(PC) Cortinas v. Allison

Opinion

LARRY WILLIAM CORTIN AS, CASE NO. 1:19-cv-1244 JLT (PC)

Plaintiff, ORDER DIRECTING PLAINTIFF TO SUBMIT A NOTICE v. KATHLEEN ALLISON, ( Doc. 1) THIRTY-DAY DEADLINE Defendant.

Plaintiff has filed a complaint asserting claims against an employee of the California Department of Corrections and Rehabilitation. (Doc. 1.) Generally, 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, malicious,” or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). /// I. Pleading Standard 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)). Plaintiffs must set forth “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78. Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To state a claim under section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). Under section 1983 the plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 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, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. II. Plaintiff’s Allegations Plaintiff identifies the California State Prison in Corcoran, California as the institution where his claims arose. He names a single defendant, Kathleen Allison, the Director of Adult Division for the California Department of Corrections and Rehabilitation. He seeks damages and injunctive relief in the form of a review of his current housing placement and “transfer control over plaintiff’s housing situation.” As best as the Court can determine, plaintiff alleges as follows: In June 2018, Kathleen Allison directed the integration of Special Needs Yard (“SNY”) inmates with the general prison population. This integration results in violence against SNY inmates like plaintiff. Plaintiff suggests that defendant Allison threatens to integrate inmates at institutions where the integration policy has presumably not yet been implemented in order to “control[] prison yards” and start “a new under ground population class which creates violence within the prison.” Based on these allegations and his alleged injury of “mental and threat of physical violence,” plaintiff brings claims under the equal protection clause, the due process clause, and the Fifth, Eighth, and Fourteenth Amendments. Plaintiff next claims that between February 13, 2014, and May 8, 2018, the “Directors review board Kathleen Allison” placed plaintiff in a single-celled non-disciplinary segregation unit within the mental health unit for several reasons, to include his mental illness (schizophrenia), incidents of retaliation against him by correctional staff due to plaintiff’s litigation activities, and a documented contract to kill plaintiff by the Aryan Brotherhood and Nazi Low Riders gangs. Despite these reasons to retain plaintiff in segregation, plaintiff is now housed in general population at California State Prison in Sacramento, California. He claims he cannot sleep, cannot think clearly, has been physically assaulted, and denied two surgical procedures. For these allegations, plaintiff brings claims under “42 USC §12101(a) section 504 of the rehabilitation Act. EQUAL PROTECTION, Due Process; Cruel & unusual punishment 14th & 5th & 8th u.s.const amendments.” III. Discussion B. Location of Alleged Civil Rights Violations The Court first takes note that, on the form complaint, plaintiff identifies the institution where the alleged violation of his constitutional rights took place as California State Prison in Corcoran, California, yet in the body of the pleading, he alludes to his integration as an SNY inmate into the general population at California State Prison in Sacramento, California. Where the alleged violations took place is important in determining in which division of this court plaintiff’s claims may be considered. See Local Rule 120(b). Accordingly, in an amended pleading, plaintiff is directed to clarify at which institution the alleged violation of his rights occurred. B. “Short and Plain Statement of the Claim” Rule 8 of the Federal Rules of Civil Procedure mandates that a complaint include a “short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that each allegation “be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A complaint that is so confusing that its “'true substance, if any, is well disguised’” may be dismissed for failure to satisfy Rule 8. Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (“Something labeled a complaint but written ... prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint.”); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming a dismissal with prejudice for failure to comply with Rules 8(a) and 8(e), finding that both the original complaint and an amended complaint were “verbose, confusing and conclusory”). Plaintiff’s complaint does not comply with the standards of Rule 8. It is vague and confusing, failing to set forth the facts in a comprehensible manner. It also fails to clearly articulate the facts giving rise to any claim. For example, plaintiff’s first claim seeks relief for the potential integration of the facility where he is housed whereas his second claim seeks damages for an integration that presumably has already occurred. In addition, plaintiff appears to assert a claim for medical indifference pursuant to the Eighth Amendment, but the facts of this claim are not clearly set forth and it is not clear against whom it is asserted. For these reasons, the complaint must be dismissed. The remainder of this Screening Order will set forth the legal standards for the claims that plaintiff has identified in his pleading and that relate to the allegations that have been asserted. C. Linkage and Causation To state a claim under section 1983, a plaintiff must show a causal connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (citation omitted). C. Eighth Amendment Claims 1. Failure to Protect The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of prisoners. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, prison officials have an affirmative duty to protect inmates from violence at the hands of other inmates. See id. at 833. To establish a violation of a prison official’s duty to take reasonable steps to protect inmates from physical abuse, the prisoner must establish that prison officials were “deliberately indifferent” to serious threats to the inmate’s safety. Farmer, 511 U.S. at 834. “Mere negligence is not sufficient to establish liability.