Gibbs v. Carson et al

Filing 16

ORDER SERVING CONGIZABLE CLAIMS. Dispositive Motion due by 7/17/2013. Signed by Judge Thelton E. Henderson on 05/15/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 5/16/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C-13-0860 TEH (PR)

KENNETH B. GIBBS,
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Plaintiff,
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ORDER SERVING COGNIZABLE CLAIMS
v.

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(Doc. # 15)

CARSON, et al.,
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Defendants.
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/
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United States District Court
For the Northern District of California

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Plaintiff Kenneth Gibbs, an inmate at Pelican Bay State

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Prison (PBSP) in Crescent City, California, commenced this action on

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February 26, 2013 by submitting a letter to the Court.

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Subsequently, Plaintiff properly filed a complaint on the Court’s

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civil rights form.

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dismissing the complaint with leave to amend and, on May 15, 2013,

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Plaintiff filed an amended complaint.

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before the Court for initial screening pursuant to 28 U.S.C.

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§ 1915A.

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On April 24, 2013, the Court issued an Order

The amended complaint is now

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Federal courts must engage in a preliminary screening of

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cases in which prisoners seek redress from a governmental entity or

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officer or employee of a governmental entity.

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The court must identify cognizable claims or dismiss the complaint,

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or any portion of the complaint, if the complaint “is frivolous,

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malicious, or fails to state a claim upon which relief may be

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28 U.S.C. § 1915A(a).

granted,” or “seeks monetary relief from a defendant who is immune
from such relief.”

Id. § 1915A(b).

Pleadings filed by pro se

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litigants, however, must be liberally construed.

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627 F.3d 338, 342 (9th Cir. 2010); Balistreri v. Pacifica Police

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

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Hebbe v. Pliler,

To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements:

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Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the

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color of state law.

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(1) that a right secured by the

West v. Atkins, 487 U.S. 42, 48 (1988).

Liability may be imposed on an individual defendant under

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§ 1983 if the plaintiff can show that the defendant proximately

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caused the deprivation of a federally protected right.

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Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of

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Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981).

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another of a constitutional right within the meaning of § 1983 if he

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does an affirmative act, participates in another's affirmative act

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or omits to perform an act which he is legally required to do, that

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causes the deprivation of which the plaintiff complains.

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F.2d at 633.

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focus on the duties and responsibilities of each individual

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defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.

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will not suffice; the plaintiff must instead "set forth specific

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facts as to each individual defendant's" deprivation of protected

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rights.

Leer v.

A person deprives

Leer, 844

The inquiry into causation must be individualized and

Id.

Sweeping conclusory allegations

Id. at 634.

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II

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A

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In the April 25, 2013 Order, the Court noted that

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2

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Plaintiff’s allegations could be sorted into three main categories

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of constitutional violations: (1) deliberate indifference to treat

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his serious medical needs; (2) retaliation for filing grievances and

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lawsuits; and (3) placement into administrative segregation (ad seg)

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upon false charges and without due process.

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that, as written, the complaint did not state claims upon which

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relief could be granted and indicated how Plaintiff could remedy the

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deficiencies.

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were improperly joined and instructed Plaintiff to file, in an

The Court explained

The Court also noted that the three types of claims

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amended complaint, the claims he wished to proceed with in this case

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and, if he wished, to file a new complaint containing the unrelated

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claims.

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categories of violations.

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contains over 20 claims and names 40 individuals as Defendants.

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the interest of judicial efficiency, the Court will address all

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these claims in this Order.

In his amended complaint, Plaintiff realleges all three

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In all, Plaintiff’s amended complaint
In

B

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Plaintiff attempts to state violations based on deliberate

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indifference to his serious medical needs in claims 1, 2, 4, 8, 9,

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and 15.

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Deliberate indifference to serious medical needs violates

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the Eighth Amendment's proscription against cruel and unusual

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punishment.

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Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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

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Cir. 1997) (en banc).

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involves an examination of two elements: the seriousness of the

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Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v.

A determination of "deliberate indifference"

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prisoner's medical need and the nature of the defendant's response

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to that need.

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Id. at 1059.

A "serious" medical need exists if the failure to treat a

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prisoner's condition could result in further significant injury or

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the "unnecessary and wanton infliction of pain."

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of an injury that a reasonable doctor or patient would find

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important and worthy of comment or treatment; the presence of a

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medical condition that significantly affects an individual's daily

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activities; or the existence of chronic and substantial pain are

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examples of indications that a prisoner has a "serious" need for

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medical treatment.

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Id.

The existence

Id. at 1059-60.

