1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID PANGBORN, No. 2:23-cv-2976 KJN P 12 Plaintiff, 13 v. ORDER 14 C/O PETERSON, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 20 U.S.C. § 636(b)(1). 21 On December 20, 2023, defendants removed this action from state court. (ECF No. 1.) 22 On December 28, 2023, defendants filed a request for the court to screen plaintiff’s complaint. 23 (ECF No. 4.) Good cause appearing, defendants’ request is granted, and the undersigned herein 24 screens plaintiff’s complaint. 25 Screening Standards 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 9 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 10 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 11 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 12 1227. 13 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 14 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 15 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 16 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 17 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 18 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 19 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 20 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 22 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 23 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 24 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 25 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 26 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 27 //// 28 //// 1 Plaintiff’s Claims 2 Named as defendants are Correctional Officers Peterson, Williams and McDonald, Jeff 3 Lynch, Dr. Jian Ma, Clinician Strong and Dr. Anderchuck. Plaintiff alleges that defendants 4 threatened to kill and assault plaintiff, and purposefully left plaintiff uncuffed so they could 5 assault plaintiff during escort. Plaintiff alleges that defendant Peterson called plaintiff a snitch in 6 front of the inmate population which put plaintiff’s life in danger. Plaintiff also alleges that 7 defendant Peterson put plaintiff in unsafe living conditions. Plaintiff alleges that defendant 8 Peterson took these actions to retaliate against plaintiff for filing grievances and citizen’s 9 complaints against him. Plaintiff alleges that defendants Peterson, Williams, McDonald, 10 Anderchuck Strong and Ma worked in tandem to deny plaintiff medical and mental health care. 11 Plaintiff appears to allege that defendants Peterson, Williams and McDonald forced 12 plaintiff to get out of his wheelchair and crawl to a non-ADA accessible cage in violation of the 13 Americans with Disabilities Act (“ADA”). 14 Plaintiff also appears to allege that defendants Strong and Anderchuck worked together to 15 have plaintiff’s personal and legal property destroyed. Plaintiff also alleges that these defendants 16 falsified mental health records stating that plaintiff was fine when plaintiff was not fine. Plaintiff 17 alleges that defendants Strong and Anderchuck destroyed photographs of plaintiff’s family 18 members who had passed away. 19 Discussion 20 Attached to plaintiff’s complaint are exhibits A-E. (ECF No. 1 at 11-68.) The court is not 21 required to review exhibits to determine what plaintiff’s charging allegations are as to each 22 named defendant. Accordingly, in screening plaintiff’s complaint, the undersigned considers 23 only the allegations in the complaint without reference to the exhibits, unless otherwise noted. 24 (Id. at 6-10.) 25 Alleged Threats and Assaults 26 Plaintiff alleges that defendants threatened to kill and assault plaintiff, and purposefully 27 left plaintiff uncuffed so they could assault plaintiff during escort. 28 //// 1 While verbal harassment is usually not sufficient to state an Eighth Amendment claim, the 2 Ninth Circuit has left open the possibility that comments that are “unusually gross even for a 3 prison setting” and are “calculated to and [do] cause ... psychological damage” may violate that 4 provision. Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). 5 Plaintiff’s claim that defendants threatened to kill and assault him is vague and 6 conclusory. Ivey v. Board of Regents, 673 F2d 266, 268 (9th Cir. 1982) (vague and conclusory 7 allegations concerning the involvement of official personnel in civil rights violations are not 8 sufficient). Plaintiff does not allege when or where each defendant threatened to kill and assault 9 him. Plaintiff also does not describe the specific threats allegedly made by each defendant. 10 Accordingly, this claim is dismissed. 11 In grievance 298993, attached to the complaint as exhibit B, plaintiff alleges that on or 12 around August 25, 2022, defendant Williams told plaintiff that the next time defendant Williams 13 pulls plaintiff out for an escort to group, defendant Williams will slam plaintiff face first into the 14 ground and stomp on plaintiff’s head. (ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID PANGBORN, No. 2:23-cv-2976 KJN P 12 Plaintiff, 13 v. ORDER 14 C/O PETERSON, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 20 U.S.C. § 636(b)(1). 