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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 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, 13 vs. 14 15 16 S. RINK, Correctional Lieutenant, et al., Defendants. 17 18 John Alan Johnson (“Plaintiff”), a state prisoner currently incarcerated at the 19 20 California Health Care Facility in Stockton, California, is proceeding pro se in this case 21 pursuant to the Civil Rights Act, 42 U.S.C. § 1983. 22 I. 23 Procedural History On November 5, 2015, the Court granted Plaintiff leave to proceed in forma 24 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), but simultaneously dismissed his 25 Complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to 26 state a claim upon which relief could be granted. See Nov. 5, 2015 Order (ECF No. 7). 27 The Court provided Plaintiff with notice of his Complaint’s pleading deficiencies and 28 /// 1 3:15-cv-1531-GPC-JMA 1 granted him 45 days leave in which to amend. Id. at 5-10. On January 21, 2015, Plaintiff 2 filed his Amended Complaint (ECF No. 11). 3 II. 4 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 5 (“PLRA”) to review complaints filed by all persons proceeding IFP and by those, like 6 Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced 7 for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of 8 parole, probation, pretrial release, or diversionary program,” at the time of filing “as soon 9 as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the 10 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are 11 frivolous, malicious, fail to state a claim, or which seek damages from defendants who 12 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 13 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 14 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 15 A. 16 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious Standard of Review 17 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 18 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 19 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a 20 claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 21 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. 22 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113, 23 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the 24 familiar standard applied in the context of failure to state a claim under Federal Rule of 25 Civil Procedure 12(b)(6)”). 26 Every complaint must contain “a short and plain statement of the claim showing 27 that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations 28 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 2 3:15-cv-1531-GPC-JMA 1 by mere conclusory statements, do not suffice.” Iqbal v. Ashcroft, 556 U.S. 662, 678 2 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there 3 are well-pleaded factual allegations, a court should assume their veracity, and then 4 determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. 5 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 6 specific task that requires the reviewing court to draw on its judicial experience and 7 common sense.” Id. The “mere possibility of misconduct” falls short of meeting this 8 plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th 9 Cir. 2009). 10 While a plaintiff’s factual allegations are taken as true, courts “are not required to 11 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 12 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an 13 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 14 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 15 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 16 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 17 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 18 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in 19 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id. Plaintiff’s Claims 20 B. 21 In his original Complaint, Plaintiff named only one defendant, Daniel Paramo, the 22 Warden of Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California. 