Edward Tyrone Malone v. August Privratsky

• Court: District Court, C.D. California
• Decided: January 30, 2020
• Docket: 2:19-cv-10796
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ) EDWARD TYRONE MALONE, ) Case No. CV19-10796-JAK (JEM) 12 ) Plaintiff, ) 13 ) MEMORANDUM AND ORDER v. ) DISMISSING COMPLAINT WITH 14 ) LEAVE TO AMEND AUGUST PRIVRATSKY, ) 15 ) Defendant. ) 16 ) 17 On December 20, 2019, Edward Tyrone Malone (“Plaintiff”), a state prisoner 18 proceeding pro se and in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983 19 (“Complaint”). 20 SCREENING STANDARDS 21 In accordance with the provisions of the Prison Litigation Reform Act of 1995, the 22 Court must screen the Complaint before ordering service to determine whether the action: 23 (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) 24 seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. 25 § 1915A(b); 42 U.S.C. § 1997e(c)(1). This screening is governed by the following 26 standards: 27 A complaint may be dismissed as a matter of law for failure to state a claim for two 28 1| alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on 3]| which relief may be granted, allegations of material fact are taken as true and construed in 4] the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of 7| acivil rights complaint may not supply essential elements of the claim that were not initially 8|| pled.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 9 Although a complaint "does not need detailed factual allegations" to survive dismissal, a plaintiff must provide “more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (rejecting the traditional “no set of facts” standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations sufficient to rise above the “speculative level,” Twombly, 550 U.S. at 555, or the merely possible or conceivable. Id. at 557, 570. 16 Simply put, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. A claim has facial plausibility when the 18 | complaint presents enough facts “to draw the reasonable inference that the defendant is 19] liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability 20] requirement, but “it asks for more than a sheer possibility that a defendant has acted 21] unlawfully.” Id. A complaint that pleads facts that are merely consistent with liability stops 22] short of the line between possibility and plausibility. Id. 23 In a pro se civil rights case, the complaint must be construed liberally to afford 24] plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621, 623 (9th Cir. 1988). Unless it is clear that the deficiencies in a complaint cannot be cured, 26 | pro se litigants are generally entitled to a notice of a complaint’s deficiencies and an 27] opportunity to amend prior to the dismissal of an action. Id. at 623. Only if it is absolutely 28 || clear that the deficiencies cannot be cured by amendment should the complaint be

1|| dismissed without leave to amend. Id.; Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007). 3 After careful review and consideration of the Complaint under the relevant standards 4| and for the reasons discussed below, the Court finds that the Complaint must be DISMISSED WITH LEAVE TO AMEND. 6 ALLEGATIONS OF THE COMPLAINT 7 Plaintiff's claims arise out of his confinement at lronwood State Prison in Blythe, California (“ISP”). He has sued August Privratsky, a physical therapist at ISP, in his 9] individual and official capacities. (Complaint at 3.)' Plaintiff alleges the following: 10 On May 13, 2019, Plaintiff attended his physical therapy appointment with 11] Defendant. (Id. at 5.) Defendant applied a TENS unit to Plaintiff's right buttocks and hip 12] area. (Id.) Plaintiff informed Defendant “that he felt a painful, tingling sensation and 13] wanted to stop the treatment.” (Id.) Defendant told Plaintiff “that the pain and tingling sensation was expected as part of the process and continued with his treatment without any concern for the . . . pain he was causing [P]laintiff.” (Id.) Plaintiff endured this pain for 8 to 16 || 10 minutes, “all the while complaining and at times smelling his own flesh burning.” (Id. at 7.) The next morning, Plaintiff “awoke to overwhelming sensations of pain at his lower back 18] area where [Defendant] placed the TENS unit.” (Id.) Plaintiff discovered two lesions on the affected areas. (Id.) 20 Based on the foregoing, Plaintiff alleges claims for violation of his Eighth and 21|| Fourteenth Amendment rights. (Id. at 5, 7, 8.) 22 Plaintiff seeks compensatory and punitive damages. (ld. at 6.) 23 | /I/

26 | /// 27 28 ‘ The Court refers to the pages of the Complaint as numbered by the CM/ECF system.

