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Miguel Enrique Diaz v. Diaz

November 28, 2012

MIGUEL ENRIQUE DIAZ,
PLAINTIFF,
v.
DIAZ
v.
R. DIAZ, ET AL., VASQUEZ, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM AND ON GROUNDS THAT IT DUPLICATES FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF BE DENIED (Doc. 3)

I. Procedural History

Miguel Enrique Diaz ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis, in this civil rights action pursuant to 42 U.S.C. § 1983. On August 9, 2012, Plaintiff filed a motion for emergency injunction without ever filing a complaint. Doc. 1; Doc. 3. The Court will treat Plaintiff's motion as a motion for preliminary injunction and also as a complaint. Doc. 3.

II. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

III. Plaintiff's Complaint

Plaintiff is currently a state prisoner at the California Substance Abuse Treatment Facility (CSATF) in Corcoran, California. The events central to Plaintiff's complaint occurred while he was at prisoner at CSATF. Doc. 1; Doc. 3. In the complaint, Plaintiff names the following as defendants: 1) R. Diaz (Warden at CSATF); 2) J. Reynoso (Associate Warden at CSATF); 3) R. Garcia (CC II at CSATF); 4) Vasquez (Captain at CSATF); 5) R. Morales (Lieutenant at CSATF);

6) Heck Agpa (C.M. at CSATF); 7) Gallagher (at CSATF); 8) Popper (Sergeant at CSATF); 9) J. J. Lopez (Sergeant at CSATF); 10) Enenomoh (CMO at CSATF); 11) Ding (Doctor at CSATF); 12) Martinez (RN at CSATF); 13) Whiting (LVN at CSATF); 14) Lozano (Correctional Officer at CSATF); 15) Correctional Officer Pilgrim; 16) Hall (Appeals Coordinator); 17) Jasso (OTA); and 18) Does 1-10. Doc. 1; Doc. 3 at 1. Plaintiff seeks compensatory, punitive, declaratory and injunctive relief. Doc. 3 at 3.

Plaintiff alleges that on April 30, 2012, Plaintiff went to his job in vocational plumbing and Defendant Lozano ordered Plaintiff to return to his dorm stated that Plaintiff would never wear his personal soft shoes while he worked there even with a "Chrono"*fn1 and that Defendant Lozano did not care what the chrono stated. Doc. 3 at 1. Plaintiff explained that due to his ruptured Achilles tendon, Plaintiff is unable to wear state issued footwear because such footwear causes bleeding, further scare tissue and increased loss in motion range. Doc. 3 at 1-2. Defendant Lozano responded, "That's your problem." Doc. 3 at 2. Plaintiff then stated that it was an Americans with Disabilities Act (ADA) issue at his previous prison and the soft shoes were allowed as a reasonable accommodation. Doc. 3 at 2. According to Plaintiff, Defendant Lozano replied that he did not care and that it was Plaintiff's problem. Doc. 3 at 2. According to Plaintiff, Defendant Lozano never mention that the denial of soft shoes were for security or safety reasons, rather that it was Defendant Lozano's personal pet peeve and that it was his policy and no one could change it. Doc. 3 at 2. Plaintiff alleges that Defendant Lozano stated that he did not allow ADA reasonable accommodations that he did not like and it was his program and Plaintiff was not going to change it. Doc. 3 at 2.

On May 25, 2012, Plaintiff received a disciplinary charge for refusing to report to work on May 21, 2012, however, on May 21, 2012, Plaintiff was in the emergency room due to chest pain and Achilles tendon pain. Doc. 3 at 2. During the hearing, Lieutenant Andres found Plaintiff not guilty because an LVN stated that Plaintiff's chrono was a reasonable accommodation and was valid and transferable due to the Plata consent decree guidelines. Doc. 3 at 2.

Plaintiff did not return to work until June 12, 2012, when he was given a temporary accommodation chrono. Doc. 3 at 2. Although Plaintiff was given a temporary chrono, Plaintiff asserts that he requires a permanent chrono in order to prevent more injury and loss of range of motion. Doc. 3 at 2. Plaintiff states that he has been to buy $515.92 boots provided by contractor called "Sunrise." Doc. 3 at 2. However, Plaintiff complains that "the Asian employees medical opinion [gave] a '50-50' chance of [the boots] working for [Plaintiff's] medical condition." Doc. 2 at 3. Plaintiff emphasizes that "the Asian" never asked about Plaintiff's medical condition or physically examined Plaintiff to even support the "50-50" determination. Doc. 3 at 2-3. Plaintiff was unwilling to pay $575.92 dollars for the boots supplied by the prison-approved vendor. Doc. 3 at 3. Plaintiff asserts that it is unconstitutional to force him to pay $575.92 for prison-approved shoes when the vendor states that the shoes have a fifty percent chance of working, and such a predicament justifies an emergency injunction mandating that Plaintiff be allowed to wear personal tennis shoes in perpetuity. Doc. 3 at 3.

