Brothers, II v. Buenafe et al

Filing 6

ORDER DISMISSING Complaint WITH LEAVE TO AMEND, signed by Magistrate Judge Michael J. Seng on 7/13/17. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AUBREY LEE BROTHERS II, 12 Plaintiff, 13 14 CASE NO. 1:17-cv-00607-MJS (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (ECF No. 1) CHITA BUENAFE, et al., THIRTY (30) DAY DEADLINE 15 Defendants. 16 17 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 20 21 22 23 24 25 26 27 28 rights action filed pursuant to 42 U.S.C. § 1983 on May 1, 2017. Plaintiff has consented to Magistrate Judge jurisdiction in this case. (ECF No. 5). No other parties have appeared. I. Screening Requirement The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 1 which relief may be granted, or that seek monetary relief from a defendant who is 2 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, 3 or any portion thereof, that may have been paid, the court shall dismiss the case at any 4 time if the court determines that . . . the action or appeal . . . fails to state a claim upon 5 which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 6 II. Pleading Standard 7 A complaint must contain “a short and plain statement of the claim showing that 8 the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 9 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 10 by mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 11 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are 12 not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 13 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual 14 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678. 15 Under section 1983, Plaintiff must demonstrate that each defendant personally 16 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 17 2002). This requires the presentation of factual allegations sufficient to state a plausible 18 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 19 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to 20 have their pleadings liberally construed and to have any doubt resolved in their favor, 21 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, 22 the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 23 556 U.S. at 678; Moss, 572 F.3d at 969. 24 III. Plaintiff’s Allegations 25 Plaintiff is currently incarcerated at the California State Prison, Los Angeles 26 County in Lancaster, California (“CSP—LAC”), however he complains of acts that 27 occurred at the California State Prison, Corcoran in Corcoran, California (“CSP—COR”). 28 Plaintiff brings this action against three Defendants: Dr. Chita Buenafe, a dentist; N. 2 1 Flores, a dental assistant; and T. Hood, a correctional officer, for violation of his . Plaintiff 2 First, Eighth, and Fourteenth Amendment rights. 3 Plaintiff alleges: 4 On March 10, 2014, Dr. Buenafe and N. Flores implanted electrodes into his brain 5 through a filling in his tooth. Dr. Buenafe told Plaintiff that he was “crazy” and the implant 6 was necessary to control him. Since then, Plaintiff has suffered headaches and strange 7 vibrations, movements and severe pain in his brain. His repeated requests for medical 8 attention regarding the implant and his symptoms have been denied. Eventually, Plaintiff 9 underwent an MRI which supposedly showed signs of a healed cranial fracture even 10 though Plaintiff has never had a cranial fracture. The doctors falsely reported the fracture 11 to cover up implantation of the electrodes. The implanted electrodes are being used to 12 cause Plaintiff pain and control him. 13 Plaintiff alleges further that Officer Hood falsely charged Plaintiff with an RVR in 14 retaliation for Plaintiff’s complaints about the electrodes. 15 Finally, Plaintiff alleges prison officials threatened to kill him via electric shocks to 16 his brain and also threatened to harm his family. 17 Plaintiff attaches sheaves of documents to his complaint, including appeals 18 records and medical records. He seeks monetary, injunctive, and declaratory relief. 19 IV. Discussion 20 A. 21 Plaintiff’s claims stem from his belief that a prison doctor implanted electrodes into Implausible Allegations 22 Plaintiff’s brain in order to control and manipulate Plaintiff. Such allegations are so 23 implausible, outlandish, and far-fetched as not to be believed. See Nietzke v. Williams, 24 490 U.S. 319, 327-28 (1989) (section 1915(d) accords judges the authority to “pierce the 25 veil of the complaint’s factual allegations” and dismiss claims “describing fantastic or 26 delusional scenarios”). As such, the Court will not entertain claims relating to the alleged 27 implanting of electrodes in Plaintiff’s brain or use of such electrodes to control or punish 28 Plaintiff. 