(PC) Anderson v. County of Shasta

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8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 RYAN DAVID ANDERSON, No. 2:23-CV-0757-DAD-DMC-P

12 Plaintiff,

13 v. ORDER

14 COUNTY OF SHASTA, et al.,

15 Defendants.

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17 Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42

18 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, ECF No. 1.

19 The Court is required to screen complaints brought by prisoners seeking relief

20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

21 § 1915A(a). This provision also applies if, as here, the plaintiff was incarcerated at the time the

22 action was initiated even if the litigant was subsequently released from custody. See Olivas v.

23 Nevada ex rel. Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a

24 complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon

25 which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from

26 such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure

27 require that complaints contain a “. . . short and plain statement of the claim showing that the

28 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated

1 simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)

2 (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the

3 defendant fair notice of the plaintiff’s claim and the grounds upon which it rests. See Kimes v.

4 Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some

5 degree of particularity overt acts by specific defendants which support the claims, vague and

6 conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the Court to

7 conduct the screening required by law when the allegations are vague and conclusory.

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9 I. PLAINTIFF’S ALLEGATIONS

10 The alleged violations occurred at Shasta County Jail in Redding, California. ECF

11 No. 1 at 1. Plaintiff names the following as defendants: (1) the County of Shasta, California; (2)

12 the Shasta County Sheriff’s Office; (3) Tom Bosenko, former Shasta County Sheriff; (4) Eric

13 Magrini, former Shasta County Sheriff; (5) David M. Kent, Captain; (6) Gene B. Randall, Jr.,

14 Captain; (7) Robert M. Van Gerwen, Correctional Deputy; (8) Zachary S. Jurkiewicz,

15 Correctional Deputy; (9) William J. Decker, Correctional Deputy; (10) Joshua R. Millis,

16 Correctional Deputy; (11) Debra K. Owen, Public Service Officer; (12) Stephanie Anne Bridgett,

17 Shasta County District Attorney; (13) Curtis Woods, Shasta County Deputy District Attorney;

18 (14) Eamon Fitzgerald, Deputy District Attorney; and (15) Daniel Dellwo, Physician’s Assistant

19 at the Jail’s WellPath clinic. ECF No. 1 at 1-3.

20 Plaintiff claims violation of due process, retaliation, inhumane conditions of

21 confinement, that he was threatened by officers, and violations of the Bane Act. See id. at 7, 10,

22 12.

23 Plaintiff’s Fight

24 Plaintiff alleges that Correctional Deputy Decker lied about Plaintiff’s

25 involvement in a fight that occurred in Plaintiff’s pod. Id. at 7. Plaintiff was in a fight with eight

26 other white inmates, who each took turns striking another inmate. See id. at 9. Decker wrote in a

27 report that Plaintiff used his cast (also referred to throughout the complaint as his splint) to strike

28 an inmate and used his medical boot to kick the inmate. Id. Plaintiff admits he struck the inmate,

1 but he claims he acted to prevent the inmate from greater harm and did not use his splint to strike

2 the inmate and did not kick the inmate at all. See Id. at 7-8.

3 Correctional Deputy Jurkiewicz wrote a report saying that CCTV footage showed

4 Plaintiff using his splint and medical boot to attack the inmate. Id. at 8. Plaintiff believes that the

5 video proves his version of events. Id. Jurkiewicz reported to a doctor that Plaintiff had been

6 fighting with his cast on. Id. “Much later,” Jurkiewicz smirked at Plaintiff and suggested that he

7 wrote a bad report. Id.

8 Plaintiff alleges that Decker and Jurkiewicz wrote false reports in retaliation for

9 Plaintiff filing an excessive force complaint against Correctional Deputy Van Gerwen. Id. at 9.

10 Plaintiff pleaded guilty to Assault with Force Likely to Produce GBI for the fight

11 in the pod. Id. Plaintiff believes he was offered a plea deal for a lesser charge because the video

12 did not substantiate that he used his cast or medical boot. Id. Plaintiff argues that Shasta County

13 District Attorney Bridgett and Deputy District Attorneys Woods and Fitzgerald acted with

14 reckless disregard for the truth. Id. at 8.

15 Decker’s and Jurkiewicz’s reports led to Plaintiff being denied Prop 57 early

16 release. Id. at 9.