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Rather, a plaintiff must set forth facts to show that a defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, 511 U.S. at 837. That is, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. To prove knowledge of the risk, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842. 2. Failure to Intervene Prison officials are required “to take reasonable steps to protect inmates from physical abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982). “[A] prison official can violate a prisoner’s Eighth Amendment rights by failing to intervene.” Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). 3. Medical Indifference Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). A serious medical need exists if the failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842. In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). D. Fourteenth Amendment 1. Due Process The plaintiff alleges the same facts in support of his Fourteenth Amendment due process as he does for his Eighth Amendment claims. “‘[W]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’” County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994); Graham v. Connor, 490 U.S. 386, 395 (1989)). The Eighth Amendment supplies an explicit textual source of constitutional protection when an inmate is denied the right to be free from a knowing and intentional disregard of his safety. Therefore, the Eighth Amendment’s Cruel and Unusual Punishment Clause, and not the more general Fourteenth Amendment Due Process Clause, governs the constitutionality of defendants’ actions. See Ramirez v. Groh, 298 F.3d 1022, 1029 (9th Cir. 2002) (“the Supreme Court has held that plaintiffs cannot ‘double up’ constitutional claims in this way.”) Plaintiff’s due process claims should be dismissed. However, such dismissal is without prejudice to plaintiff filing an amended complaint if he can allege specific facts demonstrating that a defendant violated plaintiff’s due process rights. 2. Equal Protection “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). A plaintiff alleging denial of equal protection under 42 U.S.C. § 1983 based on race or other suspect classification must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent. Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1026 (9th Cir. 1998). To state a claim for relief, the plaintiff must allege that the defendant state actor acted at least in part because of plaintiff’s membership in a protected class. See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). There are no factual allegations that any denial was based on plaintiff’s membership in a protected class or otherwise motivated by discriminatory intent. E. Americans with Disabilities Act and the Rehabilitation Act Title II of the Americans with Disabilities Act (“ADA”) provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by such entity.” 42 U.S.C. § 12132. Title II applies to the services, programs, and activities provided for inmates by jails and prisons. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 208-13 (1998); Simmons v. Navajo Cty., 609 F.3d 1011, 1021-22 (9th Cir. 2010); Pierce v. Cty. of Orange, 526 F.3d 1190, 1214-15 (9th Cir. 2008). “To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a qualified individual with a disability; (2) [he] was excluded from participation in or otherwise discriminated against with regard to a public entity’s services, programs, or activities; and (3) such exclusion or discrimination was by reason of [his] disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002); accord Simmons, 609 F.3d at 1021; McGary v. Cty. of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). While the Rehabilitation Act has the additional requirement that the program or activity receive federal funds, 29 U.S.C. § 794, “[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act. Thus, courts have applied the same analysis to claims brought under both statutes.” Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (citations omitted). IV. Conclusion Plaintiff’s complaint fails to state a claim on which relief may be granted. The Court will grant plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448- 49 (9th Cir. 1987). If plaintiff does not wish to amend, he may instead file a notice of voluntary dismissal, and the action then will be terminated by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i). Alternatively, plaintiff may forego amendment and notify the Court that he wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). If he chooses the last option, the Court will issue findings and recommendations to dismiss the complaint without leave to amend, plaintiff will have an opportunity to object, and the matter will be decided by a District Judge. If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts on curing the deficiencies set forth above. Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be complete without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves a function in the case. Id. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in bold font, “First Amended Complaint,” reference the appropriate case number, and be an original signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level. . .” Twombly, 550 U.S. at 555 (citations omitted). Accordingly, the Court ORDERS: 1. Within thirty days from the date of this order, plaintiff must file either a first amended complaint curing the deficiencies identified by the Court in this order, a notice of voluntary dismissal, or a notice of election to stand on the complaint; and 2. If plaintiff fails to file a first amended complaint or notice of voluntary dismissal, the Court will recommend the action be dismissed, with prejudice, for failure to obey a court order and failure to state a claim. IT IS SO ORDERED.

Dated: February 7, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE