Nguyen v. California Prison Health Service, et al.

Filing 65

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/9/2017 RECOMMENDING Elam's 51 motion to dismiss be granted; and plaintiff's claims against Elam be dismissed with prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NAM BA NGUYEN,

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Plaintiff,

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No. 2:13-cv-963-MCE-EFB P

v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA PRISON HEALTH
SERVICE, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in an action brought

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under 42 U.S.C. § 1983. He alleges in his second amended complaint violations of his Eighth

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Amendment and Fourteenth Amendment due process rights. The crux of his complaint is that

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defendants violated plaintiff’s federally protected rights by showing deliberate indifference to his

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medical needs and improperly processing his administrative appeals.

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Defendant Nathanial K. Elam moves to dismiss the claims against him on the ground that

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he neither participated in nor caused the violations of which plaintiff complains. Careful review

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of the pleadings shows that plaintiff has failed to state cognizable Eighth Amendment and due

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process claims against Elam. Accordingly, as discussed below, the motion to dismiss should be

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granted.

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I.

Background

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A.

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Although he is currently in the custody of U.S. Immigration and Customs Enforcement,

Factual Allegations

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plaintiff was a state inmate at Salinas Valley State Prison in California when he filed the second

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amended complaint. ECF No. 50 at 4. At all relevant times, defendant Elam served as Chief

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Executive Officer (“CEO”) of Clinical Services at California Medical Facility State Prison at

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Vacaville (“CMF”). Id.

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On May 21, 2010, plaintiff sustained injuries to his head, face, and hand in an altercation

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with another inmate. ECF No. 15 at 5–6.1 Plaintiff also had a preexisting shoulder injury. Id. at

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8. On the same day, a nurse informed him that a doctor had prescribed “[T]ylenol #3” for seven

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days. Id. at 7. It is unclear whether plaintiff received it. See id. at 8. The following day, plaintiff

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went to a clinic to have a dressing for his burned hand changed. Id. There, he complained of pain

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in his jaw that prevented him from chewing food. Id.

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On June 2, 2010, plaintiff visited defendant Sherman Champen, who worked as a nurse

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practitioner at CMF. ECF No. 15 at 5, 9. Champen made an urgent request for X-rays to

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plaintiff’s facial bones. Id. at 9, 48. Champen also requested (1) consultation with an orthopedic

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surgeon regarding plaintiff’s shoulder, (2) Tylenol, and (3) cream for plaintiff’s hand burn. Id. at

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9, 47, 49.

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On June 23, 2010, plaintiff saw a doctor. Id. at 9, 51. The doctor discharged plaintiff

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without ordering X-rays. Id. at 10. Around this time, plaintiff had lost weight because he could

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not chew food normally due to his jaw pain. Id. Also, plaintiff was in pain because he had to

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take a different medication on an empty stomach, which was apparently regular Tylenol. See id.

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at 9–10, 59.

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On July 9, 2010, plaintiff visited Champen again, who ordered ten days of Tylenol #3 and

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urgent X-rays. Id. at 10. Plaintiff received neither. Id.

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Although this allegation is from the amended complaint, the second amended complaint
incorporates the relevant allegations from the amended complaint by reference. ECF No. 50 at 5.

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Dissatisfied with his lack of medical care, plaintiff filed a “CDCR 602-HC” appeal (“first-

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level appeal”) on or around July 14, 2010. Id. at 10, 59. Plaintiff’s request that the appeal be

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heard on an emergency basis was denied. Id. at 11, 65–66.

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On July 19, 2010, plaintiff went the clinic for X-rays of, inter alia, his “[f]acial bones”

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and “[o]rbits.” Id. at 11, 68. Thereafter, he was taken to the emergency room, where defendant

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M. Osman, M.D., informed him that he had a mildly displaced fracture of the right zygomatic

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arch. Id. at 11. Dr. Osman had plaintiff transported to the outside hospital Doctor Medical

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Center, San Pablo (“Doctor Medical Center”). Id. The doctor there prescribed twenty Vicodin

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pills and discharged him with instructions to come back in a few weeks. Id. at 11, 75.

