Joseph Aaron McKissick v. Josie Gastello

• Court: District Court, C.D. California
• Decided: April 13, 2021
• Docket: 2:21-cv-01945
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOSEPH AARON MCKISSICK, Case No. 2:21-cv-01945-VAP (MAA) 11 12 Plaintiff, MEMORANDUM DECISION AND ORDER DISMISSING COMPLAINT 13 v. WITH LEAVE TO AMEND 14 JOSIE GASTELO, 15 Defendant. 1 16 7

18 I. INTRODUCTION 19 On March 1, 2021, Plaintiff Joseph Aaron McKissick (“Plaintiff”), a 20 California inmate housed at California Men’s Colony State Prison (“CMC”), 21 proceeding pro se, filed a Complaint alleging violations of his civil rights pursuant 22 to 42 U.S.C. § 1983 (“Section 1983”). (Compl., ECF No. 1.) On March 4, 2021, 23 the Court granted Plaintiff’s Request to Proceed Without Prepayment of Filing 24 Fees. (ECF Nos. 2, 5.) 25 The Court has screened the Complaint, and dismisses it with leave to amend 26 for the reasons stated below. No later than May 13, 2021, Plaintiff must either: 27 (1) file a First Amended Complaint; or (2) advise the Court that Plaintiff no longer 28 intends to pursue this lawsuit. 1 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS1 2 The Complaint is filed against Josie Gastelo, former head warden of CMC, in 3 her individual capacity (“Defendant”). (Compl. 3.)2 Plaintiff alleges that 4 Defendant failed to take reasonable steps to ensure that Plaintiff was free from cruel 5 and unusual punishment while Plaintiff was under Defendant’s care at CMC. (Id. at 6 5.) On August 8, 2020, Plaintiff filed a “602” regarding his “health concern” about 7 COVID-19, asking to be released to an ankle monitoring program due to 8 Defendant’s failures to comply with orders by the Center for Disease Control and 9 federal and state government. (Id.) Defendant failed to implement six feet social 10 distancing by reducing staff and dorm capacity. (Id.) The staff failed to wear face 11 masks to ensure Plaintiff’s safety. (Id.) CMC moved inmates from CMC East to 12 CMC West, thus putting inmates and staff at risk to a virus that could be fatal. (Id. 13 at 7.) On January 2, 2021, Plaintiff tested positive for COVID-19, and has lost his 14 ability to taste. (Id. at 5.) Plaintiff asserts an Eighth Amendment claim, and seeks 15 declaratory relief and damages. (Id. at 6.) 16 17 III. LEGAL STANDARD 18 Federal courts must conduct a preliminary screening of any case in which a 19 prisoner seeks redress from a governmental entity or officer or employee of a 20 governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma 21 pauperis (28 U.S.C. § Section 1915(e)(2)(B)). The court must identify cognizable 22 1 The Court summarizes Plaintiff’s allegations and claims in the Complaint and 23 attached exhibits. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th 24 Cir. 1987) (explaining that documents attached to a complaint are part of the 25 complaint and may be considered in determining whether the plaintiff can prove any set of facts in support of the claim). In providing this summary of the 26 allegations and claims, the Court does not opine on their veracity or make any 27 findings of fact.

