Thomas v. Chu

1

2

3

4

5

6 UNITED STATES DISTRICT COURT

7 SOUTHERN DISTRICT OF CALIFORNIA

8

9 KEITH THOMAS, Case No.: 3:20-cv-00245-GPC-BGS

CDCR #T-67081,

10

ORDER DISMISSING CIVIL

Plaintiff,

11 ACTION FOR FAILING TO STATE

vs. A CLAIM PURSUANT TO

12

28 U.S.C. § 1915(e)(2)(B) AND

JOHN CHAU, Physician, et al.,

13 28 U.S.C. § 1915A(b)(1)

Defendants.

14

[ECF No. 8]

15

16

17 Plaintiff Keith Thomas, incarcerated at Richard J. Donovan Correctional Facility

18 (“RJD”) in San Diego, California, proceeding pro se and in forma pauperis (“IFP”), is

19 proceeding in this civil rights action pursuant to 42 U.S.C. § 1983.1

20 I. Procedural Background

21 In his original Complaint and Motion seeking a Temporary Restraining Order

22 (“TRO”), Plaintiff claimed RJD Warden Pollard, Dr. Chau, Adelita Basto, a dietician,

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24

25 1 While the Court acknowledged Plaintiff is ordinarily barred by 28 U.S.C. § 1915(g) due to his litigation

history when it considered his Motion to Proceed IFP, see ECF No. 5 at 4 n.5 (noting that Plaintiff has

26 had fifteen civil actions or appeals dismissed as frivolous, malicious, or for failing to state a claim),

Plaintiff was nevertheless granted leave to proceed IFP in this case because he included plausible

27 allegations sufficient to satisfy 28 U.S.C. § 1915(g)’s exception for cases involving imminent or ongoing

danger at the time he filed his original Complaint. Id. (citing Andrews v. Cervantes, 493 F.3d 1047, 1049‒

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1 and Chief Medical Officer Glynn, violated his Eighth and Fourteenth Amendment rights

2 between September 2019 and February 2020 by failing to authorize single-cell housing

3 due to his incontinence, renew a prescription for a nutritional supplement, and grant his

4 CDCR 602 inmate and health care appeals regarding his cell assignment and dietary

5 needs.2 See Compl., ECF No. 1 at 1‒3; Mot. for TRO, ECF No. 4 at 9-11, 21-22, 43-59,

6 87-95, 124-130. While Plaintiff’s Complaint itself was sparsely pleaded, he incorporated

7 by reference factual allegations included in declarations attached to his TRO as support

8 for his claims. See Compl. at 2‒3. The Court reviewed Plaintiff’s Complaint together

9 with his TRO, declarations, and exhibits, and on September 9, 2020, dismissed his

10 Complaint sua sponte for failing to state a claim upon which § 1983 relief can be granted

11 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and simultaneously denied his

12 Motion for a TRO. See ECF No. 5.

13 Specifically, the Court found that to the extent Plaintiff implied Defendants Pollard

14 and Glynn violated his right to due process with respect to any of the CDCR 602

15 grievances or appeals he filed related to his request for single-cell status or a renewed

16 dietary supplement, he failed to state a viable Fourteenth Amendment claim. See ECF

17 No. 5 at 10‒12. With respect to Plaintiff’s claims that Pollard and Chau violated his

18 Eighth Amendment rights by failing to authorize his placement in a single cell, the Court

19 further found he failed to allege facts sufficient to plausibly suggest either of them acted

20 with deliberate indifference to a serious risk to his health or safety. Id. at 14‒16. Finally,

21

22

23 2 Exhibits attached to both Plaintiff’s original Complaint, TRO, and Amended Complaint (“FAC”) all

suggest he has misspelled Warden Pollard’s name as both “Pollen” and “Pollan,” and that he has

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misidentified Dr. John Chau, his Primary Care Provider at RJD, as “Dr. Chu” and “Dr. Chou.” See Compl.

25 at 2-3; FAC at 1, 7. For purposes of clarity and consistency, the Court will use what appear to be the

correct spellings as referenced in the CDCR-generated medical and administrative grievance records

26 attached as exhibits and incorporated by reference in both of Plaintiff’s pleadings. See Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its

27 entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to

dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a

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1 the Court found that to the extent Plaintiff claimed Chau, Basto, or Glynn violated his

2 Eighth Amendment rights by failing to renew a previous prescription for “Boost” dietary

3 supplements, he also failed to allege facts sufficient to plausibly show any of them

4 “personally did so with deliberate indifference to his serious medical needs.” Id. at 16‒

5 17.