17 Plaintiff alleges that Decker and Jurkiewicz were acting pursuant to the customs,

18 policies, practices, and procedures of the following defendants: (1) Shasta County, Shasta County

19 Sheriff’s Office; (2) Bosenko former Shasta County Sheriff; (3) Magrini, former Shasta County

20 Sheriff; (4) Kent, Captain at Shasta County Jail; and (5) Randall, Captain at Shasta County Jail.

21 Id. at 9. Plaintiff believes the defendants allowed for the correctional officers’ actions. Id.

22 Plaintiff’s Solitary Confinement

23 Because of Plaintiff’s fight, he was put into “the hole” for sixty days. Id. at 10.

24 “The hole” was a cell with walls covered in feces and urine. Id. Plaintiff asked to be moved to

25 another cell or to at least be given cleaning gear. Id. Correctional Deputy Millis denied

26 Plaintiff’s request but noted how gross the cell was. Id. Millis had previously refused Plaintiff’s

27 request to follow up on a new cast. Id. at 11.

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1 During Plaintiff’s stay in “the hole,” Plaintiff’s mother sent him hygiene products.

2 Id. Public Service Officer Owen initially claimed there were no orders for Plaintiff. Id. Only

3 once Plaintiff was out of disciplinary did Owen find the order. Id. Plaintiff believes his order

4 was intentionally lost in retaliation for his report against Correctional Deputy Van Gerwen. Id.

5 Plaintiff developed numerous recurring abscesses from his stay in “the hole.” Id. at

6 11. He had to go to the emergency room for treatment, and the abscesses prevented him from

7 serving time in a fire camp. Id.

8 Plaintiff alleges that Millis and Owen were acting pursuant to the customs,

9 policies, practices, and procedures of the following defendants: (1) Shasta County, Shasta County

10 Sheriff’s Office; (2) Bosenko former Shasta County Sheriff; (3) Magrini, former Shasta County

11 Sheriff; (4) Kent, Captain at Shasta County Jail; and (5) Randall, Captain at Shasta County Jail.

12 Id. at 11. Plaintiff believes the defendants allowed for the correctional officers’ actions. Id.

13 Plaintiff’s “Elevator Ride”

14 Plaintiff believes Correction Deputy Van Gerwen has a personal vendetta against

15 him. Id. at 12. Plaintiff filed an excessive force report against Van Gerwen in 2019. Id.

16 Following the report, Van Gerwen and six officers went on an “elevator ride” with Plaintiff and

17 told him, “You better not submit another fucking grievance or ADA form, or else!” Id. Plaintiff

18 alleges that correctional officers follow a pervasive practice of severely beating inmates on these

19 “elevator rides.” Id.

20 COVID-19

21 During Plaintiff’s incarceration, he caught COVID-19. Id. at 28. COVID-19

22 delayed Plaintiff’s transport to prison, and it affected Plaintiff’s ability to participate in the

23 Alternative Custody Program. Id. Plaintiff alleges PA Dellow denied Plaintiff treatment despite

24 requesting to see a doctor for his symptoms. Id. at 30. Plaintiff received only Ibuprofen and was

25 denied electrolytes and cough drops. Id.

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1 II. DISCUSSION

2 Plaintiff sufficiently pleads a retaliation claim because he alleges that he suffered

3 adverse action for engaging in protected conduct. Plaintiff’s due process claim fails because he

4 does not plead that procedural safeguards were insufficient but instead simply that he does not

5 agree with the evidence or result of his hearing. Plaintiff pleads a sufficient conditions-of-

6 confinement claim for the allegedly vile conditions of his cell. The threat claim is insufficient

7 because it does not allege facts more severe than mere verbal abuse. Plaintiff’s claim alleging

8 inadequate medical treatment is insufficient because he does not plead that PA Dellwo acted with

9 malicious intent. Plaintiff’s claims against the District Attorney and Deputy District Attorneys

10 are too vague and conclusory, as they are not connected to a theory of relief. Plaintiff’s Bane Act

11 Claims are not cognizable because Plaintiff does not plead compliance with the Government

12 Claims act. Plaintiff will be granted leave to amend his claims.

13 A. Retaliation Claim

14 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must

15 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory

16 action was not related to a legitimate penological purpose, such as preserving institutional

17 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting

18 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the

19 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);

20 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also

21 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by

22 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); see also

23 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must

24 establish the following in order to state a claim for retaliation: (1) prison officials took adverse

25 action against the inmate; (2) the adverse action was taken because the inmate engaged in

26 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the

27 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.

