1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE JONES, No. 2:24-cv-0787 TLN AC P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a state inmate who filed this civil rights action pursuant to 42 U.S.C. § 1983 19 without a lawyer. He has requested leave to proceed without paying the full filing fee for this 20 action, under 28 U.S.C. § 1915. ECF No. 6. Plaintiff has submitted a declaration showing that he 21 cannot afford to pay the entire filing fee. See 28 U.S.C. § 1915(a)(2). Accordingly, plaintiff’s 22 motion to proceed in forma pauperis is granted.1 23 //// 24 1 This means that plaintiff is allowed to pay the $350.00 filing fee in monthly installments that 25 are taken from the inmate’s trust account rather than in one lump sum. 28 U.S.C. §§ 1914(a). As 26 part of this order, the prison is required to remove an initial partial filing fee from plaintiff’s trust account. See 28 U.S.C. § 1915(b)(1). A separate order directed to the appropriate agency 27 requires monthly payments of twenty percent of the prior month’s income to be taken from plaintiff’s trust account. These payments will be taken until the $350 filing fee is paid in full. 28 See 28 U.S.C. § 1915(b)(2). 1 I. Statutory Screening of Prisoner Complaints 2 The court is required to screen complaints brought by prisoners seeking relief against “a 3 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A 4 claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. 5 Williams, 490 U.S. 319, 325 (1989). The court may dismiss a claim as frivolous if it is based on 6 an indisputably meritless legal theory or factual contentions that are baseless. Id., 490 U.S. at 7 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an 8 arguable legal and factual basis. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), 9 superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 10 2000). 11 In order to avoid dismissal for failure to state a claim a complaint must contain more than 12 “naked assertion[s],” “labels and conclusions,” or “a formulaic recitation of the elements of a 13 cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007). In other words, 14 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 15 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim upon which the 16 court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial 17 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 18 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation 19 omitted). When considering whether a complaint states a claim, the court must accept the 20 allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and construe the 21 complaint in the light most favorable to the plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421 22 (1969) (citations omitted). 23 II. Factual Allegations of the Complaint2 24 The complaint alleges that defendants California Department of Corrections and
25 2 Plaintiff filed both a criminal and civil complaint in this case. ECF No. 1 at 1-4, 11-25. In each 26 he states his claims against the named defendants based on events that occurred at California Health Correctional Facility (“CHCF”) from January 22, 2024, to February 23, 2024. Because it 27 appears plaintiff submitted both complaints because he was unsure which to file, for purposes of screening all the allegations contained in these documents are considered part of the civil rights 28 complaint. Only prosecutors, not private persons, can bring criminal charges. 1 Rehabilitation (“CDCR”), Moreno, Buzo, Cabalero, Hentschel, and all employees at the 2 California Health Care Facility (“CHCF”) violated plaintiff’s rights under several California 3 regulations, the California Constitution, and the United States Constitution. ECF No. 1. 4 Specifically, plaintiff alleges that on January 22, 2024, defendant Buzo threatened to give him a 5 rules violation report (“RVR”) if he did not move to a dorm cell so that another prisoner could 6 use plaintiff’s ADA wheelchair cell. Id. at 3, 14. When plaintiff refused and submitted a CDCR 7 1824 form requesting a reasonable accommodation and a health care grievance form to ensure his 8 continued assignment to an ADA wheelchair cell, defendants Buzo, Cabalero, and Moreno 9 conspired and retaliated against him. Id. at 3, 4, 14-17. 10 Plaintiff alleges that, on January 31, 2024, during a confidential court call, defendant 11 Cabalero refused to leave the room, despite plaintiff advising her that it was a confidential call 12 and having previously objected to her presence on the same basis. Id. at 3, 14, 15. On February 13 7, 2024, defendant Moreno summoned plaintiff in an aggravating, aggressive, and loud tone; 14 shoved an incorrect Disability Accommodation Summary form at him indicating he is a 15 temporary wheelchair user rather than a permanent wheelchair user; ignored his response that the 16 form was incorrect; refused to receive documents from plaintiff showing he was a permanent 17 wheelchair user after the incorrect form was given to him; and referenced a CDCR 1824 form, 18 which is a medical form, that she should not have because it’s confidential. Id. at 4, 15, 16; see 19 also Id. at 33 (grievance alleging Moreno violated plaintiff’s rights under HIPAA). 