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When plaintiff returned from the hospital, neither Dr. Osman nor Champen put him on a

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soft meal diet. Id. at 11–12. Plaintiff also complained about the lack of treatment for his chronic

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shoulder injury, including the failure to prescribe appropriate pain medication. Id. at 12. In

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response, on July 23, 2010, Champen discontinued Tylenol #3 and prescribed Gabapentin for his

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neuropathic pain. Id. at 12, 77. However, Champen did not order a soft meal diet. Id. at 12.

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On August 10, 2010, plaintiff went to Doctor Medical Center for his follow-up visit. Id.

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By this time, his weight had dropped from 165 to 140 pounds due to his inability to chew

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normally. Id. The doctor there ordered that he receive a soft meal diet. Id. at 12, 79. Pursuant to

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the doctor’s orders, Dr. Osman and Champen put plaintiff on a soft meal diet that day. Id. at 12–

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13, 81.

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On or around September 8, 2010, plaintiff received a response (“first-level response”)

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partially granting his first-level appeal. Id. at 63. “M. Lotenstein” signed it on behalf of R.L.

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Andreasen, M.D., who was Chief Medical Officer (“CMO”) of Inpatient Services at CMF. Id. at

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4–5, 61, 63. In pertinent part, Dr. Andreasen granted plaintiff’s requests for pain management, X-

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rays, and a referral to an orthopedic specialist, but denied his request for high-calorie liquid

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drinks. Id. at 62–63. Dr. Andreasen determined that plaintiff had received all the appropriate

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relief he sought and, therefore, the first-level response did not contemplate further relief. See id.

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Plaintiff filed a second-level appeal on September 19, 2010. Id. at 14. This appeal was

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denied in a response dated October 14, 2010 (“second-level response”). Id. at 86. The second3

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level response states that plaintiff’s appeal “was reviewed by F. Santos . . . for Elam.” Id.

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Further, it indicates that, in contrast to plaintiff’s first-level appeal, no one interviewed plaintiff in

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connection with his second-level appeal. Id. Plaintiff filed his third-level appeal on or around

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October 30, 2010. Id. at 14. In a response dated April 7, 2011 (“third-level response”), an

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examiner denied this appeal. ECF No. 15 at 93–95. To support his decision, the examiner

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reasoned that plaintiff received prescription pain medication, X-rays, a soft meal diet, and a

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referral to an orthopedic surgeon. Id. at 94–95. Although the examiner noted that plaintiff did

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not receive a high-calorie liquid diet, the examiner stated that plaintiff’s “request for liquid drink

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was not appropriate for [his] problem; [his] weight was within normal limits.” Id. at 95. The

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examiner concluded that plaintiff had “been evaluated by licensed clinical staff and . . . [was]

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receiving treatment deemed medically necessary.” Id.

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On December 10, 2010, plaintiff underwent an operation on his shoulder. Id. at 15, 97.

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According to operation report, although the surgeon removed “multiple loose bodies [associated

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with] degeneration of the left shoulder,” plaintiff “is well aware that [the] procedure will not

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result in resolution of the degenerative change.” Id. at 97.

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B.

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Plaintiff filed a complaint under § 1983, ECF No. 1, which he amended on October 30,

Procedural Background

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2014, ECF No. 15. He alleges in his amended complaint that he sustained injuries after one of his

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cellmates physically assaulted him, leaving him with various injuries. ECF No. 48 at 1. He

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further alleged that the medical staff improperly delayed in prescribing him X-rays, pain

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medication, and a soft meal diet to treat his injuries. Id. at 2. Based on these core allegations,

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plaintiff asserts a claim under the Eighth Amendment for deliberate indifference to his medical

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needs. Id. at 1.

