(PC) Diaz v. Hurley

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL ENRIQUE DIAZ, No. 2:19-cv-1241 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 ASSOCIATE WARDEN HURLEY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding in forma pauperis and without counsel. On 18 January 29, 2021, the undersigned granted plaintiff’s request for extension of time to file an 19 amended complaint. On March 3, 2021, under the mailbox rule, plaintiff filed his first amended 20 complaint.1 As discussed below, plaintiff’s amended complaint is dismissed with leave to amend. 21 Background 22 On July 3, 2019, plaintiff was informed that to commence an action, plaintiff must file a 23 complaint, Diaz v. Hurley, No. 2:15-cv-2083 KJM KJN P (E.D. Cal), citing Fed. R. Civ. P. 3, but

24 1 Plaintiff filed a three page first amended complaint on March 8, 2021, and another three page amended complaint on March 11, 2021. (ECF Nos. 49, 50.) The only difference appears to be 25 the date on which plaintiff signed the pleadings: the first was signed on March 3, the second was signed on March 7, 2021. Because plaintiff was required to file his amended complaint on or 26 before March 5, 2021, and the pleadings appear to be the same, the court considers the first-filed pleading (ECF No. 49) as the operative amended complaint because it was timely submitted to 27 prison officials for mailing. Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities). The Clerk is directed to strike the 28 second amended pleading (ECF No. 50) as duplicative. 1 his motion for injunctive relief based on an alleged deprivation of cooling measures to address the 2 risk of heat plaintiff faced while taking psychiatric medications in May and June of 2019 at 3 California Medical Facility (“CMF”) was assigned the instant case number on July 1, 2019.2 4 Plaintiff did not file a complaint until February 26, 2020. Following resolution of issues related 5 to plaintiff’s request to proceed in forma pauperis, plaintiff’s complaint was dismissed with leave 6 to amend on June 11, 2020. Multiple requests for extension followed. 7 On November 30, 2020, the undersigned observed that plaintiff had over five months in 8 which to file an amended complaint, but plaintiff was granted another thirty days to amend, and 9 advised that no further extensions of time would be granted. (ECF No 42.) Plaintiff did not 10 timely file an amended complaint, and on January 22, 2021, the undersigned recommended that 11 this action be dismissed. 12 Despite the court’s prior orders and stern warnings, on January 14, 2021, plaintiff signed 13 his sixth request for extension of time to file an amended complaint. (ECF No. 42.) In light of 14 plaintiff’s health issues, the court reluctantly granted plaintiff a sixty-day extension of time in 15 which to file his amended complaint. The findings and recommendations are vacated, and the 16 court now screens plaintiff’s amended pleading. 17 Screening Standards 18 The court is required to screen complaints brought by prisoners seeking relief against a 19 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 20 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 21 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 22 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 23 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 24 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 25 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 26 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 27

28 2 Plaintiff’s initial motion for injunctive relief was denied on March 23, 2020. (ECF No. 23.) 1 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 2 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 3 Cir. 1989); Franklin, 745 F.2d at 1227. 4 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 5 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 6 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 7 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 8 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 9 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 10 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 11 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 12 McKeithen, 395 U.S. 411, 421 (1969). 13 Civil Rights Act 14 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 15 constitutional or statutory right; and (2) that the violation was committed by a person acting under 16 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 17 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 18 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 19 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 20 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 21 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable 22 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 23 (2009). In sum, plaintiff must identify the particular person or persons who violated his rights, 24 and set forth specific factual allegations as to how such person violated plaintiff’s rights. 25 Prior Screening Admonitions 26 In the initial screening order, plaintiff was provided the standards governing his putative 27 claims, including retaliation, Eighth Amendment, and the Americans with Disabilities Act 28 (“ADA”), 42 U.S.C. § 12101 et seq., and plaintiff was cautioned that he is not allowed to include 1 unrelated claims against various defendants.3 (ECF No. 27 at 5.) In the August 28, 2020 order, 2 plaintiff was reminded that he is not permitted to raise unrelated claims against myriad 3 defendants. (ECF No. 35 at 2.) 4 Plaintiff’s Amended Complaint 5 In his amended complaint, plaintiff alleges the following facts. (ECF No. 49.) Plaintiff 6 was housed at CMF at all relevant times. On June 5, 2019, plaintiff filed an appeal under the 7 ADA against defendant Goforth, when plaintiff was denied physical access to the law library 8 despite having PLU status. (ECF No. 49 at 2.) On June 9, 2019, defendant Jones allegedly 9 refused to reasonably accommodate plaintiff by providing him ice, yet other inmates who were 10 not on heat/psych meds were given ice. On June 15, 2019, defendant Jones refused to report 90+ 11 degrees in the law library as required, in order to prevent having a heat stage 2 which would have 12 required her to provide plaintiff with ice. (Id.) 13 On or about May of 2019, retaliation allegedly began again. Because plaintiff refused to 14 release Correctional Officer Townsend from plaintiff’s state lawsuit, defendants Goforth and M. 15 Jones refused to “abide by the 8th Amendment’s prohibition against deliberate indifference 16 towards [plaintiff’s] serious and urgent medical/psych needs to an ADA (Coleman) required 17 ‘reasonable accommodation’ for ice everyone was receiving at work,” and “by denying plaintiff 18 physical access to the law library, work assignment, pay, etc., that was not denied to nonmentally 19 disabled inmates on hot/psych medications.” (Id.) Plaintiff was denied ice again on July 2, 2019, 20 and July 5, 2019, allegedly solely to punish plaintiff. (Id.) Plaintiff seeks money damages, and 21 unspecified injunctive and declaratory relief. (ECF No. 49 at 1.)

