Rademaker v. Ganzekaufer

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 David RADEMAKER, Case No.: 21-cv-1757-AGS-AHG 5 Plaintiff, ORDER DISMISSING THIRD 6 v. AMENDED COMPLAINT WITHOUT LEAVE TO AMEND 7 Andrew GANZEKAUFER, et al., AND DENYING OTHER MOTIONS 8 Defendants. (ECF 33) 9 10 In his third amended complaint,1 plaintiff David Rademaker claims that the currently 11 named defendants failed to protect him from assault, retaliated against him, and interfered 12 with his access to the courts. (ECF 33, at 6–23.) Because this latest complaint fails to state 13 a claim, and because it is now clear Rademaker is unable to cure the recurring pleading 14 defects, this action is dismissed without further leave to amend. 15 28 U.S.C. § 1915A SCREENING 16 A. Standard of Review 17 The Court must conduct an initial review of “all complaints ‘in which a prisoner 18 seeks redress from a governmental entity or officer or employee of a governmental entity.’” 19 Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016) (quoting 28 U.S.C. § 1915A(a)). 20 “‘On review, the court shall . . . dismiss the complaint, or any portion of the complaint,’ if 21 it ‘(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or 22 (2) seeks monetary relief from a defendant who is immune from such relief.’” Olivas v. 23 Nevada ex rel. Dep’t of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 U.S.C. 24 § 1915A(b)). 25 26 1 Rademaker’s motion for leave to file his third amended complaint (see ECF 33) is 27 moot, as the Court already granted that leave (see ECF 25, at 11–12) and it has already been filed. Rademaker delivered it to prison officials before the amendment deadline (see 28 1 This screening “incorporates the familiar standard applied in the context of failure 2 to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 3 680 F.3d 1113, 1121 (9th Cir. 2012). “The Rule 12(b)(6) standard requires a complaint to 4 ‘contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 5 on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Threadbare recitals 6 of the elements of a cause of action, supported by mere conclusory statements, do not 7 suffice.” Iqbal, 556 U.S. at 678. 8 “Section 1983 creates a private right of action against individuals who, acting under 9 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 10 263 F.3d 1070, 1074 (9th Cir. 2001). To establish § 1983 liability, Rademaker must show 11 both “(1) deprivation of a right secured by the Constitution and laws of the United States, 12 and (2) that the deprivation was committed by a person acting under color of state law.” 13 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 14 B. Discussion 15 1. Access-to-Courts Claim 16 In dismissing his last two complaints, the Court instructed Rademaker that, to state 17 a claim for denial of access to the courts, he must allege “‘actual injury’ - that is, ‘actual 18 prejudice with respect to contemplated or existing litigation, such as the inability to meet a 19 filing deadline or to present a claim.’” (ECF 17, at 5; see also ECF 25, at 2 (same)). The 20 Court found that the previous complaints failed to plausibly allege an actual injury. In 21 particular, the Court noted that Rademaker’s allegations—that purported tampering with 22 his legal mail impeded his ability to prosecute his case—were entirely conclusory and did 23 not identify a non-frivolous claim he lost or was frustrated from bringing. (ECF 17, at 6; 24 ECF 25, at 3.) 25 In his third amended complaint, Rademaker once again conclusorily alleges 26 defendant Zambrano intercepted, read, destroyed, and altered his legal mail, which 27 interfered with his attempt to “initiat[e] court actions, and grievance actions.” (ECF 33, 28 at 13–14.) Yet again, there are no factual allegations of actual injury. Instead, Rademaker 1 alleges he successfully communicated with the FBI, a warden, a correctional lieutenant, 2 district attorneys, a retired judge, a university law clinic, and two law firms about his legal 3 concerns—and he attaches some of those documents to his most recent pleading. 4 (ECF 33-1, at 4–6, 15–20.) Thus, the latest complaint fails to state an access-to-courts 5 claim. In the Order dismissing the second amended complaint, Rademaker was warned that 6 he would have one final opportunity to amend. (ECF 25, at 11.) So, the access-to-courts 7 claim is dismissed without further leave to amend. 8 2. Eighth Amendment Failure-to-Protect Claim 9 The Eighth Amendment imposes a duty on prison officials to “‘take reasonable 10 measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 11 (1994). “[A] prison official violates the Eighth Amendment only when two requirements 12 are met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Id. 13 at 834. “The second requirement follows from the principle that ‘only the unnecessary and 14 wanton infliction of pain implicates the Eighth Amendment,’” and requires that “a prison 15 official must have a ‘sufficiently culpable state of mind,’” that is, “one of ‘deliberate 16 indifference’ to inmate health or safety.” Id. The prison official must “know[] of and 17 disregard[] an excessive risk to inmate health or safety; the official must both be aware of 18 facts from which the inference could be drawn that a substantial risk of serious harm exists, 19 and he must also draw the inference.” Id. at 837. 