 6 (2005). 7 b. Substantive 8 ATo establish a violation of substantive due process . . . , a plaintiff is ordinarily required 9 to prove that a challenged government action was clearly arbitrary and unreasonable, having no 10 substantial relation to the public health, safety, morals, or general welfare. Where a particular 11 amendment provides an explicit textual source of constitutional protection against a particular 12 sort of government behavior, that Amendment, not the more generalized notion of substantive due 13 process, must be the guide for analyzing a plaintiff=s claims.@ Patel v. Penman, 103 F.3d 868, 874 14 (9th Cir. 1996) (citations, internal quotations, and brackets omitted), cert. denied, 520 U.S. 1240 15 (1997); County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). 16 17 c. Property The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 18 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 19 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 20 (2005). Prisoners have a protected interest in their personal property, Hansen v. May, 502 F.2d 21 728, 730 (9th Cir. 1974), but the procedural component of the Due Process Clause is not violated 22 by a random, unauthorized deprivation of property if the state provides an adequate post- 23 deprivation remedy, Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204 (1984); Barnett 24 v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Rather, the Due Process Clause is violated only 25 when the agency “prescribes and enforces forfeitures of property without underlying statutory 26 authority and competent procedural protections.” Nevada Dept. of Corrections v. Greene, 648 27 F.3d 1014, 1019 (9th Cir. 2011) (citing Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003)) 28 10 1 2 (internal quotations omitted). A state prisoner has no cause of action under 42 U.S.C. § 1983 for an unauthorized 3 deprivation of property, either intentional or negligent, by a state employee if a meaningful state 4 post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). 5 California law provides an adequate post-deprivation remedy for any property deprivations. 6 Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994) (citing Cal. Gov=t Code '' 810-895). 7 8 9 5. Inmate Appeals The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, “inmates lack a 10 separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 11 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no 12 entitlement to a specific grievance procedure), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 13 1988). A[A prison] grievance procedure is a procedural right only, it does not confer any 14 substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) 15 accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Massey v. Helman, 259 16 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on 17 prisoner). AHence, it does not give rise to a protected liberty interest requiring the procedural 18 protections envisioned by the Fourteenth Amendment.@ Azeez v. DeRobertis, 568 F. Supp. at 10; 19 Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). 20 Actions in reviewing prisoner=s administrative appeal generally cannot serve as the basis 21 for liability under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who 22 knows about a violation of the Constitution, and fails to cure it, has violated the Constitution 23 himself is not correct. AOnly persons who cause or participate in the violations are responsible. 24 Ruling against a prisoner on an administrative complaint does not cause or contribute to the 25 violation.@ Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507 26 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance 27 v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996). 28 11 1 However, "a plaintiff may state a claim against a supervisor for deliberate indifference 2 based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or 3 her subordinates." Starr v. Baca, 652 F.3d 1202, 1207 (2011). Such knowledge and 4 acquiescence may be shown via the inmate appeals process where the supervisor was involved in 5 reviewing Plaintiff's applicable inmate appeal and had the ability, but failed to take corrective 6 action so as to allow the violation to continue. However, such involvement in processing or 7 reviewing an inmate appeal based on one incident is necessarily insufficient. A defendant may be 8 held liable as a supervisor under § 1983 “if there exists either (1) his or her personal involvement 9 in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's 10 wrongful conduct and the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th 11 Cir.1989). “[A] plaintiff must show the supervisor breached a duty to plaintiff which was the 12 proximate cause of the injury. The law clearly allows actions against supervisors under section 13 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under 14 color of law of a federally secured right.” Redman v. County of San Diego, 942 F.2d 1435, 1447 15 (9th Cir. 1991) (internal quotation marks omitted)(abrogated on other grounds by Farmer v. 16 Brennan, 511 U.S. 825 (1994). 