Powell v. Basto

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 LLOYD POWELL, Case No.: 3:19-cv-00913-GPC-AHG CDCR #K-92698, — 12 — ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO vs. STATE A CLAIM PURSUANT — 14 — TO 28 U.S.C. § 1915 (e)(2) ADELITA BASTO, Registered Dietician; 15 AND 28 U.S.C. § 1915A(b) S. ROBERTS, Chief Medical Executive; 16 M. GLYNN, Chief Medical Officer; S. GATES, Chief Health Care — 17 — Correspondence & Appeals, 18 Defendants. — 19 — 20 I. Procedural History 21 On May 9, 2019, Plaintiff Lloyd Powell, while incarcerated at Richard J. Donovan 22 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, filed this 23 civil rights action pursuant to 42 U.S.C. § 1983 . See Compl., ECF No. 1. 24 In his original Complaint, Plaintiff claimed Defendant Basto, a RJD dietician, 25 discontinued an hepatic prescribed two years before at another prison. Plaintiff alleged 26 Basto, together with Defendants Roberts, Glynn, and Gates, who reviewed and rejected the 27 inmate appeal he filed challenging Basto’s decision, all violated his Eighth Amendment 28 right to adequate medical care. Id. at 2-3 . 1 On July 3, 2019, the Court granted Plaintiff leave to proceed in forma pauperis 2 (“IFP”), but dismissed his Complaint sua sponte failing to state a claim upon which relief 3 could be granted pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(b). See ECF No. 6. The 4 Court provided Plaintiff notice of his specific pleading deficiencies and granted him leave 5 to file an amended pleading that corrected them. Id. at 6-11 . 6 On August 12, 2019, Plaintiff filed an Amended Complaint (“FAC”) (ECF No. 8). 7 His FAC named the same Defendants, and it re-alleged the same Eighth Amendment 8 inadequate medical care claims as to all of them. Id. at 4-7 . Plaintiff also claimed 9 Defendants’ actions violated his right to procedural due process in violation of the Fifth 10 and Fourteenth Amendments. Id. at 5-6 . 11 On October 24, 2019, the Court conducted a second initial screening, found the 12 allegations in Plaintiff’s FAC still failed to state any claim upon which § 1983 relief could 13 be granted, and dismissed his case in its entirety pursuant to 28 U.S.C. § 1915 (e)(2) and 14 § 1915A(b). See ECF No. 9. Because Plaintiff had already been provided with a short and 15 plain statement of his pleading deficiencies and had failed to correct them, the Court denied 16 further leave to amend as futile, and directed the Clerk to enter a final judgment of 17 dismissal. Id. at 9‒10. 18 On November 14, 2019, Plaintiff filed a request to re-open the case, see ECF No. 19 12, which the Court construed as a motion to vacate the October 24, 2019 judgment 20 pursuant to Fed. R. Civ. P. 60(b). See ECF No. 13. Plaintiff acknowledged that while he 21 had failed to adequately plead his claims for relief, he had since sought legal assistance 22 from a jailhouse lawyer, and therefore requested another chance to amend. Id. at 2. Based 23 on these allegations, and Court exercised its discretion and in the interest of justice, vacated 24 its October 24, 2019 judgment and granted Plaintiff leave to file a Second Amended 25 Complaint (“SAC”). Id. at 3. On January 8, 2020, Plaintiff filed his SAC, see ECF No. 18, 26 again re-alleging his Eighth and Fourteenth Amendment claims against all the original 27 Defendants, id. at 1‒2, 5‒6, 8, and newly alleging supplemental state law violations. Id. at 28 3‒4, 7, 9. 1 II. Screening of FAC pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b) 2 A. Standard of Review 3 As Plaintiff now knows, because he is a prisoner and is proceeding IFP, his SAC 4 requires a pre-answer screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). Under 5 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion 6 of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 7 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 8 U.S.C. § 1915 (e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 9 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 10 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 11 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 12 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 13 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either in 14 law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). 