Layton v. Knipp

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 9/20/2013 ORDERING that plaintiff's 8 request to proceed IFP is GRANTED; plaintiff to pay the $350.00 filing fee with an initial partial filing fee in accordance with the concurrent CDCR order; plaintiff's complaint is DISMISSED, with leave to file an amended complaint within 30 days; and plaintiff's 3 motion for TRO is DENIED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY PAUL LAYTON,

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Plaintiff,

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No. 2:13-cv-1618 AC P

v.

ORDER

WILLIAM B. KNIPP,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff has filed a complaint styled as a

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“motion of mandamus” seeking injunctive relief. Plaintiff has also filed a motion for a temporary

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restraining order. This matter was referred to the undersigned by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). Plaintiff has consented to jurisdiction by United States Magistrate Judge.

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I.

In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments
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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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II.

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Screening of Plaintiff’s Complaint
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8 requires a “short and plain statement” showing grounds for jurisdiction and that the

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pleader is entitled to relief. Fed. R. Civ. P. 8. A plaintiff is required to allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (quoting

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Twombly, 550 U.S. at 556). However, “[s]pecific facts are not necessary; the statement [of facts]

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need only give the defendant fair notice of what the… claim is and the grounds upon which it

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rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).

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In reviewing a complaint under this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740
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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421(1969). Pro se pleadings are held

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to a less stringent standard than those drafted by lawyers. See Erickson, 551 U.S. at 94.

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Plaintiff is a 56 year male with chronic asthma who was a smoker for twenty-two years.

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ECF No. 1 at 2. On July 23, 2013, Counselor Winkler notified plaintiff that plaintiff was being

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put up for transfer to Pleasant Valley State Prison (“PVSP”) and that plaintiff had been cleared by

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a doctor to be transferred to PVSP. Id. at 1−2. Plaintiff was not seen by a doctor in regard to a

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transfer. Id. at 2. On July 24, plaintiff was endorsed to be transferred. Id.

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Plaintiff alleges that transferring him to an area infected with Coccidioidomycosis

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(“Valley Fever”), a fungal disease, could result in severe disease, long-term morbidity, or death.

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Id. Petitioner alleges that the health hazards presented by Valley Fever are particularly dangerous

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and life-threatening to him because he was a smoker and has asthma, which is considered to be an

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“immunocompromised” condition. Id. at 3.

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Federal district courts are without power to issue mandamus to direct state courts, state

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judicial officers, or other state officials in the performance of their duties. A petition for a writ of

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mandamus to compel a state court or official to take or refrain from some action is frivolous as a

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matter of law. See Demos v. U.S. District Court, 925 F.2d 1160, 1161 (9th Cir. 1991) (“We

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further note that this court lacks jurisdiction to issue a writ of mandamus to a state court.”); Clark

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v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (“The federal courts are without power to issue

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writs of mandamus to direct state courts or their judicial officers in the performance of their

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duties[.]”); see also Newton v. Poindexter, 578 F. Supp. 277, 279 (C.D. Cal. 1984) (§ 1361 has no

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application to state officers or employees).

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Because the court cannot grant the mandamus relief sought, plaintiff’s complaint is better

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construed as a civil rights complaint under 42 U.S.C. § 1983 for injunctive relief. Plaintiff seeks

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an injunction preventing the California Department of Corrections (“CDCR”) from transferring

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him to any prison in an area where Valley Fever is present, including PVSP. Plaintiff alleges that

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such a transfer would constitute an excessive risk to his health and safety in violation of the

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Eighth Amendment.
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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman,

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452 U.S. 337, 347 (1981). “[A] prison official violates the Eighth Amendment only when two

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requirements are met. First, the deprivation alleged must be, objectively sufficiently serious.”