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1 As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not

2 alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm

3 that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of

4 example, the court cited Pratt in which a retaliation claim had been decided without discussing

5 chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to

6 discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate

7 penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly

8 stated that one of the “basic elements” of a First Amendment retaliation claim is that the adverse

9 action “chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also

10 Resnick, 213 F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action

11 which is more than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the

12 chilling effect element is essentially subsumed by adverse action.

13 Plaintiff alleges that correctional deputies lying about Plaintiff’s actions and the

14 events that followed were spurred in retaliation for Plaintiff’s filing of an excessive force

15 complaint against Correctional Deputy Van Gerwen. See id. at 9. Filing a complaint is a

16 protected activity and Plaintiff’s discipline constituted adverse conduct, so Plaintiff sufficiently

17 alleges a retaliation claim. See Rhodes, 408 F.3d at 568.

18 B. Due Process Claim

19 The Due Process Clause protects prisoners from being deprived of life, liberty, or

20 property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to

21 state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or

22 property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672

23 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the

24 deprivation of property where there is a legitimate claim of entitlement to the property. See Bd.

25 of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are

26 defined, by existing rules that stem from an independent source – such as state law – and which

27 secure certain benefits and support claims of entitlement to those benefits. See id.

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1 Liberty interests can arise both from the Constitution and from state law. See

2 Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976);

3 Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution

4 itself protects a liberty interest, the court should consider whether the practice in question “. . . is

5 within the normal limits or range of custody which the conviction has authorized the State to

6 impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the

7 Supreme Court has concluded that the Constitution itself provides no liberty interest in good-time

8 credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v. Conner,

9 515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425 U.S. 308,

10 323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or in

11 remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983).

12 In determining whether state law confers a liberty interest, the Supreme Court has

13 adopted an approach in which the existence of a liberty interest is determined by focusing on the

14 nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the

15 Court has held that state law creates a liberty interest deserving of protection only where the

16 deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

17 sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

18 ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in

19 the procedures used in prison disciplinary hearings where a successful claim would not

20 necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th

21 Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not

22 result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v.

23 Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate

24 release from prison were cognizable under § 1983).

25 Where a prisoner alleges the deprivation of a liberty or property interest caused by

26 the random and unauthorized action of a prison official, there is no claim cognizable under 42

27 U.S.C. § 1983 if the state provides an adequate post-deprivation remedy. See Zinermon v. Burch,

28 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). A state’s post-

1 deprivation remedy may be adequate even though it does not provide relief identical to that

2 available under § 1983. See Hudson, 468 U.S. at 531 n.11. A due process claim is not barred,

3 however, where the deprivation is foreseeable and the state can therefore be reasonably expected

4 to make pre-deprivation process available. See Zinermon, 494 U.S. at 136-39. An available state

5 common law tort claim procedure to recover the value of property is an adequate remedy. See id.

6 at 128-29.

7 Finally, with respect to prison disciplinary proceedings, due process requires

8 prison officials to provide the inmate with: (1) a written statement at least 24 hours before the

9 disciplinary hearing that includes the charges, a description of the evidence against the inmate,

10 and an explanation for the disciplinary action taken; (2) an opportunity to present documentary

11 evidence and call witnesses, unless calling witnesses would interfere with institutional security;

12 and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418

13 U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see

14 Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in the

15 record as a whole which supports the decision of the hearing officer, see Superintendent v. Hill,

16 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

17 satisfied where “there is any evidence in the record that could support the conclusion reached.”

18 Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result

19 of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by

20 way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

21 Plaintiff claims he was deprived due process because correctional officers lied

22 about how he participated in a fight. See ECF No. 1 at 7. Corrections Officers Decker wrote a

23 report detailing that Plaintiff used his cast and medical boot as weapons. Id. Jurkiewicz reviewed

24 video footage of the incident and wrote a similar report. Id. at 8. Due process requires that

25 Plaintiff be given sufficient procedural safeguards before being disciplined. See Wolff, 418 U.S.

26 at 563-70. Plaintiff does not allege that he was denied the opportunity to present evidence or call

27 witnesses, and so he does not present a due process claim. See id.

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1 C. Conditions-of-Confinement Claim

2 “The Constitution ‘does not mandate comfortable prisons.’” Farmer, 511 U.S. at

3 832 (quoting Rhodes, 452 U.S. at 349); see also Hallett v. Morgan, 296 F.3d 732, 745 (9th Cir.

