Bolton v. Cosgrove et al

Filing 11

ORDER OF DISMISSAL WITH LEAVE TO AMEND (Re: ECF No. 1). Signed by Magistrate Judge Laurel Beeler on 4/29/2016. (lsS, COURT STAFF) (Filed on 4/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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GARY ERIC BOLTON,

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Case No. 16-cv-00499-LB

Plaintiff,
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v.

ORDER OF DISMISSAL WITH LEAVE
TO AMEND

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MICHAEL J. COSGROVE, et al.,

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[Re: ECF No. 1 ]

Defendants.
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INTRODUCTION

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Gary E. Bolton, currently a pretrial detainee in custody at Napa State Hospital, filed this pro se

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prisoner‟s civil rights action under 42 U.S.C. § 1983. Mr. Bolton has consented to proceed before

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a magistrate judge. (ECF No. 2.)1 This action is now before the court for review of Mr. Bolton‟s

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complaint. This order dismisses the complaint, and requires Mr. Bolton to file an amended

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complaint.
STATEMENT

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This is one of several cases Mr. Bolton has filed since May 2015. The other cases are: Bolton

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v. Hall, No. 15-cv-3365 LB; Bolton v. Andre Tony Miller, No. 15-cv-3505 LB; Bolton v. Chevron,

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Citations are to the Electronic Case File (“ECF”); pin cites are to the ECF-generated page
numbers at the tops of the documents.

No. 15-cv-4406 LB; Bolton v. Asian Sheriff Officer, No. 15-cv-4517 LB; Bolton v. Asian Sheriff

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Officer, No. 15-cv-4518 LB; Bolton v. Ms. Karen, No. 15-cv-5238 LB; In re. Bolton, No. 15-cv-

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5566 JD, and Bolton v. Wieder, No. 16-1250 LB. Some of the documents Mr. Bolton has filed in

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these actions indicate that he has significant mental health problems. Mr. Bolton currently is being

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held at Napa State Hospital pursuant to California Penal Code § 1370 to regain competency to

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stand trial. (ECF No. 1-1 at 2.) He is a pretrial detainee on a criminal charge that may result in a

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Three Strikes sentence. (ECF No. 3 in Bolton v. Asian Sheriff Officer, No. 15-cv-4517 LB.) Staff

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at Napa State Hospital are treating, or trying to treat, him with antipsychotic medications. (See

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ECF No. 9 in Bolton v Ms. Karen, No. 15-cv-5238 LB). In March or April 2015, he was taken into

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custody pursuant to California Welfare and Institutions Code § 5150, which allows peace officers

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United States District Court
Northern District of California

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and certain other persons to take a person into custody for up to 72 hours for assessment,

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evaluation, and crisis intervention if the person, as a result of a mental health disorder, is gravely

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disabled or is a danger to others or to himself. (See ECF Nos. 8 and 9 in Bolton v. Asian Sheriff

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Officer, No. 15-cv-4517 LB.)

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Not only has he filed numerous actions, Mr. Bolton is an energetic correspondent. He has filed

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dozens of letters in the actions filed within the last year. Many of the letters, like many of the

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pleadings, repeat the same information and are difficult to understand.

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In his complaint in this action, Mr. Bolton alleged that for about five months doctors “forced

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medication and also wrote bad reports.” (ECF No. 1 at 3.) He received three injections from Ms.

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Karen Doyle. (Id.) “The doctor stated they could shot me every day if they wonted. False report

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the doctor stated I told him I had magic. The doctors wrote false reports to get me sent to a long

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term unit and force me medication. I was also set up and staff used other patients to watch me and

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also tried to give me a battery charge. Also these doctors tried to cover up a attempted murder on

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my life.” (Id. (errors in source).) Mr. Bolton appears to contend that he has a hernia as a result of

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the involuntary medications. (ECF No. 1-1 at 2.) Mr. Bolton wrote on an attachment to his

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complaint: “In my chart I wrote a note stateing I will start takeing the medication. [T]hat is the day

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I found out my mother was sick. My doctors lied to me[;] they said if I take it I could leave soon.”

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(ECF No. 1-1 at 5 (errors in source).) In his attachment, he also complained that his attorney did
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not handle his criminal case properly and said he was going to have Mr. Bolton see a doctor. (Id.at

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5.)

