Buckelew v. Lovelace

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DION SCOTT BUCKELEW, Case No.: 23-cv-83-MMA (JLB) CDCR #BS-1324, 12 Plaintiff, 13 ORDER DISMISSING COMPLAINT vs. WITH LEAVE TO AMEND 14 PURSUANT TO 28 U.S.C. § 1915A(b)

15 CAPTAIN LOVELACE, et al., 16 Defendants. 17 18 19 On January 13, 2023, Plaintiff Dion Scott Buckelew, a state prisoner proceeding 20 pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, along with a motion to 21 proceed in forma pauperis. Doc. Nos. 1–2. On January 20, 2023, the Court denied 22 Plaintiff’s in forma pauperis motion. Doc. No. 3. On February 15, 2023, Plaintiff paid 23 the filing fee in full. Doc. No. 4. 24 I. SCREENING PURSUANT TO §§ 1915(e)(2) & 1915A(b) 25 A. Standard of Review 26 Because Plaintiff is a prisoner his Complaint requires a pre-Answer screening 27 pursuant to 28 U.S.C. § 1915A(b), under which the Court must sua sponte dismiss a 28 prisoner’s complaint, or any portion of it, which is frivolous, malicious, fails to state a 1 claim, or seeks damages from defendants who are immune. Rhodes v. Robinson, 621 2 F.3d 1002, 1004 (9th Cir. 2010). Section 1915A screening “incorporates the familiar 3 standard applied in the context of failure to state a claim under Federal Rule of Civil 4 Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). 5 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted 6 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 7 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of 9 a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 10 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . 11 a context-specific task that requires the reviewing court to draw on its judicial experience 12 and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the 13 defendant-unlawfully-harmed me accusation[s]” fall short of meeting that standard. Id. 14 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 15 secured by the Constitution and laws of the United States, and (2) that the deprivation 16 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 17 698 F.3d 1128, 1138 (9th Cir. 2012). 18 B. Analysis 19 The Complaint presents five causes of action against twelve Defendants in their 20 individual capacities, all employed by the San Diego County Sheriff’s Department.1 21 Doc. No. 1 at 2–10. Plaintiff alleges that while in the custody of the San Diego County 22 Sheriff from February 2020 until March 2022, he was subjected to the excessive use of 23 force, denial of medical care, unconstitutional conditions of confinement, denial of due 24 process, loss of personal and legal property, and denial of access to the courts. Id. 25 26 27 1 The claims brought in this action were dismissed from a prior case without prejudice to Plaintiff to file in this action. See Buckelew v. Gore, et al., So.Dist.Ca. Civil Case No. 21cv0810-LL (NLS), Order filed 28 1 1. Count One 2 In count one of the Complaint Plaintiff alleges that on or about February 13, 2020, 3 after he had fallen out of his wheelchair in medical distress, Defendant San Diego County 4 Sheriff’s Deputy Banks “maliciously verbally and physically assault[ed] plaintiff by 5 picking plaintiff up by his shirt collar, throwing plaintiff back into his wheelchair and 6 calling the plaintiff a ‘fucking piece of shit’ several times while plaintiff was in medical 7 distress.” Doc. No. 1 at 6. “Banks then chained the plaintiff as tight as Banks could get 8 it cutting off circulation causing extreme pain and suffering, anxiety, extreme panic and 9 mental duress. Plaintiff was hospitalized for two weeks.” Id. Plaintiff claims Defendant 10 San Diego County Sheriff’s Deputy Captain Lovelace, who “is charged with employee 11 training and direct supervision of subordinates,” “failed to properly train Deputy Banks, 12 refused to follow proper policies and procedures, [and] refused to abide by grievance 13 policies and procedures.” Id. at 2, 6. 14 The Cruel and Unusual Punishments Clause of the Eighth Amendment forbids 15 prison officials from “the unnecessary and wanton infliction of pain.” Whitley v. Albers, 16 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused of using excessive 17 physical force in violation of the Cruel and Unusual Punishments Clause, the core 18 judicial inquiry is that set out in Whitley: whether force was applied in a good-faith effort 19 to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson 20 v. McMillian, 503 U.S. 1, 6–7 (1992). An Eighth Amendment violation includes an 21 objective prong, which requires the alleged deprivation to be “objectively, sufficiently 22 serious,” and a subjective prong, which requires allegations that the prison official had a 23 “state of mind [] of ‘deliberate indifference’ to inmate health or safety.” Farmer v. 24 Brennan, 511 U.S. 825, 834 (1994); see id. at 837 (holding that a prison official can be 25 held liable only if he “knows of and disregards an excessive risk to inmate health and 26 safety;” . . . he “must both be aware of facts from which the inference could be drawn 27 that a substantial risk of serious harm exists, and he must also draw the inference”). 28 / / / 1 It is not clear from the face of the Complaint whether Plaintiff was a pre-trial 2 detainee at the time of the events alleged in the Complaint. If he was a pre-trial detainee, 3 then an objective test under the Fourteenth Amendment rather than a subjective Eighth 4 Amendment analysis applies. