Tunstall v. Bick et al

Filing 21

ORDER signed by Magistrate Judge Craig M. Kellison on 9/12/2017 ORDERING 1 Complaint dismissed with leave to amend. Plaintiff to file an amended complaint within 30 days of the date of service of this order. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT WILLIAM TUNSTALL, JR.,

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Plaintiff,

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No. 2:16-cv-2604-KJM-CMK-P

vs.

ORDER

JOSEPH BICK, et. al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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In his complaint, plaintiff’s entire statement of his claim is as follows:

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(1) Defendants failed to provide plaintiff with treatment for
plaintiff’s (1) Neurological Disorders, (2) Dementia, (3) Post
Traumatic Stress Disorder from being assaulted by prison staff. (4)
Violating plaintiff’s Due Process rights at Rules Violation
hearings.

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(Compl., Doc. 1 at 4).
II. DISCUSSION

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Plaintiff’s complaint suffers from several defects. First and foremost, plaintiff

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fails to explain exactly what the defendants did. To state a claim under 42 U.S.C. § 1983, the

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plaintiff must allege an actual connection or link between the actions of the named defendants

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and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo

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v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a

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constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in

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another's affirmative acts, or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel

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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual defendant’s
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causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th

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Cir. 1988).

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Here, plaintiff pleads no facts in his complaint. After listing several defendants

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against whom he brings this action, he fails to explain what the defendants actually did, or did

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not do. Vague allegations that the defendants failed to provide appropriate medical treatment for

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his disorders is insufficient.

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In addition to the complaint, plaintiff filed a motion for injunctive relief. The

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merits of that motion will be addressed separately, but to the extent it sheds some light on the

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claims plaintiff is attempting to raise in this case, the undersigned will address the claims that

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plaintiff refers to. In the motion, plaintiff alleges several defendants from several different

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facilities have violated his rights in relation to providing medical treatment. It appears that

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plaintiff submitted a Health Care Appeal form 602 in order to obtain treatment for neurological

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disorders, including dementia, post traumatic stress disorder, intermittent explosive disorder, and

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organic disinhibition. The 602 appeal was granted, but plaintiff has not received the treatment he

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has requested. The facts alleged in the motion are vague, but it appears this occurred at

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California Medical Facility (CMF), California Health Care Facility (CHCF) and California State

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Prison-Sacramento (CSP-Sac) and involved several of the named defendants. In addition to the

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602 that was granted, plaintiff makes some allegations that perhaps another 602 was not

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processed, but that allegation is unclear. Plaintiff further alleges in the motion that his due

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process and Miranda rights were violated during a Rules Violation Report (RVR) hearing.

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Finally, plaintiff states in his motion that he was assaulted at CHCF by several officers.

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However, he provides no facts as to what happened, only stating that he was assaulted by a list of

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officers. From the allegations in the motion, it appears plaintiff is attempting to raise claims

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pertaining to the medical treatment he may not be receiving, the grievance process, use of

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excessive force, and due process violation relating to a disciplinary proceeding. To the extent

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these are the claims plaintiff is attempting to raise in this action, the basic requirements for each
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claim are set forth below. However, as none of the claims are articulated in the complaint, the

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complaint itself must be dismissed. Plaintiff will be provided an opportunity to file an amended

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complaint clarifying1 his claims.

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A. Medical Needs

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The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts

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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only

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when two requirements are met: (1) objectively, the official’s act or omission must be so serious

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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” See id.

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

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

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

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

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

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Plaintiff is cautioned that it is his responsibility to set forth his claims clearly and
concisely. The court notes that his motion for injunctive relief is 490 pages, consisting of over
450 pages of exhibits. Such a pleading method, especially in a complaint, is inadequate.
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injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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difference of opinion between the prisoner and medical providers concerning the appropriate

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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

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

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To the extent plaintiff is attempting to raise an Eighth Amendment violation for

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failure to provide medical treatment, plaintiff fails to identify what treatment was necessary, who

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denied him the treatment, and why the denial amounted to deliberate indifference.

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B. Inmate Grievance Process

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Prisoners have no stand-alone due process rights related to the administrative

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grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling

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inmates to a specific grievance process). Because there is no right to any particular grievance

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process, it is impossible for due process to have been violated by ignoring or failing to properly

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process grievances. Numerous district courts in this circuit have reached the same conclusion.

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See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly

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process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863

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(N.D. Cal. 1996) (concluding that prison officials’ failure to properly process and address

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grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL

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29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process

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a grievance did not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967

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(N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function

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properly failed to state a claim under § 1983). Prisoners do, however, retain a First Amendment

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right to petition the government through the prison grievance process. See Bradley v. Hall, 64

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F.3d 1276, 1279 (9th Cir. 1995). Therefore, interference with the grievance process may, in

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certain circumstances, implicate the First Amendment.

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To the extent plaintiff is attempting to state a claim for failure to process his 602

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inmate appeal, he is informed that there is no right to any particular grievance process and failure

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to properly process a grievance does not violate his due process rights. Similarly, a defendant

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who’s only involvement in the events at issue was a review of the 602 appeal, such involvement

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is unlikely to be sufficient to sustain a claim.

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C. Use of Excessive Force

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When prison officials stand accused of using excessive force, the core judicial

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inquiry is “. . . whether force was applied in a good-faith effort to maintain or restore discipline,
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or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);

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Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as

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opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims,

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is applied to excessive force claims because prison officials generally do not have time to reflect

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on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475

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U.S. at 320-21. In determining whether force was excessive, the court considers the following

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factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship

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between the need for force and the amount of force used; (4) the nature of the threat reasonably

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perceived by prison officers; and (5) efforts made to temper the severity of a forceful response.