15 “The standard for determining whether a plaintiff has failed to state a claim upon 16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 18 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 19 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 20 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 21 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 22 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — 23 — 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 25 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 26 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 27 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 28 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 1 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 2 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 3 B. Plaintiff’s SAC 4 In his SAC, and in a declaration and exhibits he attaches and incorporates in support, 5 Plaintiff continues to claim he is allergic to fish, peanuts, and eggs, and to have first been 6 prescribed a hepatic diet at Salinas Valley State Prison in 2016, because he was 7 “diagnose[d] as having liver kidney disease.” See Compl. at 3, 12, 14, 15. Plaintiff claims 8 that when he was transferred to Lancaster State Prison, the attending physician there 9 “continue[d] [his] hepatic diet.” Id. at 12. 10 Sometime in 2018, Plaintiff was transferred to RJD. There, he was examined by the 11 “attending physician Gail Messler” and “the ordering clinical Chau, John,” who referred 12 him to Defendant Adelita Basto, a registered dietician, “to review the condition of the 13 Plaintiff[’s] health for an hepatic diet,” and “make sure it was accurate.” Id. at 3, 6, 12, 14. 14 As part of her review, Plaintiff claims Basto “cancelled [his] hepatic diet,” “refus[ed] to 15 give [him] substitute meals” in light of his food allergies, and did so without consulting the 16 “attending physician,” or gaining prior approval by Defendant M. Glynn, the Chief Medical 17 Officer. Id. at 3, 7, 14. As a result, Plaintiff claims he “had to eat food that’s not healthy,” 18 like cookies, Top Ramen soup, and potato chips which “give [him] high blood pressure.” 19 Id. at 8, 15. 20 Plaintiff claims Defendants Glynn, S. Roberts, a Chief Medical Executive, and S. 21 Gates, the Chief of Health Care Correspondence & Appeals, all failed to “correct [the] 22 wrong” when they reviewed and denied his CDCR Health Care Appeal challenging Basto’s 23 dietary assessment. Id. at 7, 8, 14 & Ex. E at 31‒35. 24 Plaintiff contends all Defendants acted with deliberate indifference in violation of 25 the Eighth Amendment because they “knew of [his] condition of being order[ed] an hepatic 26 diet for medical treatment,” and “did not respond … reasonably.” Id. at 6. He further claims 27 all Defendants denied him equal protection as guaranteed by the Fourteenth Amendment 28 and the Americans with Disabilities Act (“ADA”) by “treat[ing] him different [from] other 1 inmates” who “received substitute food item[s].” Id. at 8, 15, 17. Finally, Plaintiff contends 2 Defendants violated his right to due process, California Penal Code § 2653(a), and “15 3 CCR 3084(e)” by failing to “correct [Basto’s] wrong” via the healthcare appeal process. 4 Id. at 3‒4, 7, 9, 17, 19. He seeks an injunction preventing the denial of a hepatic diet and 5 $200,000 in both compensatory and punitive damages. Id. at 21. 6 C. 42 U.S.C. § 1983 7 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 8 privileges, or immunities secured by the Constitution and laws” of the United States. Wyatt 9 v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must allege 10 two essential elements: (1) that a right secured by the Constitution or laws of the United 11 States was violated, and (2) that the alleged violation was committed by a person acting 12 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of Los Angeles, — 13 — 442 F.3d 1178, 1185 (9th Cir. 2006). 