1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS ESTRADA, Case No. 1:18-cv-00667-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 NORTH KERN STATE PRISON, et al., FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 15 Defendants. ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, FAILURE TO 16 PROSECUTE, AND FAILURE TO OBEY COURT ORDERS 17 (ECF Nos. 17, 24) 18 FOURTEEN (14) DAY DEADLINE 19 20 Plaintiff Nicholas Estrada is a former state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 22 I. 23 INTRODUCTION 24 Plaintiff filed his original complaint on May 16, 2018. (ECF No. 1.) Before his original 25 complaint could be screened, Plaintiff filed a first amended complaint on July 20, 2018. (ECF 26 No. 7.) On February 28, 2019, the Court screened Plaintiff’s first amended complaint and granted 27 Plaintiff leave to file a second amended complaint. (ECF No. 9.) 28 After receiving three extensions of time, Plaintiff filed his second amended complaint on 1 July 22, 2019. (ECF No. 16.) On September 23, 2019, the Court screened Plaintiff’s second 2 amended complaint and found that Plaintiff failed to state a cognizable claim for relief. (ECF No. 3 17.) The Court’s screening order provided Plaintiff with the pleading and legal standards that 4 applied to his claims and granted Plaintiff leave to file a third amended complaint within thirty 5 days after service of the order. (Id.) Further, Plaintiff was expressly warned that, if he failed to 6 file a third amended complaint in compliance with the Court’s order, the Court would recommend 7 to a District Judge that this action be dismissed, with prejudice, for failure to state a claim, failure 8 to obey a court order, and failure to prosecute. (Id. at 16.) 9 On November 8, 2019, after Plaintiff failed to timely file a third amended complaint or 10 otherwise communicate with the Court, the Court ordered Plaintiff to show cause in writing why 11 this action should not be dismissed for failure to prosecute, failure to obey a court order, and 12 failure to state a claim. (ECF No. 20.) The Court granted Plaintiff fourteen (14) days from the 13 service of the order to either file a third amended complaint or a written response showing cause 14 why this action should not be dismissed. (Id.) 15 In response to the November 8, 2019 order to show cause, Plaintiff filed a motion for a 16 30-day extension of time to file a third amended complaint on November 25, 2019. (ECF No. 17 22.) 18 On November 26, 2019, the Court vacated the November 8, 2019 order to show cause, 19 granted Plaintiff’s motion for an extension of time, and ordered Plaintiff to file a third amended 20 complaint within thirty (30) days from the date of service of the order. (ECF No. 23.) 21 On January 6, 2020, after Plaintiff failed to timely file a third amended complaint or 22 otherwise communicate with the Court, the Court ordered Plaintiff to either file a third amended 23 complaint or show cause in writing why this action should not be dismissed for failure to state a 24 claim, failure to comply with the Court’s September 23, 2019 and November 26, 2019 orders, and 25 failure to prosecute, within fourteen (14) days from the date of service of the order. (ECF No. 26 24.) Plaintiff was again expressly warned that failure to comply with the Court’s order would 27 result in a recommendation to a District Judge that this action be dismissed, with prejudice, for 28 failure to state a claim, failure to obey court orders, and failure to prosecute. (Id. at 2.) 1 The deadline for Plaintiff to file either a third amended complaint or a written response 2 showing cause why the action should not be dismissed expired on January 23, 2020. To date, 3 Plaintiff has not filed a third amended complaint, a written response showing cause why this 4 action should not be dismissed, or otherwise communicated with the Court. Accordingly, the 5 Court recommends dismissal of this action for the reasons discussed below. 6 II. 7 DISCUSSION 8 A. Failure to State a Claim 9 1. Screening Requirement and Standard 10 The Court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 12 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 13 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 14 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 15 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 16 A complaint must contain “a short and plain statement of the claim showing that the 17 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 18 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 19 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 20 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 21 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 22 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 23 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 24 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 25 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 26 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 27 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 28 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 1 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 2 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 3 at 969. 