Mixon, Jr. v. Tyson et al

Filing 16

ORDER DIRECTING Clerk of Court to Randomly Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims and Defendants; Fourteen-Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 12/22/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 1/12/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LENDWARD ALTON MIXON, JR.,

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Plaintiff,

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v.

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H. TYSON, et al.,

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Defendants.

Case No. 1:16-cv-01868-BAM (PC)
ORDER DIRECTING CLERK OF COURT
TO RANDOMLY ASSIGN DISTRICT
JUDGE
FINDINGS AND RECOMMENDATIONS TO
DISMISS CERTAIN CLAIMS AND
DEFENDANTS

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(ECF No. 14)

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FOURTEEN-DAY DEADLINE

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Plaintiff Lendward Alton Mixon, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and

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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 4, 2017,

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the Court screened Plaintiff’s complaint and granted him leave to amend.

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Plaintiff’s first amended complaint, filed on December 21, 2017, is currently before the Court for

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screening. (ECF No. 14.)

(ECF No. 13.)

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I.

Screening Requirement and Standard

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

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

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief.

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1915(e)(2)(B)(ii).

28 U.S.C. §§ 1915A(b);

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

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

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as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S.

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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted

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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at California State Prison, Sacramento in Represa, California.

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The events in the complaint are alleged to have occurred while Plaintiff was housed at California

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State Prison, Corcoran (SATF). Plaintiff asserts claims for deliberate indifference to medical

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needs in violation of the Eighth Amendment against the following defendants: (1) Dr. Metts; (2)

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Correctional Officer Jiminez; and (3) Commissioner, California Department of Corrections and

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Rehabilitation (“CDCR”).

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Plaintiff alleges as follows: On March 5, 2016, Plaintiff was rehoused to Facility “C” 5

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Block and assigned to an upper/top bunk. At the time, Plaintiff informed Correctional Officer

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Jiminez that he was a member of the Americans with Disabilities Act and was having a hard time

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getting up and down from the upper/top bunk. Plaintiff showed Correctional Officer Jiminez the

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severity of his disability and asked if he could be assigned a bottom bunk as custody is

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responsible for the bunk assignments. Correctional Officer Jiminez stated that he would not
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attempt to acquire Plaintiff a bottom bunk, and if Plaintiff wanted one, then he would have to

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speak with medical personnel.

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Three days later, on May 9, 2016, while attempting to get off of his assigned upper/top

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bunk, Plaintiff sustained a fall, injuring his lower back, after his disabled leg gave out from under

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him. Plaintiff was rushed to the treatment center, where he was treated and released.

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Due to the fall, Plaintiff submitted a 602 institutional grievance form on May 10, 2016,

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requesting a bottom bunk accommodation chrono. Plaintiff waited twenty-four days to receive a

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response to the grievance. The grievance was rejected on June 3, 2016, without a medical

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evaluation, and Plaintiff was directed to submit a medical request to see a doctor.

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A medical request was submitted, and Plaintiff was seen by R.N. Lindsey on June 7, 2016.

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Plaintiff was scheduled to see a doctor on June 17, 2016. On the scheduled date, Plaintiff was

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seen by Dr. Metts, at which time Plaintiff explained that he suffered from a severe disability to his

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right leg. Plaintiff also informed Dr. Metts of the recent fall during which he sustained a lower

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back injury. Plaintiff requested an accommodation chrono because his right leg was extremely

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weak, he suffered from atrophy, and he had fallen once and injured himself. Dr. Metts examined

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Plaintiff and stated that he would speak to custody to determine what he would do with regard to

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an accommodation chrono. Plaintiff then informed Dr. Metts that it was an urgent matter because

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he was currently housed on an upper/top bunk and was seeking to prevent another fall. Dr. Metts

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stated he would get back to Plaintiff, and Plaintiff was sent back to his housing unit without an

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accommodation chrono.

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For the next three weeks, Plaintiff slept on the floor waiting for Dr. Metts to call him

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back. However, due to bugs crawling on him, Plaintiff had to return to sleeping in his assigned

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upper/top bunk. On August 5, 2016, two weeks after returning to his assigned bunk, Plaintiff

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suffered another fall after his disabled leg gave out under him. Plaintiff sustained a fractured

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bone in his right foot. He was finally awarded an accommodation chrono after filing another

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grievance.

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Plaintiff seeks declaratory and injunctive relief, along with compensatory and punitive
damages.
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III.