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (noting 5 that the Due Process Clause of the Fourteenth Amendment is applicable to claims of pre- 6 trial detainees rather than the Eighth Amendment because “Eighth Amendment scrutiny 7 is appropriate only after the State has complied with the constitutional guarantees 8 traditionally associated with criminal prosecutions”); Kingsley v. Hendrickson, 576 U.S. 9 389, 398 (2015) (“[A] pretrial detainee can prevail [on an excessive use of force claim] 10 by providing only objective evidence that the challenged governmental action is not 11 rationally related to a legitimate governmental objective or that it is excessive in relation 12 to that purpose.”); see also Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 13 2018) (in order to state a § 1983 claim for unconstitutional conditions of confinement a 14 pre-trial detainee must plausibly allege that: “(i) the defendant made an intentional 15 decision with respect to the conditions under which the plaintiff was confined; (ii) those 16 conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant 17 did not take reasonable available measures to abate that risk, even though a reasonable 18 official in the circumstances would have appreciated the high degree of risk involved - 19 making the consequences of the defendant’s conduct obvious; and (iv) by not taking such 20 measures, the defendant caused plaintiff’s injuries”). A determination as to which test 21 applies is unnecessary at this time because, for the following reasons, Plaintiff has failed 22 to state a claim upon which relief may be granted under either pleading standard. 23 The allegations that Defendant Banks verbally harassed and abused Plaintiff fail to 24 state an Eighth or Fourteenth Amendment claim under § 1983. See Keenan v. Hall, 83 25 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998) (verbal 26 harassment is not cognizable as a constitutional deprivation under § 1983); Oltarzewski v. 27 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (vulgar language directed at inmate does not 28 state a claim for a constitutional claim under § 1983). 1 Plaintiff’s allegations that after he fell out of his wheelchair in medical distress 2 Defendant Banks placed him back in his wheelchair, strapped him in with restraints that 3 were too tight, and that Plaintiff spent a week in the hospital, also fail to state an Eighth 4 or Fourteenth Amendment claim. Plaintiff does not allege Defendant Banks caused the 5 injury which required his hospital stay. The objective prong of an Eighth or Fourteenth 6 Amendment violation looks at whether “the deprivation alleged” is “sufficiently serious” 7 and poses “a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Plaintiff merely 8 alleges Defendant Banks helped him back into his wheelchair and strapped him in “as 9 tight as Banks could get it cutting off circulation causing extreme pain and suffering, 10 anxiety, extreme panic and mental duress.” Doc. No. 1 at 6. Plaintiff does not allege he 11 informed Defendant Banks that the straps were so tight so as to cause him distress, or 12 how long the distress lasted, or provide any factual allegations which show Banks was in 13 possession of facts from which he could have drawn a reasonable inference that a 14 substantial risk to Plaintiff’s health or safety existed as a result of the tightness of the 15 straps, or actually drew such an inference, so as to state an Eighth Amendment claim. 16 See McMillian, 503 U.S. at 6–7 (in order to state an Eighth Amendment claim, Plaintiff 17 must plausibly allege the force was not applied in good faith but “maliciously and 18 sadistically to cause harm.”); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) 19 (holding that in order to plausibly allege deliberate indifference to a substantial risk to an 20 inmate’s health or safety under the Eighth Amendment, a plaintiff must plausibly allege 21 “the prison official must not only ‘be aware of the facts from which the inference could 22 be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw 23 the inference’”) (quoting Farmer, 511 U.S. at 837). 24 Neither has Plaintiff stated a Fourteenth Amendment claim against Defendant 25 Banks. Plaintiff alleges he was in medical distress after falling out of his wheelchair 26 when Banks picked him up and placed him back in the wheelchair and strapped him in to 27 prevent another fall, but there are no factual allegations that a reasonable person would 28 have known the straps were so tight as to go beyond what was necessary to prevent him 1 from falling out of his wheelchair again, or any facts which plausibly allege the 2 subjective “anxiety, panic and mental distress” he experienced was made known to or 3 should have been obvious to Defendant Banks. Accordingly, Plaintiff has not plausibly 4 alleged “objective evidence that the challenged governmental action is not rationally 5 related to a legitimate governmental objective or that it is excessive in relation to that 6 purpose.” Kingsley, 576 U.S. at 398; see also Graham v. Connor, 490 U.S. 386, 395 7 (1989) (reasonableness is touchstone of Fourteenth Amendment analysis); Gordon, 888 8 F.3d at 1125 (holding that in order to state a § 1983 claim for unconstitutional conditions 9 of confinement a pre-trial detainee must plausibly allege that: “(i) the defendant made an 10 intentional decision with respect to the conditions under which the plaintiff was confined; 11 (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the 12 defendant did not take reasonable available measures to abate that risk, even though a 13 reasonable official in the circumstances would have appreciated the high degree of risk 14 involved - making the consequences of the defendant’s conduct obvious; and (iv) by not 15 taking such measures, the defendant caused plaintiff’s injuries”). 