(PC) Legare v. Cryer

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JAMES PAUL LEGARE, Case No. 1:18-cv-01474-BAM (PC)

12 Plaintiff, SCREENING ORDER GRANTING

PLAINTIFF LEAVE TO AMEND

13 v.

(ECF No. 1)

14 C. CRYER, et al.,

15 Defendants.

THIRTY-DAY DEADLINE

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18 Plaintiff James Paul Legare (“Plaintiff”) is a state prisoner proceeding pro se and in forma

19 pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff’s complaint, filed on October

20 24, 2018, is currently before the Court for screening. (ECF No. 1.)

21 I. Screening Requirement and Standard

22 The Court is required to screen complaints brought by prisoners seeking relief against a

23 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

24 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

25 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

26 from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

27 A complaint must contain “a short and plain statement of the claim showing that the pleader

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1 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

2 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

3 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

4 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required

5 to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.

6 2009) (internal quotation marks and citation omitted).

7 To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

8 factual detail to allow the Court to reasonably infer that each named defendant is liable for the

9 misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv.,

10 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not

11 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.

12 Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

13 II. Allegations in Complaint

14 Plaintiff is currently housed at the California Institution for Men in Chino, California. The

15 events in the complaint are alleged to have occurred while Plaintiff was housed at the California

16 Substance Abuse and Treatment Facility (“CSATF”) in Coalinga, California. Plaintiff names the

17 following defendants: (1) C. Cryer, Chief Executive Officer; (2) S. Gates, Chief, Health Care

18 Appeals Branch-Sacramento; and (3) Does 1 through 5, CSATF medical/health care providers.

19 Claim I

20 In Claim I, Plaintiff alleges that in July 2017, he was prescribed Oxcarbazepine (“Trileptal”)

21 for pain management. Soon after taking Trileptal, Plaintiff began to suffer serious side effects. On

22 August 1, 2017, Plaintiff submitted a CDCR 7362 medical request complaining of serious side

23 effects from Trileptal and requesting that Trileptal be discontinued and another pain management

24 medication be issued. Plaintiff complains that his complaints and request were met with deliberate

25 indifference and no corrective treatment was provided by Doe Defendants.

26 By August 15, 2017, Plaintiff could no longer withstand the side effects and refused to take

27 Trileptal. As a result of his refusal, Doe Defendants issued Plaintiff a CDCR 128B record, which

28 was negatively addressed by the Parole Board Commissioners on August 6, 2017.

1 From August 15, 2017 to September 17, 2017, Doe Defendants provided Plaintiff with no

2 care or treatment to relieve Plaintiff’s groin pain. On September 17, 2017, acetaminophen

3 (“Mapap”) was prescribed, which barely reduced the pain levels Plaintiff repeatedly reported to

4 Doe Defendants. Plaintiff believes Mapap is nothing more than a fever reducer, which Doe

5 Defendants knew and used to intentionally cause Plaintiff suffering.

6 On October 13, 2017, Plaintiff filed a Health Care Administrative Appeal.

7 On December 20, 2017, Defendant Cryer issued CSATF’s institutional level response.

8 Plaintiff contends that the response is deflective, callous and with self-serving verbiage that

9 incorporates false statements that at no time was Plaintiff without pain medication. Additionally,

10 Defendant Cryer stated that Trileptal was approved by the Food and Drug Administration (“FDA”)

11 for use as a pain medication. He also stated that Plaintiff’s primary care provider could not

12 prescribe Trileptal for use as a pain medication if it was not approved for such use.

13 On January 10, 2018, Plaintiff advanced his medical appeal to Headquarters Level for

14 review. In his appeal, Plaintiff posed specific questions to Defendant Gates to clarify Defendant

15 Cryer’s statement that Trileptal was an authorized FDA pain management medication.

16 On April 26, 2018, Defendant Gates issued the Headquarters Level Response to Plaintiff’s

17 medical appeal. Defendant Gates did not answer whether Trileptal is an FDA-authorized pain

18 management medication. Plaintiff claims Defendant Gates’ response was deflective with

19 omissions.

20 Plaintiff claims that contrary to the posture of Defendants Cryer, Gates and Doe Defendants,

21 Trileptal is not an FDA-authorized drug to treat pain. Plaintiff cites to release notice in 2010 stating

22 that the only authorized us for Trileptal is for treatment of epilepsy and there was a settlement for

23 promoting Trileptal for use to treat pain.1 Plaintiff further alleges that into 2016 and beyond, the

24 FDA published information related to Trileptal informing CDCR health care providers and officials

25 to properly train doctors. Plaintiff asserts that Defendants Cryer and Gates were required to ensure

26 that Doe Defendants were properly trained. Plaintiff claims that defendants continue to prescribe

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28 1 Plaintiff cites to exhibits not attached to the complaint.

