Johnson v. Paramo

Filing 12

ORDER DISMISSING Amended Complaint for Failing to State a Claim. The Court dismisses Plaintiff's Amended Complaint (ECF No. 11 ) without further leave to amend for failing to state a claim upon which relief can be granted; and certifies that an IFP appeal from this Order of dismissal would not be taken "in good faith". Signed by Judge Gonzalo P. Curiel on 5/11/16.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN ALAN JOHNSON,
CDCR #E-11379,

Case No.: 3:15-cv-1531-GPC-JMA
ORDER DISMISSING AMENDED
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT TO
28 U.S.C. § 1915(e)(2)(b)(ii) AND
28 U.S.C. § 1915A(b)(1)

Plaintiff,

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vs.

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S. RINK, Correctional Lieutenant, et al.,
Defendants.

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John Alan Johnson (“Plaintiff”), a state prisoner currently incarcerated at the

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California Health Care Facility in Stockton, California, is proceeding pro se in this case

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pursuant to the Civil Rights Act, 42 U.S.C. § 1983.

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I.

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Procedural History
On November 5, 2015, the Court granted Plaintiff leave to proceed in forma

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pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), but simultaneously dismissed his

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Complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to

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state a claim upon which relief could be granted. See Nov. 5, 2015 Order (ECF No. 7).

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The Court provided Plaintiff with notice of his Complaint’s pleading deficiencies and

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granted him 45 days leave in which to amend. Id. at 5-10. On January 21, 2015, Plaintiff

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filed his Amended Complaint (ECF No. 11).

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II.

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Initial Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)
As Plaintiff knows, the Court is obligated by the Prison Litigation Reform Act

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(“PLRA”) to review complaints filed by all persons proceeding IFP and by those, like

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Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced

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for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of

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parole, probation, pretrial release, or diversionary program,” at the time of filing “as soon

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as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the

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PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are

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frivolous, malicious, fail to state a claim, or which seek damages from defendants who

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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002,

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1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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A.

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“The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious

Standard of Review

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suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920

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n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681

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(7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a

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claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the

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Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.

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Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113,

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1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the

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familiar standard applied in the context of failure to state a claim under Federal Rule of

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Civil Procedure 12(b)(6)”).

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Every complaint must contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported
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by mere conclusory statements, do not suffice.” Iqbal v. Ashcroft, 556 U.S. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there

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are well-pleaded factual allegations, a court should assume their veracity, and then

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determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

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“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

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specific task that requires the reviewing court to draw on its judicial experience and

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common sense.” Id. The “mere possibility of misconduct” falls short of meeting this

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plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th

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Cir. 2009).

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While a plaintiff’s factual allegations are taken as true, courts “are not required to

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indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

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Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an

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obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

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pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

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627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

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(9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

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pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.

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1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in

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civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id.
Plaintiff’s Claims

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B.

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In his original Complaint, Plaintiff named only one defendant, Daniel Paramo, the

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Warden of Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California.

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See Compl., ECF No. 1 at 2. Plaintiff claimed Paramo violated his Eighth Amendment

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rights while he was incarcerated there from July 9, 2014 through May 12, 2015 by

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“authorizing” a urinalysis policy under which Plaintiff was required to submit a urine

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sample or face administrative discipline. Id. at 2-3. Because Plaintiff failed to allege facts

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sufficient to show that the Warden was personally responsible for violating his

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constitutional rights, the Court dismissed Plaintiff’s Complaint for failing to state a claim
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pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Nov. 5, 2015 Order, ECF No. 7

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at 5-7. The Court further noted that “even if Plaintiff had alleged facts sufficient to

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connect Warden Paramo . . . to any injury he may have suffered, he . . . still failed to state

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a plausible Eighth Amendment claim.” Id. at 7. Plaintiff was granted leave to amend, and

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specifically advised that the Eighth Amendment required him to plead facts sufficient to

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show both that his deprivations he suffered were objectively serious and that “the

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officials involved acted with ‘deliberate indifference’ to [his] health or safety” by

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requiring him to submit to urinalysis. Id. at 8 (quoting Farmer v. Brennan, 511 U.S. 825,

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837 (1994)).
Plaintiff’s Amended Complaint no longer names Warden Paramo and instead

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names RJD Correctional Lieutenants S. Rink, R. Calvert, F. Garza, B. Kirby, A.

