# (PC) Barth v. Montejo

> District Court, E.D. California · January 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10016125

## Case

- **Court:** District Court, E.D. California
- **Decided:** January 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 SHAWN DAMON BARTH, No. 2:19-cv-1874 DB P
12 Plaintiff,
13 EUSEBIO MONTEJO, et al.. ORDER
14 Defendants.
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16 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §
17 1983. Before the court is plaintiff’s first amended complaint for screening. For the reasons set
18 forth below, this court finds plaintiff has failed to state any claims cognizable under § 1983.
19 Plaintiff will be given another opportunity to amend his complaint.
20 BACKGROUND
21 Plaintiff filed his original complaint on September 18, 2019. On screening, this court found
22 plaintiff failed to state any cognizable claims for relief. (Sept. 27, 2019 Order (ECF No. 5).)
23 Plaintiff was provided instructions for amending his complaint. On December 23, plaintiff filed a
24 first amended complaint (“FAC”). (ECF No. 13.)
25 SCREENING
26 As described in this court’s prior screening order, the court is required to screen complaints
27 brought by prisoners to determine whether they sufficiently state claims under 42 U.S.C. § 1983.
28 28 U.S.C. § 1915A(a). The prisoner must plead an arguable legal and factual basis for each claim
1 in order to survive dismissal. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). In
2 addition, the prisoner must demonstrate a link between the actions of each defendant and the
3 deprivation of his rights. Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). “A person
4 ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he
5 does an affirmative act, participates in another’s affirmative acts or omits to perform an act which
6 he is legally required to do that causes the deprivation of which complaint is made.” Johnson v.
7 Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
8 I. Allegations of the First Amended Complaint (“FAC”)
9 Plaintiff is incarcerated at the California Medical Facility (“CMF”). He identifies eight
10 defendants: (1) Dr. Eusebio Montejo; (2) Captain Brown; (3) Lopez, CMF Institutional Security
11 Unit; (4) Warden Jared Lozano; (5) Correctional Officer (“CO”) Borbe; (6) CO Lockwood; (7)
12 Marrie, CMF food service; and (8) Associate Warden Media.
13 Like his original complaint, plaintiff’s FAC is difficult to decipher. In addition, plaintiff has
14 attached over 700 pages of exhibits to his FAC. This court will not review those exhibits to
15 attempt to determine the bases for plaintiff’s claims. It is plaintiff’s responsibility to explain his
16 claims plainly and briefly in the body of his complaint. Fed. R. Civ. P. 8(a).
17 As best this court can tell, plaintiff makes the following allegations. First, Montejo made
18 sexual advances toward him. Plaintiff then filed a complaint against Montejo under the Prison
19 Rape Elimination Act (“PREA”). Montejo retaliated against plaintiff for filing the complaint by
20 taking away plaintiff’s disability classification, plaintiff’s walker, and plaintiff’s pain
21 medications. Plaintiff also appears to be alleging that Montejo denied him appropriate medical
22 care, specifically shoulder surgery, referral to an orthopedic specialist, and appropriate food.
23 Plaintiff alleges these actions were also retaliatory.
24 In his second claim, plaintiff alleges his ingoing and outgoing legal mail has been stolen. He
25 further alleges: (1) defendants Brown and Lozano have refused to respond to his 22 forms; (2)
26 defendant Borbe stole plaintiff’s priority envelopes and gave them to “CCPOA gang members;”
27 (3) CO Lockwood harassed plaintiff; and (4) COs Lockwood and Borbe took numerous actions
28 against plaintiff, including having him assaulted by another inmate.
1 Finally, in plaintiff’s third claim, he appears to re-state some of the issues he raised in his
2 first two claims. He adds allegations that he was denied the right to a hearing on two rules
3 violation reports – one issued by CO Bird and one issued by defendant Borbe.
4 II. Does Plaintiff State Cognizable Claims?
5 For a number of reasons, plaintiff’s FAC fails to state any cognizable claims under § 1983.
6 Below, this court points out the problems with plaintiff’s allegations. In any second amended
7 complaint, plaintiff must comply with the directives below if he wishes to continue with this case.
