(PC) Williams v. Zaragoza

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 LANCE WILLIAMS, No. 2:21-cv-0153 TLN AC P

12 Plaintiff,

13 v. ORDER

14 L. ZARAGOZA, et al.,

15 Defendants.

16

17 Plaintiff, a former prisoner proceeding pro se, has filed this civil rights action seeking

18 relief under 42 U.S.C. § 1983. ECF Nos. 1 (original complaint), 6 (first amended complaint

19 (“FAC”)). Plaintiff has also filed applications to proceed in forma pauperis as well as a request to

20 participate in the court’s Alternative Dispute Resolution Program (“ADR Program”). ECF Nos.

21 13, 15, 16. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

22 636(b)(1)(B) and Local Rule 302.

23 For the reasons stated below, plaintiff’s earlier-filed in forma pauperis application (ECF

24 No. 13) will be disregarded as improperly filed, and plaintiff’s later-filed application to proceed

25 in forma pauperis by a non-prisoner (ECF No. 16) will be granted. In addition, plaintiff’s request

26 to participate in the court’s ADR Program will be denied as premature. Finally, plaintiff will be

27 given the opportunity either to amend the FAC or to proceed on the viable claims as identified

28 herein.

1 I. IN FORMA PAUPERIS APPLICATION

2 On December 14, 2022, plaintiff filed an application to proceed in forma pauperis. ECF

3 No. 13. The application, however, was not on the correct form. As a result, on December 23,

4 2022, the Clerk of Court was directed to send plaintiff the in forma pauperis application for non-

5 prisoners. ECF No. 14.

6 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

7 1915(a) along with a new motion to proceed in forma pauperis that is on the proper form. ECF

8 No. 16. Accordingly, the motion will be granted. The earlier motion docketed in December 2022

9 (ECF No. 13) will be disregarded as improperly filed.

10 II. SCREENING REQUIREMENT

11 The court is required to screen complaints brought by individuals seeking relief against a

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

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

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

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

16 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

17 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

18 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

19 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

20 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

21 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

22 Cir. 1989); Franklin, 745 F.2d at 1227.

23 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

24 which relief may be granted if it appears beyond doubt that a plaintiff can prove no set of facts in

25 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

26 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

27 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

28 this standard, the court must accept as true the allegations of the complaint in question, Hosp.

1 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

2 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

3 McKeithen, 395 U.S. 411, 421 (1969).

4 III. FIRST AMENDED COMPLAINT

5 Plaintiff, a litigant formerly housed at Deuel Vocational Institute (“DVI”), has filed the

6 instant FAC. ECF No. 6. It names several individuals as defendants, all of whom were employed

7 at DVI during the period in question: Counselors L. Zaragoza, M. Pierre, and Esparza; Drs.

8 Fields, Bhatt, Bawari, A. Bunn, and S. Katz, and Correctional Officers Estrada and Tovar. See

9 generally id. at 1-3.

10 Plaintiff raises multiple claims in the three claims sections of the complaint. Claim One

11 asserts putative claims based on poor living conditions in September 2020 and improper program

12 placement in October 2020, along with several other claims related to excessive force, cruel and

13 unusual punishment, denial of due process, retaliation, and failure to protect. See ECF No. 6 at 4-

14 12. Claim Two alleges deliberate indifference in December 2020, related to defendants’

15 prescription of medication that plaintiff did not want. Id. at 13. Claim Three alleges retaliation

16 and cruel and unusual punishment arising from defendants’ placement of plaintiff in an unsanitary

17 cell in a COVID-19 ward in February 2021 in response to plaintiff’s grievances. Id. at 14.

