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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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 ROBERT WILLIAM TUNSTALL, JR., 13 Plaintiff, 14 15 16 17 18 19 20 No. 2:16-cv-2604-KJM-CMK-P vs. ORDER JOSEPH BICK, et. al., Defendants. / 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 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 1 1 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 2 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied 3 if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon 4 which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must 5 allege with at least some degree of particularity overt acts by specific defendants which support 6 the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 7 impossible for the court to conduct the screening required by law when the allegations are vague 8 and conclusory. 9 I. PLAINTIFF’S ALLEGATIONS 10 In his complaint, plaintiff’s entire statement of his claim is as follows: 11 (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. 12 13 14 15 (Compl., Doc. 1 at 4). II. DISCUSSION 16 Plaintiff’s complaint suffers from several defects. First and foremost, plaintiff 17 fails to explain exactly what the defendants did. To state a claim under 42 U.S.C. § 1983, the 18 plaintiff must allege an actual connection or link between the actions of the named defendants 19 and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo 20 v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a 21 constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in 22 another's affirmative acts, or omits to perform an act which he is legally required to do that 23 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 24 Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel 25 in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 26 Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual defendant’s 2 1 causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th 2 Cir. 1988). 3 Here, plaintiff pleads no facts in his complaint. After listing several defendants 4 against whom he brings this action, he fails to explain what the defendants actually did, or did 5 not do. Vague allegations that the defendants failed to provide appropriate medical treatment for 6 his disorders is insufficient. 7 In addition to the complaint, plaintiff filed a motion for injunctive relief. The 8 merits of that motion will be addressed separately, but to the extent it sheds some light on the 9 claims plaintiff is attempting to raise in this case, the undersigned will address the claims that 10 plaintiff refers to. In the motion, plaintiff alleges several defendants from several different 11 facilities have violated his rights in relation to providing medical treatment. It appears that 12 plaintiff submitted a Health Care Appeal form 602 in order to obtain treatment for neurological 13 disorders, including dementia, post traumatic stress disorder, intermittent explosive disorder, and 14 organic disinhibition. The 602 appeal was granted, but plaintiff has not received the treatment he 15 has requested. The facts alleged in the motion are vague, but it appears this occurred at 16 California Medical Facility (CMF), California Health Care Facility (CHCF) and California State 17 Prison-Sacramento (CSP-Sac) and involved several of the named defendants. In addition to the 18 602 that was granted, plaintiff makes some allegations that perhaps another 602 was not 19 processed, but that allegation is unclear. Plaintiff further alleges in the motion that his due 20 process and Miranda rights were violated during a Rules Violation Report (RVR) hearing. 21 Finally, plaintiff states in his motion that he was assaulted at CHCF by several officers. 22 However, he provides no facts as to what happened, only stating that he was assaulted by a list of 23 officers. From the allegations in the motion, it appears plaintiff is attempting to raise claims 24 pertaining to the medical treatment he may not be receiving, the grievance process, use of 25 excessive force, and due process violation relating to a disciplinary proceeding. To the extent 26 these are the claims plaintiff is attempting to raise in this action, the basic requirements for each 3 1 claim are set forth below. However, as none of the claims are articulated in the complaint, the 2 complaint itself must be dismissed. Plaintiff will be provided an opportunity to file an amended 3 complaint clarifying1 his claims. 4 A. Medical Needs 5 The treatment a prisoner receives in prison and the conditions under which the 6 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 7 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 8 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 9 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 10 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 11 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 12 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 13 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only 14 when two requirements are met: (1) objectively, the official’s act or omission must be so serious 15 such that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 16 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 17 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 18 official must have a “sufficiently culpable mind.” See id. 19 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 20 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 21 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental 22 health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 23 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 24 25 26 1 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. 4 1 injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 2 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 3 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 4 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 5 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 6 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 7 The requirement of deliberate indifference is less stringent in medical needs cases 8 than in other Eighth Amendment contexts because the responsibility to provide inmates with 9 medical care does not generally conflict with competing penological concerns. See McGuckin, 10 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 11 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 12 1989). The complete denial of medical attention may constitute deliberate indifference. See 13 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 14 treatment, or interference with medical treatment, may also constitute deliberate indifference. 