Joseph Aaron McKissick v. Josie Gastello, No. 2:2021cv01945 - Document 12 (C.D. Cal. 2021)
Court Description: MEMORANDUM DECISION AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Maria A. Audero. For the reasons stated above, the Court DISMISSES the SAC WITH LEAVE TO AMEND. Plaintiff may have another opportunity to ame nd his complaint in light of his pro se prisoner status. Plaintiff is ORDERED to, no later than August 9, 2021, either: (1) file a Third Amended Complaint (TAC), or (2) advise the Court that Plaintiff no longer intends to pursue this lawsuit. (Attachments: # 1 Order.Attach.1, # 2 Order.Attach.2) (es)
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Joseph Aaron McKissick v. Josie Gastello Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSEPH AARON MCKISSICK, Plaintiff, 12 13 14 v. JOSIE GASTELO et al. 15 Case No. 2:21-cv-01945-VAP (MAA) MEMORANDUM DECISION AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND Defendants. 16 17 18 19 I. INTRODUCTION On March 1, 2021, Plaintiff Joseph Aaron McKissick (“Plaintiff”), a 20 California inmate housed at California Men’s Colony State Prison (“CMC”), 21 proceeding pro se, filed a Complaint alleging violations of his civil rights pursuant 22 to 42 U.S.C. § 1983 (“Section 1983”). (Compl., ECF No. 1.) On March 4, 2021, 23 the Court granted Plaintiff’s Request to Proceed Without Prepayment of Filing 24 Fees. (ECF Nos. 2, 5.) 25 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A, on April 13, 26 2021, the Court screened and dismissed the Complaint with leave to amend. (Order 27 Dismiss. Compl., ECF No. 8.) On April 19, 2021, Plaintiff filed a First Amended 28 Complaint (“FAC,” ECF No. 9), which the Court screened and dismissed with Dockets.Justia.com 1 leave to amend on May 7, 2021 (Order Dismiss. FAC, ECF No. 10). On May 28, 2 2021, Plaintiff filed a Second Amended Complaint (“SAC”). (SAC, ECF No. 11.) 3 The Court has screened the SAC, and dismisses it with leave to amend for the 4 reasons stated below. No later than August 9, 2021, Plaintiff must either: (1) file a 5 Third Amended Complaint; or (2) advise the Court that Plaintiff no longer intends 6 to pursue this lawsuit. 7 8 II. 9 PLAINTIFF’S ALLEGATIONS AND CLAIMS1 The SAC is filed against: (1) Josie Gastelo, former head warden of CMC; 10 (2) Garcia, Correctional Counselor; (3) Sandavol, CMC-West-5 yard sergeant; and 11 (4) Urbina, correctional officer in the dorm where Plaintiff is housed (each, a 12 “Defendant,” and collectively, “Defendants”). (SAC 3–4.)2 13 Plaintiff alleges that Defendants violated the Eighth Amendment by 14 deliberate indifference to Plaintiff’s health and safety during the outbreak of 15 COVID-19 at CMC. (Id. at 5.) Defendants knew that Plaintiff faced a substantial 16 risk of serious harm and disregarded that risk by failing to take reasonable measures 17 to abate it. (Id.) 18 The following memoranda were sent to Defendants regarding COVID-19: 19 (1) a March 13, 2020 memorandum sent to CDCR staff regarding COVID-19 (id. at 20 5, 11–12); (2) an April 1, 2020 memorandum sent to CDCR staff stating that in 21 order to reduce the spread of COVID-19 and avoid the dangerous consequences of 22 transmission, CDCR will accelerate the release of certain nonviolent inmates who 23 1 27 The Court summarizes Plaintiff’s allegations and claims in the SAC and attached exhibits, without opining on their veracity or making any findings of fact. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (explaining that documents attached to a complaint are part of the complaint and may be considered in determining whether the plaintiff can prove any set of facts in support of the claim). 28 2 24 25 26 Citations to pages in docketed documents reference those generated by CM/ECF. 2 1 are within sixty days of release and some inmates receiving hospice care (id. at 5, 2 14); (3) an April 8, 2020 memorandum sent to Associate Directors and Wardens 3 (including Defendant Gastelo) directing them to protect the health of staff and 4 inmates and providing guidance on cleaning and disinfection protocols as 5 recommended by the Center for Disease Control (id. at 5, 16); (4) a May 11, 2020 6 memorandum sent to Associate Directors and Wardens (including Defendant 7 Gastelo) on how to mitigate exposure of staff and inmates to COVID-19 (id. at 5, 8 18); (5) a November 19, 2020 memorandum sent to CDCR staff to wear masks to 9 reduce the spread of COVID-19 (id. at 5, 20–22); and (6) a December 21, 2020 10 memorandum sent to CDCR staff due to the failure of mandatory employee 11 COVID-19 testing, non-compliance, and accountability, and stating that all 12 supervisors are responsible for their subordinates (id. at 5–6, 25–27). 