UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
December 8, 2010
JESSE D. GARZA, PLAINTIFF,
SALINAS VALLEY STATE PRISON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
On July 20, 2010, plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, in the United States District Court for the Northern District of California. On August 13, 2010, plaintiff filed a First Amended Complaint. The Northern District of California then transferred the action to this judicial district. On October 22, 2010, this Court granted plaintiff's application to proceed in forma pauperis, and the First Amended Complaint, which is the operative complaint, was filed in this court.
Congress has mandated that courts perform an initial screening of prisoner civil rights actions. This Court "shall" dismiss such a civil action before service of process if the Court concludes that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks relief against a defendant who is immune from suit. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). In screening such a complaint, the Court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Id.; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
Plaintiff is currently incarcerated at the Salinas Valley State Prison ("SVSP"). (First Amended Complaint at 1.) He is suing the following defendants: California State Prison-Los Angeles County ("CSPLAC"); SVSP; Chief Deputy Warden B.M. Cash; Correctional Officer Luis Chavez; Facility Captain E.J. Hutchins; Correctional Officers G. Lage, E.J. Williams, Rubio, and Solorzano; Lieutenant A. Espinoza; N. Grannis, Chief of the Inmate Appeals Branch; "Facility Captain Appeals Examiner"
S. Wright; Lieutenant A. Sylva; Sergeant R. Valenzuela; Appeals Coordinator J. Curiel; Correctional Officer J. Freye; B. Mendez, Cook; Dr. T. Belavich, Health Care Manager; Associate Warden R.W. Nipper; Lieutenant M. Nunez; Soliz, R.N.; Cabrera, R.N.; Warden F.B. Haws; Facility Captain Dottaviano; Lieutenant Aaron Pfeil; Correctional Officers Davila, Andy Puenes, P. Rohskothen; Napolitano, R.N.; Briones, R.N.; T. Van Dongen, Health Care Appeals Coordinator; P. Gailbraith, Health Care Appeals Coordinator; Special Agent Williams Wells; Correctional Counselor R. Thomas; Lieutenant Galviz; C. Ynson; V. Daniels, R.N.; A. Pangilinan; Correctional Officer Vadaro; A. Swaby; H.C. Le, M.D.; J. Gocke N.P.; R. Ravikumar, M.D.; Finlander, M.D.; Olukanmi; Fitter, M.D.; and Mostafania, M.D. (Id. at 2-3.)
Plaintiff alleges that, on July 17, 2009, while he was incarcerated at CSP-LAC, defendant Correctional Officer Chavez entered his hospital room and took his Bible. (First Amended Complaint at 3.) When plaintiff objected, Chavez grabbed his injured arm, dragged him out of bed, and repeatedly punched him. (Id.) Plaintiff suffered two broken front teeth and other injuries, including a re-injury of his shoulder. (Id.) Chavez then charged plaintiff with assaulting him. (Id.)
Plaintiff further alleges that, on another occasion, defendant Chavez: tore away plaintiff's blanket and threw his wheelchair at him, injuring plaintiff's ankle; made sexual advances to plaintiff; and claimed to have urinated in plaintiff's kosher meal. (Complaint at 3.) Plaintiff asserts that Chavez slandered plaintiff, called him names, and endangered his safety, and Chavez and other CSP-LAC staff starved plaintiff. (Id.) Plaintiff further contends that he was sexually abused and tormented by Chavez and other CSP-LAC staff since his arrival at the prison, and that the appeals coordinators and medical staff lied and engaged in cover-ups. (Id.)
Plaintiff seeks release from prison to "a regular and civilian hospital," an award of court costs, and methadone for his chronic pain. (First Amended Complaint at 3-4.)
I. PLAINTIFF'S EXCESSIVE FORCE CLAIMS AGAINST DEFENDANT CHAVEZ WITHSTAND SCREENING; PLAINTIFF'S OTHER CLAIMS AGAINST CHAVEZ MUST BE DISMISSED.
Plaintiff's factual allegations are sufficient to allege Eighth Amendment claims against defendant Chavez for excessive force on two occasions: (1) on July 17, 2009, when Chavez allegedly dragged plaintiff out of his hospital bed and repeatedly punched him; and (2) on an unspecified date, when Chavez allegedly threw plaintiff's wheelchair at him, injuring his ankle. (First Amended Complaint at 3.)