28 2 Citations to pages in docketed documents reference those generated by CM/ECF. 1 claims and dismiss any complaint, or any portion thereof, that is: (1) frivolous or 2 malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. 4 §§ 1915(e)(2)(B), 1915A(b). 5 When screening a complaint to determine whether it fails to state a claim 6 upon which relief can be granted, courts apply the Federal Rule of Civil Procedure 7 12(b)(6) (“Rule 12(b)(6)”) standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 8 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § Section 1915A); 9 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6) 10 standard to 28 U.S.C. § 1915(e)(2)(B)(ii)). To survive a Rule 12(b)(6) dismissal, “a 11 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 12 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 13 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has 14 facial plausibility when the plaintiff pleads factual content that allows the court to 15 draw the reasonable inference that the defendant is liable for the misconduct 16 alleged.” Id. Although “detailed factual allegations” are not required, “an 17 unadorned, the-defendant-unlawfully-harmed-me accusation”; “labels and 18 conclusions”; “naked assertion[s] devoid of further factual enhancement”; and 19 “[t]hreadbare recitals of the elements of a cause of action, supported by mere 20 conclusory statements” do not suffice. Id. “Dismissal under Rule 12(b)(6) is 21 appropriate only where the complaint lacks a cognizable legal theory or sufficient 22 facts to support a cognizable legal theory.” Hartmann v. Cal. Dep’t of Corr. & 23 Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela 24 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). 25 In reviewing a Rule 12(b)(6) motion to dismiss, courts will accept factual 26 allegations as true and view them in the light most favorable to the plaintiff. Park 27 v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017). Moreover, where a plaintiff is 28 appearing pro se, particularly in civil rights cases, courts construe pleadings 1 liberally and afford the plaintiff any benefit of the doubt. Wilhelm, 680 F.3d at 2 1121. “If there are two alternative explanations, one advanced by defendant and the 3 other advanced by plaintiff, both of which are plausible, plaintiff’s complaint 4 survives a motion to dismiss under Rule 12(b)(6).” Starr v. Baca, 652 F.3d 1202, 5 1216 (9th Cir. 2011). However, the liberal pleading standard “applies only to a 6 plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), 7 superseded by statute on other grounds, 28 U.S.C. § 1915. Courts will not “accept 8 any unreasonable inferences or assume the truth of legal conclusions cast in the 9 form of factual allegations.” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 10 2003). In giving liberal interpretations to complaints, courts “may not supply 11 essential elements of the claim that were not initially pled.” Chapman v. Pier 1 12 Imps. (U.S.), Inc., 631 F.3d 939, 954 (9th Cir. 2011) (quoting Pena v. Gardner, 976 13 F.2d 469, 471 (9th Cir. 1992)). 14 15 IV. DISCUSSION 16 Section 1983 provides:

17 Every person who, under color of any statute, ordinance, regulation, 18 custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction 19 thereof to the deprivation of any rights, privileges, or immunities 20 secured by the Constitution and laws, shall be liable to the party 21 i njured in an action at law . . . . 22 42 U.S.C. § 1983. “Section 1983 does not create any substantive rights, but is 23 instead a vehicle by which plaintiffs can bring federal constitutional and statutory 24 challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 25 1063, 1067 (9th Cir. 2006). “The purpose of §1983 is to deter state actors from 26 using the badge of their authority to deprive individuals of their federally 27 guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. 28 Cole, 504 U.S. 158, 161 (1992). “To state a claim under § 1983, a plaintiff must 1 allege the violation of a right secured by the Constitution and laws of the United 2 States, and must show that the alleged deprivation was committed by a person 3 acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Here, 4 Plaintiff asserts a single claim for violation of the Eighth Amendment’s protection 5 against cruel and unusual punishment. 6 “[T]he treatment a prisoner receives in prison and the conditions under 7 which he is confined are subject to scrutiny under the Eighth Amendment,” which 8 prohibits cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 9 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). “[W]hile conditions 10 of confinement may be, and often are, restrictive and harsh, they ‘must not involve 11 the wanton and unnecessary infliction of pain.’” Morgan v. Morgensen, 465 F.3d 12 1041, 1045 (9th Cir. 2006) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 13 (1981)). “In other words, they must not be devoid of legitimate penological 14 purpose, or contrary to evolving standards of decency that mark the progress of a 15 maturing society.” Id. (citations and quotation marks omitted). 