17 “The requisite causal connection can be established . . . by setting in motion a series of 18 acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly 19 refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably 20 should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty. 21 of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). “A supervisor can be liable in his individual 22 capacity for his own culpable action or inaction in the training, supervision, or control of his 23 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a 24 reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 25 1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted). 26 Thus, if a plaintiff complains of actions by prison personnel in an inmate appeal that state 27 a cognizable claim against the prison personnel involved, which is processed or ruled on by their 28 12 1 supervisor and on which the supervisor fails to take actions to rectify or cease from continuing to 2 occur, which then reoccurs, a cognizable claim may be stated by showing that the supervisor 3 knowingly refused to terminate those acts by his subordinates. 4 5 6. Retaliation Prisoners have a First Amendment right to file grievances against prison officials and to 6 be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir. 7 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five 8 elements. Id. at 1114. 9 First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The 10 filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th 11 Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d 12 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); 13 Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the 14 defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff must 15 allege a causal connection between the adverse action and the protected conduct. Waitson, 668 16 F.3d at 1114. Fourth, the plaintiff must allege that the “official’s acts would chill or silence a 17 person of ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 18 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling 19 effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 20 1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. Fifth, the plaintiff must 21 allege “that the prison authorities’ retaliatory action did not advance legitimate goals of the 22 correctional institution. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). 23 It bears repeating that while Plaintiff need only allege facts sufficient to support a 24 plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at 25 678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart 26 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 27 Thus, Plaintiff’s mere allegations that he engaged in protected activity, without knowledge 28 13 1 resulting in animus by a Defendant, is insufficient to show that Plaintiff=s protected activity was 2 the motivating factor behind a Defendant’s actions. 7. 3 Discrimination The Equal Protection Clause requires that persons who are similarly situated be treated 4 5 alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439(1985); Hartmann v. 6 California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 7 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To 8 state a claim, Plaintiff must show that Defendants intentionally discriminated against him based 9 on his membership in a protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; 10 Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Thornton v. City of St. Helens, 425 F.3d 11 1158, 1166-67 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 12 If the action in question does not involve a suspect classification, a plaintiff may establish 13 an equal protection claim by showing that similarly situated individuals were intentionally treated 14 differently without a rational relationship to a legitimate state purpose. Engquist v. Oregon 15 Department of Agriculture, 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 16 U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch 17 Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 18 F.3d 478, 486 (9th Cir. 2008), see also Squaw Valley Development Co. v. Goldberg, 375 F.3d 19 936, 944 (9th Cir.2004); Sea River Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th 20 Cir. 2002). To state an equal protection claim under this theory, a plaintiff must allege that: (1) 21 the plaintiff is a member of an identifiable class; (2) the plaintiff was intentionally treated 22 differently from others similarly situated; and (3) there is no rational basis for the difference in 23 treatment. Village of Willowbrook, 528 U.S. at 564. Further, to establish a violation of the Equal 24 Protection Clause, the prisoner must present evidence of discriminatory intent. See Washington v. 25 Davis, 426 U.S. 229, 239-240 (1976); Serrano, 345 F.3d at 1081-82; Freeman v. Arpio, 125 F.3d 26 732, 737 (9th Cir. 1997). 