(PC) Ramirez v. CDCR - California Corrections

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JOSE RAMIREZ, 1:19-cv-01688-GSA-PC

12 Plaintiff, ORDER DISMISSING COMPLAINT FOR

FAILURE TO STATE A CLAIM, WITH

13 vs. LEAVE TO AMEND

(ECF No. 1.)

14 CDCR, et al.,

THIRTY-DAY DEADLINE TO FILE

15 Defendants. FIRST AMENDED COMPLAINT

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24 I. BACKGROUND

25 Jose Ramirez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

26 with this civil rights action under 42 U.S.C. § 1983. On December 3, 2019, Plaintiff filed the

27 Complaint commencing this action which is now before the court for screening. 28 U.S.C. §

28 1915. (ECF No. 1.)

1 II. SCREENING REQUIREMENT

2 The court is required to screen complaints brought by prisoners seeking relief against a

3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

7 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

8 dismiss the case at any time if the court determines that the action or appeal fails to state a claim

9 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

10 A complaint is required to contain “a short and plain statement of the claim showing that

11 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

14 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

15 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

16 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state

17 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim

18 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

19 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal

20 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this

21 plausibility standard. Id.

22 III. SUMMARY OF COMPLAINT

23 Plaintiff is presently incarcerated at California City Correctional Facility (CCCF) in

24 California City, California, in the custody of the California Department of Corrections and

25 Rehabilitation (CDCR), where the events at issue in the Complaint allegedly occurred. Plaintiff

26 names as defendants CDCR and Nurse Aragon (collectively, “Defendants”). A summary of

27 Plaintiff’s allegations follows:

28 On November 17, 2018, Plaintiff came to the clinic for weekly counseling and daily

1 insulin shots, and Nurse Aragon gave him the wrong insulin shot. This caused Plaintiff to have

2 a hypoglycemic episode during which he feared losing his life. Two inmates helped Plaintiff

3 back to the pill line. Plaintiff experienced dizziness and disorientation. It was a tragic

4 experience. Plaintiff’s blood was at 40 and within ten minutes at 60. Nurse Aragon still sent

5 Plaintiff back to his cell even though Plaintiff informed her that he was still feeling dizzy and

6 disoriented. Nurse Aragon failed to report her mistake, or that the incident ever took place.

7 On November 23, 2018, Plaintiff asked Nurse Olisa [not a defendant] if an incident report

8 had been filed. The next day Nurse Aragon began to retaliate against Plaintiff. She would not

9 allow Plaintiff to see the insulin bottles she drew insulin from, and when Plaintiff asked to view

10 them she began yelling at him to leave the medical office where treatment was being

11 administered. Later, Nurse Aragon called Plaintiff into the office and handed him a syringe with

12 medication already drawn. Plaintiff declined the shot and did not eat dinner that night.

13 Plaintiff filed a complaint with prison officials and nothing happened as far as the issue

14 being addressed or the nurse being removed from administering any other medications to Plaintiff

15 or other inmates.

16 As relief, Plaintiff requests monetary damages and injunctive relief.

17 IV. PLAINTIFF’S CLAIMS

18 The Civil Rights Act under which this action was filed provides:

19 Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

20 be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

21 secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . .

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23 42 U.S.C. § 1983.

24 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

25 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,

26 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v.

27 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d

28 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v.

1 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law

2 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the

3 federal Constitution, Section 1983 offers no redress.” Id.

4 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under

5 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution

6 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also

7 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of

8 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983,

9 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act

10 which he is legally required to do that causes the deprivation of which complaint is made.’”

11 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting

12 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be

13 established when an official sets in motion a ‘series of acts by others which the actor knows or

14 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479

15 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles

16 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp.,

17 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010,

18 1026 (9th Cir. 2008).

19 A. Defendant CDCR – Eleventh Amendment

20 Plaintiff named CDCR as a defendant. The Eleventh Amendment bars suits against state

21 agencies, as well as those where the state itself is named as a defendant, regardless of the relief

22 sought. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993);

23 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Dittman v. State

24 of California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). CDCR is an agency of the state and is

25 entitled to Eleventh Amendment immunity. See, e.g., Gomes v. Mathis, No. CV 17–7022, 2018

26 WL 2085237, at *3 (C.D. Cal. May 3, 2018). The Eleventh Amendment does not, however, bar

27 suits seeking damages against state officials/employees in their individual capacity. See Hafer v.