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Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the official must have a sufficiently

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culpable state of mind, one of deliberate indifference to inmate health or safety. Id.; see also

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Hudson v. McMillian, 503 U.S. 1, 8 (1992). A prison official acts with deliberate indifference if

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“the official knows of and disregards an excessive risk to inmate health or safety; the official

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

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serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
“In a suit seeking injunctive relief to prevent a substantial risk of serious injury from

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ripening into actual harm, the subjective factor, deliberate indifference, should be determined in

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light of the prison authorities’ current attitudes and conduct, their attitudes and conduct at the

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time suit is brought and persisting thereafter.” Id. at 845 (internal quotations marks and citation

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omitted). “[T]o establish eligibility for an injunction, the inmate must demonstrate the

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continuance of that disregard during the remainder of the litigation and into the future.” Id. If the

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court finds the Eighth Amendment’s subjective and objective requirements satisfied, it may grant

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appropriate injunctive relief. Id. at 846.

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Courts of this district have held that confinement in a location where Valley Fever is

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present does not, in and of itself, satisfy the objective element of an Eighth Amendment claim,

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i.e., that the condition poses an excessive risk of harm. See, e.g. Smith v. Yates, No. 1:10-cv-

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1088 AWI GSA, 2012 WL 1498891, *2 (E.D. Cal. Apr. 27, 2012) (citing King v. Avenal State

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Prison, No. 1:07-cv-1283 AWI GSA, 2009 WL 546212, *4 (E.D. Cal. Mar.4, 2009) (“[T]o the

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extent that Plaintiff is attempting to pursue an Eighth Amendment claim for the mere fact that he

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was confined in a location where Valley Fever spores existed which caused him to contract

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Valley Fever, he is advised that no courts have held that exposure to Valley Fever spores presents

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an excessive risk to inmate health.”); see also Gilbert v. Yates, No. 1:09-cv-2050 AWI DLB,

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2010 WL 5113116, *3 (E.D. Cal. Dec. 9, 2010); Willis v. Yates, No. 1:08-cv-0125 OWW SMS,
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2009 WL 3486674, *3 (E.D. Cal. Oct. 23, 2009).

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Courts have, however, deemed the first prong of an Eighth Amendment claim satisfied

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where the plaintiff identified a factor responsible for either increasing the risk of contraction of

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Valley Fever or the severity of infection. See, e.g., Owens v. Trimble, No. 1:11-cv-01540 LJO

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MJS, 2012 WL 1910102, *2 (E.D. Cal. May 25, 2012) (asthma); Whitney v. Walker, No. 1:10-

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cv-1963 DLB, 2012 WL 893783, *2–4 (E.D. Cal. Mar. 15, 2012) (immune system compromised

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by cancer); Thurston v. Schwarzenegger, No. 1:08-cv-0342 AWI SMS, 2008 WL 2129767, *2

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(E.D. Cal. May 21, 2008) (various medical conditions, including asthma, and additionally race);

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see also Plata v. Brown, No. C01-1351 TEH, 2013 WL 3200587, *7 n. 10 & *14 (N.D. Cal. June

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24, 2013) (finding that certain groups of medically high risk inmates are at an increased risk of

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harm from Valley Fever infection and therefore should be excluded from Pleasant Valley State

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Prison and Avenal State Prison).

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Here, plaintiff alleges that he is especially susceptible to Valley Fever because he has

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asthma. Plaintiff has alleged a deprivation that is, objectively, sufficiently serious. As set forth,

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however, to state a cognizable Eighth Amendment claim, he must also demonstrate that a named

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defendant exhibited deliberate indifference to a substantial risk of serious harm to his health or

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safety. Plaintiff has not sufficiently alleged that any prison official was, or currently is, acting

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with deliberate indifference to his health or safety. Plaintiff alleges that he told Counselor

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Winkler that Pleasant Valley State Prison was a place where he could get sick and die. ECF No.

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1 at 1−2. However, counselor Winkler is not a named defendant and, as a correctional counselor,

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cannot plausibly be inferred to have the authority or opportunity to prevent or correct the alleged

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constitutional violation and therefore is lacking in personal involvement.

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Plaintiff names as the sole defendant William B. Knipp, who was the Warden at Mule

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Creek State Prison (“MCSP”), where plaintiff was incarcerated at the time he filed this action.