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Allamby, L. Skelton, K. Spence, D. Arguliez and R. Lawson as Defendants. See Amend.

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Compl., ECF No. 7 at 1-2, 25, 29. Plaintiff contends these officials violated his right to be

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free of cruel and unusual punishment by charging him with and disciplining him for

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repeated CDC 115 Rules Violations for refusing urinalysis as required by CAL. CODE

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REGS., tit. 15 § 3290(d) while he “was on medication that made it impossible for [him] to

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provide a urin[e] sample within three hours.” Id. at 3, 4.1 Plaintiff further contends the

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discipline he faced, including the “loss of evening yard” and his confinement to quarters

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as a result, id. at 5, 12, 15, 18, 21, violated his right to freedom of association. Id. at 3, 18.

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C.

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Plaintiff alleges the disciplinary convictions he suffered pursuant to CAL. CODE

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Cruel and Unusual Punishment

REGS., tit. 15 § 3290(d) between August 3, 2014, and May 22, 2015, violate the Eighth

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Section 3290(d) provides that California inmates “must a provide a urine sample when
ordered to do so . . . for the purpose of testing for the presence of controlled substances or
the use of alcohol.” CAL. CODE REGS. tit. 15, § 3290(d). See Martinez v. Busby, No. EDCV
11-604 VAP FFM, 2013 WL 1818268, at *6 (C.D. Cal. Mar. 7, 2013), report and
recommendation adopted, No. EDCV 11-604 VAP FFM, 2013 WL 1800439 (C.D. Cal.
Apr. 29, 2013).
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Amendment’s prohibition of cruel and unusual punishments. See Amend. Compl., ECF

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No. 11, at 3-5, 10, 12, 15, 18, 21.

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First, the Court notes that the Ninth Circuit has held that compelled urinalysis

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testing within the prison setting does not violate either the Fourth or the Fourteenth

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Amendments. See Thompson v. Souza, 111 F.3d 694, 701-02 (9th Cir. 1997) (finding

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urinalysis of plaintiff was not harassment or violation of right to privacy even where

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plaintiff was selected for testing based on his cellmate’s prior drug violations); see also

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28 C.F.R. § 541.3 (federal regulation revoking conduct credits for an inmate’s refusal to

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provide a urine sample); see also Floyd v. Uribe, No. EDCV 12-742-CAS OP, 2014 WL

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696450, at *7 (C.D. Cal. Feb. 19, 2014).
The Court further notes that the Ninth Circuit has also recently upheld the sua

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sponte dismissal of a Washington state prisoner’s Eighth Amendment challenge to

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random urinalysis drug testing pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. See

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Hinkley v. Warner, 616 F. App’x 255 (9th Cir. 2015). In Hinkley, the Ninth Circuit held

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that because the plaintiff “failed to allege facts sufficient to show that defendants knew of

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and disregarded a substantial risk of physical or mental harm when he was selected for

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random urinalysis drug testing,” his complaint failed to state an Eighth Amendment cruel

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and unusual punishments claim. Id. (citing Farmer, 511 U.S. at 837).

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The same is true as to Plaintiff’s Amended Complaint in this case. While he has

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now named the individual correctional officers who are allegedly responsible for

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“accusing” and “finding [him] guilty” of “refusing a urinalysis” in violation of CAL.

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CODE REGS., tit. 15 § 3290(d) on multiple occasions, see ECF No. 11 at 2, 25, 29, he still

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fails to plead facts to show that they did so with “‘deliberate indifference’ to [his] health

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or safety.” Hope v. Pelzer, 536 U.S. 730, 738 (2002) (quoting Hudson v. McMillian, 503

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U.S. 1, 8 (1992).

