(PC) Juan M.Montenegro v. Sullivan

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — UNITED STATES DISTRICT COURT — 7 — EASTERN DISTRICT OF CALIFORNIA — 8 — — 9 — JUAN M. MONTENEGRO, Case No. 1:20-cv-00847-EPG (PC) — 10 — Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS ACTION v. BE DISMISSED, WITH PREJUDICE, FOR 12 FAILURE TO STATE A CLAIM, WARDEN J. SULLIVAN, FAILURE TO PROSECUTE, AND 13 FAILURE TO COMPLY WITH A COURT Defendant. ORDER — 14 — (ECF NOS. 1 & 7) — 15 — OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE — 18 — 19 I. BACKGROUND 20 Juan M. Montenegro (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983 . 22 Plaintiff filed the complaint commencing this action on June 15, 2020. (ECF No. 1). It 23 appears that Plaintiff originally brought his allegations in a habeas case, but filed this § 1983 24 case after the undersigned issued findings and recommendations, recommending that Plaintiff’s 25 habeas case be dismissed because it should have been brought as a § 1983 case. (E.D. Cal. 26 Case No. 1:20-cv-00684, ECF No. 5). 27 On June 24, 2020, the Court screened Plaintiff’s complaint and found that it failed to 28 state a claim. (ECF No. 7). The Court gave Plaintiff thirty days from the date of service of the 1 order to file an amended complaint or to notify the Court that he wants to stand on his 2 complaint. (Id. at 9). The Court warned Plaintiff that “[f]ailure to comply with this order may 3 result in the dismissal of this action.” (Id.). 4 The thirty-day period has expired, and Plaintiff has not filed an amended complaint or 5 otherwise responded to the Court’s order. Accordingly, for the reasons described below, the 6 Court will recommend that Plaintiff’s case be dismissed for failure to state a claim. The Court 7 will also recommend that Plaintiff’s case be dismissed for failure to comply with a court order 8 and failure to prosecute. 9 II. SCREENING REQUIREMENT 10 The Court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 12 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 13 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 14 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 15 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 6), the Court may 16 also screen the complaint under 28 U.S.C. § 1915 . “Notwithstanding any filing fee, or any 17 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 18 determines that the action or appeal fails to state a claim upon which relief may be granted.” — 19 — 28 U.S.C. § 1915 (e)(2)(B)(ii). 20 A complaint is required to contain “a short and plain statement of the claim showing 21 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 22 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 26 (quoting Twombly, 550 U.S. at 570 ). The mere possibility of misconduct falls short of meeting 27 this plausibility standard. Id. at 679 . While a plaintiff’s allegations are taken as true, courts 28 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 1 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 2 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678 . 3 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 4 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 5 pro se complaints should continue to be liberally construed after Iqbal). 6 III. SUMMARY OF PLAINTIFF’S COMPLAINT 7 Plaintiff alleges the following in his complaint: 8 Plaintiff is unable to get proper healthcare for his disabilities. Plaintiff has raised 9 several challengeable issues on his 602 that the California Department of Corrections and 10 Rehabilitation (“CDCR”) refuses to address. Plaintiff suffers from several illnesses such as 11 hearing loss, inability to sit or stand for long periods of time, difficulty seeing, post-traumatic 12 stress disorder (“PTSD”), depression, and paranoia. 13 Plaintiff’s vision is deteriorating due to lack of care. His hearing is getting worse 14 because the CDCR will not refer him to a hearing specialist. His depression, PTSD, and 15 paranoia are getting worse due to the environment he has to live in. 16 Plaintiff requests monetary compensation and to be transferred to a medical facility. 17 Plaintiff also seeks to be released so that he can get better healthcare for his disabilities. 18 Plaintiff attached approximately ninety pages of exhibits to his complaint. 19 IV. ANALYSIS OF PLAINTIFF’S CLAIM 20 A. Section 1983 21 The Civil Rights Act under which this action was filed provides: 22 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or 23 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 — 24 — immunities secured by the Constitution and laws, shall be liable to the party 25 injured in an action at law, suit in equity, or other proper proceeding for redress.... — 26 — 42 U.S.C. § 1983 . “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely — 27 — provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, — 28 — — 1 — 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137 , 144 n.3 (1979)); see 2 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 3 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730 , 734 (9th Cir. 4 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 5 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 6 under color of state law, and (2) the defendant deprived him of rights secured by the 7 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 8 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 9 “under color of