Barnhardt v. Cate et al
Filing
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ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; First Amended Complaint Due within Thirty Days signed by Magistrate Judge Gerald B. Cohn on 6/14/2011. First Amended Complaint due by 7/18/2011. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARCUS J. BARNHARDT,
CASE NO. 1:10-cv-01351-LJO-GBC (PC)
Plaintiff,
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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
v.
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MATTHEW CATE, et al.,
(ECF No. 1)
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Defendants.
FIRST AMENDED COMPLAINT DUE
WITHIN THIRTY DAYS
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/
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SCREENING ORDER
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I.
PROCEDURAL HISTORY
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Plaintiff Marcus J. Barnhardt (“Plaintiff”) is a state prisoner proceeding pro se and
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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this
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action on July 30, 2010. (ECF No. 1.) No other parties have appeared.
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Plaintiff’s Complaint is now before the Court for screening. For the reasons set forth
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below, the Court finds that Plaintiff has failed to state any claims upon which relief may be
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granted.
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II.
SCREENING REQUIREMENTS
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set
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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its
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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual
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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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III.
SUMMARY OF COMPLAINT
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Plaintiff alleges violations of his Eighth Amendment right to adequate medical care.
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Plaintiff names the following individuals as Defendants: Matthew Cate, James Yates, Felix
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Igbignosa, Bryan-Hui Phi, K. Vilasane, Das Pac, LVN Delano, A. Shimmin, and Does 1-10.
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Plaintiff alleges the following: Plaintiff is diabetic, requiring two shots of insulin per
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day and a diabetic diet. Because of the diabetes, Plaintiff’s immune system is weak and
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he catches illnesses easier than others. Regardless of this, Plaintiff was transferred to
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Pleasant Valley State Prison, an area known for endemic Coccidiomycosis (“valley fever”).
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Plaintiff’s diabetes is not being offered up-do-date treatment options.
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It was recommended that he have surgery on his finger due to trigger finger;
however, Defendant Igbinosa refused to schedule it.
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Defendant Delano failed to give Plaintiff his morning insulin dose until 1:30 p.m.
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Plaintiff was vomiting because of his high blood sugar. In the past, he has been given the
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wrong insulin for days at a time. Several doctors have recommended that Plaintiff receive
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an insulin pump; however, Defendants Phi, Igbinosa, and Vilasane disagreed and refused
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to give him one. Plaintiff requested a diabetic diet, but the prison said that they do not
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have a diabetic diet, but instead offer a snack which qualifies as a diabetic diet.
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Plaintiff filed a lawsuit alleging similar facts. In retaliation, he was confined to
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quarters for 14 days without committee action. During that time, his property was taken.
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This occurred after Defendant Igbinosa was served with a copy of the complaint.
Plaintiff seeks a medical transfer, compensatory and punitive damages, and
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declaratory and injunctive relief.
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IV.
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ANALYSIS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.
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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.
Medical Claims
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Plaintiff asserts that his Eighth Amendment right was violated by Defendants’
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deliberate indifference to his serious medical needs.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an
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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439
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F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The
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two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical
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need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further
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significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s
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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting
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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,
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WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (internal quotations
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omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a
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prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439
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F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of
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the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the
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named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . .
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. .” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
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The objective component of deliberate indifference requires the showing of a
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serious medical need. “A ‘serious’ medical need exists if the failure to treat a prisoner’s
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condition could result in further significant injury or the ‘unnecessary and wanton infliction
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of pain’.” McGuckin, 974 F.2d at 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104);
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see also Jett, 439 F.3d at 1096. “This is true whether the indifference is manifested by
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prison doctors in their response to the prisoner’s needs or by prison guards in intentionally
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denying or delaying access to medical care or intentionally interfering with treatment once
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prescribed.” Estelle, 429 U.S. at 104-105. The objective element requires proof that the
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prisoner’s serious medical needs were not timely and properly treated.
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The subjective component of deliberate indifference considers the nature of the
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defendant’s response to the serious medical need and whether the defendant had a
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culpable mental state, which is “‘deliberate indifference’ to a substantial risk of serious
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harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (quoting Farmer, 511 U.S. at
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835). “[T]he official must both be aware of the facts from which the inference could be
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drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
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Farmer, 511 U.S. at 837. “[T]he official’s conduct must have been ‘wanton,’ which turns
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not upon its effect on the prisoner, but rather, upon the constraints facing the official.”
