(PC) Ramirez v. CDCR - California Corrections

• Court: District Court, E.D. California
• Decided: October 21, 2020
• Docket: 1:19-cv-01688
• Status: Unknown

Opinion

1 2

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 JOSE RAMIREZ, 1:19-cv-01688-GSA-PC

12 Plaintiff, ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH 13 vs. LEAVE TO AMEND (ECF No. 1.) 14 CDCR, et al., THIRTY-DAY DEADLINE TO FILE 15 Defendants. FIRST AMENDED COMPLAINT

23 24 I. BACKGROUND 25 Jose Ramirez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 26 with this civil rights action under 42 U.S.C. § 1983. On December 3, 2019, Plaintiff filed the 27 Complaint commencing this action which is now before the court for screening. 28 U.S.C. § 28 1915. (ECF No. 1.) 1 II. SCREENING REQUIREMENT 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). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 8 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 9 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 10 A complaint is required to contain “a short and plain statement of the claim showing that 11 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 14 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 15 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 16 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 17 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 18 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 19 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 20 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 21 plausibility standard. Id. 22 III. SUMMARY OF COMPLAINT 23 Plaintiff is presently incarcerated at California City Correctional Facility (CCCF) in 24 California City, California, in the custody of the California Department of Corrections and 25 Rehabilitation (CDCR), where the events at issue in the Complaint allegedly occurred. Plaintiff 26 names as defendants CDCR and Nurse Aragon (collectively, “Defendants”). A summary of 27 Plaintiff’s allegations follows: 28 On November 17, 2018, Plaintiff came to the clinic for weekly counseling and daily 1 insulin shots, and Nurse Aragon gave him the wrong insulin shot. This caused Plaintiff to have 2 a hypoglycemic episode during which he feared losing his life. Two inmates helped Plaintiff 3 back to the pill line. Plaintiff experienced dizziness and disorientation. It was a tragic 4 experience. Plaintiff’s blood was at 40 and within ten minutes at 60. Nurse Aragon still sent 5 Plaintiff back to his cell even though Plaintiff informed her that he was still feeling dizzy and 6 disoriented. Nurse Aragon failed to report her mistake, or that the incident ever took place. 7 On November 23, 2018, Plaintiff asked Nurse Olisa [not a defendant] if an incident report 8 had been filed. The next day Nurse Aragon began to retaliate against Plaintiff. She would not 9 allow Plaintiff to see the insulin bottles she drew insulin from, and when Plaintiff asked to view 10 them she began yelling at him to leave the medical office where treatment was being 11 administered. Later, Nurse Aragon called Plaintiff into the office and handed him a syringe with 12 medication already drawn. Plaintiff declined the shot and did not eat dinner that night. 13 Plaintiff filed a complaint with prison officials and nothing happened as far as the issue 14 being addressed or the nurse being removed from administering any other medications to Plaintiff 15 or other inmates. 16 As relief, Plaintiff requests monetary damages and injunctive relief. 17 IV. PLAINTIFF’S CLAIMS 18 The Civil Rights Act under which this action was filed provides:

19 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 20 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 21 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 22