8 A. Claims against Different Defendants Must be Related
9 The first problem with plaintiff’s FAC is that he is attempting to raise many unrelated claims
10 against many defendants. As plaintiff was informed previously, “[u]nrelated claims against
11 different defendants belong in different suits.” (ECF No. 5 at 5.) If plaintiff wishes to continue
12 with this case, he must choose which claim or claims he wants to pursue here. As best this court
13 can tell, plaintiff’s primary claim is for retaliation against defendant Montejo. If this is the
14 primary claim plaintiff wishes to pursue here, he must limit his second amended complaint to
15 only claims against Montejo and other claims that are related to the claims against Montejo.
16 B. Exhaustion Requirement
17 Plaintiff indicates that at least some claims were not exhausted through the third level of
18 review. Plaintiff is reminded that this court may not consider claims that he has not submitted to
19 all three levels of review through the prison system. See 42 U.S.C. § 1997e(a). Plaintiff should
20 not include claims in his second amended complaint that he has not fully exhausted.
21 C. Claim Specificity
22 Plaintiff’s complaint must be sufficiently specific so that a defendant knows what conduct
23 plaintiff is complaining about. Plaintiff must allege facts showing: (1) what the defendant did or
24 did not do; (2) when that conduct occurred; and (3) why the defendant’s conduct violated
25 plaintiff’s constitutional rights. The allegations in plaintiff’s FAC are not adequate to put a
26 defendant on notice of plaintiff’s claims against them. In an attempt to help plaintiff focus his
27 complaint, the court will re-state the legal standards for the claims plaintiff may be trying to bring
28 against defendant Montejo.
1 1. Retaliation
2 To state a claim for retaliation, plaintiff must specifically describe five things: (1) the
3 protected conduct plaintiff engaged in; (2) the adverse action a defendant took against him; (3)
4 that defendant took that action because plaintiff had engaged in protected conduct; (4) that
5 defendant’s action would have caused a reasonable person to be concerned about exercising his
6 First Amendment rights; and (5) that the defendant’s action did not have a legitimate basis.
7 Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). In plaintiff’s FAC, he alleges that
8 Montejo took numerous adverse actions against him because he filed a PREA complaint against
9 Montejo. Plaintiff does not, however, allege facts showing the connection between his PREA
10 complaint and Montejo’s conduct.
11 In amending his claim for retaliation, plaintiff must show Montejo acted with a retaliatory
12 motive. Plaintiff must show that Montejo was aware of the PREA complaint. But, that is not
13 enough. Plaintiff must also state facts showing Montejo’s motive. Evidence of his motive may
14 include: (1) proximity in time between the protected conduct and the alleged retaliation; (2)
15 defendant’s expressed opposition to the protected conduct; and (3) other evidence showing that
16 defendant’s reasons for the challenged action were false or pretextual. McCollum v. Cal. Dep’t
17 of Corr. and Rehab., 647 F.3d 870, 882 (9th Cir. 2011).
18 2. Medical Claims
19 Plaintiff may also be attempting to state claims that Montejo violated plaintiff’s right to
20 medical care. Again, plaintiff’s current allegations are not sufficient. He simply lists a number of
21 Montejo’s actions regarding his health care. To state an Eighth Amendment claim for deliberate
22 indifference to his serious medical needs, plaintiff must show two things: that he had a serious
23 medical need and that Montejo responded to that need with deliberate indifference.
24 a. Serious Medical Need
25 A medical need is serious “if the failure to treat the prisoner's condition could result in
26 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v.
27 Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (internal citation omitted), overruled on other
28 grounds, WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Indications of a serious
1 medical need include “the presence of a medical condition that significantly affects an
2 individual’s daily activities.” Id. at 1059-60. By establishing the existence of a serious medical
3 need, a prisoner satisfies the first, objective requirement for proving an Eighth Amendment
4 violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
5 b. Deliberate Indifference
6 If a plaintiff establishes the existence of a serious medical need, he must then show that
7 defendant responded to the serious medical need with deliberate indifference. See Farmer, 511
8 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, delay,
9 or intentionally interfere with medical treatment, or may be shown by the way in which prison
10 officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir.