15 See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also 16 demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 17 Negligence in diagnosing or treating a medical condition does not, however, give 18 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 19 difference of opinion between the prisoner and medical providers concerning the appropriate 20 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 21 90 F.3d 330, 332 (9th Cir. 1996). 22 To the extent plaintiff is attempting to raise an Eighth Amendment violation for 23 failure to provide medical treatment, plaintiff fails to identify what treatment was necessary, who 24 denied him the treatment, and why the denial amounted to deliberate indifference. 25 /// 26 /// 5 1 B. Inmate Grievance Process 2 Prisoners have no stand-alone due process rights related to the administrative 3 grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v. 4 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling 5 inmates to a specific grievance process). Because there is no right to any particular grievance 6 process, it is impossible for due process to have been violated by ignoring or failing to properly 7 process grievances. Numerous district courts in this circuit have reached the same conclusion. 8 See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly 9 process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863 10 (N.D. Cal. 1996) (concluding that prison officials’ failure to properly process and address 11 grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL 12 29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process 13 a grievance did not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967 14 (N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function 15 properly failed to state a claim under § 1983). Prisoners do, however, retain a First Amendment 16 right to petition the government through the prison grievance process. See Bradley v. Hall, 64 17 F.3d 1276, 1279 (9th Cir. 1995). Therefore, interference with the grievance process may, in 18 certain circumstances, implicate the First Amendment. 19 To the extent plaintiff is attempting to state a claim for failure to process his 602 20 inmate appeal, he is informed that there is no right to any particular grievance process and failure 21 to properly process a grievance does not violate his due process rights. Similarly, a defendant 22 who’s only involvement in the events at issue was a review of the 602 appeal, such involvement 23 is unlikely to be sufficient to sustain a claim. 24 C. Use of Excessive Force 25 When prison officials stand accused of using excessive force, the core judicial 26 inquiry is “. . . whether force was applied in a good-faith effort to maintain or restore discipline, 6 1 or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); 2 Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as 3 opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims, 4 is applied to excessive force claims because prison officials generally do not have time to reflect 5 on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475 6 U.S. at 320-21. In determining whether force was excessive, the court considers the following 7 factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship 8 between the need for force and the amount of force used; (4) the nature of the threat reasonably 9 perceived by prison officers; and (5) efforts made to temper the severity of a forceful response. 10 See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force 11 was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 12 1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally, 13 because the use of force relates to the prison’s legitimate penological interest in maintaining 14 security and order, the court must be deferential to the conduct of prison officials. See Whitley, 15 475 U.S. at 321-22. 16 It is unclear if plaintiff is attempting to raise a claim for use of excessive force. In 17 his motion, he mentioned an assault by several officers, who are mentioned in the complaint. 18 However, there are no facts alleged as to what took place. 19 D. Due Process 20 The Due Process Clause protects prisoners from being deprived of life, liberty, or 21 property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to 22 state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or 23 property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 24 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the 25 deprivation of property where there is a legitimate claim of entitlement to the property. See Bd. 26 of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are 7 1 defined, by existing rules that stem from an independent source – such as state law – and which 2 secure certain benefits and support claims of entitlement to those benefits. See id. 3 Liberty interests can arise both from the Constitution and from state law. See 4 Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976); 5 Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution 6 itself protects a liberty interest, the court should consider whether the practice in question “. . . is 7 within the normal limits or range of custody which the conviction has authorized the State to 8 impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the 9 Supreme Court has concluded that the Constitution itself provides no liberty interest in good- 10 time credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v. 11 Conner, 515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425 12 U.S. 308, 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or 13 in remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 14 (1983). 15 In determining whether state law confers a liberty interest, the Supreme Court has 16 adopted an approach in which the existence of a liberty interest is determined by focusing on the 17 nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the 18 Court has held that state law creates a liberty interest deserving of protection only where the 19 deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the 20 sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the 21 ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in 22 the procedures used in prison disciplinary hearings where a successful claim would not 23 necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th 24 Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not 25 result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v. 26 Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate 8 1 2 release from prison were cognizable under § 1983). With respect to prison disciplinary proceedings, due process requires prison 3 officials to provide the inmate with: (1) a written statement at least 24 hours before the 4 disciplinary hearing that includes the charges, a description of the evidence against the inmate, 5 and an explanation for the disciplinary action taken; (2) an opportunity to present documentary 6 evidence and call witnesses, unless calling witnesses would interfere with institutional security; 7 and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418 8 U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see 9 Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in 10 the record as a whole which supports the decision of the hearing officer, see Superintendent v. 11 Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is 12 satisfied where “there is any evidence in the record that could support the conclusion reached.” 