According to Plaintiff, based upon the Plata plan and federal receivership, all chronos must be accepted at all other prisons, while CSATF's policy is to re-evaluate all transferred prisoners and rescind chronos that they disagree with. Doc. 3 at 5. After Defendant Doctor Ding performed a three-minute medical evaluation on Plaintiff's shoulders and knees that were previously operated on, CSATF rescinded Plaintiff's chrono for a cane and "lower mobility vest." Doc. 3 at 5, 17. Plaintiff alleges that Sergeant Beltran and Defendant Morales told Plaintiff to get his chrono changed because custody staff do not accept chronos from other prisons. Doc. 3 at 5. Plaintiff alleges that this policy violates his ADA rights. Doc. 3 at 5. Plaintiff also alleges that Defendants Martinez (Nurse) and Whiting (LVN) maliciously re-screened Plaintiff for eligibility for disability chronos and with malice, determined that he did not need the same accommodation chronos that he had received at a different prison. Doc. 3 at 18. Plaintiff also alleges that Defendant Agpa violated Plaintiff's rights by telling Defendant Gallagher and other prison staff that Plaintiff's former medical chrono from another prison was no longer valid. Doc. 3 at 18. Plaintiff states that Defendants Lozano and Pilgrim conspired to not recognize his medical chrono from another prison. Doc. 3 at 18. Plaintiff argues that these circumstances amount to deliberate indifference and cruel and inhumane treatment. Doc. 3 at 5, 19.

The Court takes judicial notice of Plaintiff's duplicate claims in Diaz v. Vasquez, et al., 1:12-cv-00732-GBC and the exhibits attached in both Diaz v. Vasquez, et al., 1:12-cv-00732-GBC and in this current action.*fn2 According to Plaintiff's exhibits, Plaintiff's full-time work in the plumbing unit began Thursday April 26, 2012. Diaz v. Vasquez, et al., 1:12-cv-00732-GBC (Doc. 2 at 19) (report printed April 30, 2012). Plaintiff does not clarify whether he reported to work prior to the April 30, 2012, confrontation with Defendant Lozano. Nor does Plaintiff clarify what transpired regarding his shoes if and when he reported to work previously. In Plaintiff's attached declaration, Plaintiff states that Defendant Vasquez authored a memorandum that did not allow for any ADA reasonable accommodation. Doc. 3 at 16. Plaintiff also attached a grievance dated April 30, 2012, which states "the memo of 3/28/12 makes now allowance for any reasonable accommodation this violates the ADA and Armstrong Remedial Plan." Doc. 3 at 21. In Plaintiff's duplicate action, Diaz v. Vasquez, et al., 1:12-cv-00732-GBC, Plaintiff attaches an exhibit which is a memorandum dated March 28, 2012, and signed by Defendant Vasquez and Sergeant Beltran which states:

This memorandum is to inform the Facility "B" General Population in regards to state issued clothing. State issued clothing will not be required to be worn when inside the Housing Units or Recreational Yard. As of Wednesday, March 28, 2012, state issued clothing along with state issued boots or state issued shoes must be worn when an inmate is entering the following areas listed below:

Dining Hall

Vocations Work Change Program Office Medical Clinic Law Library Chapel Education Department Visiting If an inmate is not in compliance with the above written locations, they will forfeit their opportunity to enter the desired destination without further discussion. Disciplinary action will be taken by facility staff if the aforementioned is not complied with.

Diaz v. Vasquez, et al., 1:12-cv-00732-GBC (Doc. 2 at 18) (Memorandum dated March 28, 2012).

IV. Applicable Law and Analysis

A. Duplicate Action

It appears that this action is proceeding on duplicate claims and duplicate defendants brought in another case, Diaz v. Vasquez, et al., 1:12-cv-00732-GBC. According to the Ninth Circuit:

To ascertain whether successive causes of action are the same, we use the transaction test, developed in the context of claim preclusion. "Whether two events are part of the same transaction or series depends on whether they are related to the same set of facts and whether they could conveniently be tried together."

Adams v. California Dept. of Health Services, 487 F.3d 684, 689 (9th Cir. 2007) (quoting Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir.1992)). In applying the transaction test, we examine four criteria:

(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.

Adams v. California Dept. of Health Services, 487 F.3d 684, 689 (9th Cir. 2007) (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982)). 'The last of ...


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