18 IV. DISCUSSION

19 A. Claims for Which a Response Will Be Required

20 1. Claim One: Excessive Force - Defendant Estrada

21 In Claim One, plaintiff alleges that in January 2021, defendant Estrada failed to properly

22 process his legal mail and refused to provide plaintiff with various grievance forms when he

23 asked for them. ECF No. 6 at 10. Estrada threatened to write plaintiff up, and words were

24 exchanged between the two which, according to plaintiff, ended in Estrada punching plaintiff in

25 the chest, leaving him in pain for weeks. Id. at 10-11. Plaintiff further asserts that the next day,

26 after Estrada’s sergeant asked to see him, he threatened plaintiff again, stating, “If I found out you

27 put paperwork on me that punch is peanuts what I’ll do to you.” Id. at 11.

28 ////

1 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places

2 restraints on prison officials, who may not . . . use excessive physical force against prisoners.”

3 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S. 1 (1992)).

4 “[W]henever prison officials stand accused of using excessive physical force in violation of the

5 [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-faith

6 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson,

7 503 U.S. at 6-7 (brackets added) (referencing Whitley v. Albers, 475 U.S. 312 (1986)).

8 Under the circumstances alleged, there was no need for Estrada to punch plaintiff in order

9 to maintain order or restore discipline. Accordingly, the allegations state a claim of excessive

10 force against defendant Estrada.

11 2. Claim One: Excessive Force and Retaliation – Defendants Bawari and Tovar

12 In Claim One, plaintiff also alleges that in January 2021, defendants Bawari and Tovar

13 came to plaintiff’s cell in response to an incident that had occurred between plaintiff and a “Jane

14 Doe”1 a few days earlier.2 ECF No. 6 at 11. Plaintiff states defendants were there to respond to

15 his inquiry regarding the identity of the “Jane Doe” who had slapped him. Id.

16 Plaintiff alleges that during their conversation, Bawari told him she did not know the

17 name of the person who had slapped him and that she was unable to find out. ECF No. 6 at 11.

18 Thereafter, however, plaintiff states Bawari backed up and told defendant Tovar to “do something

19 to [plaintiff]” because “he keeps putting in paperwork pissing me and everybody off.” Id. at 11.

20 Plaintiff further alleges that two minutes later, Tovar entered plaintiff’s cell alone and out

21 of everyone’s view and told him that he wanted to talk to him. ECF No. 6 at 11. Ultimately,

22 Tovar is said to have told plaintiff to stop “putting in paperwork”; that he was “pissing everybody

23 off,” and that he was “gonna get hurt and not make it home.” Id. at 12. In response, plaintiff

24 states he told Tovar, “you don’t tell me what to do.” Id. Tovar then pushed plaintiff, causing him

25 1 As stated below, it appears from the FAC that “Jane Doe” is defendant S. Katz. See ECF No. 6

26 at 3. If this is not the case, plaintiff must state as much in any amended complaint he may file.

2 Although plaintiff does not identify the incident, based on the information in the pleading, the

27 court presumes plaintiff is referring to the slap incident that occurred on January 5, 2021.

Compare ECF No. 6 at 9-10 (plaintiff describing a slapping incident that occurred on January 5,

28 2021), with id. at 11 (plaintiff referencing “the incident on 1-5-21”).

1 to hit his head on the top bunk. A scuffle ensued, during which Tovar purportedly put plaintiff in

2 a chokehold (which cut off plaintiff’s breathing for about a minute) and kicked him. Id. Then, as

3 Tovar left the cell, he is alleged to have said to plaintiff, “I dare you to 602 me,” and he refused to

4 get medical care for plaintiff when he asked for it. Id. Plaintiff contends that both defendants are

5 liable for defendant Tovar’s actions. Id.

6 Clearly, Tovar putting plaintiff in a chokehold and kicking him because he insisted on

7 filing 602 grievances did not constitute a good faith effort to maintain or restore discipline. See

8 Hudson, 503 U.S. at 6-7. The allegations indicate that Tovar’s actions were done to retaliate

9 against plaintiff and to cause him harm. Furthermore, Bawari’s request that Tovar “do

10 something,” to plaintiff supports her liability. See Robins v. Meecham, 60 F.3d 1436, 1442 (9th

11 Cir. 1995) (stating failure to intervene can violate prisoner’s Eighth Amendment rights).

12 Therefore, both defendants will be directed to respond to these excessive force and retaliation

13 claims.