13 Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result 14 of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by 15 way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997). 16 Plaintiff’s due process claim is unclear. It appears he was issued an RVR and in 17 his motion he claims he did not receive a staff assistant. However, there are no facts alleged in 18 the complaint setting forth what the RVR was, why he needed a staff assistant, or what the 19 outcome of the hearing was. In addition to the above, it is possible that this particular claim may 20 be barred by Heck v. Humpreys, 512 U.S. 477 (1994). Compare Edwards v. Balisok, 520 U.S. 21 641, 646 (1987) (holding that § 1983 claim is not cognizable because allegations of procedural 22 defects and a biased hearing officer implied the invalidity of the underlying prison disciplinary 23 sanction of loss of good-time credits) with Ramirez v. Galaza, 334 F.3d 850, 858 (9th. Cir. 2003) 24 (holding that the favorable termination rule of Heck and Edwards does not apply to challenges to 25 prison disciplinary hearings where the administrative sanction imposed does not affect the 26 overall length of confinement and, thus, does not go to the heart of habeas). 9 1 E. Related Claims 2 In addition to the above, it is unclear whether the claims raised in this case are 3 related within the meaning of the Federal Rules of Civil Procedure. The Rules allow a party to 4 assert “as many claims as it has against an opposing party,” but does not provide for unrelated 5 claims against several different defendants to be raised on the same action. Fed. R. Civ. Proc. 6 18(a). “Thus multiple claims against a single party are fine, but Claim A against Defendant 1 7 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against 8 different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 9 2007). It appears that plaintiff’s claims relating to his medical care are unrelated to his due 10 process claims arising from prison disciplinary charges or any claims arising from an alleged 11 assault. Plaintiff makes some allegations that the RVR was caused by his medical condition, but 12 he does not explain how the due process violations are related. Thus, it would appear that these 13 claims should be raised in separate actions. 14 F. Supervisory Defendants 15 Finally, it appears several of the defendants are named in their supervisory roles. 16 Plaintiff is informed that supervisory personnel are generally not liable under § 1983 for the 17 actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that 18 there is no respondeat superior liability under § 1983). A supervisor is only liable for the 19 constitutional violations of subordinates if the supervisor participated in or directed the 20 violations. See id. The Supreme Court has rejected the notion that a supervisory defendant can 21 be liable based on knowledge and acquiescence in a subordinate’s unconstitutional conduct 22 because government officials, regardless of their title, can only be held liable under § 1983 for 23 his or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 24 (2009). Supervisory personnel who implement a policy so deficient that the policy itself is a 25 repudiation of constitutional rights and the moving force behind a constitutional violation may, 26 however, be liable even where such personnel do not overtly participate in the offensive act. See 10 1 Redman v. Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 2 When a defendant holds a supervisory position, the causal link between such 3 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 4 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 5 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel 6 in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 7 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 8 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 9 To the extent any of the defendants are named solely due to their supervisory 10 position, plaintiff is cautioned that those defendants may be subject to dismissal if there are no 11 allegations of personal involvement. 12 13 III. CONCLUSION Because it appears possible that some or all of the deficiencies identified in this 14 order may be cured by amending the complaint, plaintiff is entitled to leave to amend prior to 15 dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) 16 (en banc). Plaintiff is informed that, as a general rule, an amended complaint supersedes the 17 original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, 18 following dismissal with leave to amend, all claims alleged in the original complaint which are 19 not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th 20 Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior 21 pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An 22 amended complaint must be complete in itself without reference to any prior pleading. See id. 23 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 24 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 25 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 26 each named defendant is involved, and must set forth some affirmative link or connection 11 1 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 2 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 3 Finally, plaintiff is warned that failure to file an amended complaint within the 4 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 5 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 6 with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 7 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s complaint is dismissed with leave to amend; and 10 2. Plaintiff shall file an amended complaint within 30 days of the date of 11 service of this order. 12 13 14 15 DATED: September 12, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 12

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