1 2 3 4 5 6 9 10 JESSE LEE SHAVERS, JR., Case No. 2:21-cv-01734-JDP (PC) 11 Plaintiff, ORDER THAT THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO THIS 12 v. ACTION 13 TABER, et al., FINDINGS AND RECOMMENDATIONS THAT THE THIRD AMENDED 14 Defendants. COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM 15 ECF No. 25 16 FOURTEEN-DAY DEADLINE FOR 18 19 20 Plaintiff, a state prisoner, alleges that his Eighth Amendment rights were violated when 21 defendants conspired to take away his cane and other mobility devices. ECF No. 25 at 3. I found 22 two earlier complaints based on these claims insufficient to proceed past screening. ECF Nos. 18 23 & 22. While plaintiff titles the current complaint his “Second Amended Complaint,” it is in fact 24 his third. As before, it fails to state a cognizable claim. Given that this is plaintiff’s third 25 complaint, and he has still failed to state a cognizable claim, I now recommend that this action be 26 dismissed for failure to state a claim. 27 28 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 1 II. Analysis 2 As in his previous complaints, plaintiff’s allegations center on defendant Taber’s decision 3 to discontinue plaintiff’s prescriptions for mobility devices, including for a cane. ECF No. 25 at 4 3. Plaintiff alleges that defendant Kelsey, a correctional officer with whom plaintiff had several 5 verbal altercations, lied to Dr. Taber and succeeded in having those prescriptions rescinded. Id. 6 The complaint does not explain what Kelsey told Taber, or why a physician would look to a 7 correctional officer for medical information. Indeed, the complaint does not allege what medical 8 justification, if any, Taber gave for withdrawing the prescriptions. Thus, as to both defendants, 9 plaintiff’s allegations are too vague to proceed. The allegations against Kelsey amount to little 10 more than the the sort of unadorned “the defendant harmed me” allegation that the Supreme Court 11 has determined to be non-compliant with federal pleading standards. Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009) (“[T]he pleading standard Rule 8 announces does not require ‘detailed factual 13 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me 14 accusation.”). As to Taber, deliberate indifference under the Eighth Amendment requires 15 allegations that, taken as true, establish that plaintiff had a serious medical need and that the 16 defendants knew of and disregarded an excessive risk to his health or safety. Colwell v. 17 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). Here, assuming mobility devices amounted to a 18 serious medical need, he has not alleged facts showing that Taber knew that removing those 19 devices amounted to an excessive risk to plaintiff’s health or safety. Indeed, the main thrust of 20 plaintiff’s claims against Taber are that he failed to comply with prison procedure when he 21 discontinued the mobility prescriptions. ECF No. 25 at 4. Failure to follow prison policy does 22 not give rise to a violation of federal law, however.1 See Cousins v. Lockyer, 568 F.3d 1063, 23 1070 (9th Cir. 2009). 24
25 1 I note that, in the headings of the complaint, plaintiff also alleges that the removal of his mobility devices violated the Americans with Disabilities Act. He alleges inadequate treatment 26 for his disability and not, as the ADA requires, an allegation that he was discriminated against because of any disability. See Simmons v. Navajo County, 609 F.3d 1011, 1022 (9th Cir. 2010) 27 (“The ADA prohibits discrimination because of disability, not inadequate treatment for disability.”). 28 1 Plaintiff’s claims against the other two defendants, the unnamed warden of High Desert 2 Prison and a nurse named Bassett, also fail. As for the warden, plaintiff alleges that this 3 defendant misconstrued his administrative appeal and, despite knowing of the wrongs being done, 4 failed to intervene. ECF No. 25 at 5. Responding (or failing to respond) to a prison grievance 5 does not give rise to a constitutional claim. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 6 2003) (holding that an inmate’s “claimed loss of a liberty interest in the processing of his appeals 7 does not satisfy this standard, because inmates lack a separate constitutional entitlement to a 8 specific prison grievance procedure”). And the complaint is otherwise vague as to how the 9 warden knew that plaintiff’s care was inadequate. Plaintiff’s claims against Bassett are 10 inscrutable. He claims that in April 2020, this defendant lied to state officials about unspecified 11 medical issues. ECF No. 25 at 6.
