(PC)Lopez v. CDC Director

• Court: District Court, E.D. California
• Decided: April 1, 2025
• Docket: 2:21-cv-02094
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL LOPEZ, No. 2:21-cv-2094 DAD AC P 12 Plaintiff, 13 v. ORDER 14 CDC DIRECTOR, et al., 15 Defendants. 16 17 Plaintiff is a state inmate who filed this civil rights action pursuant to 42 U.S.C. § 1983 18 without a lawyer. Plaintiff filed a request for leave to proceed in forma pauperis (“IFP”) pursuant 19 to 28 U.S.C. § 1915(a)(1), and that motion was previously granted. See ECF No. 6. The court 20 screened the original complaint and found that plaintiff had stated an Eighth Amendment claim 21 against defendant Barrier challenging his conditions of confinement, but plaintiff did not state any 22 First Amendment claims against defendant Barrier or any claims against defendants Perry, 23 Crother, or the CDCR. ECF No. 6 at 6-7. Plaintiff was given the option of amending the 24 complaint or proceeding immediately on his cognizable Eighth Amendment claim against 25 defendant Barrier. Id. at 7-9. Plaintiff chose to amend the complaint. ECF No. 9. Pending 26 before the court are plaintiff’s first amended complaint (“FAC”), notice of retaliation, and motion 27 to appoint counsel. ECF Nos. 23, 28. 28 //// 1 I. Statutory Screening of Prisoner Complaints 2 A. Legal Standard 3 The court is required to screen complaints brought by prisoners seeking relief against “a 4 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A 5 claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. 6 Williams, 490 U.S. 319, 325 (1989). The court may dismiss a claim as frivolous if it is based on 7 an indisputably meritless legal theory or factual contentions that are baseless. Id., 490 U.S. at 8 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an 9 arguable legal and factual basis. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), 10 superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 11 2000). 12 In order to avoid dismissal for failure to state a claim a complaint must contain more than 13 “naked assertion[s],” “labels and conclusions,” or “a formulaic recitation of the elements of a 14 cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007). In other words, 15 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 16 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim upon which the 17 court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial 18 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 19 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation 20 omitted). When considering whether a complaint states a claim, the court must accept the 21 allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and construe the 22 complaint in the light most favorable to the plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421 23 (1969) (citations omitted). 24 B. Factual Allegations of the First Amended Complaint 25 The FAC alleges that defendants Barrier, Crother, Perry, Volkov, and the CDC director 26 violated plaintiff’s rights under the First and Eighth Amendment to the United States 27 Constitution. ECF No. 23. Specifically, plaintiff alleges that defendant Barrier violated his rights 28 (1) when, after plaintiff filed a grievance against Barrier, Barrier denied plaintiff his breakfast 1 trays and damaged plaintiff’s lunch trays making them inedible between March 3, 2021, and 2 March 17, 2021, and (2) when Barrier challenged plaintiff to a fight on March 10, 2021. Id. at 2- 3 3. 4 Plaintiff alleges that Crother violated his constitutional rights because Crother had the 5 authority to stop Barrier but did nothing, not even investigate plaintiff’s grievances against 6 Barrier regarding food deprivation and a challenge to fight him. Id. at 5-6. Plaintiff alleges that 7 Crother reviewed his grievance and that when Crother interviewed plaintiff about his grievances, 8 Crother spoke to him in a sarcastic and belittling tone as if he did not believe plaintiff and as if it 9 seemed impossible to Crother that a correctional officer could do what plaintiff claimed Barrier 10 did. Id. 11 Plaintiff also alleges that on April 28, 2021, he reported defendant Barrier’s behavior to 12 defendant Volkov and she refused to report the abuse and intervene as she was required to do as a 13 psychologist. Id. at 8-9. Volkov told plaintiff, “You are not going to bind me into some legal 14 action.” Id. at 9. Plaintiff claims that defendant Volkov’s supervisor also told him “sorry Lopez 15 we can’t help you. You’ll have to take it up with the officers.” Id. According to plaintiff, 16 Volkov and her supervisor “had a moral and sworn obligation to notify and intervene once an 17 inmate expresses danger, harm, harassment, abuse of any sort whether from the hands of other 18 inmates or authority figures.” Id. at 10. 19 Plaintiff claims that defendants Perry also violated his rights because Perry was aware of 20 what Barrier, Crother, and Volkov were doing. Id. at 11. Plaintiff’s family members had filed 21 two complaints on the High Desert State Prison (“HDSP”) website and left several messages for 22 Perry, and plaintiff had complained to the Ombudsman Scott Jacobs about what was going on and 23 when Jacobs came to the prison to speak to plaintiff, Jacobs assured plaintiff he had already 24 spoken to the warden about why he was there to speak to plaintiff. Id. at 11-12. The CDC 25 director is also named because plaintiff claims he had to be aware of his subordinates’ violations 26 based on plaintiff’s grievances, interviews with Crother, Volkov, and Volkov’s supervisor, letters 27 to the warden and associate director, the messages to the prison warden, and the investigation by 28 Ombudsman Jacobs. Id. at 12-13. 