14 3. Claim Three: Retaliation and Cruel and Unusual Punishment

15 In Claim Three, plaintiff alleges that in February 2021, defendant Estrada engaged in

16 retaliation and subjected him to cruel and unusual punishment when Estrada intentionally had

17 plaintiff relocated to a unit with inmates who had either had or were currently ill with the

18 COVID-19 virus. ECF No. 6 at 14. He states that defendant Estrada did this because plaintiff

19 had filed an excessive force grievance against him. Id. Plaintiff claims that after being moved

20 there, he “immediately began feeling symptoms of coronavirus.” He asserts that Estrada’s actions

21 “put [him] at a heightened risk of catching [it].” Id.

22 a. First Amendment Retaliation

23 “It is well-established that, among the rights they retain, prisoners have a First

24 Amendment right to file prison grievances.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.

25 2009) (citing Rhodes v. Robinson, 408 F.3d 559, 566 (9th Cir. 2005); see generally Bruce v. Ylst,

26 351 F.3d 1283, 1288 (9th Cir. 2003). “Retaliation against prisoners for their exercise of this right

27 is itself a constitutional violation, and prohibited as a matter of ‘clearly established law’.”

28 ////

1 Brodheim, 584 F.3d at 1269 (citing Rhodes, 408 F.3d at 566; Pratt v. Rowland, 65 F.3d 802, 806

2

& n.4 (9th Cir. 1995)).

3

Claim Three states a claim of retaliation against Estrada. It asserts that on February 6.

4

2021, defendant Estrada told plaintiff that he was “going to do everything he [could]” to have

5

plaintiff placed in a unit with inmates who had tested positive for the coronavirus so that plaintiff

6

could “catch it and get sick and die” because he wanted plaintiff out of H-Unit because he had

7

filed an excessive force grievance against him. ECF No. 6 at 14. The next day, plaintiff asserts,

8

he was transferred to F-Unit, which was used to house inmates who had previously had or who

9

still had the virus. Id. In light of these facts, plaintiff may proceed on this First Amendment

10

retaliation claim, and defendant Estrada will be required to respond to it.

11

b. Eighth Amendment Cruel and Unusual Punishment

12

“The Eighth Amendment proscribes the infliction of cruel and unusual punishment on

13

prisoners. Whether a particular event or condition in fact constitutes ‘cruel and unusual

14

punishment’ is gauged against ‘the evolving standards of decency that mark the progress of a

15

maturing society.’ ” Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000) (quoting Hudson,

16

503 U.S. at 8). Only the unnecessary and wanton infliction of pain upon a prisoner constitutes

17

cruel and unusual punishment forbidden by the Eighth Amendment. Whitley, 475 U.S. at 319.

18

To constitute cruel and unusual punishment, conduct that does not purport to be

19

punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or

20

safety.” Whitley, 475 U.S. at 319. Accordingly, “courts considering a prisoner’s claim must ask:

21

1) if the officials acted with a sufficiently culpable state of mind; and 2) if the alleged wrongdoing

22

was objectively harmful enough to establish a constitutional violation.” Somers v. Thurman, 109

23

F.3d 614, 622 (9th Cir. 1997) (citing Hudson, 503 U.S. at 8).

24

Defendant Estrada’s alleged intentional and malicious placement of plaintiff in a unit that

25

had been designated for inmates with COVID-19, for no reason other than plaintiff having filed a

26

grievance against him, states a viable Eighth Amendment cruel and unusual punishment claim.

27

Accordingly, defendant Estrada will be required to respond to Claim Three.