4 2. Summary of Allegations 5 Plaintiff names North Kern State Prison Warden Kelly Santoro, Lieutenant John Doe, 6 Sergeant John Doe, Correctional Officer Resubaut, Olga Beregovskaya, M.D., and D. Cena, R.N. 7 as Defendants. 8 Plaintiff alleges that, on March 28, 2016, Plaintiff had arrived at the North Kern State 9 Prison (“NKSP”) reception center to be classified and housed in the California Department of 10 Corrections and Rehabilitation (“CDCR”). After being classified with 30 points, Plaintiff was 11 housed at Facility C, Building 4, which housed minimum security prisoners. Plaintiff was housed 12 in Building 4 for approximately a month and a half. 13 During the second week of May 2016, Correctional Sergeant John Doe came to Building 4 14 and informed Plaintiff that he was being transferred to a different facility pursuant to a transfer 15 order approved by Third Watch Commander Lieutenant John Doe. Plaintiff asserts that 16 Defendant Lieutenant John Doe failed to adequately supervise his or her subordinate correctional 17 officers. Plaintiff was moved to Facility D, Building 3. Facility D Yard had six buildings, which 18 housed and segregated maximum security prisoners for different classification purposes, such as 19 dividing general population from sensitive needs or protective custody inmates and dividing 20 prison gangs. 21 Plaintiff was an affiliate of a “STG” (a security threat group or prison gang) called the 25 22 or Dos Cinco. Plaintiff alleges that, upon transfer from county to state custody, an inmate’s 23 security level, special treatments, behaviors, write ups, and gang affiliations are transferred with 24 the prisoner to CDCR. In his case, Plaintiff asserts that CDCR was aware of his affiliation with 25 the 25 or Dos Cinco because his county jail custody gang file arrived at NKSP with him when he 26 was transferred from county to state custody. The Dos Cinco prison gang is the rival or enemy of 27 the Northern Riders prison gang. CDCR was aware that Facility D, Buildings 3 and 5 housed 28 inmates who were members of, or affiliated with, the Northern Riders prison gang. Specifically, 1 Facility ‘D,’ Building 3, Cell 228L housed inmates who were members of, or affiliated with, the 2 Northern Riders. On May 25, 2016, Plaintiff was assaulted by three members of the rival 3 Northern Riders prison gang, which caused him to suffer a fractured nose and injuries to head, 4 body, and back of his legs. The correctional officer on duty failed to report the complete events 5 and, instead, falsified the Rules Violation Report to report only one assailant instead of three. 6 Plaintiff asserts that he was found not guilty of the Rules Violation Report because his injuries 7 were consistent with two or more assailants that were not reported in the Rules Violation Report 8 or in the medical reports. 9 After the assault, Plaintiff was taken to the infirmary for medical care. He received x-rays 10 and even the x-ray technician recognized that Plaintiff’s nose was fractured. Plaintiff’s injury 11 was so severe that when the nose bone broke, its sharp edges ripped through Plaintiff’s skin. 12 “CDCR Medical Facility” acknowledged and documented that Plaintiff had a common fracture 13 on the bridge of his nose with a collapsed nasal cavity, which needed additional support, i.e., a 14 nose brace, cast, nasal tubing to allow air flow, etc. Plaintiff was given two choices to close up 15 the wound: glue or stitches. Plaintiff was given six stitches to close the wound. CDCR medical 16 staff failed to straighten the bridge of Plaintiff’s nose after the fracture occurred, which caused 17 Plaintiff to have to hand set the bone himself. Defendant Beregovskaya acknowledged that 18 Plaintiff’s nose was fractured and that there were extreme bone deformities, but Defendant 19 Beregovskaya failed to follow procedure and send Plaintiff to an outside hospital for adequate 20 medical care from a plastic surgeon. During his initial treatment or his dressing changes, Plaintiff 21 was never told that he would receive any type of examinations by a plastic surgeon. 