Tunstall v. Bick et al

Filing 29

ORDER signed by Magistrate Judge Craig M. Kellison on 1/16/2018 DISMISSING 26 Amended Complaint with leave to amend. Plaintiff shall file an amended complaint within 30 days of the date of service of this order. (Fabillaran, J)

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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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vs.

ORDER

JOSEPH BICK, et. al.,
Defendants.

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

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint (Doc. 26).

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Plaintiff’s original complaint was dismissed as insufficient to state a claim, but he was granted

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leave file an amended complaint.

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As plaintiff was previously informed, the court is required to screen complaints

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brought by prisoners seeking relief against a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion

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thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be

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granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28
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U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that

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complaints contain a “short and plain statement of the claim showing that the pleader is entitled

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to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and

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directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P.

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8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the

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plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129

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(9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts

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by specific defendants which support the claims, vague and conclusory allegations fail to satisfy

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this standard. Additionally, it is impossible for the court to conduct the screening required by

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law when the allegations are vague and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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In his amended complaint, plaintiff attempts to state his claim in more detail. He

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did not, however, heed the court’s advisements as to what is necessary to state a claim. In his

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amended complaint, he continues to allege that he has been denied medical treatment that he was

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granted through the 602 inmate appeal process. He also alleges his due process rights were

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violated during a Rules Violation Report (RVR) hearing, and that some of his 602 inmate

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grievances have not been responded to. However, he continues to name only those individuals

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involved in reviewing his inmate grievances, and he continues to include unrelated claims in his

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amended complaint.

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Specifically, he alleges that defendants Andresen, Adams, Elam, Bick and

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Brodenhamer each granted one of plaintiff’s 602 inmate appeals, but have failed to provide the

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treatment allowed in the grievance. He also alleges defendants Lewis, Milsap and Briggs did not

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adequately or timely respond to his grievances. Finally, he alleges defendants Artis, Zamora,

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Hayes, George and Gomez denied his due process rights relating to his RVR hearing.

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II. DISCUSSION
Plaintiff’s amended complaint suffers from several defects that were pro-actively

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addressed in the court’s prior screening order. This includes his attempt to include unrelated

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claims, his attempt to state a claim for alleged acts he cannot state a claim for, and naming the

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incorrect defendants for potential violations.

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A. Unrelated Claims

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As plaintiff was previously informed, unrelated claims against unrelated

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defendants do not belong in the same complaint. The Federal Rules of Civil Procedure allow a

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

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

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

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Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims

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

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Cir. 2007). Therefore, to the extent plaintiff continues to allege violations relating to his medical

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care and his due process rights, those cannot be contained in the same action. Plaintiff must

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chose which claim to continue with in this action. If plaintiff files a second amended complaint

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and continues to raise unrelated claims, the court will dismiss the unrelated claims. Plaintiff

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must separate unrelated claims into separate actions.

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B. Inmate Grievances

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Plaintiff also attempts to state claims which are not recognized rights.

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Specifically, plaintiff’s allegations regarding the handling of his inmate grievances do not violate

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his due process rights. As plaintiff was informed, prisoners have no stand-alone due process

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rights related to the administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640

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(9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there

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is no liberty interest entitling inmates to a specific grievance process). Because there is no right

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to any particular grievance process, it is impossible for due process to have been violated by
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ignoring or failing to properly process grievances. Numerous district courts in this circuit have

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reached the same conclusion. See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999)

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(finding that failure to properly process grievances did not violate any constitutional right); Cage

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v. Cambra, 1996 WL 506863 (N.D. Cal. 1996) (concluding that prison officials’ failure to

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properly process and address grievances does not support constitutional claim); James v. U.S.

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Marshal’s Service, 1995 WL 29580 (N.D. Cal. 1995) (dismissing complaint without leave to

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amend because failure to process a grievance did not implicate a protected liberty interest);

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Murray v. Marshall, 1994 WL 245967 (N.D. Cal. 1994) (concluding that prisoner’s claim that

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grievance process failed to function properly failed to state a claim under § 1983). Thus,

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plaintiff’s amended complaint fails to state a claim regarding the handling of his inmate

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grievance, and therefore fails to state a claim against Lewis, Milsap and Briggs . This claim is

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not subject to amendment, as no additional facts can be alleged in which to state a due process

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claim relating to the handling of his inmate grievances.

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C. Medical Treatment

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To the extent plaintiff is attempting to state a claim for violation of his Eighth

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Amendment rights regarding the failure to provide medical treatment, his amended complaint

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fails to cure the defects noted in the court’s prior order. Again, plaintiff was previously informed

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that the treatment a prisoner receives in prison and the conditions under which the prisoner is

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confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual

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punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S.

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825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of dignity,

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civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976).

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Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452

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U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing,

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shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080,

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1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when two
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requirements are met: (1) objectively, the official’s act or omission must be so serious such that it

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results in the denial of the minimal civilized measure of life’s necessities; and (2) subjectively,

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the prison official must have acted unnecessarily and wantonly for the purpose of inflicting harm.