28

1 B. Failure to State a Claim

2 1. Claim One: Cruel and Unusual Punishment and Retaliation

3 In Claim One, plaintiff alleges that when he arrived at DVI in September 2020, he was

4 forced to live in squalid conditions. See generally ECF No. 6 at 4. In support of this allegation,

5 he claims that he was placed in a unit with dirty cells, that it was cold, and that it had various bugs

6 that bit him. Id. He further alleges that the sink and toilet did not work, that he was deprived of

7 “basic life necessities,” and that he was not given adequate programming. Id. In addition,

8 plaintiff contends that he was treated harshly by staff officers, and that he was not given the forms

9 needed to file grievances. Id. Finally, plaintiff contends that he was subjected to an “ongoing

10 campaign of harassment, assaults, threats and deliberate retaliation,” because he had engaged in

11 “First Amendment constitutionally protected activities.” Id.

12 To state a claim under Section 1983, a plaintiff must allege facts showing an actual

13 connection or link between the actions of the named defendants and the alleged deprivations of

14 his constitutional rights. See generally Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

15 “Vague and conclusory allegations concerning the involvement of official personnel in civil

16 rights violations are not sufficient.” See Ivey v. Bd of Regents, 673 F.2d 266, 268 (9th Cir.

17 1982); Atayde v. Napa State Hospital, 255 F. Supp. 3d 978, (E.D. Cal. May 25, 2017) (citing

18 Ivey).

19 As currently presented, plaintiff’s cruel and unusual punishment and retaliation allegations

20 fail to state claims upon which relief may be granted. Specifically, the FAC fails to identify any

21 particular defendant who subjected plaintiff to the cell conditions. In addition, there is no

22 indication that plaintiff made any of the named defendants aware of the cell conditions and that

23 they failed to respond to the situation once they had been informed. Moreover, it is unclear in the

24 FAC how long plaintiff was housed in the dirty cell. See generally ECF No. 6 at 4-12 (Claim

25 One). For these reasons, the Eighth Amendment cruel and unusual punishment argument in

26 Claim One is not cognizable.

27 The same can be said about plaintiff’s assertion in Claim One that he was harassed,

28 assaulted and experienced “deliberate retaliation for exercising his First Amendment

1 constitutionally protected activities.” See ECF No. 6 at 4. Plaintiff alleges that “staff officers”

2 did not provide him with grievance forms. Id. Retaliation against a prisoner for filing a

3 grievance violates his First Amendment rights. Brodheim, 584 F.3d at 1269. Plaintiff fails,

4 however, to identify the responsible officers or state why he believes their inaction demonstrated

5 a sufficiently culpable state of mind, i.e., retaliatory intent. ECF No. 6 at 4. Therefore, this

6 retaliation claim is not cognizable.

7 2. Claim One: Denial of Due Process at Placement Hearing

8 In Claim One, plaintiff also alleges that his due process rights were violated when, at his

9 classification hearing with the I.C.C. in October 2020, defendants Zaragoza and Pierre denied him

10 his classification and crediting entitlements at after Zaragoza had told him that he was eligible for

11 certain placements and credits. ECF No. 6 at 4-5. This, plaintiff argues, constituted “a clear

12 violation of [his] state created due process liberty interest[s].” Id. at 5. He contends that the fact

13 that the ruling was overturned on appeal is proof that this interest had been violated. Id.

14 Plaintiff further argues that he was discriminated against in violation of his rights when

15 one of the defendants told him that he was ineligible for a camp placement because of his mental

16 health status. ECF No. 6 at 5. He also claims that in October 2020, Pierre threatened to reveal

17 that he was “E.O.P.” and was “programming on 50/50 yards” if his name was in any paperwork

18 plaintiff filed about the I.C.C. hearing. Id. at 5-6. He argues that Pierre doing these things would

19 make other inmates believe that he was a snitch and “S.N.Y.”3 and place him in danger. Id. at 6.

20 Finally, plaintiff asserts that Esparza violated his rights when she failed to correct the

21 classification errors made at the I.C.C. and also told him that she could tell other officers to “fuck

22 [him] up” if he filed paperwork with her name in it because she refused to change his custody

23 classification. Id. at 6-7.