state law”). A person deprives another of a constitutional right, “within the 10 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or 11 omits to perform an act which he is legally required to do that causes the deprivation of which 12 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175 , 1183 (9th 13 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 14 causal connection may be established when an official sets in motion a ‘series of acts by others 15 which the actor knows or reasonably should know would cause others to inflict’ constitutional 16 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743 ). This standard of 17 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 18 Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 19 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 20 A plaintiff must demonstrate that each named defendant personally participated in the 21 deprivation of his rights. Iqbal, 556 U.S. at 676-77 . In other words, there must be an actual 22 connection or link between the actions of the defendants and the deprivation alleged to have 23 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 24 658, 691, 695 (1978). 25 Supervisory personnel are not liable under section 1983 for the actions of their 26 employees under a theory of respondeat superior and, therefore, when a named defendant 27 holds a supervisory position, the causal link between him and the claimed constitutional 28 violation must be specifically alleged. Iqbal, 556 U.S. at 676-77 ; Fayle v. Stapley, 607 F.2d 1 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a 2 claim for relief under section 1983 based on a theory of supervisory liability, Plaintiff must 3 allege some facts that would support a claim that the supervisory defendants either: personally 4 participated in the alleged deprivation of constitutional rights; knew of the violations and failed 5 to act to prevent them; or promulgated or “implement[ed] a policy so deficient that the policy 6 itself is a repudiation of constitutional rights and is the moving force of the constitutional 7 violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (citations and internal quotation 8 marks omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 9 For instance, a supervisor may be liable for his or her “own culpable action or inaction 10 in the training, supervision, or control of his subordinates,” “his [or her] acquiescence in the 11 constitutional deprivations of which the complaint is made,” or “conduct that showed a reckless 12 or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630 , 13 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 14 Requests for prospective relief are limited by 18 U.S.C. § 3626 (a)(1)(A) of the Prison 15 Litigation Reform Act, which requires that the Court find that the “relief [sought] is narrowly 16 drawn, extends no further than necessary to correct the violation of the Federal Right, and is the 17 least intrusive means necessary to correct the violation of the Federal Right.” As to requests 18 for a release order, the Prison Litigation Reform Act provides: 19 (3) Prisoner release order.--(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless-- — 20 — (i) a court has previously entered an order for less intrusive relief that 21 has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and — 22 — (ii) the defendant has had a reasonable amount of time to comply with 23 the previous court orders. 24 (B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in 25 accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met. — 26 — (C) A party seeking a prisoner release order in Federal court shall file — 27 — with any request for such relief, a request for a three-judge court and 28 materials sufficient to demonstrate that the requirements of subparagraph (A) have been met. — 1 — (D) If the requirements under subparagraph (A) have been met, a Federal 2 judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered — 3 — may sua sponte request the convening of a three-judge court to determine 4 whether a prisoner release order should be entered. 5 (E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that-- — 6 — (i) crowding is the primary cause of the violation of a Federal right; 7 and (ii) no other relief will remedy the violation of the Federal right. — 8 — (F) Any State or local official including a legislator or unit of — 9 — government whose jurisdiction or function includes the appropriation of 10 funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or 11 not admitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continuation in effect of such relief — 12 — and to seek termination of such relief, and shall have the right to 13 intervene in any proceeding relating to such relief. — 14 — 18 U.S.C. § 3626 (a)(3). 15 B. Deliberate Indifference to Serious Medical Needs in Violation of the Eighth 16 Amendment 17 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 18 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 19 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires 20 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 21 prisoner’s condition could result in further significant injury or the unnecessary and wanton 22 infliction of pain,’” and (2) that “the defendant’s response to the need was deliberately 23 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation 24 and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. 