16 “An Eighth Amendment claim that a prison official has deprived inmates of 17 humane conditions must meet two requirements, one objective and one subjective.” 18 Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (quoting Allen v. Sakai, 48 19 F.3d 1082, 1087 (9th Cir. 1995)). First, to satisfy the Eighth Amendment’s 20 objective prong, “the deprivation alleged must be, objectively, sufficiently serious; 21 a prison official’s act or omission must result in the denial of the minimal civilized 22 measure of life’s necessities.” Farmer, 511 U.S. at 834 (internal quotation marks 23 and citations omitted). “Prison officials have a duty to ensure that prisoners are 24 provided adequate shelter, food, clothing, sanitation, medical care, and personal 25 safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “The circumstances, 26 nature, and duration of a deprivation of these necessities must be considered in 27 determining whether a constitutional violation has occurred. ‘The more basic the 28 need, the shorter the time it can be withheld.’” Id. (quoting Hoptowit v. Ray, 682 1 F.2d 1237, 1246 (9th Cir. 1982)). Second, to satisfy the Eighth Amendment’s 2 subjective prong, there must be allegations that a prison official acted with 3 “deliberate indifference” to an inmate’s health or safety—that is, “the official 4 knows of and disregards an excessive risk to inmate health or safety; the official 5 must both be aware of facts from which the inference could be drawn that a 6 substantial risk of serious harm exists, and he must also draw the inference.” 7 Farmer, 511 U.S. at 837. Negligence is insufficient to support an Eighth 8 Amendment claim. See id. at 835. 9 “Moreover, where, as here, plaintiff names wardens as defendants, plaintiff 10 must specifically allege the warden’s personal involvement in the constitutional 11 deprivation or a causal connection between the defendant’s wrongful conduct and 12 the alleged constitutional deprivation.” Stephen v. Tilestone, No. 2:20-cv-1841 13 KJN P, 2021 U.S. Dist. LEXIS 16584, at *15 (E.D. Cal. Jan. 28, 2021). This is 14 because “wardens are not liable based solely on their role in supervising prisons.” 15 Id. Because vicarious liability does not apply to Section 1983 suits, “a plaintiff 16 must plead that each Government-official defendant, through the official’s own 17 individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. “A 18 defendant may be held liable as a supervisor under § 1983 ‘if there exists either 19 (1) his or her personal involvement in the constitutional deprivation, or (2) a 20 sufficient causal connection between the supervisor’s wrongful conduct and the 21 constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) 22 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). “The requisite causal 23 connection can be established . . . by setting in motion a series of acts by others, . . . 24 or by knowingly refus[ing] to terminate a series of acts by others, which [the 25 supervisor] knew or reasonably should have known would cause others to inflict a 26 constitutional injury,” Id. at 1207–08 (alteration in original) (internal quotation 27 marks and citation omitted). “Even if a supervisory official is not directly involved 28 in the allegedly unconstitutional conduct, ‘[a] supervisor can be liable in his 1 individual capacity for his own culpable action or inaction in the training, 2 supervision, or control of his subordinates; for his acquiescence in the constitutional 3 deprivation; or for conduct that showed a reckless or callous indifference to the 4 rights of others.’” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (alteration 5 in original) (quoting Starr, 652 F.3d at 1208). 6 Here, Plaintiff does not allege facts showing how Defendant in particular 7 violated his Eighth Amendment rights. See, e.g., Stephen, 2021 U.S. Dist. LEXIS 8 16584, at *15–16 (concluding that plaintiff failed to allege Eighth Amendment 9 violation for prison transfer that purportedly put him at extreme risk of contracting 10 COVID-19 because he did not allege facts showing how any particular defendant 11 violated his rights). There are no allegations that Defendant was personally 12 involved in any alleged failures or that she had knowledge of the constitutional 13 deprivations and acquiesced in them. Rather, the Complaint appears to attempt to 14 impute the purported failures of CMC staff to Defendant, which is not permissible 15 under Section 1983. See Hansen, 885 F.2d at 646 (affirming grant of summary 16 judgment for police captain where there were no allegations of his personal 17 involvement). 