1 DISCUSSION 2/1. PLAINTIFF’S OFFICIAL-CAPACITY CLAIMS AGAINST DEFENDANT ARE 3 BARRED BY THE ELEVENTH AMENDMENT 4 Plaintiff has sued Defendant in his individual and official capacities. (Complaint at 3.) Plaintiffs official capacity claims are barred by the Eleventh Amendment. 6 In Will v. Michigan Department of State Police, 491 U.S. 58, 64-66 (1989), the Supreme Court held that states, state agencies, and state officials sued in their official capacities are not persons subject to civil rights suits under 42 U.S.C. § 1983. The Supreme Court reasoned that a suit against a state official in his or her official capacity is a suit against the official's office, and as such is no different from a suit against the State itself, which would be barred by the Eleventh Amendment. See id.; see also Romano v. 12] Bible, 169 F.3d 1182, 1185 (9th Cir. 1999); Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 13] 1995). “[T]he [E]leventh [AJmendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant's federally protected 15 rights, where the nature of the relief sought is retroactive, i.e., money damages ....” Bair 16] v. Krug, 853 F.2d 672, 675 (9th Cir. 1988). However, the Eleventh Amendment “does not preclude a suit against state officers for prospective relief from an ongoing violation of 18] federal law.” Children's Hospital and Health Ctr. v. Belshe, 188 F.3d 1090, 1095 (9th 19] Cir.1999). 20 To overcome the Eleventh Amendment bar on federal jurisdiction over suits by 21] individuals against a State and its instrumentalities, either the State must have consented to 22|| waive its sovereign immunity or Congress must have abrogated it; moreover, the State's 23 | consent or Congress' intent must be “unequivocally expressed.” See Pennhurst State 24|| School & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). While California has consented 25 || to be sued in its own courts pursuant to the California Tort Claims Act, such consent does not constitute consent to suit in federal court. See BV Engineering v. Univ. of Cal., Los Angeles, 858 F.2d 1394, 1396 (9th Cir. 1988); see also Atascadero State Hosp. v. Scanlon, 28 | 473 U.S. 234, 241 (1985) (holding that Art. Ill, § 5 of the California Constitution did not

constitute a waiver of California's Eleventh Amendment immunity). Furthermore, Congress has not abrogated State sovereign immunity against suits under 42 U.S.C. § 1983. 3 Here, Plaintiff seeks monetary damages against Defendant in his official capacity as an employee at ISP. (Complaint at 3, 6.) Plaintiff's official capacity claims against Defendant are tantamount to claims against the State of California, which are barred by the Eleventh Amendment. If Plaintiff chooses to file an amended complaint, he should not sue Defendant in his official capacity. 8] Il. PLAINTIFF’S DELIBERATE INDIFFERENCE CLAIM 9 Plaintiff alleges a violation of his Eighth Amendment rights based on Defendant’s use of the TENS unit on Plaintiff during physical therapy. (Complaint at 5, 7-8.) 11 The Eighth Amendment's prohibition against cruel and unusual punishments protects 12] prisoners not only from inhumane methods of punishment but also from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994), and Rhodes v. Chapman, 452 U.S. 15 || 337, 347 (1981)) (quotation marks omitted). While conditions of confinement may be, and 16 often are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks 18] omitted). Thus, conditions which are devoid of legitimate penological purpose or contrary to 19] evolving standards of decency that mark the progress of a maturing society violate the 20|| Eighth Amendment. Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730, 737 (2002); Rhodes, 452 U.S. at 346. Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, 23 | medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in 25 | prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). 27 To maintain an Eighth Amendment claim, a prisoner must show that prison officials 28 || were deliberately indifferent to a substantial risk of harm to his health or safety. See, e.g.,