6 While the Court granted Plaintiff leave to amend his Eighth Amendment claims

7 with respect to his housing and dietary supplements, it denied leave to amend his

8 Fourteenth Amendment due process claims as futile. Id. at 17, 21 (citing Rosati v.

9 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro

10 se complaint without leave to amend … unless ‘it is absolutely clear that the deficiencies

11 of the complaint could not be cured by amendment.’”) (citation omitted). Plaintiff was

12 advised his Amended Complaint would supersede his original, and that if he failed to

13 take advantage of the opportunity to fix the Eighth Amendment pleading deficiencies

14 identified, his case would be dismissed. Id. at 21‒22 (citing Lira v. Herrera, 427 F.3d

15 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to

16 fix his complaint, a district court may convert the dismissal of the complaint into the

17 dismissal of the entire action.”)).

18 Plaintiff has since filed a First Amended Complaint (“FAC”), re-naming Pollard,

19 Chau, Basto, and Glynn as Defendants, and adding several others, including A. Ferrer-

20 Sazon (HC/RN), S. Roberts, M.D., S. Gates, Chief of Health Care Correspondence and

21 Appeals, unidentified members of a Mental Health Interdisciplinary Treatment Team, and

22 a John Doe ADA Coordinator. See FAC, ECF No. 8 at 1.

23 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)

24 As Plaintiff now knows, the Prison Litigation Reform Act (“PLRA”) requires the

25 Court to review complaints filed by all persons proceeding IFP and by those, like him,

26 who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

27 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

28 probation, pretrial release, or diversionary program,” at the time of filing “as soon as

1 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

2 statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are

3 frivolous, malicious, fail to state a claim, or which seek damages from defendants who

4 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122,

5 1126-27 (9th Cir. 2000) (en banc) (citing § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

6 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

7 A. Standard of Review

8 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious

9 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920

10 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681

11 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a

12 claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the

13 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.

14 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113,

15 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the

16 familiar standard applied in the context of failure to state a claim under Federal Rule of

17 Civil Procedure 12(b)(6)”).

18 Every complaint must contain “a short and plain statement of the claim showing

19 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

20 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported

21 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Bell

22 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are well-pleaded

23 factual allegations, a court should assume their veracity, and then determine whether they

24 plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a

25 complaint states a plausible claim for relief [is] . . . a context-specific task that requires

26 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

27 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

28 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

1 While a plaintiff’s factual allegations are taken as true, courts “are not required to

2 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

3 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an

4 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

5 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

6 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

7 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

8 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.

9 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in

10 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id.

11 B. FAC Allegations

12 Plaintiff’s FAC, like his original pleading, contains few facts and instead

13 repeatedly refers to more than 100 pages of attached exhibits.3 See FAC at 3‒8. As

14 before, Plaintiff continues to broadly claim his Eighth Amendment rights were violated

15 when he was denied single-cell housing despite his incontinence; but he now adds

16 allegations related to the need for a single-cell due to his “mental health concerns.” Id. at

17 3‒5, 15‒66 (citing Exs. A‒E). Plaintiff also re-alleges the discontinuation of his Boost

18

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3 These exhibits include Plaintiff’s correspondence with Warden Pollard requesting single-cell status dated

21 February 13, 2020, see Pl.’s Exs. A & B, ECF No. 8 at 15‒23; CDCR 602 HC Log No. RJD HC 20000184,

a Health Care Grievance requesting “permanent single-cell status” based on Plaintiff’s incontinence and

22 “mental disability,” supplemental attachments, and institutional responses, id., Ex. C at 24‒40; CDCR

MH-7368 Declaration in Support of Renewal of Involuntary Medication based on Plaintiff’s

23 “schizoaffective disorder, bipolar type” dated December 20, 2017 and signed by S. Hansen, MD, id., Ex.

D at 41‒50; CDCR 602 HC Log No. RJD HC 20000378, another Health Care Grievance requesting single-

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cell status based on incontinence, including institutional responses, id., Ex. E at 51‒66; CDCR 602 HC

25 Log No. RJD HC 20000162, a third Health Care Grievance requesting the renewal of Boost dietary

supplements, including institutional responses, id., Ex. F at 67‒88; CDCR 602 HC Log No. RJD HC

26 19002052, another Health Care Grievance requesting pain medication, physical therapy, and an MRI for

osteoarthritis and hip pain, including institutional responses and medical progress notes, id., Ex. G at 89‒

27 107; and an X-Ray Request Report Form noting Plaintiff’s “old bilateral hip pinnings,” “mild bilateral hip

osteoarthritis,” normal S-I joints, and “phleboliths in the pelvis” dated December 10, 2003. Id., Ex. H at