23 See Compl., ECF No. 1 at 2. Plaintiff claimed Paramo violated his Eighth Amendment 24 rights while he was incarcerated there from July 9, 2014 through May 12, 2015 by 25 “authorizing” a urinalysis policy under which Plaintiff was required to submit a urine 26 sample or face administrative discipline. Id. at 2-3. Because Plaintiff failed to allege facts 27 sufficient to show that the Warden was personally responsible for violating his 28 constitutional rights, the Court dismissed Plaintiff’s Complaint for failing to state a claim 3 3:15-cv-1531-GPC-JMA 1 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Nov. 5, 2015 Order, ECF No. 7 2 at 5-7. The Court further noted that “even if Plaintiff had alleged facts sufficient to 3 connect Warden Paramo . . . to any injury he may have suffered, he . . . still failed to state 4 a plausible Eighth Amendment claim.” Id. at 7. Plaintiff was granted leave to amend, and 5 specifically advised that the Eighth Amendment required him to plead facts sufficient to 6 show both that his deprivations he suffered were objectively serious and that “the 7 officials involved acted with ‘deliberate indifference’ to [his] health or safety” by 8 requiring him to submit to urinalysis. Id. at 8 (quoting Farmer v. Brennan, 511 U.S. 825, 9 837 (1994)). Plaintiff’s Amended Complaint no longer names Warden Paramo and instead 10 11 names RJD Correctional Lieutenants S. Rink, R. Calvert, F. Garza, B. Kirby, A. 12 Allamby, L. Skelton, K. Spence, D. Arguliez and R. Lawson as Defendants. See Amend. 13 Compl., ECF No. 7 at 1-2, 25, 29. Plaintiff contends these officials violated his right to be 14 free of cruel and unusual punishment by charging him with and disciplining him for 15 repeated CDC 115 Rules Violations for refusing urinalysis as required by CAL. CODE 16 REGS., tit. 15 § 3290(d) while he “was on medication that made it impossible for [him] to 17 provide a urin[e] sample within three hours.” Id. at 3, 4.1 Plaintiff further contends the 18 discipline he faced, including the “loss of evening yard” and his confinement to quarters 19 as a result, id. at 5, 12, 15, 18, 21, violated his right to freedom of association. Id. at 3, 18. 20 C. 21 Plaintiff alleges the disciplinary convictions he suffered pursuant to CAL. CODE 22 Cruel and Unusual Punishment REGS., tit. 15 § 3290(d) between August 3, 2014, and May 22, 2015, violate the Eighth 23 24 25 26 27 28 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). 1 4 3:15-cv-1531-GPC-JMA 1 Amendment’s prohibition of cruel and unusual punishments. See Amend. Compl., ECF 2 No. 11, at 3-5, 10, 12, 15, 18, 21. 3 First, the Court notes that the Ninth Circuit has held that compelled urinalysis 4 testing within the prison setting does not violate either the Fourth or the Fourteenth 5 Amendments. See Thompson v. Souza, 111 F.3d 694, 701-02 (9th Cir. 1997) (finding 6 urinalysis of plaintiff was not harassment or violation of right to privacy even where 7 plaintiff was selected for testing based on his cellmate’s prior drug violations); see also 8 28 C.F.R. § 541.3 (federal regulation revoking conduct credits for an inmate’s refusal to 9 provide a urine sample); see also Floyd v. Uribe, No. EDCV 12-742-CAS OP, 2014 WL 10 11 696450, at *7 (C.D. Cal. Feb. 19, 2014). The Court further notes that the Ninth Circuit has also recently upheld the sua 12 sponte dismissal of a Washington state prisoner’s Eighth Amendment challenge to 13 random urinalysis drug testing pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. See 14 Hinkley v. Warner, 616 F. App’x 255 (9th Cir. 2015). In Hinkley, the Ninth Circuit held 15 that because the plaintiff “failed to allege facts sufficient to show that defendants knew of 16 and disregarded a substantial risk of physical or mental harm when he was selected for 17 random urinalysis drug testing,” his complaint failed to state an Eighth Amendment cruel 18 and unusual punishments claim. Id. (citing Farmer, 511 U.S. at 837). 19 The same is true as to Plaintiff’s Amended Complaint in this case. While he has 20 now named the individual correctional officers who are allegedly responsible for 21 “accusing” and “finding [him] guilty” of “refusing a urinalysis” in violation of CAL. 22 CODE REGS., tit. 15 § 3290(d) on multiple occasions, see ECF No. 11 at 2, 25, 29, he still 23 fails to plead facts to show that they did so with “‘deliberate indifference’ to [his] health 24 or safety.” Hope v. Pelzer, 536 U.S. 730, 738 (2002) (quoting Hudson v. McMillian, 503 25 U.S. 1, 8 (1992). 