4 2002); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other grounds by

5 Sandin v. Conner, 515 U.S. 472 (1995). Conditions of confinement may, consistent with the

6 Constitution, be restrictive and harsh. See Rhodes, 452 U.S. at 347; Morgan v. Morgensen, 465

7 F.3d 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v.

8 Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide

9 prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint,

10 801 F.2d at 1107; see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Wright v.

11 Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981).

12 When determining whether the conditions of confinement meet the objective

13 prong of the Eighth Amendment analysis, the court must analyze each condition separately to

14 determine whether that specific condition violates the Eighth Amendment. See Toussaint, 801

15 F.2d at 1107; Wright, 642 F.2d at 1133. “Some conditions of confinement may establish an

16 Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when

17 they have a mutually enforcing effect that produces the deprivation of a single, identifiable human

18 need such as food, warmth, or exercise – for example, a low cell temperature at night combined

19 with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991); see also Thomas v.

20 Ponder, 611 F.3d 1144, 1151 (9th Cir. 2010); Osolinski, 92 F.3d at 938-39; Toussaint, 801 F.2d at

21 1107; Wright, 642 F.2d at 1133. When considering the conditions of confinement, the court

22 should also consider the amount of time to which the prisoner was subjected to the condition. See

23 Hutto v. Finney, 437 U.S. 678, 686-87 (1978); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir.

24 2005).

25 Forcing an inmate to house in a cell covered in feces for an extended period of

26 time constitutes unconstitutional conditions of confinement. Taylor v. Riojas, 141 S. Ct. 52, 54

27 (2020). Plaintiff made Correctional Officer Millis aware that the cell was covered in feces ECF

28 No. 1 at 10. Millis acknowledged the cell’s condition forced Plaintiff to house in the cell

1 regardless. Id. Plaintiff’s conditions of confinement claim is cognizable.

2 D. Threat Claim

3 The treatment a prisoner receives in prison and the conditions under which the

4 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

5 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

6 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts

7 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

8 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

9 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

10 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

11 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when

12 two requirements are met: (1) objectively, the official’s act or omission must be so serious such

13 that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

14 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

15 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

16 official must have a “sufficiently culpable mind.” See id.

17 Physical sexual assault by a prison official on an inmate is deeply offensive to

18 human dignity, lacks any legitimate penological objective, and therefore violates the Eighth

19 Amendment. Schwenk, 204 F.3d at 1196-97; Farmer v. Brennan, 511 U.S. 825, 834 (1994) (such

20 sexual abuse is “simply not part of the penalty that criminal offenders pay for their offenses

21 against society”).

22 That said, inmate sexual harassment claims, which allege sexually inappropriate

23 touching and/or sexually inappropriate comments, require a careful assessment of the unique

24 circumstances of each case. Inmate sexual harassment claims that allege brief inappropriate

25 touching by a correctional official are generally found to be noncognizable, particularly if the

26 alleged touching occurred pursuant to an authorized search. “Even if plaintiff believed that there

27 was a sexual aspect to the search, more is needed.” Smith v. Los Angeles County, 2010 WL

28 2569232, *5 (C.D. Cal. 2010); adopted by 2010 WL 2572570 (C.D. Cal. 2010); aff'd, 452 F.

1 App'x 768 (9th Cir. 2011). And even outside the context of a search, if a defendant is alleged to

2 have grabbed a plaintiff’s buttocks for a few seconds, the claim does not give rise to an Eighth

3 Amendment violation. See Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998). For a

4 sexual harassment claim to be cognizable, Plaintiff must allege an “objectively serious injury

5 (either physical or psychological.)” Watison v. Carter, 668 F.3d 1108, 1112-14 (9th Cir. 2012)

6 (quoting Berryhill, 137 F.3d at 1076).

7 In Watison, the Ninth Circuit affirmed the dismissal of an inmate's Eighth

8 Amendment sexual harassment claim against a correctional officer who allegedly entered

9 plaintiff's cell while plaintiff was on the toilet, rubbed his thigh against plaintiff's thigh

10 and “began smiling in a sexual contact [sic],” then left plaintiff's cell laughing. 668 F.3d at 1112-

11 14. The Ninth Circuit ruled that “[t]he ‘humiliation’ Watison allegedly suffered from the incident

12 with Officer LaGier does not rise to the level of severe psychological pain required to state an

13 Eighth Amendment claim.” Id. at 1113. Moreover, the Ninth Circuit found that “Officer

14 LaGier's alleged wrongdoing was not objectively harmful enough to establish a constitutional

15 violation . . . .” Id. at 1114 (citations and internal quotation marks omitted).