With respect to plaintiff's allegation that Chavez told him that Chavez had urinated in plaintiff's food, it is unclear whether plaintiff is alleging that Chavez actually did so, or only that Chavez verbally harassed him by claiming to have done so. An allegation that a correctional officer urinated in an inmate's food is sufficient to state an Eighth Amendment claim. The protections of the Eighth Amendment, however, do not extend to verbal harassment. See Blueford v. Prunty, 108 F.3d 251, 254-55 (9th Cir. 1997)(holding that a prison guard who engaged in "vulgar same-sex trash talk" with inmates was entitled to qualified immunity); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (holding that verbal threats and harassment do not state an Eighth Amendment claim). For the same reason, plaintiff's allegations that defendant Chavez slandered him and called him names do not state an Eighth Amendment claim. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (directing vulgar language at an inmate does not state a constitutional claim). Plaintiff may be alleging that the "names" applied to him by Chavez endangered his safety; however, he has not adequately alleged a claim for deliberate indifference to his safety, because he does not state what the "names" were, in what manner they endangered his safety, and whether the risk to his safety ever materialized. Contrast Valandingham v. Bojorquez, 866 F.2d 1135, 1137-38 (9th Cir. 1989)(allegations that prison guards called plaintiff a "snitch" and other inmates then threatened plaintiff with harm stated a claim).
With respect to plaintiff's allegations that Chavez made sexual advances towards him and sexually abused him, prisoners have a right to be free from sexual abuse by prison guards. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). Verbal sexual harassment, however, does not necessarily violate the Eighth Amendment. Austin, 367 F.3d at 1171-72 (finding no Eighth Amendment violation when prison guard in control booth briefly exposed his genitals to inmate but never touched him). Plaintiff's allegations are insufficiently specific to determine whether he is alleging actionable sexual abuse.
To the extent plaintiff alleges that Chavez and other CSP-LAC officials "starved" him, the Eighth Amendment requires prisoners to receive food adequate to maintain health. LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). Plaintiff does not describe the nature of the deficiency in the food he received, however, nor does he allege in what manner Chavez was responsible for the deprivation. There is no indication in the First Amended Complaint that Chavez was responsible for preparing or delivering plaintiff's meals. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)(deliberate indifference inquiry focuses on the duties and responsibilities of particular defendant).
Accordingly, plaintiff's claims against defendant Chavez, except for his excessive force claims, must be dismissed. Plaintiff is cautioned that although his excessive force claims against Chavez have withstood screening, plaintiff must re-allege them in his Second Amended Complaint in order to continue to pursue them.
II. PLAINTIFF FAILS TO ALLEGE A FACTUAL BASIS FOR SUING ANY DEFENDANT EXCEPT CHAVEZ.
In addition to defendant Chavez, plaintiff has sued 43 other individuals and two entities. Plaintiff has neither identified the nature of his claims against these other defendants nor set forth the facts on which his claims against them are based. In his First Amended Complaint, plaintiff has described incidents concerning defendant Chavez alone.
The Court recognizes that plaintiff has attached to the First Amended Complaint copies of his grievances, which mention individual defendants other than Chavez. However, it is not the Court's responsibility to scour through plaintiff's exhibits to determine whether they contain a factual basis for a possible constitutional claim. It is plaintiff's responsibility to set forth, with respect to each defendant, "a short and plain statement of the claim" showing that he is entitled to relief. Fed. R. Civ. P. 8(a). While plaintiff may attach and incorporate exhibits to supplement his allegations, the exhibits are not a substitute for the substantive allegations that must be contained within the body of the complaint. See Hodgins v. Woodford, 2007 WL 852113, *4 (E.D. Cal., Mar. 21, 2007)("[Plaintiff] fails . . . to state what it is that each defendant has done that constitutes a deprivation of his constitutional rights. Instead, plaintiff apparently intends to have the court and the parties sort through his exhibits and put together the factual predicate of his claims."), adopted by 2007 WL 2789433 (E.D. Cal. Sep. 25, 2007).
