1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, Case No.: 18cv1318-DMS (RBM) CDCR #AG-2344, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING DEFENDANTS’ 14 MOTION TO DISMISS PURSUANT O. NAVARRO, N.A. GARSILASO, TO Fed. R. Civ. P. 12(b)(6); 15 E. ESTRADA, C. BAGNOL, F. LEWIS, 16 L. HALL, R. KATYAL, S. KNITTMAN, (2) DISMISSING COUNTS TWO C. TISCORNIA, A-Yard Building #2 AND THREE OF THE COMPLAINT 17 WITHOUT PREJUDICE; Staff, RJD Litigation Department, and
18 RJD EOP Scheduling Department, (3) DISMISSING UNSERVED 19 Defendants. DEFENDANTS WITHOUT PREJUDICE; and 20 (4) GRANTING LEAVE TO AMEND 21 22 Lance Williams (“Plaintiff”) is a California prisoner proceeding pro se and in forma 23 pauperis with a Complaint filed pursuant to 42 U.S.C. § 1983. (ECF No. 1.) He claims 24 that while housed at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, 25 California, his Eighth Amendment rights were violated when he was: (1) not released from 26 his cell to shower and obtain prescription medication on sixteen occasions, retaliated 27 against for his use of the inmate grievance system, and intentionally hit by his cell door 28 and denied medical care for the resultant injuries (count one); (2) not allowed to contact 1 his attorney (count two); and (3) denied adequate time out of his cell which was kept at a 2 high temperature and denied medical and mental health care for the resultant injuries, and 3 provided inadequate law library time (count three). (Id. at 5-11.) 4 Defendants C. Bagnol, S. Knittman, C. Tiscornia, F. Lewis, O. Navarro, R. Katyal 5 and N.A. Garsilaso have filed a Motion to Dismiss counts two and three of the Complaint 6 pursuant to FED. R. CIV. P. 12(b)(6). (ECF No. 39.) Defendants E. Estrada and L. Hall 7 have joined the motion. (ECF No. 50.) The summons for the three remaining Defendants 8 named in the Complaint, A-Yard Building #2 Staff Corrections Officers, Litigation 9 Department of RJD Litigation Coordinators, and RJD EOP Scheduling Department, were 10 returned unexecuted by the United States Marshal. (ECF Nos. 31, 34, 35.) 11 Plaintiff has filed an Opposition to the Motion to Dismiss and a Supplemental 12 Opposition to the Joinder. (ECF Nos. 44, 51.) 13 For the reasons discussed herein, Plaintiff has failed to state a claim upon which 14 relief may be granted as to counts two and three of the Complaint. The Court therefore 15 GRANTS Defendants’ Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(6) and 16 DISMISSES counts two and three of the Complaint without prejudice.1 17 In addition, the Court GRANTS Plaintiff leave to amend to correct the pleading 18 deficiencies identified in this Order if he wishes to attempt to do so, or to proceed only 19 with count one of the Complaint. The Court DISMISSES the three unserved Defendants 20 without prejudice for lack of timely service. 21 I. Plaintiff’s Complaint 22 The Complaint names as Defendants RJD Correctional Officers O. Navarro, N.A. 23 Garsilaso, C. Bagnol, E. Estrada, F. Lewis, L. Hall and the A-Yard Building #2 Staff. (ECF 24 No. 1 at 2-4.) In addition to those Correctional Officers, the Compliant also names as 25
26 27 1 Although the motion was referred to United States Magistrate Judge Ruth Bermudez pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither oral argument 28 1 Defendants the Senior Psychologist of the Enhanced Outpatient Program (“EOP”) at RJD 2 R. Katyal, Clinician Case Manager S. Knittman, Law Library Clerk C. Tiscornia, as well 3 as “Litigation Dept. of RJD Litigation Coordinators,” and “RJD EOP scheduling Dept. 4 mental health scheduling department.” (Id.) The Complaint contains three counts. 5 In count one Plaintiff claims a violation of his Eighth Amendment right to medical 6 care, to be free from excessive force, to be free from “deliberate indifference,” and to be 7 free from deprivation of life’s basic necessities. (Id. at 5.) He alleges that on May 20, 8 2018, Defendant “O. Navarro began his campaign of harassment” by refusing to release 9 him from his cell to obtain prescribed medication at the 3:00 p.m. and 8:00 p.m. “med-pass 10 time,” and did so again on May 21, 22, 26, 27, 28, 30 and 31, and June 3 and 4, 2018. (Id. 11 at 5.) He was not released from his cell for medication on May 24 and June 2, 5, 6 and 7, 12 2018, but does not allege who was responsible, and alleges his “man down calls” he made 13 due to migraines and nose bleeds on those occasions were ignored. (Id.) He alleges that 14 on June 4, 2018, Defendant Navarro opened his cell door halfway and pushed the button 15 to close the door while Plaintiff was entering, which hit Plaintiff in the head and knocked 16 him down injuring his neck and shoulder, and then refused him medical attention for those 17 injuries and refused to let him out of his cell for his 8:00 p.m. medication. (Id.) 18 Plaintiff alleges he was denied the opportunity to shower on May 22, 24, 27 and 31, 19 and June 2, 3, 4, 5 and 7, 2018, and as a result developed rashes and fungus on his feet and 20 groin. (Id. at 5-6.) He alleges Defendant Bagnol “also conducted the same type of activity” 21 as Defendant Navarro of not allowing him access to his medication and showers on June 22 1, 2 and 8, 2018. (Id. at 6.) He alleges Defendant Garsilaso delivered Plaintiff’s mail to 23 his cell on an unidentified date after Plaintiff had been banging on his door for an hour 24 requesting