14 D. Eighth Amendment Medical Care Claims 15 After three attempts, Plaintiff allegations involving Defendants’ refusals to prescribe 16 him a hepatic diet still fail “state a[n] [Eighth Amendment] claim to relief that is plausible 17 on its face.” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Inc., 550 U.S. at 570). 18 As the Court has previously discussed, a prisoner’s claim of inadequate medical care 19 does not constitute cruel and unusual punishment in violation of the Eighth Amendment 20 unless the mistreatment at issue rises to the level of “deliberate indifference to serious 21 medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. 22 Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference requires 23 Plaintiff to plead facts sufficient to show: (1) “a ‘serious medical need’ by demonstrating 24 that failure to treat [his] condition could result in further significant injury or the 25 ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 26 was deliberately indifferent.” Jett, 439 F.3d at 1096 . 27 “Serious medical needs can relate to ‘physical, dental and mental health.’” Edmo v. 28 Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019) (quoting Hoptowit v. Ray, 682 F.2d 1237 , 1 1253 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 2 (1995)). “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could 3 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 4 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by 5 WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (quoting Estelle, 429 6 U.S. at 104); Jett, 439 F.3d at 1096 (9th Cir. 2006); Mendiola-Martinez v. Arpaio, 836 F.3d 7 1239, 1248 (9th Cir. 2016). 8 But a prison official does not act in a deliberately indifferent manner unless she 9 “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, — 10 — 511 U.S. 825, 837 (1994). “To show deliberate indifference, the plaintiff must show that 11 the course of treatment the [official] chose was medically unacceptable under the 12 circumstances and that the [official] chose this course in conscious disregard of an 13 excessive risk to the plaintiff’s health.” Edmo, 935 F.3d at 786 (citations omitted). 14 “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 F.3d 15 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), is 16 present in cases where there was “a purposeful act or failure to respond to a prisoner’s pain 17 or possible medical need,” and where the indifference is alleged to have caused harm. Jett, — 18 — 439 F.3d at 1096 . The alleged indifference to medical needs must also be substantial; 19 inadequate treatment due to malpractice, or even gross negligence, does not amount to a 20 constitutional violation. Estelle, 429 U.S. at 106 ; Wood v. Housewright, 900 F.2d 1332 , 21 1334 (9th Cir. 1990). 22 In his SAC, Plaintiff continues to claim that he suffers from shellfish, egg, and 23 peanut butter allergies, “liver kidney disease,” and high blood pressure. See Compl. at 3, 24 5, 6.1 In his prior pleadings, Plaintiff also claimed to suffer from congestive heart failure — 25 — — 26 — 1 It is unclear whether Plaintiff has been diagnosed with liver or kidney disease or both. He does, however, 27 attach several exhibits which include reports of various other ailments. These include anxiety, chest wall pain, costochronditis, edema, emphysema/COPD, fatigue, fungus, Hep C w/o coma, hypertension, — 28 — 1 and Hepatitis C, which impacts liver function. See ECF No. 1 at 3; ECF No. 8 at 2. He 2 does not identify which particular condition served as the original basis for approval for a 3 hepatic diet, or whether a combination of ailments and/or food allergies was its source.3 4 However, the Court will continue to assume his medical needs are objectively serious. See 5 McGuckin, 974 F.2d at 1059 ; Erickson v. Pardus, 551 U.S. 89, 94 (2007) (finding pro se 6 prisoner’s allegations of having been denied previously prescribed hepatitis C medication 7 sufficient to satisfy Fed. R. Civ. P. 8(a)(2) pleading requirements); Akhtar v. Mesa, 698 8 F.3d 1202, 1213 (9th Cir. 2012) (finding prisoner with “numerous medical conditions, 9 including chronic kidney disease” had “sufficiently facts to show that he had a serious 10 medical need.”); Gibson v. Chief Med. Officer, C.D.C.R., No. 2:09-CV-00230-MSB, 2010 11 WL 2740233 , at *7 (E.D. Cal. July 9, 2010) (noting that Hepatitis C is “surely a serious 12 medical need.”); Ha v. Manasrah, 2018 WL 3203121 , at *3 (E.D. Cal. June 28, 2018) 13 (finding prisoner’s allegations of “congestive heart failure, severely enlarged heart, and 14 episodes of extreme breathing difficulties” sufficient to show a serious medical need). 