22 3 A plaintiff may properly assert multiple claims against a single defendant. Fed. Rule Civ. P. 18. 23 In addition, a plaintiff may join multiple defendants in one action where “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the 24 same transaction, occurrence, or series of transactions and occurrences” and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated 25 claims against different defendants must be pursued in separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only to prevent the sort of morass [a 26 multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the 27 required filing fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. 28 § 1915(g).” George, 507 F.3d at 607. 1 In the parties’ section of his pleading, plaintiff states the following. By institutional and 2 legal mail, plaintiff asked defendant Warden Lozano, then at CMF, to “take reasonable measures 3 to protect [plaintiff] from retaliation and discrimination” by Lozano’s subordinates, which 4 violated the First, Eighth and Fourteenth Amendments, and “the ADA’s requirement for 5 ‘reasonable accommodations’ due to ‘Coleman Remedial Plan,’ . . . [including] HEAT Plan #49.” 6 (ECF No. 49 at 1.) Defendant Associate Warden Garry refused to provide plaintiff any 7 reasonable accommodations under the ADA, and refused to protect plaintiff from retaliation, all 8 in violation of the First, Eighth, and Fourteenth Amendments and the ADA. (Id.) Defendant Lt. 9 Youngblood advised defendant Correctional Officer Goforth “NOT to provide any ‘reasonable 10 accommodations’ and ‘let him sue you, it’ll be awhile before anything happens.’” (Id.) 11 Defendants Does 1 - 10, Custody Lieutenants, Sergeants, and Watch Commanders are 12 sued for their “failures to act reasonably to protect [plaintiff] from their subordinates, EVEN after 13 filing of multiple administrative remedies.” (Id.) 14 Defendants Correctional Officers Goforth, M. Jones (female), and McDonough are 15 employed at CMF. Defendant Associate Warden Medina was the ADA coordinator during most 16 of the incidents alleged herein and was responsible for ADA compliance and granting reasonable 17 accommodations, including all consent/remedial plans, to the plaintiff. (ECF No. 49 at 2.) 18 Discussion 19 The court reviewed plaintiff’s amended complaint and, for the limited purposes of 20 § 1915A screening, and liberally construing plaintiff’s allegations, finds that plaintiff states 21 potentially cognizable First and Eighth Amendment claims against defendants Jones and Goforth 22 for the alleged refusal to provide ice and access to the law library in retaliation for plaintiff 23 refusing to stop pursuing his lawsuit against Lt. Townsend in plaintiff’s state court action. See 28 24 U.S.C. § 1915A. 25 For the reasons stated below, the court finds that the amended complaint does not state a 26 cognizable claim against the remaining defendants. The claims against the remaining defendants 27 are dismissed with leave to amend. 28 //// 1 Plaintiff’s allegations as to defendants Warden Lozano and Associate Warden Garry are 2 insufficient to demonstrate their personal involvement rather than liability based solely on their 3 supervisorial roles. As noted above, plaintiff cannot state a cognizable civil rights claim based 4 solely on a theory of respondeat superior. While plaintiff states he informed defendant Lozano by 5 mail, plaintiff fails to provide sufficient facts to determine when such notice took place, and thus 6 the court cannot determine whether the warden was in a position to take steps to remedy the 7 specific violation plaintiff addressed. 8 As to defendant Lt. Youngblood, plaintiff’s factual allegations are insufficiently 9 developed to demonstrate Youngblood’s involvement in a particular constitutional violation. 10 Ashcroft, 556 U.S. at 678. 11 Plaintiff repeatedly refers to the ADA and “reasonable accommodations,” yet fails to 12 specifically identify such accommodations, particularly in connection with a named defendant. 13 Title II of the ADA prohibits a public entity from discriminating against a qualified individual 14 with a disability on the basis of disability. 