Christopher E. Batres v. Warden

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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) NO. CV 20-4495-JFW (KS)

11 CHRISTOPHER E. BATRES,

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12 Plaintiff, ) MEMORANDUM AND ORDER

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13 v. DISMISSING COMPLAINT

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WITH LEAVE TO AMEND

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15 WARDEN, et al, )

16 Defendant. )

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______ ___________________________ )

19 I. INTRODUCTION

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21 On May 19, 2020, Plaintiff, a California state prisoner who is proceeding pro se and in

22 forma pauperis, filed a civil rights complaint (“Complaint”). (Dkt. No. 1; see also Dkt. No.

23 6 (granting request for leave to proceed without prepayment of filing fee).) In civil rights

24 actions brought by prisoners, Congress requires district courts to dismiss the complaint if the

25 court determines that the complaint, or any portion thereof: (1) is frivolous or malicious; (2)

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1 fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a

2 defendant who is immune from such relief.1 See 28 U.S.C.A. § 1915A.

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4 In determining whether a complaint should be dismissed at screening, the Court applies

5 the standard of Federal Rule of Civil Procedure 12(b)(6): “[a] complaint must contain

6 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

7 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). Thus, the plaintiff’s factual

8 allegations must be sufficient for the court to “draw the reasonable inference that the defendant

9 is liable for the misconduct alleged.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011)

10 (citation and internal quotation marks omitted); see also Bell Atlantic Corp. v. Twombly, 550

11 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a right to relief above the

12 speculative level.”).

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14 When a plaintiff appears pro se in a civil rights case, the court must construe the

15 pleadings liberally and afford the plaintiff the benefit of any doubt. Akhtar v. Mesa, 698 F.3d

16 1202, 1212 (9th Cir. 2012); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document

17 filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded,

18 must be held to less stringent standards than formal pleadings drafted by lawyers.” (citations

19 and internal quotation marks omitted)). In giving liberal interpretation to a pro se complaint,

20 however, the court may not supply essential elements of a claim that were not initially pled,

21 Byrd v. Maricopa County Sheriff’s Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011), and the court

22 need not accept as true “allegations that are merely conclusory, unwarranted deductions of

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1 Even when a plaintiff is neither a prisoner nor proceeding in forma pauperis, Rule 12(b)(6) of the Federal Rules

26 of Civil Procedure permits a trial court to dismiss a claim sua sponte and without notice “where the claimant cannot possibly

win relief.” Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Sparling v. Hoffman Constr. Co.,

27 864 F.2d 635, 638 (9th Cir. 1988) (same); Baker v. Director, U.S. Parole Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per

curiam) (adopting Ninth Circuit’s position in Omar and noting that in such circumstances a sua sponte dismissal “is

28 practical and fully consistent with plaintiffs’ rights and the efficient use of judicial resources”).

1 fact, or unreasonable inferences,” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th

2 Cir. 2001).

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4 If the court finds that a pro se complaint fails to state a claim, the court must give the

5 pro se litigant leave to amend the complaint unless “it is absolutely clear that the deficiencies

6 of the complaint could not be cured by amendment.” Akhtar, 698 F.3d at 1212 (internal

7 quotation marks omitted); Lira v. Herrera, 427 F.3d 1164, 1176 (9th Cir. 2005). However, if

8 amendment of the pleading would be futile, leave to amend may be denied. See Gonzalez v.

9 Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of

10 amendment can, by itself, justify the denial of a motion for leave to amend,’ Bonin v. Calderon,

11 59 F.3d 815, 845 (9th Cir. 1995), [a]nd the district court’s discretion in denying amendment is

12 ‘particularly broad’ when it has previously given leave to amend.”).

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14 For the following reasons, the Court finds that the Complaint fails to state a cognizable

15 claim for relief and must be dismissed.2 However, leave to amend is granted.

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17 II. ALLEGATIONS OF THE COMPLAINT

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19 Plaintiff sues the following individuals: P. Finander, job title not specified, in his

20 individual and official capacity; Robert Strecker, attending caregiver, in his individual and

21 official capacity; R. Cortazar, a Senior Register Nurse at Ironwood State Prison, in her

22 individual and official capacity; and Anthony Khu, Register Nurse at Ironwood State Prison,

23 in his individual and official capacity. (Complaint at 3-4.)