20 At the time of the relevant events, Rademaker belonged to a group of inmates with 21 developmental and mental impairments participating in the Enhanced Outpatient Program 22 (EOP) in Facility A of Richard J. Donovan Correctional Facility. (ECF 33, at 4, 6.) Facility 23 A consists of five yards, two of which housed EOP inmates while the other three housed 24 protective-custody inmates with active gang members. (Id. at 6.) In January 2019, 25 defendant Covello took over as acting warden and purportedly instituted an “atypical 26 policy” of transferring the EOP inmates to a yard on Facility A that housed active gang 27 members. (Id.) Rademaker alleges that violent attacks on EOP inmates and correctional 28 staff began immediately and increased in scope and scale for months. (Id.) He claims that 1 seven defendants—Correctional Officers Jackson and Ortiz, Clinical Director Dr. Sato, 2 psychologists Dr. Ganzekaufer and Dr. Katchua, and Acting Wardens Pollard and 3 Covello—were aware the housing change was causing violence. (Id. at 6–12.) On July 18, 4 2019, Rademaker was stabbed seven times by gang-member inmates and hospitalized for 5 three days with a punctured liver. (Id. at 12.) He claims defendants violated his Eighth 6 Amendment right to be protected from a known danger of assault. (Id. at 19–20.) 7 (a) Medical Defendants 8 Rademaker alleges that Dr. Ganzekaufer and his supervisor Dr. Katchua, along with 9 newly added defendant Clinical Director Dr. Sato, were aware of the risk of increased 10 assaults from integrating the two groups of inmates. (ECF 33, at 6–11.) Rademaker alleges 11 that on multiple occasions, Dr. Ganzekaufer notified Dr. Katchua, the other EOP inmates, 12 and Donovan Correctional Facility staff of the potential danger of assault, as well as 13 advising Rademaker to “lay low.” (Id.) Dr. Ganzekaufer told Plaintiff that custody staff 14 and Dr. Katchua had been informed of the threat the day before the attack. (Id. at 12.) 15 Rademaker subsequently declined an offer of protective custody. (Id. at 10.) But he now 16 claims that anyone else “would [have] been placed in a holding cell, away from other 17 inmates, for safety reason[s] . . . and not let on the yard with no [choice] at all.” (Id. at 12.) 18 The Court previously found the allegations against Dr. Ganzekaufer failed to state 19 an Eighth Amendment claim because there were no allegations this defendant acted 20 unreasonably in the face of a known threat to Rademaker’s safety. (ECF 17, at 7.) To the 21 contrary, Dr. Ganzekaufer told Rademaker and other EOP inmates of such a threat before 22 Rademaker was stabbed, and Dr. Ganzekaufer informed defendant Correctional Officer 23 Jackson of the same threat, while mentioning Rademaker by name. (Id. at 3, 7.) In the 24 current complaint, Rademaker likewise claims that Dr. Ganzekaufer informed custody staff 25 and Dr. Katchua of the threat, but Rademaker now alleges these defendants should also 26 have instructed custody staff to place him in protective custody. (ECF 33, at 10, 12.) 27 Rademaker has not cured his defective Eighth Amendment failure-to-protect claim 28 because he has not plausibly alleged that Dr. Ganzekaufer or Dr. Katchua acted 1 unreasonably in the face of a known threat. Prison officials “who actually knew of a 2 substantial risk to inmate health or safety may be found free of liability if they responded 3 reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. 4 at 844. Rademaker does not plausibly allege what more these doctors could have or should 5 have done to fulfill their obligation to “take reasonable measures to guarantee the safety of 6 the inmates.” In fact, he concedes that they alerted custody staff and the at-risk inmates. 7 Although Rademaker alleges Dr. Ganzekaufer and Dr. Katchua should have told custody 8 staff he was a candidate for placement in protective custody, Rademaker was offered and 9 declined protective custody. (ECF 33, at 10.) Rademaker’s contention that he should have 10 been forced into protective custody against his will fails to state a claim against these 11 defendants, because there are no allegations they had such authority. 12 As for Dr. Sato, who became the Clinical Director about a year and a half after the 13 attack (see id. at 5), Rademaker’s failure-to-protect allegations are somewhat different. 14 Rademaker faults Dr. Sato for concluding that Rademaker was “delusional” and for 15 disagreeing with another doctor about whether Rademaker needed psychotropic 16 medication. (Id. at 14–18.) These allegations are insufficient to plausibly allege Dr. Sato 17 was involved with the alleged violations of Rademaker’s federal rights. See Rizzo v. Goode, 18 423 U.S. 362, 371–72 (1976) (noting that a plaintiff must prove an affirmative link between 19 an injury and a defendant’s conduct). 20 The Eighth Amendment failure-to-protect claim against defendants 21 Dr. Ganzekaufer, Dr. Katchua, and Dr. Sato is dismissed without further leave to amend. 