21 On December 20, 2023, defendants removed this action from state court. (ECF No. 1.) 22 On December 28, 2023, defendants filed a request for the court to screen plaintiff’s complaint. 23 (ECF No. 4.) Good cause appearing, defendants’ request is granted, and the undersigned herein 24 screens plaintiff’s complaint. 25 Screening Standards 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 9 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 10 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 11 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 12 1227. 13 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 14 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 15 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 16 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 17 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 18 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 19 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 20 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 22 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 23 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 24 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 25 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 26 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 27 //// 28 //// 1 Plaintiff’s Claims 2 Named as defendants are Correctional Officers Peterson, Williams and McDonald, Jeff 3 Lynch, Dr. Jian Ma, Clinician Strong and Dr. Anderchuck. Plaintiff alleges that defendants 4 threatened to kill and assault plaintiff, and purposefully left plaintiff uncuffed so they could 5 assault plaintiff during escort. Plaintiff alleges that defendant Peterson called plaintiff a snitch in 6 front of the inmate population which put plaintiff’s life in danger. Plaintiff also alleges that 7 defendant Peterson put plaintiff in unsafe living conditions. Plaintiff alleges that defendant 8 Peterson took these actions to retaliate against plaintiff for filing grievances and citizen’s 9 complaints against him. Plaintiff alleges that defendants Peterson, Williams, McDonald, 10 Anderchuck Strong and Ma worked in tandem to deny plaintiff medical and mental health care. 11 Plaintiff appears to allege that defendants Peterson, Williams and McDonald forced 12 plaintiff to get out of his wheelchair and crawl to a non-ADA accessible cage in violation of the 13 Americans with Disabilities Act (“ADA”). 14 Plaintiff also appears to allege that defendants Strong and Anderchuck worked together to 15 have plaintiff’s personal and legal property destroyed. Plaintiff also alleges that these defendants 16 falsified mental health records stating that plaintiff was fine when plaintiff was not fine. Plaintiff 17 alleges that defendants Strong and Anderchuck destroyed photographs of plaintiff’s family 18 members who had passed away. 19 Discussion 20 Attached to plaintiff’s complaint are exhibits A-E. (ECF No. 1 at 11-68.) The court is not 21 required to review exhibits to determine what plaintiff’s charging allegations are as to each 22 named defendant. Accordingly, in screening plaintiff’s complaint, the undersigned considers 23 only the allegations in the complaint without reference to the exhibits, unless otherwise noted. 24 (Id. at 6-10.) 25 Alleged Threats and Assaults 26 Plaintiff alleges that defendants threatened to kill and assault plaintiff, and purposefully 27 left plaintiff uncuffed so they could assault plaintiff during escort. 28 //// 1 While verbal harassment is usually not sufficient to state an Eighth Amendment claim, the 2 Ninth Circuit has left open the possibility that comments that are “unusually gross even for a 3 prison setting” and are “calculated to and [do] cause ... psychological damage” may violate that 4 provision. Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). 5 Plaintiff’s claim that defendants threatened to kill and assault him is vague and 6 conclusory. Ivey v. Board of Regents, 673 F2d 266, 268 (9th Cir. 1982) (vague and conclusory 7 allegations concerning the involvement of official personnel in civil rights violations are not 8 sufficient). Plaintiff does not allege when or where each defendant threatened to kill and assault 9 him. Plaintiff also does not describe the specific threats allegedly made by each defendant. 10 Accordingly, this claim is dismissed. 11 In grievance 298993, attached to the complaint as exhibit B, plaintiff alleges that on or 12 around August 25, 2022, defendant Williams told plaintiff that the next time defendant Williams 13 pulls plaintiff out for an escort to group, defendant Williams will slam plaintiff face first into the 14 ground and stomp on plaintiff’s head. (ECF No. 1 at 20.) If plaintiff’s claim alleging that 15 defendants threatened to assault and kill plaintiff is based on this allegation against defendant 16 Williams, plaintiff shall clarify this matter in an amended complaint.1 17 Plaintiff alleges that defendants left him uncuffed so they could assault plaintiff during 18 escort. “[W]henever prison officials stand accused of excessive physical force in violation of the 19 [Eighth Amendment], the core judicial inquiry is ... whether force was applied in a good-faith 20 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. 