Roberson v. Summers et al

Filing 12

ORDER signed by Magistrate Judge Deborah Barnes on 11/26/18 GRANTING 2 Motion to Proceed IFP. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected in accordance with the court's CDC order filed concurrently herewith. Plaintiff's complaint 1 is dismissed with leave to amend for failure to state a claim. Plaintiff is granted 30 days from the date of this order to file an amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE LONNELL ROBERSON,

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No. 2:17-cv-2049 DB P

Plaintiff,
v.

ORDER

P. T. SUMMERS, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff claims defendants negligently failed to give him his medication and

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engaged in racial profiling. Presently before the court is plaintiff’s motion to proceed in forma

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pauperis (ECF No. 2) and his complaint for screening (ECF No. 1). For the reasons set forth

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below the court will dismiss the complaint with leave to amend.

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IN FORMA PAUPERIS

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and
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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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SCREENING

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I.

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The court is required to screen complaints brought by prisoners seeking relief against a

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Legal Standards

governmental entity or an 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 the prisoner has raised claims

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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.
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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

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42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at

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389. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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II.

Allegations in the Amended Complaint
Plaintiff claims events giving rise to the allegations occurred while he was incarcerated at

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the California Medical Facility in Vacaville. (ECF No. 1 at 1.) Plaintiff’s complaint contains two

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separate seemingly unrelated claims against the two named defendants: (1) Psych-Tech Summers

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and (2) MTA Gurrero.

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Plaintiff claims that on April 4, 2017 he asked Summers for his medication three separate

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times. He informed Summers he was hearing voices and feeling suicidal. Plaintiff states he bit a
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hole in his left wrist because he did not receive his medication. Plaintiff identifies this claim as

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one for negligence and retaliation.

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Plaintiff claims that on April 4, 2017, he was telling a story about kings. He alleges

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Gurrero interrupted him and said, “black men aren’t capable of being kings.” Gurrero also told

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plaintiff she was going to tell a white man about plaintiff’s statements. Plaintiff states this

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interaction impacted him psychologically and caused him to fear retaliation.

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III.

Does Plaintiff State a Cognizable Claim?
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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A. Analysis
District courts have federal question jurisdiction over “all civil actions that arise under the

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Constitution, laws, or treaties of the United States.” 28 U.S.C. §1331. “A case ‘arises under’

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federal law either where federal law creates the cause of action or ‘where the vindication of a

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right under state law necessarily turn[s] on some construction of federal law.’” Republic Party of

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Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (modification in original) (citing

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Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). “[T]he presence

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or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which

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provides that federal question jurisdiction exists only when a federal question is presented on the

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face of the plaintiff’s properly pleaded complaint.” Provincial Gov’t of Marinduque v. Placer

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Dome, Inc., 582 F.3d 1083, 1091 (9th Cir. 2009) (quotations and citations omitted).

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Plaintiff claims defendants were negligent, engaged in racial profiling, and retaliated

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against him. However, a violation of state tort law, such as negligence, is not sufficient to state a

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claim for relief under § 1983. To state a claim under §1983, there must be a deprivation of

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federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976). Although the

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court may exercise supplemental jurisdiction over state law claims, plaintiff must first have a

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cognizable claim for relief under federal law. See 28 U.S.C. § 1367. Here, however, plaintiff
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states no cognizable claim for relief under federal law. Thus, the court declines to exercise

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supplemental jurisdiction over his state law claim.

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Additionally, Under Federal Rule of Civil Procedure 20, plaintiff cannot bring unrelated

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claims against different defendants. See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)

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(“Unrelated claims against different defendants belong in different suits.”).

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Here, plaintiff has alleged defendant Summers was negligent for failing to give him his

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medication. However, there is a distinction between common law negligence claims of improper

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medical care from claims predicated on violations of the Eighth Amendment’s prohibition of

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cruel and unusual punishment. In asserting the latter, “[m]ere ‘indifference,’ ‘neligence,’ or

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‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories,

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622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)); see

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also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).
Plaintiff claims he suffered an emotional injury based on defendant Gurrero’s comments.

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However, “[n]o Federal civil action may be brought by a prisoner confined in jail, prison, or other

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correctional facility, for mental and emotional injury suffered while in custody without a prior

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showing of physical injury.” 42 U.S.C. § 1997e(e). The physical injury “need not be significant

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but must be more than de minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) (back

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and leg pain and canker sore de minimis); see also Pierce v. County of Orange, 526 F.3d 1190,

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1224 (9th Cir. 2008) (bladder infections and bed sores, which pose significant pain and health

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risks to paraplegics such as the plaintiff, were not de minimis). The physical injury requirement

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applies only to claims for mental or emotional injuries and does not bar claims for compensatory,

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nominal, or punitive injury. Oliver, 289 F.3d at 630. Plaintiff does not allege any physical injury

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in his claim against defendant Gurrero.

