Kirk Harris v. T. Engels

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 19-5590-PA (KK) Date: August 20, 2019

Title:

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE

DEB TAYLOR Not Reported

Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):

None Present None Present

Proceedings: (In Chambers) Order to Show Cause Why (1) Official Capacity Claims for

Monetary Damages, (2) Claims for Violation of the Eighth Amendment,

and (3) Claims Against Dr. Galstain, Garret, and Jordan Should Not Be

Dismissed for Failure to State a Claim

I.

INTRODUCTION

Plaintiff Kirk Harris (“Plaintiff”) filed a Complaint pursuant to 42 U.S.C. § 1983 (“Section

1983”) against various psychologists and librarians at California State Prison – Los Angeles County

(“CSP-LAC”) in their individual and official capacities for denial of adequate medical care and denial

of access to courts. Based upon the Court’s review of the Complaint pursuant to 28 U.S.C. §§ 1915

and 1915A, several claims appear subject to dismissal. Hence, as set forth below, the Court hereby

grants Plaintiff an opportunity to (a) proceed on his claim for denial of access to courts against

defendants Engels, Porter, Rocke, and Friedman and voluntarily dismiss the remaining deficient

claims; or (b) file a First Amended Complaint curing the deficiencies identified below.

///

///

///

///

///

///

///

II.

ALLEGATIONS IN THE COMPLAINT

On June 26, 2019,1 Plaintiff, an inmate at CSP-LAC, filed the instant Complaint against

defendants T. Engels, A. Porter, Dr. C. Galstain, T. Garret, C. Jordan, E. Rocke, and Friedman

(“Defendants”) in their individual and official capacities. Plaintiff alleges defendants Engels, Porter,

Galstain, Garret, and Jordan, who are all psychologists at CSP-LAC, violated his Eighth and

Fourteenth Amendment rights by denying him adequate medical care and access to courts. Plaintiff

alleges defendants Rocke and Friedman, who are librarians at CSP-LAC, violated his Fourteenth

Amendment rights by denying him access to courts.2

According to the Complaint, Plaintiff has a mental disability and has been diagnosed with

“developmental disability 1” in the past because his reading level is 1.7. Dkt. 1 at 6. Plaintiff alleges

he is unable to challenge his conviction through habeas proceedings because of his developmental

disabilities. Id. at 6-7.

Plaintiff was convicted of two counts of robbery and is currently serving his sentence for

this conviction. See People v. Harris, No. F061768, 2012 WL 3222309, at *2 (Cal. Ct. App. Aug. 9,

2012).3 Upon completion of his direct appeal of his conviction in 2012, Plaintiff alleges he

requested “developmental disability legal assistance” and learned that he had been de-classified from

“developmental disability 1.” Dkt. 1 at 6-7. Plaintiff was interviewed by two psychologists in 2015

who stated he “needed assistance.” Id. In January 2016, however, Plaintiff was tested by

psychologist defendants Garret and Jordan, but they would not “resubmit” him or classify him as

“developmental disability 1.” Id. at 7-8. In 2017, Plaintiff requested legal assistance due to his

developmental disability, but psychologist defendant Engels refused to provide him assistance. Id.

Plaintiff then submitted a grievance to senior psychologist defendant Porter, who refused to provide

legal assistance or classify Plaintiff as “developmental disability 1.” Id. at 8. Finally, the librarians

defendants Friedman and Rocke refused to provide Plaintiff with legal assistance in preparing his

habeas filings, which they knew they were required to do based on Plaintiff’s illiteracy and 1.7 grade

point average. Id.

1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail

to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.

Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103,

1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).

While Plaintiff would be entitled to the benefit of the mailbox rule, because the Complaint is

undated, the Court will use the date the Court received the Complaint as the filing date for purposes

of this Order.

2 Because the right of access to courts falls under the First Amendment, the Court liberally

construes the claims against Defendants for violation of the “Fourteenth Amendment” to be

alleging a violation of Plaintiff’s First Amendment right of access to the court.

3 The Court takes judicial notice of Plaintiff’s prior proceedings in this Court and in the state

courts. Fed. R. Evid. 201(b)(2); In re Korean Air Lines Co., 642 F.3d 685, 689 n.1 (9th Cir. 2011);

United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

Plaintiff seeks monetary damages as well as an injunction requiring the California

Department of Corrections and Rehabilitation to (1) classify Plaintiff as developmental disability 1;

and (2) “provide legal assistance as require[d] for inmates classified as developmental disability 1.”

Id. at 9.

III.

STANDARD OF REVIEW

Where a plaintiff is a prisoner or proceeding in forma pauperis, a court must screen the

complaint under 28 U.S.C. §§ 1915 and 1915A and is required to dismiss the case at any time if it

concludes the action is frivolous or malicious, fails to state a claim on which relief may be granted,

or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §§

1915(e)(2)(B), 1915A; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In

determining whether a complaint fails to state a claim for screening purposes, a court applies the

same pleading standard as it would when evaluating a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

A complaint may be dismissed for failure to state a claim “where there is no cognizable legal

theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Zamani v.

Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In considering whether a complaint states a claim, a court

must accept as true all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889,

892-93 (9th Cir. 2011). However, the court need not accept as true “allegations that are merely

conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec.

Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need not include detailed factual

allegations, it “must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible

when it “allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. The complaint “must contain sufficient allegations of underlying facts to

give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d

1202, 1216 (9th Cir. 2011).

“A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). However, liberal construction

should only be afforded to “a plaintiff’s factual allegations,” Neitzke v. Williams, 490 U.S. 319, 330

n.9, 109 S. Ct. 1827, 104 L. Ed. 2d 339 (1989), and a court need not accept as true “unreasonable

inferences or assume the truth of legal conclusions cast in the form of factual allegations,” Ileto v.

Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).

If a court finds the complaint should be dismissed for failure to state a claim, the court has

discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th

Cir. 2000). Leave to amend should be granted if it appears possible the defects in the complaint

could be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States,

70 F.3d 1103, 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint

cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at

1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).

IV.

DISCUSSION

A. THE ELEVENTH AMENDMENT BARS ALL SECTION 1983 CLAIMS FOR

MONETARY DAMAGES AGAINST DEFENDANTS IN THEIR OFFICIAL

CAPACITY

1. Applicable Law

“The Eleventh Amendment prohibits federal courts from hearing suits brought against an

unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir.

1991) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L.

Ed. 2d 67 (1984)). This jurisdictional bar includes “suits naming state agencies and departments as

defendants,” and it applies whether a plaintiff “seek[s] damages or injunctive relief.” Id.; Pennhurst

State School, 465 U.S. at 102. As to state officials sued in their official capacity, the Eleventh

Amendment immunizes state officials sued in their official capacity from claims for retrospective

relief (including monetary damage claims) but does not immunize them from claims for prospective

relief (such as forward-looking injunctive relief). Kentucky v. Graham, 473 U.S. 159, 169-70, 105 S.

Ct. 3099, 87 L. Ed. 2d 114 (1985); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662

(1974); Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 2d 714 (1908).

2. Analysis

Here, Plaintiff’s claims against Defendants in their official capacity for monetary damages are

barred by the Eleventh Amendment. See Graham, 473 U.S. at 169-70 (holding the Eleventh

Amendment bar “remains in effect when State officials are sued for damages in their official

capacity”). Thus, Plaintiff’s claims against Defendants in their official capacity for monetary

damages are subject to dismissal.

B. THE COMPLAINT FAILS TO STATE AN EIGHTH AMENDMENT CLAIM

1. Applicable Law

Prison officials or private physicians under contract to treat inmates “violate the Eighth

Amendment if they are ‘deliberately indifferent to a prisoner’s serious medical needs.’” Peralta v.

Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct.

285, 50 L. Ed. 2d 251 (1976) (alterations omitted)); see also Farmer v. Brennan, 511 U.S. 825, 828,

114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). To state a deliberate indifference claim, a prisoner

plaintiff must allege facts demonstrating the defendant: (1) deprived him of an objectively serious

medical need, and (2) acted with a subjectively culpable state of mind. Wilson v. Seiter, 501 U.S.

294, 297, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991).

“A medical need is serious if failure to treat it will result in ‘significant injury or the

unnecessary and wanton infliction of pain.’” Peralta, 744 F.3d at 1081 (quoting Jett v. Penner, 439

F.3d 1091, 1096 (9th Cir. 2006)). “A prison official is deliberately indifferent to [a serious medical]

need if he ‘knows of and disregards an excessive risk to inmate health.’” Id. at 1082 (quoting

Farmer, 511 U.S. at 837). The “official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”

Farmer, 511 U.S. at 837.

Deliberate indifference “requires more than ordinary lack of due care.” Colwell v. Bannister,

763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Farmer, 511 U.S. at 835). “Deliberate indifference

‘may appear when prison officials deny, delay, or intentionally interfere with medical treatment, or it

may be shown by the way in which prison physicians provide medical care.’” Id. (quoting

Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). In either case, however, the

indifference to the inmate’s medical needs must be substantial – negligence, inadvertence, or

differences in medical judgment or opinion do not rise to the level of a constitutional violation.

Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (negligence constituting medical malpractice

is not sufficient to establish an Eighth Amendment violation).

2. Analysis

Here, Plaintiff fails to state an Eighth Amendment deliberate indifference claim. Plaintiff

fails to describe any objectively serious medical need of which he was deprived. See Wilson, 501

U.S. at 297. Plaintiff alleges the failure to designate him developmentally disabled resulted in a lack

of access to courts, not a denial of any medical need. Moreover, a difference in medical judgment or

opinion between Plaintiff’s prior doctors who designated him developmentally disabled and

Defendants does not rise to the level of a constitutional violation. See Toguchi, 391 F.3d at 1060.

Thus, Plaintiff’s Eighth Amendment claims are subject to dismissal.

C. THE COMPLAINT FAILS TO STATE A FIRST AMENDMENT ACCESS TO

COURTS CLAIM AGAINST DEFENDANTS GALSTAIN, GARRET, AND

JORDAN

1. Applicable Law

Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518

U.S. 343, 346, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir.