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See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force

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was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.

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1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally,

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because the use of force relates to the prison’s legitimate penological interest in maintaining

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security and order, the court must be deferential to the conduct of prison officials. See Whitley,

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475 U.S. at 321-22.

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It is unclear if plaintiff is attempting to raise a claim for use of excessive force. In

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his motion, he mentioned an assault by several officers, who are mentioned in the complaint.

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However, there are no facts alleged as to what took place.

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D. Due Process

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The Due Process Clause protects prisoners from being deprived of life, liberty, or

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property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to

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state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or

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property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672

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(1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the

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deprivation of property where there is a legitimate claim of entitlement to the property. See Bd.

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of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are
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defined, by existing rules that stem from an independent source – such as state law – and which

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secure certain benefits and support claims of entitlement to those benefits. See id.

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Liberty interests can arise both from the Constitution and from state law. See

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Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976);

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Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution

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itself protects a liberty interest, the court should consider whether the practice in question “. . . is

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within the normal limits or range of custody which the conviction has authorized the State to

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impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the

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Supreme Court has concluded that the Constitution itself provides no liberty interest in good-

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time credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v.

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Conner, 515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425

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U.S. 308, 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or

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in remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47

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(1983).

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In determining whether state law confers a liberty interest, the Supreme Court has

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adopted an approach in which the existence of a liberty interest is determined by focusing on the

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nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the

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Court has held that state law creates a liberty interest deserving of protection only where the

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deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

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sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in

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the procedures used in prison disciplinary hearings where a successful claim would not

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necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th

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Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not

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result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v.

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Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate
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release from prison were cognizable under § 1983).
With respect to prison disciplinary proceedings, due process requires prison

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officials to provide the inmate with: (1) a written statement at least 24 hours before the

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disciplinary hearing that includes the charges, a description of the evidence against the inmate,

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and an explanation for the disciplinary action taken; (2) an opportunity to present documentary

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evidence and call witnesses, unless calling witnesses would interfere with institutional security;

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and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418

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U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see

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Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in

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the record as a whole which supports the decision of the hearing officer, see Superintendent v.

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Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

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satisfied where “there is any evidence in the record that could support the conclusion reached.”

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Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result

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of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by

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way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

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Plaintiff’s due process claim is unclear. It appears he was issued an RVR and in

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his motion he claims he did not receive a staff assistant. However, there are no facts alleged in

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the complaint setting forth what the RVR was, why he needed a staff assistant, or what the

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outcome of the hearing was. In addition to the above, it is possible that this particular claim may

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be barred by Heck v. Humpreys, 512 U.S. 477 (1994). Compare Edwards v. Balisok, 520 U.S.

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641, 646 (1987) (holding that § 1983 claim is not cognizable because allegations of procedural

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defects and a biased hearing officer implied the invalidity of the underlying prison disciplinary

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sanction of loss of good-time credits) with Ramirez v. Galaza, 334 F.3d 850, 858 (9th. Cir. 2003)

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(holding that the favorable termination rule of Heck and Edwards does not apply to challenges to

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prison disciplinary hearings where the administrative sanction imposed does not affect the

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overall length of confinement and, thus, does not go to the heart of habeas).
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E. Related Claims

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In addition to the above, it is unclear whether the claims raised in this case are

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related within the meaning of the Federal Rules of Civil Procedure. The Rules allow a party to

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assert “as many claims as it has against an opposing party,” but does not provide for unrelated

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claims against several different defendants to be raised on the same action. Fed. R. Civ. Proc.

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18(a). “Thus multiple claims against a single party are fine, but Claim A against Defendant 1

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should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against

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different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007). It appears that plaintiff’s claims relating to his medical care are unrelated to his due

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process claims arising from prison disciplinary charges or any claims arising from an alleged

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assault. Plaintiff makes some allegations that the RVR was caused by his medical condition, but

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he does not explain how the due process violations are related. Thus, it would appear that these

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claims should be raised in separate actions.

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F. Supervisory Defendants

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Finally, it appears several of the defendants are named in their supervisory roles.

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Plaintiff is informed that supervisory personnel are generally not liable under § 1983 for the

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actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that

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there is no respondeat superior liability under § 1983). A supervisor is only liable for the

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constitutional violations of subordinates if the supervisor participated in or directed the

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violations. See id. The Supreme Court has rejected the notion that a supervisory defendant can

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be liable based on knowledge and acquiescence in a subordinate’s unconstitutional conduct

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because government officials, regardless of their title, can only be held liable under § 1983 for

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his or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676

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(2009). Supervisory personnel who implement a policy so deficient that the policy itself is a

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repudiation of constitutional rights and the moving force behind a constitutional violation may,

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however, be liable even where such personnel do not overtly participate in the offensive act. See
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Redman v. Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).

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When a defendant holds a supervisory position, the causal link between such

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel

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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.

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To the extent any of the defendants are named solely due to their supervisory

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position, plaintiff is cautioned that those defendants may be subject to dismissal if there are no

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allegations of personal involvement.

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III. CONCLUSION
Because it appears possible that some or all of the deficiencies identified in this

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order may be cured by amending the complaint, plaintiff is entitled to leave to amend prior to

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

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(en banc). Plaintiff is informed that, as a general rule, an amended complaint supersedes the

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original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus,

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following dismissal with leave to amend, all claims alleged in the original complaint which are

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not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th

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Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior

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pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be complete in itself without reference to any prior pleading. See id.

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

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

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

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each named defendant is involved, and must set forth some affirmative link or connection
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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend; and

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Plaintiff shall file an amended complaint within 30 days of the date of

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service of this order.

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DATED: September 12, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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