16 With respect to the allegations that Defendant Captain Lovelace “failed to properly 17 train Deputy Banks, refused to follow proper policies and procedures, [and] refused to 18 abide by grievance policies and procedures,” Plaintiff has also failed to state a claim. 19 Prisoners have no constitutional right to specific grievance procedures. Ramirez v. 20 Galaza, 334 F.3d 850, 860 (9th Cir. 2003); see also Mann v. Adams, 855 F.2d 639, 640 21 (9th Cir. 1988) (citation omitted) (“There is no legitimate claim of entitlement to a 22 grievance procedure.”). As to the allegation that Defendant Captain Lovelace failed to 23 properly train Defendant Deputy Banks, municipal liability arising from an alleged 24 failure to train jail staff requires allegations “that ‘the need for more or different training 25 is so obvious, and the inadequacy so likely to result in the violation of constitutional 26 rights, that the policymakers of the city can reasonably be said to have been deliberately 27 indifferent to the need.’” Rodriguez v. City of Los Angeles, 891 F.3d 776, 802 (9th Cir. 28 2018), quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989). Individual liability 1 based on a failure to train requires factual allegations of the individual’s participation in 2 the alleged constitutional violation. “[A] plaintiff must plead that each Government 3 official defendant, through the official’s own individual actions, has violated the 4 constitution.” Iqbal, 556 U.S. at 676-77 (rejecting argument that “a supervisor’s mere 5 knowledge of his subordinate’s [unconstitutional actions] amounts to the supervisor’s 6 violating the Constitution.”) “A supervisory official may be held liable under § 1983 7 only if ‘there exists either (1) his or her personal involvement in the constitutional 8 violation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct 9 and the constitutional violation.’” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 10 2018) (quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). “In a section 1983 11 claim, a supervisor is liable for the acts of his subordinates if the supervisor participated 12 in or directed the violations, or knew of the violations of subordinates and failed to act to 13 prevent them.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (internal quotation 14 marks omitted). 15 Plaintiff’s allegation of a single incident of being strapped into his wheelchair too 16 tightly to prevent him falling out again fails to state a failure to train claim because “proof 17 of a single incident of unconstitutional activity,” or even a series of “isolated or sporadic 18 incidents” will not give rise to § 1983 municipal liability. Grant v. County of Los 19 Angeles, 772 F.3d 608, 618 (9th Cir. 1996). Neither has Plaintiff set forth factual 20 allegations identifying individual acts or omissions by Defendant Captain Lovelace 21 which resulted in a constitutional violation. See Leer v. Murphy, 844 F.2d 628, 633 (9th 22 Cir. 1988) (“The inquiry into causation must be individualized and focus on the duties 23 and responsibilities of each individual defendant whose acts or omissions are alleged to 24 have caused a constitutional deprivation.”). 25 Accordingly, Plaintiff’s claims against Defendants Banks and Lovelace in count 26 one of the Complaint are dismissed sua sponte for failure to state a claim upon which 27 relief may be granted. See 28 U.S.C. § 1915A(b)(1); Watison, 668 F.3d at 1112. 28 / / / 1 2. Count Two 2 Plaintiff alleges in count two that on or about June 7, 2021, Defendant San Diego 3 County Sheriff’s Deputy Bastain yelled, screamed and spit in his face on four occasions 4 within a fifteen-minute span. Doc. No. 1 at 7. When Plaintiff asked to see a Sergeant or 5 Lieutenant, Defendant Bastain pushed Plaintiff in his wheelchair “into a non A.D.A. 6 complaint side cell as punishment.” Id. Defendant San Diego County Sheriff’s Deputy 7 Sergeant Kimberly, who “is a direct supervisor of deputies at San Diego Central” jail, 8 arrived and instructed Plaintiff to file a grievance. Id. at 3, 7. Defendant Bastain then 9 pushed Plaintiff back to his cell and placed him on a 78-hour lockdown “without due 10 process. Void a hearing.” Id. at 7. Defendant San Diego Sheriff’s Deputy Sergeant 11 Rodriguez investigated the grievance and determined it had no merit. Id. Plaintiff 12 appealed the denial of his grievance to Defendant San Diego County Sheriff’s Deputy 13 Captain Darnell, who is responsible for “employee training and direct supervisions of 14 subordinates,” but received