1 Oxcarbazepine.

2 Based on these allegations, Plaintiff asserts claims against Defendants Cryer and Gates

3 based on their failure to adequately train prison doctors, deliberate indifference against Defendants

4 Does 1 through 5, and emotional distress.

5 Claim II

6 In Claim II, Plaintiff alleges that he arrived at CSATF on March 9, 2017, to receive care for

7 groin pain. After seven months of seeking pain relief, Plaintiff filed a CDCR 602 Health Care

8 appeal alleging deliberate indifference and retaliation for prior exercise of his First Amendment

9 rights. In his appeal, Plaintiff explained the pain he suffered, the ineffective psychotropic drugs to

10 treat his pain, and the requests for referrals to specialists that were denied. Plaintiff contends that

11 due to the inadequate pain management treatment, he suffered horrific pain that caused him to

12 double over, fall to the ground injuring his head and arm or freezing like a statue.

13 Plaintiff submitted a CDCR 7362 medical requests seeking prescription of Neurontin, a pain

14 management drug, which suppressed all types of pain that Plaintiff suffered while on a prior

15 prescription. Plaintiff’s requests were ignored along with his requests for a housing

16 accommodation to prevent injury caused by falls triggered by pain.

17 Plaintiff alleged in his appeal that he was being retaliated against for his civil rights law suit

18 in Case No. ED-cv-15-0833 JVS (AFM). Plaintiff claims that the CSATF medical delivery system

19 has a history of engaging in retaliation against prisoners who file appeals or lawsuits. Plaintiff

20 claims that as a result of the medical retaliation, he was intentionally denied adequate pain

21 management treatment.

22 On November 17, 2018, Defendant Cryer and the Doe Defendants issued their Institutional

23 Level response to his appeal. In the response, it was noted that Doe Defendants denied Plaintiff’s

24 referral to a specialist because surgery was deemed not an option for Plaintiff’s condition. Plaintiff

25 claims that it was known that surgery was the only option to treat his condition and the referral was

26 later granted because of his need. Defendant Cryer also noted that Doe Defendants accommodated

27 Plaintiff with an appropriate housing assignment to prevent further physical injuries, but allowed

28 Plaintiff to suffer horrific pain levels that caused him to fall and injure his head and arm. The

1 response also cited that Plaintiff was prescribed Trileptal, but because he did not tolerate it well, he

2 was subsequently prescribed a low dose of Cymbalta. The Cymbalta failed to reduce Plaintiff’s

3 pain to a manageable level and Defendants’ actions allegedly caused Plaintiff to suffer for

4 retaliatory purposes for filing a prior medical civil complaint.

5 On November 28, 2017, Plaintiff completed his appeal form explaining that despite the

6 change to Cymbalta, the institutional response did not explain why Plaintiff was denied adequate

7 care for months when Neurontin was prescribed in the past and suppressed his pain with zero side

8 effects. Plaintiff asserted that Cymbalta was causing him to suffer extreme headaches and

9 temporarily assigning him an appropriate housing accommodation was deflective of the basic care

10 to effectively treat his condition. Plaintiff asserts that the retaliation issue was never addressed by

11 Defendant Cryer or Doe Defendants.

12 On March 2, 2018, Defendants Gates issued a notice for Defendant Cryer to amend the

13 institutional response.

14 On March 30, 2018, Defendant Cryer and Doe Defendants altered their original response

15 and added other data. In the amended response, Defendant explained that Plaintiff was prescribed

16 Lyrica and that Doe Defendants were trained and capable of providing care for Plaintiff’s pain.

17 Plaintiff asserts that this was false because Defendants prescribed him an outlawed pain

18 management drug with horrific side effects. The amended response also stated that the goal was to

19 maximize treatment of Plaintiff’s pain while avoiding serious side effects of stronger pain

20 medication.

21 On April 15, 2018, Plaintiff filed a subsequent response and resubmitted to Defendant

22 Gates. Plaintiff instructed Defendants to follow their own administrative appeal rules because the

23 amended responses contained new verbiage. Plaintiff claims that the response did not address why

24 he was caused to suffer for months. Plaintiff also pointed out the false claims regarding his Lyrica

25 prescription.

