Sloan v. Commissioner of the Department of Corrections and Rehabilitation et al

Filing 21

ORDER signed by Magistrate Judge Allison Claire on 1/03/17 ordering plaintiff's complaint is dismissed. Within 30 days from the date of service of this order, plaintiff may file an amended complaint. The clerk of the court is directed to send plaintiff a copy of the prisoner complaint form used in this district. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY LEE SLOAN, JR., 12 Plaintiff, 13 14 15 No. 2:15-cv-1921 MCE AC P v. ORDER COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. 19 Plaintiff has paid the filing fee. This proceeding was referred to this court by Local Rule 302 20 pursuant to 28 U.S.C. § 636(b)(1). 21 22 I. Statutory Screening of Prisoner Complaints The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 27 28 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 1 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 2 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 3 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 4 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 5 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 6 has an arguable legal and factual basis. Id. 7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 12 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 13 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 14 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 15 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 16 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d 17 ed. 2004)). 18 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 19 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 20 Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 21 content that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 23 under this standard, the court must accept as true the allegations of the complaint in question, 24 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 25 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 26 McKeithen, 395 U.S. 411, 421 (1969). 27 28 II. Complaint Plaintiff names as defendants the commissioner of the department of corrections and the 2 1 warden of High Desert State Prison (HDSP). ECF No. 1 at 2. However, he does not make any 2 allegations against either defendant. Id. at 3-21. Instead, he appears to allege that he has been 3 subject to retaliation, interference with his access to the courts, and possibly deliberate 4 indifference by a number of largely unidentified correctional officers. Id. 5 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 6 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 7 362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Vague and 8 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 9 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 10 Additionally, “[t]here is no respondeat superior liability under section 1983.” Taylor v 11 List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A defendant may be held liable as a supervisor under 12 § 1983 ‘if there exists either (1) his or her personal involvement in the constitutional deprivation, 13 or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the 14 constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. 15 Black, 885 F.2d 642, 646 (9th Cir. 1989)). A supervisor may be liable for the constitutional 16 violations of his subordinates if he “knew of the violations and failed to act to prevent them.” 17 Taylor, 880 F.2d at 1045. Finally, supervisory liability may also exist without any personal 18 participation if the official implemented “a policy so deficient that the policy itself is a 19 repudiation of the constitutional rights and is the moving force of the constitutional violation.” 20 Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations 21 marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 22 Since the named defendants are not subject to liability solely based upon their supervisory 23 positions, and there are no allegations that they directly harmed plaintiff, the complaint will be 24 dismissed with leave to amend. 25 III. Leave to Amend 26 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 27 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo, 28 423 U.S. at 370-71. Also, the complaint must allege in specific terms how each named defendant 3 1 is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can 2 be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection 3 between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 4 743 (9th Cir. 1978). If plaintiff seeks to make claims against any correctional officers, he will 5 need to identify them in the list of named defendants in addition to explaining what they did to 6 violate his rights. 7 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 8 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 9 complete in itself without reference to any prior pleading. This is because, as a general rule, an 10 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 11 1967), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 929 (9th Cir. 2012) (claims 12 dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent 13 amended complaint to preserve appeal). Once plaintiff files a first amended complaint, the 14 original complaint no longer serves any function in the case. Therefore, in an amended 15 complaint, as in an original complaint, each claim and the involvement of each defendant must be 16 sufficiently alleged. When drafting an amended complaint, plaintiff should keep the following 17 legal standards in mind. 18 If plaintiff is attempting to make a claim under the First or Fourteenth Amendment for 19 violation of his right of access to the courts, this right is limited to direct criminal appeals, habeas 20 petitions, and civil rights actions. Lewis v. Casey, 518 U.S. 343, 354 (1996). Claims for denial 21 of access to the courts may arise from the frustration or hindrance of “a litigating opportunity yet 22 to be gained” (forward-looking access claim) or from the loss of a meritorious suit that cannot 23 now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 413-15 (2002). 24 For backward-looking claims, plaintiff “must show: 1) the loss of a ‘nonfrivolous’ or ‘arguable’ 25 underlying claim; 2) the official acts frustrating the litigation; and 3) a remedy that may be 26 awarded as recompense but that is not otherwise available in a future suit.” Phillips v. Hust, 477 27 F.3d 1070, 1076 (9th Cir. 2007) (citing Christopher, 536 U.S. at 413-14), overruled on other 28 grounds by Hust v. Phillips, 555 U.S. 1150 (2009). 