16 While “the Ninth Circuit has recognized that sexual harassment may constitute a

17 cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated

18 between sexual harassment that involves verbal abuse and that which involves allegations of

19 physical assault, finding the later to be in violation of the [C]onstitution.” Minifield v. Butikofer,

20 298 F. Supp. 2d 900, 904 (N.D. Cal. 2004) (citing Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th

21 Cir. 2000). Likewise, allegations of verbal harassment generally do not state a claim under the

22 Eighth Amendment. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). However,

23 “[v]erbal harassment may violate the Constitution when it is ‘unusually gross even for a prison

24 setting and [is] calculated to and [does] cause [plaintiff] psychological damage.’” Cox v. Kernan,

25 2019 WL 6840136, *5 (E.D. Cal. Dec. 16, 2019) (quoting Keenan v. Hall, 83 F.3d 1083, 1092

26 (9th Cir. 1996)).

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1 Allegations of name-calling, verbal abuse, or threats generally are also not

2 unusually gross for a prison setting. See Carpenter v. Molina, 2021 WL 2226635, at *3 (E.D.

3 Cal. June 2, 2021). Thus, a defendant’s threats to kill or harm a plaintiff are insufficient,

4 without more, to give rise to a cognizable verbal harassment claim. See Bailey v. Soto, 2019

5 WL 4452970, at *7-9 (C.D. Cal. July 10, 2019).

6 It is well established that “[a] threat of deadly force made merely to inflict

7 gratuitous fear and punishment when the party has both the opportunity to carry out the threat

8 and evidences the intent to do so does state a cognizable claim under the Eighth Amendment.”

9 Oliver v. Noll, 2012 WL 2055033, at *2 (N.D. Cal. June 5, 2012) (citing Northington v.

10 Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992) (pointing gun at inmate’s head and threatening

11 to shoot amounts to cognizable Eighth Amendment claim; and Burton v. Livingston, 791 F.2d

12 97, 100 (8th Cir. 1986) (drawing gun and terrorizing prisoner with threats of death while using

13 racially offensive language states first amendment, due process and equal protection claims)).

14 Further, where there is a threat of non-deadly force where, for example, a defendant aims a

15 weapon at a plaintiff “for the malicious purpose of inflicting gratuitous fear”, there is a

16 cognizable Eighth Amendment claim. See Parker v. Asher, 701 F. Supp. 192, 195 (D. Nev.

17 1988) (holding that “guards cannot aim their taser guns at inmate for the malicious purpose of

18 inflicting gratuitous fear. Allegations of such sadistic conduct state a cognizable claim of cruel

19 and unusual punishment.”).

20 Where cases are concerned with “abusive language directed at [a plaintiff's]

21 religious and ethnic background, ‘verbal harassment or abuse is not sufficient to state a

22 constitutional deprivation under 42 U.S.C. § 1983.’” Carpenter, 2021 WL 2226635, at *3

23 (quoting Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997)) (quoting Oltarzewski, 830 F.2d

24 at 139) (alterations omitted), abrogated on other grounds by Shakur v. Schriro, 514 F.3d 878 (9th

25 Cir. 2008).

26 The court in Zavala applied this standard. Zavala v. Barnik, 545 F. Supp. 2d

27 1051 (C.D. Cal. 2008). There, a guard allegedly screamed profanities at an inmate “in regard

28 to Plaintiff’s ethnic/racial background,” and, while denying the inmate a roll of toilet paper,

1 stated that “it’s because of you people that the State is in a budget crisis, you’ll have to use the

2 restroom and wipe your ass with your finger!” Id. at 1054. The court held that the “alleged

3 comments about Plaintiff’s racial, ethnic, or alienage background did not state a claim.” Id. at

4 1059.

5 Plaintiff alleges that he was verbally threatened during an “elevator ride” to not

6 file any grievances or ADA forms. ECF No. 1 at 12. Plaintiff does not allege the corrections

7 officers physically abused him during the “elevator ride,” but he claims that they have physically

8 abused other prisoners in the past. Id. Because verbal harassment alone is insufficient, Plaintiff

9 does not state a cognizable claim for the threat. See Carpenter, 2021 WL 2226635, at *3.