27 /// 28 14 1 8. Conspiracy 2 A claim brought for violation of section 1985(3) requires “four elements: (1) a conspiracy; 3 (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the 4 equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act 5 in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property 6 or deprived of any right or privilege of a citizen of the United States.” Sever v. Alaska Pulp 7 Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). A claim for violation of section 8 1985(3) requires the existence of a conspiracy and an act in furtherance of the conspiracy. 9 Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (citation omitted). A mere allegation of 10 conspiracy is insufficient to state a claim. Id. at 676-77. “A racial, or perhaps otherwise class- 11 based, invidiously discriminatory animus is an indispensable element of a section 1985(3) claim.” 12 Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001) (quotations and citation 13 omitted). Restraint must be exercised in extending section 1985(3) beyond racial prejudice. 14 Butler v. Elle, 281 F.3d 1014, 1028 (9th Cir. 2002). Bare allegations that all defendants conspired 15 to harass and/or retaliate against Plaintiff are conclusory at best and not cognizable. See Iqbal, 16 556 U.S. at 678. 17 9. 18 Heck Bar When a prisoner challenges the legality or duration of his custody, or raises a 19 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a 20 writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 21 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an 22 allegedly unconstitutional conviction or imprisonment, "a § 1983 plaintiff must prove that the 23 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 24 invalid by a state tribunal authorized to make such determination, or called into question by a 25 federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512 26 U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a conviction or 27 sentence that has not been so invalidated is not cognizable under § 1983." Id. at 488. 28 15 10. 1 Claims Under California Law 2 Under California’s Government Claims Act (“CGCA”),1 set forth in California 3 Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages 4 against a public employee or entity unless the plaintiff first presented the claim to the California 5 Victim Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board 6 acted on the claim, or the time for doing so expired. “The Tort Claims Act requires that any civil 7 complaint for money or damages first be presented to and rejected by the pertinent public entity.” 8 Munoz v. California, 33 Cal.App.4th 1767, 1776 (1995). The purpose of this requirement is “to 9 provide the public entity sufficient information to enable it to adequately investigate claims and to 10 settle them, if appropriate, without the expense of litigation,” City of San Jose v. Superior Court, 11 12 Cal.3d 447, 455 (1974) (citations omitted), and “to confine potential governmental liability to 12 rigidly delineated circumstances: immunity is waived only if the various requirements of the Act 13 are satisfied,” Nuveen Mun. High Income Opportunity Fund v. City of Alameda, Cal., 730 F.3d 14 1111, 1125 (9th Cir. 2013). Compliance with this “claim presentation requirement” constitutes 15 an element of a cause of action for damages against a public entity or official. State v. Superior 16 Court (Bodde), 32 Cal.4th 1234, 1244 (2004). Thus, in the state courts, “failure to allege facts 17 demonstrating or excusing compliance with the claim presentation requirement subjects a claim 18 against a public entity to a demurrer for failure to state a cause of action.” Id. at 1239 19 (fn.omitted). To be timely, a claim must be presented to the VCGCB “not later than six months after 20 21 the accrual of the cause of action.” Cal. Govt.Code § 911.2. Thereafter, Aany suit brought against 22 a public entity@ must be commenced no more than six months after the public entity rejects the 23 claim. Cal. Gov. Code, ' 945.6, subd. (a)(1). Federal courts must require compliance with the CTCA for pendant state law claims that 24 25 seek damages against state employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th 26 Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th 27 1 28 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). 16 1 Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may 2 proceed only if the claims were first presented to the state in compliance with the applicable 3 requirements. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th 4 Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). 