(PC) Estrada v. California Correctional Institution et al, No. 1:2018cv00599 - Document 9 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissing Certain Claims and Defendants from Action re 8 , and Directing Clerk of the Court to Randomly Assign this Action to a District Court Judge, signed by Magistrate Judge Stanley A. Boone on 2/11/19. This case has been assigned to District Judge Anthony W. Ishii and Magistrate Judge Stanley A. Boone. The new case no. is: 1:18-cv-0599-AWI-SAB. Referred to Judge Ishii. Objections to F&R due within thirty days. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 NICHOLAS ESTRADA, Plaintiff, 10 11 12 Case No. 1:18-cv-00599-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS FROM ACTION AND DIRECTING CLERK OF THE COURT TO RANDOMLY ASSIGN THIS ACTION TO A DISTRICT COURT JUDGE v. CALIFORNIA CORRECTIONAL INSTITUTION, et al., 13 Defendants. 14 (ECF No. 8) 15 OBJECTIONS DUE WITHIN THIRTY DAYS 16 17 Plaintiff Nicholas Estrada is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. On September 28, 2018, Plaintiff’s complaint was screened 19 and he was ordered to either notify the Court that he wished to proceed on the claim found to be 20 cognizable or file a first amended complaint. (ECF No. 7.) Currently before the Court is 21 Plaintiff’s first amended complaint, filed on October 29, 2018. (ECF No. 8.) 22 I. 23 SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by individuals who are proceeding in 25 forma pauperis. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam); 28 U.S.C. § 26 1915(e)(2). The Court must dismiss a complaint or portion thereof if the prisoner has raised 27 claims that are legally “frivolous or malicious,” that “fails to state a claim on which relief may be 28 granted,” or that “seeks monetary relief against a defendant who is immune from such relief.” 28 1 1 U.S.C. § 1915(e)(2)(B). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each 7 named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 6768 677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010). 9 Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings 10 liberally construed and to have any doubt resolved in their favor, but the pleading standard is 11 now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to 12 survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual 13 detail to allow the Court to reasonably infer that each named defendant is liable for the 14 misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 15 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 16 and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the 17 plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 18 II. 19 COMPLAINT ALLEGATIONS 20 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of 21 the sua sponte screening requirement under 28 U.S.C. § 1915. 22 Plaintiff is in the custody of the California Department of Corrections and Rehabilitation 23 (“CDCR”) and is currently housed at Sierra Conservation Center. The events at issue occurred 24 while Plaintiff was housed at the California Correctional Institution (“CCI”). Plaintiff names R. 25 Bounville, a social worker, Paul Thornberg, a supervising psychiatrist, and William Joe Sullivan, 26 warden of CCI, as defendants. All defendants are sued in their individual capacities. 27 Plaintiff alleges that on August 28, 2016, he was transferred to CCI in Tehachapi, 28 California, in the mental health program. Plaintiff has severe mental disorders, including audio 2 1 and visual hallucinations, bipolar disorder, depression, schizophrenia and has suffered abuse 2 under the CDCR mental health program. 3 Plaintiff was seen, treated, and diagnosed by an unlicensed psychologist; a social worker 4 named R. Bounville, who referred to herself as a licensed psychologist. She had access to 5 Plaintiff’s mental health file without his permission. Defendant Bounville instructed and advised 6 Plaintiff it would be best for him to stop taking his mental health medication due to their long7 term side effects which is beyond her cope of experience and profession. Defendant Bounville 8 does not have the authority to give patient advice or consultation in regards to psychiatric 9 medication nor their side effects. Plaintiff contends that had he known that Defendant Bounville 10 was not a psychologist he would not have disclosed his personal information to her. 11 Several times between August 2016 to June 2017, Plaintiff requested to see the social 12 worker, displaying symptoms of mental disorders. These included hearing voices, audio and 13 visual hallucinations, anxiety, weight gain, depression, anger issues, mood swings, arguing and 14 fighting, over eating, lack of sleep, and crying with thoughts of suicide. Plaintiff alleges that his 15 symptoms were consistent with schizophrenic disorder, bipolar disorder, and depression. 