Stephen v. Williams et al

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND 3 4 5 6 (Illston, Susan) (Filed on 10/5/2012)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

JIMMIE STEPHEN,

9

Plaintiff,

United States District Court
For the Northern District of California

10
11

No. C 12-3722 SI (pr)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
DR. REYES; et al.,

12

Defendants.
/

13
14

INTRODUCTION

15

Jimmie Stephen, an inmate at the San Quentin State Prison, filed a pro se civil rights

16

action under 42 U.S.C. § 1983. His complaint is now before the court for review under 28

17

U.S.C. § 1915A. His several miscellaneous motions also are before the court for consideration.

18
19
20

DISCUSSION
A.

Review of Complaint

21

A federal court must engage in a preliminary screening of any case in which a prisoner

22

seeks redress from a governmental entity or officer or employee of a governmental entity. See

23

28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss

24

any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted,

25

or seek monetary relief from a defendant who is immune from such relief. See id. at

26

1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police

27

Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

28

1

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

2

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

3

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

4

U.S. 42, 48 (1988).
The complaint contains allegations about a variety of conditions at San Quentin and at

6

other prisons at which plaintiff has been housed. Many of the allegations in the complaint do

7

not make sense.1 Although a reader can discern that plaintiff wants to allege claims about

8

medical care, retaliation, law library access, inter-prison transfer, and a lower bunk, the

9

complaint fails to provide a coherent statement of any of those claims. Plaintiff's writing style

10
United States District Court
For the Northern District of California

5

leaves the writer guessing as to his meaning in many places. Overall, the complaint does not

11

give fair notice of what each defendant is alleged to have done and when he/she did it. The lack

12

of detail prevents the court from determining which claims deserve a response and from whom,

13

and also prevents individual defendants from framing a response to the complaint. Plaintiff

14

must file an amended complaint to correct the following deficiencies.

15

First, the complaint complains of too many different problems with too many different

16

defendants. Even though the details of the claims cannot be understood, the court can see that

17

the complaint has several defendants that may not be properly joined under Federal Rule of Civil

18

Procedure 20(a). Rule 20(a) provides that all persons may be joined in one action as defendants

19

if "any right to relief is asserted against them jointly, severally, or in the alternative with respect

20

to or arising out of the same transaction, occurrence, or series of transactions or occurrences"

21

and if "any question of law or fact common to all defendants will arise in the action." The

22

complaint concerns several different incidents that involve different sets of defendants. For

23

example, plaintiff complains about medical care, a retaliatory transfer and other problems that

24
25
26
27
28

1

For example, the first paragraph in the statement of facts is labeled "Inadequate Medical" and
alleges: "On 11-21-11 Plaintiff was Willfully Transferred' to San Quentin under 'GUISE' of 'New Level
2 Housing' in cells as Plaintiff was on Solano Warden 'Swarthout' First list for Transfer as Retaliation'
for ist Amendment Protected Access to Courts whereas Plaintiff had filed civil rights lawsuit pending
against 4 Doctors in CV-10-1678-KJM-KJN Whereas the Selective Medical Board did state one of the
4 Doctors did violate the "BUSINESS AND PROFESSIONAL CODE" AND REQUEST for AN
INVESTIGATION IS PENDING.'" Docket # 1, p. 4 (errors and random capitalization in source).
2

1

occurred while he was at Solano State Prison; the defendants for those claims do not appear to

2

be the same as for his claims about the medical care events and omissions that occurred at San

3

Quentin State Prison. Claims against defendants at Solano State Prison should be pursued in a

4

separate civil rights action filed in the Eastern District of California. Unless he is able to satisfy

5

the joinder requirement for other defendants, plaintiff should limit his amended complaint in this

6

court to claims against defendants at San Quentin State Prison. It is possible that not even all

7

of those defendants are properly joined, but that cannot be determined at this time.
Second, the complaint does not adequately allege a claim about inadequate medical care.

9

When an inmate alleges that his medical care has been constitutionally inadequate, he must

10
United States District Court
For the Northern District of California

8

allege two things to state a claim: (1) a serious medical need and (2) deliberate indifference to

11

that need by prison officials. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992),

12

overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.