15 However, Plaintiff’s SAC, like his original Complaint, and like his FAC, still fails 16 to satisfy the subjective component of an Eighth Amendment violation because it includes 17 no facts to plausibly show that any named Defendant acted with deliberate indifference to 18 his needs. See Edmo, 935 F.3d at 786 ; Jett, 439 F.3d at 1096 . Plaintiff continues to claim 19 only that he was evaluated by Basto sometime in 2018 after a visit with his attending 20 physician (Messler) and after being referred to her by “Chau, John” the “Ordering — 21 — — 22 — — 23 — — 24 — 2 “Hepatitis C is a liver infection that can lead to serious liver damage. It [i]s caused by the hepatitis C 25 virus … [which] spreads through an infected person’s blood or body fluids.” See https://www.webmd.com/hepatitis/digestive-diseases-hepatitis-c#1 (last visited April 30, 2020). — 26 — 3 “A[n] hepatic diet ‘is used to help promote and maintain nitrogen balance and to promote liver 27 regeneration while preventing exacerbation of the metabolic derangements commonly found in liver disease.’” Farley v. Raso, No. C 13-2882 SI (PR), 2014 WL 1900669 , at *1 (N.D. Cal. May 12, 2014). — 28 — 1 Clinical.” See SAC at 12, 14. Plaintiff further continues to claim he had been prescribed 2 an “hepatic diet” prior to arriving at RJD, but that Basto re-evaluated his needs after 3 transfer, determined a hepatic diet was not medically necessary and confirmed that the 4 CDCR’s “Heart Healthy Diet” was sufficient to meet his nutritional and medical needs 5 without first obtaining “approval of the attending physician John Chau nor the Chief 6 Medical Officer M. Glynn.” See SAC at 4, 14, 34. Plaintiff further claims to have filed a 7 “602” “medical appeal” challenging Basto’s nutritional assessment, see SAC at 30‒35, and 8 he concludes Defendants Roberts, Glynn and Gates acted with “deliberate indifference” 9 because they affirmed Basto’s decision by denying his appeal and failed to “correct the 10 wrong.”5 Id. at 7 , 13‒14 11 As the Court advised Plaintiff in its July 3, 2019 and October 24, 2019 Orders, to 12 sufficiently plead an Eighth Amendment claim, he provide “sufficient factual matter,” not 13 just “labels and conclusions,” Iqbal, 556 U.S. at 678 , to plausibly show Defendants’ — 14 — — 15 — — 16 — 4 Nowhere in his SAC does Plaintiff identify the date he was transferred to RJD, but he refers to a 17 “Physician’s Order” attached as Exhibit B, which includes an “Admit Date” of 6/8/18. See SAC at 3, 28. That Order identifies “Messler, Gail P&S” as Plaintiff’s PCP and “Chau, John P&S” as the “Ordering 18 Clinical,” and it notes Plaintiff’s food and medicine allergies. However, the Order makes no reference to any order for a hepatic diet and it includes no referral to a dietician. Instead, the Order appears to relate 19 only to Plaintiff’s need for “therapeutic shoes.” See SAC at 28. — 20 — 5 The Court notes that Plaintiff has attached a copy of CDCR 602 Health Care Appeal Log No. RJD HC 21 18002770, as well as Defendant Roberts, Glynn, and Gates’ responses to that appeal, as exhibits to both his original and Second Amended Complaints. See Compl. at 11-23; SAC at 30‒35. In each of his 22 pleadings, Plaintiff has referenced that appeal and pointed to its denial as the basis for all his claims. See Compl. at 20‒23; FAC at 1-7; SAC at 7‒8, 10, 14, 17, 31‒35. See also Swartz v. KPMG LLP, 476 F.3d 23 756, 793 (9th Cir. 2007) (noting that a court “may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is — 24 — unquestioned.”). Plaintff’s CDCR 602 Health Care Appeal shows both that Basto evaluated him on July 25 12, 2018, and that review of his medical records indicated he “did not meet the criteria for a[n] hepatic diet.” See ECF No. 1 at 20. CDCR 602 Health Care Appeal Log No. RJD HC 18002770 further shows 26 that Defendants Roberts, Glynn, and Gates, who reviewed Basto’s dietary assessment, affirmed her decision because Plaintiff’s PCP (primary care physician) “did not document a medical indication for a 27 prescribed diet,” and because the general population diet prescribed provided him with an adequate caloric buffer to simply “choose not to eat certain foods, either due to food sensitivity or general dislike, without — 28 — 1 “purposeful act or failure to respond to [his] pain or possible medical need,” and the “harm 2 caused by [this] indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) 3 (citing Jett, 439 F.3d at 1096 ). 4 Despite having had three opportunities to provide further factual support, nothing in 5 Plaintiff’s SAC shows either—and “[a] difference of opinion between a physician and the 6 prisoner–or between medical professionals–concerning what medical care is appropriate 7 does not amount to deliberate indifference.” Edmo, 935 F.3d at 786 (“A difference of 8 opinion between a physician and the prisoner—or between medical professionals— 9 concerning what medical care is appropriate does not amount to deliberate indifference.”) 10 (citations omitted); Wilhelm, 680 F.3d at 1122‒23. Plaintiff has been clearly advised he 11 must plead facts sufficient to “show that the course of treatment,” i.e., Basto’s dietary needs 12 assessment, “was medically unacceptable under the circumstances,” and that all the 13 Defendants chose or sanctioned this course of treatment with “conscious disregard of an 14 excessive risk to [his] health.” Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012), 15 overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) 16 (en banc) (citation and internal quotations omitted); Hamby v. Hammond, 821 1085, 1092 17 (9th Cir. 2016). He has not. 18 Therefore, the Court finds that Plaintiff’s SAC still fails to state a plausible Eighth 19 Amendment inadequate medical care claim against Defendants Basto, Roberts, Glynn, or 20 Gates, and that it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. 21 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27 ; Rhodes, 621 F.3d 22 at 1004; Rideau v. Small, 402 F. App’x 165, 166 (9th Cir. 2010) (affirming dismissal of 23 prisoner’s Eighth Amendment claim that defendants inappropriately denied him a 24 therapeutic medical diet beneficial for his heart condition “because an inmate’s 25 disagreement with his physicians or prison officials regarding the course of treatment does 26 not constitute deliberate indifference to serious medical needs.”) (citing Toguchi, 391 F.3d 27 at 1058); see also Douglas v. Martel, No. CIV S-09-3411 KJM, 2011 WL 3875646 , at *7 28 (E.D. Cal. Aug. 31, 2011) (rejecting prisoner’s claim that prison doctors endangered his 1 health by denying him a special diet, and finding his “well-informed disagreement with 2 defendants’ decision” was nevertheless insufficient to show deliberate indifference to his 3 food allergy). 4 E. Due Process Claims 5 In addition to his Eighth Amendment claims, Plaintiff also continues to contend 6 Defendants Roberts, Glynn, and Gates’s “wrongful actions” with respect to the rejection 7 of CDCR 602 Health Care Appeal Log No. RJD HC 18002770, denied his Fourteenth 8 Amendment right to due process. See SAC at 19. Plaintiff alleged the same due process 9 claims in his FAC, however, see FAC at 5‒6, and the Court’s October 24, 2019 analysis 10 and conclusions with respect to any potential due process violation remain the same. See 11 ECF No. 9 at 8‒9. 