(PC) Galvan v. Milasich

Filing 14

ORDER DIRECTING Clerk of Court to Assign a District Judge to this Action; FINDINGS and RECOMMENDATION Recommending Dismissal of the Action re #12 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Stanley A. Boone on 9/16/2022. Referred to Judge Thurston; Objections to F&R due within fourteen (14) days. (Rivera, O)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 IVAN DEJESUS VALTI GALVAN, 11 Plaintiff, 12 v. 13 V. MILASICH, Case No. 1:22-cv-00974-SAB (PC) ORDER DIRECTING CLERK OF COURT TO ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF THE ACTION Defendant. 14 (ECF No. 12) 15 16 Plaintiff Ivan DeJesus Valti Galvan is proceeding pro se and in forma pauperis in this civil 17 18 rights action filed pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s first amended complaint, filed September 12, 19 20 2022. 21 I. 22 SCREENING REQUIREMENT 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 25 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 26 legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or 27 that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 28 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 1 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 6 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 7 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 8 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 9 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 10 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 11 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 12 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 13 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 14 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 15 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 16 F.3d at 969. 17 II. 18 SUMMARY OF ALLEGATIONS The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of 19 20 the screening requirement under 28 U.S.C. § 1915. 21 V. Milavich violated Plaintiff’s rights under the Eighth Amendment when he caused the 22 physical injury to him which required sutures and staples to close the scalp laceration. When 23 Defendant Milavich was interviewed by prison staff he admitted that he caused the injury to 24 Plaintiff. 25 /// 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 The Constitution does not mandate comfortable prisons, but neither does it permit 5 Deliberate Indifference to Safety inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). 6 The treatment a prisoner receives in prison and the conditions under which he is confined 7 are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 8 (1993). In its prohibition of “cruel and unusual punishment,” the Eighth Amendment places 9 restraints on prison officials, who may not, for example, use excessive force against prisoners. 10 See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The Amendment also imposes duties on these 11 officials, who must provide all prisoners with the basic necessities of life such as food, clothing, 12 shelter, sanitation, medical care and personal safety. See Farmer, 511 U.S. at 832. A prison 13 official violates the Eighth Amendment when two requirements are met: (1) the deprivation 14 alleged must be, objectively, sufficiently serious, Farmer, 511 U.S. at 834 (citing Wilson v. 15 Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official possesses a sufficiently culpable 16 state of mind, id. (citing Wilson, 501 U.S. at 297). 17 Neither negligence nor gross negligence will constitute deliberate indifference. See 18 Farmer, 511 U.S. at 835-37 & n.4. A prison official cannot be held liable under the Eighth 19 Amendment for denying a prisoner humane conditions of confinement unless the standard for 20 criminal recklessness is met, that is, the official knows of and disregards an excessive risk to 21 inmate health or safety. Id. at 837. 22 In the working conditions context, the Eighth Amendment is implicated only when 23 a prison employee alleges that a prison official compelled him to “perform physical labor which 24 [was] beyond [his] strength, endanger[ed his life] or health, or cause[d] undue pain.” Morgan, 25 465 F.3d at 1045, quoting Berry v. Bunnell, 39 F.3d 1056 (9th Cir.1994). Resolution of an 26 Eighth Amendment claim entails inquiry into the official's state of mind. Prison officials are 27 liable only if they were deliberately indifferent to a substantial risk of serious harm. Farmer, 511 28 U.S. at 837 (“the official must both be aware of the facts from which the inference could be 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 drawn that a substantial risk of harm exists, and he must also draw the indifference”); see Wilson, 501 U.S. at 298–99, 302–03 (the official must actually know of the risk yet fail to take reasonable measures to ensure the prisoner’s safety); see also LeMaire v. Mass, 12 F.3d 1444 (9th Cir.1993). Even “[i]f a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.” Farmer, 511 U.S. at 834. Although the defendant's conduct need not have been undertaken for the very purpose of causing harm before it violates the constitution, a “sufficiently culpable state of mind” requires that the conduct involve more than mere negligence. Id. at 837, 847 (nothing less than recklessness in the criminal sense, that is, subjective disregard of a risk of harm of which the actor is actually aware, satisfies the “deliberate indifference” element of an Eighth Amendment claim). If the risk of harm was obvious, the trier of fact may infer that a defendant knew of the risk, but obviousness per se will not impart knowledge as a matter of law. Id. at 840– 42. Here, Plaintiff has alleged nothing more than negligence with regard to any actions taken by Defendant V. Milasich. There are no factual allegations which plausibly suggest that V. Milasich acted with deliberate indifference to the safety of Plaintiff. Accordingly, Plaintiff fails to state a cognizable claim for relief. B. California Department of Corrections and Rehabilitation (CDCR) “The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials acting in their official capacities.” Aholelei v. Dep't of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Indeed, the Eleventh Amendment prohibits federal courts from hearing a Section 1983 lawsuit in which damages or injunctive relief is sought against a state, its agencies (such as CDCR) or individual prisons, absent “a waiver by the state or a valid congressional override....” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, ‘an arm of the state,’ its instrumentalities, or its agencies.” See Fireman's Fund Ins. Co. v. 28 4 1 2 City of Lodi, Cal., 302 F.3d 928, 957 n.28 (9th Cir. 2002) (internal quotation and citations omitted) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 “The State of California has not waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court....” Dittman, 191 F.3d at 1025– 26 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. Cal. Dep't. of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (finding California Department of Corrections and California Board of Prison Terms entitled to Eleventh Amendment immunity). Plaintiff cannot seek liability against CDCR as it is a state agency and is immune from suit under the Eleventh Amendment. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989) (“Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties.”); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (holding that Eleventh Amendment immunity extends to state agencies.) C. Further Leave to Amend Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1005-06. The Court finds that, as set forth above, the first amended complaint fails to state a claim upon which relief may be granted. Despite being given an opportunity to amend the complaint, Plaintiff’s first amended complaint contains even less facts than those presented in the original complaint. The Court therefore concludes that Plaintiff has no further facts to allege and is 27 28 5 1 2 convinced that furth Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall randomly assign a District Judge to this action. 3 IV. 4 ORDER AND RECOMMENDATION 5 6 Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court is directed to randomly assign a District Judge to this action. 7 8 Further, it is HEREBY RECOMMENDED that this action be dismissed, without leave to amend, for failure to state a cognizable claim for relief. 9 10 11 12 13 14 15 This Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with this Findings and Recommendation, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 IT IS SO ORDERED. 18 Dated: September 16, 2022 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 6

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