1 Plaintiff seeks monetary relief in the amount of $500,000, or a minimum of $300,000. Id. 2 at 14. 3 C. Claims for Which a Response Will Be Required 4 After conducting the screening required by 28 U.S.C. § 1915A(a), the court finds that 5 plaintiff has adequately stated a valid claim for relief pursuant to the Eighth Amendment against 6 defendant Barrier for depriving plaintiff of adequate nutrition. 7 D. Failure to State a Claim 8 The allegations in the amended complaint are not sufficient to state any claim for relief 9 against defendants Crother, Volkov, Perry, or the CDC director. Although plaintiff’s allegations 10 that Barrier deprived him of meals supports an Eighth Amendment claim, he does not adequately 11 plead a separate First Amendment retaliation claim against defendant Barrier because he does not 12 allege that these actions chilled the exercise of plaintiff’s First Amendment rights in any way. 13 Additionally, to the extent plaintiff attempted to allege an Eighth Amendment violation by 14 defendant Barrier for threatening him with physical harm by challenging him to a fight, such 15 threat is insufficient to establish a constitutional claim. 16 Plaintiff also fails to state a valid claim against Crother. Other than holding a supervisory 17 position and reviewing plaintiff’s grievance against Barrier, plaintiff has not alleged any facts that 18 Crother caused, participated in, or knew of Barrier’s or any other staff members’ violations and 19 failed to act to prevent them. Additionally, plaintiff has not alleged that Crother learned about 20 Barrier’s violations while the violations were ongoing and failed to stop them. Moreover, even if 21 plaintiff had alleged that he told Crother about Barrier’s violations while they were ongoing, 22 plaintiff alleges that Crother did not believe him, so at most plaintiff would have alleged Crother 23 acted negligently. 24 To the extent plaintiff attempted to state an Eighth Amendment constitutional claim 25 against defendant Volkov, he fails to do so. Plaintiff does not allege that he had a serious medical 26 need for treatment and Volkov failed to treat him, that Volkov knew about defendant Barrier’s 27 deprivations while they were ongoing and failed to intervene, or that Volkov’s conduct caused 28 plaintiff any harm. Instead, plaintiff alleges that after plaintiff told Volkov about defendant 1 Barrier’s violations, Volkov failed to report it. But plaintiff does not have a constitutional right to 2 a specific grievance process, nor has he alleged that psychologist have a federal statutory or 3 constitutional obligation to report abuse or harm disclosed by inmate patients. 4 Plaintiff also fails to state valid claims against Perry or the CDC director based on their 5 supervisory capacities. Plaintiff has not sufficiently linked Perry or the CDC director to any 6 asserted violation of his constitutional rights. The FAC does not allege when Perry and/or the 7 CDC director learned about defendant Barrier’s alleged violations. This is significant because if 8 Perry and the CDC director learned about defendant Barrier’s violations after the fact, then they 9 could not have acted with deliberate indifference by failing to stop Barrier’s conduct. 10 Alternatively, if they learned about defendant Barrier’s violations while they were ongoing, then 11 their choice not to intervene could establish deliberate indifference. 12 Moreover, plaintiff fails to allege that the CDC director, by virtue of their role, would 13 automatically be informed about a grievance, call, letter, message or complaint from a prisoner or 14 their family members made to the warden or filed through any grievance process, or an 15 ombudsman investigation, or how plaintiff knows this to be the case. Lastly, to the extent 16 plaintiff seeks monetary damages against the CDC director in his official capacity, such claim is 17 barred by the Eleventh Amendment. 18 It appears to the court that plaintiff may be able to allege facts to fix some of these 19 problems. Therefore, plaintiff has the option of filing an amended complaint. 20 E. Options from Which Plaintiff Must Choose 21 Based on the court’s screening, plaintiff has a choice to make. After selecting an option 22 from the two options listed below, plaintiff must return the attached Notice of Election form to 23 the court within twenty-one days from the date of this order. 24 The first option available to plaintiff is to proceed immediately against defendant 25 Barrier on the Eighth Amendment claim. By choosing this option, plaintiff will be agreeing 26 to voluntarily dismiss the First Amendment retaliation claims against defendant Barrier 27 and all claims against defendants Crother, Volkov, Perry, and the CDC director. The court 28 //// 1 will proceed to immediately serve the complaint and order a response from defendant 2 Barrier. 3 The second option available to plaintiff is to file a second amended complaint to fix 4 the problems described in Section I.D. against defendants Crother, Volkov, Perry, and the 5 CDC director. If plaintiff chooses this option, the court will set a deadline in a subsequent 6 order to give plaintiff time to file an amended complaint. 