13

1997) (en banc). If plaintiff wants to assert a claim for a failure to provide or honor a lower

14

bunk chrono, he needs to assert an objectively serious need for such a chrono, and needs to

15

satisfy the subjective prong of an Eighth Amendment claim by identifying a defendant who

16

responded with deliberate indifference to such a need. Also, for each instance in which medical

17

treatment was denied or delayed, plaintiff must explain what his medical need was and allege

18

facts showing deliberate indifference to it. See Estelle v. Gamble, 429 U.S. 97, 104 (1976)

19

(deliberate indifference to serious medical needs violates the Eighth Amendment's proscription

20

against cruel and unusual punishment). Plaintiff should (a) describe the medical need, (b)

21

identify the date on which the medical treatment was refused or delayed, (c) identify who

22

refused to provide (or delayed) medical treatment, (d) describe how he alerted that person to his

23

need for medical treatment, and (e) state how the refusal to provide (or delay of) medical

24

treatment affected him.

25

Third, the complaint fails to state a claim for denial of access to the courts. A

26

constitutional right of access to the courts exists, but to establish a claim for any violation of the

27

right of access to the courts, the prisoner must show that there was an inadequacy in the prison's

28

legal access program that caused him an actual injury. See Lewis v. Casey, 518 U.S. 343, 3503

51 (1996). To prove an actual injury, the prisoner must show that the inadequacy hindered him

2

in presenting a non-frivolous claim concerning his conviction or conditions of confinement. See

3

id. at 355. Examples of impermissible hindrances include: a prisoner whose complaint was

4

dismissed for failure to satisfy some technical requirement which, because of deficiencies in the

5

prison's legal assistance facilities, he could not have known about; and a prisoner who had

6

"suffered arguably actionable harm" that he wished to bring to the attention of the court, but was

7

so stymied by the inadequacies of the prison's services that he was unable even to file a

8

complaint. See id. at 351. Plaintiff has not identified any actual injury, as he must to state a

9

claim for a denial of access to the courts based on a denial of assistance, supplies and law library

10
United States District Court
For the Northern District of California

1

access. In his amended complaint, plaintiff must cure this deficiency. He also needs to link

11

defendants to this claim, as discussed later in this order.

12

Fourth, the complaint does not state a claim for retaliation. "Within the prison context,

13

a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that

14

a state actor took some adverse action against an inmate (2) because of (3) that prisoner's

15

protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment

16

rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v.

17

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). If the retaliation took place

18

at San Quentin, plaintiff can attempt to allege facts showing a violation of his right to be free of

19

retaliation. The factual allegations in the amended complaint must show the existence of all of

20

these elements listed in Rhodes.

21

Fifth, the transfer of plaintiff from one prison to another does not violate his right to due

22

process. Prisoners have no constitutional right to incarceration in a particular institution. See

23

Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224 (1976);

24

See, e.g., Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (citing Meachum, 427 U.S. at 225)

25

(intrastate prison transfer does not implicate Due Process Clause), and Olim, 461 U.S. at 244-48

26

(interstate prison transfer does not implicate Due Process Clause). A non-consensual transfer

27

is not per se violative of either due process or equal protection rights, see Johnson v. Moore, 948

28

F.2d 517, 519 (9th Cir. 1991); Stinson v. Nelson, 525 F.2d 728, 730 (9th Cir. 1975). "It is well
4

1

settled that the decision where to house inmates is at the core of prison administrators' expertise."

2

McKune v. Lile, 536 U.S. 24, 39 (2002).

3

Sixth, plaintiff must be certain to link every defendant to every claim on which he seeks

4

to hold him or her liable. In his amended complaint, he should describe what each defendant did

5

(or failed to do) that caused a violation of his constitutional rights so that each proposed

6

defendant has fair notice of his allegedly wrongful conduct. See Taylor v. List, 880 F.2d 1040,

7

1045 (9th Cir. 1989) (liability under § 1983 arises only upon a showing of personal participation

8

by a defendant).

9
United States District Court
For the Northern District of California

10

B.

Miscellaneous Motions

11

Plaintiff filed an "order to show cause for . . . [an] injunction [and] . . . a temporary

12

restraining order" (Docket # 3) in which he asks the court to enjoin defendants to stop violating

13

his constitutional rights. Federal Rule of Civil Procedure 65 sets forth the procedure for issuance

14

of a preliminary injunction or temporary restraining order ("TRO"). Prior to granting a

15

preliminary injunction, notice to the adverse party is required. See Fed. R. Civ. P. 65(a)(1).