22 On an unstated date, CDC officers came to Plaintiff’s cell to transport him to an outside 23 hospital. When Plaintiff asked what the appointment was for, he was told that it was for a change 24 of his dressings. Plaintiff was additionally told that he would not be provided with a sack lunch 25 and that they would not be stopping for lunch outside the prison. At that point, Plaintiff decided 26 that he could wait until CDCR medical staff arrived to get his dressings changed. The CDCR 27 officers went to the control booth, obtained a blank refusal form, and had Plaintiff sign it and 28 wrote that he was satisfied with the CDCR medical staff. Plaintiff was never informed that he 1 was to see an outside specialist or plastic surgeon at the outside hospital. Plaintiff asserts that the 2 CDCR officers failed to provide Plaintiff with a proper refusal form that was completely filled out 3 and described the exact medical appointment that Plaintiff was refusing. Plaintiff alleges that, by 4 just having him sign the refusal form and then filling in the medical services that he refused, the 5 CDCR officer is falsifying medical documents and, if the medical staff is abiding by this 6 behavior, then they are condoning the officer’s activities. Plaintiff states that he would not have 7 refused to go to the appointment if he had known that the appointment was for an examination 8 with a plastic surgeon. 9 Plaintiff also asserts that Defendant Cena filled in all of the information regarding the 10 medical services that Plaintiff allegedly refused on a blank medical refusal form. Then, 11 Defendant Cena either forged Plaintiff’s signature on the form himself or had Defendant 12 Resubaut forge Plaintiff’s signature on the form. Plaintiff alleges that Defendants Cena and 13 Resubaut were deliberately indifferent when they conspired to cover up any legal actions that 14 Plaintiff might take against the medical facility. 15 Plaintiff asserts that CDCR correctional officers and medical staff failed to transport him 16 to an outside hospital to accommodate all of his emergency medical needs, such as bone setting 17 and surgery, that the CDCR medical facility was not equipped to provide. Further, CDCR failed 18 to provide immediate plastic surgery services and/or specialist to prevent disfigurement and 19 damage. Finally, Plaintiff asserts that CDCR medical failed to property set and apply proper 20 medical dressing to the nasal bone. As a result, Plaintiff’s nose was permanently disfigured and 21 deformed. Specifically, Plaintiff’s nose has a permanent curve to the right, which prevents air 22 flow travelling to and from the lungs through Plaintiff’s right nostril. Further, Plaintiff’s right and 23 center nasal passages have collapsed. 24 After the May 25, 2016 assault, Plaintiff was housed at Facility D, Building 4. When he 25 arrived at Building 4, Plaintiff was informed that Building 4 was a “victims unit for affiliates of 26 the ‘STG’ Dos Cinco/25.” (Id. at 6.) Plaintiff alleges that “[t]hese victims were numerous and 27 was documented in other assaults and RVR incidents reports within the institution.” (Id.) Due to 28 the numerous assaults, incident reports, and staff operation meetings, Defendant Santoro had been 1 informed and was aware of the constant feuding between prison gangs. In fact, that was the 2 reason why they were segregated. However, Defendant Santoro failed to oversee and train 3 officers and staff properly in order to protect the health and safety of the prisoners. Instead of 4 protecting inmates, “the officers listed as Defendant incited and coordinate[d] prisoner assaults to 5 the point that I.G.I. and the Warden had to organize a way for the two ‘STG’ groups to form a 6 peace treaty.” (Id. at 7.) Further, while he was getting his dressings changed, Plaintiff received a 7 verbal confession from Correctional Officer Arroyo, who worked in the D Yard Medical Facility 8 “between May 25, 2017 and June 14, 2016 3rd Watch,” and who explained that there was a 9 conspiracy against the 25 prison gang as punishment for gang members’ past and present 10 behavior towards officers. However, Defendant Santoro failed to conduct a formal investigation 11 into the prefabrication of Rules Violation Reports and facilitation of the incited assaults by 12 correctional officers acting under the color of law. 13 Plaintiff alleges that, due to the actions or inactions of Defendants, he has suffered a 14 fractured nose that was improperly set and is now permanently disfigured, stitches, two black 15 swollen eyes, bruising on the back side and head, emotional distress, pain and suffering, and post- 16 traumatic stress disorder, which he is receiving therapy for. 17 Plaintiff seeks monetary damages in the amount of $2,500,000.00, costs of suit, 18 reasonable attorney’s fees, declaratory relief, and a monetary award to pay for reconstructive 19 surgery. 20 3. Analysis 21 a. Federal Rule of Civil Procedure 8 22 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim 23 showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “Such a statement 24 must simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon 25 which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation and internal 26 quotation marks omitted). 