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As the Ninth Circuit held in Hinkley, and this Court noted in its November 5, 2015

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Order, the deliberate indifference standard requires Plaintiff to plead facts sufficient to

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show that each prison official he seeks to hold liable under the Eighth Amendment
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“kn[e]w[] of and disregard[ed] an excessive risk to [his] health or safety” by demanding

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he submit to urinalysis. See Hinkley, 616 F. App’x at 255; ECF No. 7 at 8 (quoting

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Farmer, 511 U.S. at 837). He has failed to do so.

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While Plaintiff contends he was taking psychotropic medication that impeded his

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urine flow and that he repeatedly cited his medication as the reason why he was unable to

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comply with CAL. CODE REGS., tit. 15 § 3290(d), see ECF No. 11 at 4-6, 10, 12, 17, 18,

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21, 23, 25, he fails to allege that any Defendant consciously disregarded either his mental

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health status or the potential effects of his medication during his disciplinary proceedings.

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Plaintiff also fails to allege facts sufficient to show that the “harm” he faced as a result of

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his disciplinary convictions, i.e., his restricted yard access, limited visitation privileges,

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or the time he spent confined to quarters, posed a serious threat or “substantial risk” to

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either his health or his safety. Farmer, 511 U.S. at 837. “[T]here must be a conscious

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disregard of a serious risk of harm for deliberate indifference to exist.” Toguchi v. Chung,

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391 F.3d 1051, 1059 (9th Cir. 2004).

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In fact, the exhibits Plaintiff includes in his Amended Complaint indicate that

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Defendants continually elected to “mitigate [Plaintiff’s] penalties” based on documented

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“mental health factors” on January 29, 2015, February 20, 2015, March 5, 2015, March

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18, 2015, April 11, 2015, and March 29, 2015, see Amend. Compl. (ECF No. 11) at 11,

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13, 17, 23-24, 27, but nevertheless concluded, after reviewing his mental health records,

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that “none of the medications [Plaintiff] [wa]s . . . taking cause[d] urine flow or

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production problems,” id. at 24, and “no medical documentation from [Plaintiff’s] doctor

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support[ed] his claims. Id. at 27.

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While Plaintiff does allege that his most recent CDC 115 Rules Violation was

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“quickly cancelled” after J. Hansson, M.D., a staff psychiatrist at RJD, issued him a CDC

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128-B “General Chrono” on May 27, 2015, indicating that his medication was “likely to

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prohibit producing a urine sample within a 3-hour window,” id. at 35, he does not

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contend that any such order existed before May 27, 2015, or that any of the named

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Defendants were aware of any such order when they found him guilty of violating CAL.
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CODE REGS., tit. 15 § 3290(d) between August 3, 2014 and May 22, 2015. Id. at 4; see

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also Farmer, 511 U.S. at 837 (official is deliberately indifferent when he subjectively

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knows of and disregards “an excessive risk to” the inmate’s health or safety, or the

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official is “aware of facts from which the inference could be drawn that a substantial risk

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of serious harm exists, and he . . . [draws that] inference.”); Jeffers v. Gomez, 267 F.3d

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895, 913 (9th Cir. 2001) (“A prison official is deliberately indifferent to a substantial risk

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of serious harm to inmates if that official is subjectively aware of the risk and does

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nothing to prevent the resulting harm.”).

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Therefore, the Court finds that Plaintiff’s Amended Complaint, like his original

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pleading, still fails to state a plausible claim for relief under the Eighth Amendment. See

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Iqbal, 556 U.S. at 678; Hinkley, 616 F. App’x at 255; see also Hurd v. Scribner, No. CIV

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06CV0412 JAH LSP, 2007 WL 1989688, at *14-15 (S.D. Cal. May 2, 2007) (finding

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prisoner’s disciplinary conviction for refusing to submit a urine sample in violation of

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California Code of Regulations, title 15, § 3290(d), which resulted in his being subject to

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a “90-day credit forfeiture, a 30-day loss of telephone privileges, and a 10-day loss of

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yard privileges,” insufficient to constitute cruel and unusual punishment); cf., Sheehy v.

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Palmateer, 68 F. App’x 77, 78-79 (9th Cir. 2003) (finding prison officials entitled to

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qualified immunity based on claim that they subjected plaintiff to disciplinary sanctions

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for failing to provide a urine sample in violation of the Eighth Amendment).