12 As Plaintiff knows, simply “‘[r]uling against a prisoner on an administrative 13 complaint does not cause or contribute to the violation.’” Ellington v. Clark, 2010 WL 14 3001427, at *2 (E.D. Cal. Jul. 29, 2010) (quoting George v. Smith, 507 F.3d 605, 609 (7th 15 Cir. 2007)). And a prison official’s allegedly improper processing of grievances or appeals, 16 without more, does not provide an independent basis for section 1983 liability. See Ramirez 17 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners do not have a “separate 18 constitutional entitlement to a specific prison grievance procedure.”) (citation omitted); 19 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated simply 20 because defendant fails properly to process grievances submitted for consideration); see 21 also Todd v. California Department of Corrections and Rehabilitation, 615 Fed. Appx. 22 415, 415 (9th Cir. 2015) (district court properly dismissed claim based on improper 23 “processing and handling of […] prison grievances,” since prisoners have no 24 “constitutional entitlement to a specific prison grievance procedure”) (citing Ramirez, 334 25 F.3d at 860) (quotation marks omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545 , 547 26 (9th Cir. 2014) (district court properly dismissed section 1983 claims against defendants 27 who “were only involved in the appeals process”) (citing Ramirez, 334 F.3d at 860 ); 28 Daniels v. Aguilera, 2018 WL 558658 , at *1 (E.D. Cal. Jan. 24, 2018), report and 1 recommendation adopted sub nom. Daniels v. Aguillera, 2018 WL 1763311 (E.D. Cal. 2 Apr. 12, 2018) (“Because there is no right to any particular grievance process, it is 3 impossible for due process to have been violated by ignoring or failing to properly process 4 prison grievances.”). 5 Plaintiff’s SAC makes no new factual allegations with respect to any violation of 6 due process related to his health care grievance or any other plausible deprivation of a 7 cognizable life, liberty or property interest. See Wilkinson v. Austin, 545 U.S. 209 , 221 8 (2005) (“The Fourteenth Amendment’s Due Process Clause protects persons against 9 deprivations of life, liberty, or property; and those who seek to invoke its procedural 10 protection must establish that one of these interests is at stake.”). Instead, he simply 11 contends Defendants Roberts, Glynn, and Gates “denied the appeal to correct a wrong of 12 the defendant Adelita Basto.” See SAC at 14. Therefore, the Court continues to find 13 Plaintiff’s Fourteenth Amendment allegations insufficient to state any plausible due 14 process claim upon which § 1983 relief may be granted. See Iqbal, 556 U.S. at 678 -79 15 (citations omitted); Valdivia v. Tampkins, 2016 WL 7378887 , at *6 (C.D. Cal. Dec. 19, 16 2016) (sua sponte dismissing claims predicated upon the alleged improper processing of 17 inmate grievances); Morgan v. Borders, 2018 WL 2213455 , at *6 (C.D. Cal. May 14, 2018) 18 (dismissing allegations that inmate appeals officials “allowed transgender discrimination 19 to continue ... unabated” when they denied plaintiff’s grievance alleging discrimination as 20 insufficient to state a viable § 1983 claim); 28 U.S.C. §§ 1915 (e)(2)(b)(ii), 1915A(b)(1); 21 Lopez, 203 F.3d at 1126-27 ; Rhodes, 621 F.3d at 1004 . 22 F. Equal Protection Claims 23 Plaintiff also claims inmates are being “treated differently from one another” in 24 violation of equal protection and the ADA.6 The “Equal Protection Clause of the Fourteenth — 25 — — 26 — 6 Plaintiff mentions the ADA, but alleges no factual support for such a claim whatsoever. See SAC at 17; 27 Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels and conclusions’” or “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’” is insufficient to show the pleader is entitled to relief, and does — 28 — 1 Amendment commands that no State shall ‘deny to any person within its jurisdiction the 2 equal protection of the laws,’ which is essentially a direction that all persons similarly 3 situated should be treated alike.” City of Cleburn v. Cleburn Living Ctr., 473 U.S. 432 , 439 4 (1985). Plaintiff does not allege any facts suggesting that he was treated differently from 5 others similarly situated based on his membership in a protected class, nor does he allege 6 a classification that implicates fundamental rights. See Lee v. City of Los Angeles, 250 F.3d 7 668, 