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ANALYSIS

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

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

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The complaint must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a). “Specific facts are not necessary; the statement need only

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United States District Court
Northern District of California

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

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Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations and internal quotation marks omitted).

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Although a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to

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provide the „grounds‟ of his „entitle[ment] to relief‟ requires more than labels and conclusions, and

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a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a

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claim to relief that is plausible on its face.” Id. at 570. Pro se complaints must be liberally

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construed. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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

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

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was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42,

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48 (1988).

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To force antipsychotic drugs on a prisoner or on a detainee awaiting trial is impermissible

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under the federal constitution, “absent a finding of overriding justification and a determination of

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medical appropriateness.” Riggins v. Nevada, 504 U.S. 127, 135 (1992); see Washington v.

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Harper, 494 U.S. 210, 229-30 (1990). In the context of Harper and Riggins, such an invasion of

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the human person can only be justified by a determination by a neutral factfinder that the
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antipsychotic drugs are medically appropriate and that the circumstances justify their application.

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See Kulas v. Valdez, 159 F.3d 453, 455-56 (9th Cir. 1998); id. at 456 (procedural safeguards

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provided for in Harper may not apply in an emergency, but no such emergency was shown where

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inmate was merely loud and uncooperative).

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The complaint has several problems. First, Mr. Bolton‟s allegations are insufficient to state a

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claim that he has been forcibly medicated. He alleges that doctors medicated him, but does not

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identify who those doctors were, or when the forced medication took place. Additionally, Mr.

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Bolton‟s statement that he wrote a note in his chart stating that he would start taking the

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medication suggests an agreement to be medicated rather than forcible medication. If Mr. Bolton
wants to try to state a claim that he was forcibly medicated, he needs to identify the particular

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United States District Court
Northern District of California

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doctors who caused him to be forcibly medicated and the dates on which he was forcibly

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medicated in his amended complaint. If Mr. Bolton means only that the doctors were trying to

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medicate him, but have not been able to do so, he should allege that clearly in his amended

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complaint.

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Second, the allegation that Karen Doyle gave him three injections appears to duplicate the

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claim Mr. Bolton is pursuing in Bolton v. Ms. Karen, Case No. 15-cv-5328 LB, in which he

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alleged that Ms. Karen improperly gave him three injections on October 18, 2015. He cannot

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pursue the same claim in two different actions. Mr. Bolton should not repeat that same claim

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against Karen Doyle in his amended complaint in this action.

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Third, many of Mr. Bolton‟s allegations are about things that simply don‟t amount to

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constitutional violations. Allegations of verbal harassment or even threats -- such as comments by

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doctors and staff that they could give him injections every day if they wanted or that he would be

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there a long time -- do not state a cognizable claim under § 1983 because “mere words, without

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more, do not invade a federally protected right.” Burton v. Livingston, 791 F.2d 97, 99 (8th Cir.

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1986); see also Gautt v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not amount to

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constitutional wrong, nor do allegations that naked threat was for purpose of denying access to

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courts compel contrary result). And allegations about things that almost happened -- e.g., the

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doctors allegedly using other patients to watch him and trying to set him up for something bad to
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happen to “give him a battery charge” -- do not state a claim upon which relief may be granted if

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nothing occurred that amounted to a constitutional violation.

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Fourth, the action cannot proceed against Napa State Hospital. The Eleventh Amendment to

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the U.S. Constitution bars from the federal courts suits against a state by its own citizens, citizens

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of another state, or citizens or subjects of any foreign state. Atascadero State Hosp. v. Scanlon,

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473 U.S. 234, 237-38 (1985). Eleventh Amendment immunity also extends to suits against a state

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agency. See Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (California

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Department of Corrections and California Board of Prison Terms entitled to Eleventh Amendment

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immunity); see also Allison v. Cal. Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969) (California
Adult Authority and San Quentin State Prison not persons within meaning of Civil Rights Act).

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Northern District of California

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Napa State Hospital is dismissed from this action because it is an agency of the State of California

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and has Eleventh Amendment immunity against the suit.

