(PC) Doss v. Mule Creek State Prison

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ROBERT L. DOSS, No. 2:24-cv-1092 CSK P

12 Plaintiff,

13 v. ORDER

14 MULE CREEK STATE PRISON, et al.,

15 Defendants.

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17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

18 complaint pursuant to 42 U.S.C. § 1983. Plaintiff’s amended complaint is before the Court.

19 (ECF No. 12.) As set forth below, plaintiff’s first amended complaint (“FAC”) is dismissed with

20 leave to amend.

21 I. SCREENING STANDARDS

22 The court is required to screen complaints brought by prisoners seeking relief against a

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

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

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

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

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

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

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

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

3 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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

5 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

6 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

7 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

8 1227.

9 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

10 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

12 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

13 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

14 formulaic recitation of the elements of a cause of action;” it must contain factual allegations

15 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

16 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

17 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

18 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

19 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

20 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

21 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

22 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

23 II. THE CIVIL RIGHTS ACT

24 To state a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a federal

25 constitutional or statutory right; and (2) that the violation was committed by a person acting under

26 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

27 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

28 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

1 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

2 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

3 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

4 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679

5 (2009). The requisite causal connection between a supervisor’s wrongful conduct and the

6 violation of the prisoner’s constitutional rights can be established in a number of ways, including

7 by demonstrating that a supervisor’s own culpable action or inaction in the training, supervision,

8 or control of his subordinates was a cause of plaintiff’s injury. Starr v. Baca, 652 F.3d 1202,

9 1208 (9th Cir. 2011).

10 III. PLAINTIFF’S FIRST AMENDED COMPLAINT

11 Plaintiff again names as defendants Mule Creek State Prison, Hla Nyo, Physician,

12 Sabreana Hernandez, R.N., and the San Juan General Hospital. (ECF No. 12 at 1.)

13 In his first claim, plaintiff alleges retaliation, claiming his rights to a follow-up

14 appointment for the bone biopsy results was denied. (Id. at 3.) Plaintiff claims he was lied to by

15 the doctor and RN Hernandez, telling plaintiff he had blood cancer, and then a week later plaintiff

16 was told he did not have blood cancer after having a hot drill drilled into his left upper buttocks.

17 (Id.) Plaintiff claims that this was payback for all of the 602s plaintiff wrote on RN Hernandez.

18 (Id.) Plaintiff claims that the appointment took one and a half years, “and when it occurred the

19 blood doctor did not know anything about [plaintiff], and he did not have the results of the bone

20 biopsy, and none was ever entered into plaintiff’s medical records.” (Id.) Plaintiff contends this

21 was because the biopsy was not done for medical reasons but was punishment for plaintiff filing

22 602’s on defendant R.N. Hernandez, and the doctor went along with the lie. (Id.) Plaintiff

23 contends the injury was the lie that he had blood cancer, had a hot drill drilled into his left upper

24 buttocks during a bone biopsy, but then on March 8, 2023, plaintiff was told he did not have

25 blood cancer. (Id.) In his second claim, plaintiff alleges retaliation and violation of his right to be

26 free from pain and suffering based on RN Hernandez’s lie, and the doctor going along with the

27 lie. (Id. at 4.) In his third claim, plaintiff alleged violation of his right as a senior citizen based on

28 retaliation by RN Hernandez. (Id. at 5.)

1 Plaintiff seeks money damages, and reimbursement for the Court’s filing fee. (Id. at 6.)

2 IV. STANDARDS GOVERNING RETALIATION CLAIMS

3 “Prisoners have a First Amendment right to file grievances against prison officials and to

4 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012)

5 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the

6 prison context has five elements: “(1) An assertion that a state actor took some adverse action

7 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action

8 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not

9 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68

10 (9th Cir. 2005).

11 V. DISCUSSION

12 A. Defendants Dr. Nyo and RN Hernandez

13 Liberally construed, the gravamen of plaintiff’s FAC is that he was lied to by defendant

14 Hernandez, who told plaintiff he had blood cancer in retaliation for the grievances plaintiff filed

15 against her, and that Dr. Nyo went along with the lie. As a result, plaintiff alleges he suffered a

16 painful bone biopsy. A week after the biopsy, plaintiff was informed he did not have blood

17 cancer. The Court again finds that plaintiff fails to provide sufficient factual allegations to

18 demonstrate that his retaliation claim is plausible.