686 (9th Cir. 2001). As a result, Plaintiff appears to be proceeding with a “class of 8 one” equal protection claim. See N. Pacifica LLC v. City of Pacifica, 526 F.3d 478 , 486 9 (9th Cir. 2008) (“When an equal protection claim is premised on unique treatment rather 10 than on a classification, the Supreme Court has described it as a ‘class of one’ claim.”). “In 11 order to claim a violation of equal protection in a class of one case, the plaintiff must 12 establish that the [defendant] intentionally, and without rational basis, treated the plaintiff 13 differently from others similarly situated.” Id.; see also Vill. of Willowbrook v. Olech, 528 14 U.S. 562 , 564 (2000) (“Equal protection rights are violated when (1) a person is a member 15 of an identifiable class; (2) that person is intentionally treated differently from others 16 similarly situated; and (3) there is no rational basis for the difference in treatment.”). 17 Plaintiff has not alleged any of the necessary elements required to support an equal 18 protection class of one claim with respect to his dietary needs. Instead, he merely posits 19 that “other inmates within RJD get substitute food items for their allergies,” points to — 20 — — 21 — While Title II of the ADA applies to state prisons and inmates, Pennsylvania Dep’t of Corr. v. Yeskey, — 22 — 524 U.S. 206 , 210–12 (1998), “[t]o state a claim of disability discrimination under Title II of the ADA, the plaintiff must allege four elements: (1) the plaintiff is an individual with a disability, (2) the plaintiff 23 is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities, (3) the plaintiff was either excluded from participation in or denied the benefits of the public — 24 — entity’s services, programs, or activities, or was otherwise discriminated against by the public entity, and 25 (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); 42 U.S.C. § 12132 ; Kula v. Malani, 539 F. Supp. 26 2d 1263, 1267 (D. Haw. 2008). Plaintiff’s SAC satisfies none of these pleading requirements. Moreover, medical treatment, the lack of treatment, an alleged misdiagnosis, or allegations of inadequate care alone 27 do not support an ADA claim. See e.g., Marlor v. Madison County Idaho, 50 Fed. App’x 872, 874 (9th Cir. 2002); Haynes v. Chau, No. 3:19-CV-02257-JAH-KSC, 2020 WL 1245353 , at *6 (S.D. Cal. Mar. 16, — 28 — 1 Defendant Basto’s “refus[al] to order a substitute food item” for him, and concludes that 2 he is “being treated different than other inmates in the prison.” See SAC at 8, 15. 3 Plaintiff does not allege, however, that Basto “intentionally treated [him] differently 4 from others similarly situated.” See Vill. of Willowbrook, 528 U.S. at 564. He attaches what 5 appears to be a dietary meal card for another inmate named Patterson which includes a note 6 that “food items may be substituted,” and concludes “an act of discrimination” from this. 7 See SAC at 29. But nowhere does Plaintiff offer any “factual content” that would allow the 8 Court to “draw the reasonable inference” that he and inmate Patterson share the same 9 underlying medical or dietary needs; nor does he allege that any difference in treatment 10 between him or any other inmate similarly situated was intentional. See Iqbal, 556 U.S. at 11 568 (“[U]nadorned, the-defendant-unlawfully-harmed-me accusation[s]” are insufficient 12 to show entitlement to relief). As pleaded, his conclusory allegations are clearly 13 insufficient as a matter of law. See, e.g., George v. Uribe, No. 11-CV-70 JLS (RBB), 2012 14 WL 993243 , at *6 (S.D. Cal. Mar. 23, 2012) (concluding that allegations that defendants 15 “intentionally treated Plaintiff differently from others” who participated in a prison riot 16 was insufficient without supporting facts). What is more, Plaintiff fails to allege any facts 17 from which the Court could conclude that Defendants’ actions were irrational or lacking in 18 any legitimate basis. See Barbarin v. Dep’t of Corrs. & Rehab., No. 3:19-cv-1714-JAH19 RBB, 2019 WL 5454435 , at *4 (S.D. Cal. Oct. 24, 2019) (plaintiff “fail[ed] to allege any 20 facts from which the Court could conclude that [Defendants’] policy . . . lacks a rational or 21 penological interest.”). 