(PC) Palomar v. Newsom et al

Filing 14

ORDER signed by Magistrate Judge Sean C. Riordan on 01/6/25 DIRECTING the Clerk's Office to send Plaintiff a blank civil rights complaint form; and DISMISSING the 10 Amended Prisoner Civil Rights Complaint with leave to amend, for failure t o state a claim. Within 60 days from the date of service of this order, plaintiff must file one of the following: An amended complaint curing the deficiencies identified in this order; A notice of election to stand on the complaint as filed; or A notice of voluntary dismissal. (Deputy Clerk KML)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE RUIZ PALOMAR, II,

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Plaintiff,

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No. 2:23-cv-2329-DC-SCR P

v.

ORDER

GAVIN NEWSOM, et al.,

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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 pursuant to Local Rule 302. See 28 U.S.C. §

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636(b)(1). Plaintiff’s first amended complaint is before the court for screening. For the reasons set

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forth below, the complaint fails to state a claim, but plaintiff is granted leave to file a further

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amended complaint within 60 days of the date of this order.

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I.

Screening Requirement

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Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis

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proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a

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claim on which relief may be granted,” or “seeks monetary relief against a defendant who is

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immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27

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(2000). 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 dismiss a claim as frivolous if it is based on an indisputably meritless
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legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.

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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. The facts alleged must “‘give

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

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Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In reviewing a complaint

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under this standard, the court accepts as true the allegations of the complaint and construes the

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pleading in the light most favorable to the plaintiff. See id.; Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974).

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II.

Allegations in the Complaint

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Plaintiff’s first amended complaint asserts four claims. (ECF No. 10.) In his first claim,

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plaintiff alleges he has been repeatedly denied parole because (1) he files appeals, (2) the Board

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of Prison Hearings (“BPH”) claimed certificates were falsified, and (3) BPH raised his evaluation

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to “high violence” due to a traffic ticket he received in 1976. (Id. at 5-6.) BPH ordered plaintiff to

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stop filing appeals. (Id.) Plaintiff filed a habeas petition and sent an extra copy to defendant

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Newsom, along with a parole hearing transcript, and received an “Application for Commutation

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of Sentence” from the Governor’s Office. (Id. at 6.) Plaintiff did not receive his parole hearing

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transcripts back, and thus was unable to appeal and cannot review the transcripts as required by

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BPH. (Id. at 6.)

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In his second claim, plaintiff complains of the dental care and medical care he received

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between 2000 and 2018. (ECF No. 10 at 7-8.) Defendant John Doe #1 responded to plaintiff’s

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appeal claiming it was all normal. (Id. at 7.) Defendant Howen demanded plaintiff allow removal

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of 15 teeth, which plaintiff refused, and Howen refused plaintiff any dental care until plaintiff

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agreed to the massive extractions. (Id. at 7.) Defendant Jane Doe #3 refused to clean plaintiff’s

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teeth until after a damaging and painful “Comprehensive Exam” and then refused to clean

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plaintiff’s teeth unless he would agree to five teeth extractions. (Id. at 8.) Defendant Jane Doe #3
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threatened to falsify plaintiff’s dental records by claiming none of his teeth were any good to

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falsely justify continuing to denying all dental care permanently. (Id.)

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As to his second claim, plaintiff also alleges that, “[d]ue to a type of prison ‘kool-aid’

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served by CDCR” on or about February 15, 2018, plaintiff could not urinate and was taken to the

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emergency clinic. (ECF No. 10 at 8.) Defendant Ross “began torturing plaintiff by repeatedly

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ramming catheter in and out of his penis because it was clogged with blood; all the while verbally

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abusing him, yelling at him to ‘shut up’ because of his screams of extreme pain.” (Id.) Plaintiff’s

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requests to be sent to an outside hospital were denied and defendant Ross eventually sent plaintiff

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back to his cell with the clogged catheter. (Id.) After many months, catheters, painful injections,

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and rounds of antibiotics, plaintiff finally had surgery. (Id.)

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In his second claim, plaintiff also alleges he had longstanding medical chronos for long

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sleeve shirts to prevent the sun from dissolving his skin, and for cotton blankets due to his

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asthma. (ECF No. 10 at 8.) The last three prisons did not honor his chronos. (Id.)

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In his third claim, plaintiff alleges facts spanning between 1981 and 2023. (ECF No. 10 at

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9.) Plaintiff alleges the “Green Wall” gang at CSP-Corcoran disposed of his packages and

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confiscated his documents and property. (ECF No. 10 at 9.) In 2020, defendant Schuyler ordered

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plaintiff to climb stairs four times, contrary to plaintiff’s medical chrono, and each time plaintiff

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explained why he couldn’t, she responded by yelling “I don’t care!!!” (Id.) Defendant Schuyler

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also cancelled plaintiff’s transfer to Valley State Prison, never gave plaintiff his 2023 parole

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hearing transcript, and upon the facility’s closure, had plaintiff sent to the hottest and furthest

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prison in the state. (Id. at 9-10.) Defendant Schuyler called plaintiff’s doctor, defendant Eaton, to

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cancel plaintiff’s aspirin therapy. (Id. at 10.) Defendant Eaton refused to cancel plaintiff’s transfer

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to CVSP where temperatures reach 130 degrees, stating “Heat has nothing to do with heat

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stroke.” (Id.)