medication. (Id.) He showed Defendant Garsilaso the bloody towel he was 25 using for his nosebleed at that time but Defendant Garsilaso said: “write a 602 [inmate 26 grievance], don’t you always do that anyway,” and walked away. (Id.) When Plaintiff 27 asked Defendant Bagnol why his requests for medication were ignored, he responded: “the 28 nurse T. Briseo told him not to let me out that I don’t have anything to get.” (Id.) Plaintiff 1 states that Nurse Briseo later denied saying that to Defendant Bagnol and had in fact told 2 Defendant Bagnol that Plaintiff “has a P.R.N. migration medication and a psych medication 3 he can take if he wanted it and to let him out if he wanted it.” (Id.) Plaintiff alleges 4 Defendant Estrada was aware Plaintiff was not being let out for his medication but did 5 nothing about it. (Id.) 6 Plaintiff alleges that on June 8, 2018, he received a falsified and fabricated Rules 7 Violation Report (“RVR”) which charged him with the use of disrespectful language when 8 Defendant Navarro let him out of his cell for his medication at 8:32 p.m. on June 4, 2018. 9 (Id. at 7, 15.) He alleges Defendant Navarro filed the RVR in retaliation for Plaintiff filing 10 numerous inmate grievances regarding the campaign of harassment and to discourage him 11 from complaining about being hit by his cell door. (Id. at 7.) On June 12, 2018, Defendant 12 Navarro allegedly pointed a mini-14 assault weapon at Plaintiff and said: “If you put 13 another appeal in that box or I get wind of any lawsuits I’ll blow you away.” (Id.) 14 In count two Plaintiff alleges a violation of his Eighth Amendment right of access to 15 the courts. (Id. at 8.) He states that as a result of being placed on “loss of privileges,” 16 Defendants A-Yard Building #2 Staff deprived him of the “ability to contact his attorney 17 for active case #LA061501 and for civil actions he has active.” (Id.) He alleges Defendants 18 Lewis and Hall, along with Sergeant Estorhio who is not a named Defendant, were 19 informed of his need to contact his attorney but deprived him of an opportunity to speak to 20 his attorney, as did Defendant “Litigation Department of RJD,” including its employees 21 “C.C.I. McGuirre and Connie,” neither of whom are named as Defendants. (Id.) He claims 22 that every A-Yard Building #2 Staff went out of their way to prevent him from contacting 23 his attorney to the point he had to involve other inmates and breach his attorney-client 24 confidentiality. (Id.) As a result, he missed a June 21, 2018 court deadline which required 25 him to obtain an extension, which in turn has caused him to be falsely imprisoned longer 26 than he would have been but for the extension. (Id.) 27 In count three Plaintiff claims a violation of his Eighth Amendment right to adequate 28 medical care, access to the courts, and to be free from retaliation. (Id. at 9.) He alleges his 1 loss of privileges was a result of a campaign of harassment against him which in turn 2 resulted in denial of his mandatory 10 hours of out of cell time per week. (Id.) He states 3 he is classified at RJD in the EOP with a history of suicide attempts, and the reduction of 4 out of cell time from 10 hours per week to 6 hours one week and 7 hours two other weeks 5 caused a deterioration of his mental health and physical injuries arising from sensory 6 deprivation, aggravated by the temperature in his cell in excess of one hundred degrees in 7 the summer months, and which include high blood pressure, chronic low back pain, a risk 8 of stroke, possible suicide and homicide attempts, as well as the denial of medication, 9 showers, dayroom time, yard time, and having to choose between exercise time or law 10 library time. (Id. at 9-10.) He states that Defendant Knittman and his supervisor Defendant 11 Kayall, as well as Defendant RJD EOP Scheduling Department, “are all liable” for those 12 deprivations. (Id. at 9.) He claims that Defendant Tiscornia, by scheduling Plaintiff’s law 13 library passes during his yard time and refusing his request to change that schedule, is 14 responsible for Plaintiff having to choose between exercise time or time in the law library 15 needed for his more than twenty active legal cases. (Id. at 11.) 16 II. Legal Standards 17 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 18 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because 19 Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s substantive 20 merits, “a court may look only at the face of the complaint to decide a motion to dismiss.” 21 Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). 22 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 23 accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial 24 plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 27 570 (2007). “All allegations of material fact are taken as true and construed in the light 28 most favorable to the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337- 1 38 (9th Cir. 1996). The Court need not accept “allegations that are merely conclusory, 2 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State 3 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Papasan v. Allain, 478 U.S. 265, 286 (1986) 4 (a court is “not bound to accept as true a legal conclusion couched as a factual allegation.”) 