21 McMillian, 503 U.S. 1, 6–7 (1992). In analyzing an excessive force claim, courts consider the 22 following factors: the need for the application of force, the relationship between the need and the 23 amount of force used, the extent of the injury suffered, the threat reasonably perceived by the 24 responsible officials, and any efforts made to temper the severity of a forceful response. See id. 25 at 7. 26 //// 27 1 The undersigned makes no finding regarding whether plaintiff’s claim based on the August 25, 28 2022 incident is potentially colorable because it is unclear whether plaintiff is raising this claim. 1 Plaintiff’s claim that defendants left him uncuffed so they could assault him is dismissed 2 as vague and conclusory. Ivey, supra. Plaintiff does not clearly identify the defendants who 3 allegedly assaulted him during escort. Plaintiff also fails to describe when and where the alleged 4 assaults occurred. Plaintiff also does not describe how defendants assaulted him and the injuries 5 plaintiff suffered as a result of the assaults. It is also unclear to the undersigned how leaving 6 plaintiff uncuffed aided defendants in their alleged assaults on plaintiff. If plaintiff files an 7 amended complaint, he shall address these matters. 8 Alleged Calling Plaintiff a Snitch 9 Plaintiff alleges that defendant Peterson called plaintiff a snitch in front of the inmate 10 population which put plaintiff’s life in danger. “The Eighth Amendment requires prison officials 11 to protect inmates from violence,” Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020) (citing 12 Farmer v. Brennan, 511 U.S. 825, 833 (1994)), and labeling a prisoner a “snitch” in the presence 13 of other inmates is sufficient to state a claim of deliberate indifference to an inmate’s safety, 14 Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989). If a prisoner faces a 15 substantial risk of serious harm, he need not wait until he actually suffers an attack before 16 asserting a deliberate indifference or threat-to-safety claim. See Helling v. McKinney, 509 U.S. 17 25, 33 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel 18 proposition.”). 19 Plaintiff’s claim alleging that defendant Peterson called plaintiff a snitch is vague and 20 conclusory. Ivey, supra. Plaintiff does not allege when and where defendant Peterson called 21 plaintiff a snitch. Without this information, the undersigned cannot determine whether plaintiff 22 states a potentially colorable Eighth Amendment claim. Accordingly, this claim is dismissed with 23 leave to amend. 24 Attached to plaintiff’s complaint as exhibit D are documents related to grievance no. 25 310474. (ECF No. 1 at 51-58.) In this grievance, plaintiff claimed that defendant Peterson called 26 plaintiff a “snitch” for utilizing the 602 process against defendant Peterson. (Id. at 54.) Plaintiff 27 attached to his grievance declarations by inmates Moreno and Valdez. (Id. at 57, 58.) Both 28 inmates Moreno and Valdez state that they heard defendant Peterson call plaintiff a snitch for 1 filing grievances against defendant Peterson. (Id.) 2 Prison officials may violate the Eighth Amendment by labeling prisoners as snitches on 3 other inmates in front of other inmates. See Mitchell v. Baeza, 2023 WL 8878597, at *8 (E.D. 4 Cal. Dec. 22, 2023) (labeling an inmate a snitch in response to his filing of grievances in order to 5 subject him to retaliation by fellow inmates states cognizable claim) (citing Valandingham, 6 supra). Plaintiff does not allege that defendant Peterson accused plaintiff of snitching on other 7 inmates in front of other inmates. Instead, plaintiff alleges that defendant Peterson accused 8 plaintiff of snitching on defendant Peterson in front of other inmates. These allegations do not 9 state a potentially colorable Eighth Amendment claim. 10 Alleged Unsafe Living Conditions 11 Plaintiff alleges that defendant Peterson subjected plaintiff to unsafe living conditions. 12 The Eighth Amendment’s prohibition against cruel and unusual punishment protects 13 prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 14 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. at 847 and Rhodes v. Chapman, 452 U.S. 15 337, 347 (1981)). While conditions of confinement may be, and often are, restrictive and harsh, 16 they must not involve the wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045. 17 Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 18 sanitation, medical care, and personal safety. See Farmer, 511 U.S. at 832; Keenan v. Hall, 83 19 F.3d at 1089. 