(PC) Gomez v. Ramirez

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8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 EDWARD GOMEZ, No. 2:20-CV-0757-TLN-DMC-P

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 A. RAMIREZ, et al.,

15 Defendants.

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17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s third amended complaint, ECF No. 40.

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 the plaintiff was incarcerated at the time the action was

22 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel.

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

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

25 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See

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

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

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

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

2 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice

3 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121,

4 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity

5 overt acts by specific defendants which support the claims, vague and conclusory allegations fail

6 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening

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

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9 I. BACKGROUND

10 A. Procedural History

11 Plaintiff initiated this action with a pro se complaint against Defendants Ramirez

12 and Yepez. See ECF No. 1. On June 15, 2021, the Court issued an order determining Plaintiff’s

13 original complaint was appropriate for service as to both named defendants. See ECF No. 8.

14 Defendants Ramirez and Yepez filed their answer on August 20, 2021. See ECF No. 15.

15 On August 30, 2021, Plaintiff filed a motion for leave to amend and, with his

16 motion, submitted a proposed first amended complaint adding Eldridge as a defendant to the

17 action. See ECF No. 16. On September 8, 2021, the Court denied Plaintiff’s motion for leave to

18 amend as unnecessary and directed that the first amended complaint submitted with Plaintiff’s

19 motion be filed as-of-right. See ECF No. 22. Concurrently, the Court directed service of process

20 on Defendant Eldridge. See ECF No. 17. Eldridge waived service on October 7, 2021. See ECF

21 No. 25.

22 All three defendants responded to the first amended complaint by way of a motion

23 to partially dismiss filed on November 29, 2021. See ECF No. 29. On June 6, 2022, the Court

24 issued findings and recommendations that Plaintiff’s first amended complaint be dismissed with

25 leave to amend. See ECF No. 34. Before the findings and recommendations were addressed by

26 the District Judge, Plaintiff filed a second amended complaint. See ECF No. 35. On September

27 22, 2022, the District Judge issued an order adopting the June 6, 2022, findings and

28 recommendations in full and deeming Plaintiff’s second amended complaint filed as of the date of

1 the order. See ECF No. 38.

2 On July 31, 2023, the Court issued an order addressing the sufficiency of

3 Plaintiff’s second amended complaint. See ECF No. 39. The Court determined that the second

4 amended complaint set forth cognizable medical deliberate indifference and retaliation claims

5 against Defendant Ramirez, as well as a cognizable retaliation claim against Defendant Yepez.

6 See id. at 3. Plaintiff was granted the opportunity to file a third amended complaint as to his

7 claim against Defendant Eldridge and his claim of denial of access to the courts, both of which

8 were found not cognizable as alleged in the second amended complaint. See id. at 4-5. Plaintiff

9 filed the operative third amended complaint on September 8, 2023. See ECF No. 40.

10 B. Plaintiff’s Allegations

11 Gomez is a quadriplegic inmate at the California Health Care Facility (CHCF).

12 ECF No. 39 at 2. In the third amended complaint, Plaintiff names the following as defendants:

13 (1) A. Ramirez, a Guard at CHCF; (2) R. Yepez, a Lieutenant at CHCF; and (3) L. Eldridge, the

14 Warden of CHCF. See ECF No. 40, pg. 2.

15 Plaintiff alleges a violation of his Eighth Amendment rights due to delay in

16 medical care. See id. at 3. On August 14, 2019, Plaintiff was in his cell when he felt his blood

17 pressure rising and noticed he had stopped urinating. See id. Plaintiff believed his autonomic

18 dysreflexia was triggered because his catheter was obstructed, and he called for medical

19 assistance. See id. Registered Nurse Carasca answered Plaintiff’s call for assistance and Plaintiff

20 informed her of his symptoms. See id. Plaintiff claims that Defendant Ramirez refused to allow

21 Carasca into his cell. See id. Carasca returned to Plaintiff’s cell door with Defendant Ramirez

22 and Defendant Ramirez began yelling at Plaintiff, informing him that he would not receive

23 medical assistance. See id. at 3-4. After asking Plaintiff multiple questions about Plaintiff’s

24 symptoms, Defendant Ramirez ultimately allowed the medical staff to enter Plaintiff’s cell and

25 assist Plaintiff to bed. See id. When Plaintiff was helped back to bed, he began to urinate again.

26 See id. at 4.

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1 According to Plaintiff, Defendant Ramirez deliberately interfered, denied, and

2 delayed medical assistance, in violation of Plaintiff’s rights. See id. Plaintiff asserts that, due to

3 the delay, Plaintiff’s autonomic dysreflexia became worse and Plaintiff subsequently suffered

4 greater pain and a more substantial risk of harm. See id.

