(PC) Hernandez v. Kibler et al

Filing 16

ORDER signed by Magistrate Judge Jeremy D. Peterson on 9/16/2022 ORDERING within 30 days, plaintiff either advise that he wishes to proceed only with his Eighth Amendment and ADA claims against defendants Spearman, Gray, and Miranda or file an ame nded complaint. If he elects to proceed only on these claims, he must voluntarily dismiss his claims against the other defendants. Failure to comply with this order may result in the dismissal of this action. The Clerk shall send plaintiff a complaint form. (Yin, K)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANDREW JESSE HERNANDEZ, SR., 11 12 13 14 Plaintiff, Case No. 2:21-cv-01629-WBS-JDP (PC) SCREENING ORDER THAT PLAINTIFF: v. (1) PROCEED ONLY WITH HIS EIGHTH AMENDMENT AND ADA CLAIMS AGAINST DEFENDANTS SPEARMAN, GRAY, AND MIRANDA; OR BRIAN KIBLER, et al., Defendants. 15 (2) DELAY SERVING ANY DEFENDANT AND FILE AN AMENDED COMPLAINT 16 17 ECF No. 15 18 THIRTY-DAY DEADLINE 19 20 21 Plaintiff, a state prisoner proceeding without counsel, alleges that defendants Kibler, 22 Spearman, Gray, and Miranda violated his Eighth Amendment rights by discontinuing various 23 medical appliances that had previously been prescribed for his disability. ECF No. 15 at 4. He 24 also alleges that the discontinuation of these devices violated his equal protection rights. Id. at 7- 25 8. Plaintiff’s Eighth Amendment and Americans with Disabilities Act (“ADA”) claims against 26 defendants Spearman, Gray, and Miranda are viable. He must choose whether to proceed only 27 with those claims or delay serving any defendant and file another amended complaint. 28 1 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 2 1 II. Analysis 2 Plaintiff alleges that in 2019 he was transferred from the California Medical Facility 3 (“CMF”) to High Desert State Prison (“HDSP”), where defendant Spearman was warden. ECF 4 No. 15 at 3. While at CMF he had been prescribed various medical devices for his disabilities, 5 including a C-PAP machine, a wheelchair backpack to carry incontinence supplies, a TENS unit, 6 and a hearing device. Id. at 3-4. Plaintiff claims that, upon arrival at HDSP, defendant Spearman 7 ordered medical staff, including defendants Gray and Miranda, to confiscate these items. Id. at 3. 8 They obliged, and plaintiff alleges that these confiscations caused him increased pain and 9 worsened his disabilities. Id. at 4. These allegations are sufficient, for screening purposes, to 10 state viable Eighth Amendment and ADA claims against defendants Spearman, Gray, and 11 Miranda. 12 Plaintiff has failed, however, to state a viable claim against defendant Kibler. He alleges 13 that this defendant was warden of HDSP from 2021 to 2022 and that he supported Spearman’s 14 order to confiscate plaintiff’s medical devices. See, e.g., id. at 3 (“By defendants Spearman and 15 Kibler I was deliberately deprived of my medical D.M.E’s . . . .”). Unlike the allegations against 16 Spearman, which offer both a timeframe and an alleged justification for the confiscation, plaintiff 17 never describes the nature of Kibler’s actions. Merely mentioning this defendant’s name 18 alongside the other defendants is insufficient to state a claim against him. 19 I also find that plaintiff’s equal protection claim is non-cognizable. He alleges that the 20 confiscation of his medical devices denied him equal protection under the law. Id. at 7. The 21 disabled, however, are not a protected class under the Fourteenth Amendment. Gamble v. 22 Escondido, 104 F.3d 300, 307 (9th Cir. 1996). 23 Plaintiff may either proceed only with his Eighth Amendment and ADA claims against 24 defendants Spearman, Gray, and Miranda, or he may delay serving any defendant and file an 25 amended complaint. If plaintiff decides to file an amended complaint, the amended complaint 26 will supersede the current complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th 27 Cir. 2012) (en banc). This means that the amended complaint will need to be complete on its face 28 without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended 3 1 complaint is filed, the current complaint no longer serves any function. Therefore, in an amended 2 complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 3 defendant’s involvement in sufficient detail. The amended complaint should be titled “Second 4 Amended Complaint” and refer to the appropriate case number. 5 Accordingly, it is ORDERED that: 6 1. Within thirty days from the service of this order, plaintiff either advise that he wishes 7 to proceed only with his Eighth Amendment and ADA claims against defendants Spearman, 8 Gray, and Miranda or file an amended complaint. If he elects to proceed only on these claims, he 9 must voluntarily dismiss his claims against the other defendants. 10 2. Failure to comply with this order may result in the dismissal of this action. 11 3. The Clerk of Court is directed to send plaintiff a complaint form. 12 13 IT IS SO ORDERED. 14 Dated: 15 16 September 16, 2022 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 4

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