26 As the Ninth Circuit held in Hinkley, and this Court noted in its November 5, 2015 27 Order, the deliberate indifference standard requires Plaintiff to plead facts sufficient to 28 show that each prison official he seeks to hold liable under the Eighth Amendment 5 3:15-cv-1531-GPC-JMA 1 “kn[e]w[] of and disregard[ed] an excessive risk to [his] health or safety” by demanding 2 he submit to urinalysis. See Hinkley, 616 F. App’x at 255; ECF No. 7 at 8 (quoting 3 Farmer, 511 U.S. at 837). He has failed to do so. 4 While Plaintiff contends he was taking psychotropic medication that impeded his 5 urine flow and that he repeatedly cited his medication as the reason why he was unable to 6 comply with CAL. CODE REGS., tit. 15 § 3290(d), see ECF No. 11 at 4-6, 10, 12, 17, 18, 7 21, 23, 25, he fails to allege that any Defendant consciously disregarded either his mental 8 health status or the potential effects of his medication during his disciplinary proceedings. 9 Plaintiff also fails to allege facts sufficient to show that the “harm” he faced as a result of 10 his disciplinary convictions, i.e., his restricted yard access, limited visitation privileges, 11 or the time he spent confined to quarters, posed a serious threat or “substantial risk” to 12 either his health or his safety. Farmer, 511 U.S. at 837. “[T]here must be a conscious 13 disregard of a serious risk of harm for deliberate indifference to exist.” Toguchi v. Chung, 14 391 F.3d 1051, 1059 (9th Cir. 2004). 15 In fact, the exhibits Plaintiff includes in his Amended Complaint indicate that 16 Defendants continually elected to “mitigate [Plaintiff’s] penalties” based on documented 17 “mental health factors” on January 29, 2015, February 20, 2015, March 5, 2015, March 18 18, 2015, April 11, 2015, and March 29, 2015, see Amend. Compl. (ECF No. 11) at 11, 19 13, 17, 23-24, 27, but nevertheless concluded, after reviewing his mental health records, 20 that “none of the medications [Plaintiff] [wa]s . . . taking cause[d] urine flow or 21 production problems,” id. at 24, and “no medical documentation from [Plaintiff’s] doctor 22 support[ed] his claims. Id. at 27. 23 While Plaintiff does allege that his most recent CDC 115 Rules Violation was 24 “quickly cancelled” after J. Hansson, M.D., a staff psychiatrist at RJD, issued him a CDC 25 128-B “General Chrono” on May 27, 2015, indicating that his medication was “likely to 26 prohibit producing a urine sample within a 3-hour window,” id. at 35, he does not 27 contend that any such order existed before May 27, 2015, or that any of the named 28 Defendants were aware of any such order when they found him guilty of violating CAL. 6 3:15-cv-1531-GPC-JMA 1 CODE REGS., tit. 15 § 3290(d) between August 3, 2014 and May 22, 2015. Id. at 4; see 2 also Farmer, 511 U.S. at 837 (official is deliberately indifferent when he subjectively 3 knows of and disregards “an excessive risk to” the inmate’s health or safety, or the 4 official is “aware of facts from which the inference could be drawn that a substantial risk 5 of serious harm exists, and he . . . [draws that] inference.”); Jeffers v. Gomez, 267 F.3d 6 895, 913 (9th Cir. 2001) (“A prison official is deliberately indifferent to a substantial risk 7 of serious harm to inmates if that official is subjectively aware of the risk and does 8 nothing to prevent the resulting harm.”). 9 Therefore, the Court finds that Plaintiff’s Amended Complaint, like his original 10 pleading, still fails to state a plausible claim for relief under the Eighth Amendment. See 11 Iqbal, 556 U.S. at 678; Hinkley, 616 F. App’x at 255; see also Hurd v. Scribner, No. CIV 12 06CV0412 JAH LSP, 2007 WL 1989688, at *14-15 (S.D. Cal. May 2, 2007) (finding 13 prisoner’s disciplinary conviction for refusing to submit a urine sample in violation of 14 California Code of Regulations, title 15, § 3290(d), which resulted in his being subject to 15 a “90-day credit forfeiture, a 30-day loss of telephone privileges, and a 10-day loss of 16 yard privileges,” insufficient to constitute cruel and unusual punishment); cf., Sheehy v. 17 Palmateer, 68 F. App’x 77, 78-79 (9th Cir. 2003) (finding prison officials entitled to 18 qualified immunity based on claim that they subjected plaintiff to disciplinary sanctions 19 for failing to provide a urine sample in violation of the Eighth Amendment). 