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1 dietary supplements violated his Eighth Amendment rights claiming “prison official[s]

2 knew about [his] … weight loss,” but “fail[ed] to respond reasonably” to his “serious

3 medical needs.” Id. at 5‒6, 67‒88 (citing Ex. F). Finally, Plaintiff asserts a new Eighth

4 Amendment violation based on claims related to “osteoarthritis in [his] right femur,” and

5 the denial of opioid therapy which he claims is required to treat his hip pain. Id. at 6‒8,

6 89‒106 (citing Exs. G & H). He seeks injunctive relief requiring a “screen authority” to

7 review his single-cell status, a renewal of dietary supplements, an assessment for opioid

8 therapy, asks that his case proceedings be “put … on the internet,” and $6 million on

9 general and punitive damages. Id. at 14.

10 C. 42 U.S.C. § 1983

11 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,

12 privileges, or immunities secured by the Constitution and laws” of the United States.

13 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must

14 allege two essential elements: (1) that a right secured by the Constitution or laws of the

15 United States was violated, and (2) that the alleged violation was committed by a person

16 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of

17 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

18 D. Discussion

19 As noted above, Plaintiff’s FAC continues to claim Defendants violated his Eighth

20 Amendment rights by failing to assign him to a single cell and to renew a prescription for

21 a dietary supplement. See FAC at 3‒6. It then adds a new Eighth Amendment inadequate

22 medical care claim related to pain therapy for his osteoarthritis against a sub-set of

23 Defendants; but this new Eighth Amendment claim appears unrelated to his original

24 incontinence, mental health, diet, or housing needs. Id. at 6‒8. And while Plaintiff’s FAC

25 mostly identifies Defendants in groups, and does not clearly single out what each

26 individual person allegedly did to cause him injury, the Court liberally construes and

27 incorporates the voluminous CDCR 602 Health Care Appeal records he attaches as

28 exhibits to suggest Plaintiff seeks to hold Dr. Chau, Warden Pollard, and Dietician Basto

1 personally responsible for refusing his housing and medical requests, and S. Roberts, M.

2 Glynn, S. Gates, and A. Ferrer-Sazon responsible for failing to correct Pollard, Chau, and

3 Basto’s alleged failures via the CDCR 602 Health Care Appeal procedure.4

4 1. Original Eighth Amendment Claims

5 To the extent Plaintiff’s FAC repeats claims that Defendants Pollard, Chau, and

6 Basto violated his Eighth Amendment rights with respect to either his cell assignment or

7 his dietary needs, the Court continues to find he has failed to allege a plausible claim

8 upon which § 1983 relief can be granted. See Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at

9 1126-27; Rhodes, 621 F.3d at 1004.

10 The Eighth Amendment’s prohibition against cruel and unusual punishment

11 imposes a duty on prison officials to “provide humane conditions of confinement.”

12 Farmer v. Brennan, 511 U.S. 825, 832 (1994). These include “food, clothing, shelter,

13 sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080,

14 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin, 515 U.S. 472; see

15 also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “The Constitution does not

16 mandate comfortable prisons, but neither does it permit inhumane ones.” Farmer, 511

17 U.S. at 832.

18 A prisoner does not have an Eighth Amendment right to be housed in a single cell.

19 See Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981) (double-celling does not violate

20 Eighth Amendment unless it amounts to unnecessary and wanton pain). Nor is there a

21 Fourteenth Amendment right to claim a particular security classification or housing

22

23

4 The Court previously cautioned Plaintiff that it is not required to “to wade through exhibits to determine

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whether cognizable claims have been stated.” Woodrow v. Cty. of Merced, No. 1:13-cv-01505-AWI, 2015

25 WL 164427, at *4 (E.D. Cal. Jan 13, 2015); see also Stewart v. Nevada, No. 2:09-CV-01063, 2011 WL

588485, at *2 (D. Nev. Feb. 9, 2011) (“The Court will not comb through attached exhibits seeking to

26 determine whether a claim possibly could have been stated where the pleading itself does not state a claim.

In short, [Plaintiff] must state a claim, not merely attach exhibits.”). However, because Plaintiff now refers

27 to specific exhibits with respect to each of his claims, and incorporates each exhibit by reference, the Court

will consider them in order to conduct its mandatory screening pursuant to 28 U.S.C. § 1915(e)(2) and

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1 classification. See Meachum v. Fano, 427 U.S. 215, 224–25 (1976) (no liberty interest

2 protected by the Due Process Clause is implicated in a prison’s reclassification and

3 transfer decisions); see also Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).