2009). This right “requires prison authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance

from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 52 L. Ed. 2d

72 (1977); see also Madrid v. Gomez, 190 F.3d 990, 995 (9th Cir. 1999). Because inmates do not

have “an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish

relevant actual injury by establishing that his prison’s law library or legal assistance program is subpar

in some theoretical sense.” Lewis, 518 U.S. at 351.

To bring a claim, the plaintiff must have suffered an actual injury by being shut out of court.

Christopher v. Harbury, 536 U.S. 403, 415, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002); Phillips, 588

F.3d at 655. The type of legal claim protected is limited to direct criminal appeals, habeas petitions,

and civil rights actions such as those brought under section 1983 to vindicate basic constitutional

rights. Lewis, 518 U.S. at 354. “When any inmate, even an illiterate or non-English-speaking

inmate, shows that an actionable claim of this nature which he desired to bring has been lost or

rejected, or that the presentation of such a claim is currently being prevented, because this capability

of filing suit has not been provided, he demonstrates that the State has failed to furnish ‘adequate

law libraries or adequate assistance from persons trained in the law.’” Id. at 356-57 (quoting

Bounds, 430 U.S. at 828); see also Hawkins v. California, No. 1:09-CV-01705-LJO, 2013 WL

4402042, at *5 (E.D. Cal. Aug. 15, 2013), report and recommendation adopted, 2014 WL 508652

(E.D. Cal. Feb. 6, 2014) (finding developmentally disabled inmate who was denied assistance from

the law librarian in filing a habeas petition sufficiently stated a claim).

2. Analysis

Here, Plaintiff fails to allege defendants Galstain, Garret, or Jordan refused to provide him

with assistance in preparing a habeas petition. Plaintiff only alleges defendants Garret and Jordan

refused to classify him as developmental disability 1. Plaintiff does not allege any specific factual

allegations against defendant Galstain. Plaintiff, therefore, fails to allege defendants Galstain,

Garret, or Jordan took any actions specifically directed at preventing Plaintiff’s access to courts.

Thus, Plaintiff’s First Amendment access to courts claims against defendant Galstain, Garret, and

Jordan are subject to dismissal.

V.

ORDER

For the foregoing reasons, the above referenced claims are subject to dismissal.

Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the service date of this

Order, Plaintiff choose one of the following two options:

1. Plaintiff may voluntarily dismiss the deficient claims without prejudice, pursuant to

Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to mail Plaintiff a blank Notice

of Dismissal Form, which the Court encourages Plaintiff to use if he chooses to voluntarily dismiss

the deficient claims.

If Plaintiff would like to proceed in this action on the current Complaint with a First

Amendment access to courts claim against defendants Engles, Porter, Friedman, and Rocke in their

individual and official capacities, Plaintiff shall file a Notice of Dismissal voluntarily dismissing the

following deficient claims: (1) all claims for monetary damages against all Defendants in their official

capacity; (2) all claims against defendants Galstain, Garret, and Jordan; and (3) all Eighth

Amendment claims.

2. Alternatively, Plaintiff may file a First Amended Complaint to attempt to cure the

deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank Central District

civil rights complaint form to use for filing the First Amended Complaint, which the Court

encourages Plaintiff to use if he chooses to file a First Amended Complaint.

If Plaintiff chooses to file a First Amended Complaint, he must clearly designate on the face

of the document that it is the “First Amended Complaint,” it must bear the docket number assigned

to this case, and be written on the court-approved form. Plaintiff shall not include new defendants

or allegations that are not reasonably related to the claims asserted in the Complaint. In addition,

the First Amended Complaint must be complete without reference to the Complaint, or any other

pleading, attachment, or document.

An amended complaint supersedes the preceding complaint. Ferdik v. Bonzelet, 963 F.2d

1258, 1262 (9th Cir. 1992). After amendment, the Court will treat all preceding complaints as

nonexistent. Id. Because the Court grants Plaintiff leave to amend as to all his claims raised here,

any claim raised in a preceding complaint is waived if it is not raised again in the First Amended

Complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012).

Plaintiff is advised that the Court’s determination herein that the allegations in the

Complaint are insufficient to state a particular claim should not be seen as dispositive of that claim.

The Court advises Plaintiff, however, that it generally will not be well-disposed toward dismissal

with leave to amend if Plaintiff files a First Amended Complaint that continues to include claims on

which relief cannot be granted. “[A] district court’s discretion over amendments is especially broad

‘where the court has already given a plaintiff one or more opportunities to amend his complaint.’”

Ismail v. Cty. of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at

1261. Hence, if Plaintiff asserts a claim in a First Amended Complaint that has been found to be

deficient without addressing the claim’s deficiencies, then the Court, pursuant to the provisions of

28 U.S.C. § 636, ultimately will submit to the assigned district judge a recommendation that such

claim be dismissed with prejudice for failure to state a claim, subject to Plaintiff’s right at that time

to file Objections with the district judge as provided in the Local Rules Governing Duties of

Magistrate Judges.

Plaintiff is explicitly cautioned that failure to timely respond to this Order will result

in the deficient claims being dismissed with prejudice for failure to state a claim.

IT IS SO ORDERED.