7 To decide whether to amend your complaint, the court has attached the relevant legal 8 standards that may govern your claims for relief. See Attachment A. 9 II. Notice Regarding Retaliation by Officers 10 Recently, plaintiff filed a notice of retaliation by officers, in which he informs the court of 11 a recent assault against him by unnamed officers and requests the court send an investigator. 12 Although the court is troubled by the allegations, plaintiff is advised that the court does not have 13 authority to investigate these allegations on plaintiff’s behalf. To the extent these claims are 14 related to the present action, plaintiff can amend the complaint to include those allegations. 15 However, plaintiff is advised that unrelated claims against different defendants must be 16 pursued in separate lawsuits. See Attachment A (legal standard for joinder of claims). 17 III. Motion To Appoint Counsel 18 Plaintiff requests that the court appoint counsel because he is “having a hard time 19 understanding the court terminology and don’t know how to move forward with my case and 20 filing the court orders paperwork that is asked of me.” ECF No. 28 at 2-3. Plaintiff also states 21 that he wants “the courts and judge to know this is any easy claim. Everything I claimed to have 22 happened is all on video.” Id. at 3. 23 District courts lack authority to require counsel to represent indigent prisoners in section 24 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 25 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 26 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 27 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 28 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 1 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 2 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 3 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 4 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 5 legal education and limited law library access, do not establish exceptional circumstances that 6 warrant a request for voluntary assistance of counsel. 7 Having considered the factors under Palmer, the court finds that plaintiff has failed to 8 meet his burden of demonstrating exceptional circumstances warranting the appointment of 9 counsel at this time. As screened, twice, this case is a straightforward Eighth Amendment claim 10 to inadequate nutrition against a single defendant. Accordingly, appointment of counsel is denied 11 at this time. 12 IV. Plain Language Summary of this Order for Party Proceeding Without a Lawyer 13 Some of the allegations in the complaint state claims against the defendants and some do 14 not. You have stated an Eighth Amendment conditions of confinement claim against defendant 15 Barrier for denying you adequate food. You have not stated a First Amendment claim against 16 defendant Barrier or any claims against defendants Crother, Volkov, Perry, and the CDC director. 17 You have a choice to make. You may either (1) proceed immediately on your Eighth 18 Amendment claim against defendant Barrier and voluntarily dismiss the other claims; or, (2) try 19 to amend the complaint. To decide whether to amend your complaint, the court has attached the 20 relevant legal standards that may govern your claims for relief. See Attachment A. Pay 21 particular attention to these standards if you choose to file an amended complaint. 22 Because the court cannot require appointment of counsel in this case and your case, at this 23 time, appears to be a single claim against a single defendant, the court is denying your request for 24 an attorney. 25 CONCLUSION 26 In accordance with the above, IT IS HEREBY ORDERED that: 27 1. Plaintiff’s motion to appoint counsel (ECF No. 28) is DENIED. 28 //// 1 2. Plaintiff's claims against defendants Crother, Volkov, Perry, and the CDC director do 2 || not state claims for which relief can be granted. Plaintiff also fails to state a First Amendment 3 || retaliation claim against defendant Barrier. 4 3. Plaintiff has the option to proceed immediately on his Eighth Amendment conditions 5 || of confinement claim against defendant Barrier as set forth in Section I.C. above, or to file an 6 || amended complaint. 7 4. Within twenty-one days from the date of this order, plaintiff shall complete and 8 | return the attached Notice of Election form notifying the court whether he wants to proceed on 9 || the screened complaint or whether he wants to file an amended complaint. 10 5. If plaintiff does not return the form, the court will assume that he is choosing to 11 || proceed on the complaint as screened and will recommend dismissal without prejudice of 12 | plaintiffs First Amendment retaliation claim against defendant Barrier and all claims against 13 || defendants Crother, Volkov, Perry, and the CDC director. 14 | DATED: April 1, 2025 15 ~ 16 Chthwen— Clare ALLISON CLAIRE 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL LOPEZ, No. 2:21-cv-2094 DAD AC P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 CDC DIRECTOR, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his Eighth Amendment conditions of 19 confinement claim against defendant Barrier without amending the complaint. Plaintiff 20 understands that by choosing this option, the remaining First Amendment claim against 21 defendant Barrier and all other claims against defendants Crother, Volkov, Perry, and the 22 CDC director will be voluntarily dismissed without prejudice pursuant to Federal Rule of 23 Civil Procedure 41(a). 24 _____ Plaintiff wants time to file an amended complaint. 25 26 DATED:_______________________