5 “When there are well-pleaded factual allegations, a court should assume their 6 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 7 Iqbal, 556 U.S. at 679. “The plausibility standard is not akin to a ‘probability requirement,’ 8 but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 9 678, quoting Twombly, 550 U.S. at 556. “Where a complaint pleads facts that are ‘merely 10 consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and 11 plausibility of “entitlement to relief.”’” Id., quoting Twombly, 550 U.S. at 557. “In sum, 12 for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and 13 reasonable inferences from that content, must be plausibly suggestive of a claim entitling 14 the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 15 2009), quoting Iqbal, 556 U.S. at 678. 16 “In civil rights cases where the plaintiff appears pro se, the court must construe the 17 pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. 18 L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is 19 “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th 20 Cir. 1992). The rule, however, “applies only to a plaintiff’s factual allegations.” Neitzke 21 v. Williams, 490 U.S. 319, 330 n.9 (1989). Courts “may not supply essential elements of 22 claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 23 266, 268 (9th Cir. 1982). “Vague and conclusory allegations of official participation in 24 civil rights violations are not sufficient to withstand a motion to dismiss.” Id. 25 III. Arguments in support of and opposition to Defendants’ Motion to Dismiss 26 The California Attorney General, on behalf of Defendants Navarro, Garsilaso, 27 Bagnol, Lewis, Katyal, Knittman and Tiscornia, all of whom have waived service of the 28 summons and complaint (see ECF Nos. 24-30), has filed the instant motion to dismiss 1 counts two and three of the Complaint. (ECF No. 39.) After the motion was filed, waivers 2 of the summons and complaint as to Defendants Estrada and Hall were filed (ECF Nos. 48- 3 49), and the California Attorney General filed a joinder on their behalf in the motion to 4 dismiss. (ECF No. 50.) The summons for the three remaining Defendants named in the 5 Complaint, A-Yard Building #2 Staff Corrections Officers, Litigation Department of RJD 6 Litigation Coordinators, and RJD EOP Scheduling Department, were returned unexecuted 7 by the United States Marshal after the Defendants were unable to be located with the 8 information provided by Plaintiff. (ECF Nos. 31, 34, 35.) 9 The moving Defendants argue Plaintiff has failed to state an Eighth Amendment 10 denial of access to courts claim in count two because such a claim must be brought if at all 11 under the First Amendment, and has failed to state such a claim because he has not alleged 12 an actual injury as a result of the denial of his request to speak with his attorney. (ECF No. 13 39 at 12-13.) Defendants argue count three fails to state a claim for denial of exercise 14 because there are no facts alleged which, if proven, demonstrate personal participation by 15 any of them in the alleged deprivation, and no facts alleged showing that the short periods 16 of time Plaintiff was denied outdoor exercise, four hours one week and three hours two 17 other weeks, are sufficiently serious so as to state such a claim. (Id. at 13-16.) They argue 18 count three does not state a claim for denial of mental health care for the same reasons, a 19 lack of facts alleging a direct participation in the alleged violation by any Defendant and a 20 lack of factual allegations of a serious effect to his mental health. (Id. at 16-19.) 21 Defendants argue Plaintiff has not stated an Eighth Amendment claim for denial of 22 access to showers and regarding the temperature in his cell in count three because it is 23 based on vague and conclusory allegations regarding those conditions without allegations 24 of direct participation by any Defendant. (Id. at 17-18.) Finally, Defendants argue being 25 forced to choose between yard time and law library time in and of itself does not state an 26 access to courts claim, which must be accompanied by allegations of an actual injury, 27 which Plaintiff has failed to allege for the same reasons as in count two. (Id. at 18-19.) 28 / / / 1 Plaintiff opposes the motion to dismiss, arguing generally that he has alleged a causal 2 link between the Defendants and the violations of his rights in all three counts through his 3 allegation in count one that they are all part of a campaign of harassment against him. (ECF 4 No. 44 at 1-2.) He states he has alleged the facts of the Complaint to the best of his ability 5 and assumed he could supplement his allegations of direct participation by individual 6 Defendants through the discovery process. (Id. at 2.) As to the objective prong of an 7 Eighth Amendment claim, he contends he has satisfied it through his allegations regarding 8 the deterioration of his mental and physical health. (Id. at 1-2.) 