-DLB (PC) Berreondo v. Akanno et al, No. 1:2011cv00432 - Document 18 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants, signed by Magistrate Judge Dennis L. Beck on 11/16/2011, referred to Judge O'Neill. Objections, If Any, Due Within Fourteen Days. (Marrujo, C)
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-DLB (PC) Berreondo v. Akanno et al Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MAXIMO BERREONDO, 10 Plaintiff, 11 12 CASE NO. 1:11-CV-00432-LJO-DLB PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS v. JONATHAN AKANNO, et al., 13 (DOCS. 10, 14, 15) Defendants. 14 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS / 15 16 17 18 FINDINGS AND RECOMMENDATIONS I. BACKGROUND Plaintiff Maximo Berreondo (“Plaintiff”) is a prisoner in the custody of the California 19 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his 21 complaint on March 14, 2011. Plantiff filed his first amended complaint on June 30, 2011. On 22 October 4, 2011, the Court screened Plaintiff’s first amended complaint and found that it stated a 23 cognizable claim against Defendant Akanno for deliberate indifference in violation of the Eighth 24 Amendment, and no other claims. Doc. 14. Plaintiff was provided the opportunity to file a 25 second amended complaint curing the deficiencies identified, or to notify the Court of his 26 willingness to proceed only on the cognizable claim. On October 18, 2011, Plaintiff notified the 27 Court of his willingness to proceed only against Defendant Akanno. The Court thus issues the 28 following Findings and Recommendations. 1 Dockets.Justia.com 1 II. 2 SCREENING REQUIREMENT The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 8 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 9 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 10 A complaint must contain “a short and plain statement of the claim showing that the 11 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 14 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 15 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 16 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. 17 III. 18 SUMMARY OF COMPLAINT Plaintiff, a paraplegic individual who is currently incarcerated at Kern Valley State Prison 19 (“KVSP”) in Delano, California, brings this action for adverse conditions of confinement, 20 deliberate indifference to serious medical needs, law library access, visiting privileges, court 21 access and violations of the Americans with Disabilities Act. The events at issue occurred 22 between November 2009 and the filing of the complaint. 23 In his complaint, Plaintiff alleges as follows: On October 30, 2009, Plaintiff was 24 transferred from Corcoran State Prison’s Acute Care Hospital to a wheelchair cell in the general 25 population at KVSP. Within two days of his arrival, Plaintiff began to show signs of skin 26 breakdown on his right hip. He immediately informed a nurse. On November 4, 2009, Plaintiff 27 saw Defendant Dr. Akanno, who refused to look at the affected area. Plaintiff’s condition began 28 to worsen and he continued to file medical slips. Dr. Akanno would see Plaintiff, but refuse to 2 1 examine him. Plaintiff developed three pressure sores, one on each hip and one on the tailbone 2 area. His sores became infected. 3 On April 30, 2010, Plaintiff was examined by Dr. Sweffler from Sacramento and moved 4 to KVSP’s Correctional Treatment Center on May 1, 2010. Plaintiff’s condition deteriorated and 5 on June 12, 2010, he began to suffer from chills, high fevers and severe muscle and joint pain. 6 On June 22, 2010, Plaintiff was admitted to Mercy Hospital for severe bone and wound 7 infections. For the next three months, Plaintiff underwent surgeries to remove necrotic and 8 infected tissue. On July 4, 2010, Plaintiff suffered from massive blood loss from his left hip. On 9 September 23, 2010, Plaintiff was discharged from Mercy Hospital to the KVSP’s Correctional 10 Treatment Center to continue treatment of his pressure sores. On December 9, 2010, Plaintiff 11 was readmitted to Mercy Hospital with chills, high fevers, rapid heart rate and muscle and joint 12 pain. On February 17, 2011, Plaintiff was discharged from Mercy Hospital to KVSP’s 13 Correctional Treatment Center. He remains bedridden and connected to a wound VAC, which is 14 treating his open and infected pressure sores. 15 Plaintiff contends that Dr. Akanno failed to provide him adequate medical care and was 16 deliberately indifferent to his medical needs. Plaintiff also claims that he filed multiple 17 complaints, which were deliberately ignored by Defendant Sherry Lopez, Chief Medical Officer 18 at KVSP. 19 Plaintiff alleges that other denials contributed to his pressure sores and severe infections. 20 Plaintiff alleges that while at KVSP, Dr. Akanno denied him a proper mattress and daily 21 showers. Plaintiff further alleges that he was deprived of outside yard time due to prolonged 22 lockdowns and could not perform range of motion exercises to prevent muscle atrophy. Plaintiff 23 alleges that he either was denied showers or was exposed to dirty water in backed-up showers. 24 He was unable to properly clean himself after unintended bowel movements or condom catheter 25 leaks, which resulted in irritation and infection. On more than one occasion, he fell onto the dirty 26 floor in the shower, exposing his wound to germs and bacteria. 27 KVSP, he was exposed to extreme temperatures, dust in the ventilation system, arsenic in the 28 water and poor nutrition. 3 Plaintiff alleges that while at 1 Court and Law Library Access 2 Plaintiff alleges that he is currently being denied access to the law library, to persons 3 learned in law and to the court. 