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In his fourth claim, plaintiff alleges his administrative appeals and court documents were

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“taken in three stages by CDCR” as it is their policy to blacklist inmates who report crime. (ECF

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No. 10 at 11.) Mail tampering is common. (Id.) Defendant Brown refused to process plaintiff’s

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appeal concerning medical chronos. (Id.) Because plaintiff was never allowed the transcript of his
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2023 BPH Parole Hearing, he could not appeal that denial. “All because he reported BPH

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Misconduct to the Governor in 2019.” (Id.)

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The first amended complaint identifies the following defendants: (1) Governor Gavin

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Newsom; (2) Secretary of the California Department of Corrections and Rehabilitation (“CDCR”)

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Kathleen Allison;1 (3) John Doe #1, dentist at the California Training Facility (“CTF”); (4) Dr.

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Darrell Howen, dentist at CSP-Corcoran; (5) Jane Doe #2, dentist at CTF; (6) Dr. Racheal Ross,

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medical doctor at CSP-Corcoran; (7) John Doe #3, medical doctor at CSP-Corcoran; (8) Ms. T.

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Schuyler, correctional counselor at the California Correctional Institution (“CCI”); (9) Dr.

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Douglas Eaton, medical doctor at CCI; and (10) Brown, health care grievance office

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representative at CSP-Sac.

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III.

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Discussion
The magistrate judge previously assigned to this case screened plaintiff’s original

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complaint, identified several problems, and gave plaintiff applicable legal standards for his

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claims. (See ECF No. 7.) Plaintiff has not remedied the problems identified in his original

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complaint. Plaintiff’s first amended complaint still attempts to join multiple unrelated claims

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against multiple defendants and still includes allegations about conduct that occurred decades

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ago, for which his claims may be barred by the statute of limitations. Setting aside for now any

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issues with improper joinder or timeliness of claims, the first amended complaint must be

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dismissed because it does not state a clam for relief.

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A. 42 U.S.C. § 1983

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Plaintiff brings his claims under 42 U.S.C. § 1983, which provides a remedy for violations

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of “rights, privileges, or immunities secured by the Constitution and [federal] laws” by a person

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or entity acting under the color of state law. To state a claim under 42 U.S.C. § 1983, a plaintiff

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must show (1) the defendant committed the alleged conduct while acting under color of state law;

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and (2) the plaintiff was deprived of a constitutional right as a result of the defendant’s conduct.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). Plaintiff’s first amended

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Defendant Allison is the former Secretary of CDCR.
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complaint fails to adequately allege any defendant’s conduct deprived plaintiff of a constitutional

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right.

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B. Defendants Newsom and Allison

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Plaintiff does not adequately allege defendant Newsom personally participated in any of

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the alleged violations of plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009) (a

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civil rights plaintiff must demonstrate that each named defendant personally participated in the

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deprivation of his rights). The first amended complaint alleges only that plaintiff sent his parole

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hearing transcript to defendant Newsom, after which he did not get it back. This does not suffice

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to state a claim. See Ivey v. Bd. Of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted)

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(“Vague and conclusory allegations of official participation in civil rights violations are not

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sufficient.”).

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Plaintiff also fails to state a claim against defendant Allison, against whom plaintiff makes

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no specific factual allegations. Defendant Allison cannot be held liable for the acts of others

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based merely on holding the position of Secretary of CDCR. See Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989) (supervisory personnel may be held liable if they “participated in or directed

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the violations, or knew of the violations and failed to act to prevent them”); Johnson v. Duffy,

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

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right if he does an act, participates in another’s act, or omits to perform an act he is legally

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required to do that causes the alleged deprivation).

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C. Dental Care, Medical Care, and Order to Climb Stairs

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Plaintiff does not state a claim against any defendant dental or medical professionals. To

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state such a claim under the Eighth Amendment, plaintiff must allege facts showing that he had a

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serious medical need and that a specific defendant knew about that need and acted with deliberate

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indifference to that need. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference

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requires that defendants purposefully ignore or fail to respond to the prisoner’s pain or medical

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need. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by

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WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). Negligence in

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diagnosing or treating a medical condition does not state a claim of medical mistreatment under
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the Eighth Amendment. Estelle, 429 U.S. at 106. “Medical malpractice does not become a

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constitutional violation merely because the victim is a prisoner.” Id.