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25 The Complaint alleges that, on February 10, 2017, Plaintiff went to the yard clinic

26 because he was feeling weakness on the left side of his body. (Complaint at 5.) An

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28 2 Magistrate judges may dismiss a complaint with leave to amend without approval of the district judge. See

McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

1 unidentified clinic corrections officer listened to Plaintiff’s concerns and summoned a clinic

2 nurse. (Complaint at 6.)3 The clinic nurse, “Nurse Jane Doe,” assessed Plaintiff and

3 determined that he was showing early signs of a stroke. (Complaint at 6.) Plaintiff started

4 feeling worse and was sent to the Trauma Treatment Area (“T.T.A.”), where he saw Defendant

5 Cortazar. (Complaint at 6, 14.) Defendant Cortazar stated, “This inmate is faking it”

6 (Complaint at 6) and “failed to proper[ly] assess [Plaintiff’s] concerns” (Complaint at 16).

7 Plaintiff was then taken to Palo Verde Hospital in Blythe, California (Complaint at 6.) On

8 February 11, 2017, Plaintiff was taken to R.U.H.S. in Moreno Valley, and, on February 18,

9 2017, he was taken to the Tri-City Medical Center in Oceanside. (Complaint at 6.) On April

10 5, 2017, Plaintiff was taken back to Palo Verde Hospital, “also Eisenhower Medical Center

11 Rancho Mirage, California, November 19, 2017.” (Complaint at 6-7.) At some point, Plaintiff

12 was transferred to the California Healthcare Facility in Stockton for “higher” treatment and

13 rehabilitation so that he could learn to walk again. (Complaint at 8.)

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15 The Complaint states that Defendant Cortazar’s conduct caused Plaintiff to suffer undue

16 physical harm. (Complaint at 7 (citing “Prison Policy, section 32.71”).) The Complaint asserts

17 that Defendant Cortazar “has failed to investigate [Plaintiff’s] ongoing condition of high blood

18 pressure.” (Complaint at 10.) The Complaint alleges that Defendant Cortazar’s response to

19 Plaintiff’s condition exhibited deliberate indifference to Plaintiff’s serious medical needs in

20 violation of the Eight Amendment. (See Complaint at 6-11.) The Complaint also alleges a

21 violation of the Americans with Disabilities Act (“ADA”). (Complaint at 11 (“‘Americans

22 with Disabilities Act’ has been violated.”).)

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24 With respect to the Warden, the Complaint asserts that the warden of an institution is

25 responsible for the custody, treatment, training, and discipline of all inmates under his charge.

26 (Complaint at 13.)

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28 3 The Court cites to the Complaint and its attachments as though they formed a single consecutively paginated

document.

1 Plaintiff seeks a jury trial and compensatory and punitive damages “due to medical

2 malpractice, on all defendants stated in this conspiracy,” which resulted in Plaintiff’s inability

3 to walk. (Complaint at 11, 14, 16.) Plaintiff also seeks the appointment of counsel because of

4 his lack of knowledge of the law, the process, and the procedure.4 (Complaint at 14, 16.)

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6 Plaintiff attached to the Complaint the administrative grievances he filed about his

7 medical care and about the inadequacy of the accommodations made for him following his

8 stroke, the responses he received, and a response from the California Government Claims

9 Program to the claim Plaintiff presented on May 13, 2019. (Complaint, Ex. 1.)

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11 III. DISCUSSION

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13 A. The Complaint Fails to State an Eighth Amendment Claim Against Defendant

14 Cortazar.

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16 To assert an Eighth Amendment claim based on prison medical treatment, or lack

17 thereof, a plaintiff must allege that the defendant was deliberately indifferent to a serious

18 medical need – that is, that the defendant was both “(a) subjectively aware of the serious

19 medical need and (b) failed to adequately respond.” Rosati, 791 F.3d at 1039. A serious

20 medical need exists only if a failure to treat the prisoner’s condition could result in further

21 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d

22 1091, 1096 (9th Cir. 2006). A defendant acts with deliberate indifference by treating, or

23 declining to treat, the plaintiff in a manner that is “medically unacceptable under the

24 circumstances,” and “in conscious disregard of an excessive risk to [the inmate]’s health.”

25 Rosati, 791 F.3d at 1039 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). An

26 “inadvertent or negligent failure to provide adequate medical care alone does not state a claim

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28 4 The Court addresses Plaintiff’s request for the appointment of counsel in a separate order to be filed

concurrently.