28 Melo, 502 U.S. 21, 30-31 (1991).

1 Because CDCR is a state agency, it is entitled to Eleventh Amendment immunity from

2 suit. Therefore, Plaintiff fails to state a claim against defendant CDCR.

3 B. Medical Claim – Eighth Amendment

4 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

5 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

6 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for

7 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by

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

9 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need

10 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050,

11 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133,

12 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown

13 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm

14 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference

15 may be manifested “when prison officials deny, delay or intentionally interfere with medical

16 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id.

17 Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to

18 further harm in order for the prisoner to make a claim of deliberate indifference to serious medical

19 needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404,

20 407 (9th Cir. 1985)).

21 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

22 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the

23 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but

24 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

25 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the

26 official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting

27 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of

28 medical malpractice or negligence is insufficient to establish a constitutional deprivation under

1 the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a

2 constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

3 “A difference of opinion between a prisoner-patient and prison medical authorities

4 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337,

5 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course

6 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . .

7 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.”

8 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

9 Plaintiff has shown that he had a serious medical need because he suffers from diabetes

10 and needs daily insulin injections. However, Plaintiff has not shown that defendant Nurse

11 Aragon acted with deliberate indifference to a substantial risk of serious harm to Plaintiff’s

12 health. Plaintiff shows that Nurse Aragon gave him the wrong insulin shot causing Plaintiff to

13 experience a hypoglycemia episode during which his blood sugar levels rapidly fluctuated and

14 he felt dizzy and disoriented. Plaintiff does not however allege facts showing that Nurse Aragon

15 knowingly gave Plaintiff the wrong insulin shot, nor if she did know that she was aware of the

16 risk of harm to Plaintiff if given the wrong insulin shot. Further, there are no indications that

17 Plaintiff suffered further harm after being returned to his cell.

18 Therefore, Plaintiff fails to state a medical claim under the Eighth Amendment against

19 defendant Aragon.

20 C. Equal Protection – Fourteenth Amendment

21 Plaintiff claims that his rights to equal protection under the Fourteenth Amendment were

22 violated. The Equal Protection Clause requires the State to treat all similarly situated people

23 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87

24 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical

25 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972); Ward v. Walsh, 1 F.3d

26 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987).

27 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts

28 plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate against

1 Plaintiff based upon membership in a protected class,’” (citing see Thornton v. City of St. Helens,

2 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th

3 Cir. 2001)), or that similarly situated individuals were intentionally treated differently without a

4 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553

5 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564,

6 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North

7 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

8 Plaintiff has not alleged facts demonstrating that he was intentionally discriminated

9 against on the basis of his membership in a protected class, or that he was intentionally treated

10 differently than other similarly situated inmates without a rational relationship to a legitimate

11 state purpose. Therefore, Plaintiff fails to state a claim for violation of his right to equal

12 protection.

13 D. Retaliation – First Amendment Claim

14 “Prisoners have a First Amendment right to file grievances [and lawsuits] against prison

15 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114

16 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the

17 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An

18 assertion that a state actor took some adverse action against an inmate (2) because of (3) that

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

20 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

21 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation

22 claim, Plaintiff must establish a nexus between the retaliatory act and the protected activity.

23 Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014).

24 The court finds that Plaintiff has not alleged any injury - or chilling - resulting from

25 defendant Aragon’s reticence to allow Plaintiff to view the insulin bottles she drew insulin from.

26 The action taken by defendant Aragon – not allowing Plaintiff to see the insulin bottles - is not

27 the type of adverse action that gives rise to a cognizable claim for relief for retaliation. Cases in

28 this Circuit addressing First Amendment retaliation claims involve situations where the action

1 taken by the defendant was clearly adverse to the plaintiff. See Hines v. Gomez, 108 F.3d 265,

2 267 (9th Cir. 1997) (guards found guilty of charging inmate with a false rules violation and

3 finding him guilty in retaliation for inmate’s prior use of the grievance system); Pratt v. Rowland,

4 65 F.3d 802, 806 (9th Cir. 1995) (inmate alleged that he was transferred to a different prison and

5 double-celled in retaliation for exercising his First Amendment rights); Valandingham v.

6 Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (inmate alleged that officers labeled him a snitch

7 for petitioning prison and government officials for redress and that, because of this labeling, the

8 inmate was approached by other inmates and threatened with harm); Rizzo v. Dawson, 778 F.2d

9 527, 530-32 (9th Cir. 1985) (inmate alleged that he was reassigned out of a vocational class and

10 transferred to a different prison because of his activities as a jailhouse lawyer).