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In findings and recommendations issued on August 3, 2016, which the district judge

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subsequently adopted (ECF No. 56), the undersigned found that plaintiff failed to state a

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cognizable Eighth Amendment claim as to defendant Elam. ECF No. 48 at 4–6. In so finding,

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the undersigned reasoned that plaintiff failed to allege that Elam, as CEO of clinical services at

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CMF, “had any direct personal involvement in his medical care.” Id. at 4. The undersigned also
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reasoned that plaintiff could not “pursue a constitutional claim against defendant Elam for failing

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to provide sufficient answers or evidence in his appeal response.” Id. at 5. Further, the

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undersigned noted that plaintiff’s own allegations indicated that the issues raised in his first-level

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appeal had already been resolved when Elam learned of them at level two. Id. Additionally, the

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undersigned rejected plaintiff’s theory that Elam was vicariously liable for his subordinates’

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alleged deliberate indifference, reasoning that his allegations were vague and failed to “allude to

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any specific instances of supervisory misconduct.” Id.

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Plaintiff filed his second amended complaint on August 29, 2016. ECF No. 50. Therein,

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he asserts Eighth Amendment and due process claims against Elam. Id. at 13–14. In support of

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these claims, plaintiff generally alleges that Elam disregarded his medical needs by: (1) denying

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his appeals; (2) failing to supervise his staff in the execution of their duties; (3) failing to follow

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various prison policies; and (4) failing to train his staff to follow such policies. See id. at 10–14.

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More specifically, plaintiff alleges that:

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He did not receive an X-ray of his jaw and that Elam ignored this request in the

second-level response, id. at 7;

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policy, id. at 6;

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Elam must have known of his medical conditions before his second-level appeal

because he filed an emergency appeal and prison policy required Elam to consider it, id. at 9;

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He did not receive an interview in connection with his second-level appeal in

violation of prison policy, id. at 8;

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A prison official who participated in his primary care interviewed him in

connection with his first-level appeal in violation of prison policy, id. at 12;

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His first-level appeal took more than thirty days to resolve in violation of prison

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Elam’s failure to train his subordinates to comply with a prison policy regarding

medical imaging services caused a delay in his being X-rayed, id. at 10–11; and

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The second-level response is deficient because, while it says F. Santos reviewed it

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for Elam, neither of them signed it, id. at 8; see also ECF No. 15 at 86.

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Elam moves to dismiss the second amended complaint, arguing generally that the

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amended complaint does not remedy any of the deficiencies identified in the August 3, 2016

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findings and recommendations. ECF No. 51 at 7. Elam argues that plaintiff continues to allege

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that Elam “should be held liable for . . . deliberate indifference, not because he had any direct

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involvement in the denial of Plaintiff’s medical care when the misconduct occurred, but because

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the process in which Plaintiff complained about the misconduct . . . was mishandled.” Id. Elam

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also argues that the second amended complaint, like its predecessor, lacks “specific instances of

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supervisory misconduct.” Id. at 8. For instance, Elam asserts that plaintiff “does not allege that

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. . . Elam even knew about the delays in processing his x-ray requests or refusal to issue soft meal

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diets . . . [,] [or that] Elam failed to train the specific staff that allegedly denied the health care

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requests or delayed the X-rays.” Id. Based on these alleged shortcomings, Elam requests

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dismissal of plaintiff’s second amended complaint with prejudice. Id.