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1 2 3 4 5 6 9 10 JESSE LEE SHAVERS, JR., Case No. 2:21-cv-01734-JDP (PC) 11 Plaintiff, ORDER THAT THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO THIS 12 v. ACTION 13 TABER, et al., FINDINGS AND RECOMMENDATIONS THAT THE THIRD AMENDED 14 Defendants. COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM 15 ECF No. 25 16 FOURTEEN-DAY DEADLINE FOR 18 19 20 Plaintiff, a state prisoner, alleges that his Eighth Amendment rights were violated when 21 defendants conspired to take away his cane and other mobility devices. ECF No. 25 at 3. I found 22 two earlier complaints based on these claims insufficient to proceed past screening. ECF Nos. 18 23 & 22. While plaintiff titles the current complaint his “Second Amended Complaint,” it is in fact 24 his third. As before, it fails to state a cognizable claim. Given that this is plaintiff’s third 25 complaint, and he has still failed to state a cognizable claim, I now recommend that this action be 26 dismissed for failure to state a claim. 27 28 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 1 II. Analysis 2 As in his previous complaints, plaintiff’s allegations center on defendant Taber’s decision 3 to discontinue plaintiff’s prescriptions for mobility devices, including for a cane. ECF No. 25 at 4 3. Plaintiff alleges that defendant Kelsey, a correctional officer with whom plaintiff had several 5 verbal altercations, lied to Dr. Taber and succeeded in having those prescriptions rescinded. Id. 6 The complaint does not explain what Kelsey told Taber, or why a physician would look to a 7 correctional officer for medical information. Indeed, the complaint does not allege what medical 8 justification, if any, Taber gave for withdrawing the prescriptions. Thus, as to both defendants, 9 plaintiff’s allegations are too vague to proceed. The allegations against Kelsey amount to little 10 more than the the sort of unadorned “the defendant harmed me” allegation that the Supreme Court 11 has determined to be non-compliant with federal pleading standards. Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009) (“[T]he pleading standard Rule 8 announces does not require ‘detailed factual 13 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me 14 accusation.”). As to Taber, deliberate indifference under the Eighth Amendment requires 15 allegations that, taken as true, establish that plaintiff had a serious medical need and that the 16 defendants knew of and disregarded an excessive risk to his health or safety. Colwell v. 17 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). Here, assuming mobility devices amounted to a 18 serious medical need, he has not alleged facts showing that Taber knew that removing those 19 devices amounted to an excessive risk to plaintiff’s health or safety. Indeed, the main thrust of 20 plaintiff’s claims against Taber are that he failed to comply with prison procedure when he 21 discontinued the mobility prescriptions. ECF No. 25 at 4. Failure to follow prison policy does 22 not give rise to a violation of federal law, however.1 See Cousins v. Lockyer, 568 F.3d 1063, 23 1070 (9th Cir. 2009). 24
25 1 I note that, in the headings of the complaint, plaintiff also alleges that the removal of his mobility devices violated the Americans with Disabilities Act. He alleges inadequate treatment 26 for his disability and not, as the ADA requires, an allegation that he was discriminated against because of any disability. See Simmons v. Navajo County, 609 F.3d 1011, 1022 (9th Cir. 2010) 27 (“The ADA prohibits discrimination because of disability, not inadequate treatment for disability.”). 28 1 Plaintiff’s claims against the other two defendants, the unnamed warden of High Desert 2 Prison and a nurse named Bassett, also fail. As for the warden, plaintiff alleges that this 3 defendant misconstrued his administrative appeal and, despite knowing of the wrongs being done, 4 failed to intervene. ECF No. 25 at 5. Responding (or failing to respond) to a prison grievance 5 does not give rise to a constitutional claim. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 6 2003) (holding that an inmate’s “claimed loss of a liberty interest in the processing of his appeals 7 does not satisfy this standard, because inmates lack a separate constitutional entitlement to a 8 specific prison grievance procedure”). And the complaint is otherwise vague as to how the 9 warden knew that plaintiff’s care was inadequate. Plaintiff’s claims against Bassett are 10 inscrutable. He claims that in April 2020, this defendant lied to state officials about unspecified 11 medical issues. ECF No. 25 at 6. I cannot tell whether these issues relate to the previously 12 mentioned mobility prescriptions or some other subject. I cannot even determine how, or even if, 13 the issues she lied about implicate plaintiff’s health. Thus, he has failed to state a claim against 14 Bassett. 15 Accordingly, it is ORDERED that the Clerk of Court assign a district judge to this action. 16 Further, it is RECOMMENDED that the Third Amended Complaint, ECF No. 25, be 17 DISMISSED without further leave to amend. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 23 objections shall be served and filed within fourteen days after service of the objections. The 24 parties are advised that failure to file objections within the specified time may waive the right to 25 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 26 v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
27 28 1 | 1718 SO ORDERED. 3 ( — Dated: __April 5, 2023 ssn (aioe 4 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 7 g 9 10 il 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28