5 6 a. Assault & Battery Under California law, “[a]n assault is an unlawful attempt, coupled with a present ability, 7 to commit a violent injury on the person of another” and “[a] battery is any willful and unlawful 8 use of force or violence upon the person of another.” Cal. Penal Code § 240, 242 (West 2005); 5 9 B. E. Witkin, Summary of California Law, Torts § 346 (9th ed. 1988). For an assault claim under 10 California law, a plaintiff must show that (1) the defendant threatened to touch him in a harmful 11 or offensive manner; (2) it reasonably appeared to the plaintiff that the defendant was about to 12 carry out the threat; (3) the plaintiff did not consent to the conduct; (4) the plaintiff was harmed; 13 and (5) the defendant’s conduct was a substantial factor in causing the harm. Tekle v. U.S., 511 14 F.3d 839, 855 (9th Cir. 2007) (citation omitted). For battery, a plaintiff must show that (1) the 15 defendant intentionally did an act that resulted in harmful or offensive contact with the plaintiff’s 16 person; (2) the plaintiff did not consent to the contact; and (3) the contact caused injury, damage, 17 loss, or harm to the plaintiff. Id. (citation and quotations omitted). 18 b. Negligence 19 “An action in negligence requires a showing that the defendant owed the plaintiff a legal 20 duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of 21 injuries suffered by the plaintiff. [Citations.]” Regents of the Univ. of California v. Superior 22 Court of Los Angeles Cty., 240 Cal. App. 4th 1296, 1310, 193 Cal. Rptr. 3d 447, 458 (2015), 23 reh'g denied (Oct. 26, 2015) quoting Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 24 666, 673, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.) [disapproved on another ground in Reid v. 25 Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5, 113 Cal.Rptr.3d 327, 235 P.3d 988].) 26 27 "In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages. The threshold element of a cause of action for negligence is the existence 28 17 1 of a duty to use due care toward an interest of another that enjoys legal protection against 2 unintentional invasion. Whether this essential prerequisite to a negligence cause of action has 3 been satisfied in a particular case is a question of law to be resolved by the court. To say that 4 someone owes another a duty of care is a shorthand statement of a conclusion, rather than an aid 5 to analysis in itself. [D]uty is not sacrosanct in itself, but only an expression of the sum total of 6 those considerations of policy which lead the law to say that the particular plaintiff is entitled to 7 protection. [L]egal duties are not discoverable facts of nature, but merely conclusory expressions 8 that, in cases of a particular type, liability should be imposed for damage done.” Los Angeles 9 Memorial Coliseum Commission v. Insomaniac, Inc. 233 Cal.App.4th 803, 908 (2015) (citations 10 11 and quotations omitted). There is no recognized cause of action for gross negligence under California law. See 12 Martinez v. United States, --- F.Supp.2d ---, 2010 WL 3895602, * 8 (C.D.Cal.2010); Allen v. 13 Woodford, Nos. 1:05-cv-01104-OWW-LJO, 1:05-cv-01282-OWW-WMW, 2006 WL 3762053, 14 *15 (E.D.Cal. Dec.20, 2006) (citing Continental Ins. Co. v. American Prot. Indust., 197 15 Cal.App.3d 322, 329, 242 Cal.Rprt. 784, 788 (1987)) (“in light of the adoption of the doctrine of 16 comparative negligence in California, any attempt to categorize gross negligence separately from 17 ordinary negligence is unnecessary); Saenz v. Whitewater Voyages, Inc., 226 Cal.App.3d 758, 766 18 n. 9, 276 Cal.Rptr. 672 (1990) (“California does not recognize a distinct cause of action for gross 19 negligence independent of a statutory basis.”). 20 c. 21 Intentional Infliction of Emotional Distress Under California law, the elements of intentional infliction of emotional distress are: (1) 22 extreme and outrageous conduct by the defendant with the intention of causing, or reckless 23 disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or 24 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by 25 the defendant’s outrageous conduct. Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009) 26 (quotation marks omitted); Tekkle v. United States, 567 F.3d 554, 855 (9th Cir. 2007); Simo v. 27 Union of Needletrades, Industrial & Textile Employees, 322 F.3d 602, 621-22 (9th Cir. 2003). 28 18 1 Conduct is outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a 2 civilized community. Corales, 567 F.3d at 571; Tekkle, 511 F.3d at 855; Simo, 322 F.3d at 622 3 In addition to the requirement that the conduct be intentional and outrageous, the conduct 4 must have been directed at Plaintiff or occur in the presence of Plaintiff, of whom Defendant was 5 aware. Simo, 322 F.3d at 622. Negligent infliction of emotional distress replaces the first 6 intentional element with the elements for a negligence claim previously listed. d. 7 8 9 Supplemental Jurisdiction Pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district court has original jurisdiction, the district court Ashall have supplemental jurisdiction over all other claims in the 10 action within such original jurisdiction that they form part of the same case or controversy under 11 Article III,@ except as provided in subsections (b) and (c). A[O]nce judicial power exists under ' 12 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is 13 discretionary.@ Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). AThe district court 14 may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the 15 district court has dismissed all claims over which it has original jurisdiction.@ 28 U.S.C. ' 16 1367(c)(3). The Supreme Court has cautioned that Aif the federal claims are dismissed before 17 trial, . . . the state claims should be dismissed as well.@ United Mine Workers of America v. 18 Gibbs, 383 U.S. 715, 726 (1966). 19 11. 20 Supervisory Liability Under section 1983, liability may not be imposed on supervisory personnel for the actions 21 of their employees under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 22 (2009). Liability by a supervisor for “knowledge and acquiescence” in subordinates’ wrongful 23 discriminatory acts is likewise not cognizable. Id. "In a § 1983 suit or a Bivens action - where 24 masters do not answer for the torts of their servants - the term 'supervisory liability' is a 25 misnomer." Id. Therefore, when a named defendant holds a supervisory position, the causal link 26 between him and the claimed constitutional violation must be specifically alleged. See Fayle v. 27 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 28 19 1 2 1978), cert. denied, 442 U.S. 941 (1979). To state such a claim, a plaintiff must allege facts that show supervisory defendants either: 3 personally participated in the alleged deprivation of constitutional rights; knew of the violations 4 and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the 5 policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional 6 violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); 7 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). An unconstitutional policy cannot be proved 8 by a single incident Aunless proof of the incident includes proof that it was caused by an existing, 9 unconstitutional policy.@ City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427 10 (1985). In this instance, a single incident establishes a Apolicy@ only when the decision-maker has 11 Afinal authority@ to establish the policy in question. Collins v. City of San Diego, 841 F.2d 337, 12 341 (9th Cir. 1988), citing Pembauer v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292 (1986). 13 Further, “discrete wrongs B for instance, beatings B by lower level Government actors . . . 14 if true and if condoned by [supervisors] could be the basis for some inference of wrongful intent 15 on [the supervisor’s] part.” Iqbal, 556 U.S. at 683. To this end, the Ninth Circuit has held that, 16 where the applicable constitutional standard is deliberate indifference, a plaintiff may state a 17 claim for supervisory liability based on the supervisor’s knowledge of and acquiescence in 18 unconstitutional conduct by others. Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011). A fundamental 19 premise of this form of liability requires that the actions or inaction by subordinate staff amount 20 to a cognizable claim for violation of a plaintiff’s constitutional rights and that the supervisorial 21 defendant had knowledge of all such conduct. 22 23 12. Declaratory and Injunctive Relief Plaintiff seeks both declaratory and injunctive relief. Because Plaintiff’s claims for 24 damages necessarily entail a determination whether his rights were violated, his separate request 25 for declaratory relief is subsumed by those claims. Rhodes v. Robinson, 408 F.3d 559, 565-66 n.8 26 (9th Cir. 2004). 27 Plaintiff’s request for injunctive relief seeks various forms of medical care and treatment 28 20 1 for the injuries he allegedly sustained in this action. Plaintiff mimicked his request in a separate 2 motion for preliminary injunctive relief which he filed on March 23, 2017. (Doc. 7.) 3 AA plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 4 the merits and to suffer irreparable harm in the absence of preliminary relief, that the balance of 5 equities tips in his favor, and that an injunction is in the public interest.@ Winter v. Natural 6 Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). AA preliminary 7 injunction is an extraordinary remedy never awarded as a matter of right. In each case, courts 8 must balance the competing claims of injury and must consider the effect on each party of the 9 granting or withholding of the requested relief. In exercising their sound discretion, courts of 10 equity should pay particular regard for the public consequences in employing the extraordinary 11 remedy of injunction.@ Id., at 24 (citations and quotations omitted). An injunction may only be 12 awarded upon a clear showing that the plaintiff is entitled to such relief. Id., at 22. 