1|| Farmer, 511 U.S. at 847; Thomas, 611 F.3d at 1150-51; Foster v. Runnels, 554 F.3d 807, 2|| 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. 3] Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference standard involves 4| an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, “sufficiently serious... .” Farmer, 511 U.S. at 834. “[RJoutine discomfort inherent in 6] the prison setting” does not rise to the level of a constitutional violation. Johnson, 217 F.3d 7| at 731. Rather, extreme deprivations are required to make out a conditions of confinement 8] claim, and only those deprivations denying the minimal civilized measure of life’s 9] necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9 (1992). The circumstances, 11] nature, and duration of the deprivations are critical in determining whether the conditions complained of are grave enough to form the basis of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. Second, the prison official must “know|[ ] of and disregard[ ] an 14 || excessive risk to inmate health or safety ....” Farmer, 511 U.S. at 837. Thus, a prison 15 || official may be held liable under the Eighth Amendment for denying humane conditions of 16 | confinement only if he knows that inmates face a substantial risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837-45. Mere negligence 18] on the part of the prison official is not sufficient to establish liability, but rather, the official’s conduct must have been wanton. Id. at 835; Frost, 152 F.3d at 1128. 20 Here, Plaintiff alleges that he told Defendant that the TENS unit was causing severe 21] pain. (Complaint at 5.) Defendant acknowledged Plaintiff's complaint but allegedly refused to stop using the TENS unit for several minutes. (Id. at 5, 7.) Plaintiff alleges that he continued to complain about the pain and could smell his own flesh burning at times. (Id. at 24| 7.) Plaintiff further alleges he suffered burns and extreme pain as a result of Defendant’s 25|| treatment. (Id.) 26 Under the screening standards set forth above, Plaintiff's allegations are sufficient to allege a claim for deliberate indifference in violation of the Eighth Amendment at this stage 28 || of the proceedings.

I. PLAINTIFF’S EQUAL PROTECTION CLAIM 2 Plaintiff alleges a violation of the Equal Protection Clause of the Fourteenth 3 || Amendment based on Defendant’s use of the TENS unit during physical therapy. (Complaint at 8-9.) 5 The Equal Protection Clause requires that persons who are similarly situated be 6] treated alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by showing that a defendant intentionally discriminated against a plaintiff based 9] on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of 10 | Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 11] (9th Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were intentionally treated differently without a rational 13] relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 14 | 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 17 “States must treat like cases alike but may treat unlike cases accordingly.” Vacco v. 18] Quill, 521 U.S. 793, 799 (1997) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982), and Tigner 19] v. Texas, 310 U.S. 141, 147 (1940)). The Fourteenth Amendment “guarantees equal laws, not equal results.” McQueary v. Blodgett, 924 F.2d 829, 835 (9th Cir. 1991) (quoting 21|| Personnel Adm'r v. Feeney, 442 U.S. 256, 273 (1979)). Moreover, “a mere demonstration of inequality is not enough ...._ There must be an allegation of invidiousness or illegitimacy in the statutory scheme before a cognizable claim arises.” McQueary, 924 F.2d at 835. 24 Plaintiff alleges, in wholly conclusory fashion, that he was intentionally treated differently than other similarly situated inmates without a rational relationship to a legitimate state purpose. (See Complaint at 8-9.) Plaintiff states no facts to support his conclusory allegations of unequal treatment. Thus, Plaintiff has failed to state an equal protection 28 || claim based on Defendant’s alleged misuse of the TENS unit during physical therapy.

1 It does not appear that Plaintiff could allege facts that would correct these 2 deficiencies in light of the other facts alleged. However, given that Plaintiff has not yet had 3 an opportunity to amend this claim, he may attempt to do so. In order to adequately plead 4 an equal protection claim, he must allege facts that support the elements of such a claim as 5 explained above. 6 ************* 7 For the reasons set forth herein, the Complaint is DISMISSED WITH LEAVE TO 8 AMEND. 9 If Plaintiff desires to pursue this action, he is ORDERED to file a First Amended 10 Complaint within thirty (30) days of the date of this Order, which remedies the deficiencies 11 discussed above. 12 If Plaintiff chooses to file a First Amended Complaint, it should: (1) bear the docket 13 number assigned in this case; (2) be labeled "First Amended Complaint"; (3) be filled out 14 exactly in accordance with the directions on the form; and (4) be complete in and of itself 15 without reference to the previous complaints or any other pleading, attachment or 16 document. The Clerk is also directed to provide Plaintiff with a blank Central District of 17 California civil rights complaint form, which Plaintiff must fill out completely and resubmit. 18 Plaintiff is admonished that, if he fails to file a First Amended Complaint by the 19 deadline set herein, the Court may recommend that this action be dismissed for 20 failure to prosecute and failure to comply with a Court order. 21 22 DATED: January 30, 2020 /s/ John E. McDermott JOHN E. MCDERMOTT 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28