19 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements

20 of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,

21 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

22 Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is

23 plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp., 550 U.S. at 570).

24 A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

25 defendant is liable for the misconduct alleged. The plausibility

standard is not akin to a “probability requirement,” but it asks for

26 more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a

27 defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.

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1 Ashcroft, 566 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions

2 can provide the framework of a complaint, they must be supported by factual allegations, and are

3 not entitled to the assumption of truth. Id.

4 As was the case with the complaint, in the FAC, plaintiff again fails to provide facts

5 demonstrating that Dr. Nyo was even aware of plaintiff’s grievances against defendant

6 Hernandez, or explaining why a doctor would “go along” with defendant Hernandez’s alleged

7 retaliatory motive. Such facts are critical to a purported retaliation claim, particularly where it is

8 the doctor, not the nurse, who would order the bone biopsy. Moreover, alleging that a supervisor

9 was “aware” is insufficient, particularly where plaintiff is raising a retaliation claim against Dr.

10 Nyo. Personal participation in the retaliatory conduct, and not merely the existence of a

11 supervisory relationship, is required to hold supervisors liable. Ashcroft, 556 U.S. at 676

12 (holding that “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must

13 plead that each Government-official defendant, through the official’s own individual actions, has

14 violated the Constitution”); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A person does

15 not become liable for retaliation merely because he or she knows of, or is a supervisor of,

16 someone who engages in retaliation. Cf. Ashcroft, 556 U.S. at 677. Each defendant must be

17 aware of the protected conduct and that conduct must give them a retaliatory motive that causes

18 the chilling adverse conduct; mere speculation is insufficient. Id. Just because the bone biopsy

19 results showed no blood cancer does not demonstrate that the medical test (the bone biopsy) was

20 not needed to rule out the presence of cancer or other medical concerns. As plaintiff was

21 previously informed, he must address all of the Rhodes elements as to each named defendant in

22 order to state cognizable retaliation claims.

23 Further, plaintiff must provide more context for how he received a bone biopsy, and on

24 what facts he bases his claim that Dr. Nyo “went along with” defendant Hernandez’s purported

25 plot to subject plaintiff to a bone biopsy to punish him rather than to determine he was not

26 suffering from cancer because it is common knowledge that bone biopsies are performed to

27 diagnose certain cancers. Indeed, conducting a bone biopsy is a legitimate medical test to

28 diagnose whether or not a patient has blood cancer, which would serve a legitimate penological

1 purpose. Plaintiff’s allegation that he has not received a follow up appointment concerning the

2 bone biopsy results is at odds with his allegation that he was told a week after the biopsy that he

3 did not have bone cancer, which suggests that he was provided with the results and again raises

4 an inference that the biopsy was performed to determine whether plaintiff had blood cancer. And

5 if plaintiff were not having blood issues, it is not clear why he would see an unidentified “blood

6 doctor” a year and a half after the biopsy. (ECF No. 12 at 3.)1 If plaintiff had no blood-related

7 concerns, it is unclear why he would be seen by a blood doctor a year and a half later, despite

8 plaintiff’s apparent belief he did not need a bone biopsy, and his new claim that the blood doctor

9 did not know anything about plaintiff and had no bone biopsy results. Indeed, prisoners are not

10 referred to specialists such as a “blood doctor,” unless the prisoner has a serious medical need

11 requiring such appointment.

12 In addition, plaintiff claims the bone biopsy was performed off site at San Juan General

13 Hospital. It is not plausible that a doctor at San Juan General Hospital would perform a bone

14 biopsy without an order from the Chief Medical Executive authorizing the off site procedure.

15 Generally, a prison doctor’s recommendations for specialized off site procedures or surgeries

16 must be approved by their supervising official and then the procedure is sent for scheduling.

17 For the above reasons, the Court finds plaintiff again fails to state cognizable retaliation

18 claims as to Dr. Nyo and RN Hernandez. Plaintiff is granted one final opportunity to file a

19 second amended complaint that includes sufficient facts for this Court to determine whether

20 plaintiff can state a plausible retaliation claim.