11 To establish a prima facie case, Plaintiff must allege and show that defendant Aragon

12 acted to retaliate for his exercise of a protected activity, and that defendant Aragon’s actions did

13 not serve a legitimate penological purpose. Plaintiff has not done so. Plaintiff fails to demonstrate

14 a causal nexus between the alleged retaliation and any constitutionally protected activity showing

15 that the retaliatory act was done because of the protected activity. Accordingly, Plaintiff fails to

16 state a cognizable retaliation claim.

17 E. State Law Claims

18 Plaintiff brings claims for negligence and fraud. These are state law claims. Violation

19 of state tort law, state regulations, rules and policies of the CDCR, or other state law is not

20 sufficient to state a claim for relief under § 1983. Section 1983 does not provide a cause of action

21 for violations of state law. See Galen v. Cnty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).

22 To state a claim under § 1983, there must be a deprivation of federal constitutional or statutory

23 rights. See Paul v. Davis, 424 U.S. 693 (1976); also see Buckley v. City of Redding, 66 F.3d

24 188, 190 (9th Cir. 1995); Gonzaga University v. Doe, 536 U.S. 273, 279 (2002).

25 Although the court may exercise supplemental jurisdiction over state law claims, Plaintiff

26 must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367. In this

27 instance, the Court fails to find any cognizable federal claims in the Complaint. Therefore,

28 Plaintiff’s state claims fail.

1 Plaintiff is also advised that the Government Claims Act requires exhaustion of state law

2 claims with California’s Victim Compensation and Government Claims Board, and Plaintiff is

3 required to specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42

4 Cal.4th 201, 208-09 (Cal. 2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th

5 1234, 1239 (Cal. 2004); Mabe v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101,

6 1111 (9th Cir. 2001); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir.

7 1995); ); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff

8 has not done so.

9 F. Injunctive Relief

10 Besides monetary damages, Plaintiff requests injunctive relief. Plaintiff requests that

11 medical staff at CCCF be retrained on how to administer medications, how to safeguard patients

12 who have received improper treatments, and apparently also requesting that nurse Aragon be

13 removed from her nursing duties. The court cannot award this form of relief. Any award of

14 equitable relief is governed by the Prison Litigation Reform Act, which provides in relevant part:

15 Prospective relief in any civil action with respect to prison conditions shall extend

16 no further than necessary to correct the violation of the Federal right of a particular

17 plaintiff or plaintiffs. The court shall not grant or approve any prospective relief

18 unless the court finds that such relief is narrowly drawn, extends no further than

19 necessary to correct the violation of the Federal right, and is the least intrusive

20 means necessary to correct the violation of the Federal right. 18 U.S.C. §

21 3626(a)(1)(A).

22 V. CONCLUSION AND ORDER

23 For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable

24 claims in the Complaint against any of the Defendants for violating his constitutional or other

25 federal rights. Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should

26 freely give leave to amend when justice so requires.” Plaintiff is granted leave to file a First

27 Amended Complaint within thirty days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

28 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

1 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,

2 Iqbal, 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must set forth “sufficient factual matter

3 . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555).

4 Plaintiff is informed that the court cannot refer to a prior pleading in order to make

5 Plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be

6 complete in itself without reference to any prior pleading. This requirement exists because, as a

7 general rule, an amended complaint supersedes the original complaint. See Ramirez v. County

8 of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the

9 original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once

10 Plaintiff files an amended complaint, the original pleading no longer serves any function in the

11 case. Therefore, in an amended complaint, as in an original complaint, each claim and the

12 involvement of each defendant must be sufficiently alleged. The amended complaint should be

13 clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and

14 be an original signed under penalty of perjury.

15 Based on the foregoing, IT IS HEREBY ORDERED that:

16 1. Plaintiff’s Complaint is DISMISSED for failure to state a claim, with leave to

17 amend;

18 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form;

19 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file

20 a First Amended Complaint curing the deficiencies in his claims identified in this

21 order;

22 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and

23 refer to the case number 1:19-cv-01688-GSA-PC; and

24 5. Plaintiff’s failure to comply with this order shall result in a recommendation that

25 this action be dismissed in its entirety for failure to state a claim.

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IT IS SO ORDERED.

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28 Dated: October 21, 2020 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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