Zevallos v. Allison et al

Filing 16

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/21/21 ORDERING the Clerk of the Court randomly assign a U.S. District Judge to this action. Also, RECOMMENDING that the second amended complaint be dismissed without leave to amend for failure to state a claim. Assigned and referred to Judge Troy L. Nunley. Objections due within 21 days.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANGEL ZEVALLOS,

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No. 2:18-cv-1111 AC P

Plaintiff,

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v.

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KATHLEEN ALLISON, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS

Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C.

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§ 1983, has filed a second amended complaint. ECF No. 14.
I.

Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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“frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]

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monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

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A claim “is [legally] frivolous where 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). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

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theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,
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640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

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stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

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constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

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Franklin, 745 F.2d at 1227-28 (citations omitted).

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

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

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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“Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

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of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

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680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

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to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

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speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain

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something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

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R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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

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

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misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

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standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

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Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the

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pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

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II.

Second Amended Complaint

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The second amended complaint, which is nearly identical to the original complaint,

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alleges that defendants Allison, Lizarraga, Kentner, Giovacchini, and four Doe defendants

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violated plaintiff’s rights under the First and Eighth Amendments. ECF No. 14. Plaintiff alleges

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that on June 4, 2016, the day of his young son’s funeral, he advised officers that he was feeling

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suicidal. Id. at 7. The officers notified the psychiatric doctor who ordered a suicide prevention

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plan, and plaintiff was put in a suicide cell under supervision a psych tech. Id. at 7-8.

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The following day, plaintiff was seen by defendant Kentner, a psychiatric doctor, who was
“very short, negative, disrespectful, and unprofessional.” Id. at 8. The Doe correctional officer

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escorted plaintiff back to his cell and failed to check plaintiff’s cell upon his return. Id. at 14.

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Upon return to his cell, plaintiff found that three full bottles of cleaning chemicals had been left

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by his toilet and he began drinking them while crying and throwing up. Id. at 8-9. The prisoners

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in the neighboring cells began yelling man down and the Doe sergeant, a psych tech, the Doe

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captain, and other officers appeared at his door with his former cellmate to try and talk him out of

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committing suicide. Id. at 9. Within minutes, plaintiff began feeling weak and confused and

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allowed officers to remove him from his cell. Id. He was given something to make him vomit

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and then transported by ambulance to the hospital where he received further treatment. Id. Upon

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his return to the prison, plaintiff was returned to a suicide cell and attempted to exhaust his

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appeal, but was impeded by defendants Lizarraga and Giovacchini, who screened out his

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complaint and told him that he needed to name all defendants before it could proceed and failed

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to tell him about a form he needed to attach. Id. at 9-10, 15-16.

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III.

Failure to State a Claim
A. Deliberate Indifference
i. Defendants Allison, Lizarraga, Doe Sergeant and Doe Captain
Plaintiff alleges that defendant Allison, the director of the California Department of

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Corrections and Rehabilitation (CDCR); defendant Lizarraga, the warden; and the John Doe

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sergeant and captain violated his Eighth Amendment rights by failing to properly train and

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supervise staff to prevent plaintiff from attempting to commit suicide. ECF No. 14 at 3-5, 11-14.
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Plaintiff’s allegations fail to state a claim against these defendants because there are no

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facts showing that any defendant was aware of the actual presence of chemicals in plaintiff’s cell

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or the possibility that chemicals had been left in plaintiff’s cell. See Farmer v. Brennan, 511 U.S.

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825, 834 (1994) (Eighth Amendment violated where prison official is deliberately indifferent to

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serious risk of harm). Nor are there facts to show that any defendant knew that plaintiff was at

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risk of serious harm while housed in a suicide prevention cell with the preventative measures in

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place.

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To the extent the claims against the supervisory defendants are based on a failure to train

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or supervise, the allegations of the complaint demonstrate that after plaintiff advised staff that he

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was suicidal, a suicide prevention plan was put into place, and plaintiff was placed in a cell with

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precautions to protect against suicide. Further, when it was discovered that plaintiff was

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attempting to commit suicide, he was provided prompt medical care and sent to a hospital for

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additional treatment. These facts do not demonstrate pervasive failures that would have notified

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the supervisory defendants of a need to further train or supervise their subordinates. See Flores v.

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County of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014) (pattern of similar violations

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ordinarily necessary to state a claim).