no response. Id. at 2, 7. Defendant San Diego County 15 Sheriff’s Deputy Lieutenant Navarro, who is “charged with training his subordinates,” 16 said he would look into the incident and the grievance but never responded. Id. 17 With respect to the allegations of the suggestion to file a grievance by Defendant 18 Kimberly, the denial of the grievance by Defendant Rodriguez, the failure of Defendant 19 Navarro to respond to the grievance, and the failure of Defendant Darnell to respond to 20 Plaintiff’s appeal of the grievance, Plaintiff has not stated a claim because as noted above 21 there is no federal constitutional right to a grievance procedure. Ramirez, 334 F.3d at 860; 22 Mann, 855 F.2d at 640. The allegation that Defendant Bastain locked Plaintiff down for 23 78 hours without a hearing fails to state a due process claim because it is entirely 24 conclusory. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of 25 action, supported by mere conclusory statements,” fail to state a claim for relief.) 26 The allegations that Defendant Bastain yelled, screamed and spit in Plaintiff’s face 27 on four occasions within a fifteen-minute span and pushed Plaintiff in his wheelchair 28 “into a non A.D.A. complaint side cell as punishment,” also fail to state a claim. Plaintiff 1 provides no details regarding why Defendant Bastain was yelling or screaming, nor does 2 he detail the nature of the spital in his face. “Not every malevolent touch by a prison 3 guard gives rise to a federal cause of action” and “[a]n inmate who complains of a push 4 or shove that causes no discernable injury almost certainly fails to state a valid excessive 5 force claim.” Wilkins v. Gaddy, 559 U.S. 34, 37–38 (2010) (citations and quote marks 6 omitted). In order to state an Eighth Amendment claim, Plaintiff must plausibly allege 7 “force was [not] applied in a good-faith effort to maintain or restore discipline, [but] 8 maliciously and sadistically to cause harm,” McMillian, 503 U.S. at 6–7, which he has 9 failed to do because there are no details regarding his interaction with Defendant Bastain, 10 in particular regarding the severity of his actions or their purpose. Id.; see Oltarzewski, 11 830 F.2d at 139 (verbal harassment or abuse does not state a claim for a constitutional 12 deprivation under section 1983). For the same reason, the absence of allegations which 13 indicate Defendant Bastain’s actions were objectively excessive in relation to the purpose 14 of their interaction fail to state a Fourteenth Amendment claim because Plaintiff has not 15 alleged “objective evidence that the challenged governmental action is not rationally 16 related to a legitimate governmental objective or that it is excessive in relation to that 17 purpose.” Kingsley, 576 U.S. at 398. 18 Accordingly, Plaintiff’s claims against Defendants Bastain, Kimberly, Rodriguez, 19 Darnell and Navarro in count two of the Complaint are dismissed sua sponte for failure to 20 state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1); Watison, 21 668 F.3d at 1112. 22 3. Count Three 23 Plaintiff alleges in count three that on or about September 18, 2021, he “was 24 shoved out of his wheelchair” by Defendants San Diego County Sheriff’s Deputies 25 Holman and Lira, “causing plaintiff to endure severe muscle spasms throughout his body, 26 exacerbated P.T.S.D. symptoms, exacerbated primary progressive multiple sclerosis 27 symptoms, fear, mental and physical anguish.” Doc. No. 1 at 4, 8. He was “loaded up on 28 a stokes basket and onto a gurney” and taken to the infirmary, where he was placed on 1 the floor still in the stokes basket. Id. at 8. Plaintiff begged Defendant Carie, a Nurse 2 Practitioner at the San Diego Jail, to call 911 but she refused. Id. He asked several times 3 for medication to help alleviate his spasms, but Nurse Practitioner Carie refused and 4 instructed the deputies to place Plaintiff in a side cell. Id. Defendant San Diego County 5 Sheriff’s Deputy Morra “picked up the foot end of the stokes basket, while the head end 6 was still on the floor, [and] drug the plaintiff into a cell, then dropped the foot end of the 7 stokes basket stating ‘that’s how you do that shit,’ [which] caused Plaintiff to cry out with 8 pain in his head, back and legs.” Id. Defendant Nurse Practitioner Carie again denied 9 Plaintiff’s request for an ambulance and pain medication. Id. Several hours later 10 Plaintiff was taken to the “hole,” and several days later he was taken to an outside 11 hospital where he stayed several weeks. Id. He submitted a grievance which was 12 ignored by Defendant San Diego County Sheriff’s Deputy Sergeant Madden who is “the 13 direct supervisor of the deputies,” and which was ignored by Defendant San Diego 14 County Sheriff’s Deputy Captain Darnell who “is responsible for employee training and 15 direct supervision of subordinates.” Id. at 2–3, 8. 