Dietle v. Miranda, et al.

Filing 14

ORDER signed by Magistrate Judge Allison Claire on 5/22/2015 ORDERING that claims against defendant Swingle and Doe defendants are DISMISSED with leave to amend within 30 days. Plaintiff is not obliged to amend his complaint. The allegations in t he pleading are sufficient to state claims against defendant Miranda.If plaintiff elets not to amend the complaint, then within 30 days he must file either (1) a notice of intent to serve defendant Miranda within 60 days or (2) proof or waiver of service of process for defendant Miranda.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRELL DIETLE,

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Plaintiff,

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No. 2:14-cv-01728 WBS AC P

v.

ORDER

RAFAEL MIRANDA, et al.,

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Defendants.

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Plaintiff is a state prisoner and proceeding with counsel. This proceeding was referred to

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this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff has paid the statutory

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filing fee for this action.

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I.

Statutory Screening of Prisoner Complaints
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 when 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 pled,

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

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1989), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130-

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31 (9th Cir. 2000).

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id. However, “[s]pecific facts

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are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . .

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. claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)

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(quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted).

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In reviewing a complaint under this standard, the court must accept as true the allegations of the

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complaint in question, id., and construe the pleading in the light most favorable to the plaintiff.

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Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overrruled on other grounds, Davis v. Scherer, 468

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U.S. 183 (1984).

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II.

Complaint
In his complaint, plaintiff sues the following defendants: Rafael Miranda, Dorothy

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Swingle, and Does 1-20. ECF No. 1 at 3-4. He raises three claims for relief, each of which is

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identified as being against “all defendants.” Id. at 5-6.

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Plaintiff generally alleges that between 1986 and 1993, his right hand was reconstructed

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twice, he suffered a left shoulder injury, he had a total left hip replacement, and he suffered a

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gunshot wound to the head that resulted in a severe skull fracture that causes seizures. Id. at 2, ¶

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3. He claims to suffer from “seizure disorders, severe hip pain, chronic hand pain, and shoulder

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pain,” and that despite repeated attempts to receive treatment from medical staff and utilize the
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grievance process to address his issues, he is being ignored and denied adequate medical care to

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address his pain and other chronic issues. Id. at 2, 4-5, ¶¶ 3, 16, 17.

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More specifically, plaintiff alleges that on July 17, 2012, upon his arrival at High Desert

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State Prison (“HDSP”), defendant Miranda took his medical appliances from him and

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discontinued his time-released pain medication. Id. at 2-3, ¶ 6. The appliances taken were a hip

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brace, knee brace, and cane. Id.

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Plaintiff also alleges that on August 13, 2012, he was housed on B-Yard, a Sensitive

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Needs Yard, and that he was placed in a holding cell with inmates from A-Yard who

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subsequently assaulted him. Id. at 3, ¶ 7. The identities of the correctional officers responsible

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for plaintiff’s placement are currently unknown to him. Id.

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In Count I, plaintiff alleges that because of these actions, all defendants have violated his

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Eighth Amendment right against cruel and unusual punishment with relation to his medical care.

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Id. at 5, ¶¶ 18-21. In Count II, plaintiff alleges that “Defendants’ de facto attempts to threaten

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and/or dissuade Plaintiff from complaining or initiating legal action following these incidents”

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violate his Fourteenth Amendment right to procedural due process. Id. at 6., ¶ 23 Finally, in

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Count III, plaintiff makes a claim for agency liability based upon the “formal policies and

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practices of Defendants” related to the provision of healthcare. Id., ¶¶ 26-28. Plaintiff seeks

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compensatory and punitive damages. Id. at 7.

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III.

Failure to State a Claim

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A.

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Although plaintiff identifies Dr. Swingle as a defendant (ECF No. 1 at 3, ¶ 11), the

Defendant Swingle

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complaint does not contain a single, specific allegation against her. With the exception of the

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claims against defendant Miranda (id. at 2-3, ¶ 6), the complaint makes only general allegations

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against defendants collectively and does not state facts from which the court may infer how

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defendant Swingle was involved or that she would be liable under one or more causes of action.