11 1988).
12 Before it can be said that a prisoner’s civil rights have been abridged with regard to medical
13 care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’
14 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter
15 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-06
16 (1976)); see also Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere
17 negligence in diagnosing or treating a medical condition, without more, does not violate a
18 prisoner’s Eighth Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate
19 indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than
20 ordinary lack of due care for the prisoner's interests or safety.’” Farmer, 511 U.S. at 835.
21 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at
22 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a
23 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th
24 Cir. 2002). In this regard, “[a] prisoner need not show his harm was substantial; however, such
25 would provide additional support for the inmate's claim that the defendant was deliberately
26 indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
27 Finally, mere differences of opinion between a prisoner and prison medical staff or between
28 medical professionals as to the proper course of treatment for a medical condition do not give rise
1 to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th
2 Cir. 1996).
3 CONCLUSION
4 Plaintiff will be given another opportunity to file an amended complaint. Plaintiff should
5 carefully review the descriptions above of the problems with his FAC. In addition to curing those
6 problems, plaintiff must adhere to the following standards for stating claims for relief under §
7 1983.
8 • Plaintiff must clearly identify each defendant and describe just what that defendant
9 did that violated his constitutional rights. Plaintiff should carefully review the
10 legal standards set out above and in prior screening order to determine whether a
11 defendant’s conduct amounts to a constitutional violation.
12 • Plaintiff must identify as a defendant only persons who personally participated in a
13 substantial way in depriving plaintiff of a federal constitutional right. Johnson v.
14 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the
15 deprivation of a constitutional right if he does an act, participates in another’s act
16 or omits to perform an act he is legally required to do that causes the alleged
17 deprivation). “Vague and conclusory allegations of official participation in civil
18 rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 268
19 (9th Cir. 1982) (citations omitted).
20 • Plaintiff must make a short, plain statement of the facts supporting each claim.
21 See Fed. R. Civ. P. 8(a).
22 • Plaintiff may allege multiple claims against a single defendant. Fed. R. Civ. P.
23 18(a). Each separate claim should be contained in a separate, numbered set of
24 paragraphs. However, Rule 20(a)(2) permits a plaintiff to sue multiple defendants
25 in the same action only if “any right to relief is asserted against them jointly,
26 severally, or in the alternative with respect to or arising out of the same
27 transaction, occurrence, or series of transactions or occurrences,” and there is a
28 “question of law or fact common to all defendants.” “Thus multiple claims against
1 a single party are fine, but Claim A against Defendant 1 should not be joined with
2 unrelated Claim B against Defendant 2. Unrelated claims against different
3 defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir.
4 2007) (citing 28 U.S.C. § 1915(g)). Simply alleging a “conspiracy” does not
5 transform unrelated claims into related claims.
6 • Any amended complaint must show the federal court has jurisdiction, the action is
7 brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations
8 are true. It must contain a request for particular relief.
9 • An amended complaint must be complete in itself without reference to any prior
10 pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, the
11 original pleadings are superseded.
12 • Plaintiff must exhaust his administrative remedies before filing suit. 42 U.S.C. §
13 1997e(a).
14 • Finally, plaintiff is advised that by signing an amended complaint, he certifies he
15 has made reasonable inquiry and has evidentiary support for his allegations, and
16 for violation of this rule the court may impose sanctions sufficient to deter
17 repetition by plaintiff or others. Fed. R. Civ. P. 11.
18 In accordance with the above, IT IS HEREBY ORDERED that:
19 1. Plaintiff’s FAC (ECF No. 13) is dismissed with leave to amend.
20 2. Plaintiff is granted thirty days from the date of service of this order to file an amended
21 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules
22 of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the
23 docket number assigned this case and must be labeled “Second Amended Complaint;”
24 failure to file an amended complaint in accordance with this order may result in a
25 recommendation that this action be dismissed.
26 ////
27 ////
28 ////
1 3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form
2 used in this district.
3 | Dated: January 6, 2020
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6 ‘BORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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DB/prisoner-civil rights/bart1874.FAC scrn Ita
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10016125. Public record. Not legal advice.