27 Daniel Lopez Plaintiff pro se 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. Personal Involvement and Supervisory Liability 22 The civil rights statute requires that there be an actual connection or link between the 23 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 24 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 25 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional 26 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 27 affirmative acts or omits to perform an act which he is legally required to do that causes the 28 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) 1 (citation omitted). In order to state a claim for relief under section 1983, plaintiff must link each 2 named defendant with some affirmative act or omission that demonstrates a violation of 3 plaintiff’s federal rights. 4 Government officials may not be held liable for the unconstitutional conduct of their 5 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 6 (“In a § 1983 suit . . . the term “supervisory liability” is a misnomer. Absent vicarious liability, 7 each Government official, his or her title notwithstanding is only liable for his or her own 8 misconduct.”). When the named defendant holds a supervisory position, the causal link between 9 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 10 plaintiff must allege some facts indicating that the defendant either personally participated in or 11 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 12 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 13 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 14 B. Eleventh Amendment Bar 15 “The Eleventh Amendment bars suits against the State or its agencies for all types of 16 relief.” See Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher Educ., 616 F.3d 17 963, 967 (9th Cir. 2010); Fireman’s Fund Ins. Co., v. City of Lodi, Cal., 302 F.3d 928, 957 n.28 18 (9th Cir. 2002) (“The Eleventh Amendment bars suits which seeks either damages or injunctive 19 relief against a state, ‘an arm of the state’, its instrumentalities, or its agencies.”). Moreover, “the 20 State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are 21 not subject to suit under § 1983 in either federal court or state court.” Howlett v. Rose, 496 U.S. 22 356, 365 (1990) (citation omitted); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989) 23 (states and their agencies may not be sued for depriving civil rights under § 1983 because only 24 “‘persons’ may be sued for depriving civil rights under § 1983, and states are not ‘persons’ within 25 the meaning of § 1983.”). 26 Claims for damages against state officials acting in their official capacity are barred by 27 sovereign immunity because “a suit against a state official in his or her official capacity is not a 28 suit against the official but rather is a suit against the official’s office” and therefore “no different 1 from a suit against the State itself.” Will, 491 U.S. at 71 (citations omitted). The Eleventh 2 Amendment, however, does not bar suits seeking damages against state officials in their 3 individual capacities. Hafer v. Melo, 502 U.S. 21, 30-31 (1991). Nor does it bar suits seeking 4 only prospective declaratory or injunctive relief against state officers sued in their official 5 capacities. See Will, 491 U.S. at 71 (state officials sued in their official capacity for prospective 6 relief are “person[s]” within the meaning of § 1983”). 7 C. First Amendment Retaliation 8 “Within the prison context, a viable claim of First Amendment retaliation entails five 9 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 10 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate’s 11 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 12 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted). 13 D. Eighth Amendment Conditions of Confinement 14 For a prison official to be held liable for alleged unconstitutional conditions of 15 confinement, the prisoner must allege facts that satisfy a two-prong test. Peralta v. Dillard, 744 16 F.3d 1076, 1082 (9th Cir. 2014) (citing Farmer, 511 U.S. at 837). The first prong is an objective 17 prong, which requires that the deprivation be “sufficiently serious.” Lemire v. Cal. Dep’t of Corr. 18 & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (citing Farmer, 511 U.S. at 834). To be 19 sufficiently serious, the prison official’s “act or omission must result in the denial of the ‘minimal 20 civilized measure of life’s necessities.” Lemire, 726 F.3d at 1074. The objective prong is not 21 satisfied in cases where prison officials provide prisoners with “adequate shelter, food, clothing, 22 sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 23 2000) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). “[R]outine discomfort 24 inherent in the prison setting” does not rise to the level of a constitutional violation. Johnson v. 25 Lewis, 217 F.3d at 732 (“[m]ore modest deprivations can also form the objective basis of a 26 violation, but only if such deprivations are lengthy or ongoing”). Rather, extreme deprivations 27 are required to make out a conditions of confinement claim, and only those deprivations denying 28 the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an 1 Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9 2 (1992). The circumstances, nature, and duration of the deprivations are critical in determining 3 whether the conditions complained of are grave enough to form the basis of a viable Eighth 4 Amendment claim. Johnson v. Lewis, 217 F.3d at 731. 