# (PC) Lewis v. Alison

> District Court, E.D. California · June 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10028458

## Case

- **Court:** District Court, E.D. California
- **Decided:** June 30, 2021
- **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/10028458

## How later opinions describe it (automated extraction)

- emphasizing that the due 8 process and equal protection clauses of the Fourteenth Amendment “are universal in their 9 application, to all persons within the territorial jurisdiction, without regard to any differences of 10 race, of color, or of nationality....”

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 HOMER TYRONE LEWIS, No. 2:21-cv-00366-CKD
12 Plaintiff,
13 v. ORDER
14 KATHLEEN ALLISON, et al.,
15 Defendants.
16
17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §
18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §
19 636(b)(1) and plaintiff has consented to have all matters in this action before a United States
20 Magistrate Judge. See 28 U.S.C. § 636(c).
21 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a
22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.
23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the
25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.
26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding
27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by
28 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
1 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
2 I. Screening Requirement
3 The court is required to screen complaints brought by prisoners seeking relief against a
4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
14 Cir. 1989); Franklin, 745 F.2d at 1227.
15 In order to avoid dismissal for failure to state a claim a complaint must contain more than
16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
23 at 678. When considering whether a complaint states a claim upon which relief can be granted,
24 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and
25 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
26 U.S. 232, 236 (1974).
27 II. Allegations in the Complaint
28 At all times relevant to the allegations in the complaint, plaintiff was an inmate at Mule
1 Creek State Prison. Plaintiff alleges that defendants were deliberately indifferent to his health and
2 safety by quarantining COVID-19 positive inmates in his building. ECF No. 1 at 8. Specifically,
3 plaintiff challenges the “lack of adequate protection from COVID-19 on Facility B Building
4 #10…” that led to him contracting the virus on or about November 26, 2020. ECF No. 1 at 5.
5 Plaintiff still suffers from “severe difficulty breathing, pain and suffering, nightmares, Post
6 Traumatic Stress Disorder, exacerbated depression, mental distress, emotional and mental injury,
7 uncontrollable fear, and other physical and mental harm.” ECF No. 1 at 9.
8 In a separate cause of action, plaintiff alleges that his request for early release was treated
9 differently than other inmates. ECF No. 1 at 6. As a result, plaintiff contends that defendants
10 violated his right to equal protection under the Fourteenth Amendment.
11 Plaintiff names three defendants in this suit. The first is Kathleen Allison, the Secretary of
12 the CDCR. Plaintiff also sues the Warden and Chief Deputy Warden at Mule Creek State Prison.
13 By way of relief, plaintiff seeks declaratory and injunctive relief including his immediate
14 release from confinement. Plaintiff also requests monetary damages.
15 III. Legal Standards
16 The following legal standards are being provided to plaintiff based on his pro se status as
17 well as the nature of the allegations in his complaint.
18 A. Linkage Requirement
19 The civil rights statute requires that there be an actual connection or link between the
20 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
21 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
22 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a
23 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates
24 in another's affirmative acts or omits to perform an act which he is legally required to do that
25 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th
26 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must
27 link each named defendant with some affirmative act or omission that demonstrates a violation of
28 plaintiff's federal rights.
1 B. Supervisory Liability
2 Government officials may not be held liable for the unconstitutional conduct of their
3 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)
4 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability,
5 each Government official, his or her title notwithstanding is only liable for his or her own
6 misconduct.”). When the named defendant holds a supervisory position, the causal link between
7 the defendant and the claimed constitutional violation must be specifically alleged; that is, a
8 plaintiff must allege some facts indicating that the defendant either personally participated in or
9 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act
10 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d
11 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978).
12 C. Cruel and Unusual Punishment Clause
13 The Eighth Amendment's prohibition on cruel and unusual punishment imposes on prison
14 officials, among other things, a duty to “take reasonable measures to guarantee the safety of the
15 inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468 U.S.
16 517, 526–27 (1984)). An inmate's Eighth Amendment rights are violated by a prison official if
17 that official exposes an inmate to a “substantial risk of serious harm,” while displaying
18 “deliberate indifference” to that risk. Farmer, 511 U.S. at 834.
19 D. Deliberate Indifference to a Serious Medical Need
20 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a
21 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S.
22 97, 104-05 (1976). An individual is liable for such a violation only when the individual is
23 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d
24 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v.
25 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000).
26 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439
27 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other
28 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the
1 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s
2 condition could result in further significant injury or the ‘unnecessary and wanton infliction of
3 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he