20 On February 12, 2024, in front of defendants Cabalero, Buzo, and Hentschel, plaintiff’s 21 primary care physician confirmed his Disability Accommodation Summary Form was incorrect 22 and that plaintiff is a permanent, not temporary, wheelchair user. Id. at 4, 16. The next day, 23 Hentschel, escorted by Buzo, had Buzo confiscate plaintiff’s walker, which plaintiff alleges was 24 given to him to exercise his legs. Id. at 16, 18. On February 21, 2024, defendant Moreno 25 referenced two other CDCR 1824 forms, which she should not have, and two days later she 26 ordered another staff member to yell at plaintiff to keep moving on the walkway when he stopped 27 to catch his breath while pushing his wheelchair. Id. at 4, 16, 17. 28 By way of relief, plaintiff seeks declaratory, injunctive, and monetary relief. 1 III. Claims for Which a Response Will Be Required 2 After conducting the screening required by 28 U.S.C. § 1915A(a), and drawing all 3 inferences in the plaintiff’s favor, the court finds that for screening purposes plaintiff sufficiently 4 states an Eighth Amendment deliberate indifference claim to his health and safety against 5 defendant Hentschel. It can be reasonably inferred from plaintiff’s allegations that Hentschel 6 was aware that plaintiff needed the walker for exercise or even to get to and from the toilet, but 7 nevertheless confiscated the walker after plaintiff complained about his incorrect disability 8 designation. Also, although plaintiff does not appear to be making an Americans with 9 Disabilities (“ADA”) Title II claim based on exclusion from participation in or denial of the 10 benefits of CDCR’s or CHCF’s services, programs, or activities, he does allege Title II retaliation 11 against CDCR and CHCF based on defendant Hentschel’s alleged conduct, and Title V retaliation 12 against defendant Hentschel. The latter claims are adequate to proceed. 13 IV. Failure to State a Claim 14 The allegations in the complaint are not sufficient to state the following: § 1983 claims 15 against CDCR and CHCF; § 1983 claims against any defendant based on state law and/or state 16 regulations; claims against “all employees” of CHCF; First Amendment retaliation claims against 17 all defendants; ADA retaliation or Eighth Amendment claims against Cabalero, Buzo, or Moreno; 18 Fourteenth Amendment Equal Protection Clause or Due Process Clause claims against all 19 defendants; a Health Insurance Portability and Accountability Act (“HIPAA”) violation claim 20 against Moreno; or conspiracy claims against all defendants. 21 CDCR and CHCF are not “person[s]” for purposes of § 1983 liability and the Eleventh 22 Amendment bars suits against them. Section 1983 claims based on alleged violations of state 23 laws and/or regulations are not cognizable because § 1983 claims must be based on violations of 24 federal constitutional rights, not state rights. 25 Plaintiff cannot make a blanket claim against “all employees” of CHCF. To state a § 1983 26 claim against any CHCF employee he must alleged what each CHCF employee did or did not do 27 to violate his rights, which he has not done. 28 Plaintiff also fails to allege that he was engaged in First Amendment protected conduct 1 and that any of the defendants’ adverse actions were because of plaintiff’s participation in 2 protected conduct. Unlike filing a grievance or complaint, which is First Amendment protected 3 conduct, filing a reasonable accommodation request is not. And although plaintiff claims he filed 4 CDCR 602 grievances on February 1st and 24th, he does not state the content of those grievances 5 to allow the court to infer whether any conduct by defendants was retaliatory. Instead, he claims 6 to have attach copies of these grievances. However, the court does not see any grievances dated 7 February 1, 2024, and any grievance filed on or after February 24, which is after the alleged 8 unlawful conduct by any defendant, with no subsequent alleged misconduct, would not support a 9 retaliation claim. See ECF No. 1 at 29 (received by CDCR March 5, 2024), 32-33 (submitted by 10 plaintiff February 24, 2024), 42 (received by CDCR February 5, 6, or 8; stamp partially 11 illegible).3 Moreover, the only adverse action alleged is the confiscation of plaintiff’s walker, 12 however the confiscation is not connected to any First Amendment protected conduct. 13 With respect to ADA retaliation, plaintiff has not alleged any facts to infer he was 14 engaged in protected activity under the ADA, such as asserting his rights under the ADA, and that 15 as a result defendants Cabalero and/or Moreno took adverse actions against him. In fact, plaintiff 16 fails to allege any adverse actions by defendants Cabalero and Moreno. Moreover, even if the 17 court construed Cabalero’s refusal to leave during plaintiff’s confidential court hearing an adverse 18 action, plaintiff does not allege that Cabalero’s refusal had anything to do with plaintiff engaging 19 in any protected activity under the ADA, especially where his requests for accommodations were 20 submitted after this incident. As for an ADA retaliation claim against defendant Buzo, plaintiff 21 defeats his own claim. Plaintiff alleges that Buzo confiscated his walker (i.e. took an adverse 22 action) because medical directed him to, not because plaintiff refused to give up his ADA 23