4 Neither the Eighth nor the Fourteenth Amendment endows prisoners with a right to be

5 housed in a particular part of the prison or with a particular inmate. See Meachum, 427

6 U.S. at 224–25 (no liberty interest in placement in particular facility); Allen v. Purkett, 5

7 F.3d 1151, 1153 (8th Cir. 1993) (no Due Process right to be housed in a certain barrack

8 or housing unit or with certain inmates); Bjorlin v. Hubbard, No. CIV S–09–1793, 2010

9 WL 457685, *1 (E.D. Cal. Feb. 4, 2010) (same).

10 Instead, and as this Court noted in its September 9, 2020 Order, to properly plead a

11 claim of “cruel and unusual” punishment, Plaintiff must allege facts to demonstrate he

12 was confined under conditions posing a risk of “objectively, sufficiently serious” harm

13 and that the prison officials he seeks to hold liable had a “sufficiently culpable state of

14 mind.” Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). There is both an objective

15 and subjective component to the inquiry. Hallett v. Morgan, 296, F.3d 732, 744 (9th Cir.

16 2002). First, the Eighth Amendment requires Plaintiff to plead facts sufficient to show he

17 was subjected to an objectively serious deprivation of “the minimal civilized measure of

18 life’s necessities.” Farmer, 511 U.S. at 832. The “routine discomfort inherent in the

19 prison setting” is inadequate to satisfy the objective prong of the inquiry. Johnson, 217

20 F.3d at 731.

21 Second, Plaintiff must allege facts sufficient to plausibly show each official acted

22 with “deliberate indifference” to his health or safety. Farmer, 511 U.S. at 834. This

23 requires him to allege facts demonstrating that the official displayed a subjective

24 indifference “to a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128

25 (9th Cir. 1998). “Deliberate indifference” is evidenced only when “the official knows of

26 and disregards an excessive risk to inmate health or safety; the official must both be

27 aware of facts from which the inference could be drawn that a substantial risk of serious

28 harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. If an official

1 “should have been aware of the risk, but was not, then the [official] has not [violated a

2 party’s Constitutional rights], no matter how severe the risk.” Gibson v. County of

3 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002); Farmer, 511 U.S. at 838 (“[A]n official’s

4 failure to alleviate a significant risk that he should have perceived but did not, while no

5 cause for commendation, cannot under [the Eighth Amendment] be condemned as the

6 infliction of punishment.”).

7 a. Single-Celling

8 With respect to his cell assignment, Plaintiff continues to claim both Warden

9 Pollard and Dr. Chau violated his Eighth Amendment rights by failing to authorize his

10 placement in a single cell.5 See FAC at 3‒4. But even if the Court assumes Plaintiff’s

11 incontinence or his mental health are objectively serious medical conditions that could

12 render him potentially eligible for either single-cell housing consideration, see e.g.,

13 Rankins v. Liu, No. 2:15-CV-1164-KJM-DBP, 2019 WL 5260452, at *5 (E.D. Cal. Oct.

14 17, 2019) (finding prisoner’s permanent incontinence following transurethral resection of

15 the prostate was objectively serious medical need), report and recommendation adopted,

16 No. 2:15-CV-01164-KJM-DBP, 2019 WL 6170635 (E.D. Cal. Nov. 20, 2019); Lipsey v.

17 Depovic, No. 1:18-cv-00767-JDP, 2019 WL 3530323, at *9 (E.D. Cal. Aug. 2, 2019)

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5 Plaintiff also mentions a “Mental Health Interdisciplinary Treatment Team” and a “John Doe ADA

21 Coordinator” in the caption of his FAC, but does not include any facts in the body of his pleading to

explain how these unidentified entities violated his Eighth Amendment rights. Rule 10 of the Federal

22 Rules of Civil Procedure requires that the caption of a Complaint “name all the parties....” Fed. R. Civ. P.

10(a). However, “the question of whether a defendant is properly in a case is not resolved merely by

23 reading the caption of a complaint.” Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085

(9th Cir. 1983). “Rather, a party may be properly in a case if the allegations in the body of the complaint

24

make it plain that the party is intended as a defendant.” Id. In other words, “the caption of an action is

25 only the handle to identify it and ordinarily the determination of whether or not a defendant is properly in

the case hinges upon the allegations in the body of the complaint and not upon his inclusion in the caption.”