27 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 28 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 1 (citation omitted). This is because, while factual allegations are accepted as true, legal 2 conclusions are not. Id.; see also Twombly, 550 U.S. at 556-57; Moss, 572 F.3d at 969. 3 Therefore, a plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). 7 Here, Plaintiff’s second amended complaint is not a short or plain statement of his claims. 8 Plaintiff’s second amended complaint appears to consist of new pages and various pages from his 9 original and first amended complaints. This mixture of allegations has caused Plaintiff’s second 10 amended complaint to contain allegations that appear contradict themselves. For example, at one 11 point, Plaintiff alleges that unnamed CDCR officers obtained a blank medical refusal form and 12 had Plaintiff sign the form and write that he was satisfied with the CDCR medical staff. 13 However, at another point, Plaintiff alleges that Defendant Cena filled out a blank medical refusal 14 form with all of the information regarding the medical services that Plaintiff allegedly refused, 15 and, then, either forged Plaintiff’s signature himself, or had Defendant Resubaut forge Plaintiff’s 16 signature. It is unclear if Plaintiff is referring to the same medical refusal form in these 17 allegations or two different refusal forms. 18 Further, many of Plaintiff’s allegations are ascribed to “CDCR,” “CDCR medical staff,” 19 “CDCR correctional officers,” and “CDCR officers.” Since Plaintiff fails to identify which 20 specific Defendants he is referring to when he states “CDCR,” “CDCR medical staff,” or “CDCR 21 officers,” Plaintiff’s complaint fails to give fair notice of all of the allegations and claims directed 22 against each separately named Defendant. Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. 23 Cal. 1988) (“Plaintiff must allege the basis of his claim against each defendant to satisfy Federal 24 Rule of Civil Procedure 8(a)(2)[.]” (italics added)); see also Van Dyke Ford, Inc. v. Ford Motor 25 Co., 399 F. Supp. 277, 284 (D. Wis. 1975) (“Specific identification of the parties to the activities 26 alleged by the plaintiffs is required … to enable the defendant to plead intelligently.”). 27 For these reasons, Plaintiff’s second amended complaint fails to comply with Rule 8(a)’s 28 simplified pleading standard. 1 b. Supervisory Liability 2 Liability may not be imposed on supervisory personnel for the actions or omissions of 3 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons 4 v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir.2010); Ewing v. City of Stockton, 588 5 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 6 Supervisors may be held liable if they “participated in or directed the violations, or knew of the 7 violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); 8 accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 9 570 (9th Cir. 2009). Supervisory liability may also exist without any personal participation if the 10 official implemented “a policy so deficient that the policy itself is a repudiation of constitutional 11 rights and is the moving force of the constitutional violation.” Redman v. Cnty. of San Diego, 12 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 13 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 14 i. Defendant Lieutenant John Doe 15 Plaintiff alleges that Defendant Lieutenant John Doe failed to adequately supervise his or 16 her subordinate correctional officers, including Defendant Sergeant John Doe. However, as 17 previously stated, a supervisor cannot be held liable under § 1983 based on the actions or 18 omissions of their subordinates. Therefore, Plaintiff has not alleged a cognizable supervisory 19 liability claim against Defendant Lieutenant John Doe. 20 ii. Defendant Santoro 21 First, Plaintiff alleges that Defendant Santoro, the Warden of NKSP, is liable under § 22 1983 because, even though Defendant Santoro was aware of the constant feuding between prison 23 gangs, Defendant Santoro failed to oversee and train officers and staff properly in order to protect 24 the health and safety of the prisoners housed at NKSP. A supervisor’s failure to train 25 subordinates may give rise to individual liability under § 1983 where the failure amounts to 26 deliberate indifference to the rights of persons with whom the subordinates are likely to come into 27 contact. See Canell v. Lightner, 143 F.3d 1210, 1213-14 (9th Cir. 1998). To impose liability 28 under this theory, a plaintiff must demonstrate the subordinate’s training was inadequate, the 1 inadequate training was a deliberate choice on the part of the supervisor, and the inadequate 2 training caused a constitutional violation. Id. at 1214; see also City of Canton v. Harris, 489 U.S. 3 378, 391 (1989); Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001). “A pattern of 4 similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate 5 deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 61 6 (2011) (citation omitted). 