24 3 The court notes that although it reviewed the exhibits attached to the complaint as a one-time courtesy, it is not the duty of the court to look through the attached exhibits to determine whether 25 they contain additional facts that would support a cognizable claim under § 1983. Rather, the 26 court looks to the factual allegations contained in the complaint to determine whether plaintiff has stated a cognizable claim for relief. If plaintiff elects to amend the complaint, he is discouraged 27 from including attachments (e.g. letters, grievances, responses, declarations from others, etc.) to the complaint. Instead, plaintiff should use this district’s complaint form and focus on explaining 28 to the court what each defendant did that he believes violated his rights. 1 wheelchair cell or because plaintiff engaged in any other ADA protected conduct. 2 Plaintiff fails to state Eighth Amendment claims against Buzo, Cabalero, and Moreno 3 because he has not alleged that they delayed or denied him medical care or treatment for a 4 “serious medical need” or that he was otherwise deprived of a sufficiently serious deprivation, 5 and that they did so with the requisite culpable state of mind. Mere threats and/or yelling and 6 false disciplinaries are insufficient to state an Eighth Amendment claim. And although Buzo’s 7 confiscation of plaintiff’s walker could be denial of treatment, to the extent the walker was part of 8 plaintiff’s treatment plan, Buzo lacked the requisite state of mind because he took the walker at 9 the direction of medical. 10 Plaintiff fails to state a Fourteenth Amendment claim against any defendant based on race 11 because he offers nothing but superficial and conclusory allegations that defendants discriminated 12 against him based on race. To the extent plaintiff attempts to make a Fourteenth Amendment 13 claim based on disability discrimination, such claim fails because disabled persons are not a 14 suspect class for equal protection purposes, and plaintiff has not alleged facts suggesting that 15 similarly situated individuals were intentionally treated differently with no legitimate government 16 purpose. 17 Plaintiff also fails to state a Fourteenth Amendment due process claim. A claim regarding 18 the conditions of his confinement is properly raised under the Eighth Amendment, rather than the 19 Fourteenth Amendment, and has been addressed above. Additionally, to the extent plaintiff is 20 attempting to allege his property (walker) was taken intentionally and without authorization, such 21 claim is not cognizable under the Fourteenth Amendment Due Process Clause because California 22 law provides an adequate post-deprivation remedy. 23 It is not entirely clear, but it appears plaintiff may be attempting to state a Health 24 Insurance Portability and Accountability Act (“HIPAA”) violation against Moreno. However, 25 there is no private right of action to enforce HIPAA or seek relief for HIPAA violations. 26 Lastly, plaintiff’s conclusory allegations that defendants conspired to violate his rights are 27 insufficient. Also, a conspiracy requires two or more people but, as noted in the prior section, 28 plaintiff has only stated a constitutional claim against one defendant. 1 It appears to the court that plaintiff may be able to allege facts to fix some of these 2 problems. Therefore, plaintiff has the option of filing an amended complaint. 3 V. Options from Which Plaintiff Must Choose 4 Based on the court’s screening, plaintiff has a choice to make. After selecting an option 5 from the two options listed below, plaintiff must return the attached Notice of Election form to 6 the court within 21 days from the date of this order. 7 The first option available to plaintiff is to proceed immediately against defendants 8 CDCR, CHCF, and Hentschel on his ADA retaliation claim and Eighth Amendment 9 deliberate indifference to health and safety claim against Hentschel. By choosing this 10 option, plaintiff will be agreeing to voluntarily dismiss: § 1983 claims against CDCR and 11 CHCF; § 1983 claims against all defendants based on state law and/or state regulations; 12 claims against “all employees” of CHCF; First Amendment retaliation claims against all 13 defendants; ADA retaliation or Eighth Amendment claims against Cabalero, Buzo, or 14 Moreno; Fourteenth Amendment Equal Protection Clause or Due Process Clause claims 15 against all defendants; a Health Insurance Portability and Accountability Act (“HIPAA”) 16 violation claim against Moreno; and conspiracy claims against all defendants. The court 17 will proceed to immediately serve the complaint and order a response from defendants 18 CDCR, CHCF, and Hentschel. 19 The second option available to plaintiff is to file an amended complaint to fix the 20 problems described in Section IV regarding his First, Eighth, and Fourteenth Amendment 21 claims, as well as his conspiracy and ADA retaliation claims against Buzo, Cabalero, and 22 Moreno. If plaintiff chooses this option, the court will set a deadline in a subsequent order 23 to give plaintiff time to file an amended complaint. 