16 With respect to the allegations that Defendants Holman and Lira removed Plaintiff 17 from his wheelchair and placed him in a stokes basket and then onto a gurney in order to 18 take him to the infirmary where Defendant Morra placed him on the floor in the basket, 19 there are no allegations which plausibly suggest they did so maliciously and sadistically 20 to cause him harm, McMillian, 503 U.S. at 6–7, or that their actions were “not rationally 21 related to a legitimate governmental objective [such as providing medical care] or 22 excessive in relation to that purpose,” Kingsley, 576 U.S. at 398, so as to violate the 23 Eighth or Fourteenth Amendments. Lacking allegations showing that Defendants were 24 aware, or should have been aware, they were causing Plaintiff distress, or that their 25 actions were excessive in relation their purpose of providing Plaintiff medical care, 26 Plaintiff has not stated a claim. 27 Plaintiff next alleges that Defendant Nurse Practitioner Carie refused to call 911 or 28 give Plaintiff medication to help alleviate the spasms and instructed the deputies to place 1 him in a side cell. The Eighth Amendment’s prohibition on the infliction of cruel and 2 unusual punishment “establish the government’s obligation to provide medical care for 3 those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 101–03 4 (1976). “[A] prison official violates the Eighth Amendment only when two requirements 5 are met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” 6 Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, 7 “a prison official must have a ‘sufficiently culpable state of mind,’” that is, “one of 8 ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 9 302–03). To the extent Plaintiff was a pre-trial detainee, he can plausibly allege a 10 Fourteenth Amendment claim “by providing only objective evidence that the challenged 11 governmental action is not rationally related to a legitimate governmental objective or 12 that it is excessive in relation to that purpose.” Kingsley, 576 U.S. at 398; Gordon, 888 13 F.3d at 1125 (holding that in order to state a § 1983 claim for unconstitutional conditions 14 of confinement a pre-trial detainee must plausibly allege that: “(i) the defendant made an 15 intentional decision with respect to the conditions under which the plaintiff was confined; 16 (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the 17 defendant did not take reasonable available measures to abate that risk, even though a 18 reasonable official in the circumstances would have appreciated the high degree of risk 19 involved - making the consequences of the defendant’s conduct obvious; and (iv) by not 20 taking such measures, the defendant caused plaintiff’s injuries”). 21 Plaintiff’s allegations of a serious medical need are sufficient to survive the 22 screening required by 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Watison, 668 F.3d at 1112; 23 Wilhelm, 680 F.3d at 1121; Iqbal, 556 U.S. at 678; Doty v. County of Lassen, 37 F.3d 24 540, 546 n.3 (9th Cir. 1994) (“[I]ndicia of a ‘serious’ medical need include (1) the 25 existence of an injury that a reasonable doctor would find important and worthy of 26 comment or treatment, (2) the presence of a medical condition that significantly affects 27 an individual’s daily activities, and (3) the existence of chronic or substantial pain.”). 28 However, allegations of differences of opinion over proper medical care, inadequate 1 medical treatment, medical malpractice, or even gross negligence by themselves do not 2 rise to the level of an Eighth or Fourteenth Amendment violation. See Farmer, 511 U.S. 3 at 835 (“[N]egligen(ce) in diagnosing or treating a medical condition” does not amount to 4 deliberate indifference), quoting Estelle, 429 U.S. at 105-06 (holding that “an inadvertent 5 failure to provide medical care,” allegations that “a physician has been negligent in 6 diagnosing or treating a medical condition,” or “medical malpractice” do not state an 7 Eighth Amendment claim and “[m]edical malpractice does not become a constitutional 8 violation merely because the victim is a prisoner.”). 9 Plaintiff alleges that when he arrived at the infirmary Defendant Nurse Practitioner 10 Carie refused to call 911 or give him medication to help alleviate the spasms. Plaintiff 11 has not plausibly alleged that refusing his request to call 911 to report a medical 12 emergency from inside a jail infirmary amounted to an action taken maliciously and 13 sadistically to cause him harm, McMillian, 503 U.S. at 6–7, or that it amounted to an 14 action which was “not rationally related to a legitimate governmental objective or that it 15 is excessive in relation to that purpose,” Kingsley, 576 U.S. at 398, so as to violate the 16 Eighth or Fourteenth Amendments. The allegation that Nurse Practitioner Carie refused 17 his request for medication to control his muscle spasms does not plausibly allege Carie 18 had the authority to issue such medication or whether such medication was available. See 19 Toguchi, 391 F.3d at 1058 (deliberate indifference shown where the chosen course of 20 medical treatment was “medically unacceptable under the circumstances” and chosen “in 21 conscious disregard of an excessive risk to the prisoner’s health”); Estelle, 429 U.S. at 22 106 (holding that inadvertent failure to provide medical care, mere negligence or medical 23 malpractice and differences of opinion over what medical treatment is proper, do not state 24 an Eighth Amendment claim); Farmer, 511 U.S. at 835 (“[D]eliberate indifference 25 describes a state of mind more blameworthy than negligence” and “more than ordinary 26 lack of due care for the prisoner’s interests or safety.”); Castro v. County of Los Angeles, 27 833 F.3d 1060, 1068 (9th Cir. 2016) (“A prison official cannot be found liable for denial 28 of medical care . . . ‘unless the official knows of and disregards an excessive risk to 1 inmate health or safety; the official must both be aware of facts from which the inference 2 could be drawn that a substantial risk of serious harm exists, and he must also draw the 3 inference.’”) (quoting Farmer, 511 U.S. at 837). 