(PC) Ramos v. California Dept of Corrections et al

Filing 9

ORDER signed by Magistrate Judge Deborah Barnes on 9/15/2022 GRANTING plaintiff's 2 motion to proceed ifp and DENYING plaintiff's 5 , 6 motions for appointment of counsel. Plaintiff shall pay the $350.00 filing fee as set f orth by separate order. The Clerk shall send plaintiff a blank civil rights complaint form. Within 30 days, plaintiff must file one of the following: a. An amended complaint curing the deficiencies identified in this order; b. A notice of election to stand on the complaint as filed; or c. A notice of voluntary dismissal. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE RAMOS,

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Plaintiff,

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No. 2:22-cv-0004 DB P

v.

ORDER

CALIFORNIA DEPT. OF
CORRECTIONS, et al.,
Defendants.

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Plaintiff, a state prisoner, proceeds without counsel and seeks relief under 42 U.S.C. §

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1983. This matter was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1). Plaintiff’s complaint filed on December 29, 2021 (ECF No. 1) is before the court for

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screening. For the reasons set forth below, the complaint’s allegations fail to state a claim.

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Plaintiff will be granted leave to file an amended complaint.

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I.

In Forma Pauperis
Plaintiff seeks to proceed in forma pauperis. (ECF No. 2.) Plaintiff’s declaration motion

makes the showing required by 28 U.S.C. § 1915(a). The motion 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 separate 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). The order will direct the appropriate
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agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the

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Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of 20% of

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the preceding month’s income credited to plaintiff’s prison trust account. These payments will be

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forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s

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account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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II.

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Screening Requirement
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 legally

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“frivolous or malicious,” that 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)(1), (2).

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

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

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1984). The court may dismiss a claim as frivolous if it is based on an indisputably meritless legal

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theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical

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inquiry is whether a constitutional claim has an arguable legal and factual basis. See Jackson v.

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Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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

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of the claim that shows the pleader is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007). In order to state a cognizable claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id., 550 U.S. at 555. The facts

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alleged must “‘give the defendant fair notice of what the... claim is and the grounds upon which it

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rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555). In

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reviewing a complaint under this standard, the court accepts as true the allegations of the

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complaint and construes the pleading in the light most favorable to the plaintiff. See id.; Scheuer

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v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

Allegations in the Complaint
COVID-19 was spreading in plaintiff’s housing unit at High Desert State Prison. (ECF

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No. 1 at 3.) On an unspecified date, plaintiff’s cell mate received a “positive notice” in the mail.

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(Id.) Plaintiff filed a request form to find out if he was infected. (Id.) Plaintiff also asked C/O

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Barker for a cell transfer. (Id.) C/O Barker housed plaintiff with a cell mate who was “super

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infected,” coughing, and on a respirator. (Id.) Plaintiff was asymptomatic but scared. (Id.)
The next morning, plaintiff’s new cell mate went to the emergency room. (Id.) C/O

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Mathison removed the cell mate’s door tag but did not gather the cell mate’s property, which

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remained in the cell with plaintiff for seven days. (Id.) Plaintiff tried to hide the property for his

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cell mate but got accused of stealing and was written up. (Id.)
Plaintiff names as defendants the California Department of Corrections (“CDCR”), C/O

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Barker, and C/O Mathison. He seeks monetary damages. (ECF No. 1 at 3.)
IV.

Discussion
A. CDCR – Improper Defendant
The Eleventh Amendment bars a suit against a state or state agency absent a valid waiver

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or abrogation of its sovereign immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54

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(1996); Hans v. Louisiana, 134 U.S. 1, 10 (1890). This immunity applies regardless of whether

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the relief sought is for damages or injunctive relief, Alabama v. Pugh, 438 U.S. 731, 732 (1978),

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and regardless of whether the claim arises under federal or state law, Pennhurst State Sch. &

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Hosp. v. Halderman, 465 U.S. 89, 121 (1984).

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While Congress may validly abrogate a state’s sovereign immunity by statute, the

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Supreme Court has repeatedly emphasized that “§ 1983 was not intended to abrogate a State’s

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Eleventh Amendment immunity.” Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985); accord

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Quern v. Jordan, 440 U.S. 332, 342 (1979). The “State of California has not waived its Eleventh

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Amendment immunity with respect to claims brought under § 1983 in federal court.” Dittman v.

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California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). Thus, CDCR is immune from this suit under

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the Eleventh Amendment. See, e.g., Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 752 (9th Cir.

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2009); cf. Holley v. Cal. Dep’t of Corrs., 599 F.3d 1108, 1111-12 (9th Cir. 2010) (affirming
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dismissal of complaint against CDCR because California had not constructively waived its

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sovereign immunity by accepting federal funds).

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B. Eighth Amendment

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Plaintiff appears to attempt to state a claim under the Eighth Amendment based on a

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housing placement with a very ill cell mate who was COVID-positive. To state a claim under the

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Eighth Amendment, a prisoner must allege that, objectively, he suffered a serious deprivation

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and, subjectively, prison officials acted with deliberate indifference in allowing or causing the

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deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

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Prison officials have a duty “to take reasonable measures to guarantee the safety of

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inmates[.]” Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing

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Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) and Hearns v. Terhune, 413 F.3d 1036, 1040

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(9th Cir. 2005)). To establish a violation of this duty, a prisoner must “show that the officials

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acted with deliberate indifference to threat of serious harm or injury to an inmate.” Id. at 1160

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(citing Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)).