16 Plaintiff explained his symptoms in his requests and his need for medication and a psychiatrist. 17 The social worker told Plaintiff that she would call him into her office every week to see how he 18 was doing, but she never did. After several months of no responses or follow-ups, Plaintiff’s 19 symptoms became too overwhelming to handle. He requested to see the social worker by filing a 20 mental health medical request form, and she referred him to a psychiatrist. 21 Plaintiff had a tele-medicine video conference with the psychiatrist and an assistance 22 nurse was present who took Plaintiff’s vitals and remained present during the session. During 23 the session, Plaintiff tried to express his symptoms to the doctor, but did not feel comfortable 24 because the nurse kept laughing and giggling at Plaintiff’s symptoms. Believing that he was 25 entitled to confidentiality of his symptoms, Plaintiff cut off the conversation and left the room. 26 Soon thereafter, the social work called Plaintiff for a meeting, and he was still under the 27 impression that she was a psychologist. Plaintiff told her about the conference and his concerns, 28 and requested to see a psychiatrist in person. She gave Plaintiff a copy of who is entitled to see 3 1 his medical file and that all communication was to be done through TelePsychic, including 2 getting medication. She told him that there was no other option as CCI did not have an onsite 3 psychiatrist. 4 Plaintiff went on for months without mental health care, until CCI brought in a licensed 5 psychologist, Dr. Rosen. This was after Plaintiff filed an administrative complaint that went two 6 levels and up to Sacramento. The response to Plaintiff’s complaint made him aware that 7 Defendant Bounville was a social worker, not a licensed psychologist. 8 Plaintiff’s second level 602 was answered by Defendant Thornburg, who had the 9 authority to assist in arranging a psychiatrist consultation for Plaintiff. Defendant Thornburg 10 conspired to condone the fact that Plaintiff and other inmates were being denied care and 11 treatment from a licensed psychologist, in violation of Title 15. 12 Plaintiff alleges that it was Warden Sullivan’s overall decision to employ social workers 13 in place of licensed psychologists due to cost efficiency, and he gave access to patent mental 14 health files to the social workers. It was Warden Sullivan’s responsibility to ensure and oversee 15 that there would be a licensed psychologist and psychiatrist on facility grounds available to 16 inmates that participate in the mental health program. Warden Sullivan also implemented and 17 permitted the mental health department to use TelePsychic without full knowledge of the 18 psychiatrist’s ability to fully observe and diagnose the patient in regards to their symptoms and 19 medication side effects. 20 Plaintiff asserts claims for deliberate indifference to serious mental illness in violation of 21 the Eighth Amendment, and for the violation of due process under the Fourteenth Amendment. 22 Plaintiff seeks damages, and seeks to restrict CDCR from employing social workers in the place 23 of psychologists. 24 III. 25 DISCUSSION 26 A. Section 1983 27 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 28 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 4 1 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 2 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To prevail on his claim that the defendants 3 violated Plaintiff’s constitutional or federal rights, Plaintiff is required to show that each named 4 defendant acted under color of state law and deprived him of rights secured by the Constitution. 5 Long, 442 F.3d at 1185. Because there is no respondeat superior liability under section 1983, 6 each defendant is only liable for his own misconduct. Iqbal, 556 U.S. at 677. Therefore, in order 7 to prevail on this claim, Plaintiff must demonstrate that each defendant personally participated in 8 the deprivation of his rights. Jones, 297 F.3d at 934. 9 10 B. Due Process Plaintiff alleges that his due process rights under the Fourteenth Amendment were 11 violated by disclosing his personal information to medical and mental health personal without his 12 consent. There is no “right of privacy” expressly guaranteed by the Constitution, but “the 13 Supreme Court has recognized that ‘zones of privacy’ may be created by specific constitutional 14 guarantees, thereby imposing limits upon governmental power.” Grummett v. Rushen, 779 F.2d 15 491, 493 (9th Cir. 1985). Courts have held that there are some privacy rights that are within 16 those fundamental rights that are protected by the Due Process Clause of the Fourteenth 17 Amendment. Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 847 (1992). The 18 Supreme Court has recognized that there are two kinds of privacy interests: 1) an individual’s 19 interest in avoiding disclosure of personal matters; and 2) an individual’s interest in making 20 certain kinds of important decisions. Whalen v. Roe, 429 U.S. 589, 590 (1977). 21 “In two cases decided more than 30 years ago, [the Supreme Court] referred broadly to a 22 constitutional privacy ‘interest in avoiding disclosure of personal matters.’ ” Nat’l Aeronautics 23 & Space Admin. v. Nelson (“Nelson”), 562 U.S. 134, 138 (2011) (quoting Whalen, 429 U.S. at 24 599–600; Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977)). “In [Roe v. 25 Wade, 410 U.S. 113 (1973)], the Supreme Court pointed out that the personal rights found in this 26 guarantee of personal privacy must be limited to those which are “fundamental” or “implicit in 27 the concept of ordered liberty” as described in Palko v. Connecticut, 302 U.S. 319, 325 (1937).” 28 Paul v. Davis, 424 U.S. 693, 713 (1976). “The activities detailed as being within this definition 5 1 were . . . matters relating to marriage, procreation, contraception, family relationships, and child 2 rearing and education. In these areas it has been held that there are limitations on the States’ 3 power to substantively regulate conduct.” Paul, 424 U.S. at 713. 4 Most recently in Nelson, the Supreme Court addressed the claim that requiring contract 5 employees to respond to questions regarding treatment and counseling for illegal drug use during 6 a background check violated their right to privacy. Nelson, 562 U.S. at 138. The Court assumed 7 without deciding that there was a constitutional right to informational privacy. Id. at 138. The 8 Court held that there was no constitutional violation because the government had an interest in 9 managing its internal operations and the questions were reasonable in light of the interests at 10 stake and because the information was shielded from disclosure by the Privacy Act. Id. at 159. 11 It is this right to informational privacy that is at issue here. 12 “In the years since Whalen, courts have struggled to define the limits of a constitutional 13 right to privacy, especially with respect to disclosure of personal matters.” Arakawa v. Sakata, 14 133 F.Supp.2d 1223, 1226 (D. Haw. 2001); see In re Crawford, 194 F.3d 954, 958 (9th Cir. 15 1999) (the precise bounds of the constitutional zone of privacy is uncertain); Kallstrom v. City of 16 Columbus, 136 F.3d 1055, 1060 (6th Cir. 1998) (boundaries of the right to privacy have not been 17 clearly delineated); Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996) (“the exact boundaries of 18 this right are, to say the least, unclear”); James v. City of Douglas, Ga., 941 F.2d 1539, 1543 19 (11th Cir. 1991) (“constitutional right to privacy has vague contours and has been in a state of 20 flux in recent years”). 21 Courts outside this circuit “have held that where the government releases information, it 22 must be of a highly personal nature before constitutional privacy rights will attach[;]” Arakawa, 23 133 F.Supp.2d at 1228, and the Ninth Circuit has noted that not every exposure raises privacy 24 concerns that would be protected under the United States Constitution, People of State of Cal. v. 25 F.C.C. (“F.C.C.”), 75 F.3d 1350, 1361 (9th Cir. 1996). Although the Supreme Court has never 26 so held, the Ninth Circuit has recognized a constitutionally protected privacy interest in avoiding 27 disclosure of personal matters which encompasses medical records. Norman-Bloodsaw v. 28 Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998); Seaton v. Mayberg, 610 F.3d 6 1 530, 537 (9th Cir. 2010). 2 Here, Plaintiff has not alleged that there has been a public disclosure of his private 3 information, but that Defendant Bounville had access to his personal information and treatment 4 records because she was his treating provider and that a nurse sat in on his telemedicine video 5 conference. In Seaton, the Ninth Circuit held “that prisoners do not have a constitutionally 6 protected expectation of privacy in prison treatment records when the state has a legitimate 7 penological interest in access to them.” Seaton, 610 F.3d at 534. The Court recognized that the 8 penological interest in the prison’s access to an inmate’s medical information is substantial. Id. 9 at 534-35. As Plaintiff’s allegations demonstrate that the release of his medical records and 10 private information was for the purpose of providing him with treatment for his mental health 11 issues, Plaintiff cannot state a claim for a violation of his right to informational privacy. 12 Plaintiff also alleges that the denial of treatment by a psychiatrist and proper medication 13 violated his right to due process. The gravamen of Plaintiff’s complaint is inadequate mental 14 health treatment. “[W]here a particular amendment provides an explicit textual source of 15 constitutional protection against a particular sort of government behavior, that Amendment, not 16 the more generalized notion of substantive due process, must be the guide for analyzing a 17 plaintiff’s claims.” Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal 18 quotations, and brackets omitted) overruled on other grounds by Unitherm Food Systems, Inc. V. 19 Swift –Eckrick, Inc., 546 U.S. 394 (2006); County of Sacramento v. Lewis, 523 U.S. 833, 842 20 (1998). 21 In this case, the Eighth Amendment “provides [the] explicit textual source of 22 constitutional protection . . . .” Patel, 103 F.3d at 874. Therefore, the Eighth Amendment rather 23 than the Due Process Clause of the Fourteenth Amendment governs Plaintiff’s claims. 24 C. Deliberate Indifference 25 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 26 punishment unless the mistreatment rises to the level of “deliberate indifference to serious 27 medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 28 429 U.S. 97, 104 (1976)). The “deliberate indifference” standard involves an objective and a 7 1 subjective prong. First, the alleged deprivation must be, in objective terms, “sufficiently 2 serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 3 298 (1991)). Second, the prison official must act with a “sufficiently culpable state of mind,” 4 which entails more than mere negligence, but less than conduct undertaken for the very purpose 5 of causing harm. Farmer, 511 U.S. at 834–35. 6 The two-part test for deliberate indifference requires the plaintiff to show (1) “a ‘serious 7 medical need’ by demonstrating that failure to treat a prisoner’s condition could result in further 8 significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s 9 response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. A prison official does 10 not act in a deliberately indifferent manner unless the official “knows of and disregards an 11 excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. “Deliberate indifference is a 12 high legal standard,” Simmons, 609 F.3d at 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 13 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to respond 14 to a prisoner’s pain or possible medical need” and the indifference caused harm, Jett, 439 F.3d at 15 1096. Indifference “may appear when prison officials deny, delay or intentionally interfere with 16 medical treatment, or it may be shown by the way in which prison physicians provide medical 17 care.” Id. (citation omitted). 18 In applying this standard, the Ninth Circuit has held that before it can be said that a 19 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 20 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 21 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing 22 Estelle, 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing 23 or treating a medical condition does not state a valid claim of medical mistreatment under the 24 Eighth Amendment. Medical malpractice does not become a constitutional violation merely 25 because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 26 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate 27 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 28 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not 8 1 support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 2 1. Defendant Bounville 3 Plaintiff alleges that Defendant Bounville, a social worker, told him to stop taking his 4 mental health medication, which was beyond the scope of her profession. He requested to see 5 her several times between August 2016 and June 2017, displaying symptoms of severe mental 6 health disorders, but she failed to see him. Liberally construed, Plaintiff has stated a cognizable 7 claim against Defendant Bounville for inadequate mental health care in violation of the Eighth 8 Amendment. 9 10 2. Defendant Thornburg Plaintiff alleges that Defendant Thornburg was deliberately indifferent by denying his 11 grievance at the second level and not providing Plaintiff with a one on one meeting with a 12 psychiatrist. However, the prison grievance procedure does not confer any substantive rights 13 upon inmates and actions in reviewing appeals cannot serve as a basis for liability under section 14 1983. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Buckley v. Barlow, 997 F.2d 494, 15 495 (8th Cir. 1993). 