# (PC) Cortinas v. Allison

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

URL: https://www.frixlaw.com/law-library/cases/10016852

## Case

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

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10016852

## How later opinions describe it (automated extraction)

- affirming a dismissal with prejudice for failure to comply with Rules 17 8(a) and 8(e), finding that both the original complaint and an amended complaint were “verbose, 18 confusing and conclusory”

## Opinion text

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 LARRY WILLIAM CORTIN AS, CASE NO. 1:19-cv-1244 JLT (PC)

12 Plaintiff, ORDER DIRECTING PLAINTIFF TO
SUBMIT A NOTICE
13 v.
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KATHLEEN ALLISON,
( Doc. 1)
THIRTY-DAY DEADLINE
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Defendant.
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17 Plaintiff has filed a complaint asserting claims against an employee of the California
18 Department of Corrections and Rehabilitation. (Doc. 1.) Generally, the Court is required to screen
19 complaints brought by prisoners seeking relief against a governmental entity or officer or
20 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint
21 or portion thereof if the prisoner has raised claims that are legally “frivolous, malicious,” or that
22 fail to state a claim upon which relief may be granted, or that seek monetary relief from a
23 defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any
24 filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any
25 time if the court determines that . . . the action or appeal . . . fails to state a claim upon which
26 relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
27 ///
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1 I. Pleading Standard
2 A complaint must contain “a short and plain statement of the claim showing that the pleader
3 is entitled to relief. . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
5 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
6 550 U.S. 544, 555 (2007)). Plaintiffs must set forth “sufficient factual matter, accepted as true, to
7 state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility
8 demands more than the mere possibility that a defendant committed misconduct and, while factual
9 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78.
10 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or
11 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.
12 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To state a claim under section 1983,
13 a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws
14 of the United States was violated and (2) that the alleged violation was committed by a person
15 acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v.
16 Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
17 Under section 1983 the plaintiff must demonstrate that each defendant personally
18 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
19 This requires the presentation of factual allegations sufficient to state a plausible claim for relief.
20 Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
21 proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and
22 to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
23 (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the
24 plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
25 II. Plaintiff’s Allegations
26 Plaintiff identifies the California State Prison in Corcoran, California as the institution
27 where his claims arose. He names a single defendant, Kathleen Allison, the Director of Adult
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1 Division for the California Department of Corrections and Rehabilitation. He seeks damages and
2 injunctive relief in the form of a review of his current housing placement and “transfer control
3 over plaintiff’s housing situation.”
4 As best as the Court can determine, plaintiff alleges as follows:
5 In June 2018, Kathleen Allison directed the integration of Special Needs Yard (“SNY”)
6 inmates with the general prison population. This integration results in violence against SNY
7 inmates like plaintiff. Plaintiff suggests that defendant Allison threatens to integrate inmates at
8 institutions where the integration policy has presumably not yet been implemented in order to
9 “control[] prison yards” and start “a new under ground population class which creates violence
10 within the prison.” Based on these allegations and his alleged injury of “mental and threat of
11 physical violence,” plaintiff brings claims under the equal protection clause, the due process
12 clause, and the Fifth, Eighth, and Fourteenth Amendments.
13 Plaintiff next claims that between February 13, 2014, and May 8, 2018, the “Directors
14 review board Kathleen Allison” placed plaintiff in a single-celled non-disciplinary segregation
15 unit within the mental health unit for several reasons, to include his mental illness
16 (schizophrenia), incidents of retaliation against him by correctional staff due to plaintiff’s
17 litigation activities, and a documented contract to kill plaintiff by the Aryan Brotherhood and
18 Nazi Low Riders gangs. Despite these reasons to retain plaintiff in segregation, plaintiff is now
19 housed in general population at California State Prison in Sacramento, California. He claims he
20 cannot sleep, cannot think clearly, has been physically assaulted, and denied two surgical
21 procedures. For these allegations, plaintiff brings claims under “42 USC §12101(a) section 504 of
22 the rehabilitation Act. EQUAL PROTECTION, Due Process; Cruel & unusual punishment 14th
23 & 5th & 8th u.s.const amendments.”
24 III. Discussion
25 B. Location of Alleged Civil Rights Violations
26 The Court first takes note that, on the form complaint, plaintiff identifies the institution
27 where the alleged violation of his constitutional rights took place as California State Prison in
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1 Corcoran, California, yet in the body of the pleading, he alludes to his integration as an SNY
2 inmate into the general population at California State Prison in Sacramento, California. Where the
3 alleged violations took place is important in determining in which division of this court plaintiff’s
4 claims may be considered. See Local Rule 120(b). Accordingly, in an amended pleading, plaintiff
5 is directed to clarify at which institution the alleged violation of his rights occurred.