10 E. Medical Needs Claim

11 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

12 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;

13 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health

14 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by

15 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to

16 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and

17 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled

18 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see

19 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness

20 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2)

21 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the

22 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122,

23 1131-32 (9th Cir. 2000) (en banc).

24 The requirement of deliberate indifference is less stringent in medical needs cases

25 than in other Eighth Amendment contexts because the responsibility to provide inmates with

26 medical care does not generally conflict with competing penological concerns. See McGuckin,

27 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

28 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

1 1989). The complete denial of medical attention may constitute deliberate indifference. See

2 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

3 treatment, or interference with medical treatment, may also constitute deliberate indifference. See

4 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate

5 that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

6 Negligence in diagnosing or treating a medical condition does not, however, give

7 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

8 difference of opinion between the prisoner and medical providers concerning the appropriate

9 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

10 90 F.3d 330, 332 (9th Cir. 1996).

11 Plaintiff alleges that he was not given anything more than Ibuprofen for his

12 COVID-19. ECF No. 1 at 30. Plaintiff does not allege that PA Dellwo acted with malicious

13 intent. See id. Mere negligence is insufficient to sustain an Eight Amendment claim. See Estelle,

14 429 U.S. at 106. Plaintiff also does not allege that his lack of treatment led to further injury. See

15 ECF No. 1 at 30. Because Plaintiff does not allege PA Dellow acted with the purpose of

16 inflicting harm, he does not present a cognizable medical needs claim. See Farmer, 511 U.S. at

17 834.

18 F. Vague and Conclusory Claims

19 The Federal Rules of Civil Procedure require that complaints contain a “. . . short

20 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

21 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v.

22 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are

23 satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds

24 upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff

25 must allege with at least some degree of particularity overt acts by specific defendants which

26 support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it

27 is impossible for the Court to conduct the screening required by law when the allegations are

28 vague and conclusory.

1 Plaintiff alleges that County District Attorney Bridgett and Deputy District

2 Attorneys Woods and Fitzgerald acted with reckless disregard for the truth in pursuing his

3 prosecution for the pod fight. ECF No. 1 at 8. But Plaintiff must connect the claim with a

4 constitutional violation; he must explain how, if his allegations are true, he is entitled to relief for

5 violation of a constitutional right. See Fed. R. Civ. P. 8(a)(2).

6 G. Bane Act Claims

7 Plaintiff has failed to state claims based on state law because Plaintiff has not

8 alleged compliance with the Government Claims Act, which required to plead such claims. See

9 State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1240, 1237 (2004) (for claims against the

10 State, timely presentation of a claim under the Government Claims Act is an element of the cause

11 of action and must be pled in the complaint); see also Cal. Gov’t Code § 900.6 (defining “State”

12 as “the State and any office, officer, department, division, bureau, board, commission or agency

13 of the State claims against which are paid by warrants drawn by the Controller”).

14 Plaintiff asserts a violation of California law, but plaintiff fails to plead compliance

15 with the California Tort Claims Act. Plaintiff is informed that before he may proceed on a claim

16 arising under California law in this court he must comply with the terms of the California Tort

17 Claims Act, and then plead compliance. See Cal. Gov’t Code § 910 et seq.; Mangold v. Cal. Pub.

18 Utils. Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts

19 demonstrating compliance, rather than simply conclusions suggesting as much. Shirk v. Vista

20 Unified School Dist., 42 Cal.4th 201, 209 (2007).

21

22 III. CONCLUSION

23 Because it is possible that the deficiencies identified in this order may be cured by

24 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d

25 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an

26 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

27 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the

28 prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An

1 | amended complaint must be complete in itself without reference to any prior pleading. See id.

2 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the

3 || conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See

4 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

5 || each named defendant is involved, and must set forth some affirmative link or connection

6 || between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

7 || 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

8 Because the complaint appears to otherwise state cognizable claims, if no amended

9 || complaint is filed within the time allowed therefor, the Court will issue findings and

10 || recommendations that the claims identified herein as defective be dismissed, as well as such

11 | further orders as are necessary for service of process as to the cognizable claims.

12 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended

13 || complaint within 30 days of the date of service of this order.

14

15 || Dated: September 1, 2023 = SS GC

16 DENNIS M. COTA

17 UNITED STATES MAGISTRATE JUDGE

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