(PC) Garcia v. Diaz

Opinion

3 4

6 7

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

10 11 JAMES GREGORY GARCIA, No. 1:20-cv-0669 DAD JLT (PC)

12 Plaintiff, ORDER REQUIRING PLAINTIFF TO SUBMIT A RESPONSE 13 v. (Doc. 10) THIRTY-DAY DEADLINE 14 RALPH M. DIAZ, et al., 15 Defendants. 16 17 Plaintiff has filed a first amended complaint asserting constitutional claims against a 18 governmental employee. (Doc. 10.) Generally, the Court is required to screen complaints brought 19 by inmates seeking relief against a governmental entity or an officer or employee of a governmental 20 entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner 21 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief 22 may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 23 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have 24 been paid, the court shall dismiss the case at any time if the court determines that . . . the action or 25 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 26 I. Pleading Standard 27 A complaint must contain “a short and plain statement of the claim showing that the pleader 28 is entitled to relief. . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 2 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 3 do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 4 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted inferences,” Doe I 5 v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 6 omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. 7 at 678. 8 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” 9 See 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate that 10 each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 11 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a 12 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 13 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 14 liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 15 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short 16 of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 17 II. Plaintiff’s Allegations 18 Plaintiff brings suit for the denial of his request for a special assignment pursuant to 19 California Code of Regulations, title 15, § 3043.7, which occurred while he was a state inmate 20 housed at California Substance Abuse Treatment Facility and State Prison (“CSATF”). The four 21 named defendants are Ralph M. Diaz, Secretary of the California Department of Corrections and 22 Rehabilitation; CSATF Warden Stu Sherman; Clarence Cryer, CSATF Chief Medical Officer 23 (“CMO”); and Laura Merritt, a nurse practitioner at CSATF. Plaintiff seeks declaratory relief and 24 damages. 25 The first amended complaint proceeds on eight causes of action: (1) deliberate indifference 26 under the Eighth Amendment, (2) equal protection under the Fourteenth Amendment, (3) 27 “deliberate indifference to prison policy under tort within the laws of the State of California,” (4) 28 “equal protection to prison policy under tort within the laws of the State of California,” (5) due 2 process under the Fourteenth Amendment, (6) “due process to prison policy under tort within the 3 laws of the State of California,” (7) “liberty interest under the Fourteenth Amendment of the United 4 States Constitution,” and (8) “liberty interest to prison policy under tort within the laws of the State 5 of California.” Plaintiff’s allegations may be fairly summarized as follows: 6 Plaintiff is legally blind. On January 12, 2019, he submitted a Health Care Services Request 7 Form.1 Though plaintiff does not specify the nature of his request, the allegations in the remainder 8 of the pleading suggest that he sought to be placed on special assignment pursuant to California 9 Code of Regulations, title 15, § 3043.7. This section authorizes institutional staff to reclassify the 10 work group on a short-term or long-term basis of inmates with disabilities who are unable to 11 participate in work, academic, or career programs. Apparently, plaintiff sought a medically disabled 12 assignment because he is legally blind. This type of special assignment would relieve plaintiff of 13 various work assignments and/or training programs. 14 Defendant Nurse Merritt was assigned to interview plaintiff and respond to the request on 15 January 28, 2019. At the interview, Nurse Merritt asked, “You can hear me, right?” Plaintiff 16 responded affirmatively. Nurse Merritt then asked, “Well, you can speak and hear so your [sic] not 17 totally disable[d].” She then called Defendant CMO Cryer and said over the phone, “I have an 18 inmate who[’s] vision impaired that wants me to place him on totally disable assignment but I don’t 19 see anything wrong with him.” When Nurse Merritt hung up the phone, she turned to plaintiff and 20 said, “I stand to be corrected, per CMO your [sic] not disable.” 21 As a result of the defendants’ refusal to authorize the medically disabled status, plaintiff 22 claims that he has been denied Milestone Completion Credits, Rehabilitative Achievement Credits, 23 Education Merit Credits, Extraordinary Conduct Credits, and Special Assignment Credits. 24 Plaintiff accuses Nurse Merritt and CMO Cryer of colluding to deny plaintiff and other 25 similarly situated inmates (i.e., legally blind inmates) from receiving the benefit of § 3043.7. 26 Though not entirely clear, it appears he claims that Warden Sherman and CDCR Secretary Diaz 27 are responsible for ensuring that staff comply with state policies. Plaintiff claims that his equal 28 1 Plaintiff refers to this and several other documents that are purportedly attached to his pleading. There are, however, no attachments to the pleading. 2 protection rights, his due process rights, and his right to be free from deliberate indifference under 3 the U.S. and California constitutions were violated by the defendants. 