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At a minimum, “allegations in a complaint or counterclaim may not simply recite the elements of

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a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and

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to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th

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Cir. 2011).

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Plaintiff has not sufficiently alleged any claims against defendant Swingle, and the claims
against her will be dismissed with leave to amend.

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B.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006), quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976). This requires Plaintiff to

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show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,’” and

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(2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096,

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quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).

Count I

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Deliberate indifference is established only where the defendant subjectively “knows of and

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disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057

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(9th Cir. 2004) (internal citation omitted) (emphasis added). Deliberate indifference can be

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established “by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible

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medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citations omitted).

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A difference of opinion between an inmate and prison medical personnel—or between medical

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professionals—regarding appropriate medical diagnosis and treatment are not enough to establish

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a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391

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F.3d at 1058.

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In Count I, plaintiff alleges that due to his incarceration, “he is at the mercy of the whims

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of the medical staff and their repeated denials in provid[ing] Plaintiff with appropriate medical

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care and pain relief . . . has caused extreme and chronic suffering for Plaintiff to which he can get

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no relief.” ECF No. 1 at 5, ¶ 19. However, the only defendant plaintiff makes specific

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allegations against is defendant Miranda. Id. at 2-3, ¶ 6. To the extent plaintiff may be

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attempting to bring a claim for deliberate indifference against defendant Swingle or Doe

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defendants, the claims against them must be dismissed for failure to state a claim. Other than the
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claim that unidentified individuals denied him appropriate pain medication, plaintiff’s only

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allegations are that unspecified individuals refused to provide him with unspecified treatment. Id.

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at 2, 4-5, ¶¶ 4, 15-17, 19. This is insufficient to allege deliberate indifference to plaintiff’s serious

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medical need. The claims in Count I against Defendant Swingle and Doe defendants will

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therefore be dismissed with leave to amend.

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C.

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Insofar as plaintiff cites a violation of his rights under the Fourteenth Amendment based

Count II

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on medical care, his claims are properly analyzed under the Eighth Amendment. The concept of

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substantive due process is expanded only reluctantly and therefore, if a constitutional claim is

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covered by a specific constitutional provision, the claim must be analyzed under the standard

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appropriate to that specific provision, not under the rubric of substantive due process. County of

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Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (quotation marks and citation omitted).

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To the extent plaintiff may be attempting to allege a due process violation based on the

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mishandling of grievances, prisoners do not have a “separate constitutional entitlement to a

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specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003),

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citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Even the non-existence of, or the

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failure of prison officials to properly implement, an administrative appeals process within the

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prison system does not raise constitutional concerns. Mann, 855 F.2d at 640; see also, Buckley v.

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Barlow, 997 F.2d 494, 495 (8th Cir. 1993); Flick v. Alba, 932 F.2d 728 (8th Cir. 1991). A failure

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to process a grievance, without more, does not state a constitutional violation. Buckley, 997 F.2d

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at 495. Plaintiff has alleged nothing more than a failure to process his grievances. ECF No. 1 at

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2, 4, ¶¶ 5, 16.

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Finally, based on plaintiff’s allegations that defendants were attempting to dissuade him

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from “initiating legal action” and prevented him “from using the law library to assist him with

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this case,” it appears that he may be attempting to bring a claim for denial of access to the courts.

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ECF No. 1 at 6, ¶¶ 23-24.