22 G. State Law Violations 23 Finally, Plaintiff newly alleges Defendants violated various state laws including 24 California Penal Code § 2653(a) and California Code Regs., tit. 15 § 3084(e). See SAC 3‒ 25 4, 7, 9, 13, 16‒17. With respect to the former, however, criminal statutes do not create a 26 private cause of action or a basis for civil liability. See Ellis v. City of San Diego, 176 F.3d 27 1183, 1189 (9th Cir. 1999) (concluding that the District Court properly dismissed claims 28 premised on violations of the California Penal Code because they did not create enforceable 1 individual rights). Plaintiff cannot sue for damages under California Penal Code § 2653. 2 See Lopez v. Cate, No. 1:10-cv-01773-AWI-SKO PC, 2013 WL 239097 , at p. *12 (E.D. 3 Cal. Jan. 22, 2013) (inmate cannot maintain claims for violation of Penal Code Sections 4 2650 through 2653 as there is no private right of action therein); Johnson v. Reddy, No. 5 2:12-cv-1843 KJN P, 2013 WL 3070624 , at p. *2 (E.D. Cal. June 17, 2013) (finding that 6 civil enforcement was unavailable to the plaintiff based on alleged violations of Penal Code 7 Sections 2650 and 2652). 8 Plaintiff also cites to 15 Cal. Code Regs., tit. 15 § 3084(e), governing inmate appeals. 9 But, there is no private right of action available to him for a violation of Title 15 either. 10 See, e.g., Parra v. Hernandez, No. 08cv0191–H (CAB), 2009 WL 3818376 , at *8 (S.D. 11 Cal. Nov. 13, 2009); Davis v. Kissinger, No. CIV S– 04–0878 GEB DAD P, 2009 WL 12 256574, at *12 n. 4 (E.D. Cal. Feb. 3, 2009), adopted in full, 2009 WL 647350 (Mar. 10, 13 2009). The failure of prison officials to follow state regulations does not by itself violate 14 any constitutional principles. See Galen v. City of Los Angeles, 477 F.3d 652 , 662 (9th Cir. 15 2007) (“Section 1983 requires [plaintiff] to demonstrate a violation of federal law, not state 16 law.”). 17 Accordingly, Plaintiff’s newly alleged state law causes of action also fail to state a 18 claim upon which § 1983 relief may be granted, and must be dismissed sua sponte pursuant 19 to 28 U.S.C. § 1915 (e)(2) and § 1915A. Because Plaintiff could not allege additional facts 20 that would make these state law claims viable as a matter of law, the Court finds 21 amendment on these bases would be futile. See Baker v. Villalobos, No. 2:18-CV-230122 PAG JS, 2018 WL 6016177 , at *3 (C.D. Cal. Mar. 30, 2018) (dismissing prisoner’s 23 criminal and regulatory procedure claims sua sponte and without leave to amend). 24 III. Leave to Amend 25 Plaintiff has already been provided three chances to his plead a viable § 1983 claim, 26 has been granted leave to amend even after judgment had been entered against him, and 27 has nevertheless failed sufficiently allege facts to support any plausible claim for relief as 28 to any named Defendant. Therefore, the Court sees no reason to grant leave to amend yet 1 |j/again. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) 2 || (‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’’’) (quoting 3 || Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc 4 || Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been 5 || granted leave to amend and has subsequently failed to add the requisite particularity to its 6 ||claims, [t]he district court’s discretion to deny leave to amend is particularly broad.” 7 || G@nternal quotation marks omitted) (second alteration in original)). 8 ||IV. Conclusion and Order 9 Accordingly, the Court: 10 1) DISMISSES this civil action sua sponte without further leave to amend for 11 |/failure to state a claim upon which § 1983 relief can be pursuant to 28 U.S.C. 12 1915(e)(2)(B) and § 1915A(b); 13 2) | CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 14 U.S.C. § 1915 (a)(3), and 15 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and to 16 close the file. 17 IT IS SO ORDERED. 18 || Dated: May 4, 2020 19 Hon. athe Cae 20 United States District Judge — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 15 —