13 Requests for prospective relief are further limited by 18 U.S.C. ' 3626 (a)(1)(A) of the 14 Prison Litigation Reform Act, which requires that the Court find the Arelief [sought] is narrowly 15 drawn, extends no further than necessary to correct the violation of the Federal Right, and is the 16 least intrusive means necessary to correct the violation of the Federal Right.@ 17 AAn inmate seeking an injunction on the ground that there is a contemporary violation of a 18 nature likely to continue, must adequately plead such a violation; . . . .@ Farmer v. Brennan, 511 19 U.S. 825, 845-46 (1994) (citations and quotations omitted). It is subsequent to screening, such as 20 in efforts to survive summary judgment, that a plaintiff Amust come forward with evidence from 21 which it can be inferred that the defendant-officials were at the time suit was filed, and are at the 22 time of summary judgment, knowingly and unreasonably disregarding an objectively intolerable 23 risk of harm, and that they will continue to do so; and finally to establish eligibility for an 24 injunction, the inmate must demonstrate the continuance of that disregard during the remainder of 25 the litigation and into the future.@ Id., at 845-46. However, at the pleading stage, the Court is not 26 in a position to determine questions of a claim=s merits which require submission of evidence as 27 opposed to merely determining whether a claim has been stated. Barrett v. Belleque, 544 F.3d 28 21 1 1060 (9th Cir. 2008). At this point, Plaintiff’s allegations have not been screened since, as discussed above, they 2 3 violate Rule 8. Thus, it has not been ascertained that he has stated any cognizable claims, let 4 alone is entitled to the relief he requests. However, even after screening, assuming that Plaintiff 5 states at least one cognizable claim, his request for a temporary restraining order/injunctive relief 6 cannot be adequately addressed until evidence is submitted. Thus, his request must be denied 7 without prejudice at this time. However, the Litigation Office and Warden are requested to look into the matter and 8 9 10 facilitate Plaintiff=s access to medical care that has been ordered for him by his treating physicians and any specialists.2 ORDER 11 For the reasons set forth above, Plaintiff's Complaint is dismissed with leave to file a first 12 13 amended complaint within 30 days. Any such first amended complaint shall not exceed 25 14 pages in length, exclusive of exhibits. Plaintiff must demonstrate in any first amended complaint how the conditions complained 15 16 of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 17 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named 18 defendant is involved. There can be no liability under section 1983 unless there is some 19 affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo 20 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 21 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 22 Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and 23 plain statement must “give the defendant fair notice of what the . . . claim is and the grounds upon 24 which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 25 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be 26 [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 27 2 28 How access is best facilitated in light of Plaintiff=s housing status and other custody or classification factors is left to the sound discretion of prison officials. 22 1 2 (2007) (citations omitted). Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v. 3 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 4 2012) (en banc), and must be "complete in itself without reference to the prior or superceded 5 pleading," Local Rule 220. 6 The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 7 in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change 8 the nature of this suit by adding new, unrelated claims in his first amended complaint. George v. 9 Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 10 Based on the foregoing, the Court ORDERS: 11 1. Plaintiff=s motion for preliminary injunctive relief, filed March 23, 2017 (Doc. 7), 12 is DENIED without prejudice for lack of jurisdiction. However, the Clerk's 13 Office is directed to forward a copy of this order and Plaintiff's motion to the 14 Litigation Coordinator and Warden of Salinas Valley State Prison that they might 15 facilitate Plaintiff’s access to medical care that has been ordered for him; 16 2. Plaintiff’s Complaint is DISMISSED, with leave to amend; 17 3. The Clerk's Office shall send Plaintiff a civil rights complaint form; and 18 4. Within 30 days from the date of service of this order, Plaintiff must file a first 19 amended complaint curing the deficiencies identified by the Court in this order or 20 a notice of voluntary dismissal. 21 If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a 22 court order and to prosecute this action. 23 24 25 IT IS SO ORDERED. Dated: May 9, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 26 27 28 23

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