13 A review of disciplinary actions showed that twelve CMC employees 14 received verbal counseling for violating COVID-19 protocols. (Id. at 6, 29.) Three 15 pictures show that the CMC dorms are not in compliance with the six-feet social 16 distancing protocol. (Id. at 6, 31–34.) 17 On August 8, 2020, Plaintiff filed a 602 complaint regarding the staff’s 18 failure to comply with COVID-19 safety protocols and due to Plaintiff’s fear for his 19 life due to widespread COVID-19 at CMC. (Id. at 6, 35–43.) In his 602 complaint, 20 Plaintiff requested to go through the accelerated release program to transfer to 21 transitional housing, ankle monitoring, or “MCRP.” (Id. at 40.) 22 Defendant Gastelo ordered all programs to stop, ordered all staff and inmates 23 to wear a mask, and implemented a policy of six-feet social distancing and living in 24 the dorms. (Id. at 6.) Correctional officers refused to wear masks, but ordered 25 inmates to wear them. (Id.) Defendant Gastelo ordered correctional counselors to 26 minimize the inmate population in dorms by releasing inmates “with one year or 27 less.” (Id. at 6–7.) 28 /// 3 1 Defendants Sandavol and Urbino failed to implement the six-feet social and 2 living distance in the dorms. (Id. at 7.) An outbreak of COVID-19 occurred in the 3 F-yard in the west facility. (Id.) These inmates were moved to E-yard, where 4 Plaintiff was housed. (Id.) 5 In fear of his life, Plaintiff called his mother, Lisa McKissick. (Id.) Ms. 6 McKissick called Defendant Gastelo and discussed her concern for Plaintiff’s 7 health and safety and asked if Plaintiff could be released to an ankle monitoring 8 program. (Id.) Defendant Gastelo told Ms. McKissick to have Plaintiff contact his 9 counselor. (Id.) 10 Plaintiff contacted Defendant Garcia “via open line” and asked Defendant 11 Garcia if Plaintiff could be transferred to an ankle monitoring program. (Id.) 12 Defendant Garcia replied that he could, but he did not have time. (Id.) Defendant 13 Garcia failed to take Plaintiff to classification “to prevent the Plaintiff detect of 14 COVID-19 for secured housing.” (Id. at 3.) 15 On January 2, 2021, Plaintiff tested positive for COVID-19 and was 16 transferred to F-yard in the West Facility in a dorm with other inmates not in 17 isolation. (Id. at 7.) Plaintiff remained in the dorm for three weeks. (Id.) 18 Medical staff told Plaintiff that it was best for every inmate to test positive so 19 COVID-19 among inmates could be resolved for up to ninety days. (Id.) COVID- 20 19 was intentionally inflicted upon the inmate population by the staff or 21 subordinates of Defendant. (Id.) 22 Plaintiff was transferred back to E-yard. (Id.) Defendant Sandavol did not 23 ensure that Defendant Urbino implemented the six-feet social and dorm living 24 conditions, because Plaintiff had a “bunky” that slept under him with the two bunks 25 on his left and right side less than three feet away from him. (Id. at 7–8.) 26 Defendant Sandavol failed to provide the needed cleaning supplies to disinfect the 27 dorm living area, restroom, shower, or dayrooms. (Id. at 8.) Defendant Urbino did 28 not make an effort to get the needed supplies to reduce the risk of exposure to 4 1 COVID-19. (Id.) Defendants failed to supervise their subordinates to help reduce 2 the risk of Plaintiff being harmed by the spread of COVID-19. (Id.) Each of the 3 named Defendants failed to follow the orders in the memoranda, for which Plaintiff 4 is still suffering. (Id.) Plaintiff lost his ability to taste and smell, and is still 5 suffering headaches and psychological damage. (Id. at 5, 8.) 6 Plaintiff seeks declaratory relief and damages. (Id. at 9.) 