7 Here, Plaintiff’s statement that Defendant Santoro failed to train officers and staff 8 properly is conclusory and unsupported by any factual allegations. Initially, Plaintiff has not 9 identified the specific omission in NKSP’s training program that caused one or more named 10 defendants to violate Plaintiff’s constitutional rights or pled facts showing how the omission in 11 NKSP’s training program caused Plaintiff’s alleged constitutional violation. Additionally, 12 Plaintiff has not alleged facts demonstrating that, since the need for any, more or different 13 training was obvious and the inadequacy of the training provided was so likely to result in 14 constitutional violations, Defendant Santoro’s failure to provide any, more, or different training 15 was deliberately indifferent to the need for any, more, or different training. Finally, while 16 Plaintiff has alleged that Defendant Santoro was aware of the constant feuding between prison 17 gangs, Plaintiff has failed to allege any facts to show that Defendant Santoro was aware of a 18 pattern of constitutional violations similar to the alleged constitutional violation that Plaintiff 19 suffered. Therefore, Plaintiff has failed to allege a cognizable supervisory liability claim against 20 Defendant Santoro for failure to train her subordinates. 21 Second, Plaintiff also pleads that Defendant Santoro failed to conduct a formal 22 investigation into the falsification of Rules Violation Reports and facilitation of assaults occurring 23 between prison gangs incited by correctional officers. However, while supervisory liability can 24 exist where a supervisor knew of the violations and failed to act to prevent them, Plaintiff has not 25 alleged any facts demonstrating that Defendant Santoro knew about the falsification of Rules 26 Violation Reports and/or that correctional officers were facilitating prison gang assaults, but 27 failed to do anything, such as conducting an investigation, to prevent the violations from 28 continuing. Therefore, Plaintiff has failed to allege a cognizable supervisory liability claim 1 against Defendant Santoro for failing to act to prevent known continuing constitutional violations. 2 c. Deliberate Indifference 3 i. Failure to Protect 4 Under the Eighth Amendment, prison officials have a duty to protect prisoners from 5 violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). “[A] 6 prison official violates the Eighth Amendment only when two requirements are met. First, the 7 deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or omission 8 must result in the denial of the minimal civilized measure of life’s necessities.” Id. at 834 9 (internal quotation marks and citations omitted). “For a claim (like the one here) based on a 10 failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a 11 substantial risk of serious harm.” Id. Second, the prison official must subjectively have a 12 sufficiently culpable state of mind, “one of deliberate indifference to inmate health or safety.” Id. 13 (internal quotation marks and citations omitted). The official is not liable under the Eighth 14 Amendment unless he “knows of and disregards an excessive risk to inmate health or safety; the 15 official must both be aware of facts from which the inference could be drawn that a substantial 16 risk of serious harm exists, and he must also draw the inference.” Id. at 837. Then, the official 17 must fail to take reasonable measures to abate the substantial risk of serious harm. Id. at 847. 18 Mere negligent failure to protect an inmate from harm is not actionable under § 1983. Id. at 835. 19 Here, Plaintiff asserts that Defendant Santoro, Defendant Lieutenant John Doe, Defendant 20 Sergeant John Doe, and Defendant Resubaut failed to protect him from a risk of harm at the 21 hands of rival prison gang members by housing him in Facility D, Building 3 with the rival gang 22 members. However, Plaintiff has failed to allege any facts demonstrating that Defendants 23 Santoro, Lieutenant John Doe, Sergeant John Doe, and/or Resubaut knew that Plaintiff was an 24 affiliate of the 25 or Dos Cinco prison gang, that the Dos Cinco prison gang was an enemy of the 25 Northern Riders prison gang, and that Facility D, Building 3 housed inmates who were members 26 of, or affiliated with, the Northern Riders. While Plaintiff has pled that “CDCR” was aware of 27 his affiliation with the Dos Cinco prison gang because his affiliation was documented in his 28 county jail custody gang file that was transferred from the jail to NKSP with him, this allegation 1 is insufficient to establish that Defendants Santoro, Lieutenant John Doe, Sergeant John Doe, 2 and/or Resubaut actually knew that Plaintiff was an affiliate of the Dos Cinco prison gang. 3 Additionally, Plaintiff has not pled any facts demonstrating that Defendant Santoro or Defendant 4 Resubaut were personally involved in Plaintiff’s transfer from Facility C, Building 4 to Facility 5 D, Building 3. Therefore, Plaintiff has not stated a cognizable claim for failure to protect against 6 Defendants Santoro, Lieutenant John Doe, Sergeant John Doe, or Resubaut. 