9 Specifically, with respect to count two of the Complaint, Plaintiff states he labeled 10 it as an Eighth Amendment access to courts claim in error and asks the Court to excuse the 11 error due to his pro per status. (Id. at 3.) He states Defendants are wrong to characterize 12 it as a First Amendment access to courts claim, and that he is attempting to state a claim 13 based on interference with his ability to contact his attorney regarding an appeal in an active 14 criminal case as a violation of his Sixth Amendment right to counsel. (Id.) 15 With respect to count three of the Complaint, Plaintiff disagrees with Defendants’ 16 contention that brief denials of outdoor exercise are insufficient to satisfy the objective 17 prong of an Eighth Amendment claim, arguing that the denial of out of cell time here rises 18 to such a level because it resulted in serious injuries. (Id. at 4.) He argues he has alleged 19 personal participation because he told Defendants Katyal and Knittman he would kill 20 himself or hurt someone if he was not provided more out of cell time or if the harassment 21 did not stop. (Id. at 5-6.) He also contends he has stated a claim against Defendant Katyal 22 for supervisor liability because she was aware of his complaints though 602 inmate appeals 23 he filed and interviews he had with Defendant Knittman, which Defendant Katyal was 24 required to review as Defendant Knittman’s supervisor. (Id. at 6.) 25 With respect to Defendants’ argument that Plaintiff has failed to state a claim 26 regarding the temperature in his cell and lack of showers, Plaintiff states that these claims 27 are included in his general claim of an ongoing campaign of harassment he has suffered 28 for many months by Defendant A-Yard Building #2 Staff, individual members of which 1 he intends to identify through discovery. (Id. at 7.) He contends that the specifics of his 2 allegations regarding the campaign of harassment are outlined in a separate civil action he 3 filed in this Court about one month after he initiated this action, So. Dist. Ca Civil Case 4 No. 18cv1581-WQH (KSC), of which he requests the Court take judicial notice. (Id.) He 5 also states that direct participation by the Defendants in this action of the claims raised here 6 can be supplied by looking at other civil rights cases he has filed in this Court against the 7 same Defendants in So. Dist. Ca Civil Case No. 18cv1006-AJB (JMA) and So. Dist. Ca 8 Civil Case No. 18cv1964-AJB (BLM). (Id. at 7-8.) 9 With respect to his claim of denial of access to the courts in count three based on 10 having to choose between yard time and law library time, he contends he does not need to 11 satisfy the actual injury prong of a First Amendment access to courts claim because he is 12 bringing the claim under the Eighth Amendment predicated on the injuries he has sustained 13 by inadequate exercise time. (Id. at 8-9.) He argues he has in any case shown actual injury 14 by impairment of his legal claims through an inability to locate legal citations in cases he 15 is litigating, and by being “shut out” in So. Dist. Ca Civil Case No. 18cv1006-AJB (JMA), 16 FC5046005, LA070629, BC718859 and two additional cases which have not yet been 17 assigned case numbers, as well as not being able to file a habeas corpus petition in 18 LA075334, to “only name a few.” (Id. at 9-10.) 19 IV. Discussion 20 For the following reasons, the Court grants Defendants’ motion to dismiss counts 21 two and three of the Complaint and dismisses those counts without prejudice. The Court 22 sua sponte dismisses the three unserved Defendants without prejudice for failure to timely 23 effect service. Plaintiff may choose to amend his pleading with respect to counts two and 24 three, and if not, to proceed with this action only as to count one of the Complaint. 25 A. Count Two fails to state a claim for relief 26 Plaintiff alleges in count two that he personally informed Defendants Lewis and 27 Hall, along with Sergeant Estorhio, an RJD employee not named as a Defendant, of his 28 “need to contact his attorney.” (ECF No. 1 at 8.) He alleges that two members of 1 Defendant RJD Litigation Department, McGuire and Connie, who are also not individually 2 named as Defendants, were placed on notice of the need to contact his attorney by Connie’s 3 receipt of a letter from Plaintiff’s attorney, attached to the Complaint as Exhibit B, 4 authorizing Plaintiff to telephone his attorney “whenever he feels he has the need to do so.” 5 (Id. at 8, 17.) There are no allegations in count two against the remaining Defendants, 6 Navarro, Garsilaso, Bagnol, Katyal, Knittman, Tiscornia, Estrada, A-Yard Building #2 7 Staff or RJD EOP Scheduling Department. (Id. at 8.) 8 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 9 privileges, or immunities secured by the Constitution and laws” of the United States. Wyatt 10 v. Cole, 504 U.S. 158, 161 (1992). Plaintiff claims a violation of his Eighth Amendment 11 right of access to the courts in the Complaint. (Id.) Defendants argue in their motion to 12 dismiss that an access to courts claim can only be brought under the First Amendment. 13 (ECF No. 39 at 12-13.) Plaintiff replies in his opposition that he intended to bring the claim 14 as a violation of his Sixth Amendment right to counsel in his ongoing criminal appeal. 15 (ECF No. 44 at 3.) 16 The Supreme Court has acknowledged that the right of access to courts has been at 17 times located in various provisions of the Constitution. Christopher v. Harbury, 536 U.S. 18 403, 415 (2002). Nevertheless, that Court has stated that however “unsettled” the basis for 19 the constitutional right of access to courts may be, a prisoner alleging denial of such a claim 20 must plausibly allege: (1) acts by prison officials which frustrated his litigation activities, 21 (2) the loss of a “nonfrivolous” or “arguable” claim, and (3) the remedy sought through the 22 access to courts claim is not otherwise available in another suit. Id. at 415. 