22 (b) Defendant Jackson 23 In this most recent complaint, Rademaker contends that, although Jackson offered 24 to send him to protective custody, Jackson should have compelled Rademaker into 25 protective custody against his will. (ECF 33, at 10, 12.) And Rademaker claims that, but 26 for his status as an EOP inmate, he would have been forcibly placed in protective custody. 27 (Id.) As in his prior complaints, Rademaker once again fails to plausibly allege that Jackson 28 did not “respond[] reasonably to the risk” by informing Rademaker of his option for 1 protective custody. See Farmer, 511 U.S. at 844. And, again, he fails to allege what more 2 Jackson could have done to prevent his injury, as there are no allegations that Jackson had 3 authority to reverse the housing policy or force Rademaker into protective custody. The 4 allegation that non-EOP inmates would have been forced into protective custody is 5 conclusory. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual 6 allegations must be enough to raise a right to relief above the speculative level[.]” (cleaned 7 up)). Thus, the allegations against Jackson fail to state a claim and will be dismissed 8 without leave to amend. 9 (c) Defendant Ortiz 10 In an earlier complaint, the Court concluded that the brief references to Correctional 11 Lieutenant Ortiz did not contain facts that plausibly alleged this defendant knew of and 12 deliberately disregarded a known risk to Rademaker’s safety and therefore did not state an 13 Eighth Amendment claim. (See ECF 25, at 6 (citing ECF 21, at 3, 6, 8, 14, 21).) The third 14 amended complaint alleges that Ortiz: was aware of the danger of inmate assaults at 15 Donovan Correctional Facility; knew about the attack on Rademaker; was responsible for 16 investigating the facility’s correctional officers; learned of Rademaker’s inmate grievances 17 and correspondence about the attack; but treated him differently because he was an EOP 18 inmate. (ECF 33, at 8, 13, 15, 20–21.) As with the previous versions of his pleading, 19 Rademaker’s allegations against Ortiz fail to state a claim because they remain vague and 20 conclusory, including his allegations that he was treated differently because he was an EOP 21 inmate. Rademaker is not entitled to another chance to correct this deficiency. His Eighth 22 Amendment failure-to-protect claim against Ortiz is dismissed without leave to amend. 23 (d) Warden Defendants 24 Rademaker alleges that retired Warden Covello implemented the housing policy that 25 allowed two incompatible inmate groups to be housed together on Facility A, and he alleges 26 that Covello’s replacement, Acting Warden Pollard, discriminated against Rademaker 27 because of his EOP status. (ECF 33, at 6, 15–16, 19–21.) Plaintiff was previously instructed 28 that “[a] supervisory official may be held liable under § 1983 only if ‘there exists either 1 (1) his or her personal involvement in the constitutional violation, or (2) a sufficient causal 2 connection between the supervisor’s wrongful conduct and the constitutional violation.’” 3 Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018). In other words, Rademaker must 4 allege that a supervisory defendant either personally participated in the violation of 5 Rademaker’s constitutional rights, knew of the violation and failed to prevent it, or 6 “implement[ed] a policy so deficient that the policy itself is a repudiation of constitutional 7 rights and is the moving force of the constitutional violation.” Hansen v. Black, 885 F.2d 8 642, 646 (9th Cir. 1989). 9 In the Court’s last dismissal order, Rademaker was informed that his allegations 10 against Warden Covello lacked specific factual allegations that Covello was actually aware 11 of a substantial risk of assault to Rademaker or that removing one group from the Facility A 12 yard was the only reasonable measure available to avoid such assaults. (See ECF 17, at 9.) 13 The Court emphasized that Rademaker’s allegations were particularly deficient “in light of 14 Plaintiff’s allegation that he was assaulted the day after he declined protective custody.” 15 (See id.) Rademaker was instructed that to state a claim against Covello, he must set forth 16 specific factual allegations sufficient for the Court to draw a reasonable conclusion that 17 Covello knew Rademaker faced a substantial risk of assault and failed to take reasonable 18 measures to avoid it or implemented a policy that was the moving force of the alleged 19 constitutional violation. (Id.) 20 Rademaker once again recycles the same allegations against former Warden 21 Covello, that is, that he instituted a housing policy that led four-and-a-half months later to 22 Rademaker being assaulted. There are no allegations that Wardens Covello or Pollard were 23 aware of the specific threat to Rademaker, were aware that Rademaker was offered but 24 refused protective custody the day before the assault, or were aware that he needed to lie 25 low to be safe. Rademaker continues to offer only conclusory allegations that they were 26 aware that assaults were taking place after the integration of the two yards or that they 27 treated him differently because he was an EOP inmate. Even assuming Rademaker could 28 present detailed allegations regarding defendants’ knowledge of the