16

Therefore, a motion for preliminary injunction cannot be decided until the parties to the action

17

are served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983).2 A TRO may be granted

18

without written or oral notice to the adverse party or that party's attorney only if: (1) it clearly

19

appears from specific facts shown by affidavit or by the verified complaint that immediate and

20

irreparable injury, loss or damage will result to the applicant before the adverse party or the

21
22
2

23
24
25
26
27
28

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter
v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Winter did not, however,
completely reject the validity of the sliding scale approach to preliminary injunctions. Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). Under the “sliding scale”
approach used in the Ninth Circuit – also dubbed the “serious question” test in Alliance for Wild
Rockies -- “the elements of the preliminary injunction test are balanced, so that a stronger
showing of one element may offset a weaker showing of another.” Id. at 1131. Thus, even after
Winter, “serious questions going to the merits and a hardship balance that tips sharply toward
the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter
test are also met.” Id. at 1132 (citations and internal quotation marks omitted).
5

1

party's attorney can be heard in opposition, and (2) the applicant's attorney certifies in writing

2

the efforts, if any, which have been made to give notice and the reasons supporting the claim that

3

notice should not be required. See Fed. R. Civ. P. 65(b). The standard for issuing a TRO is

4

similar to that required for a preliminary injunction. See Los Angeles Unified Sch. Dist. v.

5

United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J., dissenting).

6

Plaintiff has not satisfied the substantive standards for a TRO or a preliminary injunction.3 He

7

has not shown a likelihood of success on the merits, or that he is likely to suffer irreparable

8

harm, or that the balance of equities tips in his favor, or that the public interest favors interim

9

relief here. The motion for a TRO and preliminary injunction therefore is DENIED. (Docket

United States District Court
For the Northern District of California

10

# 3.)

11

Plaintiff also filed two documents entitled "judicial notice emergency motion for good

12

cause" (Docket # 5, # 6) in which he complains that Dr. Denise Reyes, who apparently is his

13

treating physician at San Quentin, is not licensed to practice medicine in California. Plaintiff

14

attached to his motions print-outs from the Medical Board of California website's "license

15

lookup system" purportedly showing that there was no doctor listed by the name of "Denise

16

Reyes." Setting aside for a moment the fact that this court does not oversee licensing of medical

17

doctors in California, a simple internet search using a search engine uncovers the source of the

18

confusion. Had plaintiff searched her name using a search engine instead of simply searching

19

on the Medical Board's license lookup system, he would have found a Denise Alabart Reyes

20

M.D. listed as practicing in San Quentin and San Rafael. A doctor by the name of Denise

21

Alabart Reyes is listed on the Medical Board's "license lookup system." Some women take their

22

spouse's last names when they marry; perhaps Dr. Reyes did. Plaintiff should do more thorough

23

investigations before he sounds the alarm. The motions for good cause are DENIED. (Docket

24

# 5, # 6.)

25

Plaintiff has requested that counsel be appointed to assist him in this action. A district

26
27

3

A preliminary injunction cannot be granted for the separate procedural reason that the
opponent has not been served with process and has not received notice. Although a TRO can
28 be granted without advance notice in very limited circumstances, those circumstances are not
present in this case.
6

1

court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an

2

indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328,

3

1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the merits

4

and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal

5

issues involved. See id. Neither of these factors is dispositive and both must be viewed together

6

before deciding on a request for counsel under § 1915(e)(1). Here, exceptional circumstances

7

requiring the appointment of counsel are not evident. The request for appointment of counsel

8

is DENIED. (Docket # 4.)

9
United States District Court
For the Northern District of California

10

CONCLUSION

11

For the foregoing reasons, the complaint is dismissed with leave to amend. The amended

12

complaint must be filed no later than November 9, 2012, and must include the caption and civil

13

case number used in this order and the words AMENDED COMPLAINT on the first page.

14

Plaintiff is cautioned that his amended complaint must be a complete statement of his claims.

15

See Lacey v. Maricopa County, – F.3d —, 2012 WL 3711591 (9th Cir. Aug. 29, 2012) ("For

16

claims dismissed with prejudice and without leave to amend, we will not require that they be

17

repled in a subsequent amended complaint to preserve them for appeal. But for any claims

18

voluntarily dismissed, we will consider those claims to be waived if not repled.") Failure to file

19

the amended complaint by the deadline will result in the dismissal of the action.

20
21

IT IS SO ORDERED.
Dated: October 5, 2012

_______________________
SUSAN ILLSTON
United States District Judge

22
23
24
25
26
27
28
7