4 Visiting Privileges 5 Plaintiff alleges that while hospitalized he was denied the right to communicate with his 6 family through correspondence, phone calls and/or visits. 7 Plaintiff’s Request for Relief 8 Plaintiff requests money damages and injunctive relief. 9 10 IV. PLAINTIFF’S CLAIMS The Civil Rights Act under which this action was filed provides: 11 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. 12 13 14 42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal 15 Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 16 (internal quotations omitted). “To the extent that the violation of a state law amounts to the 17 deprivation of a state-created interest that reaches beyond that guaranteed by the federal 18 Constitution, Section 1983 offers no redress.” Id. 19 20 21 1. Deficiencies of the Complaint A. Rule 8(a) Under federal pleading requirements, a complaint must contain “a short and plain 22 statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 24 of action, supported by mere conclusory statements, do not suffice,” Iqbal, 129 S.Ct. at 1949 25 (citing Twombly, 550 U.S. at 555), and courts “are not required to indulge unwarranted 26 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 27 marks and citation omitted). Factual allegations are accepted as true but legal conclusions are 28 not, and Plaintiff is required to present factual allegations sufficient to state a plausible claim for 4 1 relief. Iqbal, 129 S.Ct at 1949-50; Moss. v. United States Secret Service, 572 F.3d 962, 969 (9th 2 Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. 3 Id. 4 5 B. Eleventh Amendment Immunity Plaintiff names Kern Valley State Prison as a defendant. Plaintiff may not sustain an 6 action against a state prison. The Eleventh Amendment prohibits federal courts from hearing 7 suits brought against an unconsenting state. Brooks v. Sulphur Springs Valley Elec. Co-op., 951 8 F.2d 1050, 1053 (9th Cir.1991) (citation omitted); Seminole Tribe of Fla. v. Florida, 517 U.S. 9 44, 54 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 10 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir.1991). The Eleventh 11 Amendment bars suits against state agencies as well as those where the state itself is named as a 12 defendant. See Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 13 421 (9th Cir.1996); Brook, 951 F.2d at 1053; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) 14 (concluding that Nevada Department of Prisons was a state agency entitled to Eleventh 15 Amendment immunity); Mitchell v. L.A. Community College Dist., 861 F.2d 198, 201 (9th 16 Cir.1989). Kern Valley State Prison is part of the California Department of Corrections, a state 17 agency, and it is entitled to Eleventh Amendment immunity from suit. 18 C. Official Capacity 19 Plaintiff may not bring suit against defendants in their official capacities. “The Eleventh 20 Amendment bars suits for money damages in federal court against a state, its agencies, and state 21 officials in their official capacities.” Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th 22 Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits seeking 23 damages against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 30 24 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003). 25 “Personal-capacity suits . . . seek to impose individual liability upon a government officer 26 for actions taken under color of state law.” Hafer, 502 U.S. at 25; Suever v. Connell, 579 F.3d 27 1047, 1060 (9th Cir. 2009). Where a plaintiff is seeking damages against a state official and the 28 complaint is silent as to capacity, a personal capacity suit is presumed given the bar against an 5 1 official capacity suit. Shoshone-Bannock Tribes v. Fish & Game Comm’n, 42 F.3d 1278, 1284 2 (9th Cir. 1994); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1991). 3 4 D. Supervisory Liability Although not named in the caption, Plaintiff appears to attribute supervisory liability to 5 the Warden. Plaintiff fails to state a claim. The term “supervisory liability,” loosely and 6 commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. 7 “Government officials may not be held liable for the unconstitutional conduct of their 8 subordinates under a theory of respondeat superior.” Id. at 1948. Rather, each government 9 official, regardless of his or her title, is only liable for his or her own misconduct. 10 When the named defendant holds a supervisory position, the causal link between the 11 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 12 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 13 1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege 14 some facts indicating that the defendant either: personally participated in the alleged deprivation 15 of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated 16 or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional 17 rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 18 646 (9th Cir. 1989) (internal citations omitted); Taylor, 880 F.2d at 1045. Plaintiff alleges no 19 facts that demonstrate that the Warden personally deprived Plaintiff of his constitutional rights, 20 knew of constitutional violations and failed to act, or promulgated a policy that violated 21 Plaintiff’s constitutional rights. 22 2. 23 In the paragraphs that follow, the court will provide Plaintiff with the legal standards that Legal Standards 24 appear to apply to his claims. Plaintiff should carefully review the standards and amend only 25 those claims that he believes, in good faith, are cognizable. 26 27 28 A. Inmate Appeals Process Plaintiff alleges that Defendant Lopez and the Warden failed to respond properly to his inmate appeals. Defendants’ actions in responding to Plaintiff’s appeals, alone, cannot give rise 6 1 to any claims for relief under section 1983 for violation of due process. “[A prison] grievance 2 procedure is a procedural right only, it does not confer any substantive right upon the inmates.” 