A prison official is deliberately indifferent if he or she

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knows that a prisoner faces a substantial risk of serious harm and

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disregards that risk by failing to take reasonable steps to abate

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it.

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official must not only “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists,” but

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he “must also draw the inference.”

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have been aware of the risk, but was not, then the official has not

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violated the Eighth Amendment, no matter how severe the risk.

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Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).

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difference of opinion between a prisoner-patient and prison medical

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authorities regarding treatment does not give rise to a § 1983

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claim.”

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claim of medical malpractice or negligence is insufficient to make

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out a violation of the Eighth Amendment.

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1051, 1060-61 (9th Cir. 2004); Hallett v. Morgan, 296 F.3d 732, 744

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Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Id.

The prison

If a prison official should

Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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“A

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Toguchi v. Chung, 391 F.3d

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(9th Cir. 2002).

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In claim 1, Plaintiff claims that Dr. Evans “neglected to

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transfer Plaintiff to a hospital when Plaintiff was infected with an

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incurable and debilitating disease.”

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he told Dr. Evans that he was passing blood through his rectum and

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requested treatment for his stomach, Dr. Evans scheduled Plaintiff

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for a colonoscopy to check for prostate cancer.

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showed that Plaintiff was infected with herpes.

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Plaintiff alleges that, after

The colonoscopy

These allegations do not show that Dr. Evans was

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deliberately indifferent to Plaintiff’s medical needs.

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contrary, they show that Dr. Evans was responsive to Plaintiff’s

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medical needs by immediately scheduling him for a colonoscopy to

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check for suspected prostrate cancer based on Plaintiff’s reported

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symptoms.

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On the

Therefore, this claim against Dr. Evans is dismissed.
In claim 2, Plaintiff claims that Dr. Feimer misdiagnosed

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his herpes as food allergies and ulcers.

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amount to neglect, but does not constitute deliberate indifference

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to a serious medical need.

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is dismissed.

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A misdiagnosis might

Therefore, this claim against Dr. Feimer

In claim 4, Plaintiff alleges that he had an outbreak of

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blisters inside his mouth and requested treatment from Dental

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Assistant Tupman on three occasions and Ms. Tupman refused to treat

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him each time.

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claim of deliberate indifference against Ms. Tupman.

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These allegations, liberally construed, state a

In claims 8 and 9, Plaintiff alleges that he requested

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treatment from Dr. Crinklaw and Dr. Malo-Clines for his herpes and

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that these doctors refused to treat him.

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Liberally construed, these

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allegations state a claim against these Defendants.

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In claim 15, Plaintiff claims that Officer Davis denied

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him medical treatment by placing him in a holding cell for thirteen

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hours and ignoring his complaint that he was experiencing pain in

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his right ankle and needed medical treatment.

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to receive medical treatment for ankle pain for thirteen hours does

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not rise to the level of deliberate indifference to a serious

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medical need.

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dismissed.

Therefore, this claim against Officer Davis is

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Plaintiff’s inability

C
Plaintiff attempts to state First Amendment retaliation
violations in claims 5, 10, 11, 12, 14, 17, 20, and 21.
"Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements:

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that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner's protected conduct, and that such

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action (4) chilled the inmate's exercise of his First Amendment

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rights, and (5) the action did not reasonably advance a legitimate

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correctional goal."

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Cir. 2005) (footnote omitted).

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(1) An assertion

Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

In claim 5, Plaintiff alleges that, during a search of his

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cell, Officer Clemons found on Plaintiff’s bunk a piece of paper,

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tightly rolled up with a piece of paper clip attached.

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explained that he was using it as a medical device for his herpes.

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Nurse Carson also told Lt. Diggle that Plaintiff was using the paper

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clip as a medical device.

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in ad seg for possessing the paper clip.

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Plaintiff

Nevertheless, Lt. Diggle placed Plaintiff

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Plaintiff alleges that Lt.

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Diggle did this in retaliation for Plaintiff’s filing grievances

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against other officers for labeling him as a snitch.

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Liberally construed, these allegations state a claim

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against Lt. Diggle.

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Officer Clemons was involved in the decision to place Plaintiff in

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ad seg, the allegations fail to state a claim against Officer

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Clemons and the claim against him is dismissed.

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However, because Plaintiff does not allege that

In claim 10, Plaintiff alleges that “prison officials”
manipulated psychologists Drs. Arcuri and Butter to raise

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Plaintiff’s level of care to “EOP” in retaliation for filing

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grievances against prison officials and medical officers.

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does not indicate which prison officials manipulated these

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psychologists nor does he allege that the Defendant psychologists

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raised his level of care to retaliate against him.