5 The second prong focuses on the subjective intent of the prison official. Peralta, 744 F.3d 6 at 1082 (citing Farmer, 511 U.S. at 837). The deliberate indifference standard requires a showing 7 that the prison official acted or failed to act despite the prison official’s knowledge of a 8 substantial risk of serious harm to the prisoner. Id. (citing Farmer, 511 U.S. at 842); see also 9 Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991). Mere negligence on the part 10 of the prison official is not sufficient to establish liability. Farmer, 511 U.S. at 835. 11 E. Eighth Amendment Medical Deliberate Indifference 12 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 13 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 14 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 15 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 16 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 17 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 18 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 19 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 20 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 21 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 22 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 23 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 24 existence of an injury that a reasonable doctor or patient would find important and worthy of 25 comment or treatment; the presence of a medical condition that significantly affects an 26 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 27 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 28 //// 1 Second, the plaintiff must show the defendant’s response to the need was deliberately 2 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 3 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 4 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 5 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 6 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 7 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 8 showing of merely negligent medical care is not enough to establish a constitutional violation. 9 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 10 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 11 a dispute between a prisoner and prison officials over the necessity for or extent of medical 12 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 13 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 14 medical treatment, “without more, is insufficient to state a claim of deliberate medical 15 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 16 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 17 prisoner must show that the delay caused “significant harm and that Defendants should have 18 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 19 F. Eight Amendment - Verbal Threats 20 “A mere threat may not state a cause of action” under the Eighth Amendment. Gaut v. 21 Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam); see also Corales v. Bennett, 567 F.3d 554, 22 564-65 (9th Cir. 2009). 23 G. Grievances 24 The First Amendment protects an inmate’s right to litigate and to file grievances. Silva v. 25 Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011). However, the existence of a prison grievance 26 procedure establishes a procedural right only and “does not confer any substantive right upon the 27 inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citation omitted); see also 28 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals 1 because no entitlement to a specific grievance procedure). This means that a prison official’s 2 action in reviewing an inmate grievance cannot serve as a basis for liability under Section 1983. 3 Buckley, 997 F.2d at 495. “Only persons who cause or participate in the violations are 4 responsible. Ruling against a prisoner on an administrative complaint does not cause or 5 contribute to the violation. A guard who stands and watches while another guard beats a prisoner 6 violates the Constitution; a guard who rejects an administrative complaint about a completed act 7 of misconduct does not.” George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (citations 8 omitted). 9 H. Joinder of Claims 10 A plaintiff may properly assert multiple claims against a single defendant in a civil action. 11 Fed. Rule Civ. P. 18. In addition, a plaintiff may join multiple defendants in one action where 12 “any right to relief is asserted against them jointly, severally, or in the alternative with respect to 13 or arising out of the same transaction, occurrence, or series of transactions and occurrences” and 14 “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 15 20(a)(2). However, unrelated claims against different defendants must be pursued in separate 16 lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only 17 to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to 18 ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act limits to 3 19 the number of frivolous suits or appeals that any prisoner may file without prepayment of the 20 required fees. 28 U.S.C. § 1915(g).” Id.

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