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Further, mere verbal harassment or abuse does not violate the Constitution, and, thus, does

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not give rise to a claim for relief under § 1983. Olarzewski v. Ruggiero, 830 F.2d 136, 139 (9th

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Cir. 1987). Accordingly, he may not bring a claim for the emotional injury he suffered based on

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Gurrero’s comments.

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Plaintiff’s complaint will be dismissed with leave to amend because the complaint does

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not identify a right secured by the constitution or federal law that was violated by defendants.

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Plaintiff may be attempting to state claims for deliberate indifference to his serious medical

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needs, violation of his right to equal protection, and his right to be free from retaliation for

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exercising his First Amendment rights. Accordingly, the court will set forth the standards for

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stating claims under those provisions below to assist plaintiff in amending the complaint.

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B. Legal Standards under the Eighth Amendment

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The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

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Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual

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punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986);

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Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

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Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy

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and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited

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by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319.
If a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner

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must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference

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to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has

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two elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s

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response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on

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other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

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A medical need is serious “if the failure to treat the prisoner’s condition could result in

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further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974

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F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include

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“the presence of a medical condition that significantly affects an individual’s daily activities.” Id.

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at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the

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objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S.

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825, 834 (1994).

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If a prisoner establishes the existence of a serious medical need, he must then show that

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prisoner officials responded to the serious medical need with deliberate indifference. See Id. In

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general, deliberate indifference may be shown when prison officials deny, delay, or intentionally

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interfere with medical treatment, or may be shown by the way in which prison officials provide

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

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Before it can be said that a prisoner’s civil rights have been abridged with regard to

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medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’

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‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also

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Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in

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diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth

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Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of

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mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for

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the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 (quoting Whitley, 475 U.S. at 319).

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Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.

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at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a

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plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th

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Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059;

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Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198,

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200 (9th Cir. 1989); Shapley v. Nevada Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.

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1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would

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provide additional support for the inmate’s claim that the defendant was deliberately indifferent to

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his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Finally, mere differences of opinion between a prisoner and prison medical staff or

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between medical professionals as to the proper course of treatment for a medical condition do not

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give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330,

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332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662

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F.2d 1337, 1344 (9th Cir. 1981).
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C. Legal Standards under the Equal Protection Clause

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The Equal Protection Clause requires persons who are similarly situated to be treated

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alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Shakur v.

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Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by

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showing prison officials intentionally discriminated against a plaintiff based on his membership

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in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690,

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702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of

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L.A., 250 F.3d 668, 686 (9th Cir. 2001), or similarly situated individuals were intentionally

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treated differently without a rational relationship to a legitimate state purpose, Engquist v. Or.

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Dep’t of Agric., 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562,

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564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008).
“Racial profiling can constitute a deprivation of a citizen’s right to equal protection under

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the law.” James v. City of Seattle, No. C10-1612JLR, 2011 WL 6150567, at *13 (W.D. Wash.

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Dec. 12, 2011). To state such a claim, “the plaintiff must establish that the defendant’s actions

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had a discriminatory effect and were motivated by a discriminatory purpose. Id.

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D. Legal Standards for Retaliation in Violation of the First Amendment
“Within the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and

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citations omitted).

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IV.

Amending the Complaint
As stated above, the complaint must be dismissed because it fails to state a claim.

However, he will be provided with an opportunity to amend the complaint.
Plaintiff is advised that in an amended complaint he must clearly identify each defendant

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and the action that defendant took that violated his constitutional rights. The court is not required

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to review exhibits to determine what plaintiff’s charging allegations are as to each named
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defendant. If plaintiff wishes to add a claim, he must include it in the body of the complaint. The

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charging allegations must be set forth in the amended complaint so defendants have fair notice of

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the claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in

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support of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See

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Fed. R. Civ. P. 8(a).

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Any amended complaint must show the federal court has jurisdiction, the action is brought

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in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must

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contain a request for particular relief. Plaintiff must identify as a defendant only persons who

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personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

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

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

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he is legally required to do that causes the alleged deprivation).

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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

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R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.

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R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

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occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

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The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema

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N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

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which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

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

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E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded.

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By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and

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has evidentiary support for his allegations, and for violation of this rule the court may impose

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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.
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CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) is granted;

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order

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to the Director of the California Department of Corrections and Rehabilitation filed

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concurrently herewith.

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3. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend for failure to state
a claim.

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4. Plaintiff is granted thirty days from the date of this order to file an amended complaint

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that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice. The amended complaint must bear the

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docket number assigned to this case and must be labeled “First Amended Complaint.”

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5. Failure to comply with this order will result in a recommendation that this action be
dismissed.
Dated: November 26, 2018

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