25 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 26 Deliberate indifference is established only where the defendant subjectively “knows of 27 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 28 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 1 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 2 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” 3 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 4 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 5 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825 , 6 836-37 & n.5 (1994) (citations omitted). 7 A difference of opinion between an inmate and prison medical personnel—or between 8 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 9 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 10 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 11 physician has been negligent in diagnosing or treating a medical condition does not state a valid 12 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 13 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 14 106. To establish a difference of opinion rising to the level of deliberate indifference, a 15 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 16 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 17 The only defendant named in Plaintiff’s complaint is Warden Sullivan. However, 18 Plaintiff’s complaint makes no allegations regarding defendant Sullivan’s conduct. 19 Additionally, Plaintiff has not made any allegations that defendant Sullivan promulgated a 20 policy that led to the alleged lack of medical care, or that defendant Sullivan knew that Plaintiff 21 was receiving inadequate medical care but failed to correct the problem. Accordingly, Plaintiff 22 has failed to state a claim against defendant Sullivan. 23 As to Plaintiff’s request for a release order, Plaintiff has failed to comply with the 24 procedures laid out in 18 U.S.C. § 3626 (a)(3). 25 The Court previously provided Plaintiff with relevant legal standards and leave to 26 amend his complaint to cure the deficiencies identified above. (ECF No. 7). However, the 27 deadline for Plaintiff to amend his complaint has passed and Plaintiff has not filed an amended 28 complaint. 1 Accordingly, the Court will recommend that this action be dismissed for failure to state 2 a claim. 3 V. FAILURE TO PROSECUTE AND COMPLY 4 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 5 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 6 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 7 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 8 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 9 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 10 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” — 11 — Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 12 this factor weighs in favor of dismissal. 13 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 14 determine whether the delay in a particular case interferes with docket management and the 15 public interest…. It is incumbent upon the Court to manage its docket without being subject to 16 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Plaintiff has failed to respond 17 to the Court’s screening order. This failure to respond is delaying the case and interfering with 18 docket management. Therefore, the second factor weighs in favor of dismissal. 19 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 20 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991 ). However, 21 “delay inherently increases the risk that witnesses’ memories will fade and evidence will 22 become stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to 23 prosecute this case that is causing delay. Therefore, the third factor weighs in favor of 24 dismissal. 25 As for the availability of lesser sanctions, at this stage in the proceedings there is little 26 available to the Court which would constitute a satisfactory lesser sanction while protecting the 27 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s 28 incarceration and in forma pauperis status, monetary sanctions are of little use. And, given the EOIN □□□ ENS ORME POI Oe POY VI 1 || stage of these proceedings, the preclusion of evidence or witnesses is not available. 2 Finally, because public policy favors disposition on the merits, this factor weighs 3 || against dismissal. Id. 4 After weighing the factors, the Court finds that dismissal with prejudice is appropriate. 5 || VI. RECOMMENDATIONS AND ORDER 6 Based on the foregoing, the Court HEREBY RECOMMENDS that: 7 1. This action be dismissed, with prejudice, for failure to state a claim, failure to 8 prosecute, and failure to comply with a court order; and 9 2. The Clerk of Court be directed to close this case. 10 These findings and recommendations will be submitted to the United States district 11 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1). Within 12 || fourteen (14) days after being served with these findings and recommendations, Plaintiff may 13 || file written objections with the Court. The document should be captioned “Objections to 14 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 |] objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391 , 1394 17 |} (9th Cir. 1991)). 18 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 19 || judge to this case. — 20 — IT IS SO ORDERED. 22 |! Dated: _ August 14, 2020 [Jee ey —— 23 UNITED STATES MAGISTRATE JUDGE — 24 — — 25 — — 26 — — 27 — — 28 —