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ii. Defendant Kentner
Defendant Kentner allegedly violated plaintiff’s Eighth Amendment rights by ignoring

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plaintiff’s pleas for assistance, failing to ensure plaintiff was in a safe environment, and failing to

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prevent plaintiff from harming himself. ECF No. 14 at 12-13. However, as plaintiff was

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previously advised, his dissatisfaction with defendant Kentner’s demeanor does not state a claim

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for deliberate indifference, see Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004)

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(difference of opinion as to treatment does not show deliberate indifference), and though he

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alleges that Kentner failed to adequately treat him, plaintiff does not offer any further explanation

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as to what Kentner failed to do. Defendant’s awareness that plaintiff was suicidal, by itself, is not

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sufficient to state a claim for deliberate indifference simply because plaintiff succeeded in

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harming himself. As with the other defendants, there are no facts showing that Kentner was

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aware of the actual presence of chemicals in plaintiff’s cell or the possibility that chemicals had
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been left in plaintiff’s cell such that her failure to check for or remove the chemicals would

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constitute deliberate indifference. See Farmer, 511 U.S. at 834.

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iii. Doe Correctional Officer

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Plaintiff’s allegations that the Doe correctional officer failed to search his cell upon his

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after his visit with Kentner fail to state a claim for deliberate indifference because there are no

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facts showing that Doe correctional officer was aware of the actual presence of chemicals in

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plaintiff’s cell or the possibility that chemicals had been left in plaintiff’s cell. See Farmer, 511

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U.S. at 834.

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iv. Jane Doe Psych Tech
Plaintiff alleges that the Jane Doe psych tech left her post unattended when it was her

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responsibility to watch plaintiff until he was no longer suicidal. ECF No. 14 at 13. However, as

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with previous versions of the complaint, it is unclear whether defendant left her post while

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plaintiff was seeing Kentner and was therefore unaware that plaintiff had been returned to his cell

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or whether she left plaintiff unattended after he was returned to his cell. There are once again no

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facts regarding how long defendant left her post or that would show that she knew that chemicals

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had been left in plaintiff’s cell. Plaintiff has therefore failed to state a claim for deliberate

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indifference against the Doe psych tech. See Farmer, 511 U.S. at 834.

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B. Retaliation

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Plaintiff also alleges that defendants Giovacchini and Lizarraga retaliated against him by

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refusing to process his appeals, specifically by telling plaintiff that he needed to include the

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names of all defendants and not advising him of a form that he needed to provide at the next

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level. ECF No. 14 at 9-10, 15-16. The allegations fail to state a claim for retaliation because

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there is no indication that defendants failed to process the appeals or tell him about the form

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because of his participation in protected conduct. See Rhodes v. Robinson, 408 F.3d 559, 567-68

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(9th Cir. 2005) (adverse action must be because of plaintiff’s protected conduct). The mere fact

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that plaintiff’s appeals were not processed does not demonstrate retaliatory motive, and based on

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the allegations, plaintiff’s appeals were screened out because they did not meet certain

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requirements. Furthermore, denying a grievance does not rise to the level of an adverse action
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sufficient to support a retaliation claim. See Dicey v. Hanks, No. 2:14-cv-2018 JAM AC P, 2015

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WL 4879627, at *5, 2015 U.S. Dist. LEXIS 107487, at *11-12 (E.D. Cal. Aug. 14, 2015)

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(collecting cases).

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IV.

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No Leave to Amend
Leave to amend should be granted if it appears possible that the defects in the complaint

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could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31

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(9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint

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cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United

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States, 70 F.3d 1103, 1105-06 (9th Cir. 1995).

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The undersigned finds that, as set forth above, the second amended complaint fails to state

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a claim upon which relief may be granted. Plaintiff has already been given two opportunities to

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amend the complaint and advised what kind of information he needed to provide. Given that the

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second amended complaint is nearly identical to the original, it does not appear that further

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amendment would result in a cognizable claim. As a result, leave to amend would be futile and

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the second amended complaint should be dismissed without leave to amend.

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V.

Plain Language Summary of this Order for a Pro Se Litigant

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It is being recommended that your complaint be dismissed without leave to amend

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because you the facts you have provided do not show that any defendant was deliberately

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indifferent to your health or safety or that you were retaliated against.

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In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court
shall randomly assign a United States District Judge to this action.

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IT IS FURTHER RECOMMENDED that the second amended complaint be dismissed
without leave to amend for failure to state a claim.

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

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

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judges Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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DATED: June 21, 2021

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