3 Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 4 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty 5 interest in processing of appeals because no entitlement to a specific grievance procedure); 6 Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers 7 no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it 8 does not give rise to a protected liberty interest requiring the procedural protections envisioned 9 by the Fourteenth Amendment.” Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 10 316 (E.D. Mo. 1986). Actions in reviewing a prisoner’s administrative appeal cannot serve as 11 the basis for liability under a section 1983 action. Buckley, 997 F.2d at 495. 12 13 B. Conditions of Confinement Plaintiff alleges that defendants deprived him of yard time, meals, and showers. The 14 Eighth Amendment protects prisoners from inhumane methods of punishment and from 15 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 16 2006). Extreme deprivations are required to make out a conditions of confinement claim, and 17 only those deprivations denying the minimal civilized measure of life’s necessities are 18 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 19 503 U.S. 1, 9 (1992) (citations and quotations omitted). In order to state a claim for violation of 20 the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison 21 officials knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer 22 v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 23 Plaintiff fails to demonstrate that any of the defendants knew of and disregarded a substantial risk 24 of serious harm to Plaintiff when depriving him of yard time, proper nutrition, arsenic-free 25 water, dust-free ventilation and showers. Plaintiff must set forth facts identifying which 26 defendant, whether named or unknown, and his/her alleged acts or omissions that resulted in the 27 alleged violation of Plaintiff’s federal rights. 28 Further, Plaintiff complains of prolonged lockdowns. There is no outright constitutional 7 1 prohibition against “mass punishment” or “lockdown.” See, e.g., Pepperling v. Crist, 678 F.2d 2 787, 789 (9th Cir.1982) (lockdown “may constitute a due process violation, as well as a violation 3 of the Eighth Amendment, if [it] persist[s] too long.”) (emphasis added); Hayward v. Procunier, 4 629 F.2d 599, 600-03 (9th Cir.1980) (five-month lockdown did not violate Due Process Clause 5 or Eighth Amendment). 6 7 8 9 The extent of the lockdowns experienced by Plaintiff is not clear. Plaintiff has failed to provide sufficient facts to state a cognizable claim. C. Eighth Amendment Medical Care Claim Plaintiff alleges that defendants failed to afford him adequate medical care at KVSP. 10 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must 11 show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 12 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The two part test for 13 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 14 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 15 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 16 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 17 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 18 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown 19 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 20 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). In order to state a claim 21 for violation of the Eighth Amendment, Plaintiff must allege sufficient facts to support a claim 22 that the named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . . 23 . .” Farmer, 511 U.S. at 837. 24 In applying this standard, the Ninth Circuit has held that before it can be said that a 25 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 26 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 27 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing 28 Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been negligent in diagnosing or 8 1 treating a medical condition does not state a valid claim of medical mistreatment under the 2 Eighth Amendment. Medical malpractice does not become a constitutional violation merely 3 because the victim is a prisoner.” Estelle, 429 U.S. at 106. Even gross negligence is insufficient 4 to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 5 1332, 1334 (9th Cir. 1990). 6 Also, “[A] difference of opinion between a prisoner-patient and prison medical 7 authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 8 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must show that 9 the course of treatment the doctors chose was medically unacceptable under the circumstances . . 10 . and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff’s 11 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal citations omitted). A 12 prisoner’s mere disagreement with diagnosis or treatment does not support a claim of deliberate 13 indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 14 The court finds that Plaintiff’s allegations state a cognizable claim for deliberate 15 indifference to Plaintiff’s serious medical need against Defendant Akanno. However, Plaintiff 16 has not alleged facts showing that Defendant Lopez or the Warden were deliberately indifferent 17 to Plaintiff’s serious medical need, or that the course of treatment given to him was medically 18 unacceptable under the circumstances. 