26 Hoffman v. Halden, 268 F.2d 280, 303-04 (9th Cir. 1959), overruled on other grounds by Cohen v. Norris,

300 F.2d 24 (9th Cir. 1962). Thus, while it remains unclear whether Plaintiff even intended to include

27 these entities as parties to his Eighth Amendment claims, the Court nevertheless finds the body of his

pleading is “devoid of further factual enhancement” which “allows [it] to draw the reasonable inference”

28

1 (noting “bipolar affective disorder” as an objectively serious medical need); Padilla v.

2 Beard, No. 2:14-cv-1118 KJM-CKD, 2017 WL 1253874, at *15 (E.D. Cal. Jan. 27, 2017)

3 (finding inmate exhibiting symptoms of psychosis had established a serious medical need

4 for purposes of the objective prong of an Eighth Amendment claim), he still fails to

5 allege facts sufficient to show that either Pollard or Dr. Chau acted with “deliberate

6 indifference” to a serious risk to his health or his safety when they failed to designate him

7 eligible for single-celling. “Deliberate indifference is a high legal standard.” Toguchi v.

8 Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “[T]he prison official must not only [be

9 alleged to] ‘be aware of the facts from which the inference could be drawn that a

10 substantial risk of serious harm exists,’ but that person ‘must also [be alleged to have]

11 draw[n] the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837).

12 And while Plaintiff has now amended his pleading to include the legally significant

13 term “deliberate indifference,” see FAC at 3, to state a claim for relief that is plausible on

14 its face, he must provide more than “labels and conclusions” or offer a mere “formulaic

15 recitation of the elements” of an Eighth Amendment claim. Twombly, 550 U.S. at 555.

16 “[L]egal conclusions can provide the framework of a complaint, [but] they must be

17 supported by factual allegations.” Iqbal, 556 U.S. at 679.6 Because Plaintiff’s FAC still

18 fails to include factual allegations against Warden Pollard or Dr. Chau sufficient to

19 plausibly show they “[knew] of and disregard[ed] an excessive risk” to either his mental

20 health or his physical safety with respect to his alleged need for single-cell placement,

21

22

6 In his original Complaint, Plaintiff included allegations that two prior cellmates had subjected him to

23 verbal threats and harassment due to his incontinence, and he claimed to fear a future “uncontrol[ed]

mishap” would render him vulnerable to physical attack by his cellmate should he continue to be double-

24

celled. See Compl., ECF No. 1 at 3. In fact, the Court granted Plaintiff, who is otherwise barred by 28

25 U.S.C. § 1915(g), leave to proceed IFP based on these “plausible allegations of ongoing danger” at the

time he filed his original Complaint. See ECF No. 5 at 4 n.5. Plaintiff’s FAC, however, omits any

26 reference to past, or future danger, threat, harm, or injury at the hands of any former or current cellmate.

In this way, Plaintiff’s FAC contains even less “factual matter” with respect to his Eighth Amendment

27 housing claims than his original Complaint. See Iqbal, 566 U.S. at 678; Lacey v. Maricopa Cnty., 693

F.3d 896, 928 (9th Cir. 2012) (claims dismissed with leave to amend not re-alleged in amended pleading

28

1 Farmer, 511 U.S. at 837; Iqbal, 556 U.S. at 678, these claims again demand sua sponte

2 dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(1). See e.g.,

3 Dillingham v. Garcia, No. 1:19-CV-00461-AWI-GSA PC, 2021 WL 971331, at *8 (E.D.

4 Cal. Mar. 15, 2021) (dismissing prisoner’s Eighth Amendment claims related to double-

5 celling sua sponte pursuant to 28 U.S.C. § 1915A because he failed to allege facts

6 “showing that either of the defendants knew and understood that Plaintiff had a serious

7 medical or mental health care need which [posed] an excessive risk to [his] health,” if he

8 were not single-celled and “yet ignored it or acted unreasonably under the

9 circumstances.”).

10 b. Dietary Supplements

11 With respect to his Boost nutritional supplements, Plaintiff re-alleges that

12 Defendant Basto’s refusal to renew them in January 2020 violated his Eighth Amendment

13 rights because “prison official[s] knew about [his] … weight loss,” but “fail[ed] to

14 respond reasonably” to his “serious medical needs.” FAC at 5‒6, 67‒88 (citing Ex. F).

15 Plaintiff claims he sustained a weight loss of “20 something pounds” between October

16 2019 and April 2020, see FAC at 5, and that Defendants Ferrer-Sazon, Roberts, Glynn,

17 Gates, and Pollard all knew about his “serious weight loss and fail[ed] to respond

18 reasonably to it.” Id. at 6.