20 Plaintiff does not describe the unsafe living conditions defendant Peterson allegedly 21 subjected him to. Plaintiff also fails to describe how defendant Peterson subjected him to these 22 conditions. Accordingly, this claim is dismissed because it is vague and conclusory. Ivey, supra. 23 Alleged Retaliation 24 Plaintiff alleges that defendant Peterson subjected him to unsafe living conditions in 25 retaliation for plaintiff filing grievances against him. “Within the prison context, a viable claim 26 of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 27 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 28 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 1 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 2 567–68 (9th Cir. 2005). 3 Plaintiff’s retaliation claim is dismissed because it is vague and conclusory. Ivey, supra. 4 While plaintiff identifies the alleged adverse action as unsafe living conditions, plaintiff does not 5 describe these conditions. Plaintiff also fails to describe defendant Peterson’s involvement in 6 subjecting plaintiff to these conditions. Plaintiff fails to describe the specific grievances he filed 7 on which the retaliation claim is based. Plaintiff fails to allege any facts supporting his claim that 8 defendant Peterson subjected him to unsafe living conditions because plaintiff filed grievances 9 against him. If plaintiff files an amended complaint, he shall address these matters. 10 ADA Claim 11 Plaintiff appears to allege that defendants forced plaintiff to get out of his wheelchair and 12 crawl to a non-ADA accessible cage in violation of the Americans with Disabilities Act (“ADA”). 13 Title II of the ADA provides that “no qualified individual with a disability shall, by reason 14 of such disability, be excluded from participation in or be denied the benefits of the services, 15 programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 16 42 U.S.C. § 12132. This prohibition extends to inmates in state prisons. Pennsylvania Dep’t of 17 Corr. v. Yeskey, 524 U.S. 206, 213 (1998). 18 To state a claim under Title II, the plaintiff must allege four elements: (1) the plaintiff is 19 an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive 20 the benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either 21 excluded from participation in or denied the benefits by the public entity; and (4) such exclusion, 22 denial of benefits or discrimination was by reason of the plaintiff’s disability. Simmons v. 23 Navajo County, Ariz, 609 F.3d 1011, 1021 (9th Cir. 2010), overruled in part on other grounds by 24 Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). 25 Plaintiff’s claim that defendants forced plaintiff to crawl to a non-ADA cage does not 26 state a potentially colorable ADA claim because plaintiff fails to allege that this incident caused 27 plaintiff to be excluded from participation in or denied a benefit. Accordingly, this claim is 28 dismissed. 1 The undersigned observes that grievance 313069, attached as exhibit A to the complaint, 2 may address the ADA claim raised in the complaint. (ECF No. 1 at 11-18.) In grievance 313069, 3 plaintiff alleged that defendant Peterson and Officer Yang did not accommodate plaintiff with a 4 wheelchair when requested for mobility issues to attend the EOP Services. (Id. at 17.) Plaintiff 5 alleged that defendant Peterson stated, “if you can’t walk, then you are refusing.” (Id.) An 6 investigation by prison officials sustained plaintiff’s claims raised in grievance 313069, finding, 7 “The investigation or inquiry disclosed a preponderance of evidence to prove the allegation(s) 8 made in the complaint.” (Id.) 9 If plaintiff files an amended complaint, plaintiff shall clarify whether his ADA claim is 10 based on the claims raised in grievance 313069. Plaintiff shall also clarify whether he was denied 11 access to EOP Services based on defendants’ alleged failure to provide him with a wheelchair. 12 Plaintiff shall also address when and where these alleged incidents occurred.2 13 Alleged Denial of Medical and Mental Health Treatment 14 Plaintiff alleges that defendants Peterson, Williams, McDonald, Anderchuck, Strong and 15 Ma worked together to deny him medical and mental health treatment. This claim is dismissed as 16 vague and conclusory. Ivey, supra. Plaintiff does not describe the medical and/or mental health 17 treatment he was allegedly denied. Plaintiff also does not describe the actions of the defendants 18 that caused plaintiff to be denied medical and/or mental health treatment. If plaintiff files an 19 amended complaint, he shall clarify these matters. 20 Plaintiff also alleges that defendants Strong and Anderchuck falsified mental health 21 records to state that plaintiff was fine when plaintiff was not fine. These allegations are dismissed 22 as vague and conclusory. Ivey, supra. If plaintiff files an amended complaint raising this claim, 23 plaintiff shall address when defendants Strong and Anderchuck allegedly falsified his mental 24 health records. Plaintiff shall also describe the allegedly false records. Plaintiff shall also 25 describe how he was “not fine” at the time defendants allegedly falsified his records. Plaintiff 26