19 D. Americans with Disabilities Act 20 Title II of the Americans with Disabilities Act (ADA) provides that “no qualified 21 individual with a disability shall, by reason of such disability, be excluded from participation in 22 or be denied the benefits of the services, programs, or activities of a public entity, or be subject to 23 discrimination by such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to inmates within 24 state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210(1998); see also 25 Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); Duffy v. Riveland, 98 F.3d 447, 453- 26 56 (9th Cir. 1996). 27 28 In order to state a claim under the ADA, plaintiff must have been “improperly excluded from participation in, and denied the benefits of, a prison service, program, or activity on the 9 1 basis of his physical handicap.” Armstrong, 124 F.3d at 1023. Further, the treatment or lack of 2 medical treatment for plaintiff’s condition does not provide a basis upon which to impose 3 liability. Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (medical treatment decisions 4 not basis for ADA claims); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 5 2005) (medical decisions not ordinarily within the scope of the ADA); Bryant v. Madigan, 84 6 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create a remedy for medical malpractice.”). 7 Aside from the medical treatment decisions, which are not an appropriate basis upon which to 8 predicate an ADA claim, Plaintiff alleges no facts to show that any defendant participated in, or 9 was otherwise responsible for, excluding him from numerous activities, programs, and benefits 10 11 12 otherwise available to him. E. Court and Law Library Access Plaintiff alleges that he is currently being denied access to the law library, persons learned 13 in law and the court. Inmates have a fundamental constitutional right of access to the courts. 14 Lewis v. Casey, 518 U.S. 343, 346 (1996). The right of access is merely the right to bring to 15 court a grievance the inmate wishes to present, and is limited to direct criminal appeals, habeas 16 petitions, and civil rights actions. Id. at 354. The State is not required to enable the inmate to 17 discover grievances or to litigate effectively once in court. Id. 18 Inmates do not have the right to a law library or legal assistance. Id. at 351. Law 19 libraries and legal assistance programs are only the means of ensuring access to the courts. Id. 20 Because inmates do not have "an abstract, freestanding right to a law library or legal assistance, 21 an inmate cannot establish relevant actual injury by establishing that his prison's law library or 22 legal assistance program is subpar in some theoretical sense." Id. Rather, an inmate claiming 23 interference with or denial of access to the courts must show that he suffered an actual injury. Id. 24 25 26 Plaintiff has not alleged an actual injury. E. Visitor & Communication Privileges The Due Process Clause protects prisoners from being deprived of liberty without due 27 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action 28 for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty 10 1 interest for which the protection is sought. Id. Liberty interests may arise from the Due Process 2 Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). With respect to 3 liberty interests arising from state law, the existence of a liberty interest created by prison 4 regulations is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 5 U.S. 472, 481-84 (1995). Liberty interests created by prison regulations are limited to freedom 6 from restraint which “imposes atypical and significant hardship on the inmate in relation to the 7 ordinary incidents of prison life.” Id. at 484. The Due Process Clause does not guarantee a right 8 to unfettered visitation. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460-61 (1989). It is 9 unclear to what extent Plaintiff was denied visitation during his hospitalizations. It also is 10 unclear whether the alleged denial resulted from prison regulations or hospital regulations. 11 Similarly, Plaintiff has made assertions regarding denial of telephone contact and 12 correspondence with his family while hospitalized. Inmates have a First Amendment right to 13 telephone access, subject to reasonable security limitations, and a First Amendment right to send 14 and receive mail. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996); Witherow v. Paff, 52 15 F.3d 264, 265 (9th Cir. 1995). It is unclear to what extent Plaintiff was denied telephone access 16 and correspondence with his family during his hospitalizations and whether prison or hospital 17 regulations resulted in the alleged denial. 18 V. CONCLUSION AND RECOMMENDATION 19 The Court finds that Plaintiff’s complaint states a cognizable claim for deliberate 20 indifference against Defendant Akanno. However, Plaintiff fails to state any other claims upon 21 which relief can be granted under § 1983 against Defendants. Plaintiff was provided the 22 opportunity to amend his first amended complaint to cure the deficiencies identified or to 23 proceed only against Defendant Akanno. Plaintiff chose the latter. 24 Accordingly, it is HEREBY RECOMMENDED that: 25 1. This action proceed on Plaintiff’s first amended complaint against Defendant 26 Jonathan Akanno for deliberate indifference in violation of the Eighth 27 Amendment; 28 2. All other claims be dismissed with prejudice for failure to state a claim; and 11 1 3. All other Defendants be dismissed from this action. 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Fourteen (14) 4 days after being served with these Findings and Recommendations, Plaintiff may file written 5 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 7 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 8 F.2d 1153, 1157 (9th Cir. 1991). 9 10 IT IS SO ORDERED. Dated: 3b142a November 16, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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