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D.

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Plaintiff also claims Defendants “took [his] freedom of association” by “dish[ing]

Freedom of Association

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out cruel and unusual punishments,” including the loss of “evening yard,” placing him on

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“C” status, and confining him to quarters for violating CAL. CODE REGS., tit. 15

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§ 3290(d). See Amend. Compl. (ECF No. 11) at 3, 5, 10, 12, 15, 18.

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Incarceration by necessity restricts the scope of a prisoner’s associational rights.

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Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003); Rizzo v. Dawson, 778 F.2d 527, 532

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(9th Cir. 1985). Therefore, a regulation that impinges on an inmate’s First Amendment

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rights “is valid if it is reasonably related to legitimate penological interests.” Turner v.
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Safley, 482 U.S. 78, 89 (1987); see also Beard v. Banks, 548 U.S. 521, 526 (2006).
Thus, in order to state a First Amendment freedom of association claim, Plaintiff

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must plead facts sufficient to show how or why the disciplinary punishments he received

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for violating CAL. CODE REGS., tit. 15 § 3290(d), i.e., his evening yard and visitations

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restrictions, as well as the 65 days he alleges to have been “confined-to-quarters” as a

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result, do not serve any legitimate penological interest. See Turner, 482 U.S. at 89-90; see

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also E. v. California Dept. of Corr., No. 1:09-CV-01739, 2010 WL 3463880, at *7 (E.D.

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Cal. Sept. 1, 2010).

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Here, Plaintiff’s Amended Complaint fails to include any factual content to show

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that CAL. CODE REGS., § 3290(d) serves no legitimate penological purpose, or more

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specifically, why Defendants’ refusals to acknowledge claims that his medications

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prevented compliance served no rational penological goal. Turner, 482 U.S at 89; see

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also Iqbal, 556 U.S. at 678; Thompson, 111 F.3d at 702 (finding random drug testing

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reasonably related to legitimate penological interests because “[t]here is no question that

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‘use of narcotics is a problem that plagues virtually every penal and detention center in

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the country.’” (citation omitted). Indeed, even if Plaintiff did allege Defendants’ decision

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to enforce CAL. CODE REGS., tit. 15 § 3290(d) served no legitimate penological purpose,

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courts nevertheless “accord substantial deference to the professional judgment of prison

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administrators, who bear a significant responsibility for defining the legitimate goals of a

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corrections system and for determining the most appropriate means to accomplish them,”

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Overton, 539 U.S. at 132, and “[t]he burden . . . is not on the State to prove the validity of

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[a] prison regulation[] but on the prisoner to disprove it.” Id. (citing Jones v. North

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Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128 (1977)).

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Thus, because Plaintiff offers no “factual content that allows the court to draw the

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reasonable inference” that Defendants charged and ultimately found Plaintiff’s guilty for

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refusing to submit to urinalysis drug testing pursuant to CAL. CODE REGS., tit. 15

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§ 3290(d) in violation of his First Amendment rights in the absence of any legitimate

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penological purpose, see Iqbal, 556 U.S. at 678; Turner, 482 U.S at 89; Thompson, 111
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F.3d at 702, the Court finds these claims subject to sua sponte dismissal pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A. See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at

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1004.

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E.

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Because Plaintiff has already been provided a short and plain statement of his

Leave to Amend

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complaint’s deficiencies, as well as an opportunity to amend his claims to no avail, the

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Court finds further leave to amend would be futile. See Gonzalez v. Planned Parenthood,

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759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the

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denial of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.

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1995)).

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III.

Conclusion and Order

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For the reasons set forth above, the Court:

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(1)

DISMISSES Plaintiff’s Amended Complaint (ECF No. 11) without further

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leave to amend for failing to state a claim upon which relief can be granted pursuant to 28

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U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); and

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(2)

CERTIFIES that an IFP appeal from this Order of dismissal would not be

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taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States,

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369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent

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appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).

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IT IS SO ORDERED.
Dated: May 11, 2016

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