19 But Plaintiff again offers no facts in support of this claim, and does not explain

20 what Ferrer-Sazon, Roberts, Glynn, Gates, or Pollard did or failed to do with respect to

21 his dietary supplements. See Iqbal, 556 U.S. at 676 (“[A] plaintiff must plead that each

22 Government-official defendant, through the official’s own individual action, has violated

23 the Constitution.”). Although Plaintiff’s FAC must be construed liberally, even a pro se

24 plaintiff “must allege with at least some degree of particularity overt acts which

25 defendants engaged in that support [his] claim.” Jones v. Cmty. Redev. Agency, 733 F.2d

26 646, 649 (9th Cir. 1984) (internal quotation marks and citation omitted).

27 Plaintiff does refer to Exhibit F, which comprises copies of a CDCR 602 Health

28 Care Grievance, Tracking No. RJD HC 20000162, submitted on Jan. 28, 2020, in which

1 he objected to Basto’s refusal to renew his Boost, or Liquid Nutritional Supplements

2 (“LNS”). See FAC, Ex. F at 68. But even in his grievance, Plaintiff acknowledges Basto

3 told him the renewal was not necessary because his “albumin [levels] w[ere] normal.” Id.

4 While Plaintiff may have disagreed with the dietician, a difference of opinion between an

5 inmate and prison medical personnel—or between medical professionals—regarding

6 appropriate medical diagnosis and treatment is not enough to establish a deliberate

7 indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d

8 at 1058.

9 The Institutional Level Response to CDCR 602 Health Care Grievance, Tracking

10 No. RJD HC 20000162 dated April 1, 2020, the Headquarters Level Response dated June

11 3, 2020, as well as the selected portions of Plaintiff’s medical records, attached as part of

12 Exhibit F, further show that Defendants Ferrer-Sazon interviewed Plaintiff in response to

13 his grievance, noted he had been seen by both the Registered Dietician Nutritionist

14 (Basto), and his Primary Care Provider (Dr. Chau), that he sustained “no significant

15 weight loss change,” and that his “albumin [was] within normal limits.” FAC, Ex. F at

16 70-71. Ferrer-Sazon also advised Plaintiff his weight would be monitored, and that he

17 would be considered for another dietician referral if his weight further decreased. Id. at

18 68, 71. Based on this interview and a review of Plaintiff’s medical records, which showed

19 he “did not meet the criteria for LNS,” that he had a body mass index of 22, and included

20 his PCP’s assessment that Plaintiff “appeared well-nourished” and was exhibiting “no

21 acute distress,” Defendants Roberts, Glynn, and Gates all concluded a “general

22 population diet [wa]s appropriate to meet [his] needs.” Id. at 70‒74.

23 Thus, even if Plaintiff had included the facts contained in Exhibit F in the body of

24 his FAC, the Court finds they do not plausibly show any Defendant acted with deliberate

25 indifference. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Nor do they “allow

26 the court to draw the reasonable inference” that Basto’s failure to renew his liquid dietary

27 supplements in late January 2020 caused him any harm. See Iqbal, 556 U.S. at 678; Jett,

28 439 F.3d at 1096 (plaintiff demonstrates “deliberate indifference” by showing a

1 purposeful act or failure to respond to a prisoner’s pain or possible medical need and

2 harm caused by the indifference); see also Spengler v. T.T.C.F. Pharmacy, No. CV 19-

3 2553-DOC (SP), 2021 WL 885625, at *4 (C.D. Cal. Jan. 28, 2021) (dismissing prisoner’s

4 claim that dietician’s refusal to provide a vegetarian cheese supplement, milk

5 replacement, and supplemental booster caused his injuries, since he indicated “he was

6 already experiencing weight loss and feeling sick” as a result of other health

7 deficiencies), report and recommendation adopted, No. CV 19-2553-DOC (SP), 2021

8 WL 885581 (C.D. Cal. Mar. 8, 2021).

9 2. Newly Alleged Eighth Amendment Claim

10 In addition, Plaintiff asserts a new Eighth Amendment violation based on claims

11 related to “osteoarthritis in [his] right femur,” and Dr. Chau’s decision to deny him opioid

12 therapy which he claims is required to treat his pain. See FAC at 6‒8, 89‒106 (citing Exs.

13 G & H). As he did with his original Eighth Amendment dietary supplement claims,

14 Plaintiff offers no factual support in the body of his pleading, but contends Defendants

15 Ferrer-Sazon, Roberts, Glynn, and Gates also “failed to respond to [his] serious medical

16 need in the 602 Appeal Institutional Level Response and Headquarters Level Response,”

17 which he simply attaches as Exhibits. Id. at 7‒8.

