Davis v. Ali et al

Filing 14

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/13/12 ordering that plaintiff's amended complaint is dismissed for failure to state a claim and the clerk is directed to close the case. CASE CLOSED. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANCIS W. DAVIS,
Plaintiff,

No. 2:11-cv-0955 EFB P

Defendants.

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ORDER

vs.
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N. ALI, et al.,

/

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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local

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Rules, Appx. A, at (k)(4). After a dismissal pursuant to 28 U.S.C. § 1915A, plaintiff has filed an

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amended complaint.

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).
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In the original complaint, plaintiff named as defendants Ali and Rodgers, correctional

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officers at Mule Creek State Prison. Plaintiff alleged that he has a serious heart condition and

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takes nitroglycerin pills for chest pains, and gabapentin for back pain. He claimed that on

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January 17, 2010, he refused defendant Ali’s order to open his mouth wide so that Ali could

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determine whether plaintiff had in fact swallowed a gabapentin pill. Plaintiff claimed Ali then

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searched his cell in retaliation for plaintiff’s refusal to be humiliated. During the search of

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plaintiff’s cell, Ali allegedly took plaintiff’s nitroglycerin pills, two Bic pens, and foot cream.

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Ali allegedly refused to return plaintiff’s nitroglycerin pills even though plaintiff informed Ali he

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needed it for chest pain. Nitroglycerin pills were allegedly reordered for plaintiff on January 28,

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2010. Ali allegedly drafted a false rules violation report based upon this incident. Defendant

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Rodgers allegedly denied plaintiff a witness at the hearing on the rule violation, and plaintiff was

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found guilty.

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In screening the initial complaint, the court informed plaintiff that his allegations failed to

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state a cognizable claim for relief. Dckt. No. 7. As discussed below, the allegations in the

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amended complaint do not materially differ from those in the original complaint and fail to

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correct the deficiencies identified in the court’s initial screening order.

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In the amended complaint, plaintiff again claims that defendant Ali searched plaintiff’s

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cell in retaliation for plaintiff standing up for himself. Plaintiff explains that after defendant Ali

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ordered him to open his mouth wider so that Ali could confirm whether plaintiff swallowed his

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medication, plaintiff “stood up straight and told Def. Ali ‘No!’” Dckt. No. 12 at 9-10. The court

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previously informed plaintiff that to state a viable First Amendment retaliation claim, he must

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allege five elements: “(1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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Plaintiff’s admitted refusal to comply with Ali’s order is not conduct protected by the First
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Amendment in the prison setting. Because plaintiff fails to show that Ali’s search of his cell was

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motivated by conduct protected under the First Amendment, plaintiff fails to state a cognizable

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retaliation claim.

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In the amended complaint, plaintiff repeats his allegations that defendant Ali was

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deliberately indifferent to his medical needs by not returning plaintiff’s nitroglycerin pills or foot

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cream. He alleges that he made Ali aware that he needed the nitroglycerin for chest pains and

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that he needed the foot cream to treat a fungus. Plaintiff also claims that Ali’s behavior was

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contrary to CDCR regulations, and that Ali deprived him of his property without due process.

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Once again, these allegations fail to state a claim upon which relief may be granted.

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To state a claim for violation of the Eighth Amendment based on inadequate medical

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care, plaintiff must allege “acts or omissions sufficiently harmful to evidence deliberate

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indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail,

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plaintiff must show both that his medical needs were objectively serious, and that defendant

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possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991);

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McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). Mere delay in medical treatment

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must lead to further injury to amount to deliberate indifference. Shapley v. Nevada Bd. of State

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Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). To act with deliberate indifference, a prison

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official must both be aware of facts from which the inference could be drawn that a substantial

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risk of serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S.

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825, 837 (1994).

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With respect to the nitroglycerin, plaintiff alleges that he still had nitroglycerin pills in

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his pocket when Ali confiscated the bottle in his locker. Dckt. No. 12 at 61. He also alleges that

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the nitroglycerin was re-ordered for him on January 28, 2010, and that in February of 2010, he

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still had leftover pills. Id. at 8, 60. Though plaintiff claims generally that Ali’s actions caused

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him “stress and anxiety,” he fails to allege that Ali’s acts were sufficiently harmful to evidence

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deliberate indifference. See id. at 6.
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As for the foot cream, plaintiff fails to plead facts showing that he suffered from an

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objectively serious medical need or that Ali’s actions exposed him to a substantial risk of serious

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harm. While plaintiff describes various medical appointments and procedures that he went

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through in 2010, his allegations do not show, or even suggest, that they were in any way related

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to Ali’s alleged actions. See id. at 8-9. Plaintiff was previously informed that an individual

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defendant is not liable on a civil rights claim unless the facts establish the defendant’s personal

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involvement in the constitutional deprivation or a causal connection between the defendant’s

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wrongful conduct and the alleged constitutional deprivation. Plaintiff fails to plead facts

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sufficient to state an Eighth Amendment deliberate indifference claim against defendant Ali.

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Plaintiff also fails to cure the defects in his due process claims based on Ali’s allegedly

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unauthorized confiscation of plaintiff’s property and Ali and Rodgers’ alleged conduct regarding

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plaintiff’s rule violation report and related proceedings. To state a claim for violation of the

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right to procedural due process, plaintiff must allege facts showing: “(1) a deprivation of a

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constitutionally protected liberty or property interest, and (2) a denial of adequate procedural

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protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003). State regulations may

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create a liberty interest in avoiding restrictive conditions of confinement if those conditions

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“present a dramatic departure from the basic conditions of [the inmate’s] sentence.” Sandin v.

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Conner, 515 U.S. 472, 485 (1995). Plaintiff again fails to plead facts showing that defendants’

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actions deprived him of a constitutionally protected liberty or property interest. Where a

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prisoner alleges the deprivation of a liberty or property interest in violation of the Fourteenth

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Amendment, caused by the unauthorized negligent or intentional action of a prison official, the

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prisoner cannot state a constitutional claim where the state provides an adequate post-deprivation

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remedy. See, e.g., Hudson v. Palmer, 468 U.S. 517, 533 (1984). California provides such a

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remedy for prisoners. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per curiam)

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(citing California Government Code §§ 810-895).

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Additionally, plaintiff fails to state a claim for violation of his Sixth Amendment rights,

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because those procedural protections apply in the context of criminal prosecutions only, and

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prison disciplinary proceedings are not “criminal prosecutions” as that term is used in the Sixth

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Amendment. Baxter v. Palmigiano, 425 U.S. 308 (1976); Wolff v. McDonnell, 418 U.S. 539

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(1974).

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Finally, absent any constitutional violation, plaintiff’s claim for violation of regulations

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contained in Title 15 of the California Code of Regulations also fail, because there is no

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independent cause of action for violation of those regulations. “To the extent that the violation

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of a state law amounts to the deprivation of a state-created interest that reaches beyond that

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guaranteed by the federal Constitution, [s]ection 1983 offers no redress.” Sweaney v. Ada

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County, 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch. Dist., 90

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F.3d 367, 370 (9th Cir. 1996)).

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Despite an opportunity to amend, plaintiff appears to be unable to state a cognizable

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claim for relief, and further leave to amend appears futile. Accordingly, the court will dismiss

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the amended complaint without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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2000) (“Under Ninth Circuit case law, district courts are only required to grant leave to amend if

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a complaint can possibly be saved. Courts are not required to grant leave to amend if a complaint

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lacks merit entirely.”); see also Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A]

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district court should grant leave to amend even if no request to amend the pleading was made,

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unless it determines that the pleading could not be cured by the allegation of other facts.”).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s amended complaint is dismissed

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for failure to state a claim and the Clerk is directed to close this case.

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Dated: November 13, 2012.

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