4 Plaintiff has also failed to state a claim against Defendant Sergeant Madden who 5 he alleges is “the direct supervisor of the deputies,” or against Defendant Captain Darnell 6 who he alleges “is responsible for employee training and direct supervision of 7 subordinates.” Doc. No. 1 at 2–3, 8. Supervisory liability is not an independent cause of 8 action under § 1983, and to state a claim against supervisory personnel Plaintiff must 9 allege both an underlying constitutional violation and a sufficient causal connection 10 between the supervisor’s actions and the violation. Starr, 652 F.3d at 1207. “A person 11 ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 12 section 1983, if he does an affirmative act, participates in another’s affirmative acts or 13 omits to perform an act which he is legally required to do that causes the deprivation of 14 which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “In a 15 section 1983 claim, a supervisor is liable for the acts of his subordinates if the supervisor 16 participated in or directed the violations, or knew of the violations of subordinates and 17 failed to act to prevent them.” Corales, 567 F.3d at 570 (internal quote marks omitted); 18 see also Leer, 844 F.2d at 633 (“The inquiry into causation must be individualized and 19 focus on the duties and responsibilities of each individual defendant whose acts or 20 omissions are alleged to have caused a constitutional deprivation.”). 21 Plaintiff has failed to plausibly allege Defendants Madden and Darnell participated 22 in, knew of, or failed to act to prevent, the alleged constitutional violations by Defendants 23 Holman, Lira, Carie and Morra as necessary to state a claim for supervisor liability, 24 because Plaintiff merely alleges they became aware after the fact of those alleged 25 violations though grievance procedures. See Iqbal, 556 U.S. at 676–77 (rejecting 26 argument that “a supervisor’s mere knowledge of his subordinate’s [unconstitutional 27 actions] amounts to the supervisor’s violating the Constitution”). Plaintiff has also failed 28 to state a claim for failure to train because he has failed to plausibly allege individual acts 1 by the Defendants or “that ‘the need for more or different training is so obvious, and the 2 inadequacy so likely to result in the violation of constitutional rights, that the 3 policymakers of the city can reasonably be said to have been deliberately indifferent to 4 the need.’” Rodriguez, 891 F.3d at 802 (quoting City of Canton, 489 U.S. at 390). 5 Accordingly, Plaintiff’s claims against Defendants Holman, Lira, Morra, Carie, 6 Madden and Darnell in count three of the Complaint are dismissed sua sponte for failure 7 to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1); 8 Watison, 668 F.3d at 1112. 9 4. Count Four 10 Plaintiff alleges in count four that on or about October 3, 2021, he fell twice and 11 was taken to an outside hospital where he stayed for 35 days. Doc. No. 1 at 9. Upon 12 arriving back at the San Diego County Jail, he was housed in a cell with black mold. Id. 13 He filed grievances which were ignored and then moved to another cell with black mold, 14 and his renewed grievance was ignored. Id. Plaintiff states he was exposed to Covid-19 15 but Defendant Captain Darnell ignored his complaints, and that he was hospitalized four 16 times due to the conditions of confinement at the San Diego County Jail but Defendants 17 Darnell, Navarro, Lovelace “and all other defendants had no care or concern for 18 Plaintiff’s health, safety or life.” Id. He was eventually transferred to the George Bailey 19 Detention Facility and housed in a medical module. Id. Legal documents and paperwork 20 were removed from his personal property during the transfer and his claims regarding 21 their loss were ignored. Id. 22 As noted above, the allegations regarding his grievances being ignored fail to state 23 a claim. Mann. 855 F.2d at 640 (“There is no legitimate claim of entitlement to a 24 grievance procedure.”). The allegations Plaintiff was housed in cells which he later 25 learned contained black mold also fail to state a claim. “Prison officials have a duty to 26 ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical 27 care and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). 