7 8 9 III. LEGAL STANDARD Federal courts must conduct a preliminary screening of any case in which a 10 prisoner seeks redress from a governmental entity or officer or employee of a 11 governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma 12 pauperis (28 U.S.C. § 1915(e)(2)(B)). The court must identify cognizable claims 13 and dismiss any complaint, or any portion thereof, that is: (1) frivolous or 14 malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks 15 monetary relief from a defendant who is immune from such relief. 28 U.S.C. 16 §§ 1915(e)(2)(B), 1915A(b). 17 When screening a complaint to determine whether it fails to state a claim 18 upon which relief can be granted, courts apply the Federal Rule of Civil Procedure 19 12(b)(6) (“Rule 12(b)(6)”) standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 20 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § 1915A); 21 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6) 22 standard to 28 U.S.C. § 1915(e)(2)(B)(ii)). To survive a Rule 12(b)(6) dismissal, “a 23 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 24 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 25 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has 26 facial plausibility when the plaintiff pleads factual content that allows the court to 27 draw the reasonable inference that the defendant is liable for the misconduct 28 alleged.” Id. Although “detailed factual allegations” are not required, “an 5 1 unadorned, the-defendant-unlawfully-harmed-me accusation”; “labels and 2 conclusions”; “naked assertion[s] devoid of further factual enhancement”; and 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements” do not suffice. Id. “Dismissal under Rule 12(b)(6) is 5 appropriate only where the complaint lacks a cognizable legal theory or sufficient 6 facts to support a cognizable legal theory.” Hartmann v. Cal. Dep’t of Corr. & 7 Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela 8 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). 9 In reviewing a Rule 12(b)(6) motion to dismiss, courts will accept factual 10 allegations as true and view them in the light most favorable to the plaintiff. Park 11 v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017). Moreover, where a plaintiff is 12 appearing pro se, particularly in civil rights cases, courts construe pleadings 13 liberally and afford the plaintiff any benefit of the doubt. Wilhelm, 680 F.3d at 14 1121. “If there are two alternative explanations, one advanced by defendant and the 15 other advanced by plaintiff, both of which are plausible, plaintiff’s complaint 16 survives a motion to dismiss under Rule 12(b)(6).” Starr v. Baca, 652 F.3d 1202, 17 1216 (9th Cir. 2011). However, the liberal pleading standard “applies only to a 18 plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), 19 superseded by statute on other grounds, 28 U.S.C. § 1915. Courts will not “accept 20 any unreasonable inferences or assume the truth of legal conclusions cast in the 21 form of factual allegations.” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 22 2003). In giving liberal interpretations to complaints, courts “may not supply 23 essential elements of the claim that were not initially pled.” Chapman v. Pier 1 24 Imps. (U.S.), Inc., 631 F.3d 939, 954 (9th Cir. 2011) (quoting Pena v. Gardner, 976 25 F.2d 469, 471 (9th Cir. 1992)). 26 /// 27 /// 28 /// 6 1 IV. DISCUSSION 2 A. 3 Section 1983 provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . . 5 6 7 8 9 Section 1983 42 U.S.C. § 1983. “Section 1983 does not create any substantive rights, but is 10 instead a vehicle by which plaintiffs can bring federal constitutional and statutory 11 challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 12 1063, 1067 (9th Cir. 2006). “The purpose of §1983 is to deter state actors from 13 using the badge of their authority to deprive individuals of their federally 14 guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. 15 Cole, 504 U.S. 158, 161 (1992). “To state a claim under § 1983, a plaintiff must 16 allege the violation of a right secured by the Constitution and laws of the United 17 States, and must show that the alleged deprivation was committed by a person 18 acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Here, 19 Plaintiff asserts claims for violation of the Eighth Amendment’s protection against 20 cruel and unusual punishment. 