Arrant v. Zambrano

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MELVIN R. ARRANT, Case No.: 3:20-cv-1220-JLS-AGS CDCR No. K98602, [12] ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILING TO STATE A CLAIM [14] PURSUANT TO 28 U.S.C. § 1915 (e)(2) M. ZAMBRANO, HAYES, 15 & 28 U.S.C. § 1915A(b) DELLINGER, 16 Defendants. (ECF No. 9) [18] 19 Plaintiff Melvin Ray Arrant, currently incarcerated at Richard J. Donovan State 20 Prison located in San Diego, California, and proceeding pro se, filed a civil rights complaint 21 pursuant to 42 U.S.C. § 1983 on June 29, 2020. (See “Compl.,” ECF No. 1.) Plaintiff also 22 filed a Motion to Proceed in Forma Pauperis (“IFP”) (ECF No. 2), and a Motion for 23 Temporary Restraining Order (“TRO”) (ECF No. 3). 24 In a September 9, 2020 Order, the Court granted Plaintiff’s IFP motion pursuant to [25] 28 U.S.C. § 1915 (a), denied Plaintiff’s Motion for TRO, and dismissed the Complaint 26 without prejudice and with leave to amend for failing to state a claim pursuant to 28 U.S.C. 27 § 1915(e)(2)(B) and § 1915A(b). (ECF No. 6.) Plaintiff was given sixty (60) days from 28 /// 1 the date the Order was filed to submit an Amended Complaint. (Id.) On October 14, 2020, 2 Plaintiff filed a First Amended Complaint (ECF No. 9). 3 I. Screening Pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b) 4 A. Legal Standard 5 As with his first Complaint, Plaintiff’s Amended Complaint requires a pre-answer 6 screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). Under these statutes, the 7 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 8 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 9 immune. See Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th Cir. 2000) (en banc) (discussing [10] 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 11 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 12 targets of frivolous or malicious suits need not bear the expense of responding.’” 13 Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (citation omitted). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 17 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 18 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 20 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 21 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 22 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 25 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 26 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 27 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 28 / / / 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 Factual Allegations 4 Plaintiff repeats the same allegations against Defendant Zambrano in his Amended 5 Complaint as he made in his original Complaint. He states that he has “continuously tried 6 to get a cell move within bld. #14” but that Defendant Zambrano has “[given] him the 7 runaround while honoring other inmates bed moves who are known to be a part of the 8 ‘transgender’ group, and or inmates who are affiliated with the ‘transgender’ group.” 9 Compl. at 2, 4; Am. Compl. at 3. Plaintiff contends this establishes Zambrano 10 discriminated against him. After Plaintiff filed a grievance against Zambrano, Zambrano 11 allegedly told Plaintiff that “a grievance ain’t shit,” and that “legal [beagles] ain’t got 12 nothing coming.” Compl. at 4; Am. Compl. at 3. According to Plaintiff, Zambrano made 13 a false rules violation report against Plaintiff, accusing him of disrespecting staff by calling 14 Zambrano “Mark,” which means “punk ass bitch.” Compl. at 4; Am. Compl. at 3. 15 Plaintiff also makes the same allegations against Defendants Dellinger and Hayes in 16 his Amended Complaint as he did in his original Complaint. He claims that on December 17 28, 2019, he saw Dellinger cough on his hands, rub his nose, and then pass out medication 18 to inmates without changing his gloves. Compl. at 2, 5; Am. Compl. at 4. When it was 19 Plaintiff’s turn to receive medication from Dellinger, Plaintiff asked him to dispense his 20 medication directly from the medication dispenser into a cup so that Dellinger would not 21 touch it with his hands, which Dellinger refused to do. Compl. at 5; Am. Compl. at 4. 22 When Plaintiff asked for a correct spelling of Dellinger’s name in order to submit a 23 grievance, Dellinger became upset and threatened to activate the building alarm “in 24 retaliation.” Compl. at 5; Am. Compl. at 4. According to Plaintiff, Hayes threatened to 25 retaliate against him for filing a grievance. Compl. at 5; Am. Compl at 2, 4. 26 C. 42 U.S.C. § 1983 27 “Section 1983 creates a private right of action against individuals who, acting under 28 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, [1] 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 2 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 3 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations 4 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 5 right secured by the Constitution and laws of the United States, and (2) that the deprivation 6 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., [7] 698 F.3d 1128, 1138 (9th Cir. 2012). 8 D. Discussion 9 As in his original Complaint, Plaintiff alleges that Zambrano “discriminated against 10 [him] and falsified state documents in retaliation to Plaintiff filing a grievance.” Am. 11 Compl. at 2. He also alleges that Defendants Hayes and Dellinger “put Plaintiff’s health 12 and safety in jeopardy and threatened Plaintiff with retaliation because he was going to 13 grieve defendants’ conduct.” Id. 14 Plaintiff fails to state a claim against any defendant for the same reasons stated in 15 this Court’s September 9, 2020 dismissal Order. To state a valid First Amendment 16 retaliation claim, Plaintiff must assert: (1) a state actor took some adverse action against 17 him, (2) the adverse action was taken because he engaged in some protected conduct, (3) 18 the state actor’s acts “would chill or silence a person of ordinary firmness from future First 19 Amendment activities,” and (4) the adverse action “did not reasonably advance a legitimate 20 correctional goal.” Rhodes v. Robinson, 408 F.3d 559 , 567–68 (9th Cir. 2005) (internal 21 quotation marks and emphasis omitted). Plaintiff’s factual allegations fall short of 22 plausibly stating a retaliation claim against Zambrano because he has not alleged any facts 23 establishing the action “would chill or silence a person of ordinary firmness from future 24 First Amendment Activities,” Rhodes, 408 F.3d at 567–68, or that he suffered some other 25 non-minimal harm as a result of the retaliatory action. See Brodheim, 584 F.3d at 1269. 