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Frost, 152 F.3d at 1128 (quoting Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)). “This
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second prong--defendant’s response to the need was deliberately indifferent--is satisfied
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by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible
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medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing
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McGuckin, 974 F.2d at 1060). “A prisoner need not show his harm was substantial;
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however, such would provide additional support for the inmate’s claim that the defendant
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was deliberately indifferent to his needs.” Id. Indications of a serious medical need include
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“[t]he existence of an injury that a reasonable doctor or patient would find important and
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worthy of comment or treatment; the presence of a medical condition that significantly
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affects an individual’s daily activities; or the existence of chronic and substantial pain.”
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McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th
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Cir. 1990)).
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If the claim alleges mere delay of treatment, the inmate must establish that the delay
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resulted in some harm. McGuckin, 974 F .2d at 1060 (citing Shapley v. Nevada Board of
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State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.1985) (per curiam)). The delay need not
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cause permanent injury. McGuckin, 974 F.2d at 1060; see also Hudson v. McMillian, 503
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U.S. 1, 10 (1992). Unnecessary infliction of pain is sufficient to satisfy this requirement.
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Id.
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In applying this standard, the Ninth Circuit has held that before it can be said that
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a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)
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(citing Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been negligent in
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diagnosing or treating a medical condition does not state a valid claim of medical
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mistreatment under the Eighth Amendment. Medical malpractice does not become a
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constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106;
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see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974
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F.2d at 1050, overruled on other grounds, WMX, 104 F.3d at 1136. Even gross negligence
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is insufficient to establish deliberate indifference to serious medical needs. See Wood v.
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Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
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Also, “a difference of opinion between a prisoner-patient and prison medical
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authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon,
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662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must
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show that the course of treatment the doctors chose was medically unacceptable under
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the circumstances . . . and . . . that they chose this course in conscious disregard of an
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excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)
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(internal citations omitted). A prisoner’s mere disagreement with diagnosis or treatment
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does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242
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(9th Cir. 1989).
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1.
Diabetes
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Plaintiff states that, on one occasion, Defendant Delano failed to give him his
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morning insulin in the morning causing him to suffer effects of high blood sugar; on other
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occasions, Plaintiff has received the “wrong” insulin; that it was recommended that he
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receive an insulin pump, but that Defendants Phi, Igbinosa, and Vilasane disagreed and
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refused; and that he was refused a diabetic diet because the prison does not have one.
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As to Defendant Delano’s failure to give Plaintiff insulin on time, Plaintiff has failed
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to state a claim. As currently pleaded, this appears to be negligence, which does not state
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an Eighth Amendment violation. Plaintiff specifically states that Defendant Delano failed
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to give him his insulin on time on one occasion. He does not attribute the other “wrong”
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insulin to Defendant Delano. Repeatedly giving Plaintiff the “wrong” insulin may be a
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violation of Plaintiff’s Eighth Amendment; however, again, he does not attribute this failure
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to any named Defendant.
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As to Defendants Phi, Igbinosa, and Vilasane, Plaintiff has also failed to state a
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claim. Plaintiff states that an insulin pump was recommended, and then that Phi, Igbinosa,
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and Vilasane disagreed. This appears to be merely a difference of opinion between
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doctors, and a difference of opinion between doctors and Plaintiff, neither of which rise to
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the unconstitutional level. Plaintiff does not state that the course chosen (no insulin pump)
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was medically unacceptable under the circumstances or that Defendants chose this course
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in conscious disregard of an excessive risk to Plaintiff’s health.
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As for the refusal of a diabetic diet, Plaintiff only states that he requested it and was
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refused because the prison does not have one. Plaintiff states that because the prison
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does not have one, he is given a snack to help control his diabetes. Plaintiff does not
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include enough description of this claim for the Court to make a determination. Plaintiff
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does not attribute this denial to any named Defendant. Nor does he state that the prison
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does actually have a diabetic meal plan.
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As currently pleaded, all Eighth Amendment claims related to Plaintiff’s diabetes fail
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to state a constitutional violation. Plaintiff will be given an additional opportunity to amend
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these claims.
2.