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allegations do not state a claim and this claim is dismissed against

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Drs. Arcuri and Butter.

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Plaintiff

Therefore, these

In claim 11, Plaintiff alleges that Officer Pope had

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Plaintiff unassigned from his work positions because Officer Pope

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did not like Plaintiff.

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repeatedly harassed and disrespected him.

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insufficient to state a claim against Officer Pope and the claim

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against him is dismissed.

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Plaintiff also alleges that Officer Pope
These allegations are

In claim 12, Plaintiff alleges that psychologists Drs.

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Huges and Gonzales and Officer Milton raised Plaintiff’s level of

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care to EOP in retaliation for Plaintiff’s reporting that Dr. Huges

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had breached confidentiality.

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claim against any Defendant and it is dismissed.

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These allegations fail to state a

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In claim 14, Plaintiff alleges that Warden Lewis and

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Captain Wood had Officer Clemons transfer Plaintiff from A1

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Segregation Housing Unit to A3 Segregation Housing Unit to get

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Plaintiff to withdraw his grievance against the Classification

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Committee for failing “to bring him to classification within 10 days

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for Plaintiff’s 114 hearing.”

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allegations state a claim against Warden Lewis and Captain Wood.

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Because Officer Clemons is alleged just to have followed orders from

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Lewis and Wood, the allegations fail to state a claim against

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Construed liberally, these

Officer Clemons and the claim against him is dismissed.
In claim 17, Plaintiff alleges that he filed a grievance

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requesting that he be reassigned work group privileges and his

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position as a barber, however, Defendants documented false

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information “to put Plaintiff’s life in danger.”

Plaintiff fails to

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name a Defendant in regard to these allegations.

Therefore, these

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allegations fail to state a claim and are dismissed.

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In claim 20, Plaintiff alleges that Officers Royal and

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Milton and Captain Wood placed Plaintiff on C status in retaliation

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for Plaintiff filing grievances against prison officials.

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construed, this states a claim against these Defendants.

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Liberally

In claim 21, Plaintiff states that Officer Turner removed

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the face covers from Plaintiff’s grievances causing Plaintiff to

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miss a court deadline.

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against Officer Turner and the claim is dismissed.

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This allegation fails to state a claim

D

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Plaintiff attempts to state due process violations in

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regard to disciplinary hearings in claims 6, 7, 13, 16, and 22.

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The Due Process Clause of the Fourteenth Amendment of the

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United States Constitution protects individuals against governmental

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deprivations of life, liberty or property without due process of

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law.

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amount to a deprivation of a constitutionally protected liberty

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interest, provided that the liberty interest in question is one of

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"real substance."

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An interest of "real substance" will generally be limited to freedom

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from (1) restraint that imposes "atypical and significant hardship

Changes in conditions of confinement for a prison inmate may

Sandin v. Conner, 515 U.S. 472, 477-87 (1995).

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on the inmate in relation to the ordinary incidents of prison life,"

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id. at 484, or (2) state action that "will inevitably affect the

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duration of [a] sentence," id. at 487.

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restraint is an “atypical and significant hardship,” courts consider

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whether the challenged condition mirrored the conditions imposed on

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inmates in administrative segregation and protective custody, the

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duration of the condition, the degree of restraint imposed, and

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whether the discipline will invariably affect the duration of the

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prisoner's sentence.

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Cir. 2003); Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).

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In determining whether a

Serrano v. Francis, 345 F.3d 1071, 1078 (9th

In claim 6, Plaintiff alleges that, on November 15, 2008,

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Lt. James heard Plaintiff’s disciplinary hearing and denied

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Plaintiff’s request to call witnesses.

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Plaintiff guilty, which caused Plaintiff to lose 360 days of credit,

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on January 16, 2009, Lt. James’ findings were reversed and Plaintiff

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was granted a new hearing.

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Although Lt. James found

Because the loss of 360 days of credit was reversed,
Plaintiff did not suffer an atypical and significant hardship as a
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result of Lt. James’ actions.

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state a claim and it is dismissed.

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Therefore, these allegations do not

In claim 7, Plaintiff alleges that, at another

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disciplinary hearing, Lt. Anthony did not allow Plaintiff’s witness,

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Nurse Carson, to testify even though Warden Lewis had ordered that

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Carson be allowed to testify.

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Plaintiff guilty and Plaintiff lost 360 days of credit.

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liberally, these allegations state a claim against Lt. Anthony.

As a result, Lt. Anthony found
Construed

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In claim 13, Plaintiff alleges that Warden Lewis, Captain

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Wood and Officer Ryan failed to bring Plaintiff to his disciplinary

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hearing within ten days and Plaintiff was placed in ad seg.