27 2 The undersigned makes no finding regarding whether the claims raised in grievance 313069 are potentially colorable because it is unclear whether plaintiff is raising the claims raised in this 28 grievance. 1 shall describe any injury he suffered as a result of the allegedly falsified records. 2 A prisoner’s claim of inadequate medical or mental health care constitutes cruel and 3 unusual punishment in violation of the Eighth Amendment where the mistreatment rises to the 4 level of “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 5 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 6 deliberate indifference requires plaintiff to show (1) “a ‘serious medical need’ by demonstrating 7 that failure to treat a prisoner’s condition could result in further significant injury or the 8 ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was 9 deliberately indifferent.” Jett, 439 F.3d at 1096. 10 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 11 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. at 12 837. “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 F.3d 13 at 1019; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was 14 “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the 15 indifference caused harm. Jett, 439 F.3d at 1096. In applying this standard, the Ninth Circuit has 16 held that before it can be said that a prisoner’s civil rights have been abridged, “the indifference 17 to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical 18 malpractice’ will not support this cause of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 19 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). Even gross negligence is insufficient to 20 establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 21 1332, 1334 (9th Cir. 1990). 22 Plaintiff shall consider the legal standards set forth above if he files an amended complaint 23 raising claims for denial of medical and/or mental health care. 24 In grievance 298993, attached to the complaint as exhibit B, plaintiff claimed that on or 25 around August 25, 2022, defendant Williams refused to take plaintiff to group therapy after 26 falsely reporting that plaintiff was hostile and loud. (ECF No. 1 at 20-32.) Grievance 334186, 27 attached as Exhibit C, appears to raise the same claims as grievance 298993. (Id. at 33-50.) If 28 plaintiff’s claim alleging denial of medical and/or mental health care is based on the August 25, 1 2022 incident, plaintiff shall clarify this matter in an amended complaint.3 2 In grievance 232940, attached to the complaint as exhibit E, plaintiff claimed that on 3 March 10, 2022, plaintiff refused to attend group therapy upon arrival because he was “isolated 4 and left out and unable to participate.” (ECF No. 1 at 62.) Plaintiff asked defendant Peterson to 5 take him to his clinician for a one-on-one. (Id.) Defendant Peterson refused to take plaintiff to 6 his clinician. (Id.) Plaintiff claims that defendant Peterson told plaintiff that if plaintiff refused to 7 attend group therapy, he would be taken back to his cell. (Id.) Defendant Peterson allegedly told 8 plaintiff that plaintiff made him (defendant Peterson) close the group therapy down. (Id.) 9 Plaintiff claims that the next day, defendants Williams and McDonald refused to take plaintiff to 10 group therapy because “you made us close a group because you didn’t want to stay in the group.” 11 (Id.) 12 If plaintiff’s claim alleging denial of medical and/or mental health care is based on the 13 claims raised in grievances 232940, plaintiff shall clarify this matter in the amended complaint.4 14 Alleged Destruction of Personal and Legal Property 15 Plaintiff alleges that defendants Strong and Anderchuck worked together to have 16 plaintiff’s personal and legal property destroyed. Plaintiff alleges that defendants Strong and 17 Anderchuck destroyed photographs of plaintiff’s family members who had passed away. 18 The undersigned first considers plaintiff’s claim that defendants Strong and Anderchuck 19 destroyed plaintiff’s personal property, including photographs of family members. 20 The United States Supreme Court has held that “an unauthorized intentional deprivation 21 of property by a state employee does not constitute a violation of the procedural requirements of 22 the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for 23 the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state 24 3 The undersigned makes no finding regarding whether the claims raised in grievance 298993 are 25 potentially colorable because it is unclear whether plaintiff is raising the claims raised in this grievance. 26