6 B. “Short and Plain Statement of the Claim”
7 Rule 8 of the Federal Rules of Civil Procedure mandates that a complaint include a “short
8 and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that each allegation “be simple,
9 concise, and direct.” Fed. R. Civ. P. 8(d)(1). A complaint that is so confusing that its “'true
10 substance, if any, is well disguised’” may be dismissed for failure to satisfy Rule 8. Hearns v. San
11 Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of
12 Richmond, 417 F.2d 426, 431 (9th Cir. 1969)); see also McHenry v. Renne, 84 F.3d 1172, 1180
13 (9th Cir. 1996) (“Something labeled a complaint but written ... prolix in evidentiary detail, yet
14 without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails
15 to perform the essential functions of a complaint.”); Nevijel v. N. Coast Life Ins. Co., 651 F.2d
16 671, 673-74 (9th Cir. 1981) (affirming a dismissal with prejudice for failure to comply with Rules
17 8(a) and 8(e), finding that both the original complaint and an amended complaint were “verbose,
18 confusing and conclusory”).
19 Plaintiff’s complaint does not comply with the standards of Rule 8. It is vague and
20 confusing, failing to set forth the facts in a comprehensible manner. It also fails to clearly
21 articulate the facts giving rise to any claim. For example, plaintiff’s first claim seeks relief for the
22 potential integration of the facility where he is housed whereas his second claim seeks damages
23 for an integration that presumably has already occurred. In addition, plaintiff appears to assert a
24 claim for medical indifference pursuant to the Eighth Amendment, but the facts of this claim are
25 not clearly set forth and it is not clear against whom it is asserted. For these reasons, the
26 complaint must be dismissed.
27 The remainder of this Screening Order will set forth the legal standards for the claims that
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1 plaintiff has identified in his pleading and that relate to the allegations that have been asserted.
2 C. Linkage and Causation
3 To state a claim under section 1983, a plaintiff must show a causal connection or link
4 between the actions of the defendants and the deprivation alleged to have been suffered by the
5 plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a]
6 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of
7 section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to
8 perform an act which he is legally required to do that causes the deprivation of which complaint is
9 made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (citation omitted).
10 C. Eighth Amendment Claims
11 1. Failure to Protect
12 The Eighth Amendment requires prison officials to take reasonable measures to guarantee
13 the safety of prisoners. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, prison
14 officials have an affirmative duty to protect inmates from violence at the hands of other inmates.
15 See id. at 833. To establish a violation of a prison official’s duty to take reasonable steps to
16 protect inmates from physical abuse, the prisoner must establish that prison officials were
17 “deliberately indifferent” to serious threats to the inmate’s safety. Farmer, 511 U.S. at 834. “Mere
18 negligence is not sufficient to establish liability.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.
19 1998). Rather, a plaintiff must set forth facts to show that a defendant knew of, but disregarded,
20 an excessive risk to inmate safety. Farmer, 511 U.S. at 837. That is, “the official must both be
21 aware of facts from which the inference could be drawn that a substantial risk of serious harm
22 exists, and he must also draw the inference.” Id. To prove knowledge of the risk, the prisoner may
23 rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to
24 establish knowledge. Farmer, 511 U.S. at 842.
25 2. Failure to Intervene
26 Prison officials are required “to take reasonable steps to protect inmates from physical
27 abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982). “[A] prison official can violate a
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1 prisoner’s Eighth Amendment rights by failing to intervene.” Robins v. Meecham, 60 F.3d 1436,
2 1442 (9th Cir. 1995).
3 3. Medical Indifference
4 Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the
5 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate
6 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth
7 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and
8 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059
9 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th
10 Cir. 1997) (en banc).
11 A serious medical need exists if the failure to treat the condition could result in further
12 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,
13 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of
14 facts from which the inference could be drawn that a substantial risk of serious harm exists, and
15 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant
16 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk
17 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted
18 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842.
19 In applying this standard, the Ninth Circuit has held that before it can be said that a
20 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
21 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause
22 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle,
23 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating
24 a medical condition does not state a valid claim of medical mistreatment under the Eighth
25 Amendment. Medical malpractice does not become a constitutional violation merely because the
26 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d
27 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate
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1 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.
2 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support
3 a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
4 D. Fourteenth Amendment
5 1. Due Process
6 The plaintiff alleges the same facts in support of his Fourteenth Amendment due process
7 as he does for his Eighth Amendment claims. “‘[W]here a particular Amendment provides an
8 explicit textual source of constitutional protection against a particular sort of government
9 behavior, that Amendment, not the more generalized notion of substantive due process, must be