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construed liberally, these allegations do not state a claim and the

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claim is dismissed.

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Even

In claims 16 and 22, Plaintiff alleges that Lt. Diggle

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denied Plaintiff’s request to have Lt. Pepiot appear as a witness at

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his disciplinary hearing.

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and the claims are dismissed.

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These allegations fail to state a claim

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Plaintiff also attempts to state several Eighth Amendment
claims for cruel and unusual punishment.
In its prohibition of "cruel and unusual punishment," the

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Eighth Amendment places restraints on prison officials, who may not,

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for example, use excessive force against prisoners.

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McMillian, 503 U.S. 1, 6-7 (1992).

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prison officials used excessive force, he must show that the

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officials applied force maliciously and sadistically to cause harm.

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Id.; Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013).

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Hudson v.

Where a prisoner claims that

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Although the Eighth Amendment protects against cruel and unusual

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punishment, this does not mean that federal courts can or should

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interfere whenever prisoners are inconvenienced or suffer de minimis

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injuries.

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of force was for the purpose of maintaining or restoring discipline,

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or for the malicious and sadistic purpose of causing harm, a court

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may evaluate the need for application of force, the relationship

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between that need and the amount of force used, the extent of any

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injury inflicted, the threat reasonably perceived by the responsible

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officials, and any efforts made to temper the severity of a forceful

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response.

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(9th Cir. 1993); see also Spain v. Procunier, 600 F.2d 189, 195 (9th

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Cir. 1979) (guards may use force only in proportion to need in each

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situation).

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Hudson, 503 U.S. at 9-10.

In determining whether the use

Id., 503 U.S. at 7; LeMaire v. Maass, 12 F.3d 1444, 1454

In claim 3, Plaintiff alleges that Sgt. Acosta and Officer

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Castellaw searched Plaintiff’s cell and confiscated Plaintiff’s

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legal documents about his case and then leaked this information to

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other inmates in order to label Plaintiff a snitch.

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these Defendants knew that Plaintiff’s co-defendant was an informant

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for the Los Angeles Police Department and that exposing this

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information to other inmates would put Plaintiff’s life in danger.

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Plaintiff infers that his life was in danger by alleging that, soon

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after Defendants confiscated Plaintiff’s legal documents, inmates

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began asking Plaintiff about his case and his co-defendant.

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Furthermore,

Construing these allegations liberally, they state a claim

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for cruel and unusual punishment against Defendants Acosta and

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Castellaw.

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In claim 23, Plaintiff alleges that, after Plaintiff

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allegedly assaulted Officer Evans with his saliva, Officer Evans

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used excessive force against Plaintiff, causing injuries to

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Plaintiff’s face, nose and wrist.

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Construed liberally, these allegations state a claim for
excessive force against Officer Evans.

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F

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In claims 18 and 19, Plaintiff attempts to allege claims
based on other constitutional violations.

In claim 18, Plaintiff

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alleges that “prison officials” confiscated his transcripts and

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distributed them to other inmates in order to get Plaintiff stabbed.

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Plaintiff does not indicate any individual who was responsible for

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this conduct.

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claim 3, discussed above.

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Furthermore, this claim appears to be duplicative of
Therefore, this claim is dismissed.

In claim 19, Plaintiff alleges that he received a rules

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violation report (RVR) from Officer Davis, who placed Plaintiff in a

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holding cell for thirteen hours and denied him medical treatment

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during this time.

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Plaintiff guilty and, as a result, Plaintiff lost 360 days credit

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and, for ninety days, his family visits, telephone calls,

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recreational and entertainment activities were restricted.

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construed liberally, these allegations fail to state a claim and

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this claim is dismissed.

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Even

III

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His RVR was heard by Lt. Pepiot, who found

For the foregoing reasons, the Court hereby orders as
follows:
1.

The following nine claims are found to be cognizable:
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(a) claim 4–-Eighth Amendment deliberate indifference claim against

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Defendant Ms. Tupman; (b) claims 8 and 9-–Eighth Amendment

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deliberate indifference claims against Defendants Drs. Crinklaw and

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Malo-Clines; (c) claim 5–-First Amendment retaliation claim against

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Lt. Diggle; (d) claim 14–-First Amendment retaliation claim against

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Warden Lewis and Captain Wood; (e) claim 20–-First Amendment

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retaliation claim against Captain Wood and Officers Royal and

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Milton; (f) claim 7–-Due Process claim against Lt. Anthony;

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(g) claim 3–-Eighth Amendment excessive force claim against Sgt.