24 VI. Plain Language Summary of this Order for Party Proceeding Without a Lawyer 25 Some of the allegations in the complaint state claims against the defendants and some do 26 not. You have stated retaliation claims under the ADA against CDCR, CHCF, and Hentschel, 27 and an Eighth Amendment claim against Hentschel. You have not stated any other claims against 28 these defendants or any claims against defendants Buzo, Cabalero, and Moreno. 1 You have a choice to make. You may either (1) proceed immediately on your ADA 2 retaliation claim against CDCD, CHCF, and Hentschel, and Eighth Amendment claim against 3 Hentschel and voluntarily dismiss the other claims; or (2) try to amend the complaint. To decide 4 whether to amend your complaint, the court has attached the relevant legal standards that may 5 govern your claims for relief. See Attachment A. Pay particular attention to these standards if 6 you choose to file an amended complaint. 7 CONCLUSION 8 In accordance with the above, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 6) is GRANTED. 10 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 11 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 12 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 13 appropriate agency filed concurrently herewith. 14 3. Plaintiff fails to state § 1983 claims against CDCR and CHCF; § 1983 claims against 15 all defedants based on state law and/or state regulations; any claims against “all employees” of 16 CHCF; First Amendment retaliation claims against all defendants; ADA retaliation or Eighth 17 Amendment claims against Cabalero, Buzo, or Moreno; Fourteenth Amendment Equal Protection 18 Clause or Due Process Clause claims against all defendants; a Health Insurance Portability and 19 Accountability Act (“HIPAA”) violation claim against Moreno; and conspiracy claims against all 20 defendants. 21 4. Plaintiff has the option to proceed immediately on his ADA retaliation claim against 22 defendants CDDR, CHCF, and Hentschel, and an Eighth Amendment claim against Hentschel as 23 set forth in Section III above, or to file an amended complaint. 24 5. Within 21 days from the date of this order, plaintiff shall complete and return the 25 attached Notice of Election form notifying the court whether he wants to proceed on the screened 26 complaint or whether he wants to file an amended complaint. 27 6. If plaintiff does not return the form, the court will assume that he is choosing to 28 proceed on the complaint as screened and will recommend dismissal without prejudice of § 1983 1 || claims against CDCR and CHCF; § 1983 claims against all defendants based on state law and/or 2 || state regulations; claims against “all employees” of CHCF; First Amendment retaliation claims 3 || against all defendants; ADA retaliation or Eighth Amendment claims against Cabalero, Buzo, or 4 | Moreno; Fourteenth Amendment Equal Protection Clause or Due Process Clause claims against 5 || all defendants; a Health Insurance Portability and Accountability Act (“HIPAA”) violation claim 6 || against Moreno; and conspiracy claims against all defendants. 7 7. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 8 | form used in this district. If plaintiff files an amended complaint, he is directed to use this 9 || district’s form to do so. 10 | DATED: May 2, 2025 . . 1] Cthten— Lape ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 EDDIE JONES, No. 2:24-cv-0787 TLN AC P 9 Plaintiff, 10 v. NOTICE OF ELECTION 11 CALIFORNIA DEPARTMENT OF 12 CORRECTIONS, et al.,
13 Defendants.
14 15 Check one: 16 _____ Plaintiff wants to proceed immediately on his ADA retaliation claim against defendants 17 CDCR, CHCF, and Hentschel, and an Eighth Amendment claim against Hentschel without amending the complaint. Plaintiff understands that by choosing this option, the 18 § 1983 claims against CDCR and CHCF; § 1983 claims against all defendants based on state law and/or state regulations; claims against “all employees” of CHCF; First 19 Amendment retaliation claims against all defendants; ADA retaliation or Eighth Amendment claims against Cabalero, Buzo, or Moreno; Fourteenth Amendment Equal 20 Protection Clause or Due Process Clause claims against all defendants; a Health Insurance Portability and Accountability Act (“HIPAA”) violation claim against Moreno; and 21 conspiracy claims against all defendants will be voluntarily dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a). 22 23 _____ Plaintiff wants time to file an amended complaint. 24 DATED:_______________________ 25 Eddie Jones Plaintiff pro se 26 27 28 1 Attachment A 2 This Attachment provides, for informational purposes only, the legal standards that may 3 apply to your claims for relief. Pay particular attention to these standards if you choose to file an 4 amended complaint. 