23 Plaintiff states in his opposition that he does not need to satisfy the actual injury 24 requirement of a First Amendment access to courts claim because he is bringing the claim 25 as a violation of his Sixth Amendment right to counsel in his ongoing criminal appeal. 26 (ECF No. 44 at 3.) Plaintiff is unable to avoid the actual injury requirement by framing his 27 claim as a denial of contact with his attorney in his criminal appeal under the Sixth 28 Amendment because that amendment does not apply to access to courts claims by prisoners 1 who are represented by counsel in the case with which they are claiming interference. See 2 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (“The right of 3 access to the courts is subsumed under the first amendment right to petition the government 4 for redress of grievances.”); United States v. Olano, 62 F.3d 1180, 1193 (9th Cir. 1995) 5 (holding that the Sixth Amendment does not guarantee a constitutional right to hybrid 6 representation, but requires a showing of ineffective assistance of counsel or a complete 7 absence of counsel at a critical stage of the trial to state a violation). Plaintiff has failed to 8 show his alleged Sixth Amendment violation cannot be addressed in his criminal appeal. 9 See Harbury, 536 U.S. at 415 (holding that a prisoner’s access to courts claim can be 10 brought only where the remedy sought is not otherwise available in another suit). 11 The Complaint as drafted does not allege actual injury required to state an access to 12 the courts claim because Plaintiff does not allege the loss of any claim. Id. at 414-15 13 (requiring prisoner to allege the loss of a “non-frivolous” or “arguable” claim). Rather, he 14 alleges he was required to obtain a continuance in his appeal of a criminal conviction where 15 he is represented by an attorney, apparently alleging that assuming his sentence is reduced 16 or overturned in that appeal, and assuming it will end his incarceration or reduce its 17 duration, the delay will have caused him to spend more time incarcerated than he would 18 have but for the continuance. As just discussed, that allegation does not state an access to 19 courts claim. Id. He otherwise makes a vague and conclusory allegation that the inability 20 to contact his attorney has caused him to be “shut out” in several other cases, which is 21 insufficient to state a claim for relief under 42 U.S.C. § 1983. See Iqbal, 556 U.S. at 678 22 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 23 statements, do not suffice.”); Papasan, 478 U.S. at 286 (a court is “not bound to accept as 24 true a legal conclusion couched as a factual allegation.”); see also Sprewell, 266 F.3d at 25 988 (a court need not “accept as true allegations that are merely conclusory, unwarranted 26 deductions of fact, or unreasonable inferences.”); Harbury, 536 U.S. at 415 (holding that a 27 prisoner must plausibly allege the loss of a “nonfrivolous” or “arguable” claim), citing 28 Lewis v. Casey, 518 U.S. 343, 353 and n. 3 (1996) (holding that a prisoner must show that 1 “a non-frivolous legal claim had been frustrated or was being impeded,” because 2 “[d]epriving someone of a frivolous claim . . . deprives him of nothing at all, except perhaps 3 the punishment of Federal Rule of Civil Procedure 11 sanctions.”) 4 In addition to a failure to allege actual injury, Plaintiff fails to adequately allege 5 personal participation by any Defendant regarding a denial of access to the courts in count 6 two. He alleges that as a result of being placed on “loss of privileges,” Defendants A-Yard 7 Building #2 Staff deprived him of the “ability to contact his attorney for active case 8 #LA061501 and for civil actions he has active” and went out of their way to prevent him 9 from contacting his attorney. (ECF No. 1 at 8.) He alleges Defendants Lewis and Hall, 10 along with Sergeant Estorhio and Defendant “Litigation Department of RJD,” including its 11 employees “C.C.I. McGuirre and Connie,” were informed of his need to contact his 12 attorney through a letter written by his attorney authorizing him to contact his attorney 13 whenever he felt the need to do so, but deprived him of that opportunity. (Id.) 14 Plaintiff presents only vague and conclusory allegations that the Defendants were 15 authorized by prison regulations to allow him to speak to his attorney, or that their failure 16 to do so was what prevented him from speaking to his attorney, as opposed to, for example, 17 denial of a request made under the proper procedures. Merely alleging he informed 18 Defendants of his need or desire to speak to his attorney, without specific allegations 19 regarding the circumstances of his requests and what responsibilities or duties Defendants 20 had in that regard and how or why they denied his requests, fails to state a claim because 21 “[t]he inquiry into causation must be individualized and focus on the duties and 22 responsibilities of each individual defendant whose acts or omissions are alleged to have 23 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 24 In sum, the Complaint fails to allege facts supporting the conclusory allegation that the 25 Defendants’ failure to allow him to speak to his attorney caused an actual injury necessary 26 to state an access to courts claim, but is the type of “[t]hreadbare recitals of the elements 27 of a cause of action, supported by mere conclusory statements, do not suffice” to state a 28 claim for relief. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. 1 Because count two of the Complaint fails to state a § 1983 claim, the Court 2 GRANTS Defendants’ Motion to Dismiss count two of the Complaint. As set forth below, 3 Plaintiff may file a First Amended Complaint to cure the pleading deficiencies identified 4 above if he wishes to attempt to do so, or he may proceed only with count one of the 5 Complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court 6 should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear 7 that the deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar 8 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 9 B. Count Three fails to state a claim for relief 10 In count three Plaintiff claims his Eighth Amendment rights were violated by 11 excessive cell temperature during the summer months and by three weeks where he was 12 allowed out of his cell for 6-7 hours per week rather than the mandatory 10 hours per week, 13 resulting in the denial of medication, showers, dayroom time and yard time. (ECF No. 1 14 at 9-11.) He alleges these deprivations have caused a worsening of his mental health 15 including possible suicide and homicide attempts, and physical injuries including high 16 blood pressure, chronic low back pain and a risk of stroke. (Id. at 9-10.) He claims that 17 Defendant S. Knittman and his supervisor Defendant R. Katyal, as well as Defendant RJD 18 EOP Scheduling Department, “are all liable” for those deprivations. (Id. at 9.) He also 19 claims Defendant C. Tiscornia, by scheduling Plaintiff’s law library passes during his yard 20 time and refusing his request to change that schedule, is responsible for Plaintiff having to 21 choose between yard time when he can exercise or time in the law library, the latter of 22 which he needs for his more than twenty active legal cases. (Id. at 11.) 23 The Eighth Amendment’s cruel and unusual punishments clause is violated when 24 prison officials are deliberately indifferent to a prisoner’s serious medical needs. Estelle 25 v. Gamble, 429 U.S. 97, 102-05 (1976). To establish deliberate indifference, Plaintiff must 26 point to evidence in the record from which a trier of fact might reasonably conclude that 27 Defendants placed him at risk of “objectively, sufficiently serious” harm, and that the 28 Defendants acted with a “sufficiently culpable state of mind in allowing the deprivation 1 [complained of] to take place.” Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). In 2 order to show a prison official was deliberately indifferent to a substantial risk of harm, 3 Plaintiff must show “the official knows of and disregards an excessive risk to inmate health 4 or safety; the official must both be aware of the facts from which the inference could be 5 drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 6 Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[T]he Eighth Amendment proscribes ‘the 7 unnecessary and wanton infliction of pain,’ which includes those sanctions that are ‘so 8 totally without penological justification that it results in the gratuitous infliction of 9 suffering.’” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), overruled on other 10 grounds by Sandin v. Conner, 515 U.S. 472 (1995), quoting Gregg v. Georgia, 428 U.S. 11 153, 173 (1976). 12 Defendants contend Plaintiff has not alleged personal participation by them or a 13 causal connection between their acts and his alleged injuries. With respect to Plaintiff’s 14 claim that the reduction in his out of cell time from 10 hours per week to 6 hours one week 15 and 7 hours two other weeks amounts to an Eighth Amendment violation, he alleges 16 “Richard J. Donovan mental health program the scheduling department plaintiff’s clinician 17 S. Knittman and his supervisor Katyal are all liable.” (ECF No. 1 at 9.) He argues in his 18 opposition he has stated a claim against Defendant Katyal for supervisor liability because 19 he made her aware of his complaints though 602 inmate appeals and interviews with 20 Defendant Knittman, which Defendant Katyal, as Defendant Knittman’s supervisor, was 21 required to review. (ECF No. 44 at 6.) 22 In order to state a claim for relief under 42 U.S.C. § 1983, Plaintiff must allege each 23 defendant personally participated in the deprivation of his constitutional rights. Iqbal, 556 24 U.S. at 673; Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014). Liability may not 25 be imposed on supervisory personnel for the acts or omissions of their subordinates under 26 a theory of respondeat superior. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) 27 (“There is no respondeat superior liability under section 1983.”) Rather, “[t]he inquiry into 28 causation must be individualized and focus on the duties and responsibilities of each 1 individual defendant whose acts or omissions are alleged to have caused a constitutional 2 deprivation.” Leer, 844 F.2d at 633. 