28 Although “subjection of a prisoner to lack of sanitation that is severe or prolonged can 1 constitute an infliction of pain within the meaning of the Eighth Amendment,” the 2 temporary imposition of such conditions does not state a claim absent allegations of a risk 3 of harm. Anderson v. County of Kern, 45 F.3d 1310, 1314–15 (9th Cir. 1995). The 4 allegations in the Complaint regarding placement in a cell with black mold fail to state a 5 claim because they lack detail regarding their duration and severity or whether and to 6 what extent they affected Plaintiff. Id.; Johnson, 217 F.3d at 731 (“The circumstances, 7 nature, and duration of a deprivation of these necessities must be considered in 8 determining whether a constitutional violation has occurred.”); see also Iqbal, 556 U.S. at 9 678 (noting that a complaint must “contain sufficient factual matter, accepted as true, to 10 state a claim to relief that is plausible on its face”). They also fail to identify a Defendant 11 who made the decision to place Plaintiff in the cell with the black mold. See Leer, 844 12 F.2d at 633 (“The inquiry into causation must be individualized and focus on the duties 13 and responsibilities of each individual defendant whose acts or omissions are alleged to 14 have caused a constitutional deprivation.”). 15 Plaintiff alleges he was exposed to Covid-19 but Defendant “Captain Darnell 16 ignored all complaints that Plaintiff submitted which adversely affected the Plaintiff’s 17 health and safety,” and that he was hospitalized four times due to the conditions of 18 confinement at the San Diego County Jail but Defendants Darnell, Navarro, Lovelace 19 “and all other defendants had no care or concern for Plaintiff’s health, safety or life.” 20 Doc. No. 1 at 9. These allegations are too conclusory to state a claim. Iqbal, 556 U.S. at 21 678 (the pleading standard “demands more than an unadorned, the-defendant-unlawfully- 22 harmed-me accusation”) (quoting Twombly, 550 U.S. at 555). 23 Plaintiff’s allegations of lost personal property and his submission of a claim 24 which was ignored fail to state a claim for denial of due process. When a state provides 25 an adequate post-deprivation remedy for the taking of property, through a state tort action 26 for example, the existence of that remedy satisfies the requirements of due process. 27 Zinermon v. Burch, 494 U.S. 113, 128 (1990). The Ninth Circuit has held that California 28 law provides such a remedy. Barrett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994). 1 Accordingly, Plaintiff’s claims in count four of the Complaint against Defendants 2 Darnell, Navarro and Lovelace are dismissed sua sponte for failure to state a claim upon 3 which relief may be granted. See 28 U.S.C. § 1915A(b)(1); Watison, 668 F.3d at 1112. 4 5. Count Five 5 In count five Plaintiff alleges that for a year from March 5, 2021, to March 9, 6 2022, Defendants Lieutenant Navarro and Captain Darnell housed him in cells with black 7 mold. Doc. No. 1 at 10. He was locked down in a small cell with two other men “at 8 times causing plaintiff’s legs to become deconditioned,” which is “the worst thing 9 someone could do to someone with primary progressive multiple sclerosis.” Id. He filed 10 several grievances which were ignored. Id. Defendants Navarro and Darnell failed to 11 provide Plaintiff with his daily newspaper subscription in retaliation for filing grievances 12 and letters to outside agencies complaining of the conditions of confinement at the San 13 Diego Jail. Id. Plaintiff states that for the three-year period from May 2019 to May 2022 14 he was denied access to the law library, the courts, legal assistance, photocopies and legal 15 supplies, preventing him from having meaningful access to the courts and effectively 16 litigating civil actions. Id. 17 The allegations that Defendants Navarro and Darnell housed Plaintiff in cells with 18 black mold or under conditions that caused his legs to be deconditioned fail to state a 19 claim because they do not plausibly allege these Defendants were aware the cells 20 contained black mold or that Plaintiff was housed in a manner inconducive to the 21 conditioning of his legs. Plaintiff has merely alleged in a conclusory manner that the 22 Defendants were responsible for the decision to house him in those cells, and has failed to 23 allege they were informed the cells were unhealthy or ignored a request to be rehoused. 24 See Gordon, 888 F.3d at 1125 (in order to state a § 1983 claim for unconstitutional 25 conditions of confinement a pre-trial detainee must plausibly allege that: “(i) the 26 defendant made an intentional decision with respect to the conditions under which the 27 plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering 28 serious harm; (iii) the defendant did not take reasonable available measures to abate that 1 risk, even though a reasonable official in the circumstances would have appreciated the 2 high degree of risk involved - making the consequences of the defendant’s conduct 3 obvious; and (iv) by not taking such measures, the defendant caused plaintiff’s injuries”). 