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Plaintiff opposes Elam’s motion and raises several counterarguments mirroring the

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allegations in the second amended complaint. First, he argues that he improperly failed to receive

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an X-ray of his jaw and that Elam ignored this request in the second-level appeal. ECF No. 61 at

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2. Second, plaintiff argues that Elam failed to ensure that his first-level appeal was processed

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within thirty days as required by policy. Id. at 3. Third, plaintiff asserts that Champen

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interviewed him in connection with his first-level appeal. This interview, according to plaintiff,

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violated a policy prohibiting staff persons who participated in the decision under appeal from

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reviewing it. Id. Fourth, plaintiff asserts that CMF’s policy was to interview inmates whose

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appeals were partially granted and contends that Elam failed to interview him at level two despite

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partially granting his first-level appeal. Id. Fifth, plaintiff cites various prison policies and

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procedures and infers from them that Elam must have known of his medical condition before

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receiving his second-level appeal. See id. at 4–5.

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Elam replied on February 2, 2017. ECF No. 62. Similar to his motion to dismiss, Elam

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argues that plaintiff failed to sufficiently allege that Elam was personally involved in the delay in

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plaintiff’s medical care or that Elam knew about the delay. Id. at 2–3. Elam also argues that the

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delay in processing plaintiff’s appeals did not harm him because plaintiff had already received the

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requested medical care before the appeals were decided. Id. at 3–5.

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II.

Standard of Review

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To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

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complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 562–63, 570 (2007) (stating that the 12(b)(6) standard

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that dismissal is warranted if plaintiff can prove no set of facts in support of his claims that would

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entitle him to relief “has been questioned, criticized, and explained away long enough,” and that

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having “earned its retirement,” it “is best forgotten as an incomplete, negative gloss on an

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accepted pleading standard”). Thus, the grounds must amount to “more than labels and

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conclusions” or a “formulaic recitation of the elements of a cause of action. Id. at 555. Instead,

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the “[f]actual allegations must be enough to raise a right to relief above the speculative level on

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the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id.

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(citation omitted). Dismissal may be based either on the lack of cognizable legal theories or the

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lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police

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Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citation omitted).

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The complaint’s factual allegations are accepted as true. Church of Scientology of Cal. v.

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Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (citations omitted). The court construes the pleading in

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the light most favorable to plaintiff and resolves all doubts in plaintiff’s favor. Parks Sch. of Bus.,

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Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted).

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The court may disregard allegations contradicted by the complaint’s attached exhibits.

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Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998). Furthermore, the court

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is not required to accept as true allegations contradicted by judicially noticed facts. Sprewell v.

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Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828

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F.2d 1385, 1388 (9th Cir. 1987)). The court also may consider matters of public record. MGIC

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Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (citations omitted). “[T]he court is

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not required to accept legal conclusions cast in the form of factual allegations if those conclusions

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cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d
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752, 754–55 (9th Cir. 1994) (citations omitted). Nor must the court accept unreasonable

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inferences or unwarranted deductions of fact. Sprewell, 266 F.3d at 988 (citation omitted).

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In general, pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The court has an obligation

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to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)

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(en banc). However, the court’s liberal interpretation of a pro se complaint may not supply

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essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673

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F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (per

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curiam).

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III.

Legal Analysis

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A.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

Eighth Amendment

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Extreme deprivations are required to make out a conditions-of-confinement claim, and

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“only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian,

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503 U.S. 1, 9 (1992) (citation omitted). “Prison officials have a duty to ensure that prisoners are

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provided adequate shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson

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v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citations omitted). “The circumstances, nature, and

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duration of a deprivation of these necessities must be considered in determining whether a

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constitutional violation has occurred.” Id. “The more basic the need, the shorter the time it can

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be withheld.” Id. (citations omitted).

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To state an Eighth Amendment claim predicated on the denial of medical care, a plaintiff

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must adequately allege that: (1) he had a serious medical need; and (2) the defendant’s response

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to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to

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treat the condition “could result in further significant injury or the unnecessary and wanton

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infliction of pain.” Jett, 439 F.3d at 1096. “A prison official is deliberately indifferent to that
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need if he ‘knows of and disregards an excessive risk to inmate health.’” Peralta v. Dillard, 744

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F.3d 1076, 1082 (9th Cir. 2014) (en banc) (quoting Farmer v. Brennan, 511 U.S. 825, 837

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(1994)).