To give each defendant the notice required by Rule 8, plaintiff must "make clear connections between specific allegations and individual defendants." McHenry v. Renne, 84 F.3d 1172, 1175 (9th Cir. 1996). Plaintiff must set forth, as to each defendant, "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009). Because plaintiff has utterly failed to identify, or provide a factual basis for, his claims against any defendant except Chavez, his claims against the other defendants must be dismissed.*fn1
If plaintiff elects to pursue this action, he must identify the nature of the claim he is asserting against each defendant named in the Second Amended Complaint. Furthermore, plaintiff must allege, with respect to each defendant, facts from which the Court can reasonably infer that, if plaintiff's allegations are true, that defendant is liable for the constitutional deprivation for which plaintiff seeks to hold him or her liable. See Iqbal, 129 S. Ct. at 1949 (Rule 8 requires more than an unadorned "the-defendant-unlawfully-harmed-me" accusation). If plaintiff cannot truthfully allege a factual basis for asserting constitutional claims against some of the 46 defendants, he should omit those defendants from the Second Amended Complaint.
III. PLAINTIFF'S CLAIMS AGAINST SVSP AND CSP-LAC ARE BARRED BY THE ELEVENTH AMENDMENT.
Plaintiff has included as defendants two prisons, SVSP and CSP-LAC. (Complaint at 2.)
The Eleventh Amendment prohibits federal jurisdiction over claims against a state and its agencies unless the state consents to suit. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908 (1984). The Ninth Circuit has explained: "In the absence of a waiver by the state or a valid congressional override, under the [E]leventh [A]mendment, agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court." Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999)(internal quotation marks and citation omitted). The State of California has not waived its Eleventh Amendment immunity with respect to claims brought under Section 1983 in federal court, and the Supreme Court has held that Section 1983 was not intended to abrogate a State's Eleventh Amendment immunity. Dittman, 191 F.3d at 1025-26.
SVSP and CSP-LAC are entities within the California Department of Corrections and Rehabilitation ("CDCR"), which is a state agency immune from suit under the Eleventh Amendment. See Brown v. California Dept. of Corrections, 554 F.3d 747, 752 (9th Cir. 2009)(CDCR is entitled to Eleventh Amendment immunity). Thus, plaintiff's claims against SVSP and CSP-LAC are barred by Eleventh Amendment immunity,*fn2 and his claims against SVSP and CSP-LAC must be dismissed for this additional reason.
IV. PLAINTIFF CANNOT ALLEGE A CONSTITUTIONAL CLAIM BASED ON THE PROCESSING OF HIS GRIEVANCES.
The defendants sued by plaintiff in this action include: N. Grannis, Chief of the Inmate Appeals Branch; "Facility Captain Appeals Examiner" S. Wright; Appeals Coordinator J. Curiel; T. Van Dongen, Health Care Appeals Coordinator; and P. Gailbraith, Health Care Appeals Coordinator. (First Amended Complaint at 3.) Plaintiff may also have sued other defendants based on their involvement in processing his grievances. (See id.).
A prisoner cannot state a due process claim based on the handling of his grievances. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)("inmates lack a separate constitutional entitlement to a specific prison grievance procedure"); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. #:542 1988)("There is no legitimate claim of entitlement to a grievance procedure."); see also Larkin v. Watts, 300 Fed. Appx. 501, 2008 WL 4946284, *1 (9th Cir., Nov. 12, 2008)(plaintiff's "claim that the defendants improperly processed his administrative complaints or grievances does not give rise to a cognizable constitutional or Bivens claim.")(citable under Fed. R. App. P. 32.1(a) and Ninth Circuit Rule 36-3).
Accordingly, to the extent plaintiff's claims arise out of his dissatisfaction with the handling of his grievances, they must be dismissed for this additional reason.
For the foregoing reasons, the First Amended Complaint is dismissed with leave to amend. If plaintiff wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a Second Amended Complaint that attempts to cure the defects in the First Amended Complaint described herein. The Second Amended Complaint, if any, shall be complete in itself. It shall not refer in any manner to the original Complaint or the First Amended Complaint. Plaintiff may not add new claims or new defendants without obtaining prior leave of court. Fed. R. Civ. P. 15(a) #:543
Plaintiff is explicitly cautioned that failure to timely file a Second Amended Complaint, or failure to correct the deficiencies described herein, may result in a recommendation that this action be dismissed pursuant to Fed. R. Civ. P. 41(b).