3 As currently pleaded, the Complaint, by merely alleging Defendants Katyal, 4 Knittman and RJD EOP Scheduling Department “are all liable” for the injuries Plaintiff 5 allegedly sustained as a result of the elevated temperature in his cell during the summer 6 months and the reduction in out of cell time by several hours during three weeks, which 7 includes lack of access to showers and exercise time, does not state an Eighth Amendment 8 claim for deliberate indifference to his physical, medical or mental health needs. Iqbal, 9 556 U.S. at 678 (“[t]hreadbare recitals of the elements of a cause of action, supported by 10 mere conclusory statements, do not suffice” to state a claim for relief). Even were the 11 Court to consider the allegation in his opposition to the motion to dismiss that he is seeking 12 to hold Defendant Katyal liable as Defendant Knittman’s supervisor, 42 U.S.C. § 1983 13 liability may not be imposed on supervisory personnel for the acts or omissions of their 14 subordinates under the theory of respondeat superior. Jones, 297 F.3d at 934 (“There is no 15 respondeat superior liability under section 1983.”) Plaintiff does not allege that any 16 Defendant in count three was legally required to see to it he had his full mandatory 10 hours 17 of out of cell time per week, and does not allege in the Complaint that any Defendant was 18 aware he was not receiving adequate out of cell time or aware it was causing him mental 19 and physical injuries. His allegation that Defendants Knittman and Katyal should have 20 been aware of his injuries through his inmate grievances is vague and conclusory, as there 21 are no factual allegations regarding the contents of those grievances. The two Health Care 22 Services Request Forms attached to the Complaint as Exhibit C (ECF No. 1 at 19-20), 23 which Plaintiff argues shows he has a history of serious medical needs (id. at 9), do not 24 show that any Defendant was made aware of a serious risk of harm from the reduction in 25 out of cell time. 26 Plaintiff appears to contend the Defendants who are responsible for not allowing him 27 his full 10 hours of out of cell time per week on three occasions are members of Defendant 28 A-Yard #2 Staff or Defendant RJD EOP Scheduling Department, individual members of 1 which he plans on identifying through discovery, or that he has already identified them in 2 his other civil rights actions filed in this Court of which the Court should take judicial 3 notice. The Court may take judicial notice of other actions filed in this Court if they “have 4 a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens 5 Counsel v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Plaintiff’s other civil rights 6 cases involving the same Defendants are not relevant to whether he has adequately alleged 7 they directly participated in the deprivation of his rights alleged in this case because “a 8 court may look only at the face of the complaint to decide a motion to dismiss.” Van 9 Buskirk, 284 F.3d at 980. In order to hold Defendants liable, they must be named in the 10 Complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 11 1546 (9th Cir. 1989) (“It is well established that an individual is not bound by a judgment 12 in personam resulting from litigation in which he is not named as a party.”), citing Zenith 13 Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969). 14 Even accepting Plaintiff’s contention that he may be able to identity individual 15 members of Defendants A-Yard #2 Staff and RJD EOP Scheduling Department through 16 discovery, he has still failed to allege facts which, if proven, demonstrate that an individual 17 who was legally required to see to it that he had his full mandatory 10 hours of out of cell 18 time per week was responsible for the decrease in out of cell time and were aware the 19 decrease in out of cell time did or could have caused serious mental or physical injuries yet 20 deliberately ignored a substantial risk of such injuries. Farmer, 511 U.S. at 837 (holding 21 that prisoner must allege “the official knows of and disregards an excessive risk to inmate 22 health or safety; the official must both be aware of the facts from which the inference could 23 be drawn that substantial risk of serious harm exists, and he must also draw the inference.”) 24 He has not alleged that any Defendant named in the Complaint, even if they placed him at 25 risk of “objectively, sufficiently serious” harm through the decrease in out of cell time, 26 acted with a “sufficiently culpable state of mind” in doing so. Wallis, 70 F.3d at 1076. 27 The final aspect of count three alleges Plaintiff was denied his Eighth Amendment 28 right of access to the courts because Defendant RJD Law Library Clerk Tiscornia 1 scheduled his law library time at the same time as his yard time and denied his requests to 2 reschedule. (ECF No. 1 at 10-11.) He claims it required him to choose between yard time 3 and law library time, which interfered with his litigation of his “over 20 active . . . appeals 4 and civil actions,” and contributed to his physical and mental injuries which arose from his 5 lack of outdoor exercise time. (Id.) Such allegations fail to state a First Amendment access 6 to courts claim for the same reason set forth above in count two, namely, there are no non- 7 conclusory allegations of actual injury such as the loss of a non-frivolous claim. 