10 the guide for analyzing these claims.’” County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998)
11 (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994); Graham v. Connor, 490 U.S. 386, 395
12 (1989)). The Eighth Amendment supplies an explicit textual source of constitutional protection
13 when an inmate is denied the right to be free from a knowing and intentional disregard of his
14 safety. Therefore, the Eighth Amendment’s Cruel and Unusual Punishment Clause, and not the
15 more general Fourteenth Amendment Due Process Clause, governs the constitutionality of
16 defendants’ actions. See Ramirez v. Groh, 298 F.3d 1022, 1029 (9th Cir. 2002) (“the Supreme
17 Court has held that plaintiffs cannot ‘double up’ constitutional claims in this way.”) Plaintiff’s
18 due process claims should be dismissed. However, such dismissal is without prejudice to plaintiff
19 filing an amended complaint if he can allege specific facts demonstrating that a defendant
20 violated plaintiff’s due process rights.
21 2. Equal Protection
22 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall
23 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a
24 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne
25 Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). A
26 plaintiff alleging denial of equal protection under 42 U.S.C. § 1983 based on race or other suspect
27 classification must plead intentional unlawful discrimination or allege facts that are at least
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1 susceptible of an inference of discriminatory intent. Monteiro v. Tempe Union High School Dist.,
2 158 F.3d 1022, 1026 (9th Cir. 1998). To state a claim for relief, the plaintiff must allege that the
3 defendant state actor acted at least in part because of plaintiff’s membership in a protected class.
4 See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). There are no factual allegations
5 that any denial was based on plaintiff’s membership in a protected class or otherwise motivated
6 by discriminatory intent.
7 E. Americans with Disabilities Act and the Rehabilitation Act
8 Title II of the Americans with Disabilities Act (“ADA”) provides that “no qualified
9 individual with a disability shall, by reason of such disability, be excluded from participation in or
10 be denied the benefits of the services, programs, or activities of a public entity, or be subject to
11 discrimination by such entity.” 42 U.S.C. § 12132. Title II applies to the services, programs, and
12 activities provided for inmates by jails and prisons. Pennsylvania Dep’t of Corr. v. Yeskey, 524
13 U.S. 206, 208-13 (1998); Simmons v. Navajo Cty., 609 F.3d 1011, 1021-22 (9th Cir. 2010);
14 Pierce v. Cty. of Orange, 526 F.3d 1190, 1214-15 (9th Cir. 2008).
15 “To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a
16 qualified individual with a disability; (2) [he] was excluded from participation in or otherwise
17 discriminated against with regard to a public entity’s services, programs, or activities; and (3)
18 such exclusion or discrimination was by reason of [his] disability.” Lovell v. Chandler, 303 F.3d
19 1039, 1052 (9th Cir. 2002); accord Simmons, 609 F.3d at 1021; McGary v. Cty. of Portland, 386
20 F.3d 1259, 1265 (9th Cir. 2004).
21 While the Rehabilitation Act has the additional requirement that the program or activity
22 receive federal funds, 29 U.S.C. § 794, “[t]here is no significant difference in analysis of the
23 rights and obligations created by the ADA and the Rehabilitation Act. Thus, courts have applied
24 the same analysis to claims brought under both statutes.” Zukle v. Regents of the Univ. of Cal.,
25 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (citations omitted).
26 IV. Conclusion
27 Plaintiff’s complaint fails to state a claim on which relief may be granted. The Court will
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1 grant plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-
2 49 (9th Cir. 1987). If plaintiff does not wish to amend, he may instead file a notice of voluntary
3 dismissal, and the action then will be terminated by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i).
4 Alternatively, plaintiff may forego amendment and notify the Court that he wishes to stand on his
5 complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may
6 elect to forego amendment). If he chooses the last option, the Court will issue findings and
7 recommendations to dismiss the complaint without leave to amend, plaintiff will have an
8 opportunity to object, and the matter will be decided by a District Judge.
9 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation
10 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual
11 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at
12 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his
13 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d
14 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts
15 on curing the deficiencies set forth above.
16 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be
17 complete without reference to any prior pleading. As a general rule, an amended complaint
18 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an
19 amended complaint is filed, the original complaint no longer serves a function in the case. Id.
20 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement
21 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in
22 bold font, “First Amended Complaint,” reference the appropriate case number, and be an original
23 signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 8(a).
24 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief
25 above the speculative level. . .” Twombly, 550 U.S. at 555 (citations omitted).
26 Accordingly, the Court ORDERS:
27 1. Within thirty days from the date of this order, plaintiff must file either a first
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1 amended complaint curing the deficiencies identified by the Court in this order, a
2 notice of voluntary dismissal, or a notice of election to stand on the complaint; and
3 2. If plaintiff fails to file a first amended complaint or notice of voluntary dismissal,
4 the Court will recommend the action be dismissed, with prejudice, for failure to
5 obey a court order and failure to state a claim.
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IT IS SO ORDERED.
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8 Dated: February 7, 2020 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10016852. Public record. Not legal advice.