16 The argument that anyone who knows about a violation of the Constitution, and fails to 17 cure it, has violated the Constitution himself is not correct. “Only persons who cause or 18 participate in the violations are responsible. Ruling against a prisoner on an administrative 19 complaint does not cause or contribute to the violation. Greeno v. Daley, 414 F.3d 645, 656-57 20 (7th Cir.2005) accord George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007); see Owens v. 21 Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (“Prison grievance procedures are not mandated by 22 the First Amendment and do not by their very existence create liberty interests protected by the 23 Due Process Clause, and so the alleged mishandling of [an inmate’s] grievances by persons who 24 otherwise did not cause or participate in the underlying conduct states no claim.”). To state a 25 claim, Plaintiff must demonstrate that Defendant Thornburg knew of an excessive risk to 26 Plaintiff’s health or safety and failed to adequately respond. 27 Here, Plaintiff alleges that Defendant Thornburg did not provide a one on one 28 consultation with a psychiatrist, but Defendant Thornburg was aware that Plaintiff was receiving 9 1 treatment by Defendant Bounville and had a telemedicine conference with a psychiatrist. 2 Although Plaintiff alleges that the telemedicine conference is inadequate to meet his mental 3 health needs, this is a difference of opinion between Plaintiff and his treating providers that is 4 insufficient to state a cognizable claim. Sanchez, 891 F.2d at 242. Plaintiff has failed to state a 5 cognizable claim against Defendant Thornburg. 6 3. Defendant Sullivan 7 “[S]upervisory liability exists even without overt personal participation in the offensive 8 act if supervisory officials implement a policy so deficient that the policy itself is a repudiation 9 of constitutional rights and is the moving force of a constitutional violation.” Crowley v. 10 Bannister, 734 F.3d 967, 977 (9th Cir. 2013). Here, Plaintiff alleges that Defendant Sullivan 11 made the decision to employ social workers in place of licensed psychologists to save money. 12 At the pleading stage, this is sufficient to state a cognizable claim. 13 D. Injunctive Relief 14 Plaintiff brings this action seeking an injunction preventing the CDCR from employing 15 social workers in place of psychologists.1 Federal courts are courts of limited jurisdiction and in 16 considering a request for preliminary injunctive relief, the Court is bound by the requirement that 17 as a preliminary matter, it have before it an actual case or controversy. City of Los Angeles v. 18 Lyons, 461 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of 19 Church and State, Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or 20 controversy before it, it has no power to hear the matter in question. Id. Requests for 21 prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation 22 23 24 25 26 27 28 1 Additionally, this claim would appear be covered by the ongoing and settled class actions relating to the treatment of prisoners in California prisons: Coleman v. Brown, case no. 2:90–CV–520–KJM–DB (E.D. Cal); Hecker v. California Department of Corrections and Rehabilitation, case no. 2:05–CV–2441–KJM–DAD (E.D. Cal.); Mitchell v. Cate, case no. 2:08–CV–01196–TLL–EFB (E.D. Cal.); and Plata v. Schwarzenegger, case no. C–01–1351 TEH (N.D. Cal., filed Apr. 5, 2001). To address Plaintiff’s request, the Court judicially notices these cases and their dockets. See Fed. R. Evid. 201(c)(1). These class actions have brought about various settlements, injunctions, and remedial plans that have resulted from the litigation of the aforementioned class actions. Where a plaintiff is seeking injunctive relief on claims are subject to a consent decree, such claims must be pursued through the consent decree or class counsel. Frost v. Symington, 197 F.3d 348, 358-59 (9th Cir. 1999); Crayton v. Terhune, No. C 984386 CRB(PR), 2002 WL 31093590, *4 (N.D. Cal. Sept. 17, 2002). Although plaintiff may be able to pursue damages claims under section 1983, Hiser v. Franklin, 94 F.3d 1287, 1291 (9th Cir. 1996), Plaintiff cannot receive injunctive relief related to his mental health care allegations in this action. 10 1 Reform Act, which requires that the Court find the “relief [sought] is narrowly drawn, extends no 2 further than necessary to correct the violation of the Federal right, and is the least intrusive 3 means necessary to correct the violation of the Federal right.” 4 Plaintiff’s allegations in this action do not confer jurisdiction over the CDCR in this action. 5 Therefore, Plaintiff cannot receive an order directing the CDCR to change policy in this action. 6 Further, when an inmate seeks injunctive or declaratory relief concerning the prison where he is 7 incarcerated, his claims for such relief become moot when he is no longer subjected to those 8 conditions. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 9 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). Plaintiff is no longer 10 incarcerated at CCI and his claims that he was subjected to an unconstitutional policy implemented 11 by the warden are therefore moot. 12 Finally, Plaintiff cannot seek relief in this action on behalf of all inmates incarcerated by 13 CDCR. Standing derives “[f]rom Article III’s limitation of the judicial power to resolving ‘Cases’ 14 and ‘Controversies,’ and the separation-of-powers principles underlying that limitation[.]” 