McElroy v. CDC et al

Filing 12

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/06/17 granting 4 Motion to Proceed IFP. Plaintiff shall pay the statutory filing fee of $350.00. All fees shall be paid in accordance with the court&# 039;s CDC order filed concurrently herewith. The complaint is dismissed with leave to amend within 30 days. Plaintiff's request for the appointment of counsel 9 is denied without prejudice. The clerk of the court is directed to randomly ass ign a United State District Judge to this case. U.S. District Judge Kimberly J. Mueller randomly assigned to this case. Also, RECOMMENDING that plaintiff's motions for injunctive relief 5 , 6 , 10 be denied. Motions 5 , 6 , and 10 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JABBARI McELROY,

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Plaintiff,

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No. 2:15-cv-2271-EFB P

v.
CDC, et al.,

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Defendants.

SCREENING ORDER AND ORDER
GRANTING IFP; FINDINGS AND
RECOMMENDATIONS RECOMMENDING
MOTION FOR INJUNCTIVE RELIEF BE
DENIED

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915, motions for injunctive relief, and a request for

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appointment of counsel.

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I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain 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 Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds

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that the allegations are too vague and conclusory to state a cognizable claim for relief. The

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complaint names defendants CDC, Isad, Lopez, Holmes, Walker, Virgas, and Beard. The
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allegations, which are difficult to decipher, include the following: (1) between September 2009

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and November 2011, defendants subjected plaintiff to “behavioral experiments and chemical

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dependency as a retaliatory measure to defraud and oppress” plaintiff, ECF No. 1 at 4-5; (2)

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defendants assigned plaintiff to “injurious” prison cells and punitive segregation, id. at 5; (3)

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plaintiff was deprived of “sufficient medical living space,” id. at 7; (4) plaintiff was attacked and

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rendered unconscious, id. at 8; (5) defendants confiscated plaintiff’s legal items and cancelled his

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grievances, id. at 9; (6) defendants have “reinjured” plaintiff and still deny any proper medical

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care, id. at 11; (7) plaintiff is in “incessant pain from traumas grief, side effects of involuntary

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psychotropic and mood stabilizers . . . and . . . experiences the same musculoskeletal spasms

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which contribute to frequent loss of use; inability to regularly stand/walk without collapse or

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pause,” id. at 14; and (8) as of September 15, 2015, plaintiff experienced internal bleeding,

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threatened airway constriction, broken rib, and a twisted and swollen “scribing hand,” id. at 14-

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15.

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Plaintiff’s intention appears to be to assert various Eighth Amendment claims of

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deliberate indifference. However, he has not pleaded sufficient facts to state a proper claim for

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relief. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair

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notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of

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particularity overt acts which defendants engaged in that support plaintiff’s claim. Id. Because

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plaintiff fails to state a claim for relief, the complaint must be dismissed.

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Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable

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legal theory against a proper defendant and sufficient facts in support of that cognizable legal

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theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must

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afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).

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Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set

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forth the claims and allegations against each defendant. Any amended complaint must cure the

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deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. Local Rule 110.

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In addition, the court notes that the following legal standards may apply to plaintiff’s
intended claim for relief.

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To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002).

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An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection between

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the defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v.

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Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).
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Plaintiff may not sue any official on the theory that the official is liable for the unconstitutional

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conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Plaintiff must

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identify the particular person or persons who violated his rights. He must also plead facts

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showing how that particular person was involved in the alleged violation.

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Claims for damages against the state, its agencies or its officers for actions performed in

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their official capacities are barred under the Eleventh Amendment, unless the state waives its

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immunity. Kentucky v. Graham, 473 U.S. 159, 169 (1985); see also Will v. Michigan Dep’t of

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State Police, 491 U.S. 58, 71 (1989) (neither a state nor its officials acting in their official

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capacities are persons under § 1983). Section 1983 does not abrogate the states’ Eleventh

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Amendment immunity from suit. See Quern v. Jordan, 440 U.S. 332, 344-45 (1979). See also

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Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that Eleventh Amendment does not bar suits

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against state officials sued in their individual capacities, nor does it bar suits for prospective

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injunctive relief against state officials sued in their official capacities).

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). To show a violation of the Eighth Amendment, plaintiff must allege facts sufficient to

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support a claim that prison officials knew of and disregarded a substantial risk of serious harm to

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the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124,

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1128 (9th Cir. 1998). Extreme deprivations are required to make out a conditions of confinement

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claim, and only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992). Prison officials “must provide humane conditions of confinement,”

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including “adequate food, clothing, shelter, and medical care.” Farmer, 511 U.S. at 832-33.

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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

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plaintiff must establish that he had a serious medical need and that the defendant’s response to

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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to

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treat the condition could result in further significant injury or the unnecessary and wanton
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infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial,

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delay or intentional interference with medical treatment or by the way in which medical care is

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provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

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To act with deliberate indifference, a prison official must both be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists, and he must also

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draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if

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he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing

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to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate

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altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial,

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884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition,

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even if some treatment is prescribed, may constitute deliberate indifference in a particular case.

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Id.