4 1 To have standing to bring this claim, plaintiff must allege he suffered an actual injury. 2 Lewis, 518 U.S. at 351-52; Vandelft v. Moses, 31 F.3d 794, 798 (9th Cir. 1994). To succeed, 3 plaintiff must have been denied the necessary tools to litigate a nonfrivolous claim attacking a 4 conviction, sentence, or conditions of confinement. Christopher, 536 U.S. at 415; Lewis, 518 5 U.S. at 353 & n.3. Plaintiff need not show that he would have been successful on the merits of 6 his claims, but only that the claims were not frivolous. Allen v. Sakai, 48 F.3d 1082, 1085-86 & 7 n.12 (9th Cir. 1994). A claim “is frivolous where it lacks an arguable basis either in law or in 8 fact.” Neitzke, 490 U.S. at 325. The Ninth Circuit has emphasized that “[a] prisoner need not 9 show, ex post, that he would have been successful on the merits had his claim been considered. 10 To hold otherwise would permit prison officials to substitute their judgment for the courts’ and to 11 interfere with a prisoner’s right to court access on the chance that the prisoner’s claim would 12 eventually be deemed frivolous.” Allen, 48 F.3d at 1085. To properly plead a denial of access to 13 the courts claim, “the complaint should state the underlying claim in accordance with Federal 14 Rule of Civil Procedure 8(a), just as if it were being independently pursued, and a like plain 15 statement should describe any remedy available under the access claim and presently unique to 16 it.” Christopher, 536 U.S. at 417-18 (footnote omitted). 17 If plaintiff is attempting to make a claim for retaliation, allegations of retaliation against a 18 prisoner’s First Amendment rights to speech or to petition the government may support a section 19 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985); Pratt v. Rowland, 65 F.3d 20 802, 806 (9th Cir. 1995). 21 22 23 24 25 26 Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004) (footnote and citations omitted). If plaintiff wants to make claims related to his medical care, then in order “to maintain an 27 Eighth Amendment claim based on prison medical treatment, [he] must show ‘deliberate 28 indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006), 5 1 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff to show (1) “a 2 ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in 3 further significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the 4 defendant’s response to the need was deliberately indifferent.” Id. (quoting McGuckin v. Smith, 5 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal quotations marks omitted), 6 overruled on other grounds WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en 7 banc)). 8 9 Deliberate indifference is established only where the defendant subjectively “‘knows of and disregards an excessive risk to inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 10 1057 (9th Cir. 2004) (emphasis added) (quoting Gibson v. County of Washoe, 290 F.3d 1175, 11 1187 (9th Cir. 2002)). Deliberate indifference can be established “by showing (a) a purposeful 12 act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 13 indifference.” Jett, 439 F.3d at 1096 (citation omitted). A difference of opinion between an 14 inmate and prison medical personnel—or between medical professionals—regarding appropriate 15 medical diagnosis and treatment are not enough to establish a deliberate indifference claim. 16 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d at 1058. 17 Finally, plaintiff may join multiple claims if they are all against a single defendant. Fed. 18 R. Civ. P. 18(a). He may also join multiple defendants if the claims against them arise from the 19 same transaction, occurrence, or series of transactions or occurrences and there is a question of 20 law or fact common to all defendants. Fed. R. Civ. P. 20(a)(2). In other words, plaintiff can 21 make as many claims against a single defendant as he wants, but if he wants to bring claims 22 against more than one defendant, the claims against the defendants must be related to each other. 23 24 IV. Summary The complaint is dismissed with leave to amend because the facts plaintiff has alleged are 25 not enough to state a claim for relief. Plaintiff needs to provide more information about what 26 defendants did and how it violated his rights. When he amends the complaint, plaintiff should 27 remember that he can make as many claims against a single defendant as he wants, but if he 28 wants to bring claims against more than one defendant, the claims against the defendants must be 6 1 related to each other. If plaintiff is trying to make a claim about his legal access, he needs to 2 explain (1) what the claim is that he lost the ability to pursue; (2) what defendants did to interfere; 3 and (3) how he was injured, for example, did he miss a filing date that hurt his claim. Any claim 4 for retaliation must explain what protected conduct plaintiff participated in and what defendants 5 did to him because of the protected conduct. He must further explain how that chilled his 6 exercise of his First Amendment rights and why defendants’ actions did not relate to a legitimate 7 correctional goal. If plaintiff is trying to bring medical claims, then he needs to explain what his 8 serious medical need was and how each defendant failed to respond to that need. 9 If plaintiff chooses to amend his complaint, the first amended complaint must include all 10 of the claims plaintiff wants to make because the court will not look at the claims or information 11 in the original complaint. In other words, any claims not in the first amended complaint will not 12 be considered. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s complaint is dismissed with leave to amend. 15 2. Within thirty days from the date of service of this order, plaintiff may file an amended 16 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 17 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 18 number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 19 original and two copies of the amended complaint. Failure to file an amended complaint in 20 accordance with this order will result in dismissal of this action. 21 3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 22 form used in this district. 23 DATED: January 3, 2017 24 25 26 27 28 7

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