15 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014); see also 16 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (“the case-or-controversy limitation is 17 crucial in maintaining the ‘tripartite allocation of power’ set forth in the Constitution”); Lujan v. 18 Defs. of Wildlife, 504 U.S. 555, 560 (1992) (“standing is an essential and unchanging part of the 19 case-or-controversy requirement of Article III”). To have standing to bring suit, a “plaintiff must 20 have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is 21 fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable 22 judicial decision.” Lexmark Int’l, Inc., 572 U.S. at 125; accord DaimlerChrysler Corp., 547 U.S. 23 at 342. The party asserting federal jurisdiction bears the burden of establishing standing under 24 Article III. DaimlerChrysler Corp., 547 U.S. at 342; Lujan, 504 U.S. at 561. A prudential 25 principle of standing is that normally a plaintiff must assert his own legal rights rather than those 26 of third parties. Oregon v. Legal Services Corp., 552 F.3d 965, 971 (9th Cir. 2009); Fleck and 27 Associates, Inc. v. Phoenix, 471 F.3d 1100, 1104 (9th Cir. 2006.) Plaintiff does not have standing 28 to assert the constitutional rights of other inmates. Mabe v. San Bernardino Cty., Dep’t of Pub. 11 1 Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001). 2 For these reasons, Plaintiff cannot obtain injunctive relief in this action and the claim for 3 injunctive relief should be dismissed without leave to amend. 4 E. Leave to Amend 5 Amendment of the complaint is governed by Rule 15 of the Federal Rules of Civil 6 Procedure which provides that leave to amend shall be freely given when justice so requires. 7 Fed. R. Civ. P. 15(a)(2). In determining whether to grant leave to amend, the court considers 8 five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of 9 amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v. 10 Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). 11 In this instance, Plaintiff has previously been provided with the legal standards that apply 12 to his claims and has failed to correct the deficiencies identified in the second amended 13 complaint Having considered the original and amended complaint, the allegations are 14 substantially similar and Plaintiff cannot cure the deficiencies by further amendment. The Court 15 finds that granting further leave to amend would be futile. Hartmann v. California Dep’t of Corr. 16 & Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013); Cato v. United States, 70 F.3d 1103, 1106 (9th 17 Cir.1995). 18 G. Intradistrict Assignment 19 In his amended complaint, Plaintiff contends that this action should be assigned to the 20 Bakersfield Division of the Eastern District of California because the events in the complaint 21 occurred at a facility located in Kern County. Intradistrict transfers are governed by 28 U.S.C. § 22 1404(b) which provides “[u]pon motion, consent or stipulation of all parties, any action, suit or 23 proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the 24 discretion of the court, from the division in which pending to any other division in the same 25 district.” Intradistrict transfers under section 1404(b) are discretionary and are subject to the 26 same analysis as transfers under section 1404(a) which governs interdistrict transfers. Stribling 27 v. Picazo, No. 15-CV-03337-YGR, 2018 WL 620146, at *1 (N.D. Cal. Jan. 30, 2018); Welenco, 28 Inc. v. Corbell, No. CIV. S-13-0287 KJM, 2014 WL 130526, at *4 (E.D. Cal. Jan. 14, 2014); but 12 1 the factors are judged by a less rigorous standard, Cheval Farm LLC v. Chalon, No. CV-102 01327-PHX-ROS, 2011 WL 13047301, at *2 (D. Ariz. Jan. 19, 2011). 3 Venue in this action is proper in this division as a substantial part of the events or 4 omissions giving rise to the claim occurred in this judicial district. 28 U.S.C. § 1391(b)(2). In 5 deciding whether to grant an intradistrict transfer here the court considers the correct forum to 6 best serve the interests of judicial economy and the convenience to the parties. Injen Tech. Co. 7 v. Advanced Engine Mgmt., Inc., 270 F.Supp.2d 1189, 1193 (S.D. Cal. 2003). The private 8 factors to be considered in determining whether to transfer venue under section 1404(a) include 9 the “relative ease of access to sources of proof; availability of compulsory process for attendance 10 of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of 11 premises, if view would be appropriate to the action; and all other practical problems that make 12 trial of a case easy, expeditious and inexpensive.” Decker