8 Plaintiff states in the Complaint and in his opposition to the motion to dismiss that 9 he is not alleging a First Amendment access to courts claim in count three but an Eighth 10 Amendment claim based on being forced to choose between law library time and outdoor 11 exercise time, which has caused or contributed to the mental and physical injuries he has 12 suffered as a result of inadequate outdoor exercise time. (ECF No. 1 at 9-11; ECF No. 44 13 at 8.) This aspect of his Eighth Amendment claim fails to state a claim because Plaintiff’s 14 allegation against the only Defendant identified as causing him to make that choice, 15 Defendant Tiscornia, does not alleged he had the authority to allow Plaintiff to visit the 16 law library at times other than his scheduled yard time. “A person ‘subjects’ another to the 17 deprivation of a constitutional right, within the meaning of section 1983, if he does an 18 affirmative act, participates in another’s affirmative acts, or omits to perform an act which 19 he is legally required to do that causes the deprivation of which complaint is made.” 20 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (emphasis added). Even to the extent 21 a liberal construction of the allegation that Plaintiff asked Defendant Tiscornia to change 22 his schedule but he refused can be read as alleging he had the authority to do so, Plaintiff 23 does not allege Defendant Tiscornia knew of and deliberately disregarded a serious risk of 24 harm to Plaintiff by scheduling his yard time and law library time at the same time. 25 Farmer, 511 U.S. at 837 (holding that prisoner must allege “the official knows of and 26 disregards an excessive risk to inmate health or safety; the official must both be aware of 27 the facts from which the inference could be drawn that substantial risk of serious harm 28 exists, and he must also draw the inference.”) Plaintiff has not alleged facts which, if 1 proven, show that Defendant Tiscornia failed to perform an act he was legally required to 2 perform when he allegedly refused Plaintiff’s request to make that change, or that he did 3 so knowing it posed a risk of serious harm to Plaintiff. 4 Because count three does not state a § 1983 claim, the Court GRANTS Defendants’ 5 Motion to Dismiss count three of the Complaint. As set forth below, Plaintiff may file an 6 amended complaint in an attempt to cure these pleading deficiencies if he wishes to do so, 7 or he may proceed only with count one of the Complaint. 8 V. Unserved Defendants 9 The Complaint was filed nearly one and one-half years ago and Plaintiff has failed 10 to serve Defendants A-Yard Building #2 Staff Corrections Officers, RJD Litigation 11 Department Litigation Coordinators, and RJD EOP Scheduling Department Mental Health 12 Care Scheduling Department. The summons for these three Defendants were returned 13 unexecuted by the United States Marshal after the Defendants were unable to be located 14 with the information provided by Plaintiff. (ECF Nos. 31, 34, 35.) Because the time limit 15 to serve these Defendants under Federal Civil Procedure Rule 4(m) has expired, dismissal 16 without prejudice is appropriate. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 17 1994) (holding that where pro se plaintiff failed to provide United States Marshal with 18 sufficient information to effect service the district court may dismiss unserved defendants 19 under Fed.R.Civ.P. Rule 4(m)), overruled on other grounds by Sandin v. Conner, 515 U.S. 20 472 (1995). Accordingly, the unserved Defendants A-Yard Building #2 Staff Corrections 21 Officers, RJD Litigation Department Litigation Coordinators, and RJD EOP Scheduling 22 Department Mental Health Care Scheduling Department are DISMISSED without 23 prejudice. 24 VI. Conclusion and Orders 25 For all the reasons discussed, the Court: 26 1) GRANTS the Motion to Dismiss by Defendants Bagnol, Knittman, Tiscornia, 27 Lewis, Navarro, Katyal and Garsilaso [ECF No. 39] as well as the Joinder to the Motion to 28 Dismiss by Defendants Estrada and Hall [ECF No. 50], and DISMISSES counts two and 1 || three of the Complaint without prejudice against Defendants Bagnol, Knittman, Tiscornia, 2 Lewis, Navarro, Katyal, Garsilaso, Estrada and Hall pursuant to FED. R. Civ. P. 12(b)(6); 3 2) DISMISSES without prejudice unserved Defendants A-Yard Building #2 4 ||Staff Corrections Officers, RJD Litigation Department Litigation Coordinators, and RJD 5 Scheduling Department Mental Health Care Scheduling Department pursuant to 6 || Fed.Civ.P. Rule 4(m) for lack of timely service; and 7 3) GRANTS Plaintiff leave to file a First Amended Complaint within forty-five 8 ||(45) days of the date this Order is filed. Plaintiff is cautioned that if he does not file a First 9 || Amended Complaint within forty-five (45) days of the date this Order is filed or show good 10 || cause for an extension of time to amend prior to the expiration of the time to amend, the 11 Court will proceed with this action on count one of the Complaint only. Should Plaintiff 12 || choose to file a First Amended Complaint, it must be complete in and of itself, comply 13 || with Federal Rule of Civil Procedure 8(a), and any claim not re-alleged or any Defendant 14 || not re-named will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 15 || Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); Lacey v. 16 || Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 17 ||leave to amend which are not re-alleged in an amended pleading may be “considered 18 || waived if not repled.”’) 19 IT IS SO ORDERED. 20 || Dated: February 10, 2020 J 71 in yn. Hon. Dana M. Sabraw 22 United States District Judge 23 24 25 26 27 28