21 22 B. 23 “[T]he treatment a prisoner receives in prison and the conditions under Eighth Amendment Cruel and Unusual Punishment 24 which he is confined are subject to scrutiny under the Eighth Amendment,” which 25 prohibits cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 26 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). “[W]hile conditions 27 of confinement may be, and often are, restrictive and harsh, they ‘must not involve 28 the wanton and unnecessary infliction of pain.’” Morgan v. Morgensen, 465 F.3d 7 1 1041, 1045 (9th Cir. 2006) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 2 (1981)). “In other words, they must not be devoid of legitimate penological 3 purpose, or contrary to evolving standards of decency that mark the progress of a 4 maturing society.” Id. (citations and quotation marks omitted). 5 “An Eighth Amendment claim that a prison official has deprived inmates of 6 humane conditions must meet two requirements, one objective and one subjective.” 7 Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (quoting Allen v. Sakai, 48 8 F.3d 1082, 1087 (9th Cir. 1995)). First, to satisfy the Eighth Amendment’s 9 objective prong, “the deprivation alleged must be, objectively, sufficiently serious; 10 a prison official’s act or omission must result in the denial of the minimal civilized 11 measure of life’s necessities.” Farmer, 511 U.S. at 834 (internal quotation marks 12 and citations omitted). For a claim “based on a failure to prevent harm, the inmate 13 must show that he is incarcerated under conditions posing a substantial risk of 14 serious harm.” Id. 15 Second, to satisfy the Eighth Amendment’s subjective prong, there must be 16 allegations that a prison official acted with “deliberate indifference” to an inmate’s 17 health or safety—that is, “the official knows of and disregards an excessive risk to 18 inmate health or safety; the official must both be aware of facts from which the 19 inference could be drawn that a substantial risk of serious harm exists, and he must 20 also draw the inference.” Id. at 837. “A prison official’s duty under the Eighth 21 Amendment is to ensure reasonable safety,” and “prison officials who act 22 reasonably cannot be found liable under the Cruel and Unusual Punishments 23 Clause.” Id. at 844–45 (internal quotation marks and citations omitted). Thus, 24 there is no Eighth Amendment violation if a prison official “did not know of the 25 underlying facts indicating a sufficiently substantial danger and [was] therefore 26 unaware of a danger,” or if “they knew the underlying facts but believed (albeit 27 unsoundly) that the risk to which the facts gave rise was insubstantial or 28 nonexistent.” Id. at 844. “In addition, prison officials who actually knew of a 8 1 substantial risk to inmate health or safety may be found free from liability if they 2 responded reasonably to the risk, even if the harm ultimately was not averted.” Id. 3 “Neither accident nor negligence constitutes cruel and unusual punishment, as ‘[i]t 4 is obduracy and wantonness, not inadvertence or error in good faith, that 5 characterize the conduct prohibited by the Cruel and Unusual Punishments 6 Clause.’” Blackwell v. Covello, No. 2:20-cv-1755 DB P, 2021 U.S. Dist. LEXIS 7 45226, at *6 (E.D. Cal. Mar. 9, 2021) (quoting Whitley v. Albers, 475 U.S. 312, 319 8 (1986)). Furthermore, in analyzing whether prison officials have violated the 9 Eighth Amendment, courts must give “due regard for prison officials’ ‘unenviable 10 task of keeping dangerous men in safe custody under humane conditions.’” 11 Farmer, 511 U.S. at 845 (quoting Spain v. Procunier, 600 F.2d 189, 193 (9th Cir. 12 1979)). 13 14 15 1. COVID-19 “The COVID-19 pandemic is ‘unprecedented,’ and no one questions that it 16 poses a substantial risk of serious harm to [prisoners].” Plata v. Newsom, 445 F. 17 Supp. 3d 557, 559 (N.D. Cal. 2020) (citation omitted); see also Williams v. Dirkse, 18 No. 1:21-cv-00047-BAM (PC), 2021 U.S. Dist. LEXIS 103673, at *22–23 (E.D. 19 Cal. June 2, 2021) (“The transmissibility of the COVID-19 virus in conjunction 20 with [the prisoner plaintiff’s] living conditions are sufficient to satisfy that 21 ‘conditions put the plaintiff at substantial risk of suffering serious harm.’”). 