24 This due process claim is without merit for several reasons. First, plaintiff has no federal

25 constitutional right to a particular classification status. Hernandez v. Johnston, 833 F.2d 1316,

26 1318 (9th Cir. 1987). Prisoner classifications and eligibility for rehabilitative programs do not

27

3 Although plaintiff does not state as much, the court believes that the letters “S.N.Y.” may refer

28 to the term “Special Needs Yard” or “Sensitive Needs Yard.”

1 invoke due process protections in the federal system. Moody v. Daggett, 429 U.S. 78, 88 n.9

2 (1976); Hernandez, 833 F.2d at 1318 (citing Moody); see Olim v. Wakinekona, 461 U.S. 238,

3 250-51 (1983) (stating if prison officials may transfer inmates for no reason, it follows that there

4 is no interest for due process to protect). Accordingly, the facts that Zaragoza and Pierre did not

5 transfer plaintiff to a camp, did not give plaintiff a Level I classification, and did not place him in

6 the workgroup he wanted during the I.C.C. hearing (see ECF No. 6 at 5), do not support relief.

7 Additionally, the facts that Esparza did not correct the I.C.C.’s classification errors on

8 appeal, and that she allegedly threatened to have plaintiff harmed if her name was in the

9 paperwork he filed to appeal the initial classification decision (see ECF No. 6 at 6-7), do not

10 support a claim. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (stating alleged loss

11 of a liberty interest during the processing of his appeals is without merit because inmates have no

12 constitutional right to specific grievance procedures); Mann v. Adams, 855 F.2d 639, 640 (9th

13 Cir. 1988) (citation omitted) (“There is no legitimate claim of entitlement to a grievance

14 procedure.”). For these reasons, plaintiff’s due process arguments related to his classification

15 status and related appeals fail to state claims upon which relief may be granted.

16 3. Claim One: Retaliation, Excessive Force and Failure to Protect

17 Claim One includes allegations that in January 2021, defendant S. Katz,4 a “senior psych

18 supervisor,” at DVI, interviewed plaintiff in the presence of defendant Bunn in response to

19 appeals plaintiff had filed regarding his removal from a prison mental health program. ECF No. 6

20 at 9. He states that during the interview, Katz told him that if he continued to file appeals, she

21 was going to write him up. In response, plaintiff stated to her – and appears to indirectly argue

22 here – that Katz’s threat violated his First Amendment right to be free from retaliation. Id. at 9.

23 Plaintiff further alleges that in response to Katz’s threat to write him up, he told her that

24 he would “file a 602 and a lawsuit” if she did. ECF No. 6 at 9. Defendant Katz reportedly then

25 told plaintiff that he could do what he wanted, and that if plaintiff continued to make threats, she

26

27 4 In the FAC, plaintiff states that one defendant identified as “Jane Doe” is in fact defendant “Dr.

S. Katz, Sr. Psych Supervisor.” ECF No. 6 at 3. Despite this fact, throughout the FAC, plaintiff

28 still refers to defendant Katz as “Jane Doe.” See id. at 9-11.

1 would slap him. Id. At that point, plaintiff dared defendant Katz to slap him, which she did. Id.

2 Plaintiff claims that because of Katz’s slap, he was “placed in a state of fear,” and he saw

3 the slap as “a threat on his safety and security.” ECF No. 6 at 9. He further argues that defendant

4 Bunn is also liable for not protecting him because he was there and could have stopped defendant

5 Katz. He further contends that defendant Bunn is liable because he failed to report defendant

6 Katz’s actions to the proper prison officials. Id. at 10.

7 a. First Amendment Retaliation

8 Although retaliation for filing grievances violates the First Amendment, Brodheim, 584

9 F.3d at 1269, plaintiff does not identify any retaliatory action actually taken by Katz. The alleged

10 threat to take adverse action does not support a retaliation claim.

11 b. Eighth Amendment Excessive Force and Failure to Protect

12 The putative excessive force claim against Katz is based on a single slap. It is well settled

13 that “[n]ot every push or shove, even if it may later seem unnecessary” violates the Constitution.