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Acosta and Officer Evans; and (h) claim 23–-Eighth Amendment

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excessive force claim against Officer Evans.

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summons and the United States Marshal shall serve, without

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prepayment of fees, copies of the amended complaint in this matter

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and all attachments thereto and copies of this order on the

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following PBSP employees: Ms. Tubman; Dr. Crinklaw; Dr. Malo-Clines;

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Lt. Diggle; Warden Lewis; Captain Wood; Officer Royal; Officer

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Hilton; Lt. Anthony; Sgt Acosta; and Officer Evans.

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also serve a copy of this order on Plaintiff and mail a courtesy

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copy of this Order and the amended complaint to the California

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Attorney General’s Office.

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2.

The Clerk shall issue

The Clerk shall

All other claims are dismissed for failure to state a

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claim upon which relief may be granted.

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without leave to amend as Plaintiff has already been provided an

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opportunity to amend and it is clear that no amount of amendment

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will cure the deficiencies the Court has identified.

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3.

These claims are dismissed

To expedite the resolution of this case, the Court

orders as follows:
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a.

No later than sixty-three (63) days from the

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date of this order, Defendants shall file a motion for summary

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judgment or other dispositive motion.

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shall be supported by adequate factual documentation and shall

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conform in all respects to Federal Rule of Civil Procedure 56, and

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shall include as exhibits all records and incident reports stemming

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from the events at issue.

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required Ninth Circuit notice to Plaintiff for opposing dispositive

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motions required by Rand v. Rowland, 154 F.3d 952, 962–63 (9th Cir.

A motion for summary judgment

Defendants’ motion shall include the

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1998)(motion for summary judgment) and Wyatt v. Terhune, 315 F.3d

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1108, 1120 n.14 (9th Cir. 2003) (motion to dismiss).

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are of the opinion that this case cannot be resolved by summary

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judgment or other dispositive motion, they shall so inform the Court

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prior to the date their motion is due.

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Court shall be served promptly on Plaintiff.

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b.

If Defendants

All papers filed with the

Plaintiff’s opposition to the dispositive motion

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shall be filed with the Court and served upon Defendants no later

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than thirty-five (35) days after Defendants serve Plaintiff with the

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motion.

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c.

Plaintiff is advised that a motion for summary

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judgment under Rule 56 of the Federal Rules of Civil Procedure will,

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if granted, end your case.

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order to oppose a motion for summary judgment.

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judgment must be granted when there is no genuine issue of material

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fact - that is, if there is no real dispute about any fact that

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would affect the result of your case, the party who asked for

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summary judgment is entitled to judgment as a matter of law, which

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Rule 56 tells you what you must do in

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Generally, summary

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will end your case.

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summary judgment that is properly supported by declarations (or

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other sworn testimony), you cannot simply rely on what your amended

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complaint says.

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declarations, depositions, answers to interrogatories, or

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authenticated documents, as provided in Rule 56(e), that contradict

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the facts shown in Defendants’ declarations and documents and show

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that there is a genuine issue of material fact for trial.

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not submit your own evidence in opposition, summary judgment, if

When a party you are suing makes a motion for

Instead, you must set out specific facts in

If you do

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appropriate, may be entered against you.

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granted, your case will be dismissed and there will be no trial.

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Rand, 154 F.3d at 962–63.

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If summary judgment is

Plaintiff also is advised that a motion to dismiss for

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failure to exhaust administrative remedies under 42 U.S.C.

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§ 1997e(a) will, if granted, end your case, albeit without

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prejudice.

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opposition in order to dispute any “factual record” presented by the

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Defendants in their motion to dismiss.

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n.14.

You must “develop a record” and present it in your

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d.

Wyatt, 315 F.3d at 1120

Defendants shall file a reply brief within

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fourteen (14) days of the date on which Plaintiff serves them with

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the opposition.

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e.

The motion shall be deemed submitted as of the

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date the reply brief is due.

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unless the Court so orders at a later date.

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3.

No hearing will be held on the motion

Discovery may be taken in accordance with the Federal

Rules of Civil Procedure.

No further court order is required before
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the parties may conduct discovery.

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4.

All communications by Plaintiff with the Court must

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be served on Defendants, or Defendants’ counsel once counsel has

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been designated, by mailing a true copy of the document to

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Defendants or Defendants’ counsel.

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5.

It is Plaintiff’s responsibility to prosecute this

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case.

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change of address and must comply with the Court’s orders in a

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timely fashion.

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Plaintiff must keep the Court and all parties informed of any

Failure to do so may result in the dismissal of

this action pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
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DATED

05/15/2013
THELTON E. HENDERSON
United States District Judge

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