5 I. Legal Standards Governing Amended Complaints 6 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 7 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 8 423 U.S. 362, 370-71 (1976). Also, the complaint must specifically identify how each named 9 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 10 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 11 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 12 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 13 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 14 268 (9th Cir. 1982) (citations omitted). 15 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 16 his amended complaint complete. See Local Rule 220. This is because, as a general rule, an 17 amended complaint replaces the prior complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) 18 (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 19 2012). Therefore, in an amended complaint, every claim and every defendant must be included. 20 II. Legal Standards Governing Substantive Claims for Relief 21 A. Section 1983 22 Section 1983 provides in relevant part: 23 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 24 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 25 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action 26 at law, suit in equity, or other proper proceeding for redress . . . . 27 42 U.S.C. § 1983. Accordingly, “the requirements for relief under [§] 1983 have been articulated 28 as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) 1 proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. 2 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (emphasis added). 3 An officer’s violation of state laws and/or regulations is not grounds for a § 1983 claim. 4 See Case v. Kitsap County Sheriff’s Dept., 249 F.3d 921, 930 (9th Cir. 2001) (quoting Gardner v. 5 Howard, 109 F.3d 427, 430 (8th Cir 1997) (“[T]here is no § 1983 liability for violating prison 6 policy. [Plaintiff] must prove that [the official] violated his constitutional right . . .”)). Violations 7 of state law and regulations cannot be remedied under § 1983 unless they also violate a federal 8 constitutional or statutory right. See Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) 9 (section 1983 claims must be premised on violation of federal constitutional right); Sweaney v. 10 Ada Cty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (section 1983 creates cause of action for 11 violation of federal law); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996) 12 (federal and state law claims should not be conflated; “[t]o the extent that the violation of a state 13 law amounts the deprivation of a state-created interest that reaches beyond that guaranteed by the 14 federal Constitution, Section 1983 offers no redress”). 15 B. Personal Involvement 16 The civil rights statute requires that there be an actual connection or link between the 17 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 18 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978); Rizzo v. Goode, 423 19 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation 20 of a constitutional right, within the meaning of section 1983, if he does an affirmative act, 21 participates in another’s affirmative acts or omits to perform an act which he is legally required to 22 do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 23 (9th Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff 24 must link each named defendant with some affirmative act or omission that demonstrates a 25 violation of plaintiff’s federal rights. 26 C. First Amendment Retaliation 27 “Within the prison context, a viable claim of First Amendment retaliation entails five 28 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 1 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 2 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 3 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citations omitted). 4 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 5 F.3d 1283, 1288 (9th Cir. 2003). Harm that “would chill a ‘person of ordinary firmness’ from 6 complaining” is sufficient to find an “adverse action.” Shepard v. Quillen, 840 F.3d 686, 691 (9th 7 Cir. 2016) (quoting Rhodes, 408 F.3d at 569) (placement in administrative segregation or even 8 threat to do so on its own amounts to adverse action satisfying the first element). The mere threat 9 of harm can be a sufficiently adverse action to support a retaliation claim. Id. at 688-89. 10 D. Eighth Amendment - Deliberate Indifference 11 “[A] prison official violates the Eighth Amendment only when two requirements are met. 12 First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or 13 omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer 14 v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Second, 15 the prison official must subjectively have a sufficiently culpable state of mind, “one of deliberate 16 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). The 17 official is not liable under the Eighth Amendment unless he “knows of and disregards an 18 excessive risk to inmate health or safety.” Id. at 837. He must then fail to take reasonable 19 measures to lessen the substantial risk of serious harm. Id. at 847. Negligent failure to protect an 20 inmate from harm is not actionable under § 1983. Id. at 835. 