14 Graham v. Connor, 490 U.S. 386, 396 (1989); Payan v. County of Los Angeles, No. 2:14-CV-

15 07360 SVW JEM, 2015 WL 9694810, at *1 (C.D. Cal. Mar. 11, 2015) (quoting Graham);

16 Hudson, 503 U.S. at 6-7, 9-10 (stating de minimis use of force does not violate Eighth

17 Amendment unless it is a sort repugnant to the conscience); Anthony v. Schackmann, 402 F.

18 App’x 207, 208 (9th Cir 2010); see, e.g., Brinkman v. Ryan, No. CV-15-02027 PHX ROS, 2018

19 WL 9918129, at *2 (D. Ariz. Sept. 18, 2018) (instance when defendant slapped or pushed

20 plaintiff’s hand away from property cart did not amount to excessive force).

21 To succeed on a failure to protect claim, an inmate must show that he was incarcerated

22 under conditions that posed a substantial risk of serious harm and that a prison official was

23 deliberately indifferent to that risk. See Farmer, 511 U.S. at 834, 837. Only the unnecessary and

24 wanton infliction of pain implicates the Eighth Amendment. Wilson v. Seiter, 501 U.S. 294, 297

25 (1991).

26 Katz’s single slap of plaintiff, though unwarranted, does not constitute excessive force.

27 Moreover, the fact that plaintiff dared her to slap him contradicts his claim that the slap put him in

28 “imminent danger or serious physical injury” or in a “state of fear.” ECF No. 6 at 9-10. It also

1 supports a finding that the slap plaintiff encouraged was not repugnant to the conscience. If

2 excessive force was not used, plaintiff’s failure to protect from such alleged use of force also

3 fails.

4 Furthermore, to the extent plaintiff is attempting to argue that defendant Bunn’s failure to

5 protect plaintiff and report the incident violated a “state created due process liberty interest” (ECF

6 No. 6 at 10), plaintiff fails to identify law or regulations in support of this assertion.

7 Alternatively, if plaintiff intended to assert that state or prison rules were violated, such violations

8 fall outside the purview of this court. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)

9 (stating petitioner may not transform state law issue into federal one merely by asserting violation

10 of due process). Accordingly, any claims against Katz and Bunn based on these events are not

11 actionable.

12 4. Claim Two: Deliberate Indifference to Serious Medical Need

13 In Claim Two, plaintiff appears to attempt to argue that his Eighth Amendment rights5

14 were violated when defendant Fields, a “medication psych doctor” (ECF No. 6 at 2), prescribed

15 him medication that ultimately prevented him from receiving a camp placement classification. Id.

16 at 13. He also claims that Fields violated his rights because Fields failed to explain paperwork to

17 plaintiff before he signed it. Id. Plaintiff alleges that he told Fields why he wanted to stop taking

18 certain medications, and that Fields assured him that the ones plaintiff was taking would not

19 prevent him from receiving a camp placement. Id. Plaintiff further alleges that at that time,

20 Fields also agreed to adjust his medication schedule as it related to when and how plaintiff would

21 receive it. Id.

22 Inmates have a substantive liberty interest in avoiding the unwanted administration of

23 involuntary medication. Washington v. Harper, 494 U.S. 210, 221 (1990). This includes the

24 right to be provided all the information necessary to intelligently make that decision. Benson v.

25 Terhune, 304 F.3d 874, 884 (9th Cir. 2002); White v. Napoleon, 897 F.2d 103, 113 (3d Cir.

26

27 5 Plaintiff also states that his First Amendment rights were violated in Claim Two. See ECF No.

6 at 13. However, no facts or allegations are provided in support of a First Amendment claim.

28 See id.

1 1990). However, a viable claim of Eighth Amendment deliberate indifference to serious medical

2 need requires an act or omission done with a sufficiently culpable state of mind. See Farmer, 511

3 U.S. at 834. An inadvertent failure to provide adequate medical care does not, by itself, state a

4 deliberate indifference claim for Section 1983 purposes. McGuckin v. Smith, 974 F.2d 1050,

5 1060 (9th Cir. 1992), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d

6 1133 (1997); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Estelle v. Gamble, 429

7 U.S. 97, 106 (1976) (stating complaint alleging negligence in diagnosing or treating medical

8 condition does not state valid Eighth Amendment medical mistreatment claim).