1 under § 1983.” Jett, 439 F.3d at 1096 (internal brackets and quotation marks omitted).

2 Accordingly, a prisoner does not state an Eighth Amendment claim solely by alleging that a

3 prison medical provider acted negligently or committed medical malpractice. Toguchi v.

4 Chung, 391 F.3d 1051, 1060 (9th Cir. 2002).

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6 Plaintiff has not alleged sufficient facts to support a plausible inference that any of the

7 defendants knew that Plaintiff was suffering a stroke or faced some other excessive risk to his

8 health and acted in conscious disregard of that excessive risk. Instead, the Complaint states

9 that he was sent to the Trauma Treatment Area (“T.T.A.”), where he saw Defendant Cortazar.

10 (Complaint at 6, 14.) Defendant Cortazar stated, “This inmate is faking it” (Complaint at 6)

11 and “failed to proper[ly] assess [Plaintiff’s] concerns” (Complaint at 16). However, Plaintiff

12 does not specify what symptoms he exhibited that either he, or someone else, reported to

13 Defendant Cortazar nor what symptoms he experienced that were visible to the naked eye

14 and/or that Defendant Cortazar reported observing. (See generally Complaint at 6-14); see

15 also Rosati, 791 F.3d at 1039 (plaintiff must plausibly allege that the defendant was

16 subjectively aware of the serious medical need). Accordingly, the Complaint fails to plausibly

17 allege that Defendant Cortazar was subjectively aware of an excessive risk to his health.

18 Further, beyond accusing Plaintiff of “faking it,” it is unclear what action, or actions,

19 Defendant Cortazar took that reflected her “conscious disregard” of the excessive risk to

20 Plaintiff’s health. According to the Complaint, Plaintiff was transferred from the Trauma

21 Treatment Area to a hospital, which suggests that, although Defendant Cortazar may have

22 unfairly maligned Plaintiff, she responded to his condition appropriately by transferring him

23 to a hospital for additional treatment.

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25 Accordingly, Plaintiff’s claim against Defendant Cortazar must be DISMISSED for

26 failure to state a claim. However, leave to amend is GRANTED. If Plaintiff wishes to file a

27 First Amended Complaint, he shall either omit his claim against Defendant Cortazar or explain

28 with precision what facts support the inferences that: (1) Defendant Cortazar knew that

1 Plaintiff was facing an excessive risk of harm; and (2) took actions that exhibited a conscious

2 disregard of that risk.

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4 B. The Complaint Fails to Allege Any Other Defendant’s Participation in the Alleged

5 Wrongdoing.

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7 Plaintiff sues several other individuals in addition to Defendant Cortazar: P. Finander,

8 job title not specified, in his individual and official capacity; Robert Strecker, attending

9 caregiver, in his individual and official capacity; and Anthony Khu, Register Nurse at

10 Ironwood State Prison, in his individual and official capacity. (Complaint at 3-4.) However,

11 the Complaint is devoid of allegations about how these other Defendants participated in the

12 wrongdoing alleged or otherwise caused Plaintiff to experience a violation of his rights under

13 the Constitution or federal law. “Liability . . . must be based on the personal involvement of

14 the defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Jones v.

15 Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“[T]here must be a showing of personal

16 participation in the alleged rights deprivation.”). To demonstrate a civil rights violation

17 against a government official, a plaintiff must show either direct, personal participation of the

18 official in the harm or some sufficient causal connection between the official’s conduct and

19 the alleged constitutional violation. See Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011).

20 Further, government officials may not be held liable for the unconstitutional conduct of their

21 subordinates under a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676

22 (2009). Rather, to be held liable, a supervising officer has to personally take some action

23 against the plaintiff or “set in motion a series of acts by others . . . which he knew or reasonably

24 should have known, would cause others to inflict the constitutional injury” on the plaintiff.

25 Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal quotations omitted).

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27 There are no factual allegations against Defendants Finander, Strecker, or Khu. Further,

28 the sole allegation against the Warden is that he is responsible for the care of the inmates in

1 his custody. As stated above, a prison warden may not be held liable for the unconstitutional

2 conduct of his subordinates under a theory of respondeat superior. See Iqbal, 556 U.S. at 676.