42 U.S.C. § 12132 (1994); Weinrich v. L.A. County 15 Metro Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997). In other words, the ADA is designed to 16 challenge the denial of a benefit or service accorded similarly situated individuals -- i.e., 17 discrimination -- “by reason of” the plaintiff's disability. To state a claim under Title II, the 18 plaintiff must allege four elements: (1) the plaintiff is an individual with a disability; (2) the 19 plaintiff is otherwise qualified to participate in or receive the benefit of some public entity’s 20 services, programs, or activities; (3) the plaintiff was either excluded from participation in or 21 denied the benefits by the public entity; and (4) such exclusion, denial of benefits or 22 discrimination was by reason of the plaintiff's disability. Simmons v. Navajo County, Ariz., 609 23 F.3d 1011, 1021 (9th Cir. 2010); McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 24 2004); Weinrich, 114 F.3d at 978. Here, plaintiff fails to state a cognizable ADA claim because 25 he fails to allege facts meeting all of the required elements. Specifically, he does not allege that 26 he was denied reasonable accommodations because of his alleged disability. 27 Plaintiff’s reference to the Doe defendants, custody lieutenants and sergeants and watch 28 commanders insufficiently identifies such individuals’ roles in any constitutional violation and 1 lacks any factual specificity whatsoever. (ECF No. 49 at 1.) Plaintiff claims they failed to act 2 reasonably to protect plaintiff from their subordinates after plaintiff filed multiple administrative 3 appeals. Such conclusory statement is insufficient. Ashcroft, 556 U.S. at 678. Moreover, it does 4 not appear that such claims are in any way related to plaintiff’s claims against defendants Jones 5 and Goforth. Accordingly, plaintiff should not renew such claims in any second amended 6 complaint. 7 Moreover, plaintiff cannot state a due process claim based on a defendant’s role in the 8 inmate appeal process. The Due Process Clause protects plaintiff against the deprivation of 9 liberty without the procedural protections to which he is entitled under the law. Wilkinson v. 10 Austin, 545 U.S. 209, 221 (2005). However, plaintiff has no stand-alone due process rights 11 related to the administrative grievance process itself. Ramirez v. Galaza, 334 F.3d 850, 860 (9th 12 Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). A prison official’s denial of a 13 grievance does not itself violate the constitution. Evans v. Skolnik, 637 F. App’x 285, 288 (9th 14 Cir. 2015). Thus, the denial, rejection, or cancellation of a grievance does not constitute a due 15 process violation. See, e.g., Wright v. Shannon, 2010 WL 445203, at *5 (E.D. Cal. 2010) 16 (plaintiff’s allegations that prison officials denied or ignored his inmate appeals failed to state a 17 cognizable claim under the First Amendment); Williams v. Cate, 2009 WL 3789597, at *6 (E.D. 18 Cal. 2009) (“Plaintiff has no protected liberty interest in the vindication of his administrative 19 claims.”). “Because there is no right to any particular grievance process, it is impossible for due 20 process to have been violated by ignoring or failing to properly process prison grievances.” 21 Daniels v. Aguillera, 2018 WL 1763311 (E.D. Cal. Apr. 12, 2018). 22 Plaintiff names a correctional officer “McDonough” as a defendant, but includes no 23 charging allegations as to McDonough. (ECF No. 49 at 2.) 24 Finally, plaintiff claims that defendant Associate Warden Medina was the ADA 25 coordinator, “legally and professionally responsible for the compliance with all ADA related 26 rights and granting of all ‘reasonable accommodations’ to the plaintiff.” (ECF No. 49 at 2.) Such 27 vague and conclusory allegation is insufficient to demonstrate any violation of plaintiff’s 28 constitutional rights. Moreover, as the ADA coordinator, it appears unlikely Medina was 1 involved in the actions or omissions of defendants Jones and Goforth. Plaintiff is cautioned that 2 absent such personal involvement in the same transaction, occurrence, or series of transactions 3 and occurrences as defendants Jones and Goforth, and any question of law or fact common to 4 defendants Jones and Goforth, plaintiff should refrain from including Medina in any second 5 amended complaint. Fed. R. Civ. P. 20(a)(2). 6 Plaintiff’s Options 7 Plaintiff now has two options. He may proceed forthwith to serve defendants Jones and 8 Goforth and pursue his claims against only those defendants or he may delay serving any 9 defendant and attempt again to state a cognizable claim against those defendants whose alleged 10 violations arise from the same transaction, occurrence, or series of transactions and occurrences 11 and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. 12 P. 20(a)(2). 13 Within thirty days from the date of this order, plaintiff shall return the appended Notice of 14 Election Form advising the court of his decision. If plaintiff elects to attempt to amend his 15 complaint again to state a cognizable claim against the remaining defendants, he has thirty days in 16 which to do so. He is not obligated to amend his complaint. 