9 Because inmates do not have a right to a specific classification status, plaintiff cannot base

10 a claim on the provision of medication that prevented him from being assigned a camp

11 classification. To the extent plaintiff is attempting to allege that his Eighth Amendment rights

12 were violated by Fields (1) prescribing medication for plaintiff that he did not want to take and

13 was unaware that he was taking, and (2) failing to explain to plaintiff what he signed off on

14 related to those medications (see ECF No. 6 at 13), he fails to state a claim because the

15 allegations do not demonstrate that Fields acted with a deliberately indifferent state of mind..

16 Plaintiff does assert in conclusory terms that Fields acted intentionally as part of a

17 conspiracy with other defendants to keep him in prison and prevent him from being released to a

18 camp setting (see ECF No. 6 at 13). However, plaintiff has provided no plausible facts to support

19 such a serious allegation. On the contrary, the facts plaintiff has presented belie any intentional

20 or malicious intent on Fields’ part. Specifically, plaintiff states that Fields assured him that his

21 medications would not interfere with his placement and that he agreed to adjust plaintiff’s

22 medication regimen accordingly. See id. For these reasons, plaintiff is unable to proceed on

23 Claim Two.

24 V. MOTION TO PARTICIPATE IN ADR PROGRAM

25 Plaintiff has also filed a motion to participate in the court’s ADR Program. ECF No. 15.

26 Because no defendants have yet been served, the motion will be denied as premature.

27 VI. OPTIONAL LEAVE TO AMEND

28 Plaintiff may be able to allege additional facts to remedy the deficiencies of his Eighth

1 Amendment claim regarding the prison conditions he encountered upon his arrival at DVI in

2 September 2020 and any related First Amendment retaliation stemming from those conditions.

3 Therefore, he will be given the opportunity to amend the complaint.

4 It does not appear to the undersigned that the other claims identified above as defective

5 can be cured by amendment. If plaintiff chooses to reassert those claims in an amended

6 complaint, the undersigned will recommend their dismissal.

7 Plaintiff has a choice to make. He may either attempt to amend the complaint or he may

8 proceed forthwith against defendants Estrada, Tovar and Bawari only, on the claims that have

9 been found sufficient to proceed. A choice to proceed on those claims will involve voluntarily

10 dismissing all other putative claims.

11 If he chooses to amend the complaint, plaintiff must demonstrate how the conditions

12 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode,

13 423 U.S. 362, 370-71 (1976). Also, the complaint must identify each defendant by name and

14 with specificity as well as allege in specific terms how each one is involved. Arnold v. Int’l Bus.

15 Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. §

16 1983 unless there is some affirmative link or connection between a defendant’s actions and the

17 claimed deprivation. See Arnold, 637 F.2d at 1355; Johnson v. Duffy, 588 F.2d 740, 743 (9th

18 Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official participation in civil

19 rights violations are not sufficient.” Ivey, 673 F.2d at 268 (citations omitted) (brackets added).

20 At the same time, however, the federal rules contemplate brevity. Specifically, the

21 amended complaint should contain a “short and plain statement of the claim showing that

22 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see Swierkiewicz v. Sorema N.A., 534

23 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, which was

24 adopted to focus litigation on the merits of a claim.”). A rambling complaint like the instant

25 one which does not clearly separate and distinguish the claims therein will not be

26 considered. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (affirming

27 dismissal of Section 1983 complaint for violation of Rule 8 after warning).

28 ////

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

2 his amended complaint complete. Local Rule 220 requires that an amended complaint be

3 complete in itself without reference to any prior pleading. This is because, as a general rule, an

4 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

5 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th

6 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled

7 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint,

8 the previous complaints no longer serve any function in the case. Therefore, in an amended

9 complaint, as in an original complaint, each claim and the involvement of each defendant must be

10 sufficiently alleged.