22 However, to state a cognizable Eighth Amendment claim, Plaintiff must 23 provide more than generalized allegations that Defendants have not done enough to 24 enforce six-feet social and living distancing, or provided sufficient cleaning 25 supplies, in order to control the spread of COVID-19. See, e.g., Sanford v. Eaton, 26 No. 1:20-cv-00792-BAM (PC), 2021 U.S. Dist. LEXIS 59949, at *15 (E.D. Cal. 27 Mar. 29, 2021) (explaining that “in order to state a cognizable Eighth Amendment 28 claim against the warden, associate wardens and the other defendants named, 9 1 Plaintiff must provide more than generalized allegations that the warden, associate 2 wardens and other defendants have not done enough regarding overcrowding to 3 control the spread” of COVID-19); Blackwell, 2021 U.S. Dist. LEXIS 45226, at *8 4 (concluding that “in order to state a cognizable Eighth Amendment claim against 5 the warden plaintiff must provide more than generalized allegations that the warden 6 has not done enough to control the spread” of COVID-19). Plaintiff fails to allege 7 facts showing how each Defendant specifically was responsible for such failings, or 8 allege a causal link between each Defendant and the claimed constitutional 9 violation. See, e.g., Cedillos v. Youngblood, No. 1:21-cv-00138-DAD-BAM (PC), 10 2021 U.S. Dist. LEXIS 115477, at *6–8 (E.D. Cal. June 21, 2021) (concluding that 11 prisoner failed to state Section 1983 claims due to allegations of “failings in social 12 distancing and unclean cells and showers” during COVID-19 pandemic, where 13 plaintiff failed to allege causal link between defendants and violations); Stephen v. 14 Tilestone, No. 2:20-cv-1841 KJN P, 2021 U.S. Dist. LEXIS 16584, at *15–16 (E.D. 15 Cal. Jan. 28, 2021) (concluding that plaintiff failed to allege Eighth Amendment 16 violation for prison transfer that purportedly put him at extreme risk of contracting 17 COVID-19 because he did not allege facts showing how any particular defendant 18 violated his rights). Indeed, the SAC frequently clumps “Defendants” together, 19 without detailing any specific action of each Defendant. (See generally SAC.) 20 Furthermore, the SAC includes generalized allegations regarding unnamed 21 individuals, including that: (1) correctional officers refused to wear masks (SAC 6); 22 (2) unnamed “medical staff” told Plaintiff that it was best for every inmate to test 23 positive so COVID-19 among inmates could be resolved for up to 90 days (id. at 7); 24 and (3) COVID-19 was intentionally inflicted upon the inmate population (id.). 25 These general allegations, however, are not tied to any named Defendant. See 26 Cedillos, 2021 U.S. Dist. LEXIS 115477, at *5–6 (“Plaintiff attributes all COVID 27 issues to the ‘administration,’ or the medical chief or officers or nurses, but does not 28 state what each person did or did not do which violated his constitutional rights. 10 1 Plaintiff must name each person he believes violated his constitutional rights.”). 2 Furthermore, the allegation that COVID-19 was intentionally inflicted upon inmates 3 is too speculative to state a claim for relief. See Twombly, 550 U.S. at 555 4 (requiring sufficient factual allegations that “raise a right to relief above the 5 speculative level”). 6 The SAC also alleges that Defendants failed to supervise their subordinates 7 to help reduce the risk of Plaintiff being harmed by the spread of COVID-19. (SAC 8 8.) However, liability under Section 1983 cannot be established solely on a theory 9 of respondeat superior based on the unconstitutional conduct of subordinates. See 10 Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the 11 unconstitutional conduct of their subordinates under a theory of respondeat 12 superior.”); Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978) (finding no 13 vicarious liability for municipalities under Section 1983). “The inquiry into 14 causation must be individualized and focus on the duties and responsibilities of 15 each individual defendant whose acts or omissions are alleged to have caused a 16 constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1998). 