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Trigger Finger
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Plaintiff states that Defendant Igbinosa refused to schedule surgery for Plaintiff’s
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trigger finger. Again, the Court is unable to make a determination due to Plaintiff’s lack of
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additional information. For example, was Defendant Igbinosa disagreeing with another
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doctor’s recommendation? Did Defendant negligently fail to schedule the surgery? Or, did
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Defendant deliberately refuse to schedule the surgery? As currently pleaded, Plaintiff’s
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claim fails. Plaintiff will be given one additional opportunity to amend this claim.
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B.
Valley Fever
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Plaintiff argues that being housed at Pleasant Valley State Prison violated his Eighth
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Amendment right as his diabetic condition makes him especially susceptible to contracting
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Valley Fever.
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Courts of this district have repeatedly found such claims to be insufficient. “[T]o the
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extent that Plaintiff is attempting to pursue an Eighth Amendment claim for the mere fact
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that he was confined in a location where Valley Fever spores existed which caused him to
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contract Valley Fever, he is advised that no courts have held that exposure to Valley Fever
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spores presents an excessive risk to inmate health.” King v. Avenal State Prison, 2009 WL
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546212, *4 (E.D. Cal., Mar. 4, 2009); see also Tholmer v. Yates, 2009 WL 174162, *3 (E.D.
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Cal., Jan. 26, 2009) (“To the extent Plaintiff seeks to raise an Eighth Amendment challenge
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to the general conditions of confinement at PVSP, Plaintiff fails to allege facts that indicate
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Defendants are responsible for the conditions of which Plaintiff complains,” such as “acts
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or omissions of Defendants have caused an excessively high risk of contracting valley
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fever at PVSP”). The Court will give Plaintiff leave to amend this claim; however, he would
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be better served devoting his energies to his other claims.
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C.
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Plaintiff states that he was retaliated against by Defendant Igbinosa for exercising
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Retaliation
his constitutional rights.
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“Within the prison context, a viable claim of First Amendment retaliation entails five
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basic elements: (1) An assertion that a state actor took some adverse action against an
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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled
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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably
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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th
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Cir. 2005).
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Plaintiff has pleaded facts insufficient to state a claim of retaliation by Defendant
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Igbinosa. Plaintiff states that after he filed an action with the Court including facts similar
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to the facts stated here and Igbinosa was served with a copy of the complaint, Plaintiff was
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confined to quarters for 14 days without a hearing and his property was taken.
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Pursuing a civil rights legal action is protected under the First Amendment. Bradley
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v. Hall, 64 F.3d 1276,1279 (9th Cir. 1995); Rizzo v. Dawson, 778 F.2d 527,532 (9th Cir.
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1985). Plaintiff’s allegations of confinement without a hearing and confiscation of property
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are adverse actions. Thus, Plaintiff has satisfied the first and third prongs of the retaliation
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standard.
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With respect to the fourth prong, “[it] would be unjust to allow a defendant to escape
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liability for a First Amendment violation merely because an unusually determined plaintiff
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persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino County, 192
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F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official’s
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acts would chill or silence a person of ordinary firmness from future First Amendment
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activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300).
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Plaintiff does not allege that his speech was chilled, but the adverse actions he suffered
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would chill a person of ordinary firmness. Thus, Plaintiff has satisfied the fourth prong.
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The second element of a prisoner retaliation claim focuses on causation and motive.
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See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his
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protected conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s
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conduct.” Id. (quoting Morgan, 874 F.2d at 1314). Although it can be difficult to establish
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the motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce
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v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable
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issue of fact regarding prison officials’ retaliatory motives by raising issues of suspect
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timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997);
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Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as
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circumstantial evidence of retaliatory intent”). Plaintiff alleges that after Defendant Igbinosa
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was served with a complaint, Plaintiff was confined without a hearing and his property was
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taken. Plaintiff attempts to imply that the timing was suspect. However, Plaintiff does not
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state that Defendant Igbinosa had any part in the confinement or confiscation. In fact,
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Plaintiff fails to attribute these actions to any named Defendants who had knowledge of
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Plaintiff’s civil action. Thus, Plaintiff has not stated adequate facts to satisfy the second
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prong of his retaliation claim.