23 42 U.S.C. § 1983. 24 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 25 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 26 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 27 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 28 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 1 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 2 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 3 federal Constitution, Section 1983 offers no redress.” Id. 4 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 5 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 6 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 7 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 8 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 9 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 10 which he is legally required to do that causes the deprivation of which complaint is made.’” 11 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 12 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 13 established when an official sets in motion a ‘series of acts by others which the actor knows or 14 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 15 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 16 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 17 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 18 1026 (9th Cir. 2008). 19 A. Defendant CDCR – Eleventh Amendment 20 Plaintiff named CDCR as a defendant. The Eleventh Amendment bars suits against state 21 agencies, as well as those where the state itself is named as a defendant, regardless of the relief 22 sought. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); 23 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Dittman v. State 24 of California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). CDCR is an agency of the state and is 25 entitled to Eleventh Amendment immunity. See, e.g., Gomes v. Mathis, No. CV 17–7022, 2018 26 WL 2085237, at *3 (C.D. Cal. May 3, 2018). The Eleventh Amendment does not, however, bar 27 suits seeking damages against state officials/employees in their individual capacity. See Hafer v. 28 Melo, 502 U.S. 21, 30-31 (1991). 1 Because CDCR is a state agency, it is entitled to Eleventh Amendment immunity from 2 suit. Therefore, Plaintiff fails to state a claim against defendant CDCR. 3 B. Medical Claim – Eighth Amendment 4 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 5 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 6 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 7 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 8 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 9 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 10 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 11 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 12 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown 13 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 14 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference 15 may be manifested “when prison officials deny, delay or intentionally interfere with medical 16 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. 17 Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to 18 further harm in order for the prisoner to make a claim of deliberate indifference to serious medical 19 needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 20 407 (9th Cir. 1985)). 21 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 22 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 23 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 24 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 25 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the 26 official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting 27 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of 28 medical malpractice or negligence is insufficient to establish a constitutional deprivation under 1 the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a 2 constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). 3 “A difference of opinion between a prisoner-patient and prison medical authorities 4 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 5 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course 6 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . 7 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” 8 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 9 Plaintiff has shown that he had a serious medical need because he suffers from diabetes 10 and needs daily insulin injections. However, Plaintiff has not shown that defendant Nurse 11 Aragon acted with deliberate indifference to a substantial risk of serious harm to Plaintiff’s 12 health. Plaintiff shows that Nurse Aragon gave him the wrong insulin shot causing Plaintiff to 13 experience a hypoglycemia episode during which his blood sugar levels rapidly fluctuated and 14 he felt dizzy and disoriented. Plaintiff does not however allege facts showing that Nurse Aragon 15 knowingly gave Plaintiff the wrong insulin shot, nor if she did know that she was aware of the 16 risk of harm to Plaintiff if given the wrong insulin shot. Further, there are no indications that 17 Plaintiff suffered further harm after being returned to his cell. 18 Therefore, Plaintiff fails to state a medical claim under the Eighth Amendment against 19 defendant Aragon. 20 C. Equal Protection – Fourteenth Amendment 21 Plaintiff claims that his rights to equal protection under the Fourteenth Amendment were 22 violated. The Equal Protection Clause requires the State to treat all similarly situated people 23 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 24 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 25 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972); Ward v. Walsh, 1 F.3d 26 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987). 27 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 28 plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate against 1 Plaintiff based upon membership in a protected class,’” (citing see Thornton v. City of St. Helens, 2 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 3 Cir. 2001)), or that similarly situated individuals were intentionally treated differently without a 4 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 5 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 6 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North 7 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 8 Plaintiff has not alleged facts demonstrating that he was intentionally discriminated 9 against on the basis of his membership in a protected class, or that he was intentionally treated 10 differently than other similarly situated inmates without a rational relationship to a legitimate 11 state purpose. Therefore, Plaintiff fails to state a claim for violation of his right to equal 12 protection. 13 D. Retaliation – First Amendment Claim 14 “Prisoners have a First Amendment right to file grievances [and lawsuits] against prison 15 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 16 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the 17 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 18 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 19 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 20 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 21 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation 22 claim, Plaintiff must establish a nexus between the retaliatory act and the protected activity. 