17 The requisite causal connection can be established when a person (1) “does an 18 affirmative act, participates in another’s affirmative acts, or omits to perform an act 19 which he is legally required to do that causes the deprivation”; or (2) “set[s] in 20 motion a series of acts by others which the actor knows or reasonably should know 21 would cause others to inflict the constitutional injury.” Lacey v. Maricopa County, 22 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (quoting Johnson v. Duffy, 588 F.2d 23 740, 743–44 (9th Cir. 1978)). “Even if a supervisory official is not directly 24 involved in the allegedly unconstitutional conduct, ‘[a] supervisor can be liable in 25 his individual capacity for his own culpable action or inaction in the training, 26 supervision, or control of his subordinates; for his acquiescence in the constitutional 27 deprivation; or for conduct that showed a reckless or callous indifference to the 28 /// 11 1 rights of others.’” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (alteration 2 in original) (quoting Starr, 652 F.3d at 1208). 3 Here, the SAC does not contain any specific factual details regarding 4 Defendants Garcia, Sandavol, and Urbina and their actions in relation to their 5 subordinates. With respect to Defendant Gastelo, the SAC alleges that Defendant 6 Gastelo ordered all programs to stop, ordered all staff and inmates to wear a mask, 7 implemented a policy of six-feet social distancing and living in the dorms, and 8 ordered correctional counselors to minimize the inmate population in dorms by 9 releasing inmates with “one year or less.” (SAC 6–7.) The SAC also alleges that 10 disciplinary action records show that twelve CMC employees received verbal 11 counseling for violating COVID-19 protocols. (Id. at 6, 29.) The SAC does not 12 allege any Defendant’s direct participation in a constitutional violation, 13 acquiescence in the constitutional deprivation, or a reckless or callous indifference 14 to the rights of others. See Keates, 883 F.3d at 1243. Indeed, the factual allegations 15 in the SAC support the opposite inference. Thus, the SAC does not state a claim for 16 supervisory liability against any Defendant. 17 The Court is not discounting Plaintiff’s concerns regarding—and his 18 contraction of—COVID-19. However, the SAC does not contain sufficient 19 allegations to state an Eighth Amendment claim against any of the named 20 Defendants. The Court previously advised Plaintiff of the shortcomings of this 21 claim. (See generaly Order Dismiss. Compl.; Order Dismiss. FAC.) If Plaintiff 22 files an amended complaint with this claim, he must correct these deficiencies or 23 risk its dismissal. 24 25 26 2. Classification and Release to Ankle Monitoring Program Plaintiff alleges that his mother spoke with Defendant Gastelo and asked if 27 Plaintiff could be released to an ankle monitoring program. (SAC 7.) Plaintiff also 28 alleges that he spoke with Defendant Garcia and asked to be released to an ankle 12 1 monitoring program, and that Defendant Garcia failed to take Plaintiff to 2 classification. (Id. at 3, 7.) Plaintiff submitted a 602 complaint asking to go 3 through the accelerated release program to be transferred to transitional housing or 4 to an ankle monitoring program. (Id. at 40.) 5 These allegation fail to state an Eighth Amendment claim because prisoners 6 have no constitutional right to a particular classification status. Hernandez v. 7 Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). Prisoners have no liberty interest in 8 their classification status or eligibility for rehabilitative programs. See Moody v. 9 Daggett, 429 U.S. 78, 88 n.9 (1976). “Because the mere act of classification ‘does 10 not amount to an infliction of pain,’ it ‘is not condemned by the Eighth 11 Amendment.’” Myron v. Terhune, 476 F.3d 716, 719 (9th Cir. 2007) (quoting 12 Hoptowit v. Ray, 682 F.2d 1237, 1251 (9th Cir. 1982)). 13 Furthermore, to the extent Plaintiff seeks accelerated release to an ankle 14 monitoring program, he cannot do so through a Section 1983 civil rights lawsuit. 15 “[W]hen a state prisoner is challenging the very fact or duration of his physical 16 imprisonment, and the relief he seeks is a determination that he is entitled to 17 immediate release or a speedier release from that imprisonment, his sole federal 18 remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 19 (1973). 20 For these reasons, Plaintiff fails to state an Eighth Amendment cruel and 21 unusual punishments claim related to his classification and accelerated release to an 22 ankle monitoring program. If Plaintiff files an amended complaint with these 23 claims, they will be subject to dismissal. 