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

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have a “sufficiently culpable mind.” See id.

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Here, plaintiff alleges several defendants, Andresen, Elam, Adams, Bick and

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Bodenhamer, have granted relief in 602 inmate grievances, which have requested medical

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treatment including neurological therapy and dementia treatment. However, he claims he has not

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received the treatment he has been granted. To the extent plaintiff’s claim indicates the inmate

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grievance process, as discussed above, he cannot state a claim. To the extent he is attempting to

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state an Eighth Amendment claim for denial of treatment, his claim remains unclear. Plaintiff

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indicates that he had brain surgery and after the surgery, he became verbally aggressive.

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Apparently, he has received RVRs due to his aggressive behavior. However, he does not plead

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specific facts as to what his condition is, what treatment was denied, and who denied him the

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necessary treatment. Again, the Eighth Amendment is only implicated where the plaintiff has a

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serious medical condition that requires treatment, and the defendant has acted with deliberate

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indifference. Without facts alleging what his condition is and what treatment was required, the

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court cannot properly evaluate this claim.

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Similarly, plaintiff has named several individuals involved in the 602 inmate

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grievance process as defendants to this claim. However, the facts alleged all indicate that the

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named defendants granted plaintiff the treatment requested. While he indicates he did not

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receive the treatment, he fails to allege who is responsible for providing that treatment and who

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denied him. While it appears that a few of the named defendants are in the medical or related

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department, it is not clear from the amended complaint that the individuals named were actually

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the ones who denied plaintiff the treatment he claims was necessary. Rather, they each

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apparently found treatment should be ordered. However, it is possible that an individual
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reviewing a 602 inmate grievance may not have any authority to order treatment. Therefore,

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based on the facts alleged in the amended complaint, it is unclear whether any of the named

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individuals were the ones who actually denied plaintiff treatment. The burden is on the plaintiff

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to name the proper defendants in his complaint, and only an individual who “does an affirmative

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act, participates in another’s affirmative acts, or omits to perform an act which he is legally

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required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982). The allegations in the amended complaint are too vague and

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conclusory for the court to find any of the defendants acted with deliberate indifference to deny

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plaintiff necessary treatment for a serious medical condition. The defects in this claim, however,

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are subject to cure and plaintiff will be provided one more opportunity to allege facts sufficient to

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state a claim. However, as discussed, plaintiff will need to decide whether to proceed in this

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action on this claim.

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D. Due Process

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Finally, plaintiff alleges his due process rights relating to his RVR hearings have

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been violated. Specifically, he alleges defendants Artis and Zamora denied his request for

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dismissal of an RVR plaintiff received. He also alleges defendants Hayes, George and Gomez

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denied his due process rights during the RVR hearing.

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Plaintiff was fully informed in the prior court order what it takes to state a claim

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for denial of Due Process. Specifically as to disciplinary proceedings, due process requires

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prison 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 v.
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McDonnell, 418 U.S. 539, 563-70 (1974). Due process is satisfied where these minimum

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requirements have been met, and where there is “some evidence” in the record as a whole which

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supports the decision of the hearing officer. See Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir.

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1994); Superintendent v. Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not

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particularly stringent and is satisfied where “there is any evidence in the record that could support

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the conclusion reached.” Hill, 472 U.S. at 455-56. However, a due process claim challenging

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the loss of good-time credits as a result of an adverse prison disciplinary finding is not

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cognizable under § 1983 and must be raised by way of habeas corpus. See Blueford v. Prunty,

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108 F.3d 251, 255 (9th Cir. 1997).

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Plaintiff contends his due process rights have been violated, but his conclusory

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allegations do not set forth how the due process prisoners are entitled to in relation to prison

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disciplinary proceedings has been violated. Plaintiff states he is filing suit against defendants

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Artis and Zamora for “denying to dismiss” an RVR. The allegations against defendants Hayes,

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George and Gomez are just as vague and conclusory; plaintiff alleges he was denied his Miranda

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rights, right to an attorney, and was not provided a copy of the notice sent to the District

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Attorney’s office. He does not, however, explain how the Due Process rights to notice and an

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opportunity to present evidence were violated. As stated above, vague and conclusory

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allegations are insufficient to state a claim. However, these defects are potentially curable, and

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plaintiff will also be provided one more opportunity to file an amended complaint regarding this

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claim. However, as explained above, plaintiff will need to decide whether to proceed in this

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action on his Due Process violation claim or his denial of medical treatment claim. As these are

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unrelated claims, they cannot be brought in the same action.

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III. CONCLUSION

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Plaintiff’s amended complaint contains unrelated claims which must be brought,

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if at all, in separate actions. Plaintiff must choose which claim to proceed on in this action. In

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addition, the claims alleged in the amended complaint remain vague and conclusory, and are
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insufficient to state a claim. Because it appears possible that some of the deficiencies identified

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

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to 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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Plaintiff is referred to the court’s prior order for additional guidance on what is

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required to state a claim. However, he is reminded that to state a claim under 42 U.S.C. § 1983,

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the 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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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, 588 F.2d at 743.

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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 amended 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: January 16, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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