3 Rather, to be held liable, a warden has to personally take some action against the plaintiff or

4 “set in motion a series of acts by others . . . which he knew or reasonably should have known,

5 would cause others to inflict the constitutional injury” on the plaintiff. Larez, 946 F.2d at 646.

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7 Accordingly, Plaintiff’s claims against Defendants Finander, Strecker, and Khu are

8 DISMISSED for failure to state a claim. However, leave to amend is GRANTED. If Plaintiff

9 wishes to file a First Amended Complaint, he shall either omit his claims against Defendants

10 Finander, Strecker, and/or Khu or explain with precision what facts support the inference that

11 each of these Defendants directly participated in the harm to Plaintiff or that there is some

12 other causal connection between each of these Defendants’ conduct and the legal injuries

13 alleged.

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15 C. The Complaint Fails to State a Claim Under the Americans with Disabilities Act.

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17 The Complaint refers vaguely to a violation of the Americans with Disabilities

18 (“ADA”). (Complaint at 11 (“‘Americans with Disabilities Act’ has been violated.”).) Title

19 II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq., “prohibit[s]

20 discrimination on the basis of disability” by “public entities,” and the United States Supreme

21 Court has held that “[s]tate prisons fall squarely within the statutory definition of ‘public

22 entity.’” Pennsylvania v. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 208, 210 (1998). To assert

23 a violation of Title II of the ADA, Plaintiff must plausibly allege that: (1) he is a qualified

24 individual with a disability; (2) he was excluded from participation in or otherwise

25 discriminated against with regard to a public entity’s services; and (3) such exclusion or

26 discrimination was by reason of his disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th

27 Cir. 2002) (citing Weinrich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978

28 (9th Cir. 1997)); see also 42 U.S.C. § 12132. However, Plaintiff has not clearly alleged what

1 his disability was at the time of the alleged discrimination or exclusion nor has he identified

2 any program or service that he was excluded from, or discriminated against, because of that

3 disability. Accordingly, Plaintiff’s ADA claim must be DISMISSED.

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5 However, leave to amend is GRANTED. If Plaintiff elects to file a First Amended

6 Complaint, he shall either omit his ADA claim(s) or clearly identify which Defendants he

7 believes violated the ADA as well as the disability he has and clearly explain how Defendants

8 excluded him from participating in or otherwise discriminated against him in the provision of

9 prison services because of that disability.

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11 D. The Eleventh Amendment Bars Claims For Damages Against Defendants in Their

12 Official Capacity.

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14 Plaintiff sues Defendants in their individual and official capacity solely for damages. As

15 stated above, Plaintiff fails to state a claim against Defendants in their individual capacity.

16 Plaintiff’s official capacity claims are also defective.

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18 An “official capacity suit is, in all respects other than name, to be treated as a suit against

19 the entity” and not against the official personally. Kentucky v. Graham, 473 U.S. 159, 166

20 (1985). Thus, Plaintiff’s claims against Defendants—all of whom are purportedly California

21 Department of Corrections and Rehabilitation employees—in their official capacity are

22 properly treated as claims against the State of California itself. See Leer v. Murphy, 844 F.2d

23 628, 631-32 (9th Cir. 1988) (finding claims against prison correctional officer, warden, and

24 other officials in official capacity to be claims against State). However, the Eleventh

25 Amendment to the U.S. Constitution bars suits against states, state agencies, and state officials

26 in their official capacity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“We

27 hold that neither a State nor its officials acting in their official capacities are ‘persons’ under

28 § 1983.”); Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (California

1 Department of Corrections and Rehabilitation is a state agency entitled to Eleventh

2 Amendment immunity); Leer, 844 F.2d at 631-32. Accordingly, Plaintiff’s claims for money

3 damages against Defendants in their official capacity are barred by the Eleventh Amendment

4 and must be DISMISSED. See Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999)

5 (“The State of California has not waived its Eleventh Amendment immunity with respect to

6 claim brought under § 1983 in federal court . . .”); Pena v. Gardner, 976 F.2d 469, 472 (9th

7 Cir. 1992) (per curiam) (as amended) (damages claim against state prison officials sued in

8 official capacity barred by Eleventh Amendment).