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With respect to the fifth prong, a prisoner must affirmatively allege that “the prison
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authorities’ retaliatory action did not advance legitimate goals of the correctional institution
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or was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 532. This
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is not a high burden to reach. See id. (prisoner’s allegations that search was arbitrary and
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capricious sufficient to satisfy this inquiry). Plaintiff makes no statements regarding
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penological goals or whether the allegedly adverse acts were related to such goals. Thus,
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Plaintiff has failed to reach the fifth prong.
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Because Plaintiff has failed to allege sufficient facts to satisfy all five prongs of his
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retaliation claim, the Court finds that he has failed to state a claim upon which relief could
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be granted. The Court will grant Plaintiff leave to amend this claim and attempt to set forth
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sufficient facts to state such a claim. In his amendment, Plaintiff should describe in greater
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detail who was doing the retaliation.
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D.
Denial of Access to Courts
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It appears as though Plaintiff may be alleging that was being denied access to the
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courts by Defendants. Specifically, Plaintiff alleges that Defendants were inappropriately
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screening out Plaintiff’s 602 grievance forms causing him to not be able to exhaust his
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administrative remedies.
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Inmates have a fundamental constitutional right of access to the courts. Lewis v.
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Casey, 518 U.S. 343, 346 (1996). However, the right is limited to direct criminal appeals,
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habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the
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courts may arise from the frustration or hindrance of “a litigating opportunity yet to be
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gained” (forward-looking access claim) or from the loss of a meritorious suit that cannot
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now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15
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(2002). Forward-looking claims allege “that systemic official action frustrates a plaintiff or
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plaintiff class in preparing and filing suits at the present time.” Christopher, 536 U.S. at
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413. In these cases that have yet to be litigated, “the justification for recognizing that
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[forward-looking] claim, is to place the plaintiff in a position to pursue a separate claim for
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relief once the frustrating condition has been removed.” Id. As part of the requirement to
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plead an injury, a plaintiff must allege that “a nonfrivolous legal claim had been frustrated
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or was being impeded.” Lewis, 518 U.S. at 353; see also Christopher, 536 U.S. at 415.
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Simply stating that a claim is “nonfrivolous” due to the action of a government official will
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not satisfy the actual injury requirement. Christopher, 536 U.S. at 415. Rather, the
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nonfrivolous “underlying cause of action and its lost remedy must be addressed by
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allegations in the complaint sufficient to give fair notice to a defendant.” Id. at 416. The
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plaintiff must describe this “predicate claim . . . well enough to apply the ‘nonfrivolous’ test
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and to show that the ‘arguable’ nature of the underlying claim is more than hope.” Id. The
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complaint should “state the underlying claim in accordance with Federal Rule of Civil
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Procedure 8(a) just as if it were being independently pursued, and a like plain statement
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should describe any remedy available under the access claim and presently unique to it.”
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Id. at 417-418; see Lewis, 518 U.S. at 353 n. 3 (“Depriving someone of an arguable
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(though not yet established) claim inflicts actual injury because it deprives him of
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something of value-arguable claims are settled, bought and sold. Depriving someone of
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a frivolous claim, on the other hand, deprives him of nothing at all, except perhaps the
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punishment of Rule 11 sanctions.”).
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Plaintiff states that he tried to process the medical appeals, but they were screened
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out obstructing Plaintiff’s administrative remedies. Plaintiff fails to describe the claim he
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was pursuing in any detail and, thus, fails to meet the pleading requirements set forth
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above. The Court will grant Plaintiff leave to amend this claim.
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E.
Inmate Appeals Process
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Plaintiff appears to be alleging that Defendants failed to respond properly to his
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inmate appeals. Defendants’ actions in responding to Plaintiff's appeals alone cannot give
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rise to any claims for relief under Section 1983 for violation of due process. “[A prison]
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grievance procedure is a procedural right only, it does not confer any substantive right
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upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v.
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DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850,
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860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to
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a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)
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(existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams,
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855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty
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interest requiring the procedural protections envisioned by the Fourteenth Amendment.”
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Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).
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Actions in reviewing a prisoner’s administrative appeal cannot serve as the basis for liability
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under a Section 1983 action. Buckley, 997 F.2d at 495.
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Thus, since he has neither a liberty interest, nor a substantive right in inmate
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appeals, Plaintiff fails to state a claim in this regard. Because amendment of this claim
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would be futile, the Court advises Plaintiff that he would be well-served devoting his energy
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to pursuing his other claims.
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F.