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After he filed suit, however, plaintiff was transferred to PVSP. Because plaintiff has been

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transferred from MCSP, Warden Knipp is not a proper defendant in a suit for injunctive relief. A

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proper defendant in this action would be one who is responsible for the constitutional violation

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alleged and who has the opportunity or authority to prevent or correct the alleged violation. In
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other words, plaintiff should name as defendant(s) the official(s) within CDCR who can

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appropriately respond to the requested injunctive relief.

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Because plaintiff has not sufficiently alleged the deliberate indifference of a defendant, the

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complaint must be dismissed. Plaintiff will, however, be granted an opportunity to file an

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amended complaint. See Lopez v. Smith, 203 F.3d 1122, 1126−27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints).

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If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions

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complained of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625

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F.2d 227 (9th Cir. 1980). Plaintiff must allege as specifically as possible how each named

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defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of

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official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents,

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673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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Finally, plaintiff is cautioned that pursuant to the Prison Litigation Reform Act (“PLRA”),

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“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any

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other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Plaintiff

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does not indicate whether he filed, and pursued through the third and final level of review, an
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inmate appeal in regard to the deprivation alleged. Compliance with the exhaustion requirement

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is mandatory, even where the relief sought cannot be granted by the administrative process.

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Booth v. Churner, 532 U.S. 731, 734, 739 (2001) (holding that prisoners must exhaust their

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administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money

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damages, even though the latter is unavailable pursuant to the administrative grievance process).

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The primary purpose of the exhaustion of remedies requirement is to allow the prison to address

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the problem short of litigation. Porter v. Nussle, 534 U.S. 516, 525 (2002). CDCR must be

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afforded the opportunity to address plaintiff’s complaint before being sued in federal court.

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Non-exhaustion under § 1997e(a) is an affirmative defense which may be brought by the

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defendants in a motion to dismiss under Federal Rule of Civil Procedure 12(b). Jones v. Bock,

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549 U.S. 199 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Therefore, whether

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plaintiff properly exhausted his claims is not an issue presently before the court at the screening

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stage. Plaintiff is nevertheless advised that unexhausted claims will be subject to dismissal at a

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later stage of the proceedings.

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III.

Temporary Restraining Order
On August 9, 2013, plaintiff filed a motion for temporary restraining order preventing

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CDCR from transferring him from MCSP to any other prison during the pendency of this action.

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The purpose in issuing a temporary restraining order is to preserve the status quo pending

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a fuller hearing. See generally Fed. R. Civ. P. 65; see also E.D. Cal. Local Rule 231(a). The

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standards governing the issuance of temporary restraining orders are “substantially identical” to

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those governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John

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D. Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). In general, a plaintiff in a civil

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case seeking a TRO “must establish that he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

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favor, and that an injunction is in the public interest.” Am. Trucking Ass’n, Inc. v. City of Los

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Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc.,

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555 U.S. 7, 20 (2008)). A TRO is “an extraordinary remedy that may only be awarded upon a

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clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
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As a threshold matter, convicted prisoners have no reasonable expectation that they will

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remain in any particular facility, and prison officials have broad authority to transfer prisoners

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from one facility to another. See Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes,

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427 U.S. 236 (1976). “[A] prisoner’s liberty interests are sufficiently extinguished by his

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conviction that the state may generally confine or transfer him to any of its institutions, indeed,

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even to a prison in another state, without offending the Constitution.” Bravo v. Hewchuck, 2006

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WL 3618023, *1 (N.D.Cal.2006) (citations omitted).

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Plaintiff’s contentions of future injury from incarceration at PVSP are, at this time,
theoretical and speculative rather than “likely.” Due to the deficiencies in the complaint

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described above, plaintiff also fails to show a likelihood of success on the merits. A temporary

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restraining order is not warranted.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 8) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

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1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. The complaint is dismissed for the reasons set forth above, with leave to file an

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amended complaint within thirty days from the date of service of this order. Failure to file an

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amended complaint will result in a recommendation that the action be dismissed.

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4. Plaintiff’s motion for temporary restraining order (ECF No. 3) is denied.
DATED: September 20, 2013

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