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Fifth, the Younger abstention doctrine generally requires the federal courts not to adjudicate

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claims for declaratory or injunctive relief that would require the federal court to intrude into

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pending state court proceedings. That sort of interference appears to be what Mr. Bolton seeks

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with his assertions that his attorney is not doing a good job in the criminal case and that Mr.

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Bolton is being guided toward a guilty plea or plea of not-guilty-by-reason-of-insanity. Under

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principles of comity and federalism, a federal court should not interfere with ongoing state

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criminal proceedings by granting injunctive or declaratory relief absent extraordinary

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circumstances. See Younger v. Harris, 401 U.S. 37, 43-54 (1971). The rationale of Younger

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applies throughout the state criminal proceedings, requiring that state appellate review of a state

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court judgment be exhausted before federal court intervention is permitted. See Dubinka v. Judges

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of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). Requests for declaratory relief that would

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interfere with ongoing state criminal proceedings are subject to the same restrictions that govern

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requests for injunctive relief. See Samuels v. Mackell, 401 U.S. 66, 71–74 (1971); Perez v.

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Ledesma, 401 U.S. 82, 86 n. 2 (1971). Younger requires that federal courts refrain from enjoining

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or otherwise interfering with ongoing state criminal proceedings where three conditions are met:

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(1) state judicial proceedings are ongoing; (2) the state proceedings implicate important state
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interests; and (3) the plaintiff has the opportunity to raise his federal constitutional concerns in the

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ongoing proceedings. Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423,

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432 (1982); Dubinka, 23 F.3d at 223. Here, all three prongs of the abstention test are met. The

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state criminal proceedings are ongoing in Alameda County Superior Court, the criminal prosecutor

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involves important state interests, and Mr. Bolton can raise his claims in his state court criminal

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case. See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“the States' interest in administering their

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criminal justice systems free from federal interference is one of the most powerful of the

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considerations that should influence a court considering equitable types of relief”) (citing Younger,

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401 U.S. at 44–45). Mr. Bolton does not make any plausible non-conclusory allegation of
irreparable harm, bad faith, harassment, or bias of the tribunal that would enable him to avoid

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Northern District of California

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application of the abstention doctrine. See generally Younger, 401 U.S. at 46, 53–54 (cost, anxiety

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and inconvenience of criminal defense is not the kind of special circumstance or irreparable harm

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that would justify federal intervention).

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In his amended complaint, Mr. Bolton must be careful to allege facts showing the basis for

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liability for each defendant. He should not refer to them as a group (e.g., "the defendants"); rather,

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he should identify each involved defendant by name and link each of them to his claim by

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explaining what each involved defendant did or failed to do that caused a violation of his rights.

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See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Mr. Bolton is cautioned that there is no

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respondeat superior liability under Section 1983, i.e. no liability under the theory that one is

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responsible for the actions or omissions of an employee. Liability under Section 1983 arises only

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upon a showing of personal participation by the defendant. Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989). Mr. Bolton is cautioned to take great care to provide a coherent statement of his

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claim(s) in his amended complaint. The court will not read through his many letters to piece

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together a claim for him -- he must set it out in his amended complaint.

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CONCLUSION

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For the foregoing reasons, the complaint is DISMISSED WITH LEAVE TO AMEND.

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The amended complaint must be filed no later than May 31, 2016, and must include the caption

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

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page. Mr. Bolton is cautioned that his amended complaint will supersede existing pleadings and

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must be a complete statement of his claims, except that he does not need to plead again any claim

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the court has dismissed without leave to amend. See Lacey v. Maricopa County, 693 F.3d 896, 928

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(9th Cir. 2012) (en banc). Failure to file the amended complaint by the deadline will result in the

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dismissal of the action for failure to state a claim.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: April 29, 2016
______________________________________
LAUREL BEELER
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GARY ERIC BOLTON,

Case No. 3:16-cv-00499-LB

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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MICHAEL J. COSGROVE, et al.,
Defendants.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on April 29, 2016, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Gary Eric Bolton ID: NA-212065-7
2100 Napa Vallejo Hwy
Napa, CA 94558

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Dated: April 29, 2016

Susan Y. Soong
Clerk, United States District Court

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By:________________________
Lashanda Scott, Deputy Clerk to the
Honorable LAUREL BEELER

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