23 Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 24 The court finds that Plaintiff has not alleged any injury - or chilling - resulting from 25 defendant Aragon’s reticence to allow Plaintiff to view the insulin bottles she drew insulin from. 26 The action taken by defendant Aragon – not allowing Plaintiff to see the insulin bottles - is not 27 the type of adverse action that gives rise to a cognizable claim for relief for retaliation. Cases in 28 this Circuit addressing First Amendment retaliation claims involve situations where the action 1 taken by the defendant was clearly adverse to the plaintiff. See Hines v. Gomez, 108 F.3d 265, 2 267 (9th Cir. 1997) (guards found guilty of charging inmate with a false rules violation and 3 finding him guilty in retaliation for inmate’s prior use of the grievance system); Pratt v. Rowland, 4 65 F.3d 802, 806 (9th Cir. 1995) (inmate alleged that he was transferred to a different prison and 5 double-celled in retaliation for exercising his First Amendment rights); Valandingham v. 6 Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (inmate alleged that officers labeled him a snitch 7 for petitioning prison and government officials for redress and that, because of this labeling, the 8 inmate was approached by other inmates and threatened with harm); Rizzo v. Dawson, 778 F.2d 9 527, 530-32 (9th Cir. 1985) (inmate alleged that he was reassigned out of a vocational class and 10 transferred to a different prison because of his activities as a jailhouse lawyer). 11 To establish a prima facie case, Plaintiff must allege and show that defendant Aragon 12 acted to retaliate for his exercise of a protected activity, and that defendant Aragon’s actions did 13 not serve a legitimate penological purpose. Plaintiff has not done so. Plaintiff fails to demonstrate 14 a causal nexus between the alleged retaliation and any constitutionally protected activity showing 15 that the retaliatory act was done because of the protected activity. Accordingly, Plaintiff fails to 16 state a cognizable retaliation claim. 17 E. State Law Claims 18 Plaintiff brings claims for negligence and fraud. These are state law claims. Violation 19 of state tort law, state regulations, rules and policies of the CDCR, or other state law is not 20 sufficient to state a claim for relief under § 1983. Section 1983 does not provide a cause of action 21 for violations of state law. See Galen v. Cnty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). 22 To state a claim under § 1983, there must be a deprivation of federal constitutional or statutory 23 rights. See Paul v. Davis, 424 U.S. 693 (1976); also see Buckley v. City of Redding, 66 F.3d 24 188, 190 (9th Cir. 1995); Gonzaga University v. Doe, 536 U.S. 273, 279 (2002). 25 Although the court may exercise supplemental jurisdiction over state law claims, Plaintiff 26 must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367. In this 27 instance, the Court fails to find any cognizable federal claims in the Complaint. Therefore, 28 Plaintiff’s state claims fail. 1 Plaintiff is also advised that the Government Claims Act requires exhaustion of state law 2 claims with California’s Victim Compensation and Government Claims Board, and Plaintiff is 3 required to specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 4 Cal.4th 201, 208-09 (Cal. 2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 5 1234, 1239 (Cal. 2004); Mabe v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 6 1111 (9th Cir. 2001); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 7 1995); ); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff 8 has not done so. 9 F. Injunctive Relief 10 Besides monetary damages, Plaintiff requests injunctive relief. Plaintiff requests that 11 medical staff at CCCF be retrained on how to administer medications, how to safeguard patients 12 who have received improper treatments, and apparently also requesting that nurse Aragon be 13 removed from her nursing duties. The court cannot award this form of relief. Any award of 14 equitable relief is governed by the Prison Litigation Reform Act, which provides in relevant part: 15 Prospective relief in any civil action with respect to prison conditions shall extend 16 no further than necessary to correct the violation of the Federal right of a particular 17 plaintiff or plaintiffs. The court shall not grant or approve any prospective relief 18 unless the court finds that such relief is narrowly drawn, extends no further than 19 necessary to correct the violation of the Federal right, and is the least intrusive 20 means necessary to correct the violation of the Federal right. 18 U.S.C. § 21 3626(a)(1)(A). 22 V. CONCLUSION AND ORDER 23 For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable 24 claims in the Complaint against any of the Defendants for violating his constitutional or other 25 federal rights. Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should 26 freely give leave to amend when justice so requires.” Plaintiff is granted leave to file a First 27 Amended Complaint within thirty days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 28 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each 1 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights, 2 Iqbal, 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must set forth “sufficient factual matter 3 . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555). 4 Plaintiff is informed that the court cannot refer to a prior pleading in order to make 5 Plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 6 complete in itself without reference to any prior pleading. This requirement exists because, as a 7 general rule, an amended complaint supersedes the original complaint. See Ramirez v. County 8 of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the 9 original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once 10 Plaintiff files an amended complaint, the original pleading no longer serves any function in the 11 case. Therefore, in an amended complaint, as in an original complaint, each claim and the 12 involvement of each defendant must be sufficiently alleged. The amended complaint should be 13 clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and 14 be an original signed under penalty of perjury. 15 Based on the foregoing, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s Complaint is DISMISSED for failure to state a claim, with leave to 17 amend; 18 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 19 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file 20 a First Amended Complaint curing the deficiencies in his claims identified in this 21 order; 22 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and 23 refer to the case number 1:19-cv-01688-GSA-PC; and 24 5. Plaintiff’s failure to comply with this order shall result in a recommendation that 25 this action be dismissed in its entirety for failure to state a claim. 26 IT IS SO ORDERED. 27

28 Dated: October 21, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 1

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