Doe Defendants
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Plaintiff names as Defendants Does 1-10. “As a general rule, the use of ‘John Doe’
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to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
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1980). “It is permissible to use Doe defendant designations in a complaint to refer to
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defendants whose names are unknown to plaintiff. Although the use of Doe defendants
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is acceptable to withstand dismissal of a complaint at the initial review stage, using Doe
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defendants creates its own problem: those persons cannot be served with process until
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they are identified by their real names.” Robinett v. Correctional Training Facility, 2010 WL
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2867696, *4 (N.D. Cal. July 20, 2010).
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Plaintiff is advised that John Doe Defendant can not be served by the United States
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Marshal until he has identified him as an actual individual and amended his complaint to
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substitute the Defendant’s actual name. The burden remains on Plaintiff to promptly
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discover the full name of Doe Defendant; the Court will not undertake to investigate the
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names and identities of unnamed defendants. Id. The Court will grant Plaintiff leave to
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amend this claim and attempt to set forth sufficient identification.
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G.
Personal Participation and Supervisory Liability
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Plaintiff appears to be arguing that several named Defendants are liable for the
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conduct of subordinates as, according to Plaintiff’s statement of facts, they were not
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present and did not participate in any of the complained of conduct. In fact, Defendant
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Does 1-10 are not mentioned at all in the factual allegations that make up Plaintiff’s
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Complaint.
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Under Section 1983, Plaintiff must demonstrate that each named Defendant
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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory
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liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.
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Iqbal, 129 S.Ct. at 1949.
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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.
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at 1948. Rather, each government official, regardless of his or her title, is only liable for
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his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,
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through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. at
“Government officials may not be held liable for the
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1948-49.
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When examining the issue of supervisor liability, it is clear that the supervisors are
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not subject to vicarious liability, but are liable only for their own conduct. Jeffers v. Gomez,
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267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.
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2004). In order to establish liability against a supervisor, a plaintiff must allege facts
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demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient
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causal connection between the supervisor’s wrongful conduct and the constitutional
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violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal
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connection may be shown by evidence that the supervisor implemented a policy so
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deficient that the policy itself is a repudiation of constitutional rights.
Wesley, 333
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F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general
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responsibility for supervising the operations of a prison is insufficient to establish personal
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involvement. Id. (internal quotations omitted).
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Supervisor liability under Section 1983 is a form of direct liability. Munoz v.
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Kolender, 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must
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show that Defendant breached a duty to him which was the proximate cause of his injury.
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Id. “‘The requisite causal connection can be established . . . by setting in motion a series
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of acts by others which the actor knows or reasonably should know would cause others to
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inflict the constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th
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Cir. 1978)).
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Plaintiff has not alleged facts demonstrating that Defendant Does personally acted
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to violate his rights. Nor has he alleged that Defendants Yates or Cate violated his rights.
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In his Amended Complaint, Plaintiff needs to specifically link each Defendant to a violation
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of his rights. Plaintiff shall be given the opportunity to file an amended complaint curing
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the deficiencies in this respect.
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V.
CONCLUSION AND ORDER
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The Court finds that Plaintiff’s Complaint fails to state any Section 1983 claims upon
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which relief may be granted. The Court will provide Plaintiff time to file an amended
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1
complaint to address the potentially correctable deficiencies noted above. See Noll v.
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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must
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demonstrate that the alleged incident or incidents resulted in a deprivation of his
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constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual
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matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting
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Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally
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participated in the deprivation of his rights. Jones, 297 F.3d at 934.
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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new defendants or claims. Plaintiff should focus the
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amended complaint on claims and defendants discussed herein.
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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint
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be complete in itself without reference to any prior pleading. As a general rule, an
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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,
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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer
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serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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The amended complaint should be clearly and boldly titled “First Amended Complaint,”
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refer to the appropriate case number, and be an original signed under penalty of perjury.
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//
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//
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/
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//
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///
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//
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/
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//
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///
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file
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an amended complaint within thirty (30) days from the date of service of this
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order;
2.
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Plaintiff shall caption the amended complaint “First Amended Complaint” and
refer to the case number 1:10-cv-1351-LJO-GBC (PC); and
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3.
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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.
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IT IS SO ORDERED.
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Dated:
1j0bbc
June 14, 2011
UNITED STATES MAGISTRATE JUDGE
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