3 1 Although it is reasonable to conclude that Plaintiff’s complaint is the product of 2 delusion, the Court will give him one opportunity to amend and undertake to allege 3 constitutional claims, if any, not related to the implantation of electrodes. The Court sets 4 out below the criteria for making those claims that might relate to Plaintiff’s concerns. 5 B. 6 The caption of Plaintiff’s complaint names three individuals, but Plaintiff names Unnamed Defendants 7 additional individuals and entities within the body of his complaint. Rule 10(a) of the 8 Federal Rules of Civil Procedure requires that each defendant be named in the caption of 9 the complaint. A complaint is subject to dismissal if “one cannot determine from the 10 complaint who is being sued, [and] for what relief. . . .” McHenry v. Renne, 84 F.3d 1172, 11 1178 (9th Cir. 1996). The Court will not address any allegations made against individuals 12 not named in the caption. 13 C. 14 Plaintiff alleges he experienced pain and headaches after his March 10, 2014 Eighth Amendment Medical Indifference 15 dental appointment. To the extent Plaintiff actually suffered serious pain, and Defendants 16 were deliberately indifferent to that pain, Plaintiff will be granted leave to amend to allege, 17 if true, how Defendants failed to address Plaintiff’s objectively serious medical needs. 18 For Eighth Amendment claims arising out of medical care in prison, Plaintiff “must 19 show (1) a serious medical need by demonstrating that failure to treat [his] condition 20 could result in further significant injury or the unnecessary and wanton infliction of pain,” 21 and (2) that “the defendant’s response to the need was deliberately indifferent.” Wilhelm 22 v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091, 23 1096 (9th Cir. 2006)). Deliberate indifference is shown by “(a) a purposeful act or failure 24 to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the 25 indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite 26 state of mind is one of subjective recklessness, which entails more than ordinary lack of 27 due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on 28 other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014) (citation and 4 1 quotation marks omitted); Wilhelm, 680 F.3d at 1122. 2 The second element of an Eighth Amendment claim is subjective deliberate 3 indifference, which involves two parts. Lemire, 726 F.3d at 1078. Plaintiff must 4 demonstrate first that the risk to his health from Defendants’ acts or omissions was 5 obvious or that Defendants were aware of the substantial risk to his health, and second 6 that there was no reasonable justification for exposing him to that risk. Id. (citing Thomas 7 v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)) (quotation marks omitted). There must 8 be some causal connection between the actions or omissions of each named defendant 9 and the violation at issue; liability may not be imposed under a theory of respondeat 10 superior. Iqbal, 556 U.S. at 676-77; Lemire, 726 F.3d at 1074-75; Lacey v. Maricopa 11 County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc); Starr v. Baca, 652 F.3d 1202, 12 1205-08 (9th Cir. 2011). 13 D. 14 Plaintiff claims he was issued a false RVR for battery against another inmate. 15 “The Due Process Clause does not provide a guarantee that Plaintiff will be free Fourteenth Amendment Due Process 16 from fabricated accusations.” Saenz v. Spearman, No. CV-1:09-00557-GSA-YNP, 2009 17 WL 2365405, *8 (E.D. Cal. July 29, 2009). Rather, the Due Process Clause protects 18 prisoners from being arbitrarily deprived of a liberty interest without due process of law. 19 Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action for 20 deprivation of procedural due process, a plaintiff must first establish the existence of a 21 liberty interest for which the protection is sought. Hewitt v. Helms, 459 U.S. 460, 466 22 (1983). The prisoner must next establish that the prison failed to meet the minimal 23 procedural requirements before depriving him of that interest. Wolff, 418 U.S. at 556. In 24 the prison disciplinary context, the minimum procedural requirements that satisfy due 25 process are as follows: (1) written notice of the charges; (2) at least 24 hours between 26 the time the prisoner receives written notice and the time of the hearing, so that the 27 prisoner may prepare his defense; (3) a written statement by the fact finders of the 28 evidence they rely on and reasons for taking disciplinary action; (4) the right of the 5 1 prisoner to call witnesses in his defense, when permitting him to do so would not be 2 unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to 3 the prisoner where the prisoner is illiterate or the issues presented are legally complex. 4 Id. at 563-71. As long as the five minimum Wolff requirements are met, due process has 5 been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other 6 grounds by Sandin v. Connor, 515 U.S. 472 (1995). Plaintiff will be given leave to amend. 