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“Vicarious liability may not be imposed on a supervisor for the acts of lower officials in a

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§ 1983 action.” Lemire v. Cal. Dep’t of Corrs. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013)

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(citation omitted); see also Iqbal, 556 U.S. at 676. “A prison official in a supervisory position

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may be held liable under § 1983, however, if he or she was personally involved in the

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constitutional deprivation or a sufficient causal connection exists between the supervisor’s

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unlawful conduct and the constitutional violation.” Lemire, 726 F.3d at 1074–75 (citation

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omitted). For a sufficient causal connection to exist, the plaintiff usually must show that the

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supervisor had knowledge of the unlawful conduct. See id. at 1085 (citation omitted) (“The

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requisite causal connection can be established by setting in motion a series of acts by others, or by

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knowingly refusing to terminate a series of acts by others, which the supervisor knew or should

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have known would cause others to inflict a constitutional injury.”); Starr v. Baca, 652 F.3d 1202,

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1207 (9th Cir. 2011) (“[A] plaintiff may state a claim against a supervisor for deliberate

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indifference based upon the supervisor’s knowledge of and acquiescence in unconstitutional

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conduct by his or her subordinates.”); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A

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supervisor is only liable for constitutional violations of his subordinates if the supervisor. . . knew

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of the violations and failed to act to prevent them.”).

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In some cases, a plaintiff may base a claim of deliberate indifference to medical needs on

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a supervisor’s failure to train his subordinates. Lemire, 726 F.3d at 1085. To prevail on such a

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claim, the plaintiff normally must show that supervisors “are on actual or constructive notice that

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a particular omission in their training program causes [subordinate] employees to violate citizens’

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constitutional rights.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation omitted); see also

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Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (stating that § 1983 liability for deliberate

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indifference to medical needs may attach where “supervisors were on actual or constructive

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notice of the need to train.” (citing Farmer v. Brennan, 511 U.S. 825, 841 (1994))). “A pattern of

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similar constitutional violations by untrained employees is ordinarily necessary to demonstrate
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[such notice] for purposes of failure to train.” See Connick, 563 U.S. at 62 (citation omitted); see

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also Willard v. Cal. Dep’t of Corrs. & Rehab., No. 1:14–cv–00760–BAM, 2015 WL 4495916, at

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*7 (E.D. Cal. July 23, 2015) (citing cases) (stating that the “cases in which supervisors have been

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held liable under a failure to train/supervise theory involve conscious choices made with full

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knowledge that a problem existed”).

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In this case, plaintiff has failed to state a facially plausible claim against Elam for

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deliberate indifference to his medical needs. Plaintiff has not adequately alleged that Elam knew

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of his medical complaints before he submitted the second-level appeal on September 19, 2010.

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Plaintiff argues that Elam must have known of his complaints before then because, on July 14,

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2010, he filed his first-level appeal on an emergency basis and prison policy required Elam to

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consider his emergency request. But the policy states that the Health Care Appeals Coordinator

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(“HCAC”) “will consult with the CEO or designee . . . to determine if the appeal warrants

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classification as an emergency appeal.” ECF No. 50 at 25 (emphasis added). Further, the

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memorandum denying plaintiff’s emergency request indicates that the HCAC consulted with the

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CMO, Dr. Andreasen, not Elam. ECF No. 15 at 66. Thus, plaintiff’s allegations fail to support a

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plausible inference that Elam knew of his medical conditions before September 19, 2010.

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Furthermore, while it is plausible that Elam received notice of plaintiff’s medical needs on that

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date, plaintiff’s own allegations indicate that he had already received facial X-rays, a soft meal

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diet, and various painkillers. Supra at 3; see also ECF No. 50 at 7 (plaintiff’s alleging that, by the

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time he submitted his second-level appeal, “a few issue [sic] complained [of] in his appeal had

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already been resolved”). Moreover, even if Elam learned of plaintiff’s medical needs on

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September 19, 2010, he still was not “personally involved in the [alleged] constitutional

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deprivation.” Lemire, 726 F.3d at 1074 (citation omitted).

