Cadena v. Preston

Filing 8

ORDER REOPENING CASE; ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 10/10/19. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 10/10/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VICTOR CADENA,

United States District Court
Northern District of California

Plaintiff,

Case No. 19-cv-02856-RS (PR)

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v.

ORDER REOPENING ACTION;

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J. PRESTON,

ORDER OF DISMISSAL

Defendant.
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INTRODUCTION

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Plaintiff fails to state any claim for relief in his amended 42 U.S.C. § 1983

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complaint. Accordingly, this federal civil rights action is DISMISSED.
This suit was dismissed because plaintiff failed to file an amended complaint by the

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deadline. He since has filed an amended complaint. Accordingly, the judgment and the

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order of dismissal are VACATED. (Dkt. Nos. 5 and 6.) The Clerk shall reopen this action

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and modify the docket to reflect this fact. The Court now will review the amended

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complaint.
DISCUSSION

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A.

Standard of Review
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal

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conclusions cast in the form of factual allegations if those conclusions cannot reasonably

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be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55

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(9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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essential elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting under the
color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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United States District Court
Northern District of California

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B.

Legal Claims

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1.

Original Complaint

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The original complaint was dismissed (with leave to amend) because it raised

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conclusory contentions. Plaintiff alleged without elaboration that in 2018 J. Preston, a

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prison guard at Pelican Bay State Prison, refused to place him on suicide watch and made

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insulting comments. This was insufficient. First, while prison guards certainly must “take

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reasonable measures to guarantee the safety of the inmates,” Hudson v. Palmer, 468 U.S.

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517, 526-527 (1984), there is no constitutional right for an inmate to be placed on suicide

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watch. Second, plaintiff failed to articulate any reason Preston should have been

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concerned about plaintiff’s personal safety. Merely saying without any factual

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enhancement that he should have been placed on suicide watch is insufficient.

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Plaintiff was directed to provide specific reasons Preston should have been alerted

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to plaintiff’s condition, and the dates, times, and places on which plaintiff exhibited any

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alarming symptoms. He was told that federal pleading standards “demand[] more than an

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unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. He

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was also directed to pay attention to the following. A person deprives another “of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act,
ORDER OF DISMISSAL
CASE NO. 19-cv-02856-RS

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participates in another’s affirmative acts, or omits to perform an act which he is legally

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required to do that causes the deprivation of which [the plaintiff complains].” Leer v.

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Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoting Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978)). The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to

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have caused a constitutional deprivation. Id.

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Plaintiff’s allegations regarding Preston’s comments failed to state a claim for relief

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and were dismissed with prejudice. Neither disrespectful, insulting, and vulgar language,

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nor verbal harassment, are actionable under section 1983. See Freeman v. Arpaio, 125

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F.3d 732, 738 (9th Cir. 1997).

United States District Court
Northern District of California

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2.

First Amended Complaint

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Plaintiff alleges without elaboration that in September 2018 he told Preston he “was

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having suicidal thoughts.” (Am. Compl., Dkt. No. 7 at 3.) There is no factual

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enhancement beyond this statement. According to plaintiff, Preston had to follow state

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protocols and alert mental health professionals for an evaluation. (Id.) Her actions, he

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contends, prevented him from receiving treatment. (Id.) The Court construes this as an

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Eighth Amendment claim.

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A prison official is deliberately indifferent, and thereby violates the Eighth

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Amendment, if he 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 it. Farmer v. Brennan, 511

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U.S. 825, 837 (1994). The prison official must not only “be aware of facts from which the

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inference could be drawn that a substantial risk of serious harm exists,” but “must also

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draw the inference.” Id. Consequently, in order for deliberate indifference to be

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established, there must exist both a purposeful act or failure to act on the part of the

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defendant and harm resulting therefrom. See McGuckin v. Smith, 974 F.2d 1050, 1060

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(9th Cir. 1992).

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ORDER OF DISMISSAL
CASE NO. 19-cv-02856-RS

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Plaintiff’s allegations do not meet these standards. First, plaintiff has not shown

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that any harm resulted from Preston’s actions. Second, he has not shown that his plain

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statement made her “aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists,” or that she did indeed “draw the inference.” Third,

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a failure to follow state protocols does not show that his federal constitutional rights were

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violated. In order to seek redress under § 1983, a plaintiff must assert the violation of a

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federal right, not merely the violation of federal law, see Golden State Transit Corp. v. Los

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Angeles, 493 U.S. 103, 106 (1989), nor simply the deprivation of statutorily provided

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benefits or interests, see Gonzaga University v. Doe, 536 U.S. 273, 283 (2002).
Furthermore, Preston did not prevent plaintiff from seeking mental health treatment. He

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United States District Court
Northern District of California

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was free to file a grievance or to ask for medical help on his own. This suit will be

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dismissed.
CONCLUSION

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This federal civil rights suit is DISMISSED. The Clerk shall enter judgment in

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favor of defendant, and close the file.

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IT IS SO ORDERED.

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Dated: October ___, 2019
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_________________________
RICHARD SEEBORG
United States District Judge

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ORDER OF DISMISSAL
CASE NO. 19-cv-02856-RS

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