24 25 26 V. CONCLUSION For the reasons stated above, the Court DISMISSES the SAC WITH 27 LEAVE TO AMEND. Plaintiff may have another opportunity to amend his 28 complaint in light of his pro se prisoner status. Plaintiff is ORDERED to, no later 13 1 than August 9, 2021, either: (1) file a Third Amended Complaint (“TAC”), or 2 (2) advise the Court that Plaintiff no longer intends to pursue this lawsuit. 3 The TAC must cure the pleading defects discussed above and shall be 4 complete in itself without reference to the FAC. See L.R. 15-2 (“Every amended 5 pleading filed as a matter of right or allowed by order of the Court shall be 6 complete including exhibits. The amended pleading shall not refer to the prior, 7 superseding pleading.”). This means that Plaintiff must allege and plead any viable 8 claims in the TAC again. Plaintiff shall not include new defendants or new 9 allegations that are not reasonably related to the claims asserted in the SAC. 10 In any amended complaint, Plaintiff should confine his allegations to those 11 operative facts supporting each of his claims. Plaintiff is advised that pursuant to 12 Rule 8, all that is required is a “short and plain statement of the claim showing that 13 the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the 14 standard civil rights complaint form when filing any amended complaint, a 15 copy of which is attached. In any amended complaint, Plaintiff should identify the 16 nature of each separate legal claim and make clear what specific factual allegations 17 support each of his separate claims. Plaintiff strongly is encouraged to keep his 18 statements concise and to omit irrelevant details. It is not necessary for Plaintiff to 19 cite case law, include legal argument, or attach exhibits at this stage of the 20 litigation. Plaintiff is advised to omit any claims for which he lacks a sufficient 21 factual basis. 22 The Court cautions Plaintiff that failure to timely file a TAC will result 23 in a recommendation that this action be dismissed for failure to prosecute 24 and/or failure to comply with court orders pursuant to Federal Rule of Civil 25 Procedure 41(b). 26 Plaintiff is not required to file an amended complaint, especially since a 27 complaint dismissed for failure to state a claim without leave to amend may count 28 /// 14 1 as a “strike” for purposes of the in forma pauperis statute, 28 U.S.C. § 1915(g).3 2 Instead, Plaintiff voluntarily may dismiss this action pursuant to Federal Rule of 3 Civil Procedure 41(a) using the attached Notice of Voluntary Dismissal form. 4 Plaintiff is advised that the undersigned Magistrate Judge’s determination 5 herein that the allegations in the SAC are insufficient to state a particular claim 6 should not be seen as dispositive of the claim. Accordingly, although the 7 undersigned Magistrate Judge believes Plaintiff has failed to plead sufficient factual 8 matter in the pleading, accepted as true, to state a claim for relief that is plausible on 9 its face, Plaintiff is not required to omit any claim or Defendant in order to pursue 10 this action. However, if Plaintiff decides to pursue a claim in an amended 11 complaint that the undersigned Magistrate Judge previously found to be 12 insufficient, then, pursuant to 28 U.S.C. § 636, the undersigned Magistrate Judge 13 ultimately may submit to the assigned District Judge a recommendation that such 14 claim may be dismissed with prejudice for failure to state a claim, subject to 15 Plaintiff’s right at that time to file objections. See Fed. R. Civ. P. 72(b); C.D. Cal. 16 L.R. 72-3. 17 18 IT IS SO ORDERED. DATED: July 9, 2021 MARIA A. AUDERO UNITED STATES MAGISTRATE JUDGE 19 20 21 Attachments 22 Form Civil Rights Complaint (CV-66) 23 Form Notice of Dismissal 24 25 26 27 28 3 Inmates who have accumulated three of more “strikes” are not permitted to bring a civil lawsuit or appeal a judgment in a civil action in forma pauperis—that is, without prepayment of the filing fee—unless the inmate is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Instead, inmates with three or more “strikes” generally must pay their full filing fee upfront in order to file a civil lawsuit or appeal a civil judgment. 15
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