4 existence of an injury that a reasonable doctor or patient would find important and worthy of
5 comment or treatment; the presence of a medical condition that significantly affects an
6 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d
7 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60.
8 Second, the plaintiff must show the defendant’s response to the need was deliberately
9 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act
10 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the
11 indifference. Id. Under this standard, the prison official must not only “be aware of facts from
12 which the inference could be drawn that a substantial risk of serious harm exists,” but that person
13 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective
14 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A
15 showing of merely negligent medical care is not enough to establish a constitutional violation.
16 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A
17 difference of opinion about the proper course of treatment is not deliberate indifference, nor does
18 a dispute between a prisoner and prison officials over the necessity for or extent of medical
19 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058
20 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of
21 medical treatment, “without more, is insufficient to state a claim of deliberate medical
22 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).
23 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the
24 prisoner must show that the delay caused “significant harm and that Defendants should have
25 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060.
26 D. Equal Protection
27 The Equal Protection Clause generally protects against unequal treatment as a result of
28 intentional or purposeful discrimination. Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997).
1 It applies both inside and outside of prison walls. Lee v. Washington, 390 U.S. 333, 333 (1968).
2 To state a claim, plaintiff must show that defendant intentionally discriminated against him based
3 on his membership in a protected class. Hartmann v. California Dep’t of Corr. & Rehab., 707
4 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013);
5 Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d
6 668, 686 (9th Cir. 2001). An individual's race is a protected class for purposes of the Equal
7 Protection Clause. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (emphasizing that the due
8 process and equal protection clauses of the Fourteenth Amendment “are universal in their
9 application, to all persons within the territorial jurisdiction, without regard to any differences of
10 race, of color, or of nationality....”); see also Johnson v. California, 125 S. Ct. 1141 (2005)
11 (concluding that strict scrutiny standard of review applies to an equal protection challenge to a
12 prison regulation based on race).
13 IV. Analysis
14 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon
15 which relief can be granted under federal law. Plaintiff names the Warden and Chief Deputy
16 Warden at Mule Creek State Prison as defendants, but he fails to establish their personal
17 participation in the alleged constitutional violations. Their supervisory positions at Mule Creek
18 State Prison do not make them per se liable for every constitutional violation that occurs there.
19 See Ashcroft, 566 U.S. at 677. With respect to plaintiff’s equal protection claim against
20 defendant Holmes, plaintiff has not alleged that the decision to deny him early release was based
21 on his membership in a protected class. Therefore, he has failed to state a valid equal protection
22 claim against defendant Holmes. For all these reasons, plaintiff’s complaint must be dismissed.
23 The court will, however, grant leave to file an amended complaint.
24 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions
25 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.
26 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in
27 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C.
28 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the
1 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory
2 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of
3 Regents, 673 F.2d 266, 268 (9th Cir. 1982).
4 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to
5 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
6 complaint be complete in itself without reference to any prior pleading. This is because, as a
7 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
8 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
9 longer serves any function in the case. Therefore, in an amended complaint, as in an original
10 complaint, each claim and the involvement of each defendant must be sufficiently alleged.
11 E. Plain Language Summary for Pro Se Party
12 The following information is meant to explain this order in plain English and is not
13 intended as legal advice.
14 The court has reviewed the allegations in your complaint and determined that they do not
15 state any claim against the defendants. Your complaint is being dismissed, but you are being
16 given the chance to fix the problems identified in this screening order.
17 Although you are not required to do so, you may file an amended complaint within 30
18 days from the date of this order. If you choose to file an amended complaint, pay particular
19 attention to the legal standards identified in this order which may apply to your claims.
20 In accordance with the above, IT IS HEREBY ORDERED that:
21 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.
22 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees
23 shall be collected and paid in accordance with this court’s order to the Director of the California
24 Department of Corrections and Rehabilitation filed concurrently herewith.
25 3. Plaintiff’s complaint is dismissed.
26 4. Plaintiff is granted thirty days from the date of service of this order to file an amended
27 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil
28 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket
1 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an
2 || amended complaint in accordance with this order will result in a recommendation that this action
3 || be dismissed.
4 | Dated: June 30, 2021 Cad □ ke yy a
5 CAROLYNK. DELANEY
6 UNITED STATES MAGISTRATE JUDGE
7
8
9
10
1]
12 12/lewi0366. 14.docx
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10028458. Public record. Not legal advice.