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A. Supervisory Liability – Commissioner, CDCR

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To the extent Plaintiff seeks to impose liability on the Commissioner based on a theory of

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supervisory liability, he may not do so. Liability may not be imposed on supervisory personnel

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for the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal,

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556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010);

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Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930,

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934 (9th Cir. 2002). Supervisors may be held liable only if they “participated in or directed the

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violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011);

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Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Thus, a supervisor’s participation can

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include his “own culpable action or inaction in the training, supervision, or control of his

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subordinates,” “his acquiescence in the constitutional deprivations of which the complaint is

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made,” or “conduct that showed a reckless or callous indifference to the rights of others.” Starr,

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652 F.3d at 1205–06. Supervisory officials “cannot be held liable unless they themselves”

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violated a constitutional right. Iqbal, 556 U.S. at 676.

Discussion

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Plaintiff’s general allegation that the Commissioner is “legally responsible for the overall

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operation of the department and each institution . . . including California State Prison/Corcoran”

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is insufficient to state a claim. (ECF No. 14 at p. 9.) Plaintiff’s allegation relates only to the

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Commissioner’s supervisory role, and he has not alleged facts showing that the Commissioner

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participated in or directed the alleged violations or knew of the alleged violations and failed to

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prevent them. The Court will therefore recommend that Defendant Commissioner be dismissed

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from this action.

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B. Eighth Amendment – Deliberate Indifference to Medical Needs

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L.Ed.2d

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251 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) “a
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‘serious medical need’ by demonstrating that failure to treat a prisoner’s condition could result in

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further significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the

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defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). The prison official must be aware of facts from

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which he could make an inference that “a substantial risk of serious harm exists” and he must

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actually make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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“Deliberate indifference is a high legal standard.” Id. at 1019; Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004). The indifference must be substantial, and “[m]ere ‘indifference,’

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‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980).

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At the pleading stage, the Court finds that Plaintiff has stated a cognizable Eighth

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Amendment claim against Defendants Jiminez and Metts for deliberate indifference to a serious

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medical need.

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C. Declaratory Relief

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Plaintiff seeks a declaration that his rights were violated by defendants. “A declaratory

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judgment, like other forms of equitable relief, should be granted only as a matter of judicial

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discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 333

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U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful

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purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and

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afford relief from the uncertainty and controversy faced by the parties.” United States v.

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Washington, 759 F.2d 1353, 1357 (9th Cir. 1985).

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In the event that this action reaches trial and the trier of fact returns a verdict in favor of

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Plaintiff, the verdict will be a finding that Plaintiff's constitutional rights were violated.

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Accordingly, a declaration that a defendant violated Plaintiff's rights is unnecessary, and the

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Court will recommend that Plaintiff’s request for declaratory relief be denied.

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D. Injunctive Relief

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Plaintiff seeks injunctive relief. However, Plaintiff is no longer housed at California State

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Prison, Corcoran (SATF) where he alleges the incidents at issue occurred, and where Defendants
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Jiminez and Metts are employed. Therefore, any injunctive relief he seeks against officials at

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California State Prison, Corcoran (SATF) is moot. See Andrews v. Cervantes, 493 F.3d 1047,

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1053 n.5 (9th Cir. 2007) (prisoner’s claims for injunctive relief generally become moot upon

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transfer) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (holding

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claims for injunctive relief “relating to [a prison’s] policies are moot” when the prisoner has been

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moved and “he has demonstrated no reasonable expectation of returning to [the prison]”)). The

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Court will therefore recommend that Plaintiff’s request for injunctive relief be denied.

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IV.

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The Court finds that Plaintiff has stated a cognizable Eighth Amendment claim against

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Defendants Jiminez and Metts for deliberate indifference to serious medical needs. However,

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Plaintiff has failed to state any other cognizable claims. The remaining deficiencies in his

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complaint cannot be cured by amendment, and thus further leave to amend is not warranted.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Conclusion and Recommendation

Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a district
judge to this action.

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Further, it is HEREBY RECOMMENDED as follows:

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1. This action proceed on Plaintiff’s Eighth Amendment claim against Defendants

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Jiminez and Metts for deliberate indifference to serious medical needs in violation of

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the Eighth Amendment as set forth in his First Amended Complaint filed on December

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21, 2017;

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2. Plaintiff’s request for injunctive and declaratory relief be denied; and

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3. All other claims and defendants be dismissed from this action.

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

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 22, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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