5 Next, Plaintiff asserts violations of his First Amendment rights based on denial of

6 access to the courts as well as retaliation. See id. at 5. On August 26, 2019, Plaintiff submitted an

7 inmate grievance against Defendant Ramirez for denying him medical assistance. See id. In turn,

8 Defendant Ramirez began retaliating against Plaintiff. See id. According to Plaintiff, Ramirez

9 said that he would begin making false accusations against Gomez to get him removed from the

10 unit. See id. On September 5, 2019, when a member of the medical staff was undressing Plaintiff

11 for bedtime, Defendant Ramirez stayed and watched. See id. Plaintiff alleges that when the

12 medical staff left the room, Defendant Ramirez called Plaintiff a child molester. See id. Plaintiff

13 asserts that accusations like these put Plaintiff in danger if other inmates overheard. See id.

14 After filing the original grievance against Defendant Ramirez, Plaintiff had an

15 interview with Lieutenant Yepez as part of the appeal process. See id. at 6. Plaintiff alleges that

16 Defendant Yepez threatened that, if Plaintiff did not withdraw the grievance, Defendant Ramirez

17 would take more of Plaintiff’s property. See id.

18 Plaintiff further claims that Defendant Ramirez came to Plaintiff on October 17,

19 2019, and threatened to make false allegations against Plaintiff and told Plaintiff that he would be

20 kicking Plaintiff out of the unit. See id. Later that night, while Plaintiff was having a bowel

21 movement, Ramirez was watching Plaintiff. See id. On October 30, 2019, Defendant Ramirez

22 allegedly entered Plaintiff’s cell and walked around the medical privacy curtain and watched

23 Plaintiff as medical staff were changing Plaintiff’s catheter. See id. Plaintiff states that he was

24 naked at the time. See id. Plaintiff later wrote a letter to Defendant Eldridge describing

25 Defendant Ramirez’s actions. See id. Eldridge merely advised Gomez to continue writing

26 grievances. See id. at 6-7.

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1 II. DISCUSSION

2 As with the second amended complaint, the Court finds that the third amended

3 complaint states cognizable claims against Defendant Ramirez under the Eighth Amendment for

4 medical deliberate indifference and under the First Amendment for retaliation. The third

5 amended complaint also appears to state a cognizable First Amendment retaliation claim against

6 Defendant Yepez. Plaintiff, however, continues to fail to plead facts to establish the supervisory

7 liability of Defendant Eldridge, the prison warden, or to establish a cognizable claim against any

8 defendant based denial of access to the courts.

9 A. Supervisory Liability of Defendant Eldridge

10 Supervisory personnel are generally not liable under § 1983 for the actions of their

11 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no

12 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional

13 violations of subordinates if the supervisor participated in or directed the violations. See id.

14 Supervisory personnel who implement a policy so deficient that the policy itself is a repudiation

15 of constitutional rights and the moving force behind a constitutional violation may be liable even

16 where such personnel do not overtly participate in the offensive act. See Redman v. Cnty of San

17 Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). A supervisory defendant may also be

18 liable where he or she knew of constitutional violations but failed to act to prevent them. See

19 Taylor, 880 F.2d at 1045; see also Starr v. Baca, 633 F.3d 1191, 1209 (9th Cir. 2011).

20 When a defendant holds a supervisory position, the causal link between such

21 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

22 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

23 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in

24 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

25 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the

26 official’s own individual actions, has violated the constitution.” See Ashcroft v. Iqbal, 556 U.S.

27 662, 676 (2009).

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1 Plaintiff asserts that he wrote a letter to Defendant Eldridge describing Defendant

2 Ramirez’s conduct against Plaintiff. See ECF No. 40, pg. 6. Defendant Eldridge responded to the

3 letter and recommended Plaintiff “continue to write 602’s.” See id. Plaintiff, however, fails to

4 allege specific facts as to Defendant Eldridge’s conduct that led to constitutional violations by the

5 other defendants.

6 Finally, to the extent Plaintiff’s claim against Defendant Eldridge rests on the

7 notion that Eldridge failed to properly address Plaintiff’s inmate grievances, such a claim is not

8 cognizable. Prisoners have no stand-alone due process rights related to the administrative

9 grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v.

10 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling

11 inmates to a specific grievance process). Because there is no right to any particular grievance

12 process, it is impossible for due process to have been violated by ignoring or failing to properly

13 process grievances. Numerous district courts in this circuit have reached the same conclusion.

14 See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly

15 process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863

16 (N.D. Cal. 1996) (concluding that prison officials’ failure to properly process and address

17 grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL

18 29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process

19 a grievance did not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967

20 (N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function

21 properly failed to state a claim under § 1983).

22 B. Access to the Courts

23 Prisoners have a First Amendment right of access to the courts. See Lewis v.

24 Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Jones v. Williams,

25 791 F.3d 1023, 1035 (9th Cir. 2015); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). Prison

26 officials must “assist inmates in the preparation and filing of meaningful legal papers by

27 providing prisoners with adequate law libraries or adequate assistance from persons trained in the

28 law.” Bounds, 430 U.S. at 828; Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011)

1 (overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir.