Coal Co., 805 F.2d at 843. As 13 relevant here, the public factors to consider include “the administrative difficulties flowing from 14 court congestion; the ‘local interest in having localized controversies decided at home’; . . . and 15 the unfairness of burdening citizens in an unrelated forum with jury duty.” Id. 16 Plaintiff states that this action should be transferred to Bakersfield because the events at 17 issue occurred in Kern County. Defendants most likely reside in the Tehachapi area, which is in 18 Kern County. The Fresno Division is approximately 100 miles further than the Bakersfield 19 Division from Defendants’ residence. However, Defendants will be represented by the Office of 20 the Attorney General which is located in Sacramento. Plaintiff is currently housed at Sierra 21 Conservation Center in Jamestown, California which is in the Fresno Division of the Eastern 22 District. The actual presence of the parties in this action would likely only be required for a 23 settlement conference or trail. Therefore, the Court does not find that the convenience of the 24 parties would weight in favor of transferring this action to Bakersfield. 25 Further, this Court has now screened Plaintiff’s complaint and amended complaint and is 26 familiar with the claims raised in this action. Transferring this action to the Bakersfield Division 27 would require duplication of judicial effort. As this Court has expended its efforts in this action, 28 it is in the interest of judicial economy to maintain the action in this division. 13 Also, whether this action is assigned to the Fresno Division of the Eastern District or the 1 2 Bakersfield Division of the Eastern District, the trial itself will likely take place in Fresno. 3 Regardless of whether this action is tried in Fresno or Bakersfield, both courts pull from the 4 same jury pool so there is no issue with burdening citizens in an unrelated forum with jury duty. 5 Further, the caseload of all judges in the Eastern District are among the heaviest in the nation. 6 Since both this court and the requested court are congested, the issue of courtroom congestion 7 does not weight in favor of transferring the action to the Bakersfield Division. Here, the Court finds that the factors weigh in favor of maintaining this action in the 8 9 Fresno Division and transfer would not further the interests of justice. The Court finds that this 10 action should remain in the Fresno Division of the Eastern District of California. 11 IV. 12 CONCLUSION AND RECOMMENDATION For the reasons discussed, the Court finds that Plaintiff has stated a cognizable claim 13 14 against Defendants Bounville and Sullivan for deliberate indifference to serious mental health 15 needs in violation of the Eighth Amendment.2 However, Plaintiff has failed to state any other 16 cognizable claims for relief. Plaintiff has previously been granted leave to file an amended 17 complaint and provided with the legal standards that apply to his claims. The Court finds that 18 granting further leave to amend would be futile. 19 Based on the foregoing, it is HEREBY RECOMMENDED that: 20 1. Defendant Thornburg be dismissed from this action for Plaintiff’s failure to state a cognizable claim against him; 21 2. 22 Plaintiff’s due process claim and request for injunctive relief be dismissed without leave to amend; 23 3. 24 This action proceed against Defendants Bounville and Sullivan for deliberate indifference in violation of the Eighth Amendment; 25 26 27 28 2 The Court notes that the prior screening order found that Plaintiff had stated a claim against Defendant Bounville for violation of the Fourteenth Amendment. (ECF No. 7 at 10). However, review of the order itself shows that this was an error and Plaintiff had stated an Eighth Amendment claim. (Id. at 7-8.) 14 4. 1 Plaintiff’s request for an intradistrict transfer to the Bakersfield Division of the Eastern District of California be denied; and 2 5. 3 The Clerk of the Court is directed to randomly assign this action to a district court judge. 4 This findings and recommendations is submitted to the district judge assigned to this 5 6 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 7 days of service of this recommendation, Plaintiff may file written objections to this findings and 8 recommendations with the court and serve a copy on Plaintiff. Such a document should be 9 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district 10 judge will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 11 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may 12 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 13 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IT IS SO ORDERED. 16 Dated: February 11, 2019 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 15

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