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To prove the objective component, an inmate must establish there was some degree of

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actual or potential injury, and that society considers the risk to be so grave that it violates

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contemporary standards of decency to expose anyone unwillingly to such a risk. Helling v.

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McKinney, 509 U.S. 25, 36 (1993). As to the subjective component, “only the unnecessary and

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wanton infliction of pain implicates the Eighth Amendment” and thus the defendant must have

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acted with a “sufficiently culpable state of mind.” Wilson, 501 U.S. at 297 (internal quotations

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marks, emphasis, and citations omitted). “Whether a prison official had the requisite knowledge

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of a substantial risk is a question of fact subject to demonstration in the usual ways, including

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inference from circumstantial evidence, ... and a factfinder may conclude that a prison official

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knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.

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Here, the risks associated with COVID-19 are objectively, sufficiently serious under the

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Eighth Amendment. Nevertheless, plaintiff’s current allegations fail to state a cognizable claim.

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Plaintiff alleges that while he was asymptomatic, C/O Barker placed him with a COVID-positive

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cell mate who was very sick. These sparse allegations fall short of plausibly suggesting that C/O
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Barker acted with a sufficiently culpable state of mind to an obvious risk to plaintiff. To any

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extent plaintiff became infected with COVID-19, the complaint’s allegations fail to plausibly

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suggest the infection resulted from any action or omission by C/O Barker. To the contrary, the

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complaint implies plaintiff was exposed to COVID-19 and tested positive for COVID-19 prior to

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the challenged housing placement by C/O Barker. Moreover, to the extent plaintiff describes

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himself as asymptomatic, there is no indication he suffered actionable harm in the form of a

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physical injury as a result of the housing placement by C/O Barker. See 42 U.S.C. § 1997e(e) (no

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federal civil action for mental or emotional injury may be brought by a prisoner without a

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showing of physical injury or the commission of a sexual act). Plaintiff will have an opportunity

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to amend.
B. Failure to State a Claim based on Cell Mate’s Property

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Plaintiff appears to attempt to state a claim against C/O Mathison pertaining to the

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property that belonged to plaintiff’s cell mate and which was left behind when that inmate went to

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the hospital. Plaintiff alleges he tried to hide the property but got accused of stealing and was

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written up. These allegations do not state a cognizable claim. The court is unable to identify a

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constitutional guarantee implicated by these allegations. In any amended complaint that plaintiff

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files, plaintiff may attempt to state a claim by pleading additional facts related to this alleged

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deprivation.

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V.

Appointment of Counsel

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Plaintiff has requested appointment of counsel. (ECF No. 5, 6.) The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,
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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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VI.

Conclusion and Order
Plaintiff’s complaint does not state any cognizable claims, but plaintiff is granted leave to

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file an amended complaint. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If

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plaintiff chooses to file an amended complaint, it should be titled “first amended complaint” and

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must state what each named defendant did that led to the deprivation of constitutional rights. See

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Iqbal, 556 U.S. at 676-677.

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Plaintiff is not obligated to file an amended complaint. In the alternative, plaintiff may

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notify the court he wishes to stand on the complaint as it is currently pleaded. See Edwards v. Marin

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Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004). If plaintiff chooses this option, the undersigned

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will issue findings and recommendations to dismiss the complaint without further leave to amend,

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after which plaintiff will be granted an opportunity to file objections, and a district judge will

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determine whether the complaint states a cognizable claim. In the further alternative, if plaintiff

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does not wish to pursue his claims further, plaintiff may file a notice of voluntary dismissal, which

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will terminate this action by operation of law.

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This opportunity to amend is not for the purpose of adding new claims. See George v.

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Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Instead, plaintiff should

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focus efforts on curing deficiencies of the claims already set forth.

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An amended complaint supersedes the prior complaint, see Loux v. Rhay, 375 F.2d 55, 57

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(9th Cir. 1967), and must be “complete in itself without reference to the prior or superseded

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pleading,” E.D. Cal. Local Rule 220. Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in any amended complaint, plaintiff

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must sufficiently allege each claim and the involvement of each defendant.

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VII.

Order

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In accordance with the above, IT IS HEREBY ORDERED:

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

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2. Plaintiff’s motions for appointment of counsel (ECF Nos. 5, 6) are denied.

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3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action as set forth

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by separate order.

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4. The Clerk’s Office shall send plaintiff a blank civil rights complaint form.

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5. Within thirty days from the date of service of this order, plaintiff must file one of the

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following:

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a. An amended complaint curing the deficiencies identified in this order;

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b. A notice of election to stand on the complaint as filed; or

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c. A notice of voluntary dismissal.

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7. Failure to respond to this order will result in a recommendation that this action be

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dismissed for failure to obey a court order and failure to prosecute.

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Dated: September 15, 2022

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DLB7
ramo0004.scrn

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