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Prison inmates have a constitutionally protected right to access the courts in order to bring
challenges to their criminal convictions and to the conditions of their confinement. Lewis v.
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Casey, 518 U.S. 343, 354-55 (1996). The constitutional right of access to the courts is only a

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right to bring petitions or complaints to the federal court and not a right to discover such claims or

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even to litigate them effectively once filed with a court. Lewis, 518 U.S. at 354; see also Cornett

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v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995). However, prison officials may not actively

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interfere with an inmate’s ability to access the courts. Silva v. Di Vittorio, 658 F.3d 1090, 1102-

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03 (9th Cir. 2011). To maintain an access-to-the-courts claim, an inmate must submit evidence

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showing an “actual injury” resulting from the defendant’s actions. Lewis, 518 U.S. at 349. With

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respect to an existing case, the actual injury must be “actual prejudice . . . such as the inability to

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meet a filing deadline or to present a claim.” Id. at 348-49. A claim for denial of access to the

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courts may arise from either the frustration or hindrance of an opportunity to litigate or from “the

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loss or inadequate settlement of a meritorious case, . . . or the loss of an opportunity to seek some

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particular order of relief.” Christopher v. Harbury, 536 U.S. 403, 413-14 (2002) (citations

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omitted). There is no “abstract, freestanding right to a law library or legal assistance.” Lewis,

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518 U.S. at 351. Plaintiff makes only vague allegations of interference with his access to the

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courts and does not allege any actual injury.

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For these reasons, Count II fails to state a claim and will be dismissed with leave to
amend.

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D.

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Given plaintiff’s characterization of Count III as “Formal Policies and Procedures –

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Agency Liability,” it appears that plaintiff may be attempting to make a claim based on Monell v.

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Dept. of Social Serv., 436 U.S. 658 (1978). To the extent Count III is attempting to bring such a

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claim, it cannot stand. Monell provides for civil liability for municipalities; it does not change the

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settled prior law that states and their agencies are not persons for § 1983 purposes. See Will v.

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Michigan Dept. of State Police, 491 U.S. 58, 69 (1989) (“[I]t does not follow that if

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municipalities are persons so are states. States are protected by the Eleventh Amendment while

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municipalities are not.”) (citing Monell, 436 U.S. at 690, n. 54). Not only has plaintiff not

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identified a municipality as a defendant, but all defendants were employed by the California

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Department of Corrections (ECF No. 1 at 3-4, ¶¶ 10-12), a state agency. Any claim for agency

Count III

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liability under § 1983 must be dismissed.
In Count III, plaintiff alleges that the defendants’ refusal to provide him with adequate

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medical care violated his “constitutional and state law rights [and] were the direct and proximate

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cause of the formal policies and practices of Defendants as alleged herein.” ECF No. 1 at 6, ¶ 26.

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To the extent plaintiff is attempting to make a claim for violations of his Eighth Amendment

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rights by individual defendants based upon the denial of medical care, Count III is duplicative of

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Count I and should be dismissed as such. If plaintiff is attempting to claim that the defendants

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instituted policies or procedures that led to other individuals violating his rights, Count III fails to

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state a claim.

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First, plaintiff does not identify the policies and practices that violated his rights, nor does

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he allege a factual basis for finding the individually named defendants responsible for

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implementing the unidentified formal policies and practices. Next, there is no respondeat

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superior liability under § 1983. Taylor v List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A defendant

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may be held liable as a supervisor under § 1983 if there exists either (1) his or her personal

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involvement in the constitutional deprivation, or (2) a sufficient causal connection between the

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supervisor’s wrongful conduct and the constitutional violation.” See Starr, 652 F.3d at 1207 (9th

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Cir. 2011) (citation and internal quotation marks omitted). Plaintiff has not sufficiently alleged

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either of these. Finally, supervisory liability may exist without any personal participation if the

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official implemented “a policy so deficient that the policy itself is a repudiation of the

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constitutional rights and is the moving force of the constitutional violation.” Redman v. County

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of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991). However, the complaint does not contain any

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facts to establish that such a policy exists or that defendants are responsible for implementing

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such a policy. Count III will therefore be dismissed with leave to amend.

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E.

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Though plaintiff does not specifically make a claim for relief for failure to protect, it

Failure to Protect

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appears that such a claim may have been intended. ECF No. 1 at 3, ¶ 7. Under the Eighth

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Amendment, prison officials have a duty to take reasonable steps to protect inmates from assaults

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at the hands of other inmates. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). To establish a
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violation of this duty, the prisoner must show first, that he was incarcerated under conditions

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posing a substantial risk of serious harm; and second, that a prison official knew of and was

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deliberately indifferent to this risk. Id. at 834. Mere negligence on the part of the prison official

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is not sufficient to establish liability, but rather, the official’s conduct must have been wanton. Id.