26 On July 30, 2018, Defendant Gates issued a Headquarters Level Response wherein Plaintiff

27 was provided with a follow up urology consult on his scrotum/testicle conditions, which were

28 previously denied based on Doe Defendants’ claim that such a consult was not medically indicated,

1 and Plaintiff’s housing accommodation was merely extended when Doe Defendants and

2 Defendants Cryer and Gates were fully aware that Plaintiff’s suffering would not abate. Defendant

3 Gates further defended Doe Defendants’ action, stating Plaintiff’s condition was monitored and he

4 was properly receiving care as medically indicated. Defendant Gates also addressed Plaintiff’s

5 retaliation allegation, but stated that Plaintiff failed to state facts consistent with the allegation.

6 Plaintiff alleges retaliation against Doe Defendants and Defendants Cryer and Gates.

7 Relief Requested

8 Plaintiff seeks general and punitive damages, along with injunctive relief.

9 III. Discussion

10 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to

11 state a cognizable claim for relief. As Plaintiff is proceeding pro se, he will be granted an

12 opportunity to cure the deficiencies identified by the Court to extent he is able to do so in good

13 faith. To assist Plaintiff, the Court provides the pleading and legal standards that appear applicable

14 to his claims.

15 A. Federal Rule of Civil Procedure 8

16 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8. Pursuant to

17 Rule 8, a complaint must contain “a short and plain statement of the claim showing that the pleader

18 is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations are not required, but

19 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

20 do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual

21 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at

22 678 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal

23 conclusions are not. Id.; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.

24 Plaintiff’s complaint is disjointed, repetitive, and difficult to understand. It is not a plain

25 statement of his claims. As pled, Plaintiff’s complaint does not clearly and succinctly state what

26 happened, when it happened or who was involved. Absent clear factual allegations, the Court

27 cannot identify the nature of Plaintiff’s claims nor assess whether he has stated a cognizable claim

28 for relief. In any amended complaint, Plaintiff must clearly state what happened, when it happened

1 and who was involved in the alleged violation of his rights. Plaintiff also repeatedly references

2 exhibits to his complaint. However, there are no exhibits attached to the complaint.

3 B. Supervisory Liability

4 Insofar as Plaintiff is attempting to sue Defendant Cryer, or any other defendant, based on

5 his supervisory role, he may not do so. Liability may not be imposed on supervisory personnel for

6 the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556

7 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v.

8 City of Stockton, 588 F.3d 1218, 1235 (9th Cir.2009); Jones v. Williams, 297 F.3d 930, 934 (9th

9 Cir. 2002).

10 Supervisors may be held liable only if they “participated in or directed the violations, or

11 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th

12 Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567

13 F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any personal

14 participation if the official implemented “a policy so deficient that the policy itself is a repudiation

15 of the constitutional rights and is the moving force of the constitutional violation.” Redman v.

16 County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted),

17 abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970).

18 Here, Plaintiff has failed to adequately allege that Defendant Cryer (or any other supervisory

19 defendant) participated in or directed any constitutional violation or that he implemented a policy

20 so deficient that it was the moving force of any constitutional violation. Plaintiff’s conclusory

21 allegations based on review of his administrative appeal are not sufficient to state a cognizable

22 claim. Further, Plaintiff appears to allege that Defendant Cryer considered the medical care that

23 Plaintiff received but determined that it was sufficient. These allegations are not sufficient to

24 support a claim based on supervisory liability.

25 C. Failure to Train

26 Plaintiff alleges a claim against Defendants Cryer and Gates based on their alleged failure

27 to adequately train prison doctors. A “failure to train” or “failure to supervise” theory can be the

28 basis for a supervisor’s liability under § 1983 in only limited circumstances, such as where the

1 failure amounts to deliberate indifference. See City of Canton, Ohio v. Harris, 489 U.S. 378, 387–

2 90 (1989). To establish a failure-to-train/supervise claim, a plaintiff must show that “‘in light of the

3 duties assigned to specific officers or employees, the need for more or different training [or

4 supervision] [was] obvious, and the inadequacy so likely to result in violations of constitutional

5 rights, that the policy-makers ... can reasonably be said to have been deliberately indifferent to the

6 need.’” Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (quoting Canton, 489 U.S. at 390).

7 Ordinarily, a single constitutional violation by an untrained employee is insufficient to

8 demonstrate deliberate indifference for purposes of failure to train. Connick v. Thompson, 563 U.S.

9 51, 62 (2011). Instead, a plaintiff must usually demonstrate “[a] pattern of similar constitutional

10 violations by untrained employees,” id., unless the need for training is “so obvious” and “so likely

11 to result in the violation of constitutional rights,” that “the failure to provide proper training may

12 fairly be said to represent a policy for which the city is responsible, and for which the city may be

13 held liable if it actually causes injury,” Canton, 489 U.S. at 390.