2 2015). But the right does not require a particular methodology. See Lewis, 518 U.S. at 356. It

3 guarantees the “capability of bringing contemplated challenges to sentences or conditions of

4 confinement before the courts.” Id. It does not promise to turn inmates into effective litigators.

5 See id. at 354-55; Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). The right of access secures

6 the ability to present non-frivolous claims to the court, it does not secure a right to discover

7 claims or litigate them effectively once filed. See Lewis, 518 U.S. at 354-55; Phillips, 477 F.3d at

8 655. The tools required are those that inmates need to attack their sentences or challenge

9 conditions of confinement. See Lewis, 518 U.S. at 355; Phillips, 477 F.3d at 655. “Impairment

10 of any other litigating capacity is simply one of the incidental (and perfectly constitutional)

11 consequences of conviction and incarceration.” Lewis, 518 U.S. at 355; see Phillips, 477 F.3d at

12 655. The right is restricted to non-frivolous criminal appeals, civil rights actions under 42 U.S.C.

13 § 1983, and habeas corpus petitions. Lewis, 518 U.S. at 353 n.3, 354-56.

14 The United States Supreme Court has identified two categories of access-to-court

15 claims. Christopher v. Harbury, 536 U.S. 403, 412-13 (2002). The first category includes

16 “forward-looking” claims, which allege that official action presently frustrates a plaintiff’s ability

17 to prepare and file a suit. Id. at 413. The second category, “backward-looking” claims, allege

18 that due to official action, a specific case “cannot now be tried (or tried with all material

19 evidence), no matter what official action may be in the future.” Id. at 413-14. These cases look

20 “backward to a time when specific litigation ended poorly, or could not have commenced, or

21 could have produced a remedy subsequently unobtainable.” Id. at 414.

22 To establish an access to the court violation, a prisoner must identify an actual

23 injury. Lewis, 518 U.S. at 349-351; Nev. Dep’t of Corrs. v. Greene, 648 F.3d 1014, 1018 (9th

24 Cir. 2011); Urmancheev v. Anglea, No.:1:19-cv-00791-DAD-JLT (PC), 2020 WL 1904818, at *2

25 (E.D. Cal. Apr. 17, 2020). An actual injury is “actual prejudice with respect to contemplated or

26 existing litigation, such as the inability to meet a filing deadline or to present a claim.” Lewis,

27 518 U.S. at 349; Urmancheev, 2019 WL 1904818, at *2. An actual injury is a jurisdictional

28 requirement and may not be waived. See Lewis, 518 U.S. at 348-52; Urmancheev, 2019 WL

1 1904818, at *2. And in the backward-looking context more specifically, a plaintiff must identify:

2 (1) loss of a “nonfrivolous,” “arguable” underlying claim; (2) the official acts that frustrated the

3 litigation of the underlying claim; and (3) a remedy that “may be awarded as recompense but [is]

4 not otherwise available in some suit that may yet be brought.” Harbury, 536 U.S. at 414-18;

5 Urmancheev, 2019 WL 1904818, at *2; Kabede v. Brown, No. 2:16-cv-1765 DB (P), 2017 WL

6 714300, at *6 (E.D. Cal. Feb. 22, 2017).

7 Here, Plaintiff does not allege any sufficient facts for a cognizable access to the

8 courts claim because he has not alleged an actual injury, such as actual prejudice with respect to

9 contemplated or existing litigation.

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11 III. CONCLUSION

12 Because it does not appear possible that the deficiencies identified herein can be

13 cured by amendment, and in light of the Court’s previous orders, Plaintiff is not entitled to further

14 leave to amend prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126,

15 1131 (9th Cir. 2000) (en banc).

16 Based on the foregoing, the undersigned recommends as follows:

17 1. Defendant Eldridge be dismissed with prejudice for failure to state a claim.

18 2. Plaintiff’s claim of denial of access to the Courts be dismissed with

19 prejudice for failure to state a claim.

20 3. Defendants Ramirez and Yepez be directed to file an answer as to the

21 following remaining claims:

22 a. Plaintiff’s Eighth Amendment medical deliberate

indifference claim against Defendant Ramirez.

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b. Plaintiff’s First Amendment retaliation claims against

24 Defendants Ramirez and Yepez.

25 These findings and recommendations are submitted to the United States District

26 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

27 after being served with these findings and recommendations, any party may file written

28 objections with the court. Responses to objections shall be filed within 14 days after service of

1 | objections. Failure to file objections within the specified time may waive the right to appeal. See

2 || Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

3

4 || Dated: May 17, 2024 Svc

> DENNIS M. COTA

6 UNITED STATES MAGISTRATE JUDGE

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