11 VII. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT

12 Your request to proceed in forma pauperis is granted and you are not required to pay the

13 entire filing fee immediately.

14 Some of the allegations in the complaint state claims against the defendants and some do

15 not. The facts alleged in Claim One of your first amended complaint state an excessive force

16 claim against defendant Estrada for punching you in January 2021, and against defendants Tovar

17 and Bawari for retaliation and excessive force in January 2021. The facts alleged in Claim Three

18 support a claim against defendant Estrada for retaliation and cruel and unusual punishment, based

19 on your deliberate transfer to a unit full of active Covid cases. None of your other allegations

20 state claims for relief against any defendants.

21 You have a choice to make. You may either (1) proceed immediately on the claims

22 against Estrada, Tovar and Bawari that are specified in the previous paragraph, and voluntarily

23 dismiss all other claims and defendants, or (2) try to amend the complaint. If you want to go

24 forward without amending the complaint, you will be voluntarily dismissing without prejudice all

25 claims and defendants other than those specified here. If you choose to amend your complaint,

26 the amended complaint must include all of the claims you want to make, including the ones that

27 have already been found to state a claim, because the court will not look at the claims or

28 information in the original complaint. Any claims not in the amended complaint will not be

1 |} considered. You must complete the attached notification showing what you want to do and

2 || return it to the court. Once the court receives the notice, it will issue an order telling you what

3 || you need to do next (i.e. file an amended complaint or wait for defendants to be served).

4 CONCLUSION

5 Accordingly, IT IS HEREBY ORDERED that:

6 1. Plaintiff's motion to proceed in forma pauperis by a prisoner, filed December 14, 2022

7 || (ECF No. 13), is DISREGARDED as improperly filed;

8 2. Plaintiffs motion to proceed in forma pauperis without prepaying fees or costs, filed

9 | January 6, 2023 (ECF No. 16), is GRANTED;

10 3. Plaintiff's first amended complaint states the following claims against the

11 | following defendants, all of whom were employees at the Deuel Vocational Institution during the

12 || periods in question:

13 e Correctional Officer Estrada: Eighth Amendment excessive force (Claim One)

14 and cruel and unusual punishment and First Amendment retaliation (Claim Three);

15 e Correctional Officer Tovar: Eighth Amendment excessive force and First

16 Amendment retaliation (Claim One); and

17 e “Psych Clinician” Bawari: Eighth Amendment excessive force and First

18 Amendment retaliation (Claim One).

19 All other putative claims fail to state claims upon which relief may be granted;

20 4. Plaintiffs request to participate in the court’s Alternative Dispute Resolution Program

21 || (ECF No. 15) is DENIED as premature; and

22 5. Within fourteen days from the date of this order, plaintiff shall file the attached notice

23 || on how to proceed informing the court whether he would like to proceed on the viable claims

24 || raised as identified herein or amend the complaint.

25 || DATED: January 30, 2023 ~

26 Hhthtin— Clare

ALLISON CLAIRE

27 UNITED STATES MAGISTRATE JUDGE

28

15

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 LANCE WILLIAMS, No. 2:21-cv-0153 TLN AC P

12 Plaintiff,

13 v. PLAINTIFF’S NOTICE ON HOW TO

PROCEED

14 L. ZARAGOZA, et al.,

15 Defendants.

16

CHECK ONE:

17

Plaintiff would like to proceed immediately on his cognizable Eighth and First

18

Amendment claims against defendants Estrada, Tovar, and Barawi as identified in the court’s

19

screening order. Plaintiff understands that by choosing to go forward without amending the

20

complaint, he is voluntarily dismissing all other claims against all other defendants pursuant to

21

Federal Rule of Civil Procedure 41(a)(1)(A)(i).

22

Plaintiff would like to amend the complaint.

23

DATED:

24 _______________________________

LANCE WILLIAMS

25 Plaintiff Pro Se

26

27

28