14 Here, Plaintiff’s complaint fails to state a cognizable claim based upon a theory of failure

15 to train or supervise. At best, Plaintiff’s factual allegations involving Doe Defendants amount to

16 either a disagreement regarding the appropriate course of treatment or medical malpractice, not

17 deliberate indifference. Thus, there is no indication from Plaintiff’s complaint that the failure to

18 train was obvious and likely to result in a constitutional violation.

19 D. Eighth Amendment – Deliberate Indifference to Serious Medical Needs

20 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual

21 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of

22 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

23 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Deliberate indifference may be shown

24 by the denial, delay or intentional interference with medical treatment or by the way in which

25 medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). The two-

26 part test for deliberate indifference requires Plaintiff to show (1) “a ‘serious medical need’ by

27 demonstrating that failure to treat a prisoner’s condition could result in further significant injury or

28 the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was

1 deliberately indifferent.” Jett, 439 F.3d at 1096.

2 A defendant does not act in a deliberately indifferent manner unless the defendant “knows

3 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,

4 837 (1994). “Deliberate indifference is a high legal standard,” Simmons, 609 F.3d at 1019; Toguchi

5 v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or

6 failure to respond to a prisoner’s pain or possible medical need” and the indifference caused harm.

7 Jett, 439 F.3d at 1096.

8 In applying this standard, the Ninth Circuit has held that before it can be said that a

9 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be

10 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause

11 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429

12 U.S. at 105−106). “[A] complaint that a physician has been negligent in diagnosing or treating a

13 medical condition does not state a valid claim of medical mistreatment under the Eighth

14 Amendment. Medical malpractice does not become a constitutional violation merely because the

15 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. Cty. of Kern, 45 F.3d 1310,

16 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate indifference to

17 serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

18 Further, a “difference of opinion between a physician and the prisoner−or between medical

19 professionals−concerning what medical care is appropriate does not amount to deliberate

20 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891

21 F.2d 240, 242 (9th Cir. 1989) ), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d

22 1076, 1082−83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122−23 (9th Cir. 2012) (citing

23 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) ). Rather, Plaintiff “must show that the

24 course of treatment the doctors chose was medically unacceptable under the circumstances and that

25 the defendants chose this course in conscious disregard of an excessive risk to [his] health.” Snow,

26 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted).

27 Doe Defendants

28 The bulk of Plaintiff’s complaint concerns allegations that Doe Defendants failed to provide

1 Plaintiff with a reasonable housing accommodation and failed to properly treat Plaintiff with

2 medications and refer him to specialists. Plaintiff’s complaint fails to state a cognizable claim for

3 inadequate health care in violation of his Eighth Amendment rights.

4 First, Plaintiff’s allegations regarding accommodations do not state a cognizable Eighth

5 Amendment claim against the Doe Defendants. There is nothing in Plaintiff’s complaint to suggest

6 that Doe Defendants knew that Plaintiff required a housing accommodation and failed to provide

7 it in disregard to a serious risk of harm to Plaintiff’s health. Further, Plaintiff’s allegations

8 demonstrate that he was provided with a housing accommodation at some point, but it is not clear

9 that when or if such an accommodation was requested from Doe Defendants.

10 Second, Plaintiff’s allegations regarding the need for specialists are conclusory and lack

11 necessary factual detail to state a cognizable claim against Doe Defendants. According to

12 Plaintiff’s complaint, Doe Defendants did not believe that a specialist appointment was necessary

13 to treat Plaintiff’s condition. That Plaintiff subsequently required or received a specialist referral

14 demonstrates only that Doe Defendants may have been negligent in diagnosing or treating

15 Plaintiff’s condition.

16 Third, Plaintiff’s allegations regarding his pain medication also fail to state a cognizable

17 claim against Doe Defendants. At best, Plaintiff has alleged negligence or medical malpractice

18 resulting from the prescription of Trileptal, which Plaintiff stopped taking, which does not rise to

19 the level of an Eighth Amendment violation, particularly where Plaintiff alleges that Doe

20 Defendants prescribed various medications in an effort to treat Plaintiff’s condition.

21 Defendants Cryer and Gates

22 Plaintiff’s allegations against Defendants Cryer and Gates also do not demonstrate

23 deliberate indifference to a serious medical need in violation of the Eighth Amendment. As best

24 as the Court can determine, Defendants Cryer and Gates confirmed that Plaintiff received

25 medications and treatment for his pain, a housing accommodation and referral to a specialist.