7 ii. Denial of Medical Care 8 While the Eighth Amendment of the United States Constitution entitles Plaintiff to 9 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 10 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 11 Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th 12 Cir. 2014); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The two-part test for deliberate 13 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 14 to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and 15 wanton infliction of pain,’” and (2) “the defendant's response to the need was deliberately 16 indifferent.” Jett, 439 F.3d at 1096 (citation omitted). 17 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 18 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 19 837 (1994). The requisite state of mind is one of subjective recklessness, which entails more than 20 ordinary lack of due care. Snow, 681 F.3d at 985. Deliberate indifference may be shown by the 21 denial, delay, or intentional interference with medical treatment or by the way in which medical 22 care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). “Deliberate 23 indifference is a high legal standard,” Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1019 (9th 24 Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there 25 was “a purposeful act or failure to respond to a prisoner's pain or possible medical need” and the 26 indifference caused harm. Jett, 439 F.3d at 1096. 27 In applying this standard, the Ninth Circuit has held that before it can be said that a 28 prisoner's civil rights have been abridged, “the indifference to his medical needs must be 1 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 2 cause of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 3 429 U.S. at 105–06).) “[A] complaint that a physician has been negligent in diagnosing or 4 treating a medical condition does not state a valid claim of medical mistreatment under the Eighth 5 Amendment. Medical malpractice does not become a constitutional violation merely because the 6 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 7 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate 8 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 9 1990). 10 “A difference of opinion between a physician and the prisoner – or between medical 11 professionals – concerning what medical care is appropriate does not amount to deliberate 12 indifference.” Snow, 681 F.3d at 987. “To show deliberate indifference, the plaintiff must show 13 that the course of treatment the doctors chose was medically unacceptable under the 14 circumstances and that the defendants chose this course in conscious disregard of an excessive 15 risk to plaintiff’s health.” Id. 16 1) “CDCR Medical Staff” 17 Plaintiff contends that, after he was assaulted by inmates belonging to a rival prison gang, 18 “CDCR medical staff” failed to properly set his fractured nose, apply proper medical dressings to 19 the fracture, failed to transport him to an outside hospital, or provide him with immediate plastic 20 surgery or immediate access to an outside plastic surgeon in order to prevent disfigurement and 21 damage. However, initially, in order to state a claim under § 1983, Plaintiff is required to allege 22 facts showing that each individual defendant personally participated in the deprivation of his 23 rights. Jones, 297 F.3d at 934. Therefore, allegations against a group of defendants such as the 24 “CDCR medical staff” do not allege a cognizable claim. Here, other than the three specific 25 defendants discussed below, Plaintiff has failed to identify any individual defendant who was 26 aware of Plaintiff’s serious medical need and failed to provide appropriate medical care. 27 Further, Plaintiff’s allegations that the “CDCR medical staff” was deliberately indifferent 28 because they failed to properly set his fractured nose, apply proper medical dressings, send him to 1 an outside hospital, or provide him with immediate access to plastic surgery services are 2 conclusory statements unsupported by sufficient factual allegations. Therefore, Plaintiff has 3 failed to allege a cognizable claim for deliberate indifference to serious medical needs against the 4 “CDCR medical staff.” 