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10 However, leave to amend is GRANTED. If Plaintiff elects to file a First Amended

11 Complaint, he shall either omit his claims against state employees in their official capacity or

12 sue state employees in their official capacity for injunctive relief only. However, if Plaintiff

13 elects to do the latter, he also is cautioned that, “[b]ecause the real party in interest in an

14 official-capacity suit is the governmental entity and not the named official, the entity’s policy

15 or custom must have played a part in the violation of federal law.” Hafer v. Melo, 502 U.S.

16 21, 25 (1991) (internal quotation marks and citation omitted; emphasis added); see also

17 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013) (Plaintiff

18 seeking injunctive relief against the State must “identify the law or policy challenged as a

19 constitutional violation and name the official within the entity who can appropriate respond to

20 injunctive relief.”). Accordingly, to state a claim against Defendants in their official capacity,

21 Plaintiff must identify the policy or custom that caused the legal injuries alleged.

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23 IV. CONCLUSION

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25 For the reasons stated above, the Complaint is dismissed with leave to amend. If

26 Plaintiff still wishes to pursue this action, he is granted twenty-one (21) days from the date of

27 this Memorandum and Order within which to file a First Amended Complaint. In any

28 amended complaint, Plaintiff shall cure the defects described above.

1 Plaintiff shall not include new defendants or new allegations that are not

2 reasonably related to the claims asserted in the original complaint. Further, the First

3 Amended Complaint, if any, shall be complete in itself and shall bear both the designation

4 “First Amended Complaint” and the case number assigned to this action. It shall not refer

5 to, or rely on, the Complaint or any other prior pleadings, and claims and defendants that

6 are not expressly included in the First Amended Complaint shall be deemed abandoned.

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8 In any amended complaint, Plaintiff shall either omit his claim against Defendant

9 Cortazar or explain with precision what facts support the inferences that: (1) Defendant

10 Cortazar knew that Plaintiff was facing an excessive risk of harm; and (2) took actions that

11 exhibited a conscious disregard of that risk. In any amended complaint, Plaintiff shall also

12 omit his claims against Defendants Finander, Strecker, and/or Khu or explain with precision

13 what facts support the inference that each of these Defendants directly participated in the harm

14 to Plaintiff or that there is some other causal connection between each of these Defendants’

15 conduct and the legal injuries alleged.

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17 In any amended complaint, Plaintiff shall also either omit his ADA claim(s) or clearly

18 identify which Defendants he believes violated the ADA, identify the disability he has, and

19 clearly explain how Defendants excluded him from participating in or otherwise discriminated

20 against him in the provision of prison services because of that disability. Finally, in any

21 amended complaint, Plaintiff shall also either omit his claims against state employees in their

22 official capacity or identify the policy or custom that caused the legal injuries alleged and sue

23 state employees in their official capacity for injunctive relief only.

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25 Plaintiff may not rely on conclusory allegations and formulaic recitations of

26 applicable law. Plaintiff shall make clear the nature and grounds for each claim, specifically

27 identify the defendants he maintains are liable for that claim, clearly and concisely explain the

28 factual and legal basis for their liability, and identify which individual defendants are being

1 || sued in their individual capacity and which are being sued in their official capacity. Plaintiff

2 || is strongly encouraged to utilize the Central District’s standard civil rights complaint form

3 || when filing any amended complaint.

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5 Plaintiff’s failure to timely comply with this Order may result in a recommendation

6 || of dismissal. If Plaintiff no longer wishes to pursue this action, in whole or in part, he

7 || may voluntarily dismiss it, or any portion of it, by filing a signed document entitled

8 || ‘‘Notice of Dismissal’ in accordance with Federal Rule of Civil Procedure 41(a)(1).

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10 Further, in deciding whether to grant Plaintiff additional opportunities to amend his

11 || pleadings, the Court will keep in mind that Plaintiff voluntarily dismissed a prior lawsuit

12 || asserting a civil rights claim concerning the same operative facts as this one and against one

13 || or more of the instant Defendants after receiving several opportunities to amend his pleadings

14 || to state a claim upon which relief could be granted. See Batres v. Cortazar, EDCV 19-1439-

15 || JEW (KS) (Jan. 24, 2020); see also Gonzalez, 759 F.3d at 1116 (“the district court’s discretion

16 || in denying amendment is ‘particularly broad’ when it has previously given leave to amend”’).

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18 || DATE: June 25, 2020

20 KAREN L. STEVENSON

UNITED STATES MAGISTRATE JUDGE

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25 || THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED

6 TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS

WESTLAW OR LEXIS.

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