(PC) Spencer v. Virga et al, No. 2:2016cv00886 - Document 32 (E.D. Cal. 2018)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 05/02/18 DENYING 28 , 29 plaintiff's motions for extension of time. Plaintiff's amended complaint 30 is DISMISSED with leave to amend within 30 days of the date this order is served. Also, RECOMMENDING that plaintiff's motion for preliminary injunction 22 be denied. MOTION for Preliminary Injunction 22 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(PC) Spencer v. Virga et al Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THURMAN LEROY SPENCER, 12 Plaintiff, 13 14 No. 2:16-cv-886-JAM-EFB P v. TIMOTHY VIRGA, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. His initial complaint (ECF No. 1) was dismissed pursuant to 28 U.S.C. § 1915A 19 (ECF No. 14). After numerous extensions of time to do so (ECF Nos. 18, 21, 25 & 27), he has 20 filed an amended complaint (ECF No. 30), which the court must now screen pursuant to section 21 1915A.1 Plaintiff has also filed a motion for a preliminary injunction (ECF No. 22). As 22 explained below, the amended complaint must be dismissed with leave to amend and the motion 23 for a preliminary injunction must be denied. 24 25 26 27 28 I. Screening Order Congress mandates that district courts engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental 1 Plaintiff also requested extensions of time (ECF Nos. 28, 29), which the court denies as moot in light of this screening order. 1 Dockets.Justia.com 1 entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the 2 complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to 3 state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who 4 is immune from such relief.” Id. § 1915A(b). 5 Plaintiff alleges that on or around June 18, 2012, defendants Brizendine, Haghbin, 6 Peterson, and Crisostomo wrongfully diagnosed him with schizoaffective disorder, delusional 7 disorder, antisocial personality disorder, bipolar disorder, psychotic disorder, and polysubstance 8 dependence. ECF No. 30 at 9, 20. As a result, he was placed in the Enhanced Outpatient 9 Program (“EOP”) for mentally ill inmates. Id. Plaintiff’s disagreement with the diagnosis made 10 by his mental health professionals is insufficient to establish deliberate indifference. See Sanchez 11 v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (“A difference of opinion does not amount to a 12 deliberate indifference to [the inmate’s] medical needs.”). Moreover, “an incorrect diagnosis is 13 not deliberate indifference.” Smith v. Asghar, 114 F. App’x 222, 224 (7th Cir. 2004) (citing 14 Steele v. Choi, 82 F.3d 175, 178 (7th Cir. 1996)). 15 Next, plaintiff claims that being housed in the EOP with mentally ill inmates put his life in 16 danger, but fails to specify how his life was endangered or who was aware of the danger. ECF 17 No. 30 at 9-10. He claims further that the above-named defendants, along with defendants Virga, 18 Meier, Cannady, and Cantrell, kept him in an unsanitary cell “flooded” with human waste, and 19 that his placement in the EOP prevented him from challenging his criminal conviction in court. 20 Id. at 11, 22. “[S]ubjection of a prisoner to lack of sanitation that is severe or prolonged can 21 constitute an infliction of pain within the meaning of the Eighth Amendment.” Anderson v. Cnty. 22 of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995). Plaintiff must, however, specify which defendant 23 confined him to the unsanitary cell, how each defendant became aware of the unsanitary 24 conditions and what they did in response, and how long he was so confined. As for any access to 25 the courts claim, plaintiff must allege how a particular defendant interfered with his effort to 26 pursue a non-frivolous claim regarding his conviction. See Lewis v. Casey, 518 U.S. 343, 354-55 27 (1996). 28 ///// 2 1 In addition, plaintiff claims that defendant Virga’s “officers” deprived him of a wheelchair 2 even though he is mobility impaired and in chronic pain. ECF No. 30 at 20. Plaintiff does not 3 raise any discernable allegation that Virga had any direct involvement in his medical care. And 4 “[t]here is no respondeat superior liability under section 1983.” Taylor v List, 880 F.2d 1040, 5 1045 (9th Cir. 1989). 6 Plaintiff also claims that his administrative appeals were denied or ignored. ECF No. 30 7 at 10, 16. However, inmates have no standalone rights with respect to the administrative 8 grievance process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Williams v. Cate, No. 9 1:09-cv-00468-0WW-YNP PC, 2009 U.S. Dist. LEXIS 107920, 2009 WL 3789597, at *6 (E.D. 10 Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the vindication of his 11 administrative claims.”). 12 Finally, the complaint names Does 1-20 as defendants. ECF No. 30. at 6. Unknown 13 persons cannot be served with process until they are identified by their real names and the court 14 will not investigate the names and identities of unnamed defendants. If plaintiff later learns the 15 identity of a “doe” defendant, he may seek to amend his complaint to add that individual as a 16 defendant. See Brass v. County of Los Angeles, 328 F.3d 1192, 1197-98 (9th Cir. 2003). 17 II. 18 19 Leave to Amend For these reasons, plaintiff’s amended complaint is dismissed with leave to amend. If plaintiff chooses to file a third amended complaint it should observe the following: 20 Any amended complaint must identify as a defendant only persons who personally 21 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 22 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 23 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 24 legally required to do that causes the alleged deprivation). The complaint should also describe, 25 in sufficient detail, how each defendant personally violated or participated in the violation of his 26 rights. The court will not infer the existence of allegations that have not been explicitly set forth 27 in the amended complaint. 28 ///// 3 1 2 The amended complaint must contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 3 4 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 5 Any amended complaint must be written or typed so that it so that it is complete in itself 6 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 7 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 8 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 9 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 10 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 11 1967)). 12 Finally, the court notes that any amended complaint should be as concise as possible in 13 fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 14 procedural or factual background which has no bearing on his legal claims. 15 16 III. Motion for a Preliminary Injunction Plaintiff seeks a preliminary injunction to enjoin defendants from destroying his legal 17 property. ECF No. 22. However, he fails to meet the minimum threshold for merit to satisfy the 18 standard for a preliminary injunction.2 At an irreducible minimum, he must demonstrate that 19 there is at least a fair chance of success on the merits. Johnson v. California State Board of 20 Accountancy, 72 F.3d 1427, 1430, 1433 (9th Cir. 1995); Sports Form, Inc. v. United Press 21 International, 686 F.2d 750, 753 (9th Cir. 1982). As discussed above, his complaint must be 22 dismissed for failure to state a claim and at present he has shown no likelihood of success on the 23 merits of any claim. Accordingly, plaintiff’s motion preliminary injunction must be denied. 24 25 26 27 28 2 A preliminary injunction represents the exercise of a far reaching power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir.1964). The moving party must prove that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.2009) (citing Winter v. Natural Res. Def. Council, Inc., ––– U.S. –– ––, 129 S.Ct. 365, 375–76, 172 L.Ed.2d 249 (2008)). 4 1 IV. Conclusion 2 Accordingly, IT IS HEREBY ORDERED that plaintiff’s amended complaint (ECF No. 3 30) is dismissed with leave to amend within 30 days of the date this order is served. Failure to 4 comply with this order may result in dismissal of this action. IT IS FURTHER ORDERED that 5 plaintiff’s requests for extensions of time (ECF Nos. 28 & 29) are denied as moot. 6 7 Further, it is RECOMMENDED that plaintiff’s motion for a preliminary injunction (ECF No. 22) be denied. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 objections shall be served and filed within fourteen days after service of the objections. The 14 parties are advised that failure to file objections within the specified time may waive the right to 15 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 16 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: May 2, 2018. 18 19 20 21 22 23 24 25 26 27 28 5
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