7 E. 8 Plaintiff claims he was threatened with electrical shocks to his brain, among other Retaliation 9 things, in retaliation for his complaints about the electrodes he believes were implanted in 10 his brain. As noted, the Court will not entertain fantastic allegations regarding electrodes 11 implanted in Plaintiff’s brain. If, however, Plaintiff believes that he was improperly 12 retaliated against for exercising some form of protected conduct, the standards he must 13 adhere to are below. 14 Section 1983 provides for a cause of action against prison officials who retaliate 15 against inmates for exercising their constitutionally protected rights. Pratt v. Rowland, 65 16 F.3d 802, 806 n. 4 (9th Cir. 1995) (“[R]etaliatory actions by prison officials are cognizable 17 under § 1983.”) Within the prison context, a viable claim of retaliation entails five basic 18 elements: “(1) An assertion that a state actor took some adverse action against an inmate 19 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 20 inmate’s exercise of his constitutional rights, and (5) the action did not reasonably 21 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 22 Cir. 2005); accord Watison v. Carter, 668 F.3d at 1114-15; Silva v. Di Vittorio, 658 F.3d 23 1090, 1104 (9th Cir. 2011); Brodheim v. Cry, 584 F.3d at 1269. 24 The second element focuses on causation and motive. See Brodheim v. Cry, 584 25 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a 26 “‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Id. (quoting 27 Sorrano’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can 28 be difficult to establish the motive or intent of the defendant, a plaintiff may rely on 6 1 circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that 2 a prisoner established a triable issue of fact regarding prison officials’ retaliatory motives 3 by raising issues of suspect timing, evidence, and statements); Hines v. Gomez, 108 4 F.3d 265, 267-68 (9th Cir. 1997); Pratt, 65 F.3d at 808 (“timing can properly be 5 considered as circumstantial evidence of retaliatory intent”). 6 In terms of the third prerequisite, filing a complaint or grievance is constitutionally 7 protected. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). 8 With respect to the fourth prong, the correct inquiry is to determine whether an 9 official’s acts “could chill a person of ordinary firmness from continuing to engage in the 10 protected activity[].” Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 11 2006); see also White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000). 12 With respect to the fifth prong, a prisoner must affirmatively allege that “‘the prison 13 authorities’ retaliatory action did not advance legitimate goals of the correctional 14 institution or was not tailored narrowly enough to achieve such goals.” Rizzo v. Dawson, 15 778 F.2d at 532. 16 V. Conclusion 17 Plaintiff’s complaint will be dismissed. The Court will provide Plaintiff with the 18 opportunity to file an amended complaint, if he believes, in good faith, he can cure the 19 identified deficiencies. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez, 20 203 F.3d at 1130-31; Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff 21 amends, he may not change the nature of this suit by adding new, unrelated claims in his 22 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 23 If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but 24 under section 1983, it must state what each named defendant did that led to the 25 deprivation of Plaintiff’s constitutional rights and liability may not be imposed on 26 supervisory personnel under the theory of respondeat superior, Iqbal, 556 U.S. at 676-77; 27 Starr, 652 F.3d at 1205-07. Although accepted as true, the “[f]actual allegations must be 28 [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 7 1 555 (citations omitted). 2 Finally, an amended complaint supersedes the original complaint, Lacey v. 3 Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be 4 “complete in itself without reference to the prior or superseded pleading,” Local Rule 220. 5 Accordingly, it is HEREBY ORDERED that: 6 1. Plaintiff’s complaint (ECF No. 1) is DISMISSED with leave to amend; 7 3. The Clerk’s Office shall send Plaintiff a blank complaint form along with a 8 9 copy of the complaint filed May 1, 2017; 4. Within thirty (30) days from the date of service of this order, Plaintiff must 10 either file an amended complaint curing the deficiencies identified by the 11 Court in this order or a notice of voluntary dismissal; 12 5. 13 If Plaintiff fails to comply with this order, this action will be dismissed, without prejudice, for failure to prosecute and failure to obey a court order. 14 15 16 17 IT IS SO ORDERED. Dated: July 13, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 8

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