17 If plaintiff elects to proceed forthwith against defendants Jones and Goforth, against 18 whom he stated a potentially cognizable claim for relief, then within thirty days he must note such 19 election on the appended form. Upon receipt of such form, the court will direct the U.S. Marshal 20 to serve process on defendants Jones and Goforth. In this event the court will construe plaintiff’s 21 election as consent to dismissal of all claims against the remaining defendants, Lozano, Garry, 22 Youngblood, McDonough, and Medina. 23 Any second amended complaint must show the federal court has jurisdiction, the action is 24 brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It 25 must contain a request for particular relief. Plaintiff must identify as a defendant only persons 26 who personally participated in a substantial way in depriving plaintiff of a federal constitutional 27 right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 28 //// 1 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 2 perform an act he is legally required to do that causes the alleged deprivation). 3 In any second amended complaint, the allegations must be set forth in numbered 4 paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a 5 single defendant. Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate 6 transactions or occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 7 10(b). 8 A district court must construe a pro se pleading “liberally” to determine if it states a claim 9 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an 10 opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While 11 detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a cause of 12 action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678 13 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth 14 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 15 Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp., 550 U.S. at 570). 16 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 17 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for 18 more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a 19 defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. 20 21 Ashcroft, 566 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions 22 can provide the framework of a complaint, they must be supported by factual allegations, and are 23 not entitled to the assumption of truth. Id. 24 Any second amended complaint must be complete in itself without reference to any prior 25 pleading. Local Rule 15-220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff 26 files a second amended complaint, the original pleading is superseded. 27 //// 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The January 22, 2021 findings and recommendations (ECF No. 46) are vacated. 3 2. The Clerk of the Court is directed to strike plaintiff's second amended pleading (ECF 4 | No. 50) as duplicative. 5 3. The allegations in the pleading are sufficient at least to state potentially cognizable 6 | First and Eighth Amendment claims against defendants Jones and Goforth. Claims against the 7 || remaining defendants, Lozano, Garry, Youngblood, McDonough, and Medina, are dismissed with 8 || leave to amend. 9 4. Within thirty days of service of this order plaintiff shall return the attached Notice of 10 | Election and advise the court which option he chooses. 11 5. Failure to comply with this order will result in a recommendation that this action be 12 | dismissed. 13 || Dated: May 21, 2021 i Fensbl A Abar 15 KENDALL J. NE /diaz1241.ser.ac UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 10

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL DIAZ, No. 2:19-cv-1241 KJM KJN P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 HURLEY, et al., 15 Defendants. 16 17 Plaintiff submits the following documents in compliance with the court's order filed __________________. 18 _____________ Plaintiff opts to proceed solely as to his First and Eighth 19 Amendment claims against defendants Jones and Goforth. 20 _____________ Plaintiff consents to the dismissal of the remaining defendants, Lozano, Garry, Youngblood, McDonough, and Medina, without 21 prejudice. 22 OR _____________ Plaintiff opts to file a second amended complaint and delay service 23 of process. If plaintiff selects this option, he is reminded that any individual named as a defendant must have been involved in the 24 same transaction, occurrence, or series of transactions and occurrences and any question of law or fact common to defendants 25 Jones and Goforth. Fed. R. Civ. P. 20(a)(2). 26 DATED: 27 _______________________________ Plaintiff 28