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Plaintiff counters that, irrespective of Elam’s personal involvement in the underlying

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medical decisions, Elam acted with deliberate indifference to his medical needs by failing to

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properly supervise his subordinates. But plaintiff has not plausibly alleged that Elam’s failure to

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supervise was the cause of the subordinates’ alleged deliberate indifference to plaintiff’s medical

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needs. Indeed, plaintiff does not allege any specific supervisory functions or responsibilities, let
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alone explain how Elam failed to comply with them. Furthermore, plaintiff has not adequately

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alleged that Elam knew of the medical staff’s purported misdeeds until September 19, 2010. By

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then, however, essentially all of the challenged conduct had taken place. See supra at 3–4.

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Therefore, plaintiff has not stated a cognizable failure-to-supervise claim.

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Plaintiff also alleges that Elam failed to train his subordinates to comply with a prison

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policy regarding access to medical imaging services (e.g., X-rays). The policy states that the

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CEO is responsible for its implementation. ECF No. 50 at 30. Coupled with plaintiff’s other

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allegations, the policy may support the inference that plaintiff’s X-ray requests were not

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processed in a timely manner. However, plaintiff has not plausibly alleged that Elam had actual

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or constructive notice that the supposed failure to train his subordinates regarding the policy was

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causing them to violate prisoners’ Eighth Amendment rights. Plaintiff has not alleged a pattern of

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similar violations by untrained medical personnel. In fact, plaintiff had already obtained his X-

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rays when Elam received notice of the delay in processing them. Plaintiff seems to contend that

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he never received an X-ray of his jaw. See ECF No. 50 at 7; ECF No. 61 at 2. But plaintiff’s

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own medical records show that he received X-rays of his “[f]acial bones” and “[o]rbits” on July

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19, 2010. ECF No. 15 at 68. Indeed, this is how the fracture of his right zygomatic arch was

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discovered, id. at 68, 70–71, 73–75, which led to his receiving a soft meal diet, id. at 81–82.

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Accordingly, plaintiff has failed to state a facially plausible failure-to-train claim against Elam.

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Plaintiff raises additional allegations/arguments to support his assertion that Elam violated

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his Eighth Amendment rights. These averments center on the manner in which Elam and other

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persons processed his appeals. Concerning the first-level appeal, plaintiff alleges that it took

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prison officials nearly two months to resolve it even though a policy required them to respond

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within thirty days. ECF No. 50 at 18. Plaintiff also alleges that nurse practitioner Champen

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interviewed him in connection with his first-level appeal. According to plaintiff, this interview

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violated a policy prohibiting staff persons “who participated in the event or decision being

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appealed” from “review[ing]” the appeal. Id. at 6, 18. However, Elam did not handle the first-

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level appeal and plaintiff does not adequately allege that Elam caused these violations through a

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failure to supervise or train his subordinates. Therefore, these allegations do not state a viable

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Eighth Amendment claim against Elam.

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Regarding the second-level appeal, plaintiff notes that Elam did not interview him even

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though he partially granted his appeal. Plaintiff contends that this failure violated a prison policy

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providing that “[p]artially granted and denied appeals require an interview.” Id. at 19. But

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plaintiff has not alleged how Elam’s violation of this policy demonstrates deliberate indifference

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to his medical needs. It is speculative to infer that Elam’s interviewing plaintiff would have

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affected his appeals or medical care. Twombly, 550 U.S. at 555 (citation omitted) (“Factual

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allegations must be enough to raise a right to relief above the speculative level[.]”). Moreover,

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plaintiff had already received some of the care that he sought. Beyond that, plaintiff suggests that

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Elam disregarded his second-level appeal because neither he nor F. Santos signed it even though

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their names appear on it. See ECF No. 15 at 86. But this assertion is inconsistent with the vast

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majority of plaintiff’s allegations and arguments, which presuppose that Elam decided the

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second-level appeal. In any event, the assertion does not bear on the question of whether Elam

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was deliberately indifferent to plaintiff’s medical needs, whether through a failure to

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supervise/train or otherwise.