danger of assaults, he 1 still fails to allege deliberate indifference or a causal connection between the actions of the 2 wardens and the alleged constitutional violation. In fact, he admits that he declined 3 protective custody the same day he learned of the threat and that he was not assaulted until 4 the next day. See, e.g., McDaniels v. United States, 14cv2594-VBF (JDE), 2017 WL 5 10518115, at *8 (C.D. Cal. Apr. 27, 2017) (finding that allegations warden knew of prior 6 inmate assaults but not a specific threat to plaintiff failed to state a deliberate-indifference 7 claim or show a causal connection to plaintiff’s stabbing “because Plaintiff alleges that he 8 had the ability to use the safety measure provided by the Prison for precisely the situation 9 as presented here—the emergency button in his cell—yet chose not to”). 10 The Eighth Amendment failure-to-protect claim against Covello and Pollard is 11 dismissed without leave to amend. 12 3. Retaliation Claim 13 Rademaker alleges that he saw inmate Pawlicki having difficulty walking and 14 slurring his speech, so Rademaker informed Correctional Officer Zambrano that Pawlicki 15 might need medical care for a stroke. (ECF 33, at 16–17.) Zambrano replied that Pawlicki 16 was drunk and refused to summon medical aid. (Id. at 17.) That day, Rademaker wrote a 17 letter to a retired superior-court judge asking for the Donovan warden to be informed of 18 the situation. (Id.) As a result, inmate Pawlicki was found to have suffered a stroke and 19 Officer Zambrano was investigated for misconduct. (Id.) According to Rademaker, 20 Zambrano then retaliated against him by interfering with his legal mail, so that Rademaker 21 could not make additional complaints. (Id. at 21–22.) 22 “Within the prison context, a viable claim of First Amendment retaliation entails 23 five basic elements: (1) An assertion that a state actor took some adverse action against an 24 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 25 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 26 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 27 (9th Cir. 2005). The adverse action need not be an independent constitutional violation. 28 Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert 1 an injury no more tangible than a chilling effect on First Amendment rights.”). The 2 “because of” prong requires Rademaker to allege a retaliatory motive, that is, a causal 3 connection between the adverse action and his protected conduct. Watison v. Carter, 668 4 F.3d 1108, 1114 (9th Cir. 2012). 5 In Rademaker’s first amended complaint, he had not plausibly alleged a retaliatory 6 motive because he offered only conclusory allegations that defendants “were motivated by 7 [Rademaker’s] complaints regarding mail tampering.” (See ECF 17, at 10.) Rademaker 8 was instructed he “must allege facts from which a plausible inference can be drawn that 9 Defendants took adverse actions against him in retaliation for his protected activity.” (Id.) 10 In his next complaint, Rademaker claimed that Zambrano interfered with his legal mail in 11 retaliation for Rademaker’s report on Zambrano, resulting in Zambrano being investigated. 12 (See ECF 25, at 9.) The Court identified two fatal pleading defects in that complaint. First, 13 it found that Rademaker had not alleged “any facts as to why Rademaker believes 14 Zambrano interfered with his legal mail for that reason.” (Id. at 9–10.) The Court 15 cautioned, “Conclusory statements of retaliatory intent are insufficient.” (Id. at 10.) 16 Although the timing of the alleged mail interference—“three months after Rademaker 17 reported Zambrano”—might be circumstantial evidence of retaliatory intent, the Court held 18 that it was insufficient by itself to plausibly allege such intent. (Id.) Second, even if 19 Rademaker could establish retaliatory intent, the Court concluded that Rademaker still 20 failed “to include any details regarding the nature of the [allegedly impeded] mail” or any 21 adverse consequences from such mail interference. (Id.) 22 In the most recent complaint, there are no allegations that cure either defect. Rather, 23 Rademaker attaches to this latest complaint replies to his correspondence to two law firms, 24 a university law clinic, the office of the San Diego District Attorney, and defendants Ortiz 25 and Pollard, as well as an inmate grievance. (ECF 33-1, at 4–6, 15–20.) Rademaker once 26 again omits any factual allegations regarding how his correspondence was interfered with 27 or altered or what, if any, negative consequences resulted. 28 Thus, the retaliation claim is dismissed without leave to amend. I CONCLUSION 2 The Court has repeatedly instructed Rademaker on the relevant pleading 3 requirements and recently gave him a final chance to amend. With this latest complaint, it 4 ||is now clear that he is unable to meet those requirements, as he again fails to state any 5 claims. See Wilhelm, 680 F.3d at 1121; 28 U.S.C. § 1915A(b)(1). Thus, the third amended 6 || complaint is DISMISSED without leave to amend. 7 The Clerk shall enter judgment and close this case. 8 || Dated: October 20, 2023 10 Hon. rew G. Schopler 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 ao oe