18 First, while several of the newly-named inmate appeal officials Plaintiff seeks to

19 sue with respect to this newly alleged inadequate medical care claim against Dr. Chau are

20 the same officials alleged to have reviewed and denied the CDCR 602 health care appeal

21 he filed against Defendant Basto (Ferrer-Sazon, Roberts, Glynn, and Gates), this separate

22 and unrelated Eighth Amendment claim involving Plaintiff’s osteoarthritis and opioid

23 therapy is not properly joined to the Eighth Amendment single cell and dietary

24 supplement causes of action at issue in this case because it does not relate to, or arise

25 from, those original transactions or occurrences. See Fed. R. Civ. P. 20(a).

26 A party asserting a claim may join, as independent or alternative claims, as many

27 claims as it has against an opposing party. See Fed. R. Civ. P. 18. “To name different

28 defendants in the same lawsuit, however, a plaintiff must satisfy Rule 20, governing

1 joinder of parties.” Weeks v. Espinda, 2010 WL 2218631, at *3 (D. Haw. June 2, 2010).

2 Rule 20(a)(2) allows joinder of defendants only if the following two requirements are

3 met: (1) any right to relief is asserted against them jointly, severally, or in the alternative

4 with respect to or arising out of the same transaction, occurrence, or series of transactions

5 or occurrences; and (2) any question of law or fact common to all defendants will arise in

6 the action. See Fed. R. Civ. P. 20(a)(2)(A)–(B); Rush v. Sport Chalet, Inc., 779 F.3d 973,

7 974 (9th Cir. 2015). “Unrelated claims involving different defendants belong in different

8 suits.” What v. Honolulu Police Dep’t, 2014 WL 176610, at *4–5 (D. Haw. Jan. 13,

9 2014); see also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“[M]ultiple claims

10 against a single party are fine, but Claim A against Defendant 1 should not be joined with

11 unrelated Claim B against Defendant 2.”).

12 Second, even if this new Eighth Amendment claim were not mis-joined, the Court

13 finds Plaintiff’s allegations fail to state a plausible claim for relief with respect to any

14 Defendant, and they too must be dismissed sua sponte pursuant to 28 U.S.C.

15 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d

16 at 1004.

17 Specifically, Plaintiff claims that he has “osteoarthritis in his right femur joint” that

18 “pops” when he moves it and causes him “intense[]” pain. See FAC at 6. He claims to

19 have requested pain medication via a CDCR 602 Health Care Grievance submitted on

20 December 15, 2019, Tracking No. HC 19002052, id., Ex. G at 89‒94, but claims Dr.

21 Chau provided “medically unacceptable care that is grossly incompetent,” and failed to

22 follow “CCHS guidelines,” which he contends “require opioid therapy.” Id. at 6.

23 To the extent Plaintiff claims Dr. Chau violated his Eighth Amendment rights by

24 failing to provide him with opioids, as opposed to a continuation of his “current pain

25 medications,” physical therapy, and even a total hip replacement, as was recommended

26 by an orthopedic specialist, but refused by Plaintiff, id. at 95‒96, 98, he fails to allege

27 facts sufficient to support a claim of deliberate indifference. See Toguchi, 391 F.3d 1051,

28 1060. As was true with respect to his purported need for dietary supplements, “[a]

1 difference of opinion between a physician and the prisoner . . . concerning what medical

2 care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681

3 F.3d 978, 987 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard,

4 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc). While Plaintiff claims he requires opioids

5 to treat his osteoarthritis, nothing in his FAC or Exhibit G, which is comprised of his

6 medical records, CDCR Health Care Appeal Tracking No. RJD HC 19002052, and both

7 the Institutional and Headquarters Level Responses, provides any factual support for a

8 deliberate indifference claim. See, e.g., Fausett v. LeBlanc, 553 F. App’x 665 (9th Cir.

9 2014) (affirming summary judgment for defendants where doctors did not provide

10 Valium ordered in hospital-discharge instructions after spinal-fusion surgery and instead

11 provided substitute medicine and other pain medications); Gauthier v. Stiles, 402 F.