4 III. Discussion 5 A. Linkage 6 Under § 1983, the plaintiff must demonstrate that each named defendant personally 7 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo 8 County, 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 9 (9th Cir. 2009). Liability may not be imposed on supervisory personnel under the theory of 10 respondeat superior. Iqbal, 556 U.S. at 676-77. Supervisory personnel may only be held liable if 11 they “participated in or directed the violations, or knew of the violations and failed to act to 12 prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 13 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012). 14 Plaintiff’s allegations against Warden Sherman and CDCR Secretary Diaz appear to be 15 based solely on their role as supervisory personnel. There is no indication that either personally 16 participated in the alleged deprivation of plaintiff’s rights or knew of the violations and failed to 17 act. Accordingly, any claim against these two defendants must be dismissed. 18 B. Violation of Prison Regulations 19 At its crux, plaintiff’s first amended complaint takes issue with the defendants’ failure to 20 recognize plaintiff’s qualification for medically disabled status under § 3043.7. As a general rule, 21 though, the violation of state regulations does not rise to the level of a constitutional violation. See 22 Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989), overruled on other grounds, Nettles v. 23 Grounds, 830 F.3d 922 (9th Cir. 2016); Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981). 24 Therefore, a state employee’s failure to follow state law does not state a claim under Section 1983. 25 C. Fourteenth Amendment Equal Protection 26 Equal protection claims arise when a charge is made that similarly situated individuals are 27 treated differently without a rational relationship to a legitimate state purpose. See San Antonio 28 School District v. Rodriguez, 411 U.S. 1 (1972). Prisoners are protected from invidious 2 discrimination based on race. See Wolff, 418 U.S. at 556. Racial segregation is unconstitutional 3 within prisons save for the necessities of prison security and discipline. See Cruz v. Beto, 405 U.S. 4 319, 321 (1972) (per curiam). Prisoners are also protected from intentional discrimination on the 5 basis of their religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Equal protection 6 claims are not necessarily limited to racial and religious discrimination. See Lee v. City of Los 7 Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001) (applying minimal scrutiny to equal protection claim 8 by a disabled plaintiff because the disabled do not constitute a suspect class); see also Tatum v. 9 Pliler, 2007 WL 1720165 (E.D. Cal. 2007) (applying minimal scrutiny to equal protection claim 10 based on denial of in-cell meals where no allegation of race-based discrimination was made); 11 Hightower v. Schwarzenegger, 2007 WL 732555 (E.D. Cal. Mar. 19, 2008). 12 In order to state a § 1983 claim based on a violation of the Equal Protection Clause of the 13 Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional 14 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that such 15 conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v. Olech, 16 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class of one”); 17 Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. Harrington, 152 18 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 471 (9th 19 Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). 20 Plaintiff’s allegations do not meet the standard to state an equal protection claim. Though 21 plaintiff claims that he and other vision-impaired inmates are treated differently than other inmates, 22 his allegations are too vague and conclusory to proceed against any of the named defendants. 23 Accordingly, this claim must be dismissed. 24 D. Fourteenth Amendment Due Process 25 Plaintiff’s due process claim is apparently predicated on the belief that he has a federally 26 protected interest in being granted a special assignment pursuant to § 3043.7 and that the denial of 27 his request deprived him of due process of law. Of course, inmates “may not be deprived of life, 28 liberty, or property without due process of law.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 2 However, “there must be mutual accommodation between institutional needs and objectives and 3 the provisions of the Constitution that are of general application.” Wolff, 418 U.S. at 556. Thus, in 4 the context of prisoners’ claims the United States Supreme Court has emphasized that “federal 5 courts ought to afford appropriate deference and flexibility to state officials trying to manage a 6 volatile environment.” Sandin v. Conner, 515 U.S. 472, 482 (1995). In fact, “[s]uch flexibility is 7 especially warranted in the fine-tuning of the ordinary incidents of prison life,” Id. The process due 8 depends upon the interest at stake. See Wolff, 418 U.S. at 557–58. Thus, the first step in assessing 9 a due process claim is to identify the interest at stake. See Board of Regents of State Colleges v. 10 Roth, 408 U.S. 564, 569 (1972). 11 The starting point in any due process analysis is whether the plaintiff has a constitutionally 12 cognizable liberty or property interest protected by the Fourteenth Amendment. The Ninth Circuit 13 has not addressed whether a prisoner has a liberty interest in receiving a special work assignment 14 pursuant to § 3043.7. It has, however, determined that “the Due Process Clause of the Fourteenth 15 Amendment ‘does not create a property or liberty interest in prison employment[.]” Walker v. 16 Gomez, 370 F.3d 969, 973 (9th Cir. 2004) (quoting Ingram v. Papalia, 804 F.2d 595, 596 (10th 17 Cir.1986) (per curiam); and citing Baumann v. Ariz. Dep’t of Corr., 754 F.2d 841, 846 (9th 18 Cir.1985)); see also Rainer v. Chapman, 513 Fed. Appx. 674, 675 (9th Cir. 2013) (holding that the 19 district court properly dismissed the California prisoner-plaintiff’s “due process claims based on 20 his removal from his work assignment and transfer from the facility