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It is important to differentiate common law negligence claims of malpractice from claims

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predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment.

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In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not

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support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.

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1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391

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F.3d 1051, 1057 (9th Cir. 2004).

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“When prison officials use excessive force against prisoners, they violate the inmates’

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Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. Gomez, 298

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F.3d 898, 903 (9th Cir. 2002). In order to establish a claim for the use of excessive force in

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violation of the Eighth Amendment, a plaintiff must establish that prison officials applied force

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maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or restore

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discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In making this determination, the court

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may evaluate (1) the need for application of force, (2) the relationship between that need and the

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amount of force used, (3) the threat reasonably perceived by the responsible officials, and (4) any

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efforts made to temper the severity of a forceful response. Id. at 7; see also id. at 9-10 (“The

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Eighth Amendment’s prohibition of cruel and unusual punishment necessarily excludes from
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constitutional recognition de minimis uses of physical force, provided that the use of force is not

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of a sort repugnant to the conscience of mankind.” (internal quotation marks and citations

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omitted)).

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Under the Eighth Amendment, “prison officials have a duty to protect prisoners from

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violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal

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quotation marks, ellipsis, and citation omitted). However, “not . . . every injury suffered by one

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prisoner at the hands of another . . . translates into constitutional liability for prison officials

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responsible for the victim’s safety.” Id. at 834. A prison official may be held liable for an assault

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suffered by one inmate at the hands of another only where the assaulted inmate can show that the

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injury is sufficiently serious, id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and

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that the prison official was deliberately indifferent to the risk of harm, id. at 837. Thus, the

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relevant inquiry is whether prison officials, “acting with deliberate indifference, exposed a

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prisoner to a sufficiently substantial risk of serious damage to his future health.” Id. at 834

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(internal quotation omitted).

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There are no constitutional requirements regarding how a grievance system is operated.

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See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s claimed loss of

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a liberty interest in the processing of his appeals does not violate due process because prisoners

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lack a separate constitutional entitlement to a specific prison grievance system). Thus, plaintiff

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may not impose liability on defendants Tseng or Smiley simply because they played a role in

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processing plaintiff’s inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)

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(an administrative “grievance procedure is a procedural right only, it does not confer any

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substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest

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requiring the procedural protections envisioned by the fourteenth amendment. . . . Thus,

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defendants’ failure to process any of Buckley’s grievances, without more, is not actionable under

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section 1983.” (internal quotations omitted)).

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IV.

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Motion for Injunctive Relief
Plaintiff seeks a temporary restraining order requiring, among other requests, that officials

“fully restore [his] legal property,” write him a letter of apology, transfer him to another prison,
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provide him with a wheelchair, and deliver meals and legal property to his cell door. ECF No. 5

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at 3; see also ECF Nos. 6, 10.

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A temporary restraining order may be issued upon a showing “that immediate and

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irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

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in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the status

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quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no

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longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). “The

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standards for granting a temporary restraining order and a preliminary injunction are identical.”

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Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf. Stuhlbarg Int’l

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Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an

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analysis of a preliminary injunction is “substantially identical” to an analysis of a temporary

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restraining order).

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc.,

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326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a party

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must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable

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harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has

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also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing

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the elements of the preliminary injunction test, so that a stronger showing of one element may

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offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild

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Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions

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going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support

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issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.
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In cases brought by prisoners involving conditions of confinement, any preliminary injunction

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“must be narrowly drawn, extend no further than necessary to correct the harm the court finds

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requires preliminary relief, and be the least intrusive means necessary to correct the harm.” 18

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U.S.C. § 3626(a)(2).

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Given the complaint’s vague and conclusory allegations, the court cannot determine

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whether plaintiff is likely to succeed on his claims, and plaintiff’s request for a preliminary

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injunction must be denied. Nor is there any evidence that plaintiff is likely to suffer irreparable

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harm in the absence of preliminary relief. During the course of this action, plaintiff will have the

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opportunity to conduct discovery and present evidence. Presently, however, plaintiff fails to

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make a clear showing that he is entitled to the extraordinary remedy of a preliminary injunction.

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Plaintiff also has not shown that the balance of equities tips in his favor or that the injunction he

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seeks is in the public interest. Therefore, the court recommends that plaintiff’s motion for a

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preliminary injunction be denied.

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V.

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Request for Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.

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VI.

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Accordingly, IT IS HEREBY ORDERED that:

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Summary of Order

1. Plaintiff’s request to proceed in forma pauperis (ECF No. 4) is granted.
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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The complaint

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must bear the docket number assigned to this case and be titled “Amended

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Complaint.” Failure to comply with this order will result in dismissal of this

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action for failure to prosecute. If plaintiff files an amended complaint stating a

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cognizable claim the court will proceed with service of process by the United

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States Marshal.

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4. Plaintiff’s request for the appointment of counsel (ECF No. 9) is denied without
prejudice.
5. The Clerk is directed to randomly assign a United States District Judge to this
case.
Further, it is hereby RECOMMENDED that plaintiff’s motions for injunctive relief (ECF
Nos. 5, 6, 10) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 6, 2017.

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