12 App’x 203 (9th Cir. 2010) (prisoner’s disagreement with the dosage and type of pain

13 medication administered after surgery did not rise to the level of deliberate indifference);

14 Brauner v. Coody, 793 F.3d 493, 497 (5th Cir. 2015) (although plaintiff stated that he

15 required more pain relief than the over-the-counter and prescription medications provided

16 by prison doctors for his undisputed bone infection with open sores, “these are ‘classic

17 example[s] of a matter for medical judgment’ ” and, as a matter of law, do not amount to

18 deliberate indifference); Miller v. California Dep’t of Corr. & Rehab., No. 16-CV-02431-

19 EMC, 2018 WL 534306, at *19 (N.D. Cal. Jan. 24, 2018) (finding no constitutional

20 violation for decision to prescribe non-narcotic pain medications even where the prisoner

21 continued to complain of pain while on morphine). Thus, because neither the allegations

22 in Plaintiff’s FAC nor the exhibits he attaches support a reasonable inference of

23 deliberate indifference on the part of Dr. Chau with respect to Plaintiff’s osteoarthritis or

24 the course of treatment, he cannot be held liable for violating Plaintiff’s Eighth

25 Amendment rights. See Iqbal, 556 U.S. at 678.

26 Finally, as he did with respect to his dietary supplement claims, Plaintiff also seeks

27 to hold Defendants Ferrer-Sazon, Roberts, Glynn, and Gates responsible for failing to

28 appropriately respond in their “602 Appeal Institutional Level and Headquarters Level

1 Response[s].” Id. at 8, Ex. G. at 95‒99. But he includes no additional facts describing

2 how or to what extent any of these appeals-official Defendants personally acted with

3 deliberate indifference to his serious medical needs. See Barren v. Harrington, 152 F.3d

4 1193, 1194 (9th Cir. 1998) (“A plaintiff must allege facts, not simply conclusions, t[o]

5 show that [each defendant] was personally involved in the deprivation of his civil

6 rights.”); see also Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248

7 (9th Cir. 1999) (“Causation is, of course, a required element of a § 1983 claim.”). The

8 denial of an administrative grievance, without more, is insufficient to establish a civil

9 rights violation. See e.g., Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no

10 legitimate claim of entitlement to a grievance procedure.”); Shehee v. Luttrell, 199 F.3d

11 295, 300 (6th Cir. 1999) (the denial of or failure to respond to administrative grievances

12 will not support a civil rights claim); see also Jordan v. Asuncion, No. CV 17-1283 PSG

13 (PVC), 2021 WL 964044, at *10 (C.D. Cal. Jan. 15, 2021), report and recommendation

14 adopted, No. CV 17-1283 PSG (PVC), 2021 WL 963752 (C.D. Cal. Mar. 12, 2021)

15 (finding prisoner “ha[d] not even stated a constitutional claim” against a doctor whose

16 opinion was offered “merely [as] a part of the CDCR’s review of Plaintiff’s appeal.”).

17 Pursuant to § 1983, Plaintiff must, at minimum, allege some factual content to

18 describe how each individual person he seeks to sue violated the Constitution. Iqbal, 556

19 U.S. at 676-77; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v.

20 Williams, 297 F.3d 930, 934 (9th Cir. 2002). He may not attribute liability to a group of

21 inmate appeals reviewers as he has, but instead must “set forth specific facts” as to each

22 individual defendant’s wrong. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see

23 also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

24 For all these reasons, the Court finds Plaintiff’s FAC still fails to allege any

25 plausible claim for relief under the Eighth Amendment as to any Defendant and

26 concludes that sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

27 § 1915A(b)(1) remains warranted. See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at

28 1004.

1 E. Leave to Amend

2 On September 7, 2020, the Court explained Plaintiff's pleading deficiencies, and

3 || because it was not absolutely clear he could not allege additional facts to state plausible

4 || Eighth Amendment claims for relief, granted him leave to amend. See ECF No. 5 at 17

5 || (citing Aktar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). Despite having had this

6 || opportunity, Plaintiff still fails to state an Eighth Amendment claim against any

7 || Defendant. Therefore, the Court finds further amendment would be futile. See Gonzalez

8 || v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (‘Futility of amendment

9 || can, by itself, justify the denial of . . . leave to amend.’’’) (quoting Bonin v. Calderon, 59

10 || F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981,

11 |} 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend

12 || and has subsequently failed to add the requisite particularity to its claims, [t]he district

13 || court’s discretion to deny leave to amend is particularly broad.” (internal quotation marks

14 || omitted) (second alteration in original)).

15 Conclusion and Order

16 Accordingly, the Court DISMISSES this civil action sua sponte without further

17 || leave to amend for failure to state a claim upon which § 1983 relief can be pursuant to 28

18 ||}U.S.C. § 1915(e)(2)(B) and § 1915A(b), CERTIFIES that an IFP appeal would not be

19 taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of Court

20 || to enter a final judgment of dismissal and to close the file.

21 IT IS SO ORDERED.

22 ||Dated: May 14, 2021

23 Hon. athe Cae

24 United States District Judge

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