18 Furthermore, there are no allegations to suggest that Defendant had the 19 mental state required for an Eighth Amendment claim. See, e.g., George v. Diaz, 20 No. 20-cv-03244-SI, 2020 U.S. Dist. LEXIS 153581, at *10 (N.D. Cal. Aug. 24, 21 2020) (dismissing Eighth Amendment cruel and unusual punishment claim for 22 spread of COVID-19 in prison where “[e]ven with liberal construction, the 23 complaint cannot reasonably be read to allege any facts suggestive of deliberate 24 indifference”). Plaintiff’s conclusory allegations that Defendant “knew or should 25 have known that his conduct, attitude, and actions created an unreasonable risk of 26 harm to Plaintiff” are insufficient to allege that Defendant acted with deliberate 27 indifference. See Stephen, 2012 U.S. Dist. LEXIS 16584, at *15 (holding that 28 plaintiff failed to plead Eighth Amendment cruel and unusual punishment against 1 prison warden due to COVID-19 because “his vague and conclusory allegations are 2 insufficient to demonstrate deliberate indifference”). 3 For these reasons, Plaintiff’s Eighth Amendment cruel and unusual 4 punishments claim fails. If Plaintiff files an amended complaint, he must correct 5 these deficiencies or risk dismissal of his lawsuit. 6 7 V. CONCLUSION 8 For the reasons stated above, the Court DISMISSES the Complaint WITH 9 LEAVE TO AMEND. Plaintiff may have an opportunity to amend and cure the 10 deficiencies in light of his pro se prisoner status. Plaintiff is ORDERED to, no 11 later than May 13, 2021, either: (1) file a First Amended Complaint (“FAC”), or 12 (2) advise the Court that Plaintiff no longer intends to pursue this lawsuit. 13 The FAC must cure the pleading defects discussed above and shall be 14 complete in itself without reference to the Complaint. See L.R. 15-2 (“Every 15 amended pleading filed as a matter of right or allowed by order of the Court shall be 16 complete including exhibits. The amended pleading shall not refer to the prior, 17 superseding pleading.”). This means that Plaintiff must allege and plead any viable 18 claims in the FAC again. Plaintiff shall not include new defendants or new 19 allegations that are not reasonably related to the claims asserted in the Complaint. 20 In any amended complaint, Plaintiff should confine his allegations to those 21 operative facts supporting each of his claims. Plaintiff is advised that pursuant to 22 Rule 8, all that is required is a “short and plain statement of the claim showing that 23 the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the 24 standard civil rights complaint form when filing any amended complaint, a 25 copy of which is attached. In any amended complaint, Plaintiff should identify the 26 nature of each separate legal claim and make clear what specific factual allegations 27 support each of his separate claims. Plaintiff strongly is encouraged to keep his 28 statements concise and to omit irrelevant details. It is not necessary for Plaintiff to 1 cite case law, include legal argument, or attach exhibits at this stage of the 2 litigation. Plaintiff is advised to omit any claims for which he lacks a sufficient 3 factual basis. 4 The Court cautions Plaintiff that failure to timely file a FAC will result 5 in a recommendation that this action be dismissed for failure to prosecute 6 and/or failure to comply with court orders pursuant to Federal Rule of Civil 7 Procedure 41(b). 8 Plaintiff is not required to file an amended complaint, especially since a 9 complaint dismissed for failure to state a claim without leave to amend may count 10 as a “strike” for purposes of the in forma pauperis statute, 28 U.S.C. § 1915(g).3 11 Instead, Plaintiff may request voluntary dismissal of the action pursuant to Federal 12 Rule of Civil Procedure 41(a) using the attached Notice of Voluntary Dismissal 13 form. 14 Plaintiff is advised that the undersigned Magistrate Judge’s determination 15 herein that the allegations in the Complaint are insufficient to state a particular 16 claim should not be seen as dispositive of the claim. Accordingly, although the 17 undersigned Magistrate Judge believes Plaintiff has failed to plead sufficient factual 18 matter in the pleading, accepted as true, to state a claim for relief that is plausible on 19 its face, Plaintiff is not required to omit any claim or Defendant in order to pursue 20 this action. However, if Plaintiff decides to pursue a claim in an amended 21 complaint that the undersigned Magistrate Judge previously found to be 22 insufficient, then, pursuant to 28 U.S.C. § 636, the undersigned Magistrate Judge 23 ultimately may submit to the assigned District Judge a recommendation that such 24 25 3 Inmates who have accumulated three of more “strikes” are not permitted to bring a civil lawsuit or appeal a judgment in a civil action in forma pauperis—that is, 26 without prepayment of the filing fee—unless the inmate is under imminent danger 27 of serious physical injury. See 28 U.S.C. § 1915(g). Instead, inmates with three or more “strikes” generally must pay their full filing fee upfront in order to file a civil 28 lawsuit or appeal a civil judgment. 1 || claim may be dismissed with prejudice for failure to state a claim, subject to 2 || Plaintiffs right at that time to file objections. See Fed. R. Civ. P. 72(b); C.D. Cal. 3 || L.R. 72-3. 4 IT IS SO ORDERED. 5 || DATED: April 13, 2021 yor 6 MARIA A. AUDERO UNITED STATES MAGISTRATE JUDGE

8 || Attachments 9 || Form Civil Rights Complaint (CV-66) 10 || Form Notice of Dismissal 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10