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For the foregoing reasons, plaintiff has again failed to state a cognizable Eighth

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Amendment claim against Elam. Accordingly, this claim should be dismissed with prejudice.

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The claim is facially implausible and there is no factual or legal basis to infer that supplemental

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allegations would salvage it. See Jordan v. Edwards, No. CV 15-3125 DOC (FFM), 2016 WL

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2753389, at *4 (C.D. Cal. Apr. 18, 2016) (“[I]f it is absolutely clear that the deficiencies of the

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complaint cannot be cured by amendment, a pro se complaint may be dismissed without leave to

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amend.” (citing Karim–Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988); Swartz v.

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KPMG LLP, 476 F.3d 756, 761 (9th Cir. 2007), report and recommendation adopted, No. CV 15-

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3125 DOC (FFM), 2016 WL 2743457 (C.D. Cal. May 10, 2016))).

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B.

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“The Fourteenth Amendment reads . . . nor shall any State deprive any person of life,

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liberty, or property, without due process of law, and protects the individual against arbitrary

Due Process

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action of government[.]” Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 459–60 (1989)

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(citation omitted). Courts “examine procedural due process questions in two steps[.]” Id. “[T]he

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first asks whether there exists a liberty or property interest which has been interfered with by the

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State[.]” Id. (citation omitted). “[T]he second examines whether the procedures attendant upon

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that deprivation were constitutionally sufficient[.]” Id. (citation omitted).

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Here, plaintiff’s due process claim fails at the first step. Plaintiff’s relevant allegations

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center on the manner in which Elam and other persons processed, and ultimately denied, his

8

appeals. However, as noted in the August 3, 2016 findings and recommendations, an “inmate has

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no right to a specific grievance or appeal procedure.” ECF No. 48 at 4 (citing Ramirez v. Galaza,

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334 F.3d 850, 860 (9th Cir. 2003)); see also Bingham v. Thomas, 654 F.3d 1171, 1177–78 (11th

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Cir. 2011) (“[A] prison grievance procedure does not provide an inmate with a constitutionally

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protected interest.”); Jones v. Cannedy, No. 2:10–cv–2174 KJM KJN P, 2012 WL 3260457, at *5

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(E.D. Cal. Aug. 8, 2012) (“[P]laintiff cannot state a cognizable civil rights claim based solely on

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allegations that prison officials ignored, inadequately responded to, or failed to properly process,

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plaintiff’s administrative grievances.”), report and recommendation adopted, No. 2:10–cv–2174

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KJM KJN P, 2012 WL 3260457 (E.D. Cal. Sep. 25, 2012). Accordingly, plaintiff has failed to

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state a cognizable due process claim.

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Therefore, it is recommended that this claim also be dismissed with prejudice. As with

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plaintiff’s Eighth Amendment claim against Elam, it is facially implausible and there is no factual

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or legal basis to infer that supplemental allegations would salvage it. See Jordan, 2016 WL

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2753389, at *4 (citations omitted).

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IV.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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1.

Elam’s motion to dismiss (ECF No. 51) be granted; and

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2.

Plaintiff’s claims against Elam be dismissed with prejudice.

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These findings and recommendations will be submitted to the United States District Judge

Conclusion

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written
13

1

objections with the court and serve a copy on all parties. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

3

objections shall be filed and served within seven days after service of the objections. Failure to

4

file objections within the specified time may waive the right to appeal the District Court’s order.

5

Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th

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Cir. 1991).

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Dated: March 9, 2017.

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