21 Allegations that a plaintiff “was yelled at by prison officials [is] not objectively serious 22 enough to rise to a constitutional claim.” Taggart v. MacDonald, 131 Fed. App’x 544, 546 (9th 23 Cir. 2005); Snowden v. Tate, No. 1:19-cv-0843 AWI CDB (PC), 2022 WL 14746828, at *10, 24 2022 U.S. Dist. LEXIS 194124, at *27 (E.D. Cal. Oct. 25, 2022) (verbal harassment or abuse, 25 such as “yelling at a patient may be rude but does not show deliberate indifference” (citation 26 omitted)). 27 //// 28 //// 1 E. Eighth Amendment – False Disciplinaries 2 “The issuance of Rules Violation Reports, even if false, does not rise to the level of cruel 3 and unusual punishment.” Cauthen v. Rivera, No. 1:12-cv-1747 LJO DLB, 2013 WL 1820260, at 4 *10, 2013 U.S. Dist. LEXIS 62472, at *24 (E.D. Cal. April 30, 2013) (citations omitted), adopted 5 by 2013 WL 3744408, 2013 U.S. Dist. LEXIS 98595; Jones v. Prater, No. 2:10-cv-01381 JAM 6 KJN, 2012 WL 1979225, at *2, 2012 U.S. Dist. LEXIS 76486, at *5-6 (E.D. Cal. June 1, 2012) 7 (“[P]laintiff cannot state a cognizable Eighth Amendment violation based on an allegation that 8 defendants issued a false rules violation against plaintiff.” (citation omitted)). 9 F. Eighth Amendment – Deliberate Indifference to Medical Care 10 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 11 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 12 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 13 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 14 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 15 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 16 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 17 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 18 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 19 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 20 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 21 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 22 existence of an injury that a reasonable doctor or patient would find important and worthy of 23 comment or treatment; the presence of a medical condition that significantly affects an 24 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 25 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 26 Second, the plaintiff must show the defendant’s response to the need was deliberately 27 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 28 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 1 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 2 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 3 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 4 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 5 showing of merely negligent medical care is not enough to establish a constitutional violation. 6 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 7 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 8 a dispute between a prisoner and prison officials over the necessity for or extent of medical 9 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 10 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 11 medical treatment, “without more, is insufficient to state a claim of deliberate medical 12 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 13 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 14 prisoner must show that the delay caused “significant harm and that Defendants should have 15 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 16 G. Eleventh Amendment – Sovereign Immunity 17 “The Eleventh Amendment bars suits against the State or its agencies for all types of 18 relief.” See Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher Educ., 616 F.3d 19 963, 967 (9th Cir. 2010); Fireman's Fund Ins. Co., v. City of Lodi, Cal., 302 F.3d 928, 957 n.28 20 (9th Cir. 2002) (“The Eleventh Amendment bars suits which seeks either damages or injunctive 21 relief against a state, ‘an arm of the state’, its instrumentalities, or its agencies.”). A suit against 22 CDCR is barred by the Eleventh Amendment. Brown v. California Dep’t of Corr., 554 F.3d 747, 23 752 (9th Cir. 2009); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989) (only 24 “person[s]” may be sued for depriving civil rights under § 1983, and states are not “person[s]” 25 within the meaning of § 1983). 26 The Eleventh Amendment, however, does not bar suits seeking damages against state 27 officials in their individual capacities. Hafer v. Melo, 502 U.S. 21, 30-31 (1991). Nor does it bar 28 suits seeking only prospective declaratory or injunctive relief against state officers sued in their 1 official capacities. Will, 491 U.S. at 71 (state officials sued in their official capacity for 2 prospective relief are “person[s]” within the meaning of § 1983”). 3 H. Fourteenth Amendment – Due Process Clause 4 The Fourteenth Amendment prohibits the state deprivation of life, liberty, or property 5 without due process of law. U.S. Const. amend. XIV, § 1. To warrant protection under this 6 clause, a plaintiff must establish that their life, liberty, or property interest is at stake. Tellis v. 7 Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993). 