4 Plaintiff’s allegations that Defendants Navarro and Darnell failed to provide him 5 with his daily newspaper subscription in retaliation for filing grievances and sending 6 letters to outside agencies complaining of the conditions of his confinement also fail to 7 state a claim. “Within the prison context, a viable claim of First Amendment retaliation 8 entails five basic elements: (1) An assertion that a state actor took some adverse action 9 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such 10 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 11 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 12 F.3d 559, 567–68 (2005). “Prisoners have a First Amendment right to file grievances 13 against prison officials and to be free from retaliation for doing so.” Watison, 668 F.3d at 14 1114. However, the allegations in the Complaint do not plausibly allege a causal 15 connection between the deprivation of newspapers and Plaintiff’s action in filing 16 grievances. See id. (a prisoner must allege a retaliatory motive, that is, “a causal 17 connection between the adverse action and his protected conduct”). Plaintiff’s allegation 18 of retaliation is entirely conclusory. See Iqbal, 556 U.S. at 678 (noting that a complaint 19 must “contain sufficient factual matter, accepted as true, to state a claim to relief that is 20 plausible on its face”); Corales, 567 F.3d at 568 (evidence of retaliation includes: 21 “(1) evidence of proximity in time between the protected speech and the alleged 22 retaliatory decision; (2) evidence that the defendant expressed opposition to the speech; 23 or (3) evidence that the defendant’s proffered reason for the adverse action was 24 pretextual”). 25 Finally, Plaintiff states that for three years from May 2019 to May 2022 he was 26 denied access to the law library, the courts, legal assistance, photocopies and legal 27 supplies which prevented him from having meaningful access to the courts and 28 effectively litigating civil actions. Id. Prisoners do not have a constitutional right to 1 access to a law library or legal assistance. See Lewis v. Casey, 518 U.S. 343, 351 (1996) 2 (holding that because inmates lack “an abstract, freestanding right to a law library or 3 legal assistance, an inmate cannot establish relevant actual injury by establishing that his 4 prison’s law library or legal assistance program is sub-par in some theoretical sense”). 5 Rather, in order to state a claim denial of access to the courts, a prisoner must establish 6 that he has suffered an “actual injury,” that is, “actual prejudice with respect to 7 contemplated or existing litigation, such as the inability to meet a filing deadline or to 8 present a claim.” Id. at 348–49; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 9 2004) (defining actual injury as the “inability to file a complaint or defend against a 10 charge”). 11 Plaintiff fails to include any factual allegations in the Complaint which plausibly 12 allege an actual injury supporting his claim of denial of access to the courts. See Lewis, 13 518 U.S. at 346 (holding that “the injury requirement is [limited to those tools] that the 14 inmates need in order to attack their sentences, directly or collaterally, and in order to 15 challenge the conditions of their confinement. Impairment of any other litigating 16 capacity is simply one of the incidental (and perfectly constitutional) consequences of 17 conviction and incarceration”). In addition, Plaintiff has failed to allege facts sufficient 18 to describe how any action by any Defendant has impaired his ability to visit the law 19 library or interfered with his ability to litigate a claim, and has failed to identify any 20 Defendant he seeks to hold responsible for the denial of his right of access to the courts. 21 See Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation 22 is, of course, a required element of a § 1983 claim.”); Leer, 844 F.2d at 633 (“The inquiry 23 into causation must be individualized and focus on the duties and responsibilities of each 24 individual defendant whose acts or omissions are alleged to have caused a constitutional 25 deprivation.”). 26 Accordingly, Plaintiff’s claims in count five of the Complaint against Defendants 27 Darnell and Navarro are dismissed sua sponte for failure to state a claim upon which 28 relief may be granted. See 28 U.S.C. § 1915A(b)(1); Watison, 668 F.3d at 1112. 1 ||C. Leave to Amend 2 In light of Plaintiff's pro se status, the Court grants him leave to amend his 3 || pleading to attempt to sufficiently allege a § 1983 claim. See Rosati v. Igbinoso, 791 4 || F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint 5 || without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint 6 || could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 7 || Cir. 2012)). 8 II. CONCLUSION AND ORDERS 9 Good cause appearing, the Court sua sponte DISMISSES all claims in Plaintiff's 10 Complaint against all Defendants without prejudice and with leave to amend for failure to 11 a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b). The 12 Court GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which 13 file a First Amended Complaint that cures the deficiencies of pleading noted in this 14 |/Order. Plaintiffs First Amended Complaint must be complete by itself without reference 15 any previous version of his Complaint. Any Defendants not re-named and any claims 16 re-alleged in the First Amended Complaint will be considered waived. See S.D. Cal. 17 ||CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 18 Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa 19 || County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to 20 ||amend which are not re-alleged in an amended pleading may be “considered waived if 21 repled’’). 22 IT IS SO ORDERED. 23 ||Dated: February 27, 2023 24 MWMaikuk. M = hipllr 25 HON. MICHAEL M. ANELLO United States District Judge 27 28 19 oe