Duran v. California Department of Corrections and Rehabilitation, et al,

Filing 14

ORDER to SHOW CAUSE signed by Magistrate Judge Craig M. Kellison on 08/17/17 ordering plaintiff shall show cause in writing, within 30 days of the date of this order, why this actionshould not be dismissed for failure to state a claim. (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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JASON DURAN,

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No. 2:14-cv-1080-CMK-P

Plaintiff,
vs.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
et al.,
Defendants.
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Plaintiff, a proceeding pro se, brings this civil rights action pursuant to 42 U.S.C.

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§ 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)

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and no other party has been served or appeared in the action. Pending before the court is

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plaintiff’s second amended complaint (Doc. 13). Both of plaintiff’s prior complaints were

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dismissed, with leave to amend, for failure to state a claim.

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As plaintiff has been informed, the court is required to screen complaints brought

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by prisoners seeking relief against a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion

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thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be
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granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that

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complaints contain a “short and plain statement of the claim showing that the pleader is entitled

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to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and

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directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P.

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8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the

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plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129

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(9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts

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by specific defendants which support the claims, vague and conclusory allegations fail to satisfy

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this standard. Additionally, it is impossible for the court to conduct the screening required by

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law when the allegations are vague and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff’s second amended complaint continues to allege a violation of plaintiff’s

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Eighth Amendment rights for failure to provide sex offender treatment while he was incarcerated

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in the state prison system. In his second amended complaint, he alleges he sought treatment from

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staff at Avenal State Prison, including Dr. Smith and the warden, but was denied as no such

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programs existed. As a result of the lack of treatment, plaintiff engaged in the lesser offense of

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possession of child pornography, for which he is now incarcerated within the federal prison

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system. He alleges he was denied treatment due to the overcrowding of the state prisons.

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

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See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

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1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based

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on an indisputably meritless legal theory or where the factual contentions are clearly baseless.

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

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inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639,
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640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other

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words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678 (2009). Furthermore, a claim upon

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which the court can grant relief has facial plausibility. See Twombly, 550 U.S. at 570. “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

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678. When considering whether a complaint states a claim upon which relief can be granted, the

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court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and

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construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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Plaintiff has been informed that the treatment a prisoner receives in prison and the

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conditions under which the prisoner is confined are subject to scrutiny under the Eighth

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Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509

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U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment

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“embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”

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Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh

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and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison

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officials must provide prisoners with “food, clothing, shelter, sanitation, medical care, and

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personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official

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violates the Eighth Amendment only when two requirements are met: (1) objectively, the

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official’s act or omission must be so serious such that it results in the denial of the minimal

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civilized measure of life’s necessities; and (2) subjectively, the prison official must have acted

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unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834.
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Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently culpable

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mind.” See id.

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Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

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injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at

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105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental

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health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is

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sufficiently serious if the failure to treat a prisoner’s condition could result in further significant

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injury or the “unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050,

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1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).

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Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition

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is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily

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activities; and (3) whether the condition is chronic and accompanied by substantial pain. See

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Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).

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The requirement of deliberate indifference is less stringent in medical needs cases

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than in other Eighth Amendment contexts because the responsibility to provide inmates with

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medical care does not generally conflict with competing penological concerns. See McGuckin,

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974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

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decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

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1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

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treatment, or interference with medical treatment, may also constitute deliberate indifference.

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See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also

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demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

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Negligence in diagnosing or treating a medical condition does not, however, give

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rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

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difference of opinion between the prisoner and medical providers concerning the appropriate
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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996).

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Plaintiff continues to allege that he requested sex offender treatment several times

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and was denied. He argues that the prison, and the defendants, had a duty to provide such

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treatment as rehabilitation for his condition which had been found to be treatable. He explains he

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was categorized as a “situational sex offender” not a pedophile in his psychological evaluation.

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He claims that had he been provided treatment, he could have been rehabilitated with a low

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recidivism rate, and would not have re-offended.

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As set forth above, deliberate indifference to a prisoner’s serious illness can give

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rise to a claim under the Eighth Amendment. However, as the court explained to plaintiff in the

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prior screening orders, plaintiff fails to allege he suffered from a psychological disorder

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necessitating treatment. He does state that he was categorized as a situational sex offender, but

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that, similar to a conviction for a sex offense, does not equate to a psychological disorder.

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Without a diagnosis of a psychological disorder, there can be no showing that the defendants

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were deliberately indifferent to plaintiff’s medical needs.

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To the extent plaintiff alleges the defendants’ failure to rehabilitate him violated

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his Eighth Amendment rights, such an allegation is meritless. Prisoners have no constitutional

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right to rehabilitation. See Hoptowit, 682 F.2d at 1254-55. Thus any alleged failure to

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rehabilitate cannot be the basis for a violation of constitutional rights.

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III. CONCLUSION

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Plaintiff has been provided several opportunities to file a complaint that states a

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claim. As discussed above, and in the court’s prior screening orders, he has failed to do so. His

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allegations that the defendants violated his Eighth Amendment rights by failing to rehabilitate

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him or provide sex offender treatment are insufficient to state a claim. It appears that plaintiff is

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either unable or unwilling to amend the complaint in which to state a claim.

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Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action

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should not be dismissed for failure to state a claim. Plaintiff is warned that failure to respond to

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this order may result in dismissal of the action for the reasons outlined above, as well as for

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failure to prosecute and comply with court rules and orders. See Local Rule 110.

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IT IS SO ORDERED.

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DATED: August 17, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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