where his job was located 21 because these allegations did not give rise to a constitutionally protected liberty or property 22 interest”); Barno v. Ryan, 399 Fed. Appx. 272, 273 (9th Cir. 2010) (holding that possible loss of a 23 state prison job due to a California state prisoner’s classification as a sex offender did not violate 24 the prisoner’s Fourteenth Amendment or Eighth Amendment rights); Gray v. Hernandez, 651 F. 25 Supp. 2d 1167, 1177 (S.D. Cal. 2009) (stating that “[w]hile state statutes and prison regulations 26 may grant prisoners liberty interests sufficient to invoke due process protections, the instances in 27 which due process can be invoked are significantly limited,” and holding that a California state 28 prisoner had not shown “a right to prison employment” protected under the Due Process Clause); 2 Hunter v. Heath, 95 F. Supp. 2d 1140, 1147 (D. Or. 2000) (“It is uniformly well established 3 throughout the federal circuit courts that a prisoner's expectation of keeping a specific prison job, 4 or any job, does not implicate a property or liberty interest under the Fourteenth Amendment.”), 5 rev’d on other grounds, 26 Fed. Appx. 764, 755 (9th Cir. 2002). In light of the foregoing, plaintiff 6 does not have a protected liberty interest in prison employment or relief therefrom. Accordingly, 7 his due process claim under the Fourteenth Amendment fails. 8 E. Eighth Amendment Deliberate Indifference 9 Plaintiff next asserts a claim for “deliberate indifference” under the Eighth Amendment. 10 Generally, the Eighth Amendment protect inmates from deliberate indifference to their health and 11 safety. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). Plaintiff does not specify how his Eighth 12 Amendment rights were violated by the defendants’ alleged denial of a special assignment, and the 13 Court is unaware of any basis for this claim on the facts alleged. Accordingly, this claim must be 14 dismissed as non-cognizable. 15 F. State Law Claims 16 As discussed supra, plaintiff fails to state a cognizable federal claim. His remaining claims 17 are based in state law. Pursuant to Section 1367(a) of Title 28 of the United States Code, in any 18 civil action in which the district court has original jurisdiction, the district court “shall have 19 supplemental jurisdiction over all other claims in the action within such original jurisdiction that 20 they form part of the same case or controversy under Article III,” except as provided in subsections 21 (b) and (c). “[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction 22 over state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 23 1000 (9th Cir. 1997). “The district court may decline to exercise supplemental jurisdiction over a 24 claim under subsection (a) if...the district court has dismissed all claims over which it has original 25 jurisdiction.” 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that, “if the federal claims 26 are dismissed before trial, ...the state claims should be dismissed as well.” United Mine Workers of 27 Am. v. Gibbs, 383 U.S. 715, 725 (1996). 28 Due to the Court’s determination that plaintiff fails to state a federal claim against any 2 defendant, the Court concludes, in its discretion, that the exercise of jurisdiction over plaintiff’s 3 remaining claim for violation of state law should be declined. 4 IV. Conclusion 5 Plaintiff’s complaint fails to state a claim on which relief may be granted. The Court will 6 grant plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448- 7 49 (9th Cir. 1987). If plaintiff does not wish to amend, he may instead file a notice of voluntary 8 dismissal, and the action then will be terminated by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i). 9 Alternatively, plaintiff may forego amendment and notify the Court that he wishes to stand on his 10 complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may 11 elect to forego amendment). If the last option is chosen, the undersigned will issue findings and 12 recommendations to dismiss the complaint, plaintiff will have an opportunity to object, and the 13 matter will be decided by a District Judge. 14 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation 15 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual 16 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 17 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his 18 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d 19 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts 20 on curing the deficiencies set forth above. 21 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be 22 complete without reference to any prior pleading. As a general rule, an amended complaint 23 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an 24 amended complaint is filed, the original complaint no longer serves a function in the case. Id. 25 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 26 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in 27 bold font, “Second Amended Complaint,” reference the appropriate case number, and be an original 28 signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 8(a). 2 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief 3 above the speculative level. . .” Twombly, 550 U.S. at 555 (citations omitted). Accordingly, the 4 Court ORDERS that: 5 1. Within thirty days from the date of service of this order, plaintiff must file either a 6 second amended complaint curing the deficiencies identified by the Court in this 7 order, a notice of voluntary dismissal, or a notice of election to stand on the 8 complaint; and 9 2. If plaintiff fails to file a second amended complaint or notice of voluntary dismissal, 10 the Court will recommend the action be dismissed, with prejudice, for failure to 11 obey a court order and failure to state a claim. 12 IT IS SO ORDERED. 13 14 Dated: December 15, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 15

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