20 D. 21 Plaintiff also claims Defendants “took [his] freedom of association” by “dish[ing] Freedom of Association 22 out cruel and unusual punishments,” including the loss of “evening yard,” placing him on 23 “C” status, and confining him to quarters for violating CAL. CODE REGS., tit. 15 24 § 3290(d). See Amend. Compl. (ECF No. 11) at 3, 5, 10, 12, 15, 18. 25 Incarceration by necessity restricts the scope of a prisoner’s associational rights. 26 Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003); Rizzo v. Dawson, 778 F.2d 527, 532 27 (9th Cir. 1985). Therefore, a regulation that impinges on an inmate’s First Amendment 28 rights “is valid if it is reasonably related to legitimate penological interests.” Turner v. 7 3:15-cv-1531-GPC-JMA 1 2 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 3 must plead facts sufficient to show how or why the disciplinary punishments he received 4 for violating CAL. CODE REGS., tit. 15 § 3290(d), i.e., his evening yard and visitations 5 restrictions, as well as the 65 days he alleges to have been “confined-to-quarters” as a 6 result, do not serve any legitimate penological interest. See Turner, 482 U.S. at 89-90; see 7 also E. v. California Dept. of Corr., No. 1:09-CV-01739, 2010 WL 3463880, at *7 (E.D. 8 Cal. Sept. 1, 2010). 9 Here, Plaintiff’s Amended Complaint fails to include any factual content to show 10 that CAL. CODE REGS., § 3290(d) serves no legitimate penological purpose, or more 11 specifically, why Defendants’ refusals to acknowledge claims that his medications 12 prevented compliance served no rational penological goal. Turner, 482 U.S at 89; see 13 also Iqbal, 556 U.S. at 678; Thompson, 111 F.3d at 702 (finding random drug testing 14 reasonably related to legitimate penological interests because “[t]here is no question that 15 ‘use of narcotics is a problem that plagues virtually every penal and detention center in 16 the country.’” (citation omitted). Indeed, even if Plaintiff did allege Defendants’ decision 17 to enforce CAL. CODE REGS., tit. 15 § 3290(d) served no legitimate penological purpose, 18 courts nevertheless “accord substantial deference to the professional judgment of prison 19 administrators, who bear a significant responsibility for defining the legitimate goals of a 20 corrections system and for determining the most appropriate means to accomplish them,” 21 Overton, 539 U.S. at 132, and “[t]he burden . . . is not on the State to prove the validity of 22 [a] prison regulation[] but on the prisoner to disprove it.” Id. (citing Jones v. North 23 Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128 (1977)). 24 Thus, because Plaintiff offers no “factual content that allows the court to draw the 25 reasonable inference” that Defendants charged and ultimately found Plaintiff’s guilty for 26 refusing to submit to urinalysis drug testing pursuant to CAL. CODE REGS., tit. 15 27 § 3290(d) in violation of his First Amendment rights in the absence of any legitimate 28 penological purpose, see Iqbal, 556 U.S. at 678; Turner, 482 U.S at 89; Thompson, 111 8 3:15-cv-1531-GPC-JMA 1 F.3d at 702, the Court finds these claims subject to sua sponte dismissal pursuant to 28 2 U.S.C. § 1915(e)(2) and § 1915A. See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 3 1004. 4 E. 5 Because Plaintiff has already been provided a short and plain statement of his Leave to Amend 6 complaint’s deficiencies, as well as an opportunity to amend his claims to no avail, the 7 Court finds further leave to amend would be futile. See Gonzalez v. Planned Parenthood, 8 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the 9 denial of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 10 1995)). 11 III. Conclusion and Order 12 For the reasons set forth above, the Court: 13 (1) DISMISSES Plaintiff’s Amended Complaint (ECF No. 11) without further 14 leave to amend for failing to state a claim upon which relief can be granted pursuant to 28 15 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); and 16 (2) CERTIFIES that an IFP appeal from this Order of dismissal would not be 17 taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 18 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent 19 appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous). 20 21 IT IS SO ORDERED. Dated: May 11, 2016 22 23 24 25 26 27 28 9 3:15-cv-1531-GPC-JMA

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