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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON DURAN, 12 13 14 15 16 No. 2:14-cv-1080-CMK-P Plaintiff, vs. ORDER CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants. / 17 18 Plaintiff, a proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. 19 § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) 20 and no other party has been served or appeared in the action. Pending before the court is 21 plaintiff’s second amended complaint (Doc. 13). Both of plaintiff’s prior complaints were 22 dismissed, with leave to amend, for failure to state a claim. 23 As plaintiff has been informed, the court is required to screen complaints brought 24 by prisoners seeking relief against a governmental entity or officer or employee of a 25 governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion 26 thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be 1 1 granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 2 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 3 complaints contain a “short and plain statement of the claim showing that the pleader is entitled 4 to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and 5 directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 6 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the 7 plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 8 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts 9 by specific defendants which support the claims, vague and conclusory allegations fail to satisfy 10 this standard. Additionally, it is impossible for the court to conduct the screening required by 11 law when the allegations are vague and conclusory. 12 I. PLAINTIFF’S ALLEGATIONS 13 Plaintiff’s second amended complaint continues to allege a violation of plaintiff’s 14 Eighth Amendment rights for failure to provide sex offender treatment while he was incarcerated 15 in the state prison system. In his second amended complaint, he alleges he sought treatment from 16 staff at Avenal State Prison, including Dr. Smith and the warden, but was denied as no such 17 programs existed. As a result of the lack of treatment, plaintiff engaged in the lesser offense of 18 possession of child pornography, for which he is now incarcerated within the federal prison 19 system. He alleges he was denied treatment due to the overcrowding of the state prisons. 20 21 II. DISCUSSION A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 22 See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 23 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based 24 on an indisputably meritless legal theory or where the factual contentions are clearly baseless. 25 Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however 26 inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 2 1 2 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. In order to avoid dismissal for failure to state a claim a complaint must contain 3 more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements 4 of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other 5 words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 6 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678 (2009). Furthermore, a claim upon 7 which the court can grant relief has facial plausibility. See Twombly, 550 U.S. at 570. “A claim 8 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 10 678. When considering whether a complaint states a claim upon which relief can be granted, the 11 court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and 12 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 13 U.S. 232, 236 (1974). 14 Plaintiff has been informed that the treatment a prisoner receives in prison and the 15 conditions under which the prisoner is confined are subject to scrutiny under the Eighth 16 Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509 17 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment 18 “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.” 19 Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh 20 and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison 21 officials must provide prisoners with “food, clothing, shelter, sanitation, medical care, and 22 personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official 23 violates the Eighth Amendment only when two requirements are met: (1) objectively, the 24 official’s act or omission must be so serious such that it results in the denial of the minimal 25 civilized measure of life’s necessities; and (2) subjectively, the prison official must have acted 26 unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. 3 1 Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently culpable 2 mind.” See id. 3 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 4 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 5 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental 6 health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 7 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 8 injury or the “unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 9 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 10 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 11 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 12 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 13 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 14 The requirement of deliberate indifference is less stringent in medical needs cases 15 than in other Eighth Amendment contexts because the responsibility to provide inmates with 16 medical care does not generally conflict with competing penological concerns. See McGuckin, 17 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 18 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 19 1989). The complete denial of medical attention may constitute deliberate indifference. See 20 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 21 treatment, or interference with medical treatment, may also constitute deliberate indifference. 22 See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also 23 demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 24 Negligence in diagnosing or treating a medical condition does not, however, give 25 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 26 difference of opinion between the prisoner and medical providers concerning the appropriate 4 1 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 2 90 F.3d 330, 332 (9th Cir. 1996). 3 Plaintiff continues to allege that he requested sex offender treatment several times 4 and was denied. He argues that the prison, and the defendants, had a duty to provide such 5 treatment as rehabilitation for his condition which had been found to be treatable. He explains he 6 was categorized as a “situational sex offender” not a pedophile in his psychological evaluation. 7 He claims that had he been provided treatment, he could have been rehabilitated with a low 8 recidivism rate, and would not have re-offended. 9 As set forth above, deliberate indifference to a prisoner’s serious illness can give 10 rise to a claim under the Eighth Amendment. However, as the court explained to plaintiff in the 11 prior screening orders, plaintiff fails to allege he suffered from a psychological disorder 12 necessitating treatment. He does state that he was categorized as a situational sex offender, but 13 that, similar to a conviction for a sex offense, does not equate to a psychological disorder. 14 Without a diagnosis of a psychological disorder, there can be no showing that the defendants 15 were deliberately indifferent to plaintiff’s medical needs. 16 To the extent plaintiff alleges the defendants’ failure to rehabilitate him violated 17 his Eighth Amendment rights, such an allegation is meritless. Prisoners have no constitutional 18 right to rehabilitation. See Hoptowit, 682 F.2d at 1254-55. Thus any alleged failure to 19 rehabilitate cannot be the basis for a violation of constitutional rights. 20 III. CONCLUSION 21 Plaintiff has been provided several opportunities to file a complaint that states a 22 claim. As discussed above, and in the court’s prior screening orders, he has failed to do so. His 23 allegations that the defendants violated his Eighth Amendment rights by failing to rehabilitate 24 him or provide sex offender treatment are insufficient to state a claim. It appears that plaintiff is 25 either unable or unwilling to amend the complaint in which to state a claim. 26 /// 5 1 Because it does not appear possible that the deficiencies identified herein can be 2 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 3 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 4 Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action 5 should not be dismissed for failure to state a claim. Plaintiff is warned that failure to respond to 6 this order may result in dismissal of the action for the reasons outlined above, as well as for 7 failure to prosecute and comply with court rules and orders. See Local Rule 110. 8 IT IS SO ORDERED. 9 10 11 12 13 DATED: August 17, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 6

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