5 2) Defendant Beregovskaya 6 Plaintiff contends that, even though Defendant Beregovskaya acknowledged that 7 Plaintiff’s nose was fractured and that there were extreme bone deformities, Defendant 8 Beregovskaya failed to follow procedure and send Plaintiff to an outside hospital for adequate 9 medical care from a plastic surgeon. However, this allegation is contradicted by another 10 allegation in Plaintiff’s second amended complaint that, on an unstated date, correctional officers 11 came to Plaintiff’s cell to take him to a medical examination with a plastic surgeon at an outside 12 hospital. Further, to the extent that Plaintiff is attempting to assert that Defendant Beregovskaya 13 was deliberately indifferent because she did not immediately send Plaintiff to an outside hospital 14 to be examined by a plastic surgeon, Plaintiff has failed to allege that any delay between the date 15 of his injury and the date of his appointment with the outside plastic surgeon was harmful. 16 McGuckin v. Smith, 974 F.2d 1050, 1062 (9th Cir. 1992), overruled on other grounds by WMX 17 Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Therefore, Plaintiff has not 18 stated a cognizable claim against Defendant Beregovskaya for deliberate indifference to 19 Plaintiff’s serious medical needs. 20 3) Defendants Cena and Resubaut 21 Plaintiff contends that Defendant Cena was deliberately indifferent when he filled in a 22 blank refusal form with all of the medical services that Plaintiff allegedly refused and either 23 forged Plaintiff’s signature himself or had Defendant Resubaut forge Plaintiff’s signature. 24 Further, Plaintiff alleges that Defendant Resubaut was deliberately indifferent when he forged, or 25 conspired with Defendant Cena to forge, Plaintiff’s signature on a medical refusal form. 26 However, these allegations appear to be contradicted by the allegation in Plaintiff’s 27 second amended complaint that unnamed CDCR officers obtained a blank refusal form and had 28 Plaintiff sign the blank form and write that he was satisfied with the CDCR medical staff. 1 Further, the actions of completing a refusal form, forging Plaintiff’s signature, or 2 conspiring with someone to forge Plaintiff’s signature on a refusal form are insufficient by 3 themselves to state a claim for deliberate indifference. In order to state a claim for deliberate 4 indifference in such circumstances, Plaintiff must allege facts demonstrating that: (1) Defendants 5 Cena and Resubaut knew that Plaintiff had a serious medical need; (2) that, by completing the 6 refusal form, forging Plaintiff’s signature on the refusal form, and/or conspiring to forge 7 Plaintiff’s signature, Defendants Cena and Resubaut knew that Plaintiff would not be provided 8 with the appropriate medical care Plaintiff needed; (3) that Defendants Cena’s and Resubaut’s 9 actions caused Plaintiff not to receive appropriate medical care; and (4) that he suffered harm by 10 being denied medical treatment due to Defendants Cena’s and Resubaut’s actions. See Shapley v. 11 Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (concluding that prisoner 12 can make “no claim for deliberate medical indifference unless the denial [of medical treatment] 13 was harmful[]”). Therefore, Plaintiff has not stated a cognizable claim against Defendants Cena 14 and Resubaut for deliberate indifference to Plaintiff’s serious medical needs. 15 d. Conspiracy 16 “Conspiracy is not itself a constitutional tort under § 1983. It does not enlarge the nature 17 of the claims asserted by the plaintiff, as there must always be an underlying constitutional 18 violation. Conspiracy may however, enlarge the pool of responsible defendants by demonstrating 19 their causal connections to the violation; the fact of the conspiracy may make a party liable for the 20 unconstitutional actions of the party with whom he has conspired.” Lacey v. Maricopa Cnty., 693 21 F.3d 896, 935 (9th Cir. 2012) (internal citations omitted). 22 To establish a cognizable claim for conspiracy under 42 U.S.C. § 1983, a plaintiff must 23 allege (1) the existence of an express or implied agreement among the defendants to deprive the 24 plaintiff of his constitutional rights, and (2) an actual deprivation of those rights resulting from 25 that agreement. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). To establish a conspiracy, 26 Plaintiff allege specific facts showing “an agreement or meeting of the minds to violate 27 constitutional rights. To be liable, each participant in the conspiracy need not know the exact 28 details of the plan, but each participant must at least share the common objective of the 1 conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal citations and quotation 2 marks omitted). The mere conclusory statement that defendants “conspired” together is not 3 sufficient to state a cognizable claim. Woodrum v. Woodward Cnty., 866 F.2d 1121, 1126 (9th 4 Cir. 1989). 