8 “[I]f a constitutional claim is covered by a specific constitutional provision, such as 9 the . . . Eighth Amendment, the claim must be analyzed under the standard appropriate to that 10 specific provision, not under the rubric of substantive due process.” County of Sacramento v. 11 Lewis, 523 U.S. 833, 843 (1998) (quoting United States v. Lanier, 520 U.S. 259, 272, n.7 (1997)). 12 To state a cause of action for deprivation of procedural due process, a plaintiff must first 13 establish the existence of a life, liberty, or property interest for which the protection is 14 sought. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). 15 The unauthorized deprivation of property by a prison official, whether intentional or 16 negligent, does not state a claim under § 1983 if the state provides an adequate post-deprivation 17 remedy, Hudson v. Palmer, 468 U.S. 517, 533 (1984). “California law provides an adequate post- 18 deprivation remedy for any property deprivations.” Barnett v. Centoni, 31 F.3d 813, 816-17 (9th 19 Cir. 1994) (per curiam) (citing Cal. Gov’t Code §§ 810-895). 20 I. Fourteenth Amendment – Equal Protection Clause 21 The Fourteenth Amendment’s Equal Protection Clause requires the State to treat all 22 similarly situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 23 (1985) (citation omitted). “To state a claim for violation of the Equal Protection Clause, a 24 plaintiff must show that the defendant acted with an intent or purpose to discriminate against him 25 based upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th 26 Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). “‘[T]he disabled 27 do not constitute a suspect class’ for equal protection purposes,” Lee v. City of Los Angeles, 250 28 F.3d 668, 687 (9th Cir. 2001) (quoting Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1 1996)). Alternatively, a plaintiff may state an equal protection claim if he shows similarly 2 situated individuals were intentionally treated differently without a rational relationship to a 3 legitimate government purpose. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) 4 (citations omitted). 5 J. Americans with Disabilities Act (“ADA”) – Retaliation 6 To state a claim for retaliation under the ADA, “a plaintiff must make out a prima facie 7 case ‘(a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse 8 action, and (c) that there was a causal link between the two.’” T.B. ex rel. Brenneise v. San 9 Diego Unified Sch. Dist., 806 F.3d 451, 472-73 (9th Cir. 2015) (quoting Emeldi v. Univ. of Or., 10 673 F.3d 1218, 1223 (9th Cir. 2012)). “Pursuing one’s rights under the ADA constitutes a 11 protected activity.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004) (citations 12 omitted). “[T]he standard for the ‘causal link’ is but-for causation,” T.B. ex rel. Brenneise, 806 13 F.3d at 473 (citations omitted), and proximity in time can support an inference of retaliatory 14 intent, Pardi, 389 F.3d at 850 (citing Bell v. Clackamas County, 341 F.3d 858, 865-66 (9th Cir. 15 2003)). 16 K. Health Insurance Portability and Accountability Act (“HIPAA”) 17 The Ninth Circuit has definitively declared “HIPAA itself provides no private right of 18 action.” Garmon v. County of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016) (quoting Webb v. 19 Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007)). Other circuits have 20 explicitly found that HIPAA cannot be enforced through Section 1983. Adams v. Eureka Fire 21 Prot. Dist., 352 Fed. Appx. 137, 139 (8th Cir. 2009) (“Since HIPAA does not create a private 22 right, it cannot be privately enforced either via § 1983 or through an implied right of action”); 23 Sneed v. Pan Am Hosp., 370 Fed. Appx. 47, 50 (11th Cir. 2010) (“We decline to hold that 24 HIPAA creates a private cause of action or rights that are enforceable through § 1983”). 25 L. Conspiracy 26 Conclusory allegations of conspiracy are not enough to support a section 1983 conspiracy 27 claim. Burns v. Cnty. Of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam). To state a claim 28 for conspiracy under § 1983, plaintiff must alleged the existence of an agreement or meeting of 1 the minds to violate plaintiff’s constitutional rights, Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001), and that an “actual deprivation of his 3 constitutional rights resulted from the alleged conspiracy,” Hart v. Parks, 450 F.3d 1059, 1071 4 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th 5 Cir. 1989)); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012) (“Conspiracy is 6 not itself a constitutional tort under § 1983 . . . there must always be an underlying constitutional 7 violation.”). 8 “‘To be liable, each participant in the conspiracy need not know the exact details of the 9 plan, but each participant must at least share the common objective of the conspiracy.’” Franklin, 10 312 F.3d at 441 (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 11 1541 (9th Cir. 1989)). Additionally, plaintiff must show that defendants “conspired or acted 12 jointly in concert and that some overt act [was] done in furtherance of the conspiracy.” Sykes v. 13 State of California, 497 F.2d 197, 200 (9th Cir. 1974). 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28