27 4 The undersigned makes no finding regarding the claims raised in grievance 232940 are potentially colorable because it is unclear whether plaintiff is raising the claims raised in this 28 grievance. 1 provides a meaningful postdeprivation remedy, only authorized, intentional deprivations 2 constitute actionable violations of the Due Process Clause. An authorized deprivation is one 3 carried out pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 4 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 5 1149 (9th Cir. 1987). 6 In the instant case, plaintiff alleges no facts suggesting that the alleged destruction of his 7 personal property was authorized. The California Legislature provided a remedy for tort claims 8 against public officials in the California Government Code, §§ 900, et seq. Since plaintiff has not 9 attempted to seek redress in the state system, he cannot sue in federal court on the claim that the 10 state deprived him of property without due process of the law. Accordingly, plaintiff’s claim 11 alleging destruction of his personal property is dismissed. 12 The undersigned construes plaintiff’s allegations that defendants Strong and Anderchuck 13 destroyed plaintiff’s legal property to raise a claim for violation of plaintiff’s right to access the 14 courts. 15 Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 16 518 U.S. 343, 346 (1996). However, the right is limited to direct criminal appeals, habeas 17 petitions, and civil rights actions. Id. at 354. In order to state a claim for the denial of court 18 access, a prisoner must establish that he suffered an actual injury. Id. at 349. “[A]ctual injury [is] 19 actual prejudice with respect to contemplated or existing litigation, such as the ability to meet a 20 filing deadline or to present a claim.” Id. at 348. 21 Plaintiff’s allegations that defendants destroyed his legal property does not state a 22 potentially colorable access to the courts claim because plaintiff does not allege an actual injury 23 to a criminal appeal, habeas or civil rights action. Accordingly, plaintiff’s access to the courts 24 claim is dismissed. If plaintiff files an amended complaint, he shall identify the actual injury he 25 suffered to a criminal appeal, habeas or civil rights action as a result of the alleged destruction of 26 his legal property. Plaintiff shall also describe when and where the destruction of his legal 27 property occurred. Plaintiff shall also describe the involvement of defendants Strong and 28 Anderchuck in the alleged destruction of his legal property. 1 Conclusion 2 For the reasons discussed above, plaintiff’s complaint is dismissed with leave to amend. 3 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions about 4 which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., West v. 5 Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how each 6 named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 7 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 8 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 9 F.2d 164, 167 (9th Cir. 1980). 10 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 11 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 12 complaint be complete in itself without reference to any prior pleading. This requirement exists 13 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 14 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 15 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 16 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 17 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 18 and the involvement of each defendant must be sufficiently alleged. 19 If plaintiff files an amended complaint, he may not rely on exhibits to state his claims. In 20 addition, plaintiff’s amended complaint may not exceed fifteen pages. 21 In accordance with the above, IT IS HEREBY ORDERED that: 22 1. Defendants’ request for the court to screen plaintiff’s complaint (ECF No. 4) is 23 granted; 24 2. Plaintiff’s complaint is dismissed. 25 3. Within thirty days from the date of this order, plaintiff shall complete the attached 26 Notice of Amendment and submit the following documents to the court: 27 a. The completed Notice of Amendment; and 28 b. An original of the Amended Complaint. 1 | Plaintiffs amended complaint shall comply with the requirements of the Civil Rights Act, the 2 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 3 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 4 Failure to file an amended complaint in accordance with this order may result in the 5 || dismissal of this action. 6 Dated: January 12, 2024 Foci) Aharon 8 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 3 Pang2976.14 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 DAVID PANGBORN, No. 2:23-cv-2976 KJN P 13 Plaintiff, 14 v. NOTICE OF AMENDMENT 15 C/O PETERSON, et al., 16 Defendants. 17 18 Plaintiff hereby submits the following document in compliance with the court’s order 19 filed______________. 20 _____________ Amended Complaint DATED: 21
22 ________________________________ Plaintiff 23
24 25 26 27 28