26 In fact, Plaintiff’s Exhibit A-2, which is a copy of Plaintiff’s disciplinary hearing results, 27 shows Plaintiff was found “guilty but reduced to counseling chrono.” Am. Compl. at 18. 28 /// 1 Plaintiff also fails to state a discrimination claim against Zambrano. As the Court 2 informed Plaintiff in its September 9, 2020 dismissal Order, to establish an equal protection 3 violation, Plaintiff must demonstrate “that the [challenged action], either on its face or in 4 the manner of its enforcement, results in members of a certain group being treated 5 differently from other persons based on membership in that group.” McLean v. Crabtree, [6] 173 F.3d 1176, 1185 (9th Cir. 1999). “Second, if it is demonstrated that a cognizable class 7 is treated differently, the court must analyze under the appropriate level of scrutiny whether 8 the distinction made between the two groups is justified.” Id. (citation and quotations 9 omitted). If the aggrieved party is a member of a protected or suspect class, or otherwise 10 suffers the unequal burdening of a fundamental right, the court applies strict scrutiny. City 11 of Cleburne, Tex. v. Cleburne Living Cntr., 473 U.S. 432, 439-40 (1985). As a prisoner, 12 Plaintiff is not a member of a protected class under the Equal Protection Clause. Abney v. 13 Alameida, 334 F. Supp. 1221, 1230 (S.D. Cal. 2004) (citing Rodriguez v. Cook, 169 F.3d 14 1176, 1179 (9th Cir. 1999)). “Government actions that do not . . . involve suspect 15 classifications will be upheld if [they] are rationally related to a legitimate state interest.” 16 Fields v. Palmdale Sch. Dist., 427 F.3d 1197 , 1208 (9th Cir. 2005). Plaintiff has not 17 plausibly stated an Equal Protection claim because his allegations that transgender inmates 18 are being given preferential treatment in bed change requests rests on speculation as to the 19 status of fellow inmates and the reasons for the bed/cell changes he observed. Moreover, 20 Plaintiff’s Exhibit A shows that Zambrano told Plaintiff to fill out the appropriate 21 paperwork to request a bed change and he did not do so. Am. Compl. at 10. 22 Plaintiff also does not plausibly allege a retaliation claim against Defendants 23 Dellinger or Hayes because Plaintiff does not claim that either Defendant took some 24 adverse action against him, only that they threatened to do so. As the Court advised 25 Plaintiff in its September 9, 2020 Order, “[A] threat to retaliate does not violate Section 26 1983 if the person making the threat never follows through.” Hardy v. 3 Unknown Agents, [27] 690 F. Supp. 2d 1074, 1103 (C.D. Cal. 2010) (citing Gaut v. Sunn, 810 F.3d 923, 925 (9th 28 Cir. 1987)) (finding that prisoner’s allegation that he was threatened with bodily harm if 1 he pursued legal redress for beatings did not state a § 1983 claim). In addition, as in his 2 original Complaint, Plaintiff has not made a sufficient showing that the threat to activate 3 the alarm was made because he engaged in some protected conduct and not to advance a 4 legitimate correctional goal, such as protecting medical staff from harassment. Plaintiff 5 has also failed to plausibly allege that “the defendant’s actions were arbitrary and 6 capricious, or that they were unnecessary to the maintenance of order in the institution.” 7 Watison v. Carter, 668 F.3d 1108, 1115 (9th Cir. 2012) (quoting Franklin v. Murphy, 745 8 F.2d 1221 , 1230 (9th Cir. 1984) (internal quotation marks omitted)). Moreover, Plaintiff 9 has not made a sufficient factual showing that the action “would chill or silence a person 10 of ordinary firmness from future First Amendment Activities,” or that he suffered some 11 other non-minimal harm as a result of action. See Brodheim, 584 F.3d at 1269; Rhodes, 12 408 F.3d at 567–68. 13 Further, as the Court told Plaintiff in its September 9, 2020 Order, only “deliberate 14 indifference to serious medical needs of prisoners constitutes the unnecessary and wanton 15 infliction of pain . . . proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 16 97, 103, 104 (1976) (citation and internal quotation marks omitted). “A determination of 17 ‘deliberate indifference’ involves an examination of two elements: (1) the seriousness of 18 the prisoner’s medical need and (2) the nature of the defendant’s response to that need.” 19 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by 20 WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (quoting Estelle, 429 21 U.S. at 104). “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition 22 could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 23 McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104 ); Jett v. Penner, 439 F.3d 24 1091, 1096 (9th Cir. 2006); Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th Cir. 25 2016). Plaintiff has failed to state an Eighth Amendment claim with regard to Hayes and 26 Dellinger because he has not alleged he suffers from a serious medical need nor that he 27 suffered any injury as a result of Hayes and Dellinger’s actions. See 28 U.S.C. 28 § 1915(e)(2)(B)(ii), § 1915A(b)(1); Iqbal, 556 U.S. at 678 . 1 Conclusion and Order 2 For the reasons explained above, the Court, DISMISSES Plaintiff's Amended 3 ||Complaint (ECF No. 9) for failing to state a claim upon which relief may be granted 4 ||pursuant to 28 U.S.C. § 1915 (e)(2)(B) and § 1915A(b). Because amendment would be 5 || futile, the dismissal is without leave to amend. 6 IT IS SO ORDERED. 7 ||Dated: December 11, 2020 tt 8 jen Janis L. Sammartino 9 United States District Judge