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The allegations are inadequate to suggest any defendant was deliberately indifferent to

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plaintiff’s serious medical need. Plaintiff alleged only a sentence or two about each defendant’s

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conduct. The allegations are vague, conclusory, and lack the detail and context and required to

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support plausible constitutional violations.

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Plaintiff alleges defendants Howen and Jane Doe #3 refused to clean his teeth unless he

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had extractions and defendant Howen falsely claimed none of plaintiff’s teeth were any good.

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Under plaintiff’s current allegations, he disagreed with the defendants over the appropriate course

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of dental care. Without more, such allegations fail to state a claim under the Eighth Amendment.

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). To allege deliberate indifference, plaintiff

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must allege a defendant’s conduct was medically unacceptable under the circumstances and

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pursued in conscious disregard of an excessive risk to the plaintiff’s health. See Toguchi v.

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Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). A denial of dental care could potentially rise to the

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level of an Eighth Amendment violation. However, plaintiff does not allege, for example, how

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long he was refused dental treatment or teeth cleaning while defendants pressured him to have

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extractions. Plaintiff’s current allegations do not suffice to plausibly suggest the course of

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conduct taken with respect to his dental care was medically unacceptable under the circumstances

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and pursued in conscious disregard of an excessive risk.

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Plaintiff alleges he suffered pain and felt tortured when defendant Ross attempted to

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unclog his catheter. Plaintiff’s allegations are insufficient to demonstrate conduct rising to the

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level of deliberate indifference. Under the current allegations, defendant Ross’s attempts to

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unclog plaintiff’s catheter were unsuccessful and felt torturous to plaintiff. However, using the

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word “torture” does not transform the incident into a constitutional violation. See Twombly, 550

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U.S. at 555-557 (naked assertions, labels and conclusions, and formulaic recitations of the

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elements of a cause of action do not suffice to state a claim). Plaintiff implies his personal

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dissatisfaction with defendant Ross’s conduct but does not allege facts plausibly suggesting the

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conduct was medically unacceptable under the circumstances and pursued in conscious disregard
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of an excessive risk to the plaintiff’s well being. For example, Plaintiff does not allege what

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defendant Ross could have done to address the clog that would have caused him less pain.

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As to the allegation that defendant Eaton allowed plaintiff to be transferred to CVSP,

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plaintiff does not allege any facts demonstrating he has a serious medical need not to be housed at

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a prison where it is very hot. Plaintiff’s opinion that he should not be sent to CVSP where it is hot

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does not support an Eighth Amendment deliberate indifference claim.

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Plaintiff also does not state a claim against defendant Schuyler, who allegedly ordered

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plaintiff to climb stairs four times in contradiction to an undescribed medical chrono. First,

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plaintiff’s claim fails because he does not allege any specific details about the medical chrono

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defendant Schuyler allegedly ignored. Plaintiff’s allegation that it was “potentially deadly” for

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him to climb the stairs is too vague to establish a serious medical need. Plaintiff does not allege

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whether he climbed the stairs or whether he suffered any harm. The claim lacks sufficient factual

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detail and context for the court to infer that defendant Schuyler was, subjectively, deliberately

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indifferent in ordering plaintiff to climb stairs.

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D. Defendant Brown

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Defendant Brown’s alleged refusal to process plaintiff’s appeal does not state a claim.

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Denying a prisoner’s administrative appeal does not generally cause or contribute to the

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underlying violation. See George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). Plaintiff alleges

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only that defendant Brown refused to process his medical chronos appeal and this single

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allegation is insufficient to state any claim. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003) (“inmates lack a separate constitutional entitlement to a specific prison grievance

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procedure”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)).

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IV.

Conclusion and Order

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The first amended complaint fails to state a claim, but plaintiff is granted another

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opportunity to amend. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). This is not

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for the purpose of adding new and unrelated claims. Plaintiff should focus on fixing the

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deficiencies in the claims already presented. If plaintiff chooses to file an amended complaint, it

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should be titled Second Amended Complaint and must be “complete in itself without reference to
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the prior or superseded pleading,” E.D. Cal. Local Rule 220.

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In the alternative, plaintiff may choose to stand on the first amended complaint. See

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Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004). If plaintiff chooses this

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option, the undersigned will issue findings and recommendations to dismiss the first amended

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complaint without further leave to amend, after which plaintiff will have an opportunity to file

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objections, and a district judge will determine whether the first amended complaint states a claim.

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In the further alternative, if plaintiff does not wish to pursue these claims further, plaintiff may

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file a notice of voluntary dismissal, which will terminate this action by operation of law.

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In accordance with the above, IT IS HEREBY ORDERED as follows:

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

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2. The first amended complaint fails to state a claim and is dismissed with leave to

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amend.
3. Within 60 days from the date of service of this order, plaintiff must file one of the
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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4. Failure to respond to this order will result in a recommendation that this action be

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dismissed.

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DATED: January 6, 2025

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