Hector Martin Prieto v. John Doe

Opinion

HECTOR MARTIN PRIETO, No. 1:25-cv-00649-SAB (PC) Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT v. JUDGE TO THIS ACTION JOHN DOE, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A Defendant. COGNIZABLE CLAIM FOR RELIEF (ECF No. 13) Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s first amended complaint, filed July 31, 2025. (ECF No. 13.) I. SCREENING REQUIREMENT The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). A 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)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. II. The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of the screening requirement under 28 U.S.C. § 1915. On October 24, 2024, while waiting to be moved to another building at the California Correctional Institution, Plaintiff was asked to provide a stool sample by Defendant registered nurse V. Cay. After using the toilet, Plaintiff placed the stool sample in the kit that was provided by V. Cay. The stool sample had blood in it due to Plaintiff bleeding from his rectum area because of ongoing medical issues. When V. Cay approached Plaintiff’s cell, Plaintiff explained his medical issues, and V. Cay asked for Plaintiff to hand over the stool sample kit. Plaintiff was concerned because the stool sample did not contain his name tag. Plaintiff explained his medical issues to V. Cay and advised him that he had several medical emergencies he had to be transferred to an outside hospital. Plaintiff has complained for several years of many different symptoms which have worsened over time. An investigation revealed that Plaintiff’s food has been tampered with as a form of retaliation. When Plaintiff expressed his concern to V. Cay about his stool sample not having a name tag on it, V. Cay became agitated, unprofessional, and negligent to Plaintiff’s medical needs. Defendant V. Cay simply stated, “Keep it. Then proceeded to walk off.” Health care services and the appeal branch has determined that Defendant Cay’s actions constituted medical negligence. Due to Defendant’s actions, Plaintiff had to request to speak with a supervisor or someone above Defendant V. Cay. Custody had another registered nurse go speak to Plaintiff. Plaintiff explained his issue to the female nurse who then proceeded to bring Plaintiff a cup as well as a small bag. Plaintiff was instructed to bring back the cup with the toilet paper that had blood on it-the previous day. Plaintiff was not medically evaluated or called in for a follow-up regarding the blood in his stool sample. All of Plaintiff’s claims have been investigated and it was found that Defendant V. Cay was in violation of staff misconduct for medical negligence pursuant to California Code of Regulations, title 15, section 3486.1. This incident took place in a medical holding area where there is video footage to prove Plaintiff’s allegations. A. Deliberate Indifference to Serious Medical Need Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations omitted). First, the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain. Id. (internal citations and quotations omitted.) Second, the plaintiff must show that the defendant’s response to the need was deliberately indifferent. Id. The second prong is satisfied by showing “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Id. Indifference “may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (internal citations omitted). However, an inadvertent or negligent failure to provide adequate medical care alone does not state a claim under § 1983. Id. “A difference of opinion between a physician and the prisoner – or between medical professionals – concerning what medical care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986). Rather, Plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that the defendants chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted).) In addition, “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; Snow, 681 F.3d at 987-88, overruled in part on other grounds, Peralta, 744 F.3d at 1082-83; Wilhelm, 680 F.3d at 1122. Here, Plaintiff alleges that Defendant V. Cay improperly refused to collect his stool sample and failed to notify medical staff about the blood in his urine. However, Plaintiff’s allegations demonstrate that his stool sample was collected the following day by a female registered nurse and sent for testing. Plaintiff has failed to allege or demonstrate how the one-day delay in collecting the urine sample caused him actual harm. Further, Plaintiff has failed to demonstrate that the blood in his urine constituted a serious medical need or that nurse V. Cay was deliberately indifferent in not collecting the sample after Plaintiff refused to turn it over without a name tag. Indeed, there are insufficient allegations to plausibly suggest that Plaintiff suffered significant harm by the one-day delay in collecting his urine sample as he acknowledges no further medical examination was ordered. See Simmons v. G. Arnett, 47 F.4th 927, 933 (9th Cir. 2022) (holding that under deliberate indifference standard “harmless delays in treatment are not enough to sustain an Eighth Amendment claim.”); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 2004) (“minor delay” of two hours before a prisoner was taken to the medical clinic and prescribed antibiotics after he first noticed blood in his urine was not evidence of deliberate indifference where prisoner was unable to show the delay caused any harm). In sum, Plaintiff has alleged nothing more than potential negligence and/or a violation of a prison regulation, both of which do not give rise to a cognizable claim for deliberate indifference in violation of the Eighth Amendment. B. Retaliation “Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation claim, Plaintiff must establish a nexus between the retaliatory act and the protected activity. Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). Mere verbal harassment, abuse, or threats do not violate the Constitution and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). In addition, not every allegedly adverse action will support a retaliation claim. See, e.g., Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on “the logical fallacy of post hoc, ergo propter hoc, literally, ‘after this, therefore because of this’”) (citation omitted). Plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendant's conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Here, Plaintiff fails to state a cognizable retaliation claim. Plaintiff fails to demonstrate that any adverse action, namely, nurse Cay’s failure to collect Plaintiff’s urine sample, was done out of retaliation for the exercise of a protected conduct, i.e., filing an inmate grievance and/or lawsuit. Instead, Plaintiff submits that “for some ‘odd’ reason, [he] was told to hold on to [the urine sample] “and return the following day.” (ECF No. 13 at 12.) There are simply no factual allegations by which retaliation can be inferred. See Huskey v. City of San Jose, 204 F.3d at 899 (a retaliation claim cannot rely solely on an adverse activity following protected speech). Accordingly, Plaintiff fails to state a cognizable retaliation claim. C. Violation of Prison Regulation Plaintiff makes repeated reference to the fact that Defendant V. Cay violated prison regulations by his medical negligence. However, the mere violation of a prison regulation does not give rise to a cognizable claim for relief. See, e.g., Nible v. Fink, 828 F. App’x 463, 464 (9th Cir. 2020) (violations of title 15 of the CCR do not create private right of action); Manzanillo v. Jacquez, 555 F. App’x 651, 653 (9th Cir. 2014) (ruling that a failure to record an interview with a prisoner in violation of prison policy does not constitute a violation of a federal right); Richson- Bey v. Watrous, No. 1:23-cv-01482-JLT-GSA (PC), 2023 WL 3956148, at *12 (E.D. Cal. June 12, 2023) (“There is no independent cause of action under 42 U.S.C § 1983 for a violation of title 15 regulations”); Romero v. Katavich, No. 1:11-cv-0935-LJO-MJS (PC), 2012 WL 484782, at *11 (E.D. Cal. Feb. 14, 2012) (California prison regulations do not give rise to protected due process rights). Cf. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of federal constitutional right); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370–71 (9th Cir. 1996) (“To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.”) (citation omitted). As set forth above, mere noncompliance with prison policies or grievance procedures, absent more, does not rise to the level of a constitutional violation. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Accordingly, Defendant Vay’s alleged failure to comply with regulations does not serve as a basis for a section 1983 action. D. Further Leave to Amend If the Court finds that a complaint or claim should be dismissed for failure to state a claim, the Court has discretion to dismiss with or without leave to amend. Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” (citation omitted). However, if, after careful consideration, it is clear that a claim cannot be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06. In light of Plaintiff’s failure to provide additional information about his claims despite specific instructions from the Court, further leave to amend would be futile and the first amended complaint should be dismissed without leave to amend. Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”). Here, Plaintiff’s allegations fail to give rise to a constitutional violation, and Plaintiff has previously been given leave to amend. Accordingly, further leave to amend the complaint should be denied. IV. Accordingly, it is HEREBY ORDERED that the Clerk of Court shall randomly assign a District Judge to this action. Further, it is HEREBY RECOMMENDED that the instant action be dismissed, without further leave to amend, for failure to state a cognizable claim for relief. This Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with this Findings and Recommendation, Plaintiff may file written objections with the Court, limited to 15 pages in length, including exhibits. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights onappeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. FA. Se g | Dated: _ September 15, 2025 ; STANLEY A. BOONE United States Magistrate Judge