5 Here, Plaintiff alleges that Defendants Cena and Resubaut conspired to complete a blank 6 medical refusal form and forge Plaintiff’s signature on the form in order to “to deflict (sic) 7 [Plaintiff’s] legal intentions” and “cover up any legal actions against the medical facility.” 8 However, Plaintiff’s allegation that Defendant Cena and Resubaut conspired together is 9 conclusory and unsupported by any facts. Further, Plaintiff has not alleged any facts 10 demonstrating that Defendants Cena’s and Resubaut’s actions taken in furtherance of the 11 conspiracy actually deprived Plaintiff of his constitutional rights. Therefore, Plaintiff has not 12 stated a cognizable claim for conspiracy against Defendants Cena and Resubaut. 13 B. Failure to Prosecute and Failure to Obey Court Orders 14 1. Legal Standard 15 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 16 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 17 within the inherent power of the Court.” District courts have the inherent power to control their 18 dockets and “[i]n the exercise of that power they may impose sanctions including, where 19 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 20 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 21 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 22 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 23 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 24 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 25 (dismissal for failure to comply with court order). 26 In determining whether to dismiss an action, the Court must consider several factors: (1) 27 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 28 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 1 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 2 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 3 2. Analysis 4 Here, the instant action has been pending since May 2018. Plaintiff was ordered to file a 5 third amended complaint and has received multiple extensions of time to do so and still failed to 6 comply by filing a third amended complaint. The Court cannot hold this case in abeyance 7 awaiting compliance by Plaintiff. Thus, the Court finds that both the first and second factors 8 weigh in favor of dismissal. 9 The third factor, risk of prejudice to the defendants, also weighs in favor of dismissal, 10 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 11 action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually 12 weighs against dismissal because public policy favors disposition on the merits. Pagtalunan v. 13 Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party 14 whose responsibility it is to move a case toward disposition on the merits but whose conduct 15 impedes progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) 16 Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 17 Finally, the Court’s warning to a party that failure to obey the Court’s order will result in 18 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 19 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s September 23, 2019 and 20 January 6, 2020 orders expressly warned Plaintiff that his failure to comply with the Court’s 21 orders would result in a recommendation to dismiss this action, with prejudice, for failure to state 22 a claim, failure to obey a court order, and failure to prosecute. (ECF Nos. 17, 24.) Thus, Plaintiff 23 had adequate warning that dismissal could result from his noncompliance. 24 Additionally, at this stage in the proceedings, there is little available to the Court which 25 would constitute a satisfactory lesser sanction while also protecting the Court from further 26 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 27 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 28 likely to have no effect given that Plaintiff has ceased litigating his case. 1 Til. 2 ORDER AND RECOMMENDATION 3 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 4 | Fresno District Judge to this action. 5 Furthermore, it is HEREBY RECOMMENDED that this action be dismissed, with 6 | prejudice, based on Plaintiffs failure to state any cognizable claim upon which relief may be 7 | granted, failure to obey the Court’s September 23, 2019 and January 6, 2020 orders, and failure to 8 | prosecute this action. 9 These findings and recommendation will be submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 11 | days after being served with these findings and recommendation, Plaintiff may file written 12 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 13 | Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 14 || specified time may result in the waiver of the “right to challenge the magistrate’s factual 15 | findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting Baxter v. 16 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. OF. nf ee 19 | Dated: _February 4, 2020_ Oe UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 18