26 E. Retaliation

27 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to

28 petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090,

1 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham

2 v. Bojorquez, 866 F. 2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).

3 “Within the prison context, a viable claim of First Amendment retaliation entails five basic

4 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because

5 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

6 First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

7 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668

8 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th

9 Cir. 2009).

10 Here, Plaintiff alleges that Defendants refused his appointments with specialists and denied

11 his accommodations and pain medication because he filed a separate civil rights lawsuit. Plaintiff’s

12 allegations are conclusory and the Court cannot determine the sequence of events alleged in the

13 complaint or whether Defendants’ asserted actions (or inaction) were because of any protected

14 conduct by Plaintiff. There is no indication in the complaint that any of the defendants knew of

15 Plaintiff’s separate lawsuit during their course of treatment or during the review of his appeals. In

16 any amended complaint, Plaintiff must clearly and succinctly allege what happened, when it

17 happened and who was involved.

18 F. Grievance Procedure

19 Insofar as Plaintiff complains about the grievance procedure, he does not state a cognizable

20 claim. Plaintiff cannot pursue any claims against prison staff based solely on the processing and

21 review of inmate appeals. The existence of an inmate appeals process does not create a protected

22 liberty interest upon which Plaintiff may base a claim that he was denied a particular result or that

23 the appeals process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (Prisoners

24 do not have a “separate constitutional entitlement to a specific prison grievance procedure.”)

25 (citation omitted), cert. denied, 541 U.S. 1063 (2004); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

26 1988).

27 G. Injunctive Relief

28 Insofar as Plaintiff seeks injunctive relief against prison officials, any such request is now

1 moot. Plaintiff is no longer housed at the California Substance Abuse Treatment Facility, where he

2 alleges the incidents at issue occurred, and where the prison officials are employed. Therefore, any

3 injunctive relief against officials at the California Substance Abuse Treatment Facility is moot. See

4 Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (prisoner’s claims for injunctive

5 relief generally become moot upon transfer) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.

6 1991) (per curiam) (holding claims for injunctive relief “relating to [a prison’s] policies are moot”

7 when the prisoner has been moved and “he has demonstrated no reasonable expectation of returning

8 to [the prison]”)).

9 H. State Law Claims

10 Plaintiff appears to allege various state law claims, including emotional distress. Under 28

11 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction, the “district

12 courts shall have supplemental jurisdiction over all other claims that are so related to claims in the

13 action within such original jurisdiction that they form part of the same case or controversy under

14 Article III of the United States Constitution,” except as provided in subsections (b) and (c). The

15 Supreme Court has stated that “if the federal claims are dismissed before trial, ... the state claims

16 should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).

17 Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff

18 must first have a cognizable claim for relief under federal law. 28 U.S.C. § 1367. As Plaintiff has

19 not stated a cognizable claim for relief under federal law, the Court declines to screen Plaintiff's

20 purported state law claim.

21 Further, the Government Claims Act requires exhaustion of Plaintiff's state law tort claims

22 with the California Victim Compensation and Government Claims Board, and Plaintiff is required

23 to specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th

24 201, 208–09 (Cal. 2007); State v. Superior Court of Kings Cty. (Bodde), 32 Cal. 4th 1234, 1239

25 (Cal. 2004); Mabe v. San Bernardino Cty. Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir.

26 2001); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim–

27 Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff has failed to allege

28 compliance with the Government Claims Act.

1 IV. Conclusion and Order

2 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to

3 state a cognizable claim for relief. As Plaintiff is proceeding pro se, the Court will grant Plaintiff

4 an opportunity to amend his complaint to cure the above-identified deficiencies to the extent he is

5 able to do so in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

6 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

7 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556

8 U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be

9 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555

10 (citations omitted). Additionally, Plaintiff may not change the nature of this suit by adding new,

11 unrelated claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

12 2007) (no “buckshot” complaints). Finally, Plaintiff is advised that an amended complaint

13 supersedes the original complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012).

14 Therefore, Plaintiff’s amended complaint must be “complete in itself without reference to the prior

15 or superseded pleading.” Local Rule 220.

16 Based on the foregoing, it is HEREBY ORDERED that:

17 1. The Clerk’s Office shall send Plaintiff a complaint form;

18 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file an

19 amended complaint curing the deficiencies identified by the Court in this order or file a notice of

20 voluntary dismissal; and

21 3. If Plaintiff fails to file an amended complaint in compliance with this order, the

22 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order and

23 for failure to state a claim.

IT IS SO ORDERED.

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25 Dated: September 4, 2019 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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