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at 835. Plaintiff’s bare allegation that he was placed in a cell with inmates from another yard and

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subsequently assaulted (ECF No. 1 at 3, ¶ 7) is insufficient to establish that officers knew of and

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were deliberately indifferent to a risk to his safety.

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Any claim plaintiff may be attempting to make for failure to protect is dismissed with
leave to amend. However, plaintiff is reminded that if he seeks to make a claim on these grounds,
joinder must be appropriate under Federal Rules of Civil Procedure 18(a) and 20(a)(2).
III.

Claim for Which Response Will Be Required

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Plaintiff claims that defendant Miranda took away his medical appliances and

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discontinued his time-released pain medication. ECF No. 1 at 2-3, ¶ 6. Although plaintiff’s

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allegations indicate that his constant pain is largely due to various unidentified members of

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medical staff denying his requests for unspecified treatment (id. at 2, 4-5, ¶¶ 4, 15-17, 19), and

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the only specific allegations against Miranda are sparse, he does allege that due to the “actions of

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all Defendants,” which would include Miranda, he has suffered “extreme pain.” Id. at 5, ¶ 20.

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Therefore, defendant Miranda will be required to respond to Count I to the extent he is alleged to

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have taken away plaintiff’s medical appliances and discontinued his time-released pain

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medication, causing plaintiff extreme pain.

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IV.

Leave to Amend

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As set forth above, the court has reviewed plaintiff’s complaint and, for the limited

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purposes of § 1915A screening, finds that it states a cognizable claim against defendant Miranda.

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See 28 U.S.C. § 1915A.

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For the reasons stated below, the court finds that the complaint does not state a cognizable

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claim against defendant Swingle or any Doe defendants. The claims against those defendants are

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hereby dismissed with leave to amend.

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Plaintiff may proceed forthwith to serve defendant Miranda and pursue his claims against
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only that defendant or he may delay serving any defendant and attempt to state a cognizable claim

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against the remaining defendants. If plaintiff elects to attempt to amend his complaint to state a

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cognizable claim or claims against the remaining defendants, he has thirty days so to do. He is

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not obligated to amend his complaint.

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If plaintiff elects to proceed forthwith against defendant Miranda, against whom he has

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stated a cognizable claim for relief, then within thirty days he must file a proof or waiver of

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service for defendant Miranda or a notice of intent to serve defendant Miranda. In this event the

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court will construe plaintiff’s election as consent to dismissal of all claims against the remaining

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defendants without prejudice.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how

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

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

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

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

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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

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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

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R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.

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R. Civ. P. 18(a). He may also join multiple defendants if the claims against them arise from the

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same transaction, occurrence, or series of transactions or occurrences and there is a question of

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law or fact common to all defendants. Fed. R. Civ. P. 20(a)(2). If plaintiff has more than one

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claim based upon separate transactions or occurrences, the claims must be set forth in separate

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paragraphs. Fed. R. Civ. P. 10(b).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Claims against defendant Swingle and Doe defendants are dismissed with leave to

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amend. Within thirty days of service of this order, plaintiff may amend his complaint to attempt
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to state cognizable claims against these defendants. Plaintiff is not obliged to amend his

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complaint.

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2. As set forth above, the allegations in the pleading are sufficient at least to state

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cognizable claims against defendant Miranda. See 28 U.S.C. § 1915A. If plaintiff elects not to

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amend the complaint, then within thirty days of the filing of this order he must file either (1) a

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notice of intent to serve defendant Miranda within sixty days or (2) proof or waiver of service of

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process for defendant Miranda. In this event the court will construe plaintiff’s election as consent

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to dismissal of all claims against defendant Swingle and Doe defendants without prejudice.

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3. Failure to comply with this order will result in a recommendation that this action be

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dismissed.

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DATED: May 22, 2015

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