21 B. Defendant San Joaquin General Hospital

22 Plaintiff also names the San Joaquin General Hospital as a defendant. However, plaintiff

23 includes no charging allegations as to this defendant, so the Court is unable to evaluate whether

24 he could potentially state a cognizable claim against the hospital. Accordingly, plaintiff’s claims

25 against San Joaquin General Hospital must be dismissed.

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1 It appears plaintiff was seen by the blood doctor after plaintiff was transferred to High Desert

27 State Prison on April 3, 2023 (ECF No. 12 at 4). Thus, such referral appears to have no

connection to defendants Dr. Nyo and Hernandez, both of whom are employed at Mule Creek

28 State Prison. (ECF No. 12 at 1-2.)

1 C. Defendant Mule Creek State Prison

2 In his FAC, plaintiff named Mule Creek State Prison as one of the defendants. However,

3 as plaintiff was previously informed, the Eleventh Amendment serves as a jurisdictional bar to

4 suits brought by private parties against a state or state agency unless the state or the agency

5 consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781

6 (1978)( per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). In the

7 instant case, the State of California has not consented to suit. Accordingly, plaintiff’s claims

8 against Mule Creek State Prison are frivolous and must be dismissed. Plaintiff should not include

9 Mule Creek State Prison as a defendant in any second amended complaint.

10 VI. LEAVE TO AMEND

11 This Court finds the allegations in plaintiff’s FAC so vague and conclusory that it is

12 unable to determine whether the current action is frivolous or fails to state a claim for relief. The

13 Court has determined that the FAC does not contain a short and plain statement as required by

14 Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint

15 must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty.

16 Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some

17 degree of particularity overt acts which each named defendant engaged in that support plaintiff’s

18 claim. See id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P.

19 8(a)(2), the first amended complaint must be dismissed. The Court will, however, grant leave to

20 file a second amended complaint.

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

22 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g.,

23 West, 487 U.S. at 48. Also, the second amended complaint must allege in specific terms how

24 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no

25 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

26 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633

27 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague, and conclusory allegations of official

28 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,

1 |} 268 (9th Cir. 1982).

2 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

3 || make plaintiff's second amended complaint complete. Local Rule 220 requires that an amended

4 || complaint be complete in itself without reference to any prior pleading. This requirement exists

5 || because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez

6 || v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint

7 || supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation

8 | omitted)). Once plaintiff files a second amended complaint, the original pleading no longer

9 || serves any function in the case. Therefore, in a second amended complaint, as in an original

10 || complaint, each claim and the involvement of each defendant must be sufficiently alleged.

11 | VII CONCLUSION

12 In accordance with the above, IT IS HEREBY ORDERED that:

13 1. Plaintiffs first amended complaint (ECF No. 12) is dismissed.

14 2. Within thirty days from the date of this order, plaintiff shall complete the attached

15 || Notice of Amendment and submit the following documents to the Court:

16 a. The completed Notice of Amendment; and

17 b. An original of the Second Amended Complaint.

18 | Plaintiff's second amended complaint shall comply with the requirements of the Civil Rights Act,

19 || the Federal Rules of Civil Procedure, and the Local Rules of Practice. The second amended

20 || complaint must also bear the docket number assigned to this case and must be labeled “Second

21 || Amended Complaint.”

22 Failure to file a second amended complaint in accordance with this order may result in the

23 || dismissal of this action.

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25 || Dated: March 13, 2025 A aA

Aan Spe |

CHI SOO KIM

27 UNITED STATES MAGISTRATE JUDGE

3g /V/doss1092.14b

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT L. DOSS, No. 2:24-cv-1092 CSK P

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Plaintiff,

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v. NOTICE OF AMENDMENT

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MULE CREEK STATE PRISON, et al.,

